The Power of Perspectives

The Canadian Bar Association
Cover story

Who owns space?

By Doug Beazley December 7, 2016 7 December 2016

Who owns space?

 

When Canadian-American tech mogul Elon Musk stood before an International Astronautical Congress audience in Mexico in September to roll out a wildly ambitious plan to start ferrying human settlers to Mars over the next decade or so, online comment boards instantly lit up with armchair engineers arguing over whether the plan could actually work.

The tiny international community of specialists in space law, on the other hand, zeroed in on a different question – whether what Musk was planning would be legal.

Sounds academic, right? It’s not – not any more. Fifty years after the United Nations General Assembly adopted the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space – better known as the ‘Outer Space Treaty’ – private enterprise has started pushing forward into the vacuum left by the slow collapse of government-sponsored manned space exploration following the end of the Cold War. Musk’s grand vision notwithstanding, private enterprise’s interest in space is commercial, not scientific: There are vast sums of money to be made up there – from mining, power generation and tourism, for starters – and no shortage of entrepreneurs looking to plant their flag in extraterrestrial soil.

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Conflicts of law

Battle to rule the splinternet

By Yves Faguy December 6, 2016 6 December 2016

Battle to rule the splinternet

 

Ever since the world went online, free-speech enthusiasts have worried about national governments legislating the internet, and domestic courts enforcing those laws beyond their territory.

The first signs of this appeared with libel cases. Media companies were especially spooked in 2002 after an Australian court allowed a Melbourne businessman to sue New York publishing company Dow Jones & Co for online defamation. Critics of the ruling at the time declared it a tragedy for free speech, and warned of the demise of the internet and its fragmentation. Before long, media companies adjusted themselves and the internet continued on its path to become the global mass medium of choice.

Still, anxiety over the legal fragmentation of the internet keeps returning to the fore, with national courts now targeting the likes of Google and Facebook.

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Q&A

Q&A with Daniel Martin Katz: The finance of law

By Yves Faguy December 6, 2016 6 December 2016

Q&A with Daniel Martin Katz: The finance of law

Lawyers need to pay more attention to the financial industry, do better at predicting and pricing risk for their clients, and limit their own exposure to swings in the business cycle. Daniel Martin Katz, an associate professor of law at Illinois Tech – Chicago Kent College of Law, sat down with Senior Editor Yves Faguy to discuss some of the lessons fintech offers for the future of law.

CBA National: You say we are beginning to see the financialization of legal services. What do you mean by that?

Daniel Martin Katz: So in one bucket we’re seeing fintech removing meaningless frictions from various types of financial processes, by trying to work around banks – in mortgage underwriting, and peer-to-peer lending, that sort of thing. In the other bucket, there’s what we previously thought of as exotic risks or uncharacterizable risk. With data analytics, we’re able to predict or characterize them. There are aspects of those two branches in law. Financialization [of legal services] deals mostly with the risk part – predicting risk, which is a big thing that enterprise lawyers in particular do for people.

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Practice hub

Lunch with Eric Gottardi: Becoming a spokesperson

By Dana Kelly December 6, 2016 6 December 2016

Lunch with Eric Gottardi: Becoming a spokesperson

 

The Diners

The expert: Eric V. Gottardi, criminal defence lawyer and senior partner at Peck and Company, Vancouver; regularly appears as a legal analyst in the media

Background: Gottardi worked as a judicial law clerk at the Court Appeal of Ontario after obtaining his law degree from Queen’s University

The apprentice: Catherine Rose, articling student at Sutherland Jetté, Vancouver

Background: Rose recently graduated from the Allard School of Law at U.B.C. Areas of interest include advocacy, litigation, criminal law and constitutional law

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Practice hub

Your career: Seeking client feedback

By Kim Covert December 6, 2016 6 December 2016

Your career: Seeking client feedback

 

What does your client think about the service you provide? Have you asked?

Clients like being asked for feedback, says Mark Howe, Director of Client Relations for Thompson Dorfman Sweatman.

In fact, Howe said during a PD session at the CBA Legal Conference in Ottawa in August, it’s usually the lawyers in the firm who need to be convinced that asking clients what they think is not a bad idea.

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Health and fitness

Band-aid for the mind: Mental health first aid training

By Katya Hodge December 6, 2016 6 December 2016

Band-aid for the mind: Mental health first aid training

 

If you find yourself choking in public, chances are someone will recognize your health crisis and put their first aid training in action. But suffer a panic attack in public? People will walk right past you, avoiding all contact.

“They just don’t know how to respond,” explained Dr. Raj Bhatla, chief of psychiatry at The Royal Ottawa Hospital, during a PD session at the CBA Legal Conference in August in Ottawa. “And the barrier to action tends to be fear and lack of understanding.”

According to Bhatla, the course helps “build capability and confidence” dealing with someone who might be experiencing a mental health issue. This includes spotting early signs of distress and helping in a crisis situation, like a colleague (or stranger on the street) having a panic attack.

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Ethics

Should lawyers have a monopoly over the provision of legal services?

By Gavin & Brooke MacKenzie December 6, 2016 6 December 2016

Should lawyers have a monopoly over the provision of legal services?

 

Is there a good reason to allow non-lawyers to provide legal services?

Lawyers’ education and training is superior. Admission standards are high. We are bound by codes of conduct and must be insured. Lawyers who breach professional duties may be disciplined. Why should anyone with lesser qualifications be inflicted on the public?

The short answer is that lawyers do not and cannot fill the public’s need for legal services. According to the 2009 Ontario Civil Legal Needs Project, lawyers provide advice and representation for only 11.7 per cent of what the study called “justiciable events:” issues relating to consumers, employment, debt, social assistance, housing, disability pension, discrimination, family law, and hospital treatment issues, among many others.

As Ontario bencher Malcolm Mercer has pointed out, lawyers don’t necessarily perceive the extent to which the public’s legal needs are unmet. We tend to see the access to justice problem strictly from our own professional perspective. And as Professor Gillian Hadfield has noted, the problem is aggravated by the fact that the employer, the bank, or the business on the other side the legal issue, does have access to expert legal advice.

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Agents of innovation

A2J Evolution: Time for a redesign

By Brandon Hastings December 6, 2016 6 December 2016

A2J Evolution: Time for a redesign

 

Why, after 30 years of reports on the access to justice crisis, do we have no real fundamental change?

One answer to this question, posed by Nicole Aylwin, assistant director of the Winkler Institute and adjunct professor at Osgoode Hall, may be that the justice system has evolved similarly to our common law, leaving our justice-delivery mechanisms in a deceptively tangled Gordian Knot.

In the common law tradition, each new set of facts forces the law to grapple with human nature, incrementally refining its rules and in theory moving us closer to an ideal world. The trouble is that evolution is not always as tidy as we would like it to be. Over time, the sum of its almost imperceptibly small changes can mask more serious, fundamental deficiencies.

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Closing argument

Let 'em in!

By Omar Ha-Redeye December 6, 2016 6 December 2016

Let 'em in!

 

Give me your tired, your poor.

These words have served to welcome generations of immigrants to the U.S. Increasingly though, Canada is becoming the destination of choice. But the numbers it has welcomed in the past will pale in contrast to those we can expect to hear knocking on our door in years to come.

Natural disasters, food and water shortages, and desertification linked to climate change – to which the wealthiest countries are the greatest contributors – often manifest as civil instability. Widespread domestic conflict will push people out of their homes just to live. This shift can best be described as “survival migration.”

Together these factors will ensure that Canada, a nation built by immigrants, will be asked to receive an unprecedented number of immigrants and refugees in the next 100 years. Unfortunately many of our immigration laws, settlement policies – not to mention public opinion – are just not prepared for these changes.

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Profile

Creative licence

By CBA/ABC National December 6, 2016 6 December 2016

Creative licence

“Practising law can be creative, but sculpting allows for a different form of creativity and part of a balance in life that has been most satisfying. Besides, “hitting rock” is a good outlet for my aggression that might otherwise be directed against my partners, clients or family!”

Robert Cohen Q.C., Partner at Blaney McMurtry, has been sculpting stone for over 30 years and has participated in  a number of art shows.

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Freedom of expression and rule of law

Silencing disagreement and promoting understanding of the law

By Yves Faguy December 6, 2016 6 December 2016

 

Commenting on a recent political rally in Alberta where chants of “Lock her up” broke out against Premier Rachel Notley, communications professor Brian Gorman  remarked, "There's an ugly tendency among the extreme right, and I suppose the extreme left as well ... to confuse any disagreement with something that must be eliminated."

Of course, there is absolutely no legal basis for putting Notley in jail. The crowd mimicking the frequent rallying cry at Trump campaign events was there to protest the NDP government’s proposed carbon tax, legally introduced in the province’s legislature for a vote. But the Carleton University professor could have just as easily been referring to the worrying trend on university campuses across North America to shout down controversial figures invited to speak to students.

The latest among these is renowned criminal defence lawyer, Marie Henein, who successfully defended former CBC radio host Jian Ghomeshi at his sexual assault trial. Ghomeshi was acquitted on all counts, but Henein has been the subject of harsh judgment in some quarters for her role in attacking the credibility of key female witnesses who claimed they had been assaulted by him.

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The Supreme Court

Pomp and circumstance: A supreme swearing-in

By Kim Covert December 5, 2016 5 December 2016

 

What do cupcakes and show tunes have to do with the selection of Canada’s newest Supreme Court justice?

Cupcakes were the fuel and show tunes – led by committee chair Kim Campbell – were the glue that held the special advisory committee appointed by Prime Minister Justin Trudeau together, say sources who shall remain nameless. Committee members “gelled” quickly and did a tremendous amount of work, the sources say, and they’re very pleased with the result.

The result, of course, is the appointment of Malcolm Rowe as the first Supreme Court Justice from Newfoundland. Rowe was quietly sworn in and put to work three days after he was named to the court in October (“We don’t wait around,” Chief Justice Beverley McLachlin says). The pomp and circumstance, complete with that lovely ermine collar, waited until Dec. 2.

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