The Power of Perspectives

The Canadian Bar Association

Justin Ling

Privacy & Access Law

The question of consent: Who decides what you need to know?

By Justin Ling August 23, 2016 23 August 2016

Is it time to blow up Canada’s oft-mocked, seldom-read privacy policy?

That’s one suggestion offered by the Office of the Privacy Commissioner in a discussion paper intended to draw guidelines for possible updates to the Personal Information Protection and Electronic Documents Act.

The document, published in May, was intended to spark conversation and draw submissions for eventual recommendations from the office regarding how PIPEDA governs consent and privacy.

From tackling the increasingly-lengthy and complex legalese of privacy policies, to wrestling with the advent of big data and online trackers, to managing the proliferation of algorithms that can build sophisticated profiles of users and internet denizens, the privacy commissioner has been mulling over possible new legislative solutions to boost awareness and protections online.

“Left entirely to their own devices, individuals can hardly be expected to demystify complex business relationships and complicated algorithms to make informed choices about when to provide consent to the collection, use and disclosure of their personal information,” the discussion paper reads. “The burden of understanding and consenting to complicated practices should not rest solely on individuals without having the appropriate support mechanisms in place to facilitate the consent process.”

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What is ‘credible’? Edgar Schmidt keeps asking

By Justin Ling August 19, 2016 19 August 2016

One of the most interesting, and least covered, legal fights in Canada isn’t over yet.

Edgar Schmidt v Attorney General of Canada contended that successive governments have failed to respect a constitutional requirement that they pass legislation that they know to be compliant with the Charter and that they report any possible inconsistencies in proposed legislation to Parliament.

Schmidt is the former general counsel in the Legislative Services Branch of the Department of Justice — a position from which he’s been on leave since blowing the whistle on the federal government and launching the current litigation.

National has covered Schmidt’s case since 2013, from the early rounds of his case against the Attorney General, to the first hearings in a Federal Court in Ottawa, and, most recently, the decision by that court to dismiss Schmidt’s claim.

And now Schmidt is appealing that decision. On Monday, he and his lawyer, David Yazbeck, of Raven, Cameron, Ballantyne and Yazbeck, filed their memorandum of fact.

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Investor protection

BC's foreign buyers tax: A violation of Canada's trade deals?

By Justin Ling August 10, 2016 10 August 2016


British Columbia’s may be in breach of NAFTA by taxing foreign purchases of real estate. But that doesn’t mean BC is going to be shelling out billions in a lost judgment anytime soon, say legal experts.

Barry Appleton, managing partner at Appleton and Associates, took to the Financial Post to contend that a new 15 per cent tax imposed by Victoria on all foreign buyers of real estate in the province constitutes a breach of Canada’s largest trade deal.

The move was intended to try and cool the province’s red-hot housing market, fuelled in large part by foreign money. In doing so, however, Appleton argue, the province has legislated discrimination, and that “is a glaring violation of our trade treaties.”

Appleton goes on: “The foreign-buyer tax was announced in an arbitrary and unfair manner. The penalty does not exempt existing transactions legally concluded before the tax was announced. This arbitrary imposition disrupts predictable commercial relationships that may have been in place years in advance. It’s an unfair action that violates international legal norms of fairness, protected under treaties. All Canadians could well end up paying a heavy price for it.”

Mark Warner, who specializes in trade and foreign investment law in Toronto, says it certainly could pose a problem for the BC government — chapter 11 maintains that the government must treat foreign investors as it would domestic ones.

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Could sentencing reform finally be on the way?

By Justin Ling August 4, 2016 4 August 2016


A report in Globe & Mail published this week reveals that Justice Minister Jody Wilson-Raybould (pictured above), in May, met with key players knowledgeable about Canada’s justice system — including sitting judges, former Prime Minister Kim Campbell, and criminal justice lawyers — to gather their views on what her office should be prioritizing.

Much of the discussion apparently focused on sentencing reform.

Even as crime has fallen by virtually every metric, incarceration rates have gone up in Canada.

In 2004, according to Statistics Canada, Canada had reached its lowest crime rate since the 1970s. Over 12,000 inmates were kept in federal facilities, and nearly 20,000 were being housed in provincial and territorial jails. Since then, even as crime has continued a precipitous decline, there are more than 5,000 more inmates in provincial jails and 3,000 more in federal institutions.

The incarnation rate has stayed largely flat for provincial prisons, but the federal rate has jumped 10 per cent in that decade.

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Charter rights

TWU: Where does the legal battle go next?

By Justin Ling July 28, 2016 28 July 2016


Another week, another court decision regarding Trinity Western University. The next stop, in all likelihood, is the Supreme Court.

The Christian university, which has fought in recent years to have its law students accredited by the country’s law societies, won a case in the Nova Scotia Court of Appeal. But the decision was not quite so clear-cut.

The Nova Scotia Barristers’ Society had tried to block graduates from the university — which maintains a mandatory abstinence pledge for its gay students, which many call outright homophobia — but the appeal court ruled that, to do so, the society would need a justifiable legal basis. And while one may exist, it does not apply to Nova Scotia.

“Trinity Western’s activity occurred in British Columbia, and was outside the reach of Nova Scotia’s Human Rights Act. As a private university, Trinity Western was not subject to the Charter of Rights,” the justices ruled, according to a summary provided by the Court of Appeal. “Trinity Western did not act ‘unlawfully’ under either enactment.”

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