The Power of Perspectives

The Canadian Bar Association

Justin Ling

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.

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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.

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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.”

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Criminal justice

Social media luddites and the admissibility of evidence

By Justin Ling February 2, 2017 2 February 2017

Social media luddites and the admissibility of evidence

 

Social media has become a ubiquitous reality. But that doesn’t mean that everyone is on quite the same footing when it comes to Facebook, Twitter, Instagram, and the like.

Speaking to a conference of tech professionals and lawyers at Osgoode Hall Law School last week, Ontario Superior Court Justice Frances Kiteley offered some cautionary words, warning social media-savvy lawyers that many judges “don’t come with the same skills, knowledge, or expertise as those of you coming into the courtroom.”

“Do not assume that they know what you know,” Kiteley warned.

Obviously, not all members of the Canadian judiciary are social media luddites — from the judge who banned a violent ex-boyfriend from social media this month after a Snapchat post set him off on a violent attack, to the justice who took a very understanding view of one mother’s online dating proclivities in a family law case last year.

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Foreign affairs

Passing judgment on Canada’s export of military goods

By Justin Ling January 26, 2017 26 January 2017

Passing judgment on Canada’s export of military goods

 

A law professor’s personal quest to force the Minister of Foreign Affairs to account for the decision to sell armoured vehicles to Saudi Arabia — and to justify that decision to the court — has reached the end of the road.

In a decision passed down by the Federal Court on Tuesday, Justice Danièle Tremblay-Lamer found that while the decision to sign off on the $15-billion export of arms to the Saudi government is reviewable by the courts, the minister retains a broad discretionary power to approve such sales.

The decision was a mixed bag for Daniel Turp (pictured above), a Université de Montréal professor in international law: It amounts to a recognition that litigants can, against the protests of the Attorney General, file such applications in the court; there remains, however, a high bar to succeed in such cases.

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