Legal Insights & Practice Trends

The Canadian Bar Association
Criminal law

Crowdfunding justice

By Justin Ling May 21, 2015 21 May 2015

Michael Spratt is testing two theories: can the government retroactively extend how long a person must wait for a pardon, and will people pay to find out?

Spratt is a partner at Abergel Goldstein & Partners, and he’s trying to crowd-fund a constitutional challenge for one of his clients. Michael Charron — his client – confessed to trafficking cocaine in 2008. He was, himself, an addict, and was dealing to feed his habit. He accidentally tried to sell to an undercover police officer.

Charron confessed to the crime, took responsibility for his actions, and underwent addiction counseling. He cleaned up, and went back to school. He was counting on applying for a pardon after his life was adequately patched up.

But in March 2012, the Conservative Government introduced Bill C-10. It was their omnibus justice bill that upended many aspects of the criminal justice system. One of the biggest changes came to the pardon system. In fact, it did away with “pardons” altogether. Bill C-10 introduced the idea of “record suspensions.” More importantly, it means that those with convictions will have to wait longer before they can suppress their criminal conviction.

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Trade

A better ISDS regime

By Yves Faguy May 21, 2015 21 May 2015

Concerns about the investor-state dispute settlement (ISDS) have been making it back into the headlines lately, thanks in part to public pronouncements by the likes of Elizabeth Warren and other critics of the Trans-Pacific Partnership trade deal.  Joseph Stiglitz also recently signed a joint letter with four legal experts to Congress, arguing that  under the best of circumstances, “the threat and expense of ISDS proceedings have forced nations to abandon important public policies.”

In a recent piece, Nathalie Bernasconi-Osterwalder takes note of attempts by states, including Canada, to redefine the rules governing ISDS.  Proposed improvements run the gamut from introducing stronger transparency rules to requiring investors to exhaust local remedies before launching arbitration claims against states.  But reforming the current system at the margins isn’t enough, she writes.  What the world needs is a new process and new mechanisms involving more stakeholders:

A new mechanism could ensure not only broad access to justice and the ability to resolve disputes between different stakeholders, but its functions could also be more designed. For example, it could set up a wider range of “services,” such as mediation and conciliation. Mediation would differ from what is currently referenced in some investment treaties, which typically foresee mediation between the state and the investor. A new mechanism could propose a mediation process involving a wider range of stakeholders, including communities affected by the investment, for instance. Beyond mediation, a newly created mechanism could also incorporate an investigation and fact-finding function, inspired by existing processes such as the inspection panels known in some of the development banks.

An investment dispute resolution facility would not necessarily have to be linked to a certain body of substantive law. Like at the ICJ, jurisdiction could be based on a specific agreement amongst all the parties involved to submit a given dispute to the international dispute resolution facility. Unlike at the ICJ, personal jurisdiction could be broader and based on agreement to resolve a dispute among states, investors, individuals, local communities and other interested groups. In addition, jurisdiction could be based on a treaty, contract or other instrument. Instruments such as investment contracts and treaties, community development agreements, or any future binding instrument on business and human rights, for instance, could refer disputes to such a dispute resolution facility.

Photo licensed under Creative Commons by Backbone Campaign

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Is it a crime?

Aussie police accuse Nickelback of ‘crimes against music’

By Kim Covert May 21, 2015 21 May 2015

Any defence litigators out there brave enough to take this one on? The accused can probably pay…

Police in Queensland, Australia, put out a BOLO (be on the lookout) notice on the Canadian rock band Nickelback, currently touring the country, accusing them of “crimes against music.”

A crime against music is hard to prove – particularly given what you may perceive to be a wealth of offenders, depending on your taste.

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Trade

"Slagging off the Canadians using derogatory terms"

By National May 20, 2015 20 May 2015

This is quite an (entertaining) exchange from question period in New Zealand's Parliament over comments the country's trade minister's made during negotiations on the proposed Trans-Pacific Partnership comparing Canada's dairy industry to something one would see "in the former Soviet Union."

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Blog

Ireland, privacy haven

By National May 19, 2015 19 May 2015

Ireland used to attract tech companies to its shores by setting itself up as “tax haven” of sorts.  There is now another reason to set up shop there: Online privacy protection.

Henceforth, Twitter will be handling its users’ account information and grievances under Irish privacy lawsApple has also announced its intention to build two datacenters in Ireland and Denmark, expected to be operational in 2017.  And the file transfer site Dropbox has moved it user accounts outside of North America to the Emerald Isle.

All these moves come at a time when the future of U.S.-EU Safe Harbor Program – the mechanism intended to ease the transfer of personal data between the EU and the US – is very much in doubt on account of growing concern, in the wake of the Snowdon revelation, that the arrangement doesn’t offer adequate privacy protection to EU data. Negotiations between the EU and the US are currently underway for a new deal on data-sharing agreement. And next month, the Advocate General of the ECJ is set to publish his opinion on preventing data transfers to the US.

In the meantime, Mike Masnick offers two reasons why tech companies are flocking to Ireland in particular:

First: Ireland is also seen as having some of the most company-friendly privacy laws in the EU, though those are also coming under some amount of scrutiny. But, at the same time, by claiming that users are now under the Irish company, it gives Twitter and Dropbox at least some power to try to say no to US government requests for information. So, depending on if you're more afraid of government intrusions in your data than corporate intrusions (as I am), then these moves are probably good for your privacy.

Photo licensed under Creative Commons by j0sh (www.pixael.com)

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Blog

Field notes: Immigration law's LMIA nightmare

By Kim Covert May 19, 2015 19 May 2015

Filed under “If you thought you were having a bad day.”

If you’re an immigration lawyer, then LMIA is a four-letter word.

LMIA stands for Labour Market Impact Assessment and it’s a key part of the Express Entry System which came into effect in January. Under the system, employers offer permanent jobs to foreign workers who can then immigrate to Canada as skilled workers.

At a session on the LMIA at the recent CBA National Immigration Law Conference, civil servants who administer the program acknowledged lawyers’ difficulties by saying, “At the end of the session we’ll have time for questions, and hopefully we’ll have answers – if not, we’ll have sympathy for your level of frustration.”

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Blog

The perils of floating a law firm

By National May 19, 2015 19 May 2015

In the wake of Gately’s announcement that it plans to go public, Kevin Reed reminds us of some lessons learned from the many accountancies who were seduced by the lure of outside investment, but were unable to ensure sustainable growth:

Being listed places you under the gaze of shareholders, and involves lots of public reporting. In other words, the potential for dirty linen to be washed in public. Professional services firms are 'people businesses', and negative attention makes life a lot tougher on retention and recruitment.

External shareholders and investors want to see that share price tick up and up. As such, this puts pressure on the firm to operate in shorter timeframes.

And finally, just for good measure, converting partners into a directorship is fraught with difficulties. And this is the crux: can the firm keep up its 'partner' remuneration when another layer of shareholders and dividend receivers has been lobbed on top of them? A problem exacerbated if the share price drops - the equity value for those within the firm also falls. And who makes the decisions? Such a move makes it hard to remain collegiate.

Of course there is already an example out there of a successful law firm listing: Australia’s Slater & Gordon, a large personal injury firm, was the first in the world to go public. It’s been on an acquisition spree ever since.

But it is nonetheless striking how timid law firms in England and Australia have been about going public.  Reed’s point about adding an extra layer of shareholders is no small matter, particularly for firms operating in multiple jurisdictions, notably those that that have yet to embrace ABS as a new model of legal practice.

Photo licensed under Creative Commons by Tax Credits

 

 

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The practice

Alternative fee arrangements

By Becky Rynor May 15, 2015 15 May 2015

Alternative fee arrangements

Barbara Hendrickson was ahead of the pack when she founded BAX Securities Law in Toronto in 2012 and started offering alternative fee structures from day one.

“But I have to say it’s been pretty painful,” admits Hendrickson, a former chair of the CBA’s Business Law Section. “I have this process, especially if it’s a new client. I started off by doing an assessment. I would spend a few hours with the client about what work they had to be done, I would come up with a work plan, give a fee estimate and then I would start. The problem is, that takes a lot of time and sometimes I give a fee estimate and then they might not retain me – but they’ve got a really good roadmap of how to close their transaction. Secondly, invariably, something changes. So it’s been a real skill coming up with an estimate with the appropriate limitations in it so I don’t get stuck.”

She figures alternative fee structures are the way of the law profession’s future.

“This whole concept of how we provide a product is changing because of the economy,” she says.  “I personally would rather stick with hourly. I’m hard-wired that way. I manage my whole day around the hour, how much I can bill. But people … see the hourly rate and they think that somehow in the fixed fee they don’t have to pay as much.”

The billable hour may still be the top fee model, but it is defini

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Privacy

In the public space there is no privacy

By Kim Covert May 14, 2015 14 May 2015

Most of us mind our Ps and Qs in the workplace – no matter how bad our mood we don’t shout obscenities at co-workers or say insubordinate things during arguments with the boss. If we’re upset and smart, we save our spite and vitriol for private conversations with trusted friends and/or colleagues.

But these days “private” has to mean more than just "not in the workplace" – it also means not in a place where one may be photographed or recorded by any onlooker with a smartphone; not on Facebook or Twitter; and definitely not with someone likely to put it on Facebook or Twitter or whatever the social media flavour of the day might be.

Essentially it means, in the words of employment lawyer Howard Levitt, “There is no privacy.”

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Anti-terrorism

Financing terrorism

By Justin Ling May 14, 2015 14 May 2015

Is Canada doing enough to combat funding for international terrorist organizations? That’s a question that is perplexing lawyers and bureaucrats alike.

Renewed focus on the issue, thanks to the resurgence of groups like ISIS, al-Qaeda and Boko Haram, is placing scrutiny on Canada’s original laws and strategies crafted to combat the flow of money from Canadian institutions into the hands of terrorist groups.

Christine Duhaime, who runs her own firm and specializes on money laundering and terrorism financing, was critical of the government’s efforts when she testified before a Senate committee studying Bill C-51.

“Are counter-terrorism financing efforts working? The answer is a resounding no,” she said. Duhaime laid out three ways that international terrorist groups like ISIS continue to receive international money, especially from places like Canada — radicalized supporters take cash and valuables with them when they flee the country, en route to Iraq or Syria; Westerners who travel abroad to fight take advantage of one of Iraq or Syria’s litany of functional ATMs; or sympathetic Westerners find secretive and elusive ways to send money transfers to fighters overseas.

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Criminal law

Omar Khadr and legal labels

By National May 14, 2015 14 May 2015

With the Supreme Court set to rule on the federal government’s attempt to have Omar Khadr declared an adult offender, Maureen Duffy revisits the legal labels “convicted terrorist” and “convicted war criminal” so often attached to Khadr’s name:

It is arguable that Khadr is not a “convicted” anything. The problems with the way Khadr was treated date back to 2002, in a virtually unbroken chain, so they are extensive, but well documented. The many problems with each step of his proceeding have been seriously critiqued as undermining the legitimacy of any ultimate “conviction.”

For example, there is the over-arching problem with the notorious Guantanamo Bay prison, which the U.S. uses to warehouse people it accuses of terrorism, but is unwilling to try before a legitimate court, established under Article III of the U.S. Constitution. The prison has been widely denounced for egregious human-rights violations, and it has been referred to as a “legal black hole.”

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Equal justice

Takeaways from the ABA Equal Justice Conference

By Sarah Lugtig May 13, 2015 13 May 2015

As a “newbie” at the American Bar Association’s Equal Justice Conference last week in Austin, Texas, I was blown away by the ideas, energy and innovation that flowed at each session. Anyone who works on — or cares about — closing the Justice Gap in Canada should aim to attend next year’s conference in Chicago. While the important “takeaways” from the conference are too many to list here, here are a few of my top picks:

  1. “Data” and “metrics” are more than buzz words. They are playing a key part in justice innovation. Plus, measuring success can be relatively simple and straightforward. The New York State Courts Access to Justice Program adds a voluntary survey to their DIY forms. These are an on-line form filling system, based on A2J Author, a software tool for self-represented litigants that is designed to be user-friendly. People can either use the program at home or come to a kiosk at the courthouse, where staff help is also available. Early survey results reported at the Conference by Rochelle Klempner, Chief Counsel to the A2J Program, showed that 99 per cent of users found the system easy to understand and 97 per cent would use the system again. 

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