Legal Insights & Practice Trends

The Canadian Bar Association

The Charter equality provisions turn 30

By National April 17, 2015 17 April 2015

This year, the Charter of Rights and Freedoms turns 33.  What makes this anniversary particularly noteworthy though is that it marks the 30th anniversary of the coming into force of Section 15, which protects equality and freedom from discrimination.

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Competition law

Are mutual funds causing anti-competitive behaviour?

By National April 17, 2015 17 April 2015

Eric Posner points us to a recent paper by José Aznar, Martin C Schmalz and Isabel Tecu, who argue that common ownership – through mutual funds – can have adverse effects for market concentration and reduce competition.   The authors look at the US airline industry:

Specifically, we use more than 10 years of market-firm-level panel data from the airline industry to show that common own- ership has a large and significant positive effect on product prices. We then exploit variation in common ownership concentration generated by the merger of two large asset managers that arguably occurred for reasons unrelated to route-level differences in US airline ticket prices, and find similar effects. In sum, we find that product prices are 3-11% higher because of common ownership, compared to a counterfactual world in which firms are separately owned, or in which firms entirely ignore their owners’ anti-competitive incentives caused by common ownership. Further, we estimate that the single acquisition of BGI by BlackRock caused U.S. airline ticket prices to increase by 0.6% on average across routes. These results imply a large deadweight loss, i.e., decreased efficiency, for the macroeconomy due to common ownership.

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Legal headlines April 17, 2015

By National April 17, 2015 17 April 2015

Here is a roundup of today’s legal headlines:

Chinese journalist jailed for ‘leaking state secrets’

Cabinet secrecy blocks rationale behind government’s advertising slogan

Bell faces $750-million lawsuit over tracking of customer’s cellphone Internet usage

No parole for 30 years for man who killed two in crowded Toronto mall

Alberta law society under fire for dismissing complaints against Ezra Levant

Canada's trans people face lengthy wait times for medical care

Everest College grads want loan forgiveness for 'worthless' diploma

Federal government to invoke terrorism clause to keep Harper family secrets private

AI will create as many legal jobs as it destroys, says Seyfarth Shaw

Eight out of ten lawyers say work routine is harming their health

Respect women's right to wear veil in court, says Britain's most senior judge

Julian Assange speech prompts judges to boycott Commonwealth Legal Conference

As U.S. gay-marriage battle looms, attorneys fight over fees

Big U.S. investors to ask SEC to require oil industry to detail risks of climate change

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The Saguenay right-to-pray ruling

By National April 16, 2015 16 April 2015

Hot on the heels of the Nur split decision came the top court’s ruling in Mouvement laïque québécois v. Saguenay (City), a near unanimous decision finding that reciting prayer – even non-denominational – at the opening of municipal council meetings breached the state's duty of religious neutrality. Already municipalities around the country are reviewing practices surrounding morning prayers.

James Mosher explains why:

A person who complains about a practice has to satisfy the legal test, so each case will be based on the particular evidence. But given this case involved a non-denominational religious prayer, it’s hard to imagine a religious practice that wouldn’t breach the duty of neutrality.

A municipal council or other government authority that includes any religious practice or symbol in a proceeding should review it now. The decision is relevant across Canada even though it’s based on the Quebec Charter: every Canadian Province and Territory has human rights legislation prohibiting discrimination on the basis of religion, and every law in Canada must comply with the Canadian Charter of Rights and Freedoms’ protection of freedom of religion.

Léonid Sirota is “delighted” with the ruling.

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Taking your legal temperature on Law Day

By Kim Covert April 16, 2015 16 April 2015

Today is Law Day in Canada, a date chosen to commemorate the signing of the Charter of Rights and Freedoms in 1982.

CBA branches across the country take part in Law Day by planning a host of activities to raise awareness about lawyers and the law, many of which take place in schools or involve students. This is fitting because as the CBA’s report Reaching Equal Justice underlines, it’s important to empower people to participate in the justice system – and a big part of that ability to participate comes through education. “Enhanced public accountability and participation depends on informed and capable citizens and disputants or litigants,” the 2013 report says. “Strong commitments and resources must be devoted to building peoples’ individual legal capabilities.”

In fact, the report says, law should be seen as a life skill, “with opportunities for all to develop and improve legal capabilities at various stages in their lives, ideally before a legal problem arises.”

Stemming from that report, the CBA’s Access to Justice Committee has developed a series of 12 “legal health check” cards, six released last year and six new ones released today to coincide with Law Day. The cards, aimed at the general public, were created to provide some basic guidance for those dealing with life issues such as marital breakups, buying a first home, or writing a will.

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Legal headlines April 16, 2015

By National April 16, 2015 16 April 2015

Here is a roundup of today’s legal headlines:

Ontario man detained in Egypt stopped from leaving country at last minute

Save the Children: 'Moral imperative' to save migrants

CWB privatization divides farmers

Saguenay right-to-pray ruling: What it means for religious freedom in politics

Des Hague, former CEO of Centerplate, sentenced for animal cruelty

Thousands protest at Canadian mine in Greece over feared job losses

Duffy trial could go long, judge warns, even into 2016

Iran is raising sophistication and frequency of cyberattacks, study says

Iowa man charged with sexual assault for intercourse with wife with Alzheimer’s disease

GM is shielded from some ignition-switch suits, ruling finds

Bakers makes China breakthrough with permit to practice local law

EY becomes first and only organisation to pay fine over Lehmans role

U.K. peer with Alzheimer’s will not be charged despite evidence of child abuse

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Legal headlines April 15, 2015

By National April 15, 2015 15 April 2015

Here is a roundup of today’s legal headlines:

Google faces European charge it abused search dominance

No checks on whether work actually done under senators' contracts, court hears

Former Clippers owner's wife wins lawsuit over lavish gifts he gave to another woman

Supreme Court to decide if prayers are acceptable before municipal meetings

Nova Scotia to partially cover hike in obstetric malpractice fees

Oil spill in Vancouver’s English Bay spawns likely lawsuits

Court strikes 'blunt instrument' law of mandatory sentencing

Manslaughter acquittal illustrates Quebec's naturopath dilemma

Police act to keep lid on P.E.I. feud during sentencing for revenge murders

How the RCMP tracked three Canadian girls in Egypt before they could join ISIL in Syria

France Inc. bristles at law giving more votes to select few

Ontario land surveyors can sue land registry managers for copyright infringement, court says

WTO rules against U.S. dolphin-safe canned tuna labels

Law firm sets up in Bermuda tax haven

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Criminal law

No empirical evidence

By Justin Ling April 14, 2015 14 April 2015

No empirical evidence

A split decision from the Supreme Court on Tuesday morning heralded bad news for the Conservatives’ tough-on-crime agenda, and signals a tough path ahead for Harper’s mandatory minimum sentencing regime. Yet, there are also concerns that the Court just struck a needlessly broad precedent.

A decision in R. v. Nur was rendered from the top bench after five months of deliberations.

The case before them was a complex one: two appeals were before them. Neither of the sentences were found to be unconstitutional, but defence counsel nevertheless argued that they could have been, if it were applied in a certain scenario. In other words, the hypothetical impact of the laws in question could have a grossly disproportionate impact on someone in a thoroughly unlucky situation.

The case stems from an Ontario Court of Appeal decision declaring s.95(1) of the Criminal Code  making the possession of a non-licensed restricted or prohibited loaded weapon an offence carrying a mandatory minimum of three years — unconstitutional. But as National reported after that decision, it wasn’t that the mandatory minimum was itself the heart of the issue, it was the hybrid nature of the offence.

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Washington State shifts the bar on law firm ownership

By Kim Covert April 14, 2015 14 April 2015

ABS is all the buzz in the legal futures discourse. Allowing alternative business structures is a key recommendation of the CBA Legal Futures Initiative’s report, but they’re anathema to certain groups of lawyers and the focus of the campaign for the April 30 bencher election in Ontario.

But love ‘em or hate ‘em they do seem to be moving ahead.

Three years ago, in 2012, the state of Washington gave permission for Limited Licensed Legal Technicians to provide legal services in carefully controlled circumstances as a way to respond to increasing numbers of self-represented litigants in the state’s courtrooms, and other access to justice gaps.

On March 23 this year, the Washington Supreme Court went one step further – at the behest of the board of the state bar – and ruled that LLLTs can become minority owners in law firms and share fees with lawyers. The rule states that they may not act in a supervisory capacity over lawyers or have a controlling managerial authority in the firm.

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Nur: Mandatory minimums struck down

By National April 14, 2015 14 April 2015


From today's majority opinion, written by the Chief Justice of  the Supreme Court, which struck down mandatory minimum sentences for certain firearms offences for violating s.12 of the Canadian Charter:

Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing.  They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality.  They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result.  They affect the outcome of the sentence by changing the normal judicial process of sentencing.

General deterrence — using sentencing to send a message to discourage others from offending — is relevant. But it cannot, without more, sanitize a sentence against gross disproportionality:  “General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual” (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 45, per Gonthier J.). Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.

In its intervention before the Supreme Court of Canada, the Canadian Bar Association argued that judges should be able to consider less extreme measures than mandatory minimum sentences, and called for the adoption of a “safety valve” for offences other than murder.

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Obiter of the day

By National April 14, 2015 14 April 2015

From last week’s Federal Court of Appeal ruling allowing a class action by a group of beekeepers to move forward against federal authorities.  The case relates to alleged damages arising from a ban on the importation of American honeybees (something to do with protecting Canadian bees from certain pests). 

The difference between private parties and public authorities matters not. For reasons never explained, Canadian courts have followed the same analytical framework for each: we examine the duty of care, standard of care, remoteness, proximity, foreseeability, causation and damages.

To make this analytical framework suitable for determining the liability of public authorities, courts have tried gamely to adapt it. And then, dissatisfied with the adaptations, they have adapted the adaptations, and then have adapted them even more, to no good end.

Hat tip: Paul Daly (who has a must-read write-up on the decision)

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Legal headlines April 14, 2015

By National April 14, 2015 14 April 2015

Here is a roundup of today’s legal headlines:

Supreme Court quashes mandatory minimum sentences for gun crimes

Bill C-51: Thousands in fees levied for anti-terror bill constitutionality memos

Your old job skeletons can come back to haunt you

Former Blackwater security guards get lengthy jail terms over Iraqi deaths

PEI denies breach of contract, conspiracy claims in eGaming lawsuit

Kim Dotcom Megaupload case falters over sharing Canadian data

Analysis: Mulcair's 'Dutch disease' diagnosis was poor politics, but sound economics

Anti-vaccination parents could be denied government benefits in Australia

CBSA loses case to protect identity of undercover officer

Duffy’s expense claims included framing of family photos, court hears

Tennessee high court suspends four executions

SEC investigating sale of complex, risky securities to mom-and-pop investors -official

Paul Reiss chief argues against short term financial gain

Washington State opens door to legal technicians as law firm owners

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