The Power of Perspectives

The Canadian Bar Association

National Blog

The 'Safe harbour' data ruling

By National October 7 2015 7 October 2015

    Following this week’s Schrems data ruling by Court of Justice of the European Union, Derek Scally explains what it means for the Safe Harbour arrangement between the U.S. and the EU:

    If you knew a harbour was unsafe, would you anchor your boat there? Probably not.

    If the harbour authorities knew of safety issues yet kept silent and refused to act, are they liable if your boat was damaged, washed away or even stolen? Yes.

    That is the essence of Tuesday’s ruling by Europe’s highest court. The European Court of Justice has ruled that Europe’s Safe Harbour regulations are invalid and criticised the EU for sitting on its hands. It has also ordered Ireland to pull its socks up.

    The thing about Safe Harbour is that it has nothing to do with boats and everything to do with your smartphone.

    Even when it’s in your pocket, your smartphone produces endless flows of invisible data. This data is covered by EU data protection laws and the bloc’s fundamental right to privacy, even when it is exported to the US under the Safe Harbour provisions.

    The ECJ found the European Commission executive had failed its citizens by allowing the 15-year fantasy of Safe Harbour to persist, a virtual reality that allowed US companies fill in a website form and promise to meet EU data standards.

    The ruling shouldn’t come as a surprise to anyone, writes Anya Proops:

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    Youth justice and the rights of girls

    By Rebecca Bromwich October 7 2015 7 October 2015

      Observing popular culture it’s encouraging to witness the growing trend in mainstream conversations around empowerment of girls, from Beyonce Knowles singing “Who run the world? Girls” to Katniss Everdeen of the popular Hunger Games franchise “catching fire” and asking all to “join the revolution.” In response to the Ashley Madison scandal, and specifically the revelation that disgraced “19 Kids and Counting” star Josh Duggar was one of the site’s users, religious-right “mommy blogger” Jessica Kirkland authored a lengthy post about the need for change and challenge to gender roles in America, concluding with the statement: “as for my daughters, I’ll raise them to believe they breathe fire.” This post went viral under the widespread use of the hashtag #breathefire.

      And yet, while the notion of empowering girls is woven into the zeitgeist of our cultural moment across the political spectrum, in Canada, youth justice, and criminal justice in general, remain crafted around an assumed male subject.  This should be cause for reflection in the coming days as we mark the 4th International Day of the Girl (October 11th), which aims to recognize girls’ rights and the unique challenges they face around the world.

      The Nunn Commission Report of 2006, which became highly influential in the crafting of 2012 amendments to the Youth Criminal Justice Act, detailed and made recommendations flowing out of, the single case study of a white male Nova Scotia teen whose experience before the Courts epitomized the cynical alternate title given by Crown Prosecutors across Canada to the YCJA: “You Can’t Jail Anyone”, a young man whose reckless driving had killed a woman in his community while he was serving a sentence of probation.  In fairness, the report does not completely ignore girls.

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      Litigating cyber privacy class actions in Canada

      By National October 6 2015 6 October 2015

        Lyndsay Wasser and Rohan Hill have penned an examination of some of the issues raised by the recent Ashley Madison data breach and ensuing storm of class actions. Although the notion of a data breach is well established in our vernacular as a result of predominantly American scandals and litigation, the notion is relatively new to the Canadian legal landscape.

        While the reputational impact of this data breach may, itself, prove to be a significant challenge for Ashley Madison, the breach has also triggered a number of class proceedings both north and south of the border. This may be old news for the United States, since they have seen a myriad of class action lawsuits following cyber attacks in recent years. However, this is a relatively novel case in Canada, where prior privacy-related class actions have centered around cases of lost portable media devices containing sensitive personal information (and other employee errors) as well as employee "snooping" cases. In these earlier cases, the argument could be made that the company should be vicariously liable for the actions and omissions of their employees. However, the concept that an organization should also potentially be held liable for the consequences of being victimized by cyber criminals is relatively new to Canada.

        In August class action proceedings were commenced in Ontario, alleging that Ashley Madison's parent companies Avid Dating and Avid Life are liable to the representative plaintiff and class members for breach of contract, breach of Ontario's Consumer Protection Act, negligence, intrusion upon seclusion, breach of privacy, and publicity given to private life, and it seeks general damages in the amount of $750 million dollars.

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        The Beckman compact: A bridge between the Secession Reference and reconciliation

        By Jennifer Taylor October 6 2015 6 October 2015

          In an earlier post, I linked the Supreme Court of Canada’s Reference re Secession of Quebec to the recently released Truth and Reconciliation Commission report, arguing that the Court will inevitably be called upon to reframe Canada’s constitutional structure in a way that better reconciles the rights and interests of Aboriginal Canadians with those of the Crown and other Canadian communities. When this happens, I suggested, the Court may find inspiration in the Reference. Since then, I have had the chance to revisit Beckman v Little Salmon/Carmacks First Nation, in which the minority judgment drew a similar line between the Reference and the proper constitutional place of Canada’s Aboriginal peoples.

          The reasons of Justice Deschamps, writing for herself and Justice LeBel, may help in bridging the Reference to the TRC, in future negotiations and litigation.

          Beckman is generally cited for Justice Binnie’s majority judgment view that the Crown’s duty to consult exists in addition to, and independent of, the provisions of the modern treaty. In his words: “Consultation can be shaped by agreement of the parties, but the Crown cannot contract out of its duty of honourable dealing with Aboriginal people.”

          Although Deschamps agreed with Binnie that, on the facts, the Crown had not breached its duty to consult, she gave different reasons. Based on Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), she held “that the common law constitutional duty to consult Aboriginal peoples applies to the parties to a treaty only if they have said nothing about consultation” in the relevant context .

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          TPP reactions: What was that about the IP provisions?

          By National October 6 2015 6 October 2015

            Here’s a quick round-up of reactions to yesterday’s announcement of the TPP deal.  There will be surely more to come.  In the meantime, Michael Geist writes that the federal government is underplaying changes to Canada’s copyright laws, in particular the extension of copyright to 70 years for Pacific Rim countries to match the U.S. term:

            Canada also currently has a copyright term of life plus 50 years (as does Japan, Malaysia, and Vietnam among other TPP countries). With the required extension in the term, Canada will be similarly required to extend the term of copyright. This is not a small change as the term extension will keep works out of the public domain in Canada for decades. Interestingly, Canada has not conducted similar economic analysis of the cost of the term extension, but if New Zealand’s estimate is accurate, the cost to the public will easily exceed $100 million per year for a country with a population that is nine times larger.

            The inaccuracies may not be limited to copyright term. The TPP summary supplied by the United States emphasizes strong enforcement, including criminal penalties. Canada does not have criminal penalties for violations of rights management information. Does the TPP require changes to those rules? Does it require additional changes to content blocking as part of the Canadian Internet provider rules? Both provisions appeared in earlier leaked versions of the text.

            Mathew Rimmer adds that the TPP’s IP provisions will only serve to protect entrenched interests:

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            Should voting be mandatory?

            By National October 5 2015 5 October 2015

              Drawing inspiration from Australia, where voting is mandatory, William Galston and E.J. Dionne argue in favour of forcing people to vote:

              The most straightforward argument for near-universal voting is democratic. Ideally, a democracy will take into account the interests and views of all citizens so that its decisions represent the will of the entire people. If some regularly vote while others do not, elected officials are likely to give less weight to the interests and views of non-participants.

              In practice, this might not matter much if non-voters were evenly distributed through the population, so that voters were a microcosm of the people. But that is not the case: in the United States, citizens with lower levels of income and education are less likely to vote, as are young adults11  and recent immigrants.

              In an opinion piece published earlier this year, Andrew Coyne offered a similar line of reasoning:

              When you cast your vote, you aren’t just making a choice about you and your needs. You’re helping to make a collective decision about providing for everybody’s needs. The broader the sample of voters, the more representative of everybody it is likely to be — rather like the census — and the greater the combined stock of experiences and insights brought to bear. Conversely, if some “free ride” on others’ willingness to vote, the whole of the community suffers.

              You owe your fellow citizens your counsel, in other words. You benefit because they vote. You owe them no less in return — just as you owe them your share of the cost of public services. We ask very little of citizens in a democracy. Showing up to vote once every four or five years hardly seems much of an imposition. We’re not talking about throwing anybody in jail: a small fine would suffice, or perhaps a tax credit or some such positive incentive for compliance. You could still decline the ballot, or spoil it, or otherwise register your dissatisfaction with the choices on offer. You just wouldn’t be able to sit on your duff.

              But should a moral duty become an enforceable obligation? Jason Brennan sees other ways to pay one’s debt to society:

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              There’s more to legal automation than technology

              By National October 5 2015 5 October 2015

                A recently published paper co-authored by law professor Frank Pasquale makes the case that the regulatory environment governing the legal profession, as much as technology, will inform how AI brings about legal automation:

                So far, the debate on the likely scope and intensity of legal automation has focused on the degree to which legal tasks are simple or complex. Just as important to the future of the legal profession, however, is the degree of regulation or deregulation likely in the future.

                Situations involving conflicting rights, unique fact patterns, and open-ended laws will likely remain excessively difficult to automate for an extended period of time. Deregulation may, however, effectively strip many persons of their rights and render once-hard cases simple. Consider, for instance, the trend in contract law to permit individuals to give up their right to join class actions, or even seek recourse in a court, via terms of service agreements that almost no consumer actually reads. A robot could dispose of nearly all cases arising in the wake of such agreements, if the only legal issue critical for the vast majority of consumers was whether they had “agreed.” Once the law and fact of consent in such situations are settled, the outcomes are entirely predictable.

                On the other hand, disputes that now seem easy, because one party is so clearly correct as a matter of law, may be rendered hard to automate by new rules that give now-disadvantaged parties new rights. For example, a person in the United States cannot sue Google for automatically putting a 20-year-old bankruptcy action against him as the top result in a search for his name. In Europe, however, the opposite is the case: A newly recognized “right to be forgotten” (better named the “right to be delisted”) gives persons the chance to challenge the inclusion of certain irrelevant, damaging material from such results. This decision realizes the basic principles behind expungement law in the digital age. It also creates new work for attorneys and policy advisors seeking to balance the public right to know against individual rights of privacy and reputational integrity.

                Thus, legal and cultural change can render once contestable disputes essentially automatable, and can also render once automatically resolved disputes open to new levels of contestation.

                William Davis also looks to the innately human nature of certain transactions:

                Ultimately, the extent of legal automation will be closely connected to the perceived value-add in the legal industry. If it is to act as brokers in negotiations around truth, fairness or any “emotionally significant” transaction then some humanistic element seems imperative—and computers are still a long way away from measuring the ethical intricacies of all the discrete factors in such negotiations. If they are performing legally-approved but otherwise predictable transactions, however, then computers are on their way as fast as people can make money by putting them there.

                Photo licensed under Creative Commons by ** RCB **

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                Duty to consult gets another day in court

                By Kim Covert October 1 2015 1 October 2015

                  Fifteen months after Ottawa granted its approval for construction of the Northern Gateway pipeline, eight B.C. First Nations are appearing in Federal Court in Vancouver today to have that approval revoked.

                  The approval for the pipeline came with 209 conditions attached, but critics have argued that the environmental assessment process was flawed and that stakeholders who might oppose the project were not given an equal hearing. Pete Erickson, a hereditary chief with the Nak’azdli First Nation, told the Globe and Mail that while Enbridge was given days to present its case to the Joint Review Panel, he got 10 minutes to speak for his people.

                  “We’ve said that under no circumstances is the pipeline ever going to be allowed in the current presentation,” he said. “We’ve decided that there’s no way we can allow it and I believe that the court will recognize that we have the right to say that.”

                  The $7-billion pipeline would carry bitumen from Alberta’s oilsands to the B.C. coast.

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                  Volkswagen scandal: Where were the lawyers?

                  By National October 1 2015 1 October 2015

                    Many questions have yet to be answered in the wake of the Volkswagen emissions testing scandal, and of particular concern to the legal community is the one posed by David Mowry: where were the lawyers?

                    I am not shocked that shenanigans go on in the business world. I am shocked that such shenanigans often go to the highest offices in the business world, in this case the former CEO of VW Europe. He apparently knew that his company rigged emissions testing equipment on their diesel automobiles. He knew it, and either didn’t care to stop it, or was frightened of the implications. There lies the rub for us as counsel, being frightened of implications. We, as inside counsel, have the duty to our clients (the corporations for which we work) to recommend against, avoid, and sometimes report — shenanigans. These usually appear before me as small potatoes type stuff, someone wants me to play wordsmith with some term or condition in order to achieve a sales goal. They also usually smell like day old fish, and I can root them out for what they are, and inform the requestor that such and such may not be a good idea. Luckily, we have sufficient controls in place, so that even if the person were to go ahead an attempt to pass off changes without my approval, they’d be caught somewhere in our processes.

                    Indeed, scandals such as this one raise important – if oft-ignored – questions ethics and professional duties. However, not everyone shares Mowry’s faith in effective counsel. Alice Wooley comes down much harder on the lawyers:

                    The ability of lawyers to prevent Volkswagen’s misconduct requires, though, that the company actually ask the lawyers for advice, which it is not obvious that they would have given the pretty clearly unlawful nature of what they did. It also requires that, when asked for their advice, the lawyers be willing to speak truth to power. To tell people at the company on which they economically depend – either as external counsel or in-house – and with whom they may have personal relations, that what they are doing is clearly wrong. And then – if their advice is ignored – to commit the social and professional solecism of calling out wrongdoing by their colleagues and, perhaps, their friends.

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                    Shifting sands in the litigation market

                    By National October 1 2015 1 October 2015

                      Gabe Friedman reports on a Citi Bank analyst who has flagged a “fundamental shift” in the American litigation market – one that will surely be felt north of the border.

                      [Gretta] Rusanow said Citi collects data from dozens of law firms and found two important trends: First, she said there’s been less work available with the number of billable hours for litigation experiencing a persistent decline. Secondly, there’s increased pricing pressure, with many law firms cutting their rates or offering discounts in order to retain more litigation, which has exacerbated law firms’ ability to collect revenue, according to Rusanow.

                      Looking deeper at why there’s less billable hours at law firms, she said her clients attribute the decline to a shift in attitude at major corporations, who have less appetite to litigate and are more willing to try alternative dispute resolution and engage in early settlement discussions. Also, corporate law departments are managing their expenses, by keeping more matters in house, and also sending more matters to low-cost service providers, such as offshore document review companies.

                      But, as Friedman notes, none of this should be taken to mean that litigation itself is declining; rather, the way in which litigation services are offered, as well as the kinds of cases that are litigated, are both witnessing important changes.

                      [I]n May, Norton Rose Fulbright released a survey of more than 800 in house counsel between late 2014 and early 2015 that found litigation spend is increasing.

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                      Of mice and pen

                      By Michael Motala September 30 2015 30 September 2015

                        For at least as long as The Paper Chase has been a element of our popular imagination, it seems there have been two dominant features of the first year law school curriculum: the case book and the Socratic method. Does this signature pedagogical approach really teach first-year students to “think like a lawyer”? Or is it an ineffective and antiquated form of teaching? Might it even be, as critics suggest, an “infantilizing […] tactic for promoting hostility and competition among students” that is “self-serving, and destructive of positive ideological values?”

                        Little did I realize the first semester of contracts, criminal law and torts was at once the debut of the methodology as well as its pedagogical zenith. As soon as I had adjusted to the pace of question-and-answer based on hypothetical or case, by second semester, it seemed to diminish in discursive quality. Partly to blame are the students—exhausted by overwhelming readings and assignments, falling behind in the library, and distracted by Facebook and the daily news while in class. There are also the “gunners” who dominate the question-and-answer, evidently prepared, drowning out the rest, and certain to elicit schadenfreude among their peers when they inevitably blunder. Everyone knows the quiet ones do the best on exams anyway.

                        Equally, professors are to blame. Some have the charisma needed to capture and sustain a class’ attention and stimulate discussion, however ill-prepared or overworked its participants. Others retreat to a lecture-style dictation of slides or prepared remarks with no such bravado. Yet the popular discourse tends to eclipse the contribution of the teacher, foisting blame on the hazards of new technology for a lacklustre classroom experience.

                        Professors across the country are banning laptops in the classroom because of the supposed pedagogical benefits. But is the pen indeed mightier than the keyboard?

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                        Citizenship now comes with a caveat

                        By Kim Covert September 29 2015 29 September 2015

                          At the end of May, measures came into force that allow the government to strip away the Canadian citizenship of terrorists and others who hold two passports.

                          The government has notified a half-dozen people that it intends to revoke their citizenship, and last week it accomplished that intention for the first time, rendering so-called “Toronto-18” ringleader Zakaria Amara un-Canadian. Amara is currently serving a life sentence for his part in a foiled 2006 plot to detonate truck bombs in downtown Toronto.

                          There’s no question that revoking a terrorist’s citizenship was a popular act among some Canadians. There is a sort of morally righteous legitimacy to that stance.

                          The legal point is less popular.

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