Legal Insights & Practice Trends

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Justice is in the eye of the beholder

By Kim Covert
October 30, 2014 at 15:33PM Le 30 October 2014 à 15:33PM

If you are a victim of a certain crime, a study out of New York University’s psychology department suggests you will be more ready to deal out a harsh punishment to the person who did it to you if you see him do it to someone else.

The victims in the NYU study would rather be compensated for their loss in a non-violent crime than bring the scales of justice down on the offender.

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Warrants for overseas investigations

By Yves Faguy
October 29, 2014 at 15:06PM Le 29 October 2014 à 15:06PM

Craig Forcese, who was quoted in our recent coverage of the new anti-terrorist bill, zeroes in on the bill’s extraterritorial aspects, citing a 2008 Federal Court decision that held that the court had no authority to issue a surveillance warrant targeting Canadians overseas:

The more interesting change is in the amendments to s.21.  These would permit CSIS to seek and obtain a warrant from the Federal Court for overseas investigations.  And "[w]ithout regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada."

This reverses the other aspect of Blanchard J's decision: his refusal to authorize a warrant where to do so might violate international law (namely, the sovereignty of another country).  After all, what we are really talking about with covert surveillance, some of which may be so covert the territorial state is unaware of it.  And that may violate that foreign state's law, and by extension is sovereignty.  The latter would violate international law.

Now we need to be clear (because I am hearing strange things on this): in our constitutional system, Parliament is absolutely and without any doubt able to legislate in violation of international law, so long as the principle at issue isn't also a principle of our constitutional law.  A prohibition on violating the state sovereignty of another state is not a Canadian constitutional law principle.

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Widening the scope of the budgetary process

By Kim Covert
October 28, 2014 at 15:39PM Le 28 October 2014 à 15:39PM

The Conservative government’s latest budgetary implementation bill once again contains many not-strictly budgetary items. Here are a few tidbits:

  • At 458 pages, Bill C-43, “A second Act to implement certain provisions of the budget tabled in Parliament on February 11, 2014 and other measures,” is roughly half the size of the government’s 880-page omnibus bill in 2010.
  • It contains amendments to about 35 pieces of legislation, including the Bank of Canada Act, the Judges Act, the Public Health Agency of Canada Act, the Access to Information Act and the Industrial Design Act.

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Reactions to the Ghomeshi dismissal

By Yves Faguy
October 27, 2014 at 15:33PM Le 27 October 2014 à 15:33PM

The CBC-Jian Ghomeshi story has yet to fully play out, and it will likely take some time before we get a clear enough picture. So yes, it’s best not to jump to any premature conclusions, obviously. That said, there is plenty in the allegations being thrown about to interest lawyers – including privacy issues, dismissal, discrimination and harassment in the workplace and the meaning of non-consensual sex.  So here’s a quick round-up of commentary.

Brenda Cossman runs through a couple of hypothetical scenarios and posits that the BDSM angle is problematic for Ghomeshi:

But, when it comes to BDSM – or at least its more intense versions – the law doesn’t actually care about consent. The Supreme Court has said that a person cannot consent to assault. While the cases have typically arisen in the context of bar room brawls or hockey violence, other courts have applied the same reasoning to the sexual context. So, if a sexual activity causes bodily harm, a person cannot consent to it.

This is pretty problematic from the perspective of the BDSM community. Carefully negotiated consent is rendered irrelevant, and effectively criminalizes all those who derive sexual pleasure from activities that involve physical pain, if it leaves a mark. But, it’s the law.

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Administration of justice: Who is responsible for technology?

By CBA Futures
October 27, 2014 at 14:17PM Le 27 October 2014 à 14:17PM

(By Amir Tajkarimi)

In September, at the Opening of the Courts, a very similar speech was given by the Chief Justices of Quebec and Ontario to their respective audiences. Unknowingly in tune, the highest ranking provincial judges of both provinces deplored the heavy, inaccessible and saturated court system.

Chief Justices Nicole Duval Hesler, François Rolland and Élizabeth Corte pleaded for the augmentation of judicial staff. But more importantly, they came to the conclusion that despite the current efforts to use staff more efficiently, the court system can simply not satisfy the increasingly high demand. Thus, as per Justice Rolland, “[n]ous n’avons plus le choix (...)” (transl: we have no other choice): as a legal community, we have to change our methods and innovate. He underlined that this means moving away from legal formalism and the procedural jousting to which society is a stranger.

Ten days later, the Honourable George R. Strathy, Chief Justice of Ontario, raised concerns about the “cost, complexity and time it takes to complete legal proceedings.”  He encouraged the Courts to consider simplifying, streamlining and making their practice more user-friendly.  And Justice Strathy personally committed to reviewing the Court of Appeal's practices with a view to meeting these goals.  

The issues described above raise an increasingly popular tangent: the digitization of justice.

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