The Power of Perspectives

The Canadian Bar Association

Justin Ling

National security

CSIS' illegal collection of metadata

By Justin Ling November 8, 2016 8 November 2016


Figuring out the legal strategy behind top-secret intelligence gathering by CSIS, and how the Attorney General defends its methods, isn’t easy.

But a recent decision from the Federal Court peels back a layer of the onion in a way that the public doesn’t usually get to enjoy.

Reviewing an application for undisclosed warrants, and in an effort to amend CSIS’ warrant templates, the Federal Court discovered some unsavoury and flatly illegal data retention policies taking place inside Canada’s main human intelligence agency.

The court found that the spy agency’s practice of archiving metadata for “third-party, non-threat” Canadians — people who had their data swept up under a lawful warrant — was completely contrary the Canadian Security Intelligence Service Act.  The Act requires the service to delete all data collected, unless it is directly authorized under a warrant, pertaining to an ongoing investigation, relating to the security of Canada, or otherwise relevant to the conduct of foreign affairs or the Canadian military.

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Criminal justice

Admitting hearsay evidence

By Justin Ling November 3, 2016 3 November 2016


How good is the word of a snitch?

That’s the question that the Supreme Court of Canada is wrestling with today, as it hears oral arguments in R. v. Bradshaw.

The case could determine how criminal courts deal with the principled exception for hearsay evidence.

In this case, police suspected Robert Bradshaw and Roy Thielen in a pair of murders in British Columbia. Police collected evidence on the dual murder plot stemming from a Mr. Big operation run on Thielen, and clandestine audio records used to eavesdrop on conversations between the two men. They also eventually obtained confessions from Thielen.

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The victim surcharge

Judicial discretion restored

By Justin Ling October 26, 2016 26 October 2016


Ottawa’s federal victim surcharge, also described as a “tax on broken souls,” is finally facing reform.

The surcharge was an automatic levy placed on certain offenders, aimed at funding victim services and support systems in the criminal justice realm.

But when the Harper government expanded that system in 2014, many criminal justice lawyers worried that things had been thrown out of whack.

Previously, judges could choose to waive the surcharge. Under the 2014 changes, it became mandatory. The charge could ding the offender for as much as 30 per cent of their fine, or $200 per offence.

Judges across the country balked at the charge. Ottawa contended that it would not serve as a further form of punishment, because offenders could work off the surcharge in fine repayment programs. But the federal government neglected to inform the provinces, several of whom do not have fine repayment programs, or which have programs that would not accommodate the surcharge.

What’s more, the victim surcharge could be slapped on offenders in addition to restitution charges.

Now current Justice Minister Jody Wilson-Raybould is tinkering with the system to ensure that it wouldn’t double-penalize offenders.

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The SCC’s stringent test for joint submissions on sentencing

By Justin Ling October 21, 2016 21 October 2016

If you’re going to overturn a joint submission on sentencing, you better have a darn good reason.

That’s the takeaway from the Friday morning ruling from the Supreme Court, which has set new precedent in how judges should treat plea bargains.

In R. v. Anthony-Cook, a 28-year-old man was charged with manslaughter. He pleaded guilty, confessing to punching a man outside a B.C. homeless shelter. The man fell, hitting his head off the pavement, and died.

When Matthew Anthony-Cook appeared in court to enter his plea, his counsel and the Crown had already come to an agreement — 18 months in custody, no probation.

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Open internet

Worldwide injunction or worldwide censorship?

By Justin Ling October 14, 2016 14 October 2016

Does the world always need more Canada?

It’s a question the Supreme Court will have to consider in December when it hears Google v. Equustek, an appeal of B.C. ruling upholding an extraterritorial injunction ordering Google to remove certain websites from its search engine.

It is one of the noteworthy appeals highlighted by the Chief Justice at the CBA Canadian Legal Conference in August. The case centers around just how far Canadian courts can go in order internet companies, such as Google, to suppress or remove information from the internet.

Both the B.C. Supreme Court and the B.C. Court of Appeal approved an injunction requested by Equustek, a manufacturing company, against Google, which was indexing pages containing Equustek trade secrets and counterfeited versions of their products.

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