The Power of Perspectives

The Canadian Bar Association

Justin Ling

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.

Read More
National security

CSIS' illegal collection of metadata

By Justin Ling November 8, 2016 8 November 2016

 

Figuring out the legal strategy behind top-secret intelligence gathering by CSIS, and how the Attorney General defends its methods, isn’t easy.

But a recent decision from the Federal Court peels back a layer of the onion in a way that the public doesn’t usually get to enjoy.

Reviewing an application for undisclosed warrants, and in an effort to amend CSIS’ warrant templates, the Federal Court discovered some unsavoury and flatly illegal data retention policies taking place inside Canada’s main human intelligence agency.

The court found that the spy agency’s practice of archiving metadata for “third-party, non-threat” Canadians — people who had their data swept up under a lawful warrant — was completely contrary the Canadian Security Intelligence Service Act.  The Act requires the service to delete all data collected, unless it is directly authorized under a warrant, pertaining to an ongoing investigation, relating to the security of Canada, or otherwise relevant to the conduct of foreign affairs or the Canadian military.

Read More
Criminal justice

Admitting hearsay evidence

By Justin Ling November 3, 2016 3 November 2016

 

How good is the word of a snitch?

That’s the question that the Supreme Court of Canada is wrestling with today, as it hears oral arguments in R. v. Bradshaw.

The case could determine how criminal courts deal with the principled exception for hearsay evidence.

In this case, police suspected Robert Bradshaw and Roy Thielen in a pair of murders in British Columbia. Police collected evidence on the dual murder plot stemming from a Mr. Big operation run on Thielen, and clandestine audio records used to eavesdrop on conversations between the two men. They also eventually obtained confessions from Thielen.

Read More
The victim surcharge

Judicial discretion restored

By Justin Ling October 26, 2016 26 October 2016

 

Ottawa’s federal victim surcharge, also described as a “tax on broken souls,” is finally facing reform.

The surcharge was an automatic levy placed on certain offenders, aimed at funding victim services and support systems in the criminal justice realm.

But when the Harper government expanded that system in 2014, many criminal justice lawyers worried that things had been thrown out of whack.

Previously, judges could choose to waive the surcharge. Under the 2014 changes, it became mandatory. The charge could ding the offender for as much as 30 per cent of their fine, or $200 per offence.

Judges across the country balked at the charge. Ottawa contended that it would not serve as a further form of punishment, because offenders could work off the surcharge in fine repayment programs. But the federal government neglected to inform the provinces, several of whom do not have fine repayment programs, or which have programs that would not accommodate the surcharge.

What’s more, the victim surcharge could be slapped on offenders in addition to restitution charges.

Now current Justice Minister Jody Wilson-Raybould is tinkering with the system to ensure that it wouldn’t double-penalize offenders.

Read More
Sentencing

The SCC’s stringent test for joint submissions on sentencing

By Justin Ling October 21, 2016 21 October 2016

If you’re going to overturn a joint submission on sentencing, you better have a darn good reason.

That’s the takeaway from the Friday morning ruling from the Supreme Court, which has set new precedent in how judges should treat plea bargains.

In R. v. Anthony-Cook, a 28-year-old man was charged with manslaughter. He pleaded guilty, confessing to punching a man outside a B.C. homeless shelter. The man fell, hitting his head off the pavement, and died.

When Matthew Anthony-Cook appeared in court to enter his plea, his counsel and the Crown had already come to an agreement — 18 months in custody, no probation.

Read More