The Power of Perspectives

The Canadian Bar Association

Justin Ling

Crime Stoppers: How do you guarantee anonymity?

By Justin Ling January 4, 2017 4 January 2017

Crime Stoppers: How do you guarantee anonymity?

 

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.

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Criminal Law

Will the Criminal Code finally get a makeover in 2017?

By Justin Ling December 19, 2016 19 December 2016

Will the Criminal Code finally get a makeover in 2017?

 

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.

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Trade

Renegotiating NAFTA: Opportunities for Canada

By Justin Ling November 29, 2016 29 November 2016

 

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.

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Climate change law

Will climate litigation come to Canada?

By Justin Ling November 24, 2016 24 November 2016

So Canada has ratified the Paris climate agreement.

Now what?

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.

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Trade

NAFTA and good faith breaches of Canadian law

By Justin Ling November 16, 2016 16 November 2016

NAFTA is racking up enemies, lately. An ongoing fight surrounding the rejection of coastal quarry and marine terminal in Nova Scotia stands to either vindicate those naysayers, or serve as a sorely needed win for the defenders of Donald Trump’s least favourite trade deal.

The trade fight was sparked by a 2007 judgment from a Canada-Nova Scotia environmental assessment review panel that denied Bilcon, a Delaware-registered construction company that was looking to expand its quarry mine near Digby, by installing a new marine terminal to ship the basalt to a processing plant in the United States.

The panel, according to a backgrounder from the federal government, concluded the terminal “should not be permitted to proceed because it would have a significant and adverse environmental effect on ‘community core values.’” Ottawa drew the same conclusion under the Canadian Environmental Assessment Act.

Instead of appealing the decision domestically, in 2008 Bilcon filed a NAFTA challenge under Chapter 11, which protects the interests of foreign investors.

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