Reasonable Doubt: legal issues to watch in 2016

Regulating physician-assisted dying, C-51, marijuana legalization and more

2015 was an eventful year for legal cases, bills and government action in our country. While it is interesting to look back on the year that was, in this week’s edition of Reasonable Doubt, we would like to highlight five legal issues to pay attention to in the coming year:

Physician-Assisted Dying

In Carter v. Canada, the Supreme Court unanimously struck down the Criminal Code provisions prohibiting physician-assisted dying on the grounds that they violated sections 7 and 15 (3) of the Charter. It remains to be seen how both federal and provincial legislators will regulate this area. For example, the court’s decision allows but does not compel doctors to assist patients. Regulators and medical colleges will have to tackle this issue in the coming year.

The Anti-Terrorism Act (Bill C-51)

The Anti-terrorism Act, commonly referred to as Bill C-51, was met with widespread controversy this past year. The bill enacted a number of broad anti-terrorism reforms, with the biggest concern being the additional power the legislation granted to CSIS. As our national intelligence agency, its role has traditionally been to observe and collect intelligence. Those powers have now been expanded to include activities beyond “spying” such as the ability to “disrupt terror plots.” 

Many feel that CSIS lacks the proper amount of institutional oversight for these expanded powers. There has also been much discussion of the privacy implications of the legislation’s facilitation of information sharing between 17 different federal institutions. 2016 will be a pivotal year for the Anti-Terrorism Act. Not only will we see how some of these broad powers are applied, but under strong public outcry and political pressure, there is hope that the new federal government will take a second look at the Act and make reforms.

Marijuana Legalization

The Liberal government has promised to legalize and regulate the recreational use of marijuana during its term. Provincial governments have already begun advocating the distribution of marijuana through provincial liquor control boards like the LCBO here in Ontario. While it is still unclear if legalization will occur within the next year, there will certainly be a robust discussion of what a future regulatory framework for recreational marijuana production and sale could look like in the coming year.

Métis and Non-Status Indian Rights

The Supreme Court heard arguments in Daniels v. Canada in October of last year. A decision is expected in the coming months. The ruling will end a 17-year legal battle that seeks to determine whether the federal government has jurisdiction in relation to Métis and non-status Indians. With both the federal and provincials governments claiming that they do not fall under their jurisdiction, these groups have been deprived of programs and services. If the Supreme Court finds in the claimants’ favour, the federal government will have a fiduciary obligation to these groups who currently exist in a jurisdictional gap. This ruling will have an important impact on aboriginal rights in our country. 

Mandatory Minimum Sentencing

The tough sentencing laws enacted by Harper’s Conservatives in 2008 are beginning to face constitutional scrutiny in our courts. In 2015, the Supreme Court struck down Criminal Code provisions that imposed mandatory minimum sentences for firearm possession on the grounds that they violated the Charter and amounted to cruel and unusual punishment. The Court found a large divide between the nature of the offence, which in some cases amounted to a license-type infraction, and the mandatory minimum three-year imprisonment sentence.

What remains to be seen is whether the Supreme Court will find this to be the case with other mandatory minimum provisions. The Supreme Court is scheduled to hear R. v. Lloyd, a case challenging the mandatory minimums for drug possession and trafficking charges next week. The court’s decision in this case may trigger a broader reexamination of the use of mandatory minimum sentences and further challenges to them.

Reasonable Doubt appears on Mondays.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. | @nowtoronto

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