The Power of Perspectives

The Canadian Bar Association

Justin Ling

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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LGBTQ inclusion in law firms

By Justin Ling June 21, 2016 21 June 2016

LGBTQ inclusion in law firms


“Law is quite a conservative field,” says Trevor McCann, laughing. “Even more conservative than accounting.”

But that conservatism isn’t preventing firms like Clyde & Co, where McCann is a partner, to take steps to ensure that their offices are meaningfully inclusive of LGBTQ lawyers and clients.

“For us, right now, it’s something we’re working on developing further,” says McCann who is based in Montreal. “That means outreach to law schools to make students well aware of their diversity initiatives, working on building an open culture within the office, and being proactive with clients.”

The effort echoes a similar one under way at Borden Ladner Gervais, which recently released its transgender inclusivity and accommodation policy to coincide with the International Day against Homophobia and Transphobia.

“We thought the timing was right to do this,” says Laleh Moshiri, the national director for diversity and inclusion at BLG.

Last week, the firm took an extra step and held a seminar at its head office (and broadcast in their offices Canada-wide) with a “focus on legal and professional obligations” providing “concrete examples of best practices for implementing accommodations and creating a trans-inclusive and supportive environment.”

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Medically assisted dying

Bill C-14, the Senate and its newfound independence

By Justin Ling June 9, 2016 9 June 2016

Bill C-14, the Senate and its newfound independence



Having the Senate amend legislation passed by the House of Commons is not, in and of itself, novel.

Certainly, for private members’ business, such as Bill C-279, the trans rights act, and Bill C-377, the union disclosure bill, it’s even common.

Even for government business, there’s some precedent. In 2012 the Senate introduced amendments to Bill C-10, the Safe Streets and Communities Act, to address errors in amendments made to the State Immunity Act.  For other government bills legislative tinkering was in order to address drafting errors or necessary fixes to administrative provisions.

Going back to 1960, the Senate has amended only 116 bills— a significant number of which were private members’ legislation. Often, those amendments were at the behest of the government in the House, or were changes that never came into force.

This week, however, the number will rise to 117. Bill C-14, which creates a regulatory framework around medical assistance in dying, is the first bill amended by the Senate under the Trudeau government — perhaps the first of many, for a Senate with newfound independence.

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Bill C-14

Constitutional or not?

By Justin Ling June 7, 2016 7 June 2016



The third act of the performance of Ottawa’s physician-assisted suicide legislation is underway, and it appears as though the performance could be described as much as a tragedy as a farce.

Act one was months of hand-wringing deliberation, rife with study and contemplation; act two involved Members of Parliament lamenting a bill that nobody seemed to support and yet which a majority voted to pass; and act three has seen the bill arrive in the Senate with a thud, as its passage appears almost inconceivable.

Bill C-14, Ottawa’s response to the Supreme Court’s ruling in Carter v. Canada, would have effectively legalized medically-assisted dying. It has also been called flatly unconstitutional, and has presented the government with its first significant legislative hurdle of its mandate.

At a committee hearing on Monday, senators heard from a quartet of lawyers who issued a stern warning over passing the legislation.

Perhaps the most forceful was Amir Attaran, a professor of law and medicine at the University of Ottawa, who compared C-14 to the ill-fated Assisted Human Reproduction Act — a piece of legislation that was carved up by the Supreme Court, after numerous sections were declared unconstitutional.

Attaran predicted that C-14 would, in short order, be turned into a “shredded legislative rump” that will “significantly downgrade the level of care” and lead to legal and medical “mediocrity.”

But the testimony that clearly carried the most weight on Monday was that of Peter Hogg, Blake, Cassels & Graydon’s resident scholar and one of the more pre-eminent constitutional experts in Canada.

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Resource development

Duty to consult: A patchwork of requirements

By Justin Ling May 27, 2016 27 May 2016

Duty to consult: A patchwork of requirements


If there is one observable trend in energy projects from recent years, it’s consultation.

Community outreach, stakeholder engagement, environmental impact assessments — while a litany of would-be energy projects were felled by a lack of robust consultation with the people potentially affected, the resource and energy sectors are clearly shifting to consulting first, building later, after years of doing the very opposite.

One piece of the puzzle, however, has remained elusive: the duty to consult Aboriginal populations.

Even socially-conscious enterprises that go to great pains to get a social license from Indigenous communities that feel the impact of their projects have found themselves facing headwinds, for a litany of reasons.

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