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The Canadian Bar Association

Justin Ling

Mental health: A factor in sentencing?

By Justin Ling April 27, 2018 27 April 2018

Mental health: A factor in sentencing?

A new bill, if passed, will require the courts to take into account offender’s mental health status before sentencing.

Bill C-375 comes before the House of Commons justice committee today for the first time, as MPs seem set to push ahead on the bill.

At present, pre-sentencing reports only include the offender's "age, maturity, character, behaviour, attitude and willingness to make amends," as required in the Criminal Code, as well as a report on the offender's previous criminal and rehabilitative history.

What’s the issue? According to the federal prisons watchdog, more than one-in-ten federal inmates reported mental health issues — although there is some data to indicate that number may be significantly higher.

The watchdog has for years recommended new measures to divert offenders with mental health issues away from prisons, and into treatment, given that Correctional Services Canada does not have the capacity or speciality to handle the complex mental health needs of these inmates.

What does C-375 do? The bill is relatively straightforward. It requires that the report include details of “any mental disorder from which the offender suffers as well as any mental health care programs available to them.”

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Criminal justice

Challenge to victim surcharge heads to Supreme Court

By Justin Ling April 13, 2018 13 April 2018

Challenge to victim surcharge heads to Supreme Court

Could this be the last act of the mandatory victim surcharge?

The Supreme Court is hearing arguments next week on whether the automatic restitution constitutes cruel and unusual punishment, under Section 12 of the Charter.

The hearing will finally bring to a head many of the problems and deficiencies that have been attributed to the mandatory surcharge.

Even though the current government has been critical of the way the mandatory victim surcharge was set up under its predecessor, its submissions to the court were short and pointed.

“The victim surcharge does not constitute an indefinite sentence,” the Crown’s submission reads. They note that the Criminal Code lays out the amount that must be paid, the deadline it must be paid by, and how it can be paid. The fact that the surcharge can be paid through work or incarceration “doesn’t alter its nature,” the factum reads.

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Criminal justice

Reforms to Canada's criminal justice system proposed

By Justin Ling March 29, 2018 29 March 2018

Reforms to Canada's criminal justice system proposed

Justice Minister Jody Wilson-Raybould has introduced new measures to streamline the criminal justice system and to finally follow through on pledges to clean up the Criminal Code and reduce court delays. Reactions, however, have already been mixed.

The centrepiece of the new legislation, Bill C-75, which is sure to spark a significant amount of debate among defence lawyers in Canada, is a set of a new rules on when preliminary inquiries can be used.

The changes would make it so that only an accused facing a crime which could carry a penalty of life in prison would have access to a preliminary inquiry. Even then, under the new rules, the inquiry judge would have the power to limit issues and witnesses introduced.

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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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