The Power of Perspectives

The Canadian Bar Association

Justin Ling

Criminal law

Feds expand the rape shield protections

By Justin Ling June 7, 2017 7 June 2017

Feds expand the rape shield protections

 

It was 25 years ago that Canada saw the adoption of a rape shield law, designed to protect survivors of sexual assault from being cross-examined on their sexual history, unless it was directly pertinent to the facts of the case.

But now, under legislation tabled by Justice Minister Jody Wilson-Raybould on Tuesday, the shield law is getting an update. And with it, the statutes around consent will gain further clarity.

It’s all a part of a revamping of the Criminal Code, undertaken by Wilson-Raybould, which will see a host of antiquated laws deleted or modernized, as part of a bid to drag the Criminal Code into the 21st century. The bill is titled, perhaps unfortunately, C-51.

The crux of the changes to the rape shield law will clarify that no communications from the complainant’s past can be admitted into evidence if they are being used by defence counsel to do one of two things: Undercut the credibility of the witness, or establish a likelihood that the complainant would’ve consented. These are the so-called “twin myths.”

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National security

Sharing national security secrets: More oversight

By Justin Ling June 1, 2017 1 June 2017

Sharing national security secrets: More oversight


When the Liberal government finally gets around to introducing a reform package on Canada’s national security laws, chances are that much of the attention will focus on the Security of Canada Information Sharing Act, or SCISA.

Skepticism over information sharing has reached peaked in recent years, thanks in no small part to the Edward Snowden leaks and subsequent revelations and litigation surrounding the integration of the Five Eyes intelligence partners.  Together they have produced a steady trickle of information that has shown how Canadian intelligence agencies are integrated to the services of American and foreign partners. And how that can impact Canadians, even innocent ones.

Given that, and thanks to reforms introduced by the Harper government, the Liberals have honed in on tinkering with SCISA in order to write in some more general stopgaps and safeguards.

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Supreme Court of Canada

Is there a duty to consult in the legislative processes?

By Justin Ling May 25, 2017 25 May 2017

Is there a duty to consult in the legislative processes?

 

The rules around the Crown’s duty to consult have come a long way in Canada, thanks in large part to courts who have been broadly supportive of the principle that when the Crown is planning action that that could have an adverse impact on Indigenous or Treaty rights, those communities should be heard and, where appropriate, accommodated. A recent example involves the Supreme Court of Canada Supreme Court declaring Aboriginal title in Tsilhqot'in Nation v. British Columbia in 2014. 

But what if Parliament were required to consult Indigenous peoples on legislation it plans on adopting? 

The Supreme Court granted leave last week in a matter that may begin to answer that question. 

In Courtoreille v. Canada, the Mikisew Cree First Nation — represented by Chief Steve Courtoreille — claims that the previous government introduced and adopted omnibus legislation passed by into law without consulting with his nation. That, Courtoreille argued, abridged the Mikisew nation’s treaty rights. 

The dispute is a complex one that strikes at the very core of Canada’s system of governance.

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Immigration

Key parts of citizenship revocation process struck down

By Justin Ling May 11, 2017 11 May 2017

Key parts of citizenship revocation process struck down

 

The Federal Court just beat Justin Trudeau to the punch.

In a ruling yesterday, the court found that three provisions in the Citizenship Act were unconstitutional and denied Canadian citizens the right to due process afforded to them under the Canadian Bill of Rights.

Justice Jocelyne Gagné ruled that Ottawa’s powers to strip citizenship from dual citizens, in cases where they believe the citizenship was obtained through fraud or misrepresentation, lacked safeguards.

Thanks to changes brought in under the Strengthening Canadian Citizenship Act, people facing revocation were only afforded a trial if the Minister of Citizenship and Immigration deemed it necessary. Otherwise, their representations would be made only in writing.

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Trade

Beer pressure

By Justin Ling May 10, 2017 10 May 2017

Beer pressure

 

When the Supreme Court granted leave last week to hear the appeal in R. v. Comeau, there was elation in all sorts of different corners of the country.

Free marketeers are hoping the top court will finally pave the way for legal challenges to enforce the sort of free-trading union that (they suspect) the framers of the constitution always wanted.

Wine aficionados are anticipating the pleasure sipping B.C. wine in Nova Scotia, and Nova Scotia wine in B.C.

For provincial governments, the hope is that a ruling will reinforce their long-held power to regulate and manage certain domestic industries at their province’s borders.

Caught in the middle of it all are the provincial liquor boards, whose very existence might be on the line.

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