The Power of Perspectives

The Canadian Bar Association
The practice

Turning legal analytics into a competitive advantage

By James Careless August 21, 2018 21 August 2018

Turning legal analytics into a competitive advantage

 

Legal research can be that spot between a rock and a hard place: doing it properly should better your chances of winning your case, but if you’re a sole practitioner taking the time to do it properly, chances are you’re not doing at least a few of the many other things you should be doing to earn money.

This is where legal analytics software, which uses pattern-seeking algorithms, can help. “Legal analytics can accurately assess a vast amount of case law that the human mind couldn’t do as effectively, or wouldn’t do as efficiently,” says Omar Ha-Redeye, of the boutique Toronto firm Fleet Street Law.

“Legal analytics involves analyzing legal data to extract litigation and business intelligence,” explains Mona Datt, president and CEO of Loom Analytics, a Toronto-based firm providing legal research analytics. “This intelligence can be used not just for legal research, but also for making strategic business and hiring decisions,” she said.

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CBA influence

SOGIC calls for Canada to take leadership role on LGBTI2S issues

By Kim Covert August 20, 2018 20 August 2018

 

Ahead of the August Equal Rights Coalition Global Conference on LGBTI Human Rights and Inclusive Development, the CBA’s Sexual Orientation and Gender Identity Community wrote to Prime Minister Justin Trudeau to urge his government to demonstrate Canada’s leadership in this field.

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CBA Futures

Friday weekly wrap-up

By Yves Faguy August 17, 2018 17 August 2018

Friday weekly wrap-up

 

Here’s a quick look at the major legal stories from the past week.

During the dog days of summer, especially as a government enters the last year of its mandate, pining for a snap election call is practically de rigueur among journalists – a habit that endures in spite of fixed election dates.  That’s understandable, though, because there isn’t anything legally problematic with calling an early election in Ottawa. As James Bowden reminds us, “fixed-date election laws do not mandate a minimum lifespan of a parliament; they only lower a parliament’s maximum lifespan.”  Channeling constitutional historian Alpheus Todd, Bowden also sketches out the four situations where a government should advise early dissolution of Parliament, and concludes that the time is not right for Justin Trudeau.

In the wake of last week’s shooting in Fredericton that killed four people, and perceiving a possible rise in illegal firearm use, Canada’s police chiefs are proposing to study data related to gun violence. Also, a New Brunswick judge has lifted a publication ban on court documents regarding the shooting, revealing details about the attack.

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Criminal law

Aggravating factors: Sentencing for male intimate violence against women

By Yves Faguy August 16, 2018 16 August 2018

Aggravating factors: Sentencing for male intimate violence against women

 

Isabel Grant examines, in the latest issue of the Canadian Bar Review, sentencing for male intimate partner violence against women (MIPVW) since the Criminal Code provision made it a mandatory aggravating factor where the offender was in a spousal or common-law relationship with the victim.

The provision, section 718.2(a)(ii), was adopted in response to a growing recognition that courts were typically trivializing violence within intimate relationships. Grant aims to study whether the provision, over the last 22 years, has made a difference.

Acknowledging that the vast majority of the cases under study (94 per cent) involved male offenders being violent against female victims, Grant concludes that appellate courts are generally taking MIPVW seriously – though less so where sexual assault is committed. What’s more, at trial, myths about women who stay in abusive relationships are still hard to shake:

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Profile

Vivene Salmon: Leading into the future

By Ann Macaulay August 14, 2018 14 August 2018

Vivene Salmon: Leading into the future

 

As winds of change blow across the legal landscape, wide-ranging issues continue to make a major impact on the practice of law, including technology, mental health, diversity and access to justice, says Vivene Salmon, incoming Vice-President of the Canadian Bar Association for 2018‒2019. “I think the legal profession has changed drastically over the past couple of years,” she says, and in response, the CBA must change as well.

Salmon hopes to inspire other lawyers to become involved with the CBA and have their voices heard. “I would like Canadian lawyers to renew their relationship with the CBA - to see the CBA as their legal home base, where they can connect with other lawyers across the country and engage in cutting edge professional development for the 21st century.” 

Access to justice is one big issue facing the legal profession, Salmon says. “I think the CBA has and can do a lot of work in that regard.” As well, she believes it’s important for legal practitioners to prepare for the changes technology continues to bring to the profession and says it will be increasingly important for lawyers to innovate in their practices and use technology more efficiently.

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Criminal justice

The home stretch: Delivering on justice reforms

By Justin Ling August 13, 2018 13 August 2018

The home stretch: Delivering on justice reforms

 

As the Trudeau government approaches the last year of its mandate, its promised reforms to our justice system present a mixed picture.

Since taking office, the Liberals have been seized with improving the speed and efficiency in the criminal justice system. Adding a greater sense of urgency to the task was the Supreme Court’s ruling in 2016 in  R. v. Jordan, which imposed ceilings on trial delays and instigated a political panic over the idea that murderers could be released because their case has been too-oft delayed. Even prior to that, Justice Minister’s Jody Wilson-Raybould’s November 2015 mandate letter from the prime minister outlined three specific commitments on that front: The expansion of information technology to expedite the justice system, “exploration of sentencing alternatives and bail reform,” and the establishment of a “unified family court.”

The first of the three promises appears to be well on track. While there is scant mention by the government of their plan to drag the Court Administration Service’s Courts and Registry Management System into the 21st century, the government insists that change is on the way.

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CBA Futures

Friday weekly wrap-up

By Yves Faguy August 10, 2018 10 August 2018

Friday weekly wrap-up

 

Here’s a quick look at some the top legal affairs stories from the past week in our Friday Wrap-Up.

Ontario Premier Doug Ford’s announced $25M in funding for “legal swat teams” at provincial courthouses to fight gun violence in Toronto.  Citing Chicago's experience as proof handgun bans don't work, Ford also dismissed calls for a similar ban on the sale of handguns in Toronto. In fact, the handgun ownership ban is no longer in effect in the Windy City. The U.S. Supreme Court ruled it unconstitutional in 2010. Meanwhile, Evan Dyer points out that Canada needs much better data on where crime guns are coming from.

Beginning in September, Quebec’s Independent Investigations Bureau (BEI) will investigate all criminal allegations against police officers members of a First Nation or the Inuit nation. The BEI also announced its intention to recruit, as soon as possible, one or more First Nations and Inuit Investigators for greater representation within their organization.

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Criminal law

Can Holocaust denial legally be considered hate speech?

By Doug Beazley August 9, 2018 9 August 2018

Can Holocaust denial legally be considered hate speech?

“The past,” William Faulkner wrote, “is never dead. It's not even past.” He wasn’t talking about the legacy of the Second World War — but he might have been.

Around the world, racist and far-right movements are on the march. In Canada, a media marketing firm reported a sixfold increase in online hate speech between 2015 and 2016. In the United States a year ago, a resurgent far-right movement erupted into the public sphere with a rally of torch-bearing white supremacists in Charlottesville, Virginia that ended with the death of a counter-protester. Throughout Europe, far right and anti-immigrant political movements have been making strides in politics, while in Germany, one university study found that the share of online content classified as anti-Semitic rose from 7.5 per cent in 2007 to more than 30 per cent in 2017.

Against that backdrop, the trial of Monika Schaefer in Germany might seem like small beer. Schaefer, a German-Canadian (and a former Green Party candidate in Alberta) has published multiple videos online denying the fact of the Holocaust. She was arrested on January 3 while visiting relatives in Germany and now faces six charges of “incitement of the people.” She faces up to three years’ imprisonment on each charge.

(Photo: Some rights reserved by Luke McKernan)

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CBA Futures

Legal futures round-up

By Yves Faguy August 8, 2018 8 August 2018

Legal futures round-up

 

Time for a quick round-up of notable trends and developments and views that highlight innovation in the legal industry.

The big news was the recent announcement that Big Four accountancy EY will acquire Riverview, a leader in the managed legal services space since its launch in 2012 with the backing of global law firm DLA Piper. Legal Business reports that DLA Piper is selling its interest in Riverview, though it retains a small stake in Kim Technologies, an AI platform that Riverview acquired in 2015 (but from which it has since demerged). The acquired entity will be known as EY Riverview Law once the deal is completed (possibly by the end of the month).

Liam Brown notes the obvious – that the move “reflects the growing ambitions of the Big 4 in law” – but also that “Riverview’s action reflects that making a dent in the legal market is hard yards.” He also cautions that we recently witnessed a similar move when Conduit Law partnered up with Deloitte in 2016, only to end their affiliation 18 months later.

The Ontario Bar Association is launching a first “Innovator in Residence” program that aims to identify, develop and advance innovations that will help members better serve their clients.  Peter Aprile, a tax litigator and founder of Counter Tax Lawyers, will be the first Innovator in Residence as of September.

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Family law

How to fix Quebec’s surrogacy laws

By Yves Faguy August 7, 2018 7 August 2018

How to fix Quebec’s surrogacy laws

 

Though surrogacy is legal in Canada, surrogacy contracts are mostly deemed unenforceable throughout the country.  In Quebec, they are qualified as “absolutely null” under the Civil Code’s article 541. That means that in Quebec a woman who agrees to carry a child for another individual or intended parents is deemed a threat to public order. So the contract, whether verbal or in written form, may not be enforced. But in an article recently published in the Canadian Bar Review, McGill University’s Stefanie Carsley notes that lawmakers have largely failed at dissuading people from taking the risk of entering surrogacy arrangements. Intended parents in the province have sought ways around the unenforceability issue by applying to the courts for legal status through adoption – more specifically through special adoption. This allows one birth parent to maintain their bond of filiation while their spouse adopts the child.  Carsley reviews recent Quebec case law addressing article 541 and concludes that the province’s legal framework is failing all parties :

While article 541 CCQ was intended to protect surrogate mothers, in practice it leaves surrogates in a precarious position. Quebec’s current regime fails to offer surrogates any protection should one or more intended parents change their minds and refuse to honour their agreement to take the child. This may happen, for instance, if the child is found to have a disability, if the intended parents divorce, or if an intended mother becomes pregnant after the surrogate conceives. The surrogate may be left to care for and pay for the costs of raising a child that she did not intend to keep, while the intended parents might not experience any financial or legal repercussions for their actions. At most, an intended father might be held liable to pay child support, but only if he used his own sperm to conceive.

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Environment

Climate change litigation: Public nuisance strategy latest to fail

By Doug Beazley July 13, 2018 13 July 2018

Climate change litigation: Public nuisance strategy latest to fail

 

You’ve got to give him credit — he did the homework.

Last March, U.S. District Court Judge William Alsup was hearing a lawsuit filed by the cities of San Francisco and Oakland against five major oil firms on a claim of “public nuisance”, seeking compensation for the damage done by human-driven climate change. Alsup ordered the defendants and plaintiffs to take part in a five-hour tutorial explaining the ins and outs of climate science. By the end of it, he was arguably more qualified to hold forth on the topic than any member of Congress.

From the plaintiffs’ point of view, it didn’t help. Last month, Alsup threw out the lawsuit, saying the question of whether private firms can be held accountable for the climate effects of consuming a legal product is one for politicians to answer, not judges.

Previous attempts to pursue climate change nuisance claims under American federal law had foundered at the U.S. Supreme Court, which ruled in 2011 that the federal common law of ‘nuisance’ had been displaced by the passage of the Clean Air Act in 1963. Activists in the U.S. and Canada hoping to use the courts to do what most governments seem reluctant to do — hold energy companies directly accountable for the consequences of carbon pollution — have to see Alsup’s decision as a setback (even if it’s a symbolic one in Canada’s case).

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Indigenous law

Looking back at Latif and the challenge of proving discrimination

By Yves Faguy July 13, 2018 13 July 2018

Looking back at Latif and the challenge of proving discrimination

 

This month marks the third anniversary of the Supreme Court of Canada ruling in which it rejected an appeal from Javed Latif, a Canadian pilot of Pakistani origin who claimed the transportation company Bombardier Inc. had discriminated against him on account of his ethnic background. Bombardier refused to provide him training at its facility in Quebec because U.S. authorities had declared him a threat to aviation security (Latif was also licensed in the U.S.). The Quebec Human Rights Tribunal agreed with Latif’s position, Quebec’s Court of Appeal set aside its decision because it could not find that Bombardier had discriminated against Latif without proof that the U.S. authorities’ decision was itself based on a ground that the Charter prohibits. In its ruling Supreme Court outlined the test for establishing discrimination in human rights cases.

In their recent article published in the current edition of the Canadian Bar Review, Colleen Sheppard and Mary Louise Chabot draw parallels with a very different decision, the SCC’s Taypotat ruling, that decided that minimum education requirements to run for Chief or Band Councillor in the Kahkewistahaw First Nation are not discriminatory under section 15 of the Charter. The authors argue that our courts need to be more sensitive to the evidentiary challenges facing plaintiffs in establishing discrimination:

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