The Power of Perspectives

The Canadian Bar Association

Justin Ling

International human rights

The sovereignty of states and multinational corporate accountability

By Justin Ling January 11, 2019 11 January 2019

The sovereignty of states and multinational corporate accountability


In 1897, a U.S. citizen living in Venezuela, George F. Underhill, brought a suit in a New York court to recover damages against the revolutionary Venezuelan General Hernandez, who had occupied part of the country and had effectively tried to nationalize his business.

Damage was done, the American claimed, and he wanted to be made whole.

The U.S. Supreme Court ultimately ruled against Underhill, in a decision that would enshrine the Act of State Doctrine as a general rule of thumb for modern Western legal systems.

“Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory,” U.S. Chief Justice Melville Fuller then wrote.

Later this month, the Supreme Court of Canada will hear Nevsun Resources v Gize Yebeyo Araya, a case that will put the Act of State Doctrine to its first test in a Canadian court.  The case will serve to gauge the extent to which international human rights law has a footing in the Canadian legal system.

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Freedom of the press

The law of journalist-source privilege is still taking shape

By Justin Ling December 13, 2018 13 December 2018

The law of journalist-source privilege is still taking shape


What can we make of last month’s effort by the Supreme Court of Canada to clarify when and how police can seize materials from journalists? The ruling in R. v Vice Media Canada was notable in that it appears to have set the table for future decisions on journalist-source privilege. What’s more, courts moving forward will have to take into account a new federal law that offers journalists greater legal protections than we have seen in the past.

Tweaking the old standard

Twenty-seven years ago, the Supreme Court handed down a landmark case, in CBC v Lessard, that promised to redefine the relationship between the media and the courts.

The CBC had caught, on tape, a small mob damaging a Canada Post office. The police, having seen the footage broadcast and with no other means of obtaining the evidence, filed for a warrant to seize the tapes.

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Criminal law

Canada’s slow and insufficient efforts at ending solitary confinement

By Justin Ling November 27, 2018 27 November 2018

Canada’s slow and insufficient efforts at ending solitary confinement


It has been nearly 12 months since the Ontario Superior Court of Justice declared that Canada’s use of solitary confinement is unconstitutional.

Eleven months have passed since the Supreme Court of British Columbia handed down a similar ruling.

In September, Public Safety Minister Ralph Goodale issued a mandate letter to the Commissioner of the Correctional Service of Canada, instructing her to reduce the use of solitary confinement.

And just last month, Ottawa introduced Bill C-83, which promises to “eliminate the use of segregation” altogether.

From the outside, this looks like progress. But a loose coalition of organizations says the federal government’s effort to reduce the use of a practice that the UN essentially equates to torture is falling apart.

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Freedom of expression

Freedom to follow: Politicians blocking their critics

By Justin Ling October 26, 2018 26 October 2018

Freedom to follow: Politicians blocking their critics


Facebook and Google have become unavoidable parts of modern life. Some have described the platforms as central parts of our “digital public square.”

So what happens when your city’s mayor decides to block your access to that square?

That’s the novel question being posed to an Ontario court by three prominent critics of Ottawa mayor Jim Watson, who has blocked them all on Twitter.

Ottawa lawyer Paul Champ is representing criminal lawyer Emilie Taman, union activist James Hutt, and Dylan Penner of the Council of Canadians.

All three have used the social media platform to chide their mayor, whose Twitter account serves as both his personal page and as the semi-official account of the mayor’s office. Being blocked means they can neither access his tweets nor read many of the responses they generate.

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The Charter

Ontario Court of Appeal grants stay for Bill 5 ruling

By Justin Ling September 19, 2018 19 September 2018

Ontario Court of Appeal grants stay for Bill 5 ruling

The high-paced legal drama around Doug Ford’s decision to slash the size of Toronto city council mid-election will end, not with a notwithstanding clause, but with a stay.

The Ontario Court of Appeal has ruled to set aside the lower court ruling on the matter.

On July 30, the Ontario legislature gave first reading to Bill 5, which would reduce the number of seats on Toronto city council from 47 to 25, and axe regional municipal bodies elsewhere in the province. The bill received royal assent just over two weeks later.

All this, even though the election period had already begun, under the 47 ward council, on May 1.

Council candidates mounted a constitutional challenge shortly after, arguing that Bill 5 breached their constitutional rights and those of electors.

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