The Power of Perspectives

The Canadian Bar Association

Justin Ling

National security

The new national security bill: Just tinkering?

By Justin Ling June 22, 2017 22 June 2017

The new national security bill: Just tinkering?

 

The federal government unveiled its wide-ranging national security overhaul this week, to a chorus of decidedly mixed reactions.

The omnibus legislation, bill C-59, updates a wide array of Canada’s national security framework, from adding the role of an Intelligence Commissioner, tasked with approving operations and activities; to the newly-created oversight committee, designed to keep a watchful eye on the wider security environment; to the creation of a standalone legal authority for the Communication Security Establishment, the country’s spy agency that performs foreign electronic surveillance.

At the core of the bill is a plan to trim aspects of C-51, the Harper government’s previous attempt to overhaul the Anti-Terrorism Act and CSIS Act, which drew heavy criticism from a variety of constitutional and criminal lawyers.

One of the most controversial aspects of C-51 was its commitment to allow CSIS to break Canadians’ Charter rights in pursuing its newly-afforded disruption powers.

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The Supreme Court

Filling McLachlin's seat: What does tradition tell us?

By Justin Ling June 13, 2017 13 June 2017

Filling McLachlin's seat: What does tradition tell us?

 

With Chief Justice Beverley McLachlin retiring, the Trudeau government will have to search for a replacement in that role for the first time in 17 years. The Prime Minister will also have the opportunity to fill her seat.

The big question that will be debated in legal circles in the coming weeks and months is, who will fill her shoes?

Chief Justice McLachlin has been heralded as a consensus-builder on the top court over a nearly two-decade stretch where the court has crafted whole new approaches to the Charter of Rights and Freedoms, breathed new life into ancestral rights for Indigenous peoples and reinforced centuries-old treaties signed with the Crown, and pronounced itself on an array of controversial topics from gay marriage to medical marijuana, assisted dying, and sex work.

"Ever the collaborative jurist, she is known for finding consensus on the court and fostering cordial and collaborative relationships with the profession," CBA President René Basque said in a recent statement following the announcement of her retirement.

Her legacy will be a hard one to match.

And the prime minister is going to have a tough job picking one from the current contingent of justices to fill her role as head of the country.

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Criminal law

Feds expand the rape shield protections

By Justin Ling June 7, 2017 7 June 2017

Feds expand the rape shield protections

 

It was 25 years ago that Canada saw the adoption of a rape shield law, designed to protect survivors of sexual assault from being cross-examined on their sexual history, unless it was directly pertinent to the facts of the case.

But now, under legislation tabled by Justice Minister Jody Wilson-Raybould on Tuesday, the shield law is getting an update. And with it, the statutes around consent will gain further clarity.

It’s all a part of a revamping of the Criminal Code, undertaken by Wilson-Raybould, which will see a host of antiquated laws deleted or modernized, as part of a bid to drag the Criminal Code into the 21st century. The bill is titled, perhaps unfortunately, C-51.

The crux of the changes to the rape shield law will clarify that no communications from the complainant’s past can be admitted into evidence if they are being used by defence counsel to do one of two things: Undercut the credibility of the witness, or establish a likelihood that the complainant would’ve consented. These are the so-called “twin myths.”

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National security

Sharing national security secrets: More oversight

By Justin Ling June 1, 2017 1 June 2017

Sharing national security secrets: More oversight


When the Liberal government finally gets around to introducing a reform package on Canada’s national security laws, chances are that much of the attention will focus on the Security of Canada Information Sharing Act, or SCISA.

Skepticism over information sharing has reached peaked in recent years, thanks in no small part to the Edward Snowden leaks and subsequent revelations and litigation surrounding the integration of the Five Eyes intelligence partners.  Together they have produced a steady trickle of information that has shown how Canadian intelligence agencies are integrated to the services of American and foreign partners. And how that can impact Canadians, even innocent ones.

Given that, and thanks to reforms introduced by the Harper government, the Liberals have honed in on tinkering with SCISA in order to write in some more general stopgaps and safeguards.

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Supreme Court of Canada

Is there a duty to consult in the legislative processes?

By Justin Ling May 25, 2017 25 May 2017

Is there a duty to consult in the legislative processes?

 

The rules around the Crown’s duty to consult have come a long way in Canada, thanks in large part to courts who have been broadly supportive of the principle that when the Crown is planning action that that could have an adverse impact on Indigenous or Treaty rights, those communities should be heard and, where appropriate, accommodated. A recent example involves the Supreme Court of Canada Supreme Court declaring Aboriginal title in Tsilhqot'in Nation v. British Columbia in 2014. 

But what if Parliament were required to consult Indigenous peoples on legislation it plans on adopting? 

The Supreme Court granted leave last week in a matter that may begin to answer that question. 

In Courtoreille v. Canada, the Mikisew Cree First Nation — represented by Chief Steve Courtoreille — claims that the previous government introduced and adopted omnibus legislation passed by into law without consulting with his nation. That, Courtoreille argued, abridged the Mikisew nation’s treaty rights. 

The dispute is a complex one that strikes at the very core of Canada’s system of governance.

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