The Power of Perspectives

The Canadian Bar Association
Trade

Breaking down Canada’s internal trade barriers

By Justin Ling January 19, 2017 19 January 2017

Breaking down Canada’s internal trade barriers

 

Beer is flowing freely from province to province; wine could soon follow. And if some political mavericks get their way, provincial agricultural barriers could be next.

Credit political will and perhaps a broader reading, of late, of Canada’s founding documents: Internal free trade has been a hot topic.

Ever since a New Brunswick Court of Appeal sided with an ale-loving New Brunswick man in R. v. Comeau, it seems like it’s just been a matter of time until the Supreme Court of Canada weighs in and Canada will become, once and for all, a free-trade zone.

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Business law

Friends, family and angels: Lend me your cash

By Kim Covert January 18, 2017 18 January 2017

Friends, family and angels: Lend me your cash

 

Long before many startup companies do their dances with venture capitalist dragons, they have to have smaller, important conversations with angels – friends, family members and the kind of people who make a business of handing out micro-loans (all things being relative) based on faith.

“An angel investor or an angel round or a seed round tends to be early in a company’s life-cycle, tends to be a pre-revenue stage, sometimes even pre-proof-of-concept,” says Michael Reid of McMillan LLP in Vancouver. He’ll be one of two presenters, along with Robert Cowan of McInnes Cooper in Halifax, for next February’s Skilled Lawyer Series webinar Business Finance for Lawyers I: Raising Seed Capital for a Startup.

“An angel investor is usually someone who’s making an investment on a lot of faith. It’s as much about investing in the individual and the idea as it is about investing in the actual business.”

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Corporate counsel

Doing more with less (and for less)

By Dominic Jaar January 18, 2017 18 January 2017

Doing more with less (and for less)

 

After a couple of years in private practice, when my client Bell asked me to join its legal department as a litigator, I was excited at the prospect of working for a leading Canadian technology company. However, I was surprised to learn the legal department was as technologically advanced as a court of justice: I was given a computer with a matter management system (MMS) that resembled Excel (ok, maybe Access) and used Windows Explorer as the document management system (DMS). Things could only get better!

Within the first couple months, we embarked on a large-scale technology overhaul to source and implement more robust MMS and DMS. I had been involved in a similar project at my previous firm, which was created through the merger of five law firms, and brought my lessons learned to the table. From functional and technical requirements identification with the different stakeholders (lawyers, administrative assistants, paralegal, litigation support, IT, IS and clients) to RFPs, implementation, acceptance tests and production, it was an interesting but demanding journey (on top of my day job!)—which reminded me that technology is simple and humans are complex. Change management is the true challenge of any legal technology implementation. While the technological roll-out was completed in a matter of months, when I left about three years later, adoption was still ongoing.

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Trial delays

Charter rights are not a technicality

By CBA/ABC National January 17, 2017 17 January 2017

 

Anne-Marie McElroy addresses concerns voiced in the public that the Supreme Court’s Jordan ruling, which imposed ceilings on getting criminal cases to trial, is contributing to more offenders being let go “on a technicality”:

On the face of it, it’s easier to assume that someone is factually guilty and then to move to the idea that a conviction should automatically follow. But Charter rights aren’t just technical or trivial. They form the basis of our justice system, setting out guidelines of appropriate behaviour of all of the players within it. The Charter is often the only tool that a judge has to send a message to police that the community standards do not permit the behaviour seen in a case, and the same goes for the institutional problems that have become pervasive with delays in having matters get to trial.

Léonid Sirota also tackled this question in a post following the release of the decision last year:

The Charter does not speak of “a right to be tried within a reasonable time, except for those accused of depraved offences.” The Jordan majority is quite right to say that only the complexity of the legal or factual issues, rather than the gravity of the charge, can justify a prosecution taking longer to conclude. Those who think otherwise need to amend the constitution.

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Privacy

The unwitting foreign arbiters of Charter Rights: Facebook’s “(quasi) judicial” appointment

By Karen Eltis January 17, 2017 17 January 2017

The unwitting foreign arbiters of Charter Rights: Facebook’s “(quasi) judicial” appointment

 

Germany recently vowed to investigate Mark Zuckerberg and Facebook for failing to suppress hate posts just as Google and later Facebook itself announced that they will take respective aim at so called ‘false news’ sites following the US elections. And so it came to be that private U.S. companies are very reluctantly but surely stepping into the role of international arbiters of free expression, let alone privacy.

The post-war Human Rights framework, which includes Canada’s Charter of Rights, was devised with government action in mind- as a bullwark against government abuses.  The unspeakable atrocities perpetrated during the Holocaust in what had been considered a “democracy”, at least procedurally speaking, evidenced the appalling moral failings of legal positivism and sparked a re-conceptualization of democracy. It effectively shifted the focus from the procedural to the substantive aspects of democracy.

This reexamination ushered in what Lorraine Weinrib eloquently deems “a new constitutional paradigm.” Plainly put, a conception of democracy limited to majority rule was discredited and substituted by the view that it is was necessary to predicate the legitimacy of laws on their comporting with preset values of the highest order within the hierarchy of norms. In Canada, the Charter accordingly “sets forth ‘precommitments' that restrict government action.”

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View from the U.S.: Immigration

What is temporary protected status in the U.S. and how does it work?

By Frank Fernandez January 17, 2017 17 January 2017

What is temporary protected status in the U.S. and how does it work?

Now that a new administration is set to take over the White House, many people are wondering how the results of the 2016 election will affect the state of immigration in America. For decades, lawmakers have argued over what the government should, could, and will do about undocumented immigrants who live on US soil. Some believe that they should be given amnesty, while others think that they should be returned to their native land, and come to America using the channels that are deemed legal.

Those who believe in repatriation insist that undocumented workers have a positive effect on the economy and on their communities. They maintain that these workers help to revitalize neighborhoods, and that they do the jobs that many Americans are unwilling to do. Proponents of this approach to illegal immigration think the best way to tackle the undocumented immigrant status of millions around the nation is by putting those people on a path to citizenship.

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Legal technology

Building a legal app: What problem do you want to solve?

By Sam Sasso January 13, 2017 13 January 2017

 

In my last post on building a legal app, I talked about how the first question you should answer is deciding on what principle it is that you want to teach. Let’s move on now to the matter of what problem it is that you want to solve.

Indeed, good apps are tailored to a particular purpose; they are tools built exclusively for specific uses; and they can help resolve some common problems. One of the ways that an app can be effective is to create an efficiency, usually done by eliminating an inefficiency.  Another is to create a convenience.  

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Privacy

The privacy divide: Bridging the gap between legal traditions

By Karen Eltis January 12, 2017 12 January 2017

The privacy divide: Bridging the gap between legal traditions

 

The European Court of Justice’s much maligned decision in Google Spain SL, Google Inc. v Agencia Espaňola de Protectión de Datos, Mario Costeja González handed down in May of 2014, appears to compel search engines (most notably Google, which it deems a “data controller”), to remove links to certain impugned search results at the request of individual Europeans (and potentially by others beyond Europe’s borders). It so held by virtue of the “right to be forgotten”, recently enshrined in article 12 of the revised 1995 European Data Protection Directive 95/46/EC. Further complicating an already thorny situation is the court’s failure to impart much-needed practical guidance in Costeja. More importantly perhaps, the decision underscores the right to be forgotten’s divisive character across common law/civilian lines that now extends beyond the United States.

What’s more, Costeja may inadvertantly and ironically have the effect of appointing (chiefly American) “data controllers” as unwitting and ill equipped private censors; arbiters of the European public interest and beyond.

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Climate law

The Crown has no duty to consult when legislating… for now

By Supriya Tandan January 11, 2017 11 January 2017

The Crown has no duty to consult when legislating… for now

 

A recent decision by the Federal Court of Appeal confirms that governments enjoy relative freedom when developing legislation, even when laws may impact traditional aboriginal rights. The decision at issue stems from legislative activity taken by the previous Harper government when it introduced bills C-38 and C-45 — both controversial on account of its reliance on omnibus budget bills to make major statutory reform, which critics charged were not subject to adequate parliamentary scrutiny.

Though the bills courted public discontent, protests and eventually spurred the Idle No More movement, there has been relatively little court action on these “behemoth” budget bills. That changed in Courtoreille v. Canada, an application for judicial review of C-38 and C-45 filed by Chief Steve Courtoreille and members of the Mikisew Cree First Nation.

In their application, Chief Courtoreille and the Mikisew Cree state that the purpose of the billsare to reduce federal oversight in environmental matters. 

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CBA Influence

Clearing the record: Suggestions for the pardons process

By Kim Covert January 11, 2017 11 January 2017

At what point does the justice system become unjust to the estimated one in 10 Canadians with a criminal record?

Depending on whom you talk to, a person could likely find injustices throughout – prolonged detention, delays in proceedings, inadequate legal aid funding and prison overcrowding are just some of the ways the justice system works against the people caught up in it.

A person who has served his or her time and been released back into the community can find it difficult to get out from under the stigma of that conviction – in fact, even people who’ve had charges against them stayed can still be negatively affected by their brush with the system.

In August, CBA Council passed a resolution urging the federal government to make changes to the current pardons process.

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Criminal law

Abusing civil forfeiture in Canada

By Justin Ling January 10, 2017 10 January 2017

Abusing civil forfeiture in Canada

 

Ontario’s civil forfeiture laws have created a system that is broad in scope and power, light on defence and relief, and they are being deployed very generously. 

That’s a reality that Margaret and Terry Reilly have learned the hard way over the past decade, as the government has aggressively pursued two of their properties, seizing their buildings and selling them off. 

It’s a case that highlights the bizarre nature of civil forfeiture — one that a group of lawyers is looking to scale back. 

The Reillys have found allies in the Canada Constitution Foundation (CCF), who are helping in the legal fight against the forfeiture order.

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CBA influence

Duty to consult: Reviewing the environmental assessment process

By Kim Covert January 10, 2017 10 January 2017

The federal government’s attempts to balance the interests of business, the environment and Indigenous peoples in the environmental assessment process have met with varied success, depending on your area of particular interest.

The government has established an expert panel to review the environmental assessment process. A working group made up of members of the Environmental, Energy and Resources Law Section and the Aboriginal Law Section prepared a submission that was presented to the panel in Vancouver in December. Tony Crossman, who appeared before the panel for the CBA, also followed up by letter with a response to three particular questions he was asked by the panel.

The CBA submission made a total of 33 recommendations for modernizing the process, underlining the importance of the Canadian Environmental Assessment Act, 2012, as well as sufficient funding and resources.

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