Legal Insights & Practice Trends

The Canadian Bar Association

National Blog

A lawyer's duty of commitment

By National February 25 2015 25 February 2015

    In Canada (Attorney General) v. Federation of Law Societies of Canada, the Supreme Court of Canada recently weigh in on solicitor-client privilege and held that search power provisions in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act were unconstitutional when applied to lawyers. Alice Woolley welcomes the decision but raises some concerns:

    My main issues with the judgment are largely set out above. In essence, the unwillingness of either the majority or concurring reasons to explain whether the retention and recording provisions violate solicitor-client privilege and, if so, how and why, renders the judgment unclear. It is not clear whether there is an independent s. 7 violation from the reporting and retention provisions and on what basis that violation is made out. It is also not clear whether the issue in s. 8 is a risk of over-zealous searching or inevitable violations of privilege because of the information relevant to whether a lawyer has complied with the recording and retention provisions. We do know that the legislation does not adequately respond if solicitor-client privilege is at risk, but we do not know whether that privilege is at risk because an authority is searching in a lawyer’s office, or because of the nature of the documents that the authority would inevitably be looking for to determine compliance with the recording and retention aspects of the legislative scheme. That is not to say that no s. 8 violation occurs here – indeed, on either of these grounds it seems safe to say that it does – but the judgment’s scope and meaning is unclear absent some more thorough explanation.

    The ever-prolific Léonid Sirota also expresses mixed feelings in his analysis:

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    Taking the measurements of law firm success

    By Kim Covert February 24 2015 24 February 2015

      Nothing succeeds like success, they say, but as the authors of a Harvard Business Review article warn, there may likewise be “nothing as vulnerable as entrenched success.” That article was cited by the authors of the 2015 Report on the State of the Legal Market in a discussion of why law firms are so slow to change, even when they acknowledge a need to do so.

      The report, prepared by Georgetown Law and Peer Monitor, describes the situation in the U.S. but many of its findings are easily extrapolated to Canada and in fact reflect what the CBA Legal Futures Initiative has been saying about the need for, and resistance to, change in the legal profession.

      Essentially, it says, equity partners in the 200 biggest law firms weathered the 2008 economic downturn relatively well. “It is not surprising, therefore, that law firm leaders might have a difficult challenge in convincing their partners of the need to make fundamental changes in their business model or practices,” the report’s authors write, adding, “it is often the leading and most successful firms in the market that underestimate or fail to perceive the impact of the change that is occurring.”


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      A new era of judicial activism? Cont’d

      By Yves Faguy February 23 2015 23 February 2015

        Last week we noted that charges of judicial activism were making a comeback.  Emmett Macfarlane weighs in and disputes the notion that invalidating laws has absolutely nothing to do with "judicial activism" because of the powers granted to them under The Constitution Act, 1982:

        This strikes me as completely wrong. For one thing, it is premised on a view that the constitution is only what the judges say it is. For some in the legal community, this apparently means the Court literally cannot err in its interpretation of the law. Other legal commentators have a slightly more nuanced view but one that basically amounts to the same thing: sure, judges can err, but as United States Supreme Court Justices Robert Jackson famously said: “We are not final because we are infallible, but we are infallible only because we are final.”

        This is a cute play on words but it is still fundamentally nonsense. Most importantly, it ignores the enormous amount of discretion Supreme Court justices have when interpreting the constitution. On many of the difficult cases that reach the Supreme Court, one set of nine judges will reach a completely different decision than another set of nine judges. For that matter, every time there’s a dissenting judgment is proof that there is no obviously “correct” outcome required by the law.

        Macfarlane then goes on to conclude:

        Dismissing the notion of judicial activism entirely is to deny that judges have the discretion—which they invariably exercise—to act with more or less deference to the decisions of democratically elected governments. In this sense, the concept itself remains useful and important.

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        Is it time to legalize marijuana? - Webcast

        By Katya Hodge February 22 2015 22 February 2015

          On Sunday February 22, CBA's National magazine hosted a panel discussion on the legalization of marijuana.  Led by moderator Pierre Moreau, panelists explored the topic from the perspective of law enforcement,  public health and public policy, offering different perspectives on the debate. Watch the discussion unfold.

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          Is it time to legalize marijuana?

          By Beverley Spencer February 22 2015 22 February 2015

            That was the topic of a panel discussion hosted by National magazine on Sunday explored the complexity of dealing with marijuana use in society. Does prohibition work? Would regulation? Here is a summary of the discussion. (Check back tomorrow to watch the panel on video.)

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            10 tips for equal justice action

            By Kim Covert February 22 2015 22 February 2015

              The CBA’s Equal Justice committee offered up these tips for branch and local action on access to justice at the CBA Mid-Winter meeting of Council on Saturday in Ottawa.

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              Finding the middle ground on the ABS debate

              By Kim Covert February 21 2015 21 February 2015

                Alternative business structures have been allowed in other jurisdictions for some time and the sky didn’t fall in, a member of the audience said in the closing minutes of the ABS panel discussion at the CBA Mid-Winter meeting of council in Ottawa on Saturday.

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                Edward K. Rowan-Legg Award

                By National February 21 2015 21 February 2015

                  Olivier D. Girardeau, a law student at the Université de Montréal, has been chosen by the Canadian Bar Association (CBA) as the 2014 winner of the Edward K. Rowan-Legg Award. The award recognizes a student member’s contribution to the CBA.  This is the first time the award has gone to someone from the Quebec Branch.

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                  Moved and seconded: Mid-Winter resolutions

                  By Kim Covert February 21 2015 21 February 2015

                    Sexual harassment,  even sexual assault can be subjective, can take forms seen clearly – and uniquely – in the eyes of the beholders.

                    But the fact is that they are still present in the workplace, and often go unreported for fear of professional  repercussions. At  the CBA Mid-Winter meeting Saturday in Ottawa, Council discussed a resolution calling on the CBA to urge all levels of government, law firms and other Canadian workplaces to take active steps to prevent sexual harassment and sexual assault in workplaces.

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                    A new era of judicial activism?

                    By Yves Faguy February 20 2015 20 February 2015

                      On the heels of the Nadon ruling, the Senate Reference, the Carter case on medically-assisted suicide and last week’s right-to-strike case, it’s safe to say that charges of judicial activism are back in vogue. Here’s Andrew Coyne:

                      The dust is still settling from last week’s historic ruling of the Supreme Court in the matter of euthanasia. One early casualty: judicial restraint, the fading notion that the courts, in interpreting the law, should be bound by … something — the written text, the historical record, precedent, logical consistency. One by one the court in recent years has liberated itself from these constraints; with the legalization of “assisted death,” it has slipped free altogether.

                      Indeed, the record will show that it was the Conservative prime minister Stephen Harper who presided over, indeed selected, the most liberal-activist court in our history. Not just liberal: activist.
                      Brian Lee Crowley declares that this spurt of activism is harmful to the economy.

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                      No warrant required?

                      By Yves Faguy February 18 2015 18 February 2015

                        Craig Forcese and Kent Roach have posted an “unofficial consolidated version of the CSIS Act,” as it would read were Bill C-51 to be adopted under its current form. The two national security law experts have zeroed in on the provisions (proposed and existing) dealing with the collection, analysis and retention of information by CSIS (referred to in the Act as the Service).  Here’s how the Act would read:

                        Collection, analysis and retention

                        12. The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada.

                        No territorial limit

                        (2) For greater certainty, the Service may perform its duties and functions under subsection (1) within or outside Canada.

                        Measures to reduce threats to the security of Canada

                        12.1 (1) If there are reasonable grounds to believe that a particular activity constitutes a threat to the security of Canada, the Service may take measures, within or outside Canada, to reduce the threat.


                        (2) The measures shall be reasonable and proportional in the circumstances, having regard to the nature of the threat, the nature of the measures and the reasonable availability of other means to reduce the threat


                        (3) The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1.

                        Forces and Roach make the case that the “kinetic powers” contemplated under Bill C-15 –  “kinetic” is how they characterize CSIS’ evolving from watcher to agency empowered to take threat-reducing measures – don’t always require it to get a warrant:

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                        Carter reactions round-up

                        By Yves Faguy February 9 2015 9 February 2015

                          Lorne Sossin wonders where do we go from here:

                          Like so much in law, the easy part is figuring out the right or obligation at issue — the hard part is making it work. The reality of dying will fall not to rules (no matter how carefully crafted or compassionately intended) but to discretion, and to human judgments. What is unbearable pain? Who is deciding under duress? Who is genuinely motivated by another’s welfare and who has ulterior motives?

                          Physician-assisted dying is far from unique in this respect, but it is nonetheless striking how little the practical realities and lived experience with such settings figures into our constitutional debates about Charter principles. At the end of the day, the right to die with dignity is not to be decided in courtrooms or statutes, but rather in moments shared between families, health professionals, and administrators.

                          Carter case is not the end of the dying-with-dignity debate (any more than Rodriguez turned out to be); rather, it is only the beginning. Now comes the hard part.

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