Legal Insights & Practice Trends

The Canadian Bar Association
Anti-terrorism

Travel bans and mobility rights, Cont’d

By National August 28, 2015 28 August 2015

Earlier this month, Justin Ling explored some of the legal issues surrounding the Conservatives’ electoral promise to criminalize travel to designated “hotspots” of terrorist activity, and how it raises questions about constitutionality of such a measure, also discussed by the likes of Kent Roach and Craig Forcese.

But discussing the already noted parallel to an Australian law that came into force last year, Calgary’s Tyler Shandro claims that a travel ban would be constitutional.

But [ss. 7 and 11] of the Charter are exactly the reasons why Harper’s proposal likely will look like the Australian model he quotes, and why the straw men built by the critics are ridiculous.

The Australian model doesn’t allow for the government to prohibit travel to an entire country. Intention to travel to the declared zone knowing it was a declared zone is required. “Legitimate” travel is a defence. Those are not broad, vague or arbitrary provisions.

If declared areas are seen to reverse the onus of the burden of proof (and therefore infringe the presumption of innocence), the government would have to show that this law meets s. 1 of the Charter, which requires:

(a) a pressing and substantial objective; and

(b) that the means must be proportional (that is, the declared areas law would have to be rationally connected to the objective of maintaining security, must minimally impair our rights, and must be proportional).

The Australian model likely meets this test, which means the proposal for declared areas would not be unconstitutional.

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Sharing economy

Civil disobedience in the Age of Uber, Cont'd

By National August 28, 2015 28 August 2015

Following this week’s taxi protest against Uber in Montreal, and earlier hints of openness by Quebec Premier Philippe Couillard to legalizing the rideshare service, La Presse’s Yves Boisvert is gobsmacked at the notion that an “outlaw” business would “generously” offer to pay the province 10 cents a ride:

There is only one approach to take with UberX, and that’s the hard line.

[…]

By my reading, [Quebec’s] Act Respecting Transportation Services by Taxi states very clearly that what Uber does is a taxi service. It is “passenger transportation, for remuneration, by automobile”. And that, my friends, is too bad, but it is subject to a whole set of rules and fee requirements.

There is no legal uncertainty: That is clear, clear, clear. I don’t see why we would start negotiating with a company that wants to circumvent these rules.

[Our translation]

His colleague Patrick Lagacé pushes back:

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Privacy

Accessing subscriber data: Working around the Spencer ruling

By Justin Ling August 28, 2015 28 August 2015

Accessing subscriber data: Working around the Spencer ruling

Many expected that last year’s ruling in R. v. Spencer would close the door on the warrantless requests that Canada’s police departments had grown quite reliant on. Canada’s police chiefs, however, aren’t so sure.

In a resolution adopted at the Canadian Association of Police Chiefs’ annual conference this month, the country’s police brass are calling for “the creation of a reasonable law designed to specifically provide law enforcement the ability to obtain, in real-time or near real-time, basic subscriber information (BSI) from telecommunications providers.”

In Spencer, the Supreme Court ruled against a long-standing practice of police agencies making informal, often undocumented, requests to Canada’s telecommunications providers, to share information on their subscribers.

Police, and lawyers from the Department of Justice, maintained that those requests were merely for that ‘basic subscriber information’ — connecting a name, phone number, and home address to an IP address that had been identified in the course of their investigations.

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Privacy

The right to be forgotten: Privacy or censorship?

By National August 27, 2015 27 August 2015

Back in July, John Simpson, of Consumer Watchdog, lodged a complaint with the Federal Trade Commission, arguing that Google ought to import the ‘right to be forgotten’ into its practices in the United States. The right to be forgotten came into force in Europe in 2014, pursuant to a ruling of the EU Court. In his letter, Simpson noted that.


the Internet giant aggressively and repeatedly holds itself out to users as being deeply committed to privacy. Without a doubt requesting the removal of a search engine link from one’s name to irrelevant data under the Right To Be Forgotten (or Right to Relevancy) is an important privacy option. Though Google claims it is concerned about users’ privacy, it does not offer U.S. users the ability to make this basic request. Describing yourself as championing users’ privacy while not offering a key privacy tool – indeed one offered all across Europe – is deceptive behavior.
 
Not offering Americans a basic privacy tool, while providing it to millions of users across Europe, is also an unfair practice. Acts or practices by a business are unfair under Section 5 of the Federal Trade Commission Act if they cause or are likely to cause substantial injury to consumers that consumers cannot reasonably avoid themselves and that is not outweighed by countervailing benefits to consumers or competition.

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Blog

By any other name: Euphemisms and solitary confinement

By Rebecca Bromwich August 27, 2015 27 August 2015

Recently, there have been several demands to reduce Canada’s use of solitary confinement in custodial facilities. Amnesty International and the United Nations special Rapporteur on Torture have sought to reduce or eliminate the use of segregation for prisoners. Most recently, in August 2015, Ontario’s Advocate for Children and Youth, released a report asking the province to cease holding youths in solitary confinement for periods in excess of 24 hours. At its 2015 Canadian Legal Conference, the CBA itself joined the chorus of voices seeking to limit or ban solitary confinement with a resolution to Council.  These are positive steps towards ameliorating the conditions of inmates in Canada, but, alone, they are not enough.

One of the most appalling illustrations of the use of solitary confinement is the story of Ashley Smith, who died by strangulation at a Canadian correctional facility, while several guards watched, filmed her pursuant to regulations, and, also acting under orders, did not intervene to save her life. Thousands of people have watched the disturbing and powerful video footage of the last moments of her life. Her death led to an inquest with an unprecedented verdict of homicide.

Ashley Smith’s story in some ways recalls that of a fictional character who shares her surname, the protagonist of George Orwell’s 1984,, Winston Smith, who is famously subjected to solitary confinement before his brainwash into “loving Big Brother” at the “Ministry of Love” is complete. The fictional Smith is of course caught in the interlocking political and legal regimes under which he lives, but there is a lot else going wrong.

I am not the first to draw parallels between the two Smiths.  However, most comparisons have focused on arguments opposing or limiting solitary confinement. We should also concern ourselves with the language used by these advocates whose demands are analogous to urging the government to design – or simply rebrand – new programs for the “Ministry of Love”.

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Access to justice

Law societies and access to justice

By National August 26, 2015 26 August 2015

Ken Chasse has penned an article, arguing that one of the root causes of the Canadian access to justice problem is the “obsolescence of the management of the structure of [Canadian] law societies,” and, accordingly, that this structure should be either abolished or restructured.


The re-structured management solution recommended is a combination of: (1) a national institute, providing law societies with the continuing and permanently developing expertise for such difficult problems, as does a civil service provide for an elected government, which is missing from current law society management, being management by “part-time amateurs” (benchers) providing their labor as charity; and, (2) a centralized legal research support service providing at cost to all lawyers and judges in Canada, legal opinions and other online materials.

[…]

All areas of the production of goods and services have made that transition, where there has been sufficient pressure to make it happen, such as the pressure upon all medical services, and that imposed by a highly competitive commercial market. As a result, no doctor’s office provides all treatments and remedies for all patients, as does each law office for each client.

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Environment

Courts and climate change: A Dutch precedent?

By National August 26, 2015 26 August 2015

Diane Saxe and Kirsten Mikadze lay out some of the possible implications for Canadian law of a recent ruling of the Hague District Court, expected to have far-reaching effects, which ordered the Dutch government to reduce the country’s greenhouse gas emissions.

To date, all Canadian courts have ruled that climate change policy is “not justiciable”, i.e. not within their jurisdiction. Challenges to the Canadian government’s approach on climate change have therefore been rejected, including judicial review of the federal government’s failure to comply with the Kyoto Protocol Implementation Act, SC 2007, c 30, and of its decision to withdraw from the Kyoto Protocol.

That said, the time may now be ripe for courts to step in. In the years since these cases were argued, the science has become much clearer and the international consensus stronger: climate change is creating catastrophic risks. Moreover, from extreme weather events to shrinking shorelines, the effects of climate change have become more tangible and more immediate. As the threat builds, and the foreseeable harm multiplies, courts may feel more at ease to demand action.

While it would certainly be an uphill battle, a similar outcome is not unimaginable in Canada.

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Opinion

Our brave new legal world

By Michael Motala August 25, 2015 25 August 2015

“We live in rapidly changing times …” writes Osgoode Hall’s associate dean Trevor Farrow. Ethical questions are “continuously changing as a result of global trends.” The “complexity of today’s world is an issue for all lawyers.”

Needless to say, globalization has been in vogue in the academy for more than a decade, not just in professional circles. So why is there so much talk and so little impact? Why do tuition and licensing fees increase year after year while the access to justice crisis worsens? Why is there an ever-growing gap between the supply of graduates and the availability of jobs? Why do students suffer increasingly from mental health issues under internecine academic competition? Why is there a law school in BC that actively discriminates against LGBT? What accounts for the legal academy’s cultural and institutional inertia in the face of our profession’s—and Canadian society’s—mounting social and economic challenges?

Our profession’s history is intimately connected with the forces of globalization, but not in the frame of reference adopted by most scholars. The definition of globalization is contested, to be sure. But there is common ground in the idea that it entails the spatial transformation of social and economic relationships, increasing flows of activity, interaction and power.

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Our brave new legal world

By Michael Motala August 25, 2015 25 August 2015

Our brave new legal world

“We live in rapidly changing times …” writes Osgoode Hall’s associate dean Trevor Farrow. Ethical questions are “continuously changing as a result of global trends.” The “complexity of today’s world is an issue for all lawyers.”

Needless to say, globalization has been in vogue in the academy for more than a decade, not just in professional circles. So why is there so much talk and so little impact?

Why do tuition and licensing fees increase year after year while the access to justice crisis worsens? Why is there an ever-growing gap between the supply of graduates and the availability of jobs? Why do students suffer increasingly from mental health issues under internecine academic competition? Why is there a law school in BC that actively discriminates against LGBT? What accounts for the legal academy’s cultural and institutional inertia in the face of our profession’s—and Canadian society’s—mounting social and economic challenges?

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Rights

The TWU challenge: A law applied equally to all

By National August 25, 2015 25 August 2015

Trinity Western University is challenging a decision by the Law Society of BC to deny accreditation to its law graduates. Dwight Newman writes that the Law Society of BC is over-reached in rejecting TWU’s law degrees:

The public interest — and this same principle of pluralism, for that matter — would not be served were LGBT students unable to attend law school in Canada. LGBT students who wish to engage in lawful expressions of their sexuality and are thus not able to sign TWU’s covenant will not be able to attend TWU — just like many other students who do not wish to attend TWU’s faith-based school. However, 18 other common-law schools in Canada offer a range of options, many of them with admission preferences for LGBT students as a historically disadvantaged minority. So, the opening of TWU would not have any negative effect on the ability of LGBT students to attend law school.

Equality is a deeply important Canadian value, and British Columbia lawyers who saw themselves as voting for equality no doubt sought to honour this value. But in the process, they treated another minority group unequally and they may well have violated their statutory mandate on the public interest in ways that the courts are now set to determine.

On that point Michael Coren counters that the notion that gay students can apply elsewhere misses the mark:

As much as every Canadian has a right to object to equal marriage, to refuse to attend a same-sex wedding and, in the case of churches, to refuse to hold one, an entirely different equation applies in this case. Trinity Western wants to open a law school where they will educate Canadian lawyers, whose job is to administer and uphold Canadian law. Yet the law of Canada not only approves of same-sex marriage but also includes legislation to protect gay people from discrimination.

Thus the fact that Trinity Western could demand accreditation from various bar associations while openly contradicting the very law that it is asking to teach is, quite frankly, baffling. More than this, while no evangelical is banned from attending a secular law school, even one with numerous gay staff and students, gay men and women are effectively banned from attending this proposed evangelical school. That’s not fair, not Canadian and not the law.

Photo licensed under Creative Commons by Guillaume Paumier

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Trade

Trade: Canada and India growing ever closer

By National August 24, 2015 24 August 2015

Almost four years after negotiations over a Comprehensive Economic Partnership Agreement (CEPA) between India and Canada began, there is hope that a deal could be sealed before the upcoming federal elections.

Almost four years after negotiations over a Comprehensive Economic Partnership Agreement (CEPA) between India and Canada began, there is hope that a deal could be sealed before the upcoming federal elections.

A study of economic ties between Canada and India has assessed the possible benefits and drawback of CEPA between the two nations.

If a truly comprehensive CEPA is implemented, the Canadian sectors that would likely benefit the most are natural resource industries and providers of high-value services (such as finance and education). Consumers and businesses in both countries could enjoy more product variety and lower prices. Canadians would likely face adjustment challenges in some business services and in lower-wage, labour-intensive manufacturing.

While both countries could reap big gains from freer trade, the most promising areas are also the most politically sensitive, which may make a good deal hard to achieve.

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Trade

TPP: Sticking points

By Justin Ling August 21, 2015 21 August 2015

TPP: Sticking points

Negotiations over the Trans-Pacific Partnership may have stalled during their last round of negotiations in early August, but that doesn’t mean lawyers shouldn’t be preparing for the dawn of the TPP in the near future.

It appears that three topics frustrated the talks — agriculture, autos, and pharmaceuticals.

Canada is a big roadblock on all three. For one, its protectionist supply management system for dairy and poultry has long been the bane of export-friendly countries like America and New Zealand.

Then there’s Canada’s automotive industry, which is concerned that the TPP deal could loosen country-of-origin for cars, meaning that cheaply-made Japanese cars, full of Chinese or Thai parts, duty-free — currently, NAFTA keeps cars duty-free, so long as 62.5 per cent of the cars are made of parts from the United States, Mexico, or Canada.

When it comes to pharmaceuticals, the TPP nations are a disparate group.

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