The Power of Perspectives

The Canadian Bar Association

Justin Ling

Criminal law

The system will adapt to Jordan

By Justin Ling April 12, 2017 12 April 2017

The system will adapt to Jordan

 

Ever since the Supreme Court put a hard cap on trial delays, and the subsequent slew of stays of proceedings in a variety of high-profile cases, there’s been a spirited debate over where to point the finger: At the top court for fumbling the file? At Ottawa, for its lackadaisical response? Or at the Crown, for failing to prioritize serious offences?

The finger pointing has correlated with a rise in attention over the impact of R. v. Jordan, the case that led the supreme justices to shoulder the prosecution with an obligation to conclude the trial within 18 months, 30 for serious offences, barring certain circumstances.

A high-profile case in Montreal is the most recent one to shine the light, where the prosecution of a man accused of brutally murdering his wife was stayed because it passed the 30 month ceiling — a delay caused largely by the prosecution’s push to upgrade second-degree charges to first-degree, contended the accused’s counsel, Joseph La Leggia.

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Criminal law

Countdown to 2018: Why the courts might not allow prosecutions for pot?

By Justin Ling April 10, 2017 10 April 2017

Countdown to 2018: Why the courts might not allow prosecutions for pot?

 

Justin Trudeau’s plan to legalize marijuana is coming down the pipes, as soon as this week.

You could be forgiven for wondering what, exactly, took the prime minister so long — he’s had a set of clear recommendations since December — but, if reports are to be believed, it will be more than a year before the actual legislation comes into force.

That leaves Canada with more than 12 months before the arrests and prosecutions of marijuana users and dealers comes to an end. Stuck, in other words, with a system that “does not work,” according to Trudeau’s own campaign document: A system which “does not prevent young people from using marijuana and too many Canadians end up with criminal records for possessing small amounts of the drug.”

So the question now is: Will the courts allow it?

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Public safety

Is a new warrantless access program in the works?

By Justin Ling March 31, 2017 31 March 2017

Is a new warrantless access program in the works?

 

In its landmark search and seizure ruling in R. v. Spencer, the Supreme Court was unanimous that real-time requests made by police to link Canadians’ IP addresses with basic subscriber information required a warrant, except in exigent circumstances. At least that appeared to be the obvious conclusion.

 “Some degree of anonymity is a feature of much internet activity and depending on the totality of the circumstances, anonymity may be the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure,” the court wrote, in declaring a warrantless access regime being used by Canadian police to be unconstitutional.

But new documents suggest that Ottawa is entertaining a somewhat different read of that court decision.

A background document, obtained under access to information laws from Public Safety Canada, reads that “the Court stated that where [basic subscriber information] can reveal a person’s ‘personal choices or lifestyles,’ which may be compared to the ‘biographical core information’ protected under s.8 of the Charter, a reasonable law, warrant, or exigent circumstances are required for that information to be obtained lawfully.”

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Justice

Budget 2017: What's in it for justice

By Justin Ling March 22, 2017 22 March 2017

Budget 2017: What's in it for justice

 

The federal budget proposes to spend $55 million over five years to hire new judges, aimed mostly at Alberta and Yukon, to speed up the trial process in Canada.

The prospect that scores of charges being thrown out due to trial delays caused by an over-burdened court system has been top-of-mind since the Supreme Court handed down its ruling last year in R. v. Jordan, setting a ceiling on delays at trial.

In fact, dozens of cases have been stayed, with Crown counsel shouldering the blame for not bringing cases forward fast enough. Lawyers across the country have called for a hike in spending to hire more judges, help legal aid, and streamline the court administration process.

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The Supreme Court

Warrantless searches: A high threshold

By Justin Ling March 20, 2017 20 March 2017

Warrantless searches: A high threshold

 

Just what are “exigent circumstances,” anyway?

Turns out, they’re pretty specific.

“‘Exigent circumstances’ denotes not merely convenience, propitiousness or economy, but rather urgency,” wrote the majority of the Supreme Court in a decision passed down on Friday. “Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence.”

The ruling, R. v. Paterson, offers new guidance and framework on when police can enter and search a private residence without a warrant. What’s clear is that it’s a very high bar.

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