The Power of Perspectives

The Canadian Bar Association

Justin Ling

Voting rights

SCC to hear case on expat voting rights

By Justin Ling March 20, 2018 20 March 2018

SCC to hear case on expat voting rights

At a time when foreign influence in domestic elections is at an all time high, the Supreme Court will finally hear arguments tomorrow in favour of why outside agitators should be allowed to participate in Canadian elections. In so doing, the top court is set to tackle the definition of what, exactly, is in the Canadian social contract.

It’s not exactly Russian propaganda, however.

In 2015, the Ontario Court of Appeal ruled that section 11(d) of the Elections Canada Act, which bars Canadian expats who have been out of the country for more than five years from voting, was constitutional. In so doing it overturned a lower court ruling which struck down the section.

The legislation effectively disenfranchises more than a million Canadians living abroad, although Ottawa has held that such a prohibition is within international norms (as CBA National has written previously, that is not even remotely true in the G7 context, where most countries allow full franchise for non-resident citizens.)

Two Canadians living in the United States, who launched the lawsuit, contend otherwise. Pointedly, they write in their factum to the top court that “the disenfranchisement of Canadian citizens in this case cannot be saved by s. 1 of the Charter.”

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Division of powers

A pan-Canadian securities regulator at last?

By Justin Ling March 19, 2018 19 March 2018

A pan-Canadian securities regulator at last?

It’s déjà vu, all over again, as the Quebec government heads to the Supreme Court to try and nix an opt-in national securities regulator.

The case is the culmination of a fight that originally began as a crowd-pleasing compromise solution.

A provincial history: In 2011, the top court considered in a reference case the constitutionality of a proposed national securities regulator and unanimously concluded “that the day-to-day regulation of securities […] essentially remains a matter of property and civil rights”, which falls under exclusive provincial jurisdiction.

It also held that the nature of a financial market “may, in principle, support federal intervention that is qualitatively different from what the provinces can do,” but ultimately concluded that, despite their fundamentally intertwined nature, they couldn’t be managed by a single desk — at least not by Ottawa’s edict. The court called that the “wholesale takeover of the regulation.”

Instead, the court said that a “cooperative approach” which would allow for “the essentially provincial nature of securities regulation” could work, while simultaneously addressing national issues “remains available and is supported by Canadian constitutional principles and by the practice adopted by the federal and provincial governments in other fields of activities.”

It was invitation of sorts to Ottawa to figure out a voluntary system.

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Budget 2018: What's in it for justice

By Justin Ling February 28, 2018 28 February 2018

Budget 2018: What's in it for justice

In the Trudeau government’s 2018 budget, the penultimate for its first mandate, the government has pledged new money for Canada’s court system, access to justice, and fighting sexual assault and harassment in the workforce.

The new funding comes in a budget that has been heavily marketed to address gender inequality and systemic failures in outcomes for Indigenous peoples. Here are some highlights.

Money for the courts: Amid longstanding concerns that Canada’s court system is underfunded to address the volume of cases it currently faces — a concern exacerbated by the 2016 Supreme Court ruling in R. v. Jordan, which set strict timelines on trial delays — this year’s budget does offer some new money to help the courts cope.

The budget allocates $75 million for the courts themselves, as well as additional $77 million to expand family courts, as well as another $13 million for access to justice programs and legal aid for immigrants and refugees, all over the next five years.

The money for the family courts will allow for 39 new judicial positions in a handful of provinces, and six new spots on the Ontario Superior Court and the Saskatchewan Court of Appeal.

Beyond that details are relatively scant about what, precisely, the government plans to do to address the strain on the courts and access to justice.

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How the Privacy Commissioner proposes we enforce a right to be forgotten

By Justin Ling January 30, 2018 30 January 2018

How the Privacy Commissioner proposes we enforce a right to be forgotten

The Office of the Privacy Commissioner has offered up some ideas about how Canada could develop its own approach to de-indexing search results about people – a way of enforcing a so-called right to be forgotten online. Commissioner Daniel Therrien says that right may already exist under current law.

In a draft position published last week, Therrien’s office has suggested that Canada could have a pretty effective system to protect the reputation of its citizens online, and all it would need to do would be to more broadly enforce select provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA).

The conversation over the right to be forgotten gathered steam after a Spanish court ruled in 2014 that European citizens have the right to have negative or inaccurate personal information removed from search results. The ruling practically recognized search engines as quasi-public utilities that fall under the regulatory jurisdiction of national governments.

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Internet law

B.C. appeals court: Virtual presence enough to enforce production order

By Justin Ling January 17, 2018 17 January 2018

B.C. appeals court: Virtual presence enough to enforce production order


Since the Supreme Court passed down its decision last June in Equustek, lawyers have been waiting with baited breath to see just how broad an interpretation the new internet regime will receive from the courts. Global tech companies, including Google, hoped to see the Canadian — and even American — tribunals rein in the ability of our courts to order companies to take actions beyond our jurisdictional borders.

A recent B.C. appellate decision suggests that Equustek isn’t going to be relegated to a tiny corner of Canadian law. It is very much the standard.

What happened with Equustek? Ever last year’s Supreme Court ruling in Equustek that Canadian courts have jurisdiction to make orders for foreign-based internet companies that carry on business in Canada, there have been concerns about the practical implications.

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