The Power of Perspectives

The Canadian Bar Association

Justin Ling

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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Immigration

Key parts of citizenship revocation process struck down

By Justin Ling May 11, 2017 11 May 2017

Key parts of citizenship revocation process struck down

 

The Federal Court just beat Justin Trudeau to the punch.

In a ruling yesterday, the court found that three provisions in the Citizenship Act were unconstitutional and denied Canadian citizens the right to due process afforded to them under the Canadian Bill of Rights.

Justice Jocelyne Gagné ruled that Ottawa’s powers to strip citizenship from dual citizens, in cases where they believe the citizenship was obtained through fraud or misrepresentation, lacked safeguards.

Thanks to changes brought in under the Strengthening Canadian Citizenship Act, people facing revocation were only afforded a trial if the Minister of Citizenship and Immigration deemed it necessary. Otherwise, their representations would be made only in writing.

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Trade

Beer pressure

By Justin Ling May 10, 2017 10 May 2017

Beer pressure

 

When the Supreme Court granted leave last week to hear the appeal in R. v. Comeau, there was elation in all sorts of different corners of the country.

Free marketeers are hoping the top court will finally pave the way for legal challenges to enforce the sort of free-trading union that (they suspect) the framers of the constitution always wanted.

Wine aficionados are anticipating the pleasure sipping B.C. wine in Nova Scotia, and Nova Scotia wine in B.C.

For provincial governments, the hope is that a ruling will reinforce their long-held power to regulate and manage certain domestic industries at their province’s borders.

Caught in the middle of it all are the provincial liquor boards, whose very existence might be on the line.

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Inter-provincial trade

Interprovincial beer case heads to the SCC

By Justin Ling May 5, 2017 5 May 2017

Interprovincial beer case heads to the SCC

A case that will decide the fate of Canadian liquor laws, and perhaps inter-provincial trade itself, is heading to the Supreme Court.

R. v. Comeau, which found that a ticket issued against Gerard Comeau ran afoul of the Constitution Act, 1867, was decided at the Provincial Court Of New Brunswick in 2016.

Since then, the province has tried to appeal to both New Brunswick Court of Appeal and the Court of Queen’s Bench, to little avail. Their hail mary pass, which came with the enthusiastic support of Comeau himself, was to file for leave to the Supreme Court.

The top court granted leave yesterday.

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Trade

Why we can't seem to solve the softwood dispute for good

By Justin Ling April 27, 2017 27 April 2017

Why we can't seem to solve the softwood dispute for good

 

How many softwood lumber disputes is it going to take before Canada gets a long-term deal with the U.S.?

This last week appears to have been the beginning of Lumber V, the fifth incarnation of a long-standing trade dispute that has taken place on the margins of NAFTA, wherein Washington has consistently insisted that Ottawa has dumped subsidized lumber into its market. Trade tribunals — even America’s own internal trade authorities — have sided with Canada.

Indeed, past disputes have wound up before arbitration, and led to agreements that have cooled cross-border sniping on the file. Now the two countries have been without a deal since 2015.

And while Prime Minister Justin Trudeau had marathon talks to try and get a deal to pre-empt Lumber V, none came (according to one former U.S. trade representative, Canada was close to sealing one with the Obama administration, but decided to hold out for better terms with his successor). And, as such, President Donald Trump has picked up the mantle.

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