The Power of Perspectives

The Canadian Bar Association

Justin Ling

End of life

Canada's new medically-assisted dying law

By Justin Ling April 14, 2016 14 April 2016

Canada's new medically-assisted dying law

More than a year after the ruling in Carter v. Canada, the country finally has legislation on physician-assisted suicide — Bill C-14.

And, by and large, the neophyte Trudeau government hasn’t deviated much from the narrow legal path laid out by the Supreme Court of Canada.

But there’s one big exception: To obtain medical aid in euthanasia from a Canadian doctor, nurse, or pharmacist, the patient must be suffering from a disease where death is “reasonably foreseeable.”  That’s somewhat of a departure from the Supreme Court’s requirement that a person must have “a serious and incurable disease, illness or disability” and be in “an advanced state of irreversible decline of capability.”

While that new provisions remain broad and vague — the act stipulates that the order can be given “without a prognosis necessarily having been made as to the specific length of time that they have remaining” — the government concedes that the work required to regulate physician-assisted dying in Canada is far from over.

“We are committed to further studying the contentious issues around mature minors, advanced directives, and situations where mental illness is the sole underlying condition,” said Health Minister Jane Philpott at a Thursday morning press conference.

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Charter rights

Bringing back the Court Challenges Program: What about Section 7?

By Justin Ling April 7, 2016 7 April 2016

The history of the Court Challenges Program is a tortured one. While it existed in some fashion in the late 1970s, Brian Mulroney’s government formally launched the program in 1985, before killing it just seven years later. The government of Jean Chretien brought it back in 1994, but had its funding abolished by Stephen Harper in 2006.

Now, the Liberal government wants to bring it back.

But what is the program for?

At its root, the CCP was intended to provide financial assistance to advance minority language cases. In 1985, with the coming into force of section 15 of the Charter and the legal shift towards the formal recognition of equality rights, the CCP expanded to include cases ranging from challenges to the Indian Act to the Charkaoui case, which fought against the government’s use of security certificates.

The two branches of the CCP, at the time, made sense. But as the government begins consultations on the reinstatement of the program, some lawyers worry the program is stuck in 1994.

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Criminal law

The trials of handling sexual assault cases

By Justin Ling March 30, 2016 30 March 2016

Do we need to rethink how our criminal justice system addresses sexual assault? Are Crown prosecutors insufficiently preparing themselves for disclosure? Are judges flatly biased against women? Is it time to start talking about recalibrating the presumption of innocence or the burden of proof?

The recent acquittal of Jian Ghomeshi on sex-assault charges is forcing Canadians and the legal community to consider some of these fundamental questions unlike any time in recent memory.

A law professor, a Crown prosecutor, a defence counsel, and an activist all took to the stage at McGill University on Tuesday to try and flesh some of those themes out and to take a closer look at Ontario Court Justice William Horkins’ ruling earlier this month.

It’s a ruling that can be described as an exercise in navigating contradictions

“The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models,” he writes of one of the complainants. “Having said that, I have no hesitation in saying that the behaviour of this complainant is, at the very least, odd. The factual inconsistencies in her evidence cause me to approach her evidence with great scepticism.”

Elsewhere, he writes of another complainant: “it is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police,” but goes on: “I can understand being reluctant to mention it, but I do not understand her thinking that it was not relevant.”

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Budget 2016

Budget 2016: What’s in it for justice

By Justin Ling March 23, 2016 23 March 2016

Budget 2016: What’s in it for justice

 

Canada’s justice system, after years of being burdened with more cases instead of more funding, is getting a reprieve of sorts in Justin Trudeau’s first budget.

But beyond a commitment to invest new money, the budget harkens back to an age where the government welcome Charter challenges, instead of fought them tooth-and-nail.

Tuesday’s announcement includes $88 million, spread over five years, to boost legal aid across all levels of court. That comes along with nearly $8 million, over the same timeframe, to go into the Courts Administrative Services to boost technology infrastructure.

Also in the budget is $4 million for the Aboriginal Courtwork program, aimed at reducing education, language, and cultural barriers in the justice system, to address the staggering disproportionality of aboriginal offenders in Canadian courtrooms and jails.

While the funding promises are welcome — albeit relatively small — the real big change lies in the long-awaited return of the Court Challenges Program, which had been a crucial tool for funding and advancing challenges under the Canadian Charter of Rights and Freedoms especially as they relate to advancing language rights, as well as the status of women and minorities.

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Surveillance

Encryption technology and the law in Canada

By Justin Ling March 22, 2016 22 March 2016

Encryption technology and the law in Canada

 

It’s been four years since then-Justice Minister Vic Toews had to shelve Bill C-30, the cyber-snooping bill that forced one of the Harper government’s rare tactical retreats.

Three years since Edward Snowden peeled back the curtain on the NSA, and forced the Western world to confront the realities of state surveillance.

Two years since documents showed that the Communications Security Establishment (CSE), Canada’s electronic spy agency, had been experimenting with software and hardware to capture data from every traveller passing through Canadian airports.

It’s been just a year since the Harper government tabled Bill C-51, the anti-terrorism legislation that would break down walls on information sharing and open the door to what has been dubbed “total situational awareness.”

And last month, American law enforcement began knocking on Apple’s door to write a backdoor for the iPhone’s encryption protections to help investigators crack the cellphone of the San Bernardino shooters.

Despite this, and growing concerns about security and surveillance, Canadian courts have so far been mostly shielded from these conversations.

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