Legal Insights & Practice Trends

The Canadian Bar Association
Reflections from the bench

Know thy judge: Why civility in court matters

By National September 1, 2015 1 September 2015

Rightly or wrongly, there is a general perception on the bench these days that there has been an erosion of civility in our courts in Canada. In this second instalment of Know thy judge, here are some highlights of comments from judges Sheilah Martin of the Court of Queen's Bench of Alberta and Anne J. Brown of the Alberta Provincial Court and on the theme of “civility in the courts,” taken from a CBA Legal Conference panel discussion on tips for lawyers to make their lives easier in court.

There’s a reason why lawyers have a duty to be courteous

No one ever said that litigation was a tea party, but lawyers have a duty to their clients and the court to be courteous, says Justice Sheilah Martin. Even if the professional obligations around civility recognize that lawyers operate in an adversarial system, civility serves a purpose, she says, buy encouraging collegiality. “It’s part of separating the people from the dispute,” she says. “It’s a good thing to try to use our rational senses to try and resolve disputes.  And of course, it’s crucial to the public’s perception of justice how we behave.”

To be civil is to be competent

Lawyers are problem-solvers, which explains in part why 95 per cent of cases never go to trial.  They’ve filtered through people who know how to resolve disputes. So by definition, what goes to court is difficult, says Justice Martin.  But when lawyers bicker over items as simple as scheduling it becomes “an impediment to effectiveness” that risks undermining the very ”concept of counsel’s competence.”

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Blog

Voting from the margins

By Kim Covert September 1, 2015 1 September 2015

On August 14 Darren Greer, an award-winning author from Nova Scotia, sent a call out to his Facebook friends looking for those willing to donate time or money to an identification clinic.

“I'm looking to start an ID clinic here in Halifax, helping the homeless get ID so they can vote in October (and vote according to the dictates of their own conscience),” wrote Greer. “We'll need about 500 dollars to get a birth certificate and provincial photo ID for ten people to start. If you're interested in helping out, either financially or with some of the leg work, let me know. If this 10 goes well we'll keep doing it.”

Part of the impetus for the ID clinic was the passage of the Fair Elections Act, which critics have said will make it more difficult for people in marginalized communities, those without money for or easy access to the government identification that will now need to be shown  at the polling station, to vote.

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Arbitration

The rise of emergency arbitration

By National August 31, 2015 31 August 2015

Charlie Caher and John McMillan have drafted a report that considers a recent trend in international arbitration:

Until relatively recently, where a dispute was subject to arbitration, a party in need of emergency interim relief at the pre-arbitral stage only had two options. First, it could await the constitution of the arbitral tribunal and run the risk that any future order or award would be ineffective […]. Alternatively, a party could seek relief in the relevant national court, the very thing the party wished to avoid by entering into an arbitration agreement.

In light of this problem, a number of arbitral institutions have recently adopted “emergency arbitrator” provisions into their rules. These provisions permit parties to apply to an emergency arbitrator for urgently needed provisional relief before a request for arbitration has been filed or the arbitral tribunal has been constituted.

The number of arbitral institutions that have adopted such provisions has risen during the past decade, and so too has the number of applications for emergency arbitration by these institutions. Despite the apparent rise in popularity, the concept is not without its drawbacks. Writing from an American perspective, the authors point out that :

[m]ost arbitral rules, for instance, do not permit ex parte applications. Furthermore, many parties agree to arbitration because it permits them to choose an arbitrator, whereas parties are not able to choose their arbitrator in emergency arbitration.

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Anti-terrorism

Travel bans and mobility rights, Cont’d

By National August 28, 2015 28 August 2015

Earlier this month, Justin Ling explored some of the legal issues surrounding the Conservatives’ electoral promise to criminalize travel to designated “hotspots” of terrorist activity, and how it raises questions about constitutionality of such a measure, also discussed by the likes of Kent Roach and Craig Forcese.

But discussing the already noted parallel to an Australian law that came into force last year, Calgary’s Tyler Shandro claims that a travel ban would be constitutional.

But [ss. 7 and 11] of the Charter are exactly the reasons why Harper’s proposal likely will look like the Australian model he quotes, and why the straw men built by the critics are ridiculous.

The Australian model doesn’t allow for the government to prohibit travel to an entire country. Intention to travel to the declared zone knowing it was a declared zone is required. “Legitimate” travel is a defence. Those are not broad, vague or arbitrary provisions.

If declared areas are seen to reverse the onus of the burden of proof (and therefore infringe the presumption of innocence), the government would have to show that this law meets s. 1 of the Charter, which requires:

(a) a pressing and substantial objective; and

(b) that the means must be proportional (that is, the declared areas law would have to be rationally connected to the objective of maintaining security, must minimally impair our rights, and must be proportional).

The Australian model likely meets this test, which means the proposal for declared areas would not be unconstitutional.

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Sharing economy

Civil disobedience in the Age of Uber, Cont'd

By National August 28, 2015 28 August 2015

Following this week’s taxi protest against Uber in Montreal, and earlier hints of openness by Quebec Premier Philippe Couillard to legalizing the rideshare service, La Presse’s Yves Boisvert is gobsmacked at the notion that an “outlaw” business would “generously” offer to pay the province 10 cents a ride:

There is only one approach to take with UberX, and that’s the hard line.

[…]

By my reading, [Quebec’s] Act Respecting Transportation Services by Taxi states very clearly that what Uber does is a taxi service. It is “passenger transportation, for remuneration, by automobile”. And that, my friends, is too bad, but it is subject to a whole set of rules and fee requirements.

There is no legal uncertainty: That is clear, clear, clear. I don’t see why we would start negotiating with a company that wants to circumvent these rules.

[Our translation]

His colleague Patrick Lagacé pushes back:

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Privacy

Accessing subscriber data: Working around the Spencer ruling

By Justin Ling August 28, 2015 28 August 2015

Accessing subscriber data: Working around the Spencer ruling

Many expected that last year’s ruling in R. v. Spencer would close the door on the warrantless requests that Canada’s police departments had grown quite reliant on. Canada’s police chiefs, however, aren’t so sure.

In a resolution adopted at the Canadian Association of Police Chiefs’ annual conference this month, the country’s police brass are calling for “the creation of a reasonable law designed to specifically provide law enforcement the ability to obtain, in real-time or near real-time, basic subscriber information (BSI) from telecommunications providers.”

In Spencer, the Supreme Court ruled against a long-standing practice of police agencies making informal, often undocumented, requests to Canada’s telecommunications providers, to share information on their subscribers.

Police, and lawyers from the Department of Justice, maintained that those requests were merely for that ‘basic subscriber information’ — connecting a name, phone number, and home address to an IP address that had been identified in the course of their investigations.

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Privacy

The right to be forgotten: Privacy or censorship?

By National August 27, 2015 27 August 2015

Back in July, John Simpson, of Consumer Watchdog, lodged a complaint with the Federal Trade Commission, arguing that Google ought to import the ‘right to be forgotten’ into its practices in the United States. The right to be forgotten came into force in Europe in 2014, pursuant to a ruling of the EU Court. In his letter, Simpson noted that.


the Internet giant aggressively and repeatedly holds itself out to users as being deeply committed to privacy. Without a doubt requesting the removal of a search engine link from one’s name to irrelevant data under the Right To Be Forgotten (or Right to Relevancy) is an important privacy option. Though Google claims it is concerned about users’ privacy, it does not offer U.S. users the ability to make this basic request. Describing yourself as championing users’ privacy while not offering a key privacy tool – indeed one offered all across Europe – is deceptive behavior.
 
Not offering Americans a basic privacy tool, while providing it to millions of users across Europe, is also an unfair practice. Acts or practices by a business are unfair under Section 5 of the Federal Trade Commission Act if they cause or are likely to cause substantial injury to consumers that consumers cannot reasonably avoid themselves and that is not outweighed by countervailing benefits to consumers or competition.

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Blog

By any other name: Euphemisms and solitary confinement

By Rebecca Bromwich August 27, 2015 27 August 2015

Recently, there have been several demands to reduce Canada’s use of solitary confinement in custodial facilities. Amnesty International and the United Nations special Rapporteur on Torture have sought to reduce or eliminate the use of segregation for prisoners. Most recently, in August 2015, Ontario’s Advocate for Children and Youth, released a report asking the province to cease holding youths in solitary confinement for periods in excess of 24 hours. At its 2015 Canadian Legal Conference, the CBA itself joined the chorus of voices seeking to limit or ban solitary confinement with a resolution to Council.  These are positive steps towards ameliorating the conditions of inmates in Canada, but, alone, they are not enough.

One of the most appalling illustrations of the use of solitary confinement is the story of Ashley Smith, who died by strangulation at a Canadian correctional facility, while several guards watched, filmed her pursuant to regulations, and, also acting under orders, did not intervene to save her life. Thousands of people have watched the disturbing and powerful video footage of the last moments of her life. Her death led to an inquest with an unprecedented verdict of homicide.

Ashley Smith’s story in some ways recalls that of a fictional character who shares her surname, the protagonist of George Orwell’s 1984,, Winston Smith, who is famously subjected to solitary confinement before his brainwash into “loving Big Brother” at the “Ministry of Love” is complete. The fictional Smith is of course caught in the interlocking political and legal regimes under which he lives, but there is a lot else going wrong.

I am not the first to draw parallels between the two Smiths.  However, most comparisons have focused on arguments opposing or limiting solitary confinement. We should also concern ourselves with the language used by these advocates whose demands are analogous to urging the government to design – or simply rebrand – new programs for the “Ministry of Love”.

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Access to justice

Law societies and access to justice

By National August 26, 2015 26 August 2015

Ken Chasse has penned an article, arguing that one of the root causes of the Canadian access to justice problem is the “obsolescence of the management of the structure of [Canadian] law societies,” and, accordingly, that this structure should be either abolished or restructured.


The re-structured management solution recommended is a combination of: (1) a national institute, providing law societies with the continuing and permanently developing expertise for such difficult problems, as does a civil service provide for an elected government, which is missing from current law society management, being management by “part-time amateurs” (benchers) providing their labor as charity; and, (2) a centralized legal research support service providing at cost to all lawyers and judges in Canada, legal opinions and other online materials.

[…]

All areas of the production of goods and services have made that transition, where there has been sufficient pressure to make it happen, such as the pressure upon all medical services, and that imposed by a highly competitive commercial market. As a result, no doctor’s office provides all treatments and remedies for all patients, as does each law office for each client.

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Environment

Courts and climate change: A Dutch precedent?

By National August 26, 2015 26 August 2015

Diane Saxe and Kirsten Mikadze lay out some of the possible implications for Canadian law of a recent ruling of the Hague District Court, expected to have far-reaching effects, which ordered the Dutch government to reduce the country’s greenhouse gas emissions.

To date, all Canadian courts have ruled that climate change policy is “not justiciable”, i.e. not within their jurisdiction. Challenges to the Canadian government’s approach on climate change have therefore been rejected, including judicial review of the federal government’s failure to comply with the Kyoto Protocol Implementation Act, SC 2007, c 30, and of its decision to withdraw from the Kyoto Protocol.

That said, the time may now be ripe for courts to step in. In the years since these cases were argued, the science has become much clearer and the international consensus stronger: climate change is creating catastrophic risks. Moreover, from extreme weather events to shrinking shorelines, the effects of climate change have become more tangible and more immediate. As the threat builds, and the foreseeable harm multiplies, courts may feel more at ease to demand action.

While it would certainly be an uphill battle, a similar outcome is not unimaginable in Canada.

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Opinion

Our brave new legal world

By Michael Motala August 25, 2015 25 August 2015

“We live in rapidly changing times …” writes Osgoode Hall’s associate dean Trevor Farrow. Ethical questions are “continuously changing as a result of global trends.” The “complexity of today’s world is an issue for all lawyers.”

Needless to say, globalization has been in vogue in the academy for more than a decade, not just in professional circles. So why is there so much talk and so little impact? Why do tuition and licensing fees increase year after year while the access to justice crisis worsens? Why is there an ever-growing gap between the supply of graduates and the availability of jobs? Why do students suffer increasingly from mental health issues under internecine academic competition? Why is there a law school in BC that actively discriminates against LGBT? What accounts for the legal academy’s cultural and institutional inertia in the face of our profession’s—and Canadian society’s—mounting social and economic challenges?

Our profession’s history is intimately connected with the forces of globalization, but not in the frame of reference adopted by most scholars. The definition of globalization is contested, to be sure. But there is common ground in the idea that it entails the spatial transformation of social and economic relationships, increasing flows of activity, interaction and power.

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Our brave new legal world

By Michael Motala August 25, 2015 25 August 2015

Our brave new legal world

“We live in rapidly changing times …” writes Osgoode Hall’s associate dean Trevor Farrow. Ethical questions are “continuously changing as a result of global trends.” The “complexity of today’s world is an issue for all lawyers.”

Needless to say, globalization has been in vogue in the academy for more than a decade, not just in professional circles. So why is there so much talk and so little impact?

Why do tuition and licensing fees increase year after year while the access to justice crisis worsens? Why is there an ever-growing gap between the supply of graduates and the availability of jobs? Why do students suffer increasingly from mental health issues under internecine academic competition? Why is there a law school in BC that actively discriminates against LGBT? What accounts for the legal academy’s cultural and institutional inertia in the face of our profession’s—and Canadian society’s—mounting social and economic challenges?

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