The Power of Perspectives

The Canadian Bar Association

Justin Ling

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.

Read More
Justice

When judges spark outcry

By Justin Ling March 7, 2017 7 March 2017

When judges spark outcry

 

In the days since Judge Gregory Lenehan acquitted Bassam al-Rawi in Halifax, there has been, to say the least, outcry.

A group of Haligonians took to the city’s central library to launch a letter-writing campaign. The leader of the opposition Progressive Conservatives has called for an inquiry. One petition calling for a formal investigation to the judge has hit nearly 35,000 signatures, while another calling for his resignation is nearing 2,000.

Lenehan’s decision added fuel to the fire of an ongoing debate over sexual assault, and where the law sits on consent.

Read More
Trans rights

What’s holding up the Trans Rights Bill?

By Justin Ling March 3, 2017 3 March 2017

What’s holding up the Trans Rights Bill?

 

The Senate appears to be up to its old tricks in delaying and frustrating legislation that could provide human rights protections for trans Canadians. 

Bill C-16 is government legislation that would include gender identity and gender expression in the Canadian Human Rights Act and as a protected class in the Criminal Code. 

Despite assertions that it would muzzle naysayers or criminalize transphobia, it would provide a recourse through the federal Human Rights Tribunal for discrimination against Canadians based on their gender in federally-regulated sectors, and recognize a statutory recognition that violence against trans people due to their gender is a hate crime. 

The text of the bill is not new. It has been proposed, and debated, for more than a decade in Parliament, and has now passed through the House of Commons three separate times. It has never made it through the Senate.

Read More
Charter rights

Court Challenges Program reinstated and expanded

By Justin Ling February 7, 2017 7 February 2017

Court Challenges Program reinstated and expanded

 

The federal government has followed through on an election promise to reinstate the Court Challenges Program, and have agreed with a chorus of lawyers that Section 7 of the Charter of Rights and Freedoms ought to be included in the program.

“I am confident that through the new court challenges program, Canadians will have greater access to justice and greater protection of their rights,” Justice Minister Jody Wilson-Raybould said at a press conference on Tuesday.

The Canadian Bar Association has released a statement in support of the reinstated programme, also calling it a win for access to justice. “This program benefits all Canadians by funding test cases and interventions that will clarify our understanding of Charter and Official language rights,” the statement reads.

Read More
Criminal law

In need of a search strategy for electronic evidence

By Justin Ling February 7, 2017 7 February 2017

In need of a search strategy for electronic evidence

 

In recent years, the Supreme Court of Canada has tackled the evidentiary and privacy concerns around cell phones, the internet, and third-party data disclosure. 

But are the courts really keeping pace with advances in technology? 

It wasn’t until 2013, in R. v. Vu, that the top court recognized that a computer isn’t like a cupboard — and, as such, isn’t covered under a search warrant for a residence. It noted, “privacy interests implicated by computer searches are markedly different.” 

Only in 2014, in R. v. Spencer, did the Supreme Court rule that warrantless requests for suspects’ personal data to telecommunications providers amounted to a circumvention of the lawful order process — and were therefore unconstitutional. The court, then, concluded that “particularly important in the context of Internet usage is the understanding of privacy as anonymity.”

Read More