The Power of Perspectives

The Canadian Bar Association

Justin Ling

National security

Decrypting the government's intentions

By Justin Ling October 6, 2016 6 October 2016

 

When Bill C-30 was tabled by then-Justice Minister Vic Toews in 2012, it was considered one of the most aggressive lurches towards lawful – authorizing law enforcement to intercept private communications – in recent Canadian history.

But there was one clause that, at the time, may not have seemed terribly significant. But, now, it raises questions around reasonable expectations of security, the limits of police power, and cyber security.

“If an intercepted communication is encoded, compressed, encrypted or otherwise treated by a telecommunications service provider, the service provider must use the means in its control to provide the intercepted communication in the same form as it was before the communication was treated by the service provider,” C-30 reads.

Bill C-30 never did become law as the then governing Conservatives pulled it in 2013 in the face of bad publicity targeting the warrantless mandatory disclosure of basic subscriber information, and provisions forcing telecommunications service providers to build intercept capabilities. Several provisions contained in bill C-30 later wound up in the cyberbullying bill, C-13.

Now as the Liberal government carries out public consultations on national security, there are once again hints about possible changes to expand warrantless access provisions in Canadian law.

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Cover

Justice understood

By Justin Ling September 27, 2016 27 September 2016

Justice understood

 

For as long as there have been open courts and a free press, media have covered trials to inform, sometimes to entertain, and generally to ensure that justice is not only done, but seen to be done. But with the justice system coming under the increasing – and often uninformed – scrutiny of the court of public opinion, it's legitimate to ask whether it needs protection of its own.

In simpler times there was no question that courts could take care of themselves. Town criers were trusted to deliver news of court verdicts and sentences without adding their critique of the legal process, trying to shape public opinion, agitating for change or disparaging the abilities and approaches of the lawyers, judges and juries responsible. And their reach was limited to the people who could physically hear them.

In the 21st century, bloggers sometimes react to rulings before the traditional media report on them. Armchair lawyers tweet their disapproval and share scathing remarks on Facebook; they troll the internet for hyperbolic responses and then repost them. Pundits on 24-hour news networks endlessly parse the minutiae of the case, and their comments, along with other news pieces and opinions about how the court’s various actors handled themselves — not all of which are informed by a deep knowledge of the case or of the law — can go viral overnight, reaching millions.

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Constitutional law

Putting the Charter first

By Justin Ling September 23, 2016 23 September 2016

Canada’s constitutional safeguards are failing us, according to a new report from the Canadian Civil Liberties Association, and that’s enabling the passage of too many unconstitutional laws.

The CCLA released the new report as a part of their Charter First campaign, seeking to raise awareness about the constitutional vetting process.  The aim is to get Parliament to introduce new checks and balances into Canada’s federal lawmaking process.

“These mechanisms would provide more transparency and accountability to Canadians, as well as more information and resources to parliamentarians in their consideration of Charter issues,” the report reads.

The report discusses at length the case of Schmidt v. Canada, in which CCLA intervened. Edgar Schmidt is a former Department of Justice lawyer who sued the government over its process for vetting legislation to ensure its validity under the Charter of Rights and Freedoms.

CBA National has extensively covered Schmidt’s lawsuit, and his effort to force the government to adopt clear Parliamentary reporting rules around legislation if it is believed to be likely unconstitutional.

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Criminal law

The Vader decision: Mistrial or down to manslaughter?

By Justin Ling September 16, 2016 16 September 2016

Justice Denny Thomas might be wishing that he wrote his conviction of Travis Vader in pencil.

The Alberta Queen’s Bench judge appears to have made an error in law in his second degree murder conviction, delivered live on TV, when he relied on Section 230 of the Criminal Code.

Section 230 maintains that an accused is guilty of culpable murder if death occurs during the commission of a litany of crimes, including — in Vader’s case — robbery.

Thomas concluded that Vader had killed Lyle and Marie McCann, two Alberta seniors whose bodies have yet to be found.

But the murder charge may be thrown out, as Thomas likely should’ve relied on Section 229, which deals with simple murder.

Alberta law professor Peter Sankoff was the first to point out the error, taking to Twitter upon watching the decision to note that Section 230 had been declared unconstitutional.

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Anti-terrorism

National security consultation: Leading questions?

By Justin Ling September 15, 2016 15 September 2016

In the election that carried Justin Trudeau to power, the would-be Prime Minister made two promises on national security: he would defend Canadians’ rights, while protecting their security.

In terms of specific policy commitments, he would strike a Parliamentary committee, made up of both Members of Parliament and Senators; and he would change aspects of the previous government’s anti-terror bill, C-51, he found unconstitutional while preserving many of the powers that Liberals and Conservatives promised would foil future terror attacks.

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