The Power of Perspectives

The Canadian Bar Association

Justin Ling

Defamation law

No country for libel tourism

By Justin Ling June 6, 2018 6 June 2018

No country for libel tourism

 

Canada isn’t set to become a favourite forum for libel tourists.

The Supreme Court ruled Wednesday that an Ontario court was not, in fact, the best suited to hear a defamation suit filed by a Canadian businessman against an Israeli newspaper. In doing so it allowed a stay on the proceedings.

But the decision split the bench. Justice Suzanne Côté wrote the majority decision, with Justices Russell Brown and Malcolm Rowe concurring. Justices Andromache Karakatsanis, Rosalie Abella and Richard Wagner all filed their own concurring reasons. Justices Michael Moldaver and Clément Gascon, as well as (then) Chief Justice Beverley McLachlin filed joint dissenting reasons.

While the outcome of the case might be relatively clear, the roadmap on dealing with forum selection for online libel cases is less so.

 

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Justice

Trial and error: criminal justice reform

By Justin Ling May 24, 2018 24 May 2018

Trial and error: criminal justice reform

At the end of March, the Trudeau government introduced new legislation that it claims will modernize the criminal justice system, reduce court delays, reduce the overpopulation of Indigenous people in Canadian jails, clean up the Criminal Code, and ensure a broader representation of marginalized people in the court process. Bill C-75 would, it promised, “transform the criminal justice system to make it more efficient, effective, fair, and accessible.”

It was ambitious language, and came at the culmination of more than a year of consultations and conversations between the department of justice and lawyers across the country. The reviews have been less enthusiastic.

CBA National canvassed a number of defence lawyers who routinely deal with the processes that C-75 addresses. Few aspects of the bill have garnered accolades, particularly among defence lawyers. Even well-received measures are dismissed as insufficient, or overdue.

Some critics are even warning that C-75 would exacerbate some of the problems it seeks to fix: lengthening court delays, entrenching a lack of diversity, and disadvantaging accused at trial, especially those with less resources to fight the charges against them.

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Competition law

Hipster antitrust: Not so cool

By Justin Ling May 11, 2018 11 May 2018

Hipster antitrust: Not so cool

There are many things antitrust law shouldn’t do: Like fixing everything from bad labour practices, low wages, media centralization, and everything in between. At least that was the consensus among a panel of legal experts discussing the growing influence of the hipster antitrust movement at the CBA’s Competition Law Spring Conference in Toronto on Thursday.

The question put to them for debate, at a time when there is a growing backlash against tech giants in particular, was whether public interest or other consumer-focused considerations have a place in antitrust enforcement.

Joshua Wright, a George Mason University Professor and Executive Director of the Global Antitrust Institute, located near D.C., has been pushing back against the rising tide of populism that is trying, in his view, to twist antitrust law into a sort of progressive swiss army knife. “Most of the ideas have a bit of a retro, blast-from-the-past feel,” he said.

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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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