The Power of Perspectives

The Canadian Bar Association

Justin Ling

Justice

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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Justice

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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Charter rights

Supreme Court sets ceilings on trial delay

By Justin Ling July 8, 2016 8 July 2016

Supreme Court sets ceilings on trial delay

 

Out with the old Morin framework, in with the new.

The Supreme Court ruled on Friday that the framework, which was intended to guarantee accused the right to a speedy trial under s. 11 of the Canadian Charter, is, among other things, “too unpredictable, too confusing, and too complex.”

In a system plagued by delay, the top court’s ruling could have huge impacts by setting presumptive delay ceilings in criminal trials.

The new framework comes from a pair of decisions passed down by the top court, which stayed proceedings against one man and threw out a conviction for a second.

“[The Morin framework] has itself become a burden on already over-burdened trial courts. From a practical perspective, the Morin framework’s after-the-fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems,” the majority writes in R. v. Jordan.

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