The Power of Perspectives

The Canadian Bar Association

Justin Ling

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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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.

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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.

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