April 21, 2017
21 April 2017
Much has already been made of the Liberal government’s pledge to legalize marijuana, and parliamentary debate has yet to even begin.
But one element of the massive legislative effort that has received less scrutiny is a pledge to implement mandatory roadside tests for intoxication — the common breathalyzer test for alcohol, and the still-unproven oral swab test for THC, the psychoactive component in marijuana.
Bill C-46, the legislation updating the Criminal Code’s impaired driving sections, reads that a police officer may, in their “lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law … by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath.”
April 20, 2017
20 April 2017
The last few months have seen a great deal of activity before the courts on the issue of corporate responsibility. Plaintiffs are struggling to find different legal avenues to attribute legal responsibility between related companies. Two recent cases that have dealt with this issue are Yaiguaje v. Chevron Corporation and Garcia v. Tahoe Resources Inc. The former involves the piercing of the corporate veil, and the latter, the attribution of liability from a subsidiary to a parent company under tort law.
These cases are anchored on legal theories that are not responsive to a new modern corporate reality, where related companies act in concert as a group of companies, yet are allowed to enjoy limited liability. The challenge for the courts will be to find a legal theory that allows companies to act as legally distinct entities, and yet be accountable for the actions of related companies operating within a group of companies in certain circumstances.
April 19, 2017
19 April 2017
Lisa Silver has an interesting post up with some ideas on modernizing the Criminal Code. She welcomes the repeal of invalid “zombie” provisions that the government is looking to remove, but is less impressed with recently proposed amendments to the impaired driving offences – “Charter unfriendly”, in her view – that are part of the government’s move to legalize pot by next year. She laments that the government is taking a piecemeal approach to the Code’s modernization and makes a pitch for a grander makeover:
What needs to be done instead of modernization for the sake of modernizing is a thoughtful and deliberate consideration of the whole of the Code. What needs to be done is a rethinking of our criminal law not as a jumble of sections prohibited conduct but as a unified reflection of societal values. This includes all of what the criminal law stands for such as the integrity of the administration of justice itself. This requires, as suggested by the Supreme Court of Canada in Jordan, a cultural change. Not just a “new look” but a different perspective. To do this, instead of taking a page from the Code, let’s learn from our case law and use the principled or contextual approach to change. Real change is only possible if we design laws holistically mindful of the law as a mere part of the larger social fabric. Laws can act as visual markers, creating and defining social space in a community. Successful laws will therefore integrate with society, be flexible to societal needs and frame societal space. The Criminal Code must therefore be considered as part of the social landscape and be created as a marker of who we are, not as a headstone marking the past. The federal government has an opportunity to do this, let’s hope that in the next step to rethinking the Criminal Code, they will fulfill their promise and do just that.
April 19, 2017
19 April 2017
Nearly 49 years after then-prime minister Pierre Trudeau introduced the Official Languages Act in the House of Commons, and 48 years since it became law, the federal government is preparing to develop another action plan on official languages.
The CBA has gone on record as strongly encouraging the government to include improved access to justice in both official languages as part of its calculations.
From law school to professional development, there’s no shortage of ways to teach a lawyer about the practice of law. And as the profession changes, there’s always new skills to learn. Today, the ability to think and work strategically is increasingly important – and the Canadian Corporate Counsel Association has created a program to deliver that training to the profession.
The CCCA’s Business Leadership Program for In-House Counsel (BLPIHC), taught in collaboration with the University of Toronto’s Rotman School of Management faculty covers useful skills such as communication within organizations, corporate and organizational dynamics and management and leadership.
April 18, 2017
18 April 2017
Omar Ha-Redeye struggles to understand why anyone would take on mandatory CPD imposed by his law society as something worthy of a challenge all the way to the Supreme Court of Canada (in Green v Law Society of Manitoba, the top court ruled that law societies can suspend lawyers for not completing their mandatory credits)
Aside from the fact that he was being compelled to do it, I'm not exactly sure what the lawyer was objecting to with mandatory CPD. Granted, many lawyers simply complete it to check off a box. But many more actually benefit from CPD, gaining useful insight into strategy and techniques, obtaining copies of checklists and precedents, or learning about new and emerging areas of law.
Jim Middlemiss thinks he’s missing the broader point:
April 18, 2017
18 April 2017
In March, governments in India and New Zealand independently extended personhood rights to rivers, making them the first jurisdictions in the world to do so. Is it possible that Canada could follow suit? Likely not in the foreseeable future. Not that it’s impossible. The Canada Business Corporations Act grants corporations the rights and privileges of a natural person. But we have yet to have a serious debate in this country as to whether these rights should be extended to components of the environment, such as rivers and forests, as there is little political will among federal and provincial leaders.
April 18, 2017
18 April 2017
As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National is featuring opinions by leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ recent conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Howard Kislowicz, an assistant professor at UNB Fredericton Faculty of Law, who shares his views on where litigation of religious freedoms may be headed in the coming years.
CBA National: Why are religious freedoms so difficult to balance against other rights recognized under the Charter?
Howard Kislowicz: Well the main challenge is that the Supreme Court of Canada has said that there’s no hierarchy of rights in the Charter. So there’s no presumption that when an equality right comes into conflict with a religious freedom right that one or the other will win. The lawyers advising clients can’t give necessarily too sound a prediction just based on the nature of the right. Like all constitutional analysis now, context is everything.
N: So where do the tensions lie within religious rights themselves?
HK: First, you have to read the Charter guarantee in conjunction with other mentions or constitutional protections of religious rights in the constitution. The most obvious one is in the 1867 Constitution Act which gave protection to minority religious communities in terms of having their schooling rights protected. What it generally meant was that in Quebec, Protestant schools would get constitutional protection in most of the province, and then in the other provinces, Catholic schools would get protection. So this idea that Canada is Catholic and Protestant in its constituent parts, is in tension with the more universalistic, more non-denominational guarantees of religious freedom, which are supposed to apply to everybody, regardless of whether they’re one of those two founding groups.
April 13, 2017
13 April 2017
As of mid-December 2016, reports say about 745 terminally ill people had taken advantage of medical assistance in dying, which became the law when Bill C-14 received royal assent six months earlier.
That this figure is based on information volunteered by – and not required of – the provinces, and not on hard, readily available data is an issue behind the CBA End of Life Working Group’s letter to Health Minister Jane Philpott in March asking that the government get moving on the “monitoring system to collect and analyze data on the provision of medical assistance in dying” which it has itself identified as a “critical component” of the new regime and as “essential to foster transparency and public trust in the system.”
April 12, 2017
12 April 2017
Ever since the Supreme Court put a hard cap on trial delays, and the subsequent slew of stays of proceedings in a variety of high-profile cases, there’s been a spirited debate over where to point the finger: At the top court for fumbling the file? At Ottawa, for its lackadaisical response? Or at the Crown, for failing to prioritize serious offences?
The finger pointing has correlated with a rise in attention over the impact of R. v. Jordan, the case that led the supreme justices to shoulder the prosecution with an obligation to conclude the trial within 18 months, 30 for serious offences, barring certain circumstances.
A high-profile case in Montreal is the most recent one to shine the light, where the prosecution of a man accused of brutally murdering his wife was stayed because it passed the 30 month ceiling — a delay caused largely by the prosecution’s push to upgrade second-degree charges to first-degree, contended the accused’s counsel, Joseph La Leggia.
Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our regular round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.
First, a glance at what’s happening across the pond. Five years after obtaining its ABS licence, among the first in England, and a difficult start, Co-operative Legal Services is now making real profits.
Signalling a possible trend toward outsourcing in-house legal services, PwC has recently snapped up half of GE’s tax department – including 600 of its lawyers -- as part of a five-year deal to provide tax services to the conglomerate.
Also supporting the trend, international law firm Pinsent Masons has taken a 20 per cent stake in New Law start-up Yuzu.
Alexandra Wrage receives more than a few calls from nervous CEOs these days.
They’re worried about dinner invitations to foreign officials. They’ve budgeted $200 for a meal—but when a large entourage arrives and orders expensive wines, the bill climbs to $1,000 or more. They want to know: Are we guilty of corruption? Bribery?
These dinner dates aren’t like handing over briefcases filled with money. But it’s an issue, Wrage says, that will keep executives up at night worrying about the consequences of possible wrongdoing.
How times have changed since November 2001, when Wrage founded TRACE International Inc. with the goal of making it easier and less expensive for companies to avoid corruption.