The Power of Perspectives

The Canadian Bar Association

National Blog

Privacy at the border: Is a smartphone more like a letter or a briefcase?

By Kim Covert October 19 2017 19 October 2017


    The post-9/11 emphasis on the need for security has exacerbated the difficulty of balancing the individual right of privacy with the state’s right to know, especially at border crossings. And more and more the fulcrum those two balance upon is the personal electronic device, be it a laptop, a tablet or a smartphone.

    The credit card used to be the thing we wouldn’t leave home without, these days it’s our electronic devices, particularly smartphones. They have become indispensable when travelling, especially now that travel providers have made tickets and boarding passes available electronically.

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    Something’s gotta give when resources don’t grow with workload

    By Kim Covert October 18 2017 18 October 2017


      Canada has opened its doors and its arms and its borders to refugees.

      Now it needs to open its wallet.

      British Columbia has gone from receiving 725 refugee claims in 2016 to 110 a month in 2016. In Ontario, if the current rate of refugee claimants continues, there could be nearly 5200 by the end of the year, almost double the number in 2015. Across the country, the Immigration and Refugee Board predicts 40,000 new claims by the end of the year.

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      Cannabis conundrum: If it’s legal, why treat it like the demon weed?

      By Kim Covert October 17 2017 17 October 2017

         

        The CBA has been a vocal supporter of changing the way the law treats cannabis for nearly 40 years – in our first resolution on the subject, in 1978, the Association urged the government to stop criminalizing simple possession, and also advocated moving marijuana from the Narcotic Control Act to the Food and Drug Act.

        While it applauds the intent behind Bill C-45, the Cannabis Act, the Criminal Justice Section notes that marijuana use would be far from normalized under the proposed law. In comments on a 2016 discussion paper, the Section noted that the government’s approach might be better described as a step toward “decriminalization” but could not be accurately referred to as “legalization” given its heavy reliance on criminal law.

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        Air travel and a bid to modernize the Competition Act

        By Kim Covert October 13 2017 13 October 2017


          A bill that would modernize parts of the Canada Transportation Act and relevant portions of other Acts is making its way through the House of Commons. While Bill C-49, Transportation Modernization Act, deals with planes (including passengers’ rights), trains and maritime transportation, the submission from the CBA Competition Law Section focuses on the parts dealing with airline competition.

          Specifically, the Section comments on additions to the Canada Transportation Act and Competition Act to provide for a voluntary review and approval process for airline joint venture arrangements that would make Canada’s approach to these arrangements substantially similar to that of the U.S., where the Secretary of Transportation has jurisdiction to exempt airlines from the application of federal antitrust laws.

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          The CBA’s intervention on common interest privilege

          By Yves Faguy October 5 2017 5 October 2017

             

            The CBA intervened this week in Iggillis Holdings Inc. v Canada (National Revenue) at the Federal Court of Appeal in Edmonton. Mark Tonkovich, Jacques Bernier, and Stephanie Dewey of Baker Mckenzie appeared for the CBA in this matter of common interest privilege. We interviewed Tonkovich about the intervention.

            CBA National: The Federal Court's ruling in Iggillis Holdings turns on the question of common interest privilege. How does the concept work and in what context?

            Mark Tonkovich: The concept is better thought of as an exception to the principle that disclosing solicitor-client privileged material to parties outside the solicitor-client relationship waives that privilege.  The common interest exception is essentially that a client's sharing of privileged material with a third party in pursuit of a common interest between the two will not waive privilege as against any other person.  The question of context is actually key here: while the Federal Court accepted that the common interest principle applies in the litigation context, the Court concluded that there is no similar rule in the transactional or advisory (non-litigation) context.

            N:  So what is at stake in the wake of the Federal Court ruling?

            MT:  The Federal Court of Appeal is being asked to provide clarity on the common interest exception, including whether it exists outside of litigation on the facts of this particular case (which involved two groups of clients and two different law firms contributing to a single tax law memorandum).  The appeal decision will be especially important because the Federal Court's very detailed analysis actually introduced significant confusion and uncertainty into the law of privilege by departing from prior cases.  It also cast doubt over established practices on how Canadian lawyers operate in transactional fields where multiple clients benefit from a common understanding of the law governing their transaction.  The issue arose in a tax case, but it applies in contexts as varied as M&A, environmental, competition, IP, securities, real estate, divorce and matrimonial, and wills and estates law.

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            Creating uncertainty: Part 2 of Bill C-46 as flawed as its predecessor

            By Kim Covert October 2 2017 2 October 2017

               

              If there’s something the law doesn’t like, it’s uncertainty. The legal system spends years building precedents, forging predictability. Creating an “if-A-then-B” system that’s not quite mathematical, but is logical and on which we can all rely.

              The problem with Bill C-46, according to the CBA’s Criminal Justice Section, is that it will do away with decades of established precedent and leave uncertainty in its place. And in a time of overworked, under-staffed courts, court delays and the Jordan ruling, uncertainty is even less attractive than usual.

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              Pensions across borders

              By Kim Covert September 25 2017 25 September 2017


                There are few things in life more likely to make most of the population close their eyes, plug their ears and sing “la-la-la” than a discussion about pension funding. Many of us have pensions and look for some sort of financial stability in retirement, so it’s amazing how many people are ready to leap with faith on the idea that there will be enough in the pot cometh the hour.

                So if you’re tempted to look elsewhere and hum during this next bit, rest assured that the CBA Pensions and Benefits Law Section is taking care of business.

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                The impact assessment regime: A review of the review of the review

                By Kim Covert September 21 2017 21 September 2017

                   

                  Having a clear, predictable federal regime for impact assessments is just the first step toward creating a process that will restore Canadians’ trust in the system and get resources to market. That protocol must also be sufficiently funded and resourced, say the CBA Aboriginal and Environmental, Energy and Resources Law Sections in response to an expert panel’s report released this summer.

                  The two CBA Sections were also among those who contributed to the report with a submission made to the expert panel during its consultation process in December 2016. 

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                  Third time’s the charm: Once more on immigration consultants

                  By Kim Covert September 5 2017 5 September 2017

                    The CBA’s Immigration Law Section applauds the emphasis in a recent report on immigration consultants by the Citizenship and Immigration Committee on protecting individuals who want to immigrate to Canada. Still, it feels the Committee’s recommendations “have missed the mark in a number of key areas” by not addressing fundamental issues that have led to the failure of two separate regulatory bodies for consultants.

                    The Section endorses a number of the report’s recommendations, those which it says will, among others, improve access to justice, reduce language barriers, increase fines for ghost consultants, and give more financial support to settlement agencies.

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                    The law should encourage people to do the right thing

                    By Kim Covert August 31 2017 31 August 2017


                      Canada Revenue Agency’s Voluntary Disclosures Program is generally considered a win-win – people who’ve made errors on their taxes are given the opportunity to come forward and correct their mistakes, and the CRA collects taxes that otherwise have gone unpaid.

                      But proposed changes to the VDP have the potential to disrupt that balance, and could, when it comes to businesses collecting GST and HST, result in harsher penalties than if the errors were caught in a CRA audit.

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                      How to align new NAFTA with more modern trade deals

                      By Kim Covert August 31 2017 31 August 2017

                         

                        Time passes, the world moves on, and today’s new kid in town is tomorrow’s been there, done that.

                        And so it is with the North American Free Trade Agreement, which came into effect 23 years ago. At the time it was hailed as a state-of-the-art trade agreement between Canada, the United States and Mexico. Over the last two decades it has accomplished what it was supposed to accomplish: it currently links 459 million people producing more than $19 trillion worth of goods and services; it has increased trade between the member states; it has created more integrated supply chains between the member states.

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                        Less isn’t necessarily more when it comes to blood alcohol limit

                        By Kim Covert August 29 2017 29 August 2017

                          If a blood-alcohol limit of 80 mg is an effective deterrent to drinking and driving, a 50 mg limit should be even better, right?

                          That’s essentially the thinking behind a proposal to limit the criminal blood alcohol concentration limit, but less, in this case, isn’t necessarily more.

                          That’s because 50 mg indicates the presence of alcohol in the blood but isn’t necessarily an indicator of impairment, says the CBA’s Criminal Justice Section in a letter to Justice Canada. While there is enough evidence of impairment to support a limit of 80 mg, there is “little to no consensus in the scientific community that 50 mg is impairing.”

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