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The Canadian Bar Association

National Blog

Changes to Citizenship Act: Amended Bill C-6 before Senate committee

By Kim Covert February 24 2017 24 February 2017

    Bill C-6, which contains amendments to the Citizenship Act, continues to make its way through Parliament. The CBA’s National Immigration Law Section first appeared in support of its submission on the proposed legislation last May before a House committee; in February, it brought the same submission to a Senate committee.

    Well, almost the same submission. After the CBA appeared in the House, the government made a few tweaks to the bill in response to recommendations from the Immigration Law Section (and others), and the submission was reflected to update those changes.

    The primary objective of Bill C-6 is to “return Canadian citizenship law to its state before the changes introduced by Bill C-24, the Strengthening Canadian Citizenship Act. In 2014, the CBA Section largely opposed the changes introduced by Bill C-24, and so in general we support reversing those changes,” the submission says.

     

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    Why searching phones at the border might violate privacy rights

    By Yves Faguy February 23 2017 23 February 2017

       

      Steven Penney of the University of Alberta has a topical paper out in which he argues that customs searches, without suspicion, of digital data are unreasonable under section 8 of the Canadian Charter. Specifically, he pushes back against the notion upheld by our courts that seizing electronic devices at the border, and demanding to access them with passwords, is justified by border security interests.

      It has become a cliché to say that the law struggles to keep up with technological change. Both police and privacy advocates claim that digitization has put them at a disadvantage. For the most part, however, courts have done a credible job in adapting criminal procedure doctrine both to account for the unique qualities of digital data and networks and to preserve consensus accommodations between privacy and law enforcement.

      Digital customs searches have so far been an exception to this. Reflexive adherence to precedent has led courts to discount the intrusiveness of digital searches and inflate the harms of digital contraband. At customs, searches of digital containers are much more intrusive than searches of physical ones. And they do almost nothing to stop, deter, or regulate the flow of harmful data into Canada. Instead they have become an adjunct to non-border criminal law enforcement, unjustifiably exempt from the civil liberties protections applying in that realm.
       

       

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      Re-regulating of the legal industry, Cont'd

      By Yves Faguy February 23 2017 23 February 2017

         

        On the topic of re-regulation of the legal profession, Kenneth Grady writes that complaining about the slow pace of reform is a "red herring":

        We have what we need to fix the lack of access to civil justice problem. Changing the regulations may make a few things easier and transaction costs could drop. But, the problems we need to solve are independent of the regulatory structure. The barrier to solving the problems is lawyer resistance to change. Fix that problem and changing the regulations will become a side show at best.

        Consider this one example. Solo practitioners argue they have a technological disadvantage. The cost of emerging software is beyond their grasp, either in time to implement or money. The professional responsibility rules prohibit law firms from having owners without law licenses. If we re-regulate, the argument goes, these firms can get access to money and resources through new owners. They can use those investments to bridge the technology gap. We already have a solution. Create a technology business (incorporation costs are trivial). Get investments in the second business which acts as a services business to the law firm. Spread the technology firm’s costs across several small firms. This model, or variations of it, exists.

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        Why traditional firms will want re-regulation of the legal industry

        By Yves Faguy February 20 2017 20 February 2017

           

          Last year, Malcolm Mercer wrote about the various regulatory challenges in the U.S. and Canada with respect to innovation in the provision of legal services. He describes how protectionist pressures have put the breaks on any efforts to involve law societies (and the ABA in the U.S.) in facilitating new ways of providing legal services.  Then, casting an eye to the future, Mercer guesses that, ultimately, regulators will be forced to face the music one way or the other:

          It seems to me inevitable and proper that new ways of providing legal services will be allowed in unserved and underserved areas. Whether Canadian law societies are up to the challenge of allowing this is unclear. But if they don’t, someone else will.

          If encouraging the evolution of the existing practice of law with new forms of capital and expertise is not in the cards, permitting new entrants is the alternative. The question then will be how new entrants should be regulated and by whom.

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          How self-represented litigants view the justice system

          By Yves Faguy February 17 2017 17 February 2017

             

            The National Self-Represented Litigants Project has released its report for 2015-16 tracking trends among the SRL population, including data about income:

            We continue to see the majority of those representing themselves reporting lower income levels below $50,000 with the majority below $30,000. In the latest sampling, 51% state that their income is under $30,000 (in the 2013 Study this figure was 40%, and in the 2014-15 Intake Report it was 45%).

            The next largest group (15%) report annual income of between $50,000- $75,000, followed closely by those reporting income of $30,000-$50,000 (1%). This also closely resembles the data reported in both the 2013 Study and the 2014-15 Intake Report.

            Also consistent with earlier reporting, 8% of respondents (6% in both the 2013 Study and the 2014-15 Intake Report) report earning more than $100,000. As income rises, so does the likelihood that the respondent previously retained a lawyer for this matter. One respondent in this sample group reported having spent more than $100,000 on legal fees before becoming self-represented.

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            Improving the Court Challenges Program

            By Yves Faguy February 16 2017 16 February 2017

               

              Léonid Sirota sizes up the reinstated Court Challenges Program and reiterates his concern that “choosing to fund court litigation based on language and equality rights,” Parliament is in fact saying that it values those right over constitutionally protected rights.

              Nicolas Hay acknowledges the argument, but writes that a well designed program still has merit. He cites the Canadian Human Rights Tribunal case upholding a discrimination complaint against the federal government by failing to provide an adequate level of child welfare on First Nations reserves, as the type of challenge that requires a financing program:

              I wholeheartedly agree: privileging some rights over others can have serious implications for federalism, and a Program that treated all rights equally would be more appropriate.

              The Program is undoubtedly worth saving if it were adjusted to include the changes I have outlined so far: a more accountable selection process; a more robust method of allocating subsidies; and an expansion to include all Charter rights...

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              CBA Board of Directors Elections

              By Mariane Gravelle February 9 2017 9 February 2017

                The CBA wants YOU – to join its board of directors!

                Regular CBA members who want to contribute to the evolution of a more member-centric CBA are encouraged to apply for election to its Board of Directors. Deadline is February 17, 2017.

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                Appeals court to weigh Trump executive order

                By Yves Faguy February 7 2017 7 February 2017

                   

                  The Ninth Circuit Court of Appeals is hearing the challenge to U.S. President Donald Trump’s ban today. He has received plenty of pushback for singling out a a "so-called" federal judge in a tweet for blocking his immigration order.

                  Will Baude considers the difference between executive official criticizing a court’s decision and it criticizing its authority:

                  If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.

                  Yves Boisvert addresses the independence of U.S. courts:

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                  HackJustice: Tech apps that will improve access to justice

                  By Yves Faguy February 6 2017 6 February 2017

                     

                    Over the course of two days, several participants at the MaRS Discovery District and at the Cyberjustice Laboratory at Université de Montréal gathered for Hackjustice, co-sponsored by the CBA, to code and build tech applications that will improve access to justice.

                    “I was truly excited, impressed and amazed by the technologies that our HackJustice participants were able to develop in what amounted to about 10 working hours,” said Nicole Aylwin, assistant director at the Winkler Institute for Dispute Resolution. “It was inspiring to see how conversations about the role of legal technology in improving access to justice helped informed participants creations.”

                    Each participating team was required to choose a challenge and later present their tech solution to panel of judges.  The three challenges were: to develop ways to use social media tools to engage and empower the public in policymaking; to resolve consumer disputes; and to develop tools to help people deal with everyday legal problems.

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                    Dual citizens take note – and your Canadian passport

                    By Kim Covert February 6 2017 6 February 2017


                      If you’re a dual-nationality Canadian who was surprised by the requirement that you have a Canadian passport for travel to Canada over the holidays – well, the CBA’s Immigration Law Section is not surprised at your surprise.

                      In fact, it warned the government in a letter last month that not enough notice had been given to the requirement under the new Electronic Travel Authorization policy that Canadians holding dual citizenship would have to travel on their Canadian passports or risk being denied boarding.

                       

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                      Joe Groia’s incivility dispute heads to the Supreme Court

                      By Yves Faguy February 6 2017 6 February 2017

                         

                        It’s somewhat fitting that it is in these polarized and vitriolic times, where levels of incivility and nastiness seem to have become commonplace – in the media, in politics, on social platforms, in the workplace – that the Supreme Court of Canada has granted leave to hear the appeal by Toronto lawyer Joe Groia. 

                        As a quick recap, in 2011, the Law Society of Upper Canada found that Groia engaged repeatedly in uncivil conduct in the defense of his client, John Felderhof, the chief geologist and central figure of the Bre-X Minerals scandal. At trial, Felderhof was acquitted of all charges. Though the trial judge had never complained to the Law Society about Mr. Groia’s conduct, a disciplinary panel nevertheless found that Groia’s violated professional conduct rules by being rude and lacking respect for the court. Groia saw his licence briefly suspended.

                        Sean Robichaud gives some background, and frames the debate, arguing that advocacy is about “justice, not civility."

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                        Navigating changes to the Navigable Waters Protection Act

                        By Kim Covert February 6 2017 6 February 2017


                          As part of its broader review of environmental and regulatory processes, the federal government is looking at changes to the Navigable Waters Protection Act that came into effect in 2014, and asking the Canadian public for input.

                          “The Government of Canada has promised to review the recent changes to the Navigable Waters Protection Act, restore lost protections and incorporate modern safeguards,” the government says on the consultation website.

                          The CBA’s Maritime Law Section, which responded to the online consultation questions in December, says it does not believe additional protections are needed under the Act.

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