The Power of Perspectives

The Canadian Bar Association

Justin Ling

Investor protection

BC's foreign buyers tax: A violation of Canada's trade deals?

By Justin Ling August 10, 2016 10 August 2016


British Columbia’s may be in breach of NAFTA by taxing foreign purchases of real estate. But that doesn’t mean BC is going to be shelling out billions in a lost judgment anytime soon, say legal experts.

Barry Appleton, managing partner at Appleton and Associates, took to the Financial Post to contend that a new 15 per cent tax imposed by Victoria on all foreign buyers of real estate in the province constitutes a breach of Canada’s largest trade deal.

The move was intended to try and cool the province’s red-hot housing market, fuelled in large part by foreign money. In doing so, however, Appleton argue, the province has legislated discrimination, and that “is a glaring violation of our trade treaties.”

Appleton goes on: “The foreign-buyer tax was announced in an arbitrary and unfair manner. The penalty does not exempt existing transactions legally concluded before the tax was announced. This arbitrary imposition disrupts predictable commercial relationships that may have been in place years in advance. It’s an unfair action that violates international legal norms of fairness, protected under treaties. All Canadians could well end up paying a heavy price for it.”

Mark Warner, who specializes in trade and foreign investment law in Toronto, says it certainly could pose a problem for the BC government — chapter 11 maintains that the government must treat foreign investors as it would domestic ones.

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Could sentencing reform finally be on the way?

By Justin Ling August 4, 2016 4 August 2016


A report in Globe & Mail published this week reveals that Justice Minister Jody Wilson-Raybould (pictured above), in May, met with key players knowledgeable about Canada’s justice system — including sitting judges, former Prime Minister Kim Campbell, and criminal justice lawyers — to gather their views on what her office should be prioritizing.

Much of the discussion apparently focused on sentencing reform.

Even as crime has fallen by virtually every metric, incarceration rates have gone up in Canada.

In 2004, according to Statistics Canada, Canada had reached its lowest crime rate since the 1970s. Over 12,000 inmates were kept in federal facilities, and nearly 20,000 were being housed in provincial and territorial jails. Since then, even as crime has continued a precipitous decline, there are more than 5,000 more inmates in provincial jails and 3,000 more in federal institutions.

The incarnation rate has stayed largely flat for provincial prisons, but the federal rate has jumped 10 per cent in that decade.

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Charter rights

TWU: Where does the legal battle go next?

By Justin Ling July 28, 2016 28 July 2016


Another week, another court decision regarding Trinity Western University. The next stop, in all likelihood, is the Supreme Court.

The Christian university, which has fought in recent years to have its law students accredited by the country’s law societies, won a case in the Nova Scotia Court of Appeal. But the decision was not quite so clear-cut.

The Nova Scotia Barristers’ Society had tried to block graduates from the university — which maintains a mandatory abstinence pledge for its gay students, which many call outright homophobia — but the appeal court ruled that, to do so, the society would need a justifiable legal basis. And while one may exist, it does not apply to Nova Scotia.

“Trinity Western’s activity occurred in British Columbia, and was outside the reach of Nova Scotia’s Human Rights Act. As a private university, Trinity Western was not subject to the Charter of Rights,” the justices ruled, according to a summary provided by the Court of Appeal. “Trinity Western did not act ‘unlawfully’ under either enactment.”

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Military law

Presumed independent

By Justin Ling July 22, 2016 22 July 2016

Presumed independent


Canada’s military justice system withstood a constitutional challenge today, as the Supreme Court of Canada ruled unanimously that the Minister of National Defence’s authority over court martial appeals does not violate section 7 of the Canadian Charter

The case R. v. Cawthorne involved an officer — an ordinary seaman in the Canadian navy — who was accused of possessing child pornography.

At trial, presided over by a military judge, the officer’s ex-girlfriend testified that he had told her about “inappropriate” images on his phone, and that he had been arrested for them. In cross-examination, she told the court that he merely made mention of the charges, but had not admitted his guilt.

But in re-examination, prosecutors asked her whether the accused, in fact, had admitted to her he had done these things. The ex-girlfriend responded in the affirmative.

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A roadmap to legalizing marijuana

By Justin Ling July 19, 2016 19 July 2016


Call it the summer of consultations.

As the Liberal government looks to round out its first year in office, it is embarking on months of public canvassing on everything: from defense, to criminal justice, to counter-terrorism.

But none is bound to elicit quite the plethora of disparate reactions as pot.

“The Government understands the complexity of this challenge and the need to take the time to get it right,” reads the introduction to the government’s online consultation portal.

The consultations are designed to provide a roadmap to the ministers responsible for the file — Justice Minister Jody Wilson-Raybould, Health Minister Jane Philpott and Public Safety Minister Ralph Goodale — as well as the task force struck recently by the government.

On the task force is a few familiar faces: primarily, chair Anne McLellan, who previously served as Deputy Prime Minister under Jean Chretien, as well as Minister for Justice and Public Safety. After politics, she joined Bennett Jones’ Edmonton office. Joining her is two doctors, two mental health professionals, two cops, a former city councillor, and a law professor — Barbara von Tigerstrom, who teaches at the University of Saskatchewan College of Law.

The online consultation consists largely of a government-crafted discussion paper, designed to elicit essay-style responses from Canadians.

The paper lays out the array of different regulatory systems that could make up the backbone of the system that is intended to become Canadian law sometime before 2018: Should Canada manage commercial growers like Uruguay or Colorado? Should it, like both of those examples, place limits on the number of plants private individuals can grow? Should growers have to pay a fee? Should there be labelling requirements?

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