The Power of Perspectives

The Canadian Bar Association

Justin Ling

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.

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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.

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Open internet

Worldwide injunction or worldwide censorship?

By Justin Ling October 14, 2016 14 October 2016

Does the world always need more Canada?

It’s a question the Supreme Court will have to consider in December when it hears Google v. Equustek, an appeal of B.C. ruling upholding an extraterritorial injunction ordering Google to remove certain websites from its search engine.

It is one of the noteworthy appeals highlighted by the Chief Justice at the CBA Canadian Legal Conference in August. The case centers around just how far Canadian courts can go in order internet companies, such as Google, to suppress or remove information from the internet.

Both the B.C. Supreme Court and the B.C. Court of Appeal approved an injunction requested by Equustek, a manufacturing company, against Google, which was indexing pages containing Equustek trade secrets and counterfeited versions of their products.

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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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