Has the time come for the bench and the bar get a crash course in spying technology?
That’s a pretty clear take-away after a presentation on privacy and surveillance from Doug King, the police accountability campaigner at Pivot Legal.
King was speaking at the Canadian Constitution Foundation’s Law and Freedom Conference on Saturday, briefing the lawyers in the room on how police across Canada have deployed the powerful Stingray surveillance devices.
Pivot Legal and King have been
Just how far should anonymity stretch to would-be tipsters and whistleblowers in criminal cases? That’s one of the first questions the Supreme Court of Canada will tackle in 2017, as the Crown faces off against a group that it can usually consider an ally: Crime Stoppers.
The case is unusual, but will serve as the goalpost to determine where informer privilege begins and ends for third-party tiplines, like those operated by Crime Stoppers. It comes out of a voir dire decision made at a lower Ontario court, stripping an anonymous phone call made to Crime Stoppers of its automatic privilege.
The call, the Crown contends, was made by the accused — whose identity is protected by a publication ban — and therefore cannot be protected by informer privilege.
Crime Stoppers is coming to the Supreme Court in the hopes that it will “provide a clear statement that informant privilege attaches automatically, as soon as the phone rings,” according to their factum filed on appeal.
It might not be the sexiest issue for the Minister of Justice to address, nor is it the most pressing, but an overhaul of the Canadian criminal statutes has been a long time coming, and this government has signalled that it is at least looking at taking some baby steps to cut away the dead weight inside the 2540-page-and-growing document.
After a year in the job, Justice Minister Jody Wilson-Raybould seems to be coming around to the idea. At a speech in October, the minister highlighted that she’ll be studying the Criminal Code to see where it can be cleaned up.
“Earlier this year, the Minister instructed officials from the Department of Justice to conduct a review of Criminal Code provisions found to be unconstitutional, with a view to updating the Criminal Code,” a spokesperson for Wilson-Raybould said in an email. “That work is ongoing.”
She has her work cut out for her. Inside the laws are prohibitions on witchcraft, criminal sanctions on making or distributing violent comic books, and some Victorian-era language on obscenity.
If you deal in trade law in Canada — or are one of many, many lawyers who have clients integrated into the North American market — you might be looking at the current continental state of affairs in one of two ways.
The bright side: more work for lawyers.
The downside: the world’s most ambitious trade deal could be in jeopardy.
But despite the uncertainty thrust into the global financial markets following the election of trade-skeptic President-Elect Donald Trump, some legal experts observers are allowing themselves some degree of optimism.
“I think we need to walk away from the notion that the negotiations are a sky-is-falling scenario,” Clifford Sosnow, a partner in Fasken Martineau’s Toronto and Ottawa offices told CBA National. “The truth of the matter is, we really don’t know. When we look at NAFTA, it really does allow for parties to modify or make additions.”
Allowing for some changes, he says, might be perfectly healthy. At the very least, the worst-case scenario isn’t likely that bad.
So Canada has ratified the Paris climate agreement.
The accord, designed to spur action on cutting CO2 emissions, though unlike the Kyoto deal not “legally binding,” has been hailed as a triumph for advancing the fight against climate change.
Some uncertainty for the deal notwithstanding — U.S. President-elect Donald Trump has offered mixed messages about the deal and, indeed, whether he believes in climate change at all — the legal community is already honing in on what the international deal means for Canada.
And there’s good reason to prepare the briefs.
Justin Ling is an Ottawa journalist who covers law and politics.