The Power of Perspectives

The Canadian Bar Association

Justin Ling

Constitutional law

Putting the Charter first

By Justin Ling September 23, 2016 23 September 2016

Canada’s constitutional safeguards are failing us, according to a new report from the Canadian Civil Liberties Association, and that’s enabling the passage of too many unconstitutional laws.

The CCLA released the new report as a part of their Charter First campaign, seeking to raise awareness about the constitutional vetting process.  The aim is to get Parliament to introduce new checks and balances into Canada’s federal lawmaking process.

“These mechanisms would provide more transparency and accountability to Canadians, as well as more information and resources to parliamentarians in their consideration of Charter issues,” the report reads.

The report discusses at length the case of Schmidt v. Canada, in which CCLA intervened. Edgar Schmidt is a former Department of Justice lawyer who sued the government over its process for vetting legislation to ensure its validity under the Charter of Rights and Freedoms.

CBA National has extensively covered Schmidt’s lawsuit, and his effort to force the government to adopt clear Parliamentary reporting rules around legislation if it is believed to be likely unconstitutional.

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Criminal law

The Vader decision: Mistrial or down to manslaughter?

By Justin Ling September 16, 2016 16 September 2016

Justice Denny Thomas might be wishing that he wrote his conviction of Travis Vader in pencil.

The Alberta Queen’s Bench judge appears to have made an error in law in his second degree murder conviction, delivered live on TV, when he relied on Section 230 of the Criminal Code.

Section 230 maintains that an accused is guilty of culpable murder if death occurs during the commission of a litany of crimes, including — in Vader’s case — robbery.

Thomas concluded that Vader had killed Lyle and Marie McCann, two Alberta seniors whose bodies have yet to be found.

But the murder charge may be thrown out, as Thomas likely should’ve relied on Section 229, which deals with simple murder.

Alberta law professor Peter Sankoff was the first to point out the error, taking to Twitter upon watching the decision to note that Section 230 had been declared unconstitutional.

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Anti-terrorism

National security consultation: Leading questions?

By Justin Ling September 15, 2016 15 September 2016

In the election that carried Justin Trudeau to power, the would-be Prime Minister made two promises on national security: he would defend Canadians’ rights, while protecting their security.

In terms of specific policy commitments, he would strike a Parliamentary committee, made up of both Members of Parliament and Senators; and he would change aspects of the previous government’s anti-terror bill, C-51, he found unconstitutional while preserving many of the powers that Liberals and Conservatives promised would foil future terror attacks.

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Sentencing

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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