The Power of Perspectives

The Canadian Bar Association

SCC: Human smuggling prohibitions are "overbroad"

By National November 30, 2015 30 November 2015

Do the prohibitions against people smuggling require the Crown to prove that those accused of the crime   received financial or material benefit in exchange? And what about those who assist asylum-seekers for altruistic reasons? Must they face of criminal charges?  These were the questions put before the Supreme Court of Canada in B010 v. Canada (Citizenship and Immigration) and a related judgment, R. v. Appulonappa. The Court unanimously ruled last week that the Criminal Code provisions dealing with human smuggling are “overbroad,” and shouldn’t capture anyone offering humanitarian, mutual or family assistance.

In the Court’s words in B010:

The tools of statutory interpretation — plain and grammatical meaning of the words; statutory and international contexts; and legislative intent — all point inexorably to the conclusion that s. 37(1) (b) applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime.  I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum-seekers in their collective flight to safety is not inadmissible under s. 37(1) (b).

And in Appulonappa:

In sum, while the security goals of the IRPA  and the amendment that became s. 117  are important, they do not supplant Canada’s commitment to humanitarian aid and family unity. Both broad aims must be respected.   This is accomplished by interpreting s. 117  as targeting organized smuggling operations having a criminal dimension, thereby excluding humanitarian, mutual and family aid.  Under the Crown’s interpretation of s. 117 , a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution. This is incompatible with the refugee protection objects of the IRPA  and the amendment that became s. 117 .

The rulings are very much in keeping with a submission made by the CBA in 2010 on Bill C-49 (the Preventing Human Smugglers from Abusing Canada’s Immigration System Act.) Bill-C49 amended the Immigration and Refugee Protection Act (IRPA) to address organized, irregular mass arrivals of refugee claimants. The CBa concluded at the time:

It is legitimate to target the activities of human smugglers engaged in facilitating irregular mass arrivals of desperate persons. Unfortunately, little of Bill C-49 is directed at smugglers. Instead, it is directed at refugee claimants and refugees, some of whom may arrive in vessels and others who may not. The Bill C-49 scheme of imposing imprisonment, denial of access to permanent resident status and loss of appeal rights on persons claiming protection violates Charter protections against arbitrary detention and prompt review of detention, as well as Canada’s international obligations respecting the treatment of persons seeking protection. Bill c-49 also seeks to change the rules for detention of permanent residents and foreign nationals that have no relation to irregular mass arrivals. For these reasons, the CBA Section does not support passage of Bill C-49.


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Regulating the Internet of Things

By National November 30, 2015 30 November 2015

“For the applications that we size, we estimate that the Internet of Things has a total potential economic impact of $3.9 trillion to $11.1 trillion per year in 2025. On the top end, the value of this impact—including consumer surplus—would be equivalent to about 11 percent of the world economy in 2025,” according to a June 2015 report by MacKinsey & Company.

“Achieving this level of impact will require certain conditions to be in place and overcoming technical, organizational, and regulatory hurdles. In particular, organizations that use IoT technology will need better tools and methods to extract insights and actionable information from IoT data, most of which are not used today.

Nicola Fulford looks at new European rules being contemplated:         

The aims of the forthcoming European General Data Protection Regulation (GDPR) include driving better security and privacy in the IoT, directly and indirectly through investors and users.

Breaches of the GDPR will attract much higher financial penalties than the current legislation, potentially up to five percent of annual global turnover, providing a sharp incentive for businesses to pay attention to their compliance strategies.

Expect a new definition of personal data, she advises:

This is potentially the most significant change. Current legislation applies only to data which directly identifies an individual (either on its own or in combination with other information to which a data controller has access), so generally excludes ‘alias' data such as pseudonyms and IP addresses.

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Criminal charges to be applied under TPP

By National November 30, 2015 30 November 2015

“The theft of business secrets will be punishable by criminal law for the first time in an international trade agreement, under a surprise inclusion in the Trans-Pacific Partnership revealed by a detailed review of the text,”  the Australia Finanial Review reports.

“Corporate thieves and cyber hackers misappropriating "trade secrets" like advanced manufacturing methods, drug making processes and the formula used to make Coca Cola will face criminal sanctions in the 12 TPP countries...”

Over at Gowlings Patricia Brooks, Michael Crichton and Kevin Sartorio have more on the current state of play in Canada:

There are presently no criminal processes or penalties for trade secret misappropriation, as our Courts have held that trade secrets (or confidential information) are not of a type of property that can be the subject of theft (since the owner of the information, with very limited exceptions, is not deprived of his/her property when it is misused by another). Otherwise, while the Security of Information Act does provide certain criminal remedies for the misuse of trade secrets, they are limited to instances involving the communication of trade secrets to a foreign economic entity, i.e., a foreign state or an entity owned or controlled by a foreign state.

The TPP may result in a change to this current state of the law. In particular, the TPP requires that criminal procedures and penalties be provided for the unauthorized and wilful access, misappropriation and/or disclosure of a trade secret. That said, under the TPP, these criminal procedures and penalties may be limited to specific situations. While some of the specific situations are broad in nature, others are more narrow and resemble protection available under the Security of Information Act.  The situations are as follows:  

(a)  the acts are for the purposes of commercial advantage or financial gain;

(b)  the acts are related to a product or service in national or international commerce;

(c)  the acts are intended to injure the owner of such trade secret;

(d)  the acts are directed by or for the benefit of or in association with a foreign economic entity; and/or

(e)  the acts are detrimental to Canada’s economic interests, international relations, or national defence or national security.

Photo licensed under Creative Commons by RestrictedData




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National security

The limits of the informer privilege

By Justin Ling November 27, 2015 27 November 2015

The limits of the informer privilege

The case of Maher Arar raised a very real concern about how Canadian intelligence services share information about Canadian citizens. Indeed, in Arar’s case, that information led to his extraordinary rendition, arrest, and torture — all on the basis of some seemingly inaccurate intelligence.

But while Arar received a formal apology and over $11 million in compensation, the recommendations to come from the inquiry into his detainment were never adopted. In fact, the spirit of the recommendations — which suggested that Ottawa implement stricter control and oversight of information-sharing from the RCMP and CSIS — were virtually turned on their head with the introduction of bills C-51 and C-44, two pieces of security legislation that, by the government of the day’s own sales pitch, opened the door to broad new intelligence-sharing worldwide.

Perhaps most strikingly of all is that while the Harper Government remedied the situation with Arar, if not the laws and regulations (or lack thereof) that got him there, Ottawa never did the same for three men who faced painfully similar circumstances.

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View from the UK

ABS trials and tribulations

By National November 27, 2015 27 November 2015

Catherine Baksi reports that, four years after their first splash, alternative business structures still only represent 5 per cent of the legal services market in England & Wales. Why the slow transition away from more traditional law firms?

As Irwin Mitchell’s Mr Tucker says, the interest of investors and others outside the legal profession has been “more muted than it might have been” due to the recession, which has meant ABSs have “not developed to the point where they might otherwise”.

Developing a large consumer legal brand, says Mr Williams, takes deep pockets.  Slater & Gordon has tried to establish itself as such, with some success. According to its own internally commissioned research, 24 per cent of people in the UK know of it.

Marketing network Quality Solicitors, founded in 2008, has attempted to do the same thing, without the need for its members to become ABSs. The group has 100 partner firms operating from 200 different locations across the UK.

Its chief executive Eddie Ross says the challenge in developing a consumer legal brand is the “finite number of consumers” looking for legal services at any one time. “Research has shown that as little as 28 per cent of consumers will have had a need for legal services within the last 12 months,” he says.

John Hyde, addressing some of the problems that have beset major ABS players such as Parabis, QualitySolicitors and Slater & Gordon, looks at the bigger picture:

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Fast and secure trade

By National November 27, 2015 27 November 2015

Cyndee Todgham Cherniak has usefully summed up a recent Canada Border Services Agency memo explaining the policies and membership requirements of its voluntary Partners in Protection (PIP)

The PIP program is designed to establish partnerships with trusted businesses in order to enhance the integrity of Canada’s borders and the security of the international supply chain (Paragraph 1 of D-Memo). PIP program members agree to implement and adhere to high security standards, while the CBSA agrees to support program members through the assessment of their physical and procedural security measures. Members are recognized as being Trusted Traders and enjoy benefits such as border recognition, facilitated processing, enhanced industry marketability, awareness sessions on security issues, and access to the Trusted Trader Portal (TTP), while the CBSA is able to focus its resources on areas of higher or unknown risk (Paragraph 2 of D-Memo). What this means is that if a business signs up for and is accepted into PIP, the business or the goods transported by the PIP Member should be processed more quickly when traveling across the Canada-US Border because they have been security cleared and are considered low-risk.  This is a program for secure trade – even in difficult times.

The D-Memo sets out eligibility criteria for acceptance into the PIP program and certain rules with respect of the conduct of supply chain secure business under the program.

Photo licensed under Creative Commons by rodneygaviola




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Legalization of marijuana

Cannabis reform must not be derailed by special interests

By Ian Culbert November 26, 2015 26 November 2015

Cannabis reform must not be derailed by special interests

The reform of cannabis laws in Canada has been identified in the mandate letters for three different federal ministers and the jockeying for position has already begun. While the “legalization” of marijuana has been a hot topic for several years, the change in federal government has resulted in discussion turning to action. Clearly, the new Liberal government is committed to action.

From politicians to labour unions, everyone is staking out their turf in what will likely become a lucrative business. Unfortunately, they are ignoring that cannabis policy reform is a public health issue, and if we don’t take a holistic approach, we’ll likely end up with a bigger mess than that created by the so-called “war on drugs.”

Clearly, the existing policy of prohibition and criminalization has not achieved its intended objectives of reducing drug use and associated harms. Prohibition has created an environment that fuels the growth of illegal markets and organized crime with all its implications.

In response to this policy failure, the Canadian Public Health Association (CPHA) has passed several resolutions related to illegal psychoactive substances (including cannabis) and the need to develop management strategies based on a public health approach.

So, what do we mean by a public health approach?

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Transparency in international arbitration: Missing the point?

By National November 25, 2015 25 November 2015

An upcoming article penned by Emilie Hafner-Burton, Sergio Puig, and David Victor will explore the significance of transparency in international arbitration. As Puig notes, reform in this area has focused in large measure on procedural issues, rather than on the underlying incentives that motivate the preference for secrecy.

Our paper is not a plea against transparency reforms. Instead, we argue that transparency reforms should look also at the rich history of debate regarding settlements within national legal systems. In fact, using statistical models we demonstrate that it is possible to identify historical patterns to explain why information is concealed in certain types of disputes. This suggests that the theoretical literature about the incentives for settlement within national legal systems is a reasonable starting point for a wave of new empirical scholarship on the question of secrecy internationally.

Unlike Mistelis we believe that the high level of secrecy in ISDS is problematic, largely because it has created a spiral in which parties face ever-stronger incentives to keep outcomes secret. This spiral is bad news for the legitimacy of international investment law, as its expanding scope and depth are creating stronger public needs for disclosing the issues addressed in such disputes as well as how governments conclude such disputes. Settlement occupies a pivotal role in this crisis because it is the mechanism of choice for litigants who want secret outcomes—exactly what Owen Fiss argued in the now iconic Against Settlement and the rich literature that resulted from his provocation against private settlements. Re-wiring the incentives and procedures could help fix the problem, but halting settlements is neither feasible nor wise since full transparency can impede some efficient outcomes. Hence, we argue for policy reforms that lead to disciplined settlements or, in plain English, against secret settlement.

The issue is particularly timely. Recently, the European Commission finalized its proposal to reconfigure the international arbitration mechanisms for the Transatlantic Trade and Investment Partnership:

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Carbon pricing

Alberta's climate plan: Is it enough (or too much?)

By National November 24, 2015 24 November 2015

Andrew Coyne applauds Alberta’s recently announced plan to phase out coal and phase in a $30 per tonne carbon tax, but with a major caveat:

Had the government limited itself to a carbon tax, with rebates for low-income households and transitional assistance for workers in particularly carbon-intensive industries, the policy would have fully deserved the praise it has been getting. Had it, indeed, been introduced as a replacement for the regulatory and subsidy schemes already enacted in the name of “fighting climate change,” at high cost and negligible benefit — for the purpose of both is not to reveal the costs of economic choices, as prices do, but to disguise or even offset them — it might even qualify for the revolutionary label.

But the carbon tax will not be in place of, but in addition to existing policies. And it will not come in on its own, but in convoy with a flotilla of new regulatory and subsidy schemes — a mandated 45 per cent reduction in methane emissions by 2025; a mandated phase-out of coal-fired electricity by 2030; a “hard cap” on emissions from the oilsands, at 100 megatonnes; vast new subsidies for public transit and renewable energy and energy efficiency programs of various kinds — all of them unnecessary, some of them actively harmful.

Allison Sears has an insightful post where she brings some perspective to the timing of Premier Notley’s announcement (on the eve of the First Ministers' meeting) and the release of her Climate Change Advisory Panel’s report:

Why did she need to get out ahead of the meeting with the Prime Minister and Premiers? Because her new strategy, though ambitious in its design and breadth, also recognizes the reality that carbon policies cannot be as stringent in Alberta as they can be elsewhere in the country without imperiling Alberta’s energy economy from which all Canadians are beneficiaries.

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Not horsing around

By National November 23, 2015 23 November 2015

Katya Bogdanov guesses at why an apparently straightforward case (R v Riesberry) involving a horse trainer, charged with fraud, for having doped a racehorse on race day, made it all the way to the Supreme Court of Canada. Having been acquitted by the trial judge, the accused appealed the Ontario Court of Appeal’s conclusion that there had been an error in law, noting that injecting performance-enhancing drugs was a clear breach of regulations governing horseracing:

On my second or third reading of the ONCA decision, I noticed that potentially, there is indeed a more significant general ratio. All you need to do is take a broader bird’s eye view. Read the following fragment broadly: “bettors were entitled to assume compliance with the regulatory scheme.” Now substitute any other group of people for “bettors” and you have a powerful statement that can apply in a whole host of situations. For example, “patients are entitled to assume doctors’ compliance with the regulatory scheme that governs doctors,” or “food buyers are entitled to assume farmers’ compliance with the regulatory scheme that governs food safety.”

Broadly read, Riesberry thus has the potential to reduce the burden on the Crown in proving deprivation or risk thereof in all fraud cases. Where the fraudulent act breaches a statutory scheme, proving the fraudulent breach itself would be enough to establish deprivation or risk thereof (assuming there is no issue of remoteness). There would be no need to show that the fraudulent act or representation was the reason for the deprivation. 

Update: As Peter Sankoff helpfully points out, the appeal was as of right.

Photo licensed under Creative Commons by Jeff Kubina


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Canada underachieving in cybersecurity

By National November 23, 2015 23 November 2015

Tenable Network Security, a US-based cybersecurity firm, has released its 2016 Global Cybersecurity Assurance Report Card. Having surveyed over 500 security practitioners worldwide, it has assigned grades by country and industry, giving an overall grade of 76 per cent – or in its own words “an unremarkable C.” Canada finds itself among the underachievers with an overall score of 76 per cent, behind the US, which received 80 per cent (or a B-). Mercifully perhaps, the report doesn’t look at the legal services industry specifically.  But here’s an indication of where some of our strengths and weaknesses lie:

Canadian respondents led the Security Assurance pack in having the highest confidence for mitigating risks fueled by executive- and board-level commitment. However, Canadian respondents are third overall in confidence for assessing network security risks.


1  Detecting cyber threats emanating from within (A-)

2  Conveying risks to executives and board members (B+)

3  Detecting and assessing transient mobile devices (B)


1  Assessing cloud infrastructure (IaaS, PaaS) for risks (F)

2  Assessing cloud applications (SaaS) for risks (D+)

3  Assessing assets at the perimeter / DMZ for risks (D+)

Photo licensed under Creative Commons by perspec_photo88

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CBA Futures

Legal Futures round-up – November 23, 2015

By Emily Alderson November 23, 2015 23 November 2015

Inspired by the CBA Legal Futures Initiative, which released its comprehensive report, Futures: Transforming the Delivery of Legal Services in Canada in August 2014, here’s our biweekly round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

Malcolm Mercer defended an LSUC working group report, which announced the organization would no longer consider majority non-lawyer ownership as a viable option for the Ontario legal profession. Mercer, who is chair of the Working Group on ABS, says the interim report was a consensus decision and reflects principles over politics. The report faced harsh criticism, including accusations of protectionism, from ABS supporters.

Young British lawyers are concerned about proposed reforms to the qualification process. The Solicitors Regulatory Authority is currently consulting on major reforms, including their preferred option to pair down the solicitor qualification process to one centralized “super-exam.” Candidates could sit the exam without any mandatory classroom education or work experience. In a letter, the chair of the Law Society’s Junior Lawyers Division says relying solely on a centralized exam could damage the reputation of the profession, endanger consumers, and solidified inequalities in accessing the profession. 

Did you know that November 6th was “Love Your Lawyer Day”?

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