The Power of Perspectives

The Canadian Bar Association
CBA influence

Best interests of the child primary concern in Divorce Act changes

By Kim Covert December 13, 2018 13 December 2018

 

There’s much to applaud in Bill C-78, which amends the Divorce Act and other related legislation: the increased use of plain language, for example, along with proposals to replace the terms “custody and access” with concepts related to parenting; adopt a list of relevant factors in the determination of a child’s best interests; and encourage use of alternative dispute resolution processes, among others.

Still, a number of CBA Sections, led by the Family Law and the Child and Youth Law Sections, have proposed a total of 45 recommendations for changes to make to the bill. The concern central to most of these recommendations is that the best interests of the child be a paramount consideration in every facet of the Act that touches on children.

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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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CBA influence

IP Section recommends items for consideration in Copyright Act review

By Kim Covert December 12, 2018 12 December 2018

 

“The subject of copyright can be quite controversial,” says the CBA’s Intellectual Property Section in its submission regarding the statutory review of the Copyright Act.

The Section proceeds to avoid taking sides in the controversies by focusing its response on “the practice of law in Canada, particularly the ability of lawyers to provide clear advice to clients in the field.” A theme that runs through the letter is using judicial resources only when really necessary.

It recommends several issues be considered as part of the review:

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Climate

Arctic freeze: Governing the high seas

By Luis Millán December 11, 2018 11 December 2018

Arctic freeze: Governing the high seas

 

Overfishing is often cited as one of the most tragic failures of our stewardship of the commons. The warming of the Arctic Ocean is another. The combined effects of the two could be truly appalling.

The smallest and shallowest of the world’s five oceans is warming at almost three times the global average rate. In the last three decades, the area covered by Arctic sea ice in the summer has shrunk by roughly 40 per cent. For struggling global fisheries, this presents a unique opportunity to tap into pristine marine environments, mostly inaccessible until now.

For now, though, major fishing nations have decided to forestall such ambitions. In October, nine countries – Canada, the U.S., Russia, Norway, Denmark, Iceland, Japan, South Korea, and China – along with the EU, signed a historic, legally binding moratorium that prohibits commercial fishing in the high seas of the Central Arctic Ocean.  Inuit populations from Canada, Greenland, the Russian region of Chukotka, and Alaska were also represented by the Inuit Circumpolar Council and contributed to many provisions included in the agreement.  Their involvement could be the key to the Central Arctic Ocean moratorium’s success.

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Q&A

Singapore’s ambitions for the legal industry

By Yves Faguy December 11, 2018 11 December 2018

Singapore’s ambitions for the legal industry

 

Singapore wants to modernize the delivery of legal services to achieve two aims: to make justice more accessible to regular users and to position itself as Asia’s – if not the world’s – state-of-the-art legal hub. Already considered by some the preferred seat for arbitration in Asia, it has recently allowed third-party financing for arbitration-related disputes. On the access-to-justice front, the country is looking at the implementation of scale costs for litigation. CBA National caught up with Mark A. Cohen, CEO of Legal Mosaic, who has recently returned from a residency period at the Singapore Academy of Law, to share with us his impressions.

CBA National: What’s most striking to you about the legal industry in Singapore?

Mark A. Cohen: Well, first of all, it’s the alignment of the different stakeholders —from the Singapore Academy of Law to regulators to the Chief Justice of the Supreme Court, and law schools. They are all focused on improving legal delivery and education, and making Singapore a major regional, if not global, legal player. This effort feeds off Singapore’s enormous success in financial services and fintech and its standing as a dispute resolution and commercial center. I’m just wowed by the thoughtfulness of their game plan to achieve these objectives. I’m also impressed by the understanding and focus on the need to retrain lawyers and legal professionals as well as to take a global view. I’m also impressed by their ability to execute. Singapore is small and nimble, but its resources, brainpower, and global standing is formidable. There’s also a real sense of urgency in this and other initiatives they undertake.

N: Why is there a sense of urgency?

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CBA influence

Bill C-83: Vague language could render good intentions meaningless

By Kim Covert December 10, 2018 10 December 2018

 

It could be said that when it comes to the Corrections and Conditional Release Act, the problem is not so much with what’s in it as with what is absent – a guiding philosophy.

In recent years language requiring “that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders” was removed. The CBA’s Criminal Justice Section recommends that this “guiding principle” be restored, and along with it provisions to ensure that prisoners are out of their cells and allowed human contact as much as possible throughout the day.

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Technology

Why law firms need to worry about quantum computing

By Agnese Smith December 7, 2018 7 December 2018

Why law firms need to worry about quantum computing

 

Blame it on faulty PR, but quantum computers just don’t scare people the same way that artificial superintelligence does. That’s a mistake because many experts say the tech’s threat to secrecy is real. The time to prepare is now.

Among those sending up warning flares are spy agencies like the U.S. National Security Agency, Canada’s Communications Security Establishment, tech giants like IBM, as well as computer experts at University of Waterloo, a world leader in quantum studies. Anyone who needs to keep data protected for more than a decade should start thinking beyond today’s common encryption standards, which quantum computers could easily smash through, they say.

Some law firms say they are already taking action.

“It’s definitely on our radar,” says Benoit Yelle, a member of the executive committee of the tech group at Gowling WLG in Montreal. The firm has a research team in place that studies developments in the security field, including quantum technology. “We decided long ago to be proactive,” says Yelle, who has an engineering background.

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The Practice

Tips for building a referral network

By Carolynne Burkholder-James December 7, 2018 7 December 2018

Tips for building a referral network

 

Radio and television commercials can help lawyers get name recognition, but word-of-mouth advertising is “way more important,” according to business coach, Dave Fuller.

“People often don’t trust advertising and they don’t trust what they see on the internet or in the media. But they do trust when a friend says, ‘Go see this lawyer’,” says Fuller, a certified professional business coach with Profit Yourself Healthy based in Prince George, B.C.

Fuller says referral sources can be an excellent way for small law firms to develop a client base. Here are three key steps to develop your network:

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CBA influence

Political parties must meet basic privacy standards for personal data

By Kim Covert December 6, 2018 6 December 2018

 

If hacktivists decide to go after political parties in next year’s federal election (and Canada’s Communications Security Establishment is pretty sure they will) the personal information about the voting public that those parties hold could be up for grabs – and no party would be obliged to report the breach.

“Mandatory reporting of a breach is accepted as a basic privacy protection principle, evidenced by Personal Information Protection and Electronic Documents Act amendments that took effect on Nov. 1, 2018,” the CBA’s Privacy and Access Law Section wrote in a submission to government on proposed changes to the Elections Act. “Yet Bill C-76 does not require notifications in the event of a breach. This basic standard should apply to political parties.”

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Law firms

It makes no sense: Why law firms fail at retaining Millennials

By Aly Háji December 5, 2018 5 December 2018

It makes no sense: Why law firms fail at retaining Millennials

 

For the prospective associate, being recruited by a large law firm is an overwhelming process. You are invited to lavish cocktail parties and dinners at hitherto unknown, yet five-star-Yelp-reviewed, restaurants. You interact with the firm’s best lawyers who, in your mind at least, could be billing your biweekly salary in the duration of the evening.

Firms pour significant resources – financial, human and temporal – in attracting, selecting and recruiting the best talent to join the ranks of their associates.

In some ways, this makes sense. Firms treat new millennial lawyers as though they are assets in which to invest. What’s perplexing, however, is that law firms frequently fail to take the necessary steps to retain, and capture returns on those assets.

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International law

The law of armed conflict: Does it apply to space?

By Erika Schneidereit December 4, 2018 4 December 2018

The law of armed conflict: Does it apply to space?

 

When the White House announced earlier this year the creation of Space Force, a new branch of the armed forces, many observers were left scratching their heads. Space technology has undoubtedly come a long way since Neil Armstrong’s lunar escapades in 1969, but the idea of an interstellar infantry still seems to many of us a stretch of the imagination. And yet, outer space and space technology now play a pivotal role in nearly every facet of human life, in a way that was inconceivable even a few decades ago. Weather forecasts, communications technology, navigation systems — all of these rely on space. As we continue to incorporate our thinking about space into the design of new technologies and new avenues for exploration, the possibility of future conflicts involving space rights and resources seems far from abstract.

So, what happens when national defence strategy starts looking to the stars? Does international law follow? As a starting point, the answer appears to be yes. International lawyers categorize outer space as territory comparable to the high seas — a “global commons.” Therefore, the wider body of international law on military conduct applies to outer space, meaning that any space conflict or use of military force in space would be subject to international humanitarian law (e.g. the Geneva Conventions) and the law of armed conflict. In practice, however, it is unclear exactly how these rules translate from one realm to the other.

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CBA influence

C-86: Trademark, copyright amendments need work

By Kim Covert December 4, 2018 4 December 2018

 

Bill C-86, the omnibus Budget Implementation Act, 2018, No. 2, is an important piece of legislation making speedy progress through Parliament despite its size and many varied component parts.

The CBA’s Intellectual Property Section recently commented on several of those parts, the proposed amendments to the Trade-marks Act and to the Copyright Act and proposed framework for a College of Patent and Trademark Agents.

For the most part, the Section approves of the proposed amendments to the Copyright Act, particularly changes to Copyright Board procedures. That said, it does see a few of the proposals as more problematic: for example, as proposed, amendments to harmonize and streamline tariff proceedings would have unintended negative consequence by excluding collectives that deal in sound recordings from eligibility for statutory damages.

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