The Power of Perspectives

The Canadian Bar Association

Justin Ling

Criminal justice

Are Corrections Canada's psychological tests for Indigenous inmates reliable?

By Justin Ling October 13, 2017 13 October 2017

Are Corrections Canada's psychological tests for Indigenous inmates reliable?

 

The Supreme Court has reserved judgement in a case that could hold huge ramifications for Indigenous prisoners.

The top court heard arguments yesterday from Jeffrey Ewert, a Metis man who sued the Correctional Services of Canada, arguing that the psychological tests applied to would-be inmates discriminated against Indigenous prisoners.

Ewert won his case at trial, but lost on appeal. At the top court, a slew of interveners — including the Canadian Human Rights Commission, Native Women's Association of Canada, Criminal Lawyers' Association of Ontario — have joined the fight.

What’s wrong with the tests? CSC uses these psychological tests to help determine “the management of the risk of criminal behaviour by the offender.” There are five tests employed by the criminal justice system in Canada, although none are actually mandatory. They attempt to measure the offender’s psychological well-being, their risk of violence, and their risk for sexual violence. While the Crown contends that these tests are merely data points that allow psychologists to make decisions regarding parole, the availability of supervised and scheduled releases, and what level of security the inmates require.

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Trade

Bombardier trade dispute: "We appear to be entering a new phase"

By Justin Ling September 28, 2017 28 September 2017

Bombardier trade dispute: "We appear to be entering a new phase"

 

In the most recent trade spat in the era of “America First” the U.S. Department of Commerce has slapped a 219 percent anti-subsidy duty on Bombardier's C Series aircraft, to punish what it views as illegal states subsidies from Canadian and U.K. governments.

“It’s an astounding number,” says Riyaz Dattu, a partner specializing on international trade with Osler.

The decision, spurred by a complaint from Boeing, has already rocked the already-beleaguered Quebec aerospace company, as their shares have tumbled over the past day.

As Dattu points out, it was expected that the U.S. Department of Commerce would find “some level of subsidization.” But the figure announced by Washington on Wednesday is staggering, even though it may yet be revised down and, eventually, set aside by a NAFTA panel.

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Criminal law

Confidential informants: Widening the circle of privilege

By Justin Ling September 22, 2017 22 September 2017

Confidential informants: Widening the circle of privilege

 

Are confidential informants outing themselves to evade prosecution? If so, how should the courts step in to strip them of that privilege? Even if they haven’t, how do you prosecute an informant once they’ve identified themselves as such? 

That was the question before the Court of Queen’s Bench of Alberta earlier this month. 

Here’s the scenario: Police charge a suspect. During the first interview, the suspect reveals information that could later be used at trial. But, during that first interrogation, the suspect also reveals he’s a confidential informant, a fact until then unknown to the arresting officers. 

“The Crown faces a conundrum,” writes Justice J.A. Antonio assigned to the perplexing case. “If it includes the interview, redacted or unredacted, in the disclosure package for the criminal trial, it will effectively be informing defence counsel that Named Person A is a confidential informant.” 

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Privacy

RCMP conducted unauthorized searches using mobile tracking technology

By Justin Ling September 14, 2017 14 September 2017

RCMP conducted unauthorized searches using mobile tracking technology

 

We've been waiting for this for some time but we finally know the legal basis behind the RCMP’s use of IMSI catchers. 

The RCMP have used the mobile phone eavesdropping and tracking technology, sometimes referred to as Mobile Devices Identifiers (MDIs) or by the brand name Stingray, in 125 investigations, according to a new report by Privacy Commissioner Daniel Therrien. 

Strikingly, the RCMP concluded that judicial authorization wasn’t always necessary to use the technology, which can scrape identifying data from all cellphones within kilometers — including those of innocent bystanders — and can geographically pinpoint a cellphone. 

In six cases, the RCMP broke the Privacy Act and conducted unauthorized searches, contrary to section 8 of the Canadian Charter of Rights and Freedoms, Therrien found.

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Cybersecurity

Is Canada ready for a new data breach notification regime?

By Justin Ling September 13, 2017 13 September 2017

Is Canada ready for a new data breach notification regime?

 

Businesses in Canada are going to have to get serious about figuring out how to respond to a data breach.

This week’s massive Equifax breach is a reminder of the stakes at play when dealing with users’ data. The looming implementation of proposed regulations under Canada’s Digital Privacy Act should also stiffen their resolve.

After Equifax’ systems were hacked, data on as many as 143 million Americans — and possibly a number of Canadians and others — was potentially compromised.

The fallout has the U.S. Congress demanding answers, the New York Attorney General’s office has launched an investigation, and class action lawsuits are being filed against it across America.

One application for a class action, filed this week in a New York courtroom, contends that Equifax acted negligently by taking more than a full month to report the breach to their consumers on September 7, after learning of it on July 29.

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