The Power of Perspectives

The Canadian Bar Association

Justin Ling

Criminal law

Can Canada kill its own citizens in combat?

By Justin Ling July 6, 2018 6 July 2018

Can Canada kill its own citizens in combat?

 

That question has been thrust into the Canadian legal world in recent months, after Global News reported that, not only has Ottawa determined that it can legally kill fighters who fled Canada to fight for foreign terror groups, it likely already has.

In May, Global published a report detailing how the Canadian military had targeted three Canadian citizens in Syria and Iraq. Earlier in June, they released details on the discussions that occurred between senior officials on the legality and possibility of launching airstrikes that could kill Canadian citizens.

The discussion is the first time the issue has escaped from the academic legal world into actuality. While other countries, like the United States, United Kingdom, France, and Israel have all grappled with the legality and morality of killing its citizens on the battlefield, Canada has mostly sidestepped the issue.

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The Supreme Court of Canada

SCC backs law societies in denying accreditation to TWU

By Justin Ling June 15, 2018 15 June 2018

SCC backs law societies in denying accreditation to TWU

 

Trinity Western University has lost its bid to the Supreme Court, and its graduates will not be accredited as lawyers, so long as the school forces its students to sign a mandatory religious covenant.

The 7-2 split decision from the court — with four different reasons — ruled that the law school’s exclusionary admissions policy unduly excluded LGBTQ students. In doing so, it found the decisions by both the law societies of British Columbia and Ontario to deny it accreditation to be reasonable.

Under the law school’s mandatory covenant, students are forbidden from engaging in sexual activity outside the bonds of heterosexual marriage.

The pair of decisions — dismissing the appeal in Ontario, and allowing the appeal in British Columbia — offers new guidance on where the religious freedom guaranteed under the Canadian Charter begins and ends. But the majority court couldn’t come to a consensus on how that should work.

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Defamation law

No country for libel tourism

By Justin Ling June 6, 2018 6 June 2018

No country for libel tourism

 

Canada isn’t set to become a favourite forum for libel tourists.

The Supreme Court ruled Wednesday that an Ontario court was not, in fact, the best suited to hear a defamation suit filed by a Canadian businessman against an Israeli newspaper. In doing so it allowed a stay on the proceedings.

But the decision split the bench. Justice Suzanne Côté wrote the majority decision, with Justices Russell Brown and Malcolm Rowe concurring. Justices Andromache Karakatsanis, Rosalie Abella and Richard Wagner all filed their own concurring reasons. Justices Michael Moldaver and Clément Gascon, as well as (then) Chief Justice Beverley McLachlin filed joint dissenting reasons.

While the outcome of the case might be relatively clear, the roadmap on dealing with forum selection for online libel cases is less so.

 

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Justice

Trial and error: criminal justice reform

By Justin Ling May 24, 2018 24 May 2018

Trial and error: criminal justice reform

At the end of March, the Trudeau government introduced new legislation that it claims will modernize the criminal justice system, reduce court delays, reduce the overpopulation of Indigenous people in Canadian jails, clean up the Criminal Code, and ensure a broader representation of marginalized people in the court process. Bill C-75 would, it promised, “transform the criminal justice system to make it more efficient, effective, fair, and accessible.”

It was ambitious language, and came at the culmination of more than a year of consultations and conversations between the department of justice and lawyers across the country. The reviews have been less enthusiastic.

CBA National canvassed a number of defence lawyers who routinely deal with the processes that C-75 addresses. Few aspects of the bill have garnered accolades, particularly among defence lawyers. Even well-received measures are dismissed as insufficient, or overdue.

Some critics are even warning that C-75 would exacerbate some of the problems it seeks to fix: lengthening court delays, entrenching a lack of diversity, and disadvantaging accused at trial, especially those with less resources to fight the charges against them.

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Competition law

Hipster antitrust: Not so cool

By Justin Ling May 11, 2018 11 May 2018

Hipster antitrust: Not so cool

There are many things antitrust law shouldn’t do: Like fixing everything from bad labour practices, low wages, media centralization, and everything in between. At least that was the consensus among a panel of legal experts discussing the growing influence of the hipster antitrust movement at the CBA’s Competition Law Spring Conference in Toronto on Thursday.

The question put to them for debate, at a time when there is a growing backlash against tech giants in particular, was whether public interest or other consumer-focused considerations have a place in antitrust enforcement.

Joshua Wright, a George Mason University Professor and Executive Director of the Global Antitrust Institute, located near D.C., has been pushing back against the rising tide of populism that is trying, in his view, to twist antitrust law into a sort of progressive swiss army knife. “Most of the ideas have a bit of a retro, blast-from-the-past feel,” he said.

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