The Power of Perspectives

The Canadian Bar Association

Justin Ling


Pot cultivation mandatory minimum sentences struck down

By Justin Ling September 8, 2016 8 September 2016


How can you slap a mandatory jail sentence on someone for an activity that, under a different section of Canadian law, is for the most part legal?

This week, in R. v. Pham, the Ontario Superior Court found two sections of the Criminal Code to be unconstitutional on grounds that they could be cruel and unusual to those who are caught between the legal and illegal spheres. The first sets the mandatory minimum for growing more than 500 plants for the purposes of trafficking at two years; the second hikes that minimum to three years if the operation poses a threat to the public. Justice Michael Code found that people growing pot legally were at risk of unduly being handed mandatory minimums sentences simply by accidentally growing more than they were allowed.

In deciding that the two automatic sentencing provisions run afoul of the Charter,

Justice Code cited last year’s Supreme Court ruling in R. v. Nur, and two other cases where the courts have declared mandatory minimums for marijuana cultivation to be unconstitutional.

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Human rights

Canada's human rights system: Reform on the way?

By Justin Ling September 1, 2016 1 September 2016


Its budget has been flat for the better part of a decade. Its mandate was trimmed by the federal government, with the axing of s.13 of the Human Rights Act. Its former chair was described as workplace tyrant, and was accused of spying on and harassing staff.

Even so, reforms to the Canadian Human Rights Tribunal won’t be undergoing any major changes soon.

The Tribunal, which is mandated to resolve cases passed onto it by the Canadian Human Rights Commission, only renders a handful of decisions per year. Those decisions, however, are not without impact.

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Privacy & Access Law

The question of consent: Who decides what you need to know?

By Justin Ling August 23, 2016 23 August 2016

Is it time to blow up Canada’s oft-mocked, seldom-read privacy policy?

That’s one suggestion offered by the Office of the Privacy Commissioner in a discussion paper intended to draw guidelines for possible updates to the Personal Information Protection and Electronic Documents Act.

The document, published in May, was intended to spark conversation and draw submissions for eventual recommendations from the office regarding how PIPEDA governs consent and privacy.

From tackling the increasingly-lengthy and complex legalese of privacy policies, to wrestling with the advent of big data and online trackers, to managing the proliferation of algorithms that can build sophisticated profiles of users and internet denizens, the privacy commissioner has been mulling over possible new legislative solutions to boost awareness and protections online.

“Left entirely to their own devices, individuals can hardly be expected to demystify complex business relationships and complicated algorithms to make informed choices about when to provide consent to the collection, use and disclosure of their personal information,” the discussion paper reads. “The burden of understanding and consenting to complicated practices should not rest solely on individuals without having the appropriate support mechanisms in place to facilitate the consent process.”

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What is ‘credible’? Edgar Schmidt keeps asking

By Justin Ling August 19, 2016 19 August 2016

One of the most interesting, and least covered, legal fights in Canada isn’t over yet.

Edgar Schmidt v Attorney General of Canada contended that successive governments have failed to respect a constitutional requirement that they pass legislation that they know to be compliant with the Charter and that they report any possible inconsistencies in proposed legislation to Parliament.

Schmidt is the former general counsel in the Legislative Services Branch of the Department of Justice — a position from which he’s been on leave since blowing the whistle on the federal government and launching the current litigation.

National has covered Schmidt’s case since 2013, from the early rounds of his case against the Attorney General, to the first hearings in a Federal Court in Ottawa, and, most recently, the decision by that court to dismiss Schmidt’s claim.

And now Schmidt is appealing that decision. On Monday, he and his lawyer, David Yazbeck, of Raven, Cameron, Ballantyne and Yazbeck, filed their memorandum of fact.

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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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