La force de la perspective

The Canadian Bar Association

Justin Ling

Criminal justice

Challenge to victim surcharge heads to Supreme Court

Par Justin Ling avril 13, 2018 13 avril 2018

Challenge to victim surcharge heads to Supreme Court <p> Could this be the last act of the mandatory victim surcharge?</p> <p> The Supreme Court is <a href="https://www.scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=37427">hearing arguments next week</a> on whether the automatic restitution constitutes cruel and unusual punishment, under Section 12 of the <em>Charter.</em></p> <p> The hearing will finally bring to a head many of the problems and deficiencies that have been attributed to the mandatory surcharge.</p> <p> Even though the current government has been critical of the way the mandatory victim surcharge was set up under its predecessor, its submissions to the court were short and pointed.</p> <p> &ldquo;The victim surcharge does not constitute an indefinite sentence,&rdquo; the Crown&rsquo;s submission reads. They note that the <em>Criminal Code </em>lays out the amount that must be paid, the deadline it must be paid by, and how it can be paid. The fact that the surcharge can be paid through work or incarceration &ldquo;doesn&rsquo;t alter its nature,&rdquo; the factum reads.</p>

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Criminal justice

Reforms to Canada's criminal justice system proposed

Par Justin Ling mars 29, 2018 29 mars 2018

Reforms to Canada's criminal justice system proposed

Justice Minister Jody Wilson-Raybould has introduced new measures to streamline the criminal justice system and to finally follow through on pledges to clean up the Criminal Code and reduce court delays. Reactions, however, have already been mixed.

The centrepiece of the new legislation, Bill C-75, which is sure to spark a significant amount of debate among defence lawyers in Canada, is a set of a new rules on when preliminary inquiries can be used.

The changes would make it so that only an accused facing a crime which could carry a penalty of life in prison would have access to a preliminary inquiry. Even then, under the new rules, the inquiry judge would have the power to limit issues and witnesses introduced.

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Voting rights

SCC to hear case on expat voting rights

Par Justin Ling mars 20, 2018 20 mars 2018

SCC to hear case on expat voting rights

At a time when foreign influence in domestic elections is at an all time high, the Supreme Court will finally hear arguments tomorrow in favour of why outside agitators should be allowed to participate in Canadian elections. In so doing, the top court is set to tackle the definition of what, exactly, is in the Canadian social contract.

It’s not exactly Russian propaganda, however.

In 2015, the Ontario Court of Appeal ruled that section 11(d) of the Elections Canada Act, which bars Canadian expats who have been out of the country for more than five years from voting, was constitutional. In so doing it overturned a lower court ruling which struck down the section.

The legislation effectively disenfranchises more than a million Canadians living abroad, although Ottawa has held that such a prohibition is within international norms (as CBA National has written previously, that is not even remotely true in the G7 context, where most countries allow full franchise for non-resident citizens.)

Two Canadians living in the United States, who launched the lawsuit, contend otherwise. Pointedly, they write in their factum to the top court that “the disenfranchisement of Canadian citizens in this case cannot be saved by s. 1 of the Charter.”

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Division of powers

A pan-Canadian securities regulator at last?

Par Justin Ling mars 19, 2018 19 mars 2018

A pan-Canadian securities regulator at last?

It’s déjà vu, all over again, as the Quebec government heads to the Supreme Court to try and nix an opt-in national securities regulator.

The case is the culmination of a fight that originally began as a crowd-pleasing compromise solution.

A provincial history: In 2011, the top court considered in a reference case the constitutionality of a proposed national securities regulator and unanimously concluded “that the day-to-day regulation of securities […] essentially remains a matter of property and civil rights”, which falls under exclusive provincial jurisdiction.

It also held that the nature of a financial market “may, in principle, support federal intervention that is qualitatively different from what the provinces can do,” but ultimately concluded that, despite their fundamentally intertwined nature, they couldn’t be managed by a single desk — at least not by Ottawa’s edict. The court called that the “wholesale takeover of the regulation.”

Instead, the court said that a “cooperative approach” which would allow for “the essentially provincial nature of securities regulation” could work, while simultaneously addressing national issues “remains available and is supported by Canadian constitutional principles and by the practice adopted by the federal and provincial governments in other fields of activities.”

It was invitation of sorts to Ottawa to figure out a voluntary system.

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Budget

Budget 2018: What's in it for justice

Par Justin Ling février 28, 2018 28 février 2018

Budget 2018: What's in it for justice

In the Trudeau government’s 2018 budget, the penultimate for its first mandate, the government has pledged new money for Canada’s court system, access to justice, and fighting sexual assault and harassment in the workforce.

The new funding comes in a budget that has been heavily marketed to address gender inequality and systemic failures in outcomes for Indigenous peoples. Here are some highlights.

Money for the courts: Amid longstanding concerns that Canada’s court system is underfunded to address the volume of cases it currently faces — a concern exacerbated by the 2016 Supreme Court ruling in R. v. Jordan, which set strict timelines on trial delays — this year’s budget does offer some new money to help the courts cope.

The budget allocates $75 million for the courts themselves, as well as additional $77 million to expand family courts, as well as another $13 million for access to justice programs and legal aid for immigrants and refugees, all over the next five years.

The money for the family courts will allow for 39 new judicial positions in a handful of provinces, and six new spots on the Ontario Superior Court and the Saskatchewan Court of Appeal.

Beyond that details are relatively scant about what, precisely, the government plans to do to address the strain on the courts and access to justice.

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