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Forget about it

By National April 29 2016 29 April 2016

    In January the Office of the Privacy Commissioner of Canada (OPC) released a discussion paper asking whether there should be a right to be forgotten in Canada, along the lines of the right recognized by the Court of Justice of the European Union, in a case involving Google, that citizens should be able to force the removal of search results that link to information about them that is "inadequate, irrelevant, or no longer relevant.”  The OPC lays out the current state of the law in Canada:

    In Canada, no right to be forgotten or erasure laws exist per se. Individuals have been turning to the OPC for assistance when they come across websites that have posted their personal information without consent. The OPC oversees compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA), which sets out the rules that private-sector organizations must follow when they handle personal information in the course of their commercial activities. Generally, organizations cannot collect, use or disclose personal information without consent unless an exception to the requirement for consent applies. The law also gives individuals the right to access and to ask for corrections to personal information an organization may have collected about them. Individuals who believe an organization covered by PIPEDA is not living up to its responsibilities under PIPEDA have the right to file a complaint with the OPC.

    Éloise Gratton and Jule Polonetsky argue against legislating such a right in Canada.

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    Achieving substantive gender equality

    By Melissa McKay April 26 2016 26 April 2016

      Nepal is currently home to the world’s youngest constitution. Though progressive in many aspects – it specifically protects transgendered individuals from discrimination – there remains work in certain areas specific to gender rights. The most controversial provision is the right to citizenship. The current text of the  Nepal's constitution prevents women from independently conferring citizenship to their children. Children born to a Nepali woman and a foreign man are eligible only for naturalised citizenship after becoming permanent residents to Nepal. Nepali men may confer citizenship to their children regardless of the mother’s status. Naturalised citizens of Nepal are ineligible for certain high offices, including that of president and vice-president.

      Less than 20 years ago, certain Canadian women were discriminated against in a similar manner, despite the existence of the Canadian Charter prohibition on sex discrimination. Until 1997, Canada’s Citizenship Act imposed a higher burden on children born abroad to Canadian mothers than those born abroad to Canadian fathers. It wasn’t until the Supreme Court’s ruling in Benner v Canada (Secretary of State) that children born to either gender were to be treated equally when seeking Canadian citizenship.

      Neither the implementation of constitutional rights nor the application of equality happen overnight in any democracy. Constitutional provisions and other forms of legislation are subject to interpretation. Their meaning can evolve along with societal shifts. They can be altered to reflect expanding ideals of equality.

      But globally, the achievement of substantive gender equality remains elusive.

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      Legal Futures round-up: April 25, 2016

      By Emily Alderson April 25 2016 25 April 2016

        Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our biweekly round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

        A bevy of law day activities took place across the country around April 18th. Law Day aims, in part, to demystify the justice system and make it more accessible to the public. In addition to courthouse tours and open houses, several mock trials demonstrated how the court system works. In Medicine Hat, the Minions from the movie Despicable Me sued Gru for wrongful dismissal. In Calgary, two princesses argued a civil case about a glass slipper. In Penticton, Luke Skywalker stood trial for murder after blowing up the Death Star. Meanwhile, BC Chief Judge Crabtree of the BC Provincial Court hosted a Twitter Chat, Calgary offered free legal advice sessions, and the Ontario Bar Association held an art contest for youth.

        Bennett Jones’ Calgary office launched a new startup incubator program called Kickstart to assist legal entrepreneurs. The program is a partnership with Innovate Calgary, VA Angels, District Ventures, and the Entrepreneurs’ Organization.

        Law firm Freshfields Bruckhaus Deringer is planning a ‘nearshoring’ legal service centre in Vancouver to assist its American and Chinese offices.

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        Reforming the law of evidence after Ghomeshi

        By Rebecca Bromwich April 25 2016 25 April 2016

          Now that the dust has settled over at least the first trial of Jian Ghomeshi, the news cycle has moved on.  Yet, it would be a great shame if the judgment in the case marked the end of the public controversy about criminal justice in the context of allegations of sexual assault.  Whether we lawyers agree with the criticisms or not, there is a burgeoning sentiment, particularly amongst women, that the criminal justice system does not in fact provide justice to sexual assault complainants.  Activists, like Jane Doe, are calling for a revolutionary boycott on reporting sexual assaults.  There are, quite literally, protests in the streets. As I have said elsewhere, this judgment should not signal the end of the public debate, but rather mark a beginning of a constructive conversation about law reform.

          The Ghomeshi case and the outcry about it speak to a need to reform criminal justice processes and evidence law.  I have two suggestions.  Infusing sexual assault prosecutions with restorative justice processes could help afford complainants an opportunity to feel heard and be heard.  We also need to consider evidence-based reforms to evidence law.

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          Duffy: Guilt vs moral misconduct

          By National April 22 2016 22 April 2016

            Ontario Court Justice Charles Vaillancourt felt compelled to say a few words about the presumption of innocence in his ruling dismissing 31 charges of fraud, breach of trust and bribery against Mike Duffy:

            [3] I would like to relate an interesting encounter that I experienced near the commencement of this trial that demonstrates the difference between the legal presumption of innocence and the application of that presumption by many citizens.

            [4] I was returning to the courthouse after a lunch break when I heard a man who was soliciting funds from passersby say, “Sir, sir.” I stopped and began to check out my monetary situation. However, the stranger did not ask me for a financial contribution. Instead, he asked me if I was connected with the Duffy trial. I advised him that I was. He then inquired whether I was counsel. I advised him that I was not but I did tell him that I was the judge hearing the case. Without missing a beat, my new found friend enthusiastically stated, “Throw him in jail.”

            [5] The aforementioned exchange highlights two important aspects of Senator Duffy’s trial.

            [6] Firstly, the scenario illustrates the public awareness and interest in these proceedings.

            [7] Secondly and more importantly, the exchange draws attention to the overarching touchstone principle of criminal law in Canada, namely, that everyone is presumed innocent until the Crown proves them guilty beyond a reasonable doubt. Although, the stranger drew my attention to the principle, his enthusiastic response highlighted a contrary position to the presumption of innocence. I think it is fair to say that many people may share the belief that once someone is charged with a criminal offence they are guilty. This is not the law of the land.

            Yves Boisvert in his column today in La Presse reminds us of the distinction between criminal guilt and ethical misconduct:

            The fact remains that many a senator – most of them in fact – never hid behind the pretence of fuzzy rules to justify excessive expenses. It is therefore fitting that Mike Duffy was denounced, like many others.  There is a moral responsibility in all of this.

            That doesn’t make him a fraudster.  Not giving a damn about public funds, having no scrupules, and wringing out every last drop of one’s privileges is enough to make anyone lose the affection of the public, and even your job. It just isn’t enough to send you to jail to serve as an example.

            [Our translation]


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            The judicialization of public protest

            By Anne Lévesque April 21 2016 21 April 2016

              This week, the Supreme Court of Canada will hear an appeal relating to the contempt of court order made against the Quebec student activist, Gabriel Nadeau-Dubois. The legal dispute at issue arose in the context of the 2012 student protest which received international attention. Lead by two student groups, l’Association pour une solidarité syndicale étudiante and la Fédération étudiante collègiale du Québec with broad support from the general public, the movement commonly referred to the ‘’Printemps érable’’ (Maple Spring) was triggered by former Premier Jean Charest’s proposal to increase tuition by 75 per cent over the course of five years. Hundreds of thousands of Quebecers from across the province took to the streets, wearing le carré rouge and banging casseroles to protect what is widely regarded in the province as a fundamentally core value: universally accessible post-secondary education.

              In the course of the protest, another university student, Jean-François Morasse, obtained an interlocutory injunction to enable him to cross the picket line and attend class. When asked to comment on the injunction during a television interview on RDI, Radio-Canada’s news network, Nadeau-Dubois expressed his disappointment regarding the judicialization of what he considered to be a political protest and stressed that students had the right to strike. The Quebec Superior Court found Nadeau-Dubois guilty of contempt of court since his statement could be taken as an invitation to disregard the court’s injunction and, accordingly, sentenced him to community service. The decision was overturned by the Quebec Court of Appeal which emphasized in obiter the importance of respecting the freedom of expression in accordance with both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. This argument will again be reiterated before the Supreme Court by the two intervenors that were granted leave to make oral submissions.

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              Making amends: Bill C-6 would repeal some problematic changes to Citizenship Act

              By National April 20 2016 20 April 2016

                A citizen is a citizen is a citizen.

                That was Justin Trudeau’s line during a pre-election leaders’ debate last fall but it sums up an important element of the CBA’s opposition to the Strengthening Canadian Citizenship Act (Bill C-24), passed in 2014: that Canadians shouldn’t face the revocation of their citizenship status except in the most exceptional of cases and in a fair manner that respects Canada’s Constitution and international obligations.

                That’s one of the things that Chris Veeman, Executive Member of the CBA Immigration Law Section, said when he appeared before the House of Commons Citizenship and Immigration Committee on April 14 to discuss the government’s proposed Bill C-6, an Act to Amend the Citizenship Act, introduced in February.

                Bill C-6 proposes to undo many of the changes the CBA opposed when the Strengthening Canadian Citizenship Act was introduced. The submission makes a total of 12 recommendations on everything from income tax reporting requirements to the need to redraft a whole section to make it understandable – reinforcing the CBA’s opposition to changes made in 2014, and recommending additional changes to make the Act more effective.

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                Who are you calling old? The elderly, geriatrics and testamentary capacity

                By National April 20 2016 20 April 2016


                  Beware social graces.

                  The ability to make the appropriate response to polite questions about one’s health, or to discuss the temperature and whether it might rain is not an indicator of mental capacity, says Dr. Kenneth Shulman, a geriatric psychiatrist working at Sunnybrook Hospital in Toronto.

                  “There are many people with moderately severe dementia who can maintain the social graces, carry on a conversation,” he told health law and elder law practitioners gathered in Ottawa on the weekend.

                  Shulman was giving a lunchtime presentation on testamentary capacity to the two groups, who were holding separate meetings on Saturday but assembled to hear Shulman speak.

                  When Shulman is asked to provide expert advice on whether a person has the capacity to make and sign a will, he says he’s put on the horns of a dilemma: “What is the role of a medical expert in what is fundamentally a legal issue?” he asks. “The question that’s being asked of me, whether a person has capacity, is a legal question, that’s for a judge to decide.”

                  Shulman nonetheless has answered the question to his own satisfaction: the role of the medical expert is to help the court to understand the nature and severity of any disorders that affect capacity – to give the judge an objective opinion from a clinical point of view.

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                  Will the Google Books ruling hold sway over Canada's fair dealing analysis?

                  By National April 19 2016 19 April 2016

                    It took 11 years, but Google has finally prevailed in its legal battle to digitize the world’s books.  The U.S. Supreme Court declined an appeal from the Author’s Guild of a 2nd US Circuit Court of Appeals ruling affirming that Google Books scans of copyrighted works are fair use. The court found that Google’s efforts at turning the books into a searchable database amounted to a highly transformative use of the copied material, meaning that it didn’t infringe on the authors’ copyrights.  Under U.S. copyright law, transformation is one of the factors that can meet the fair use test for a copyrighted work.

                    David Kravetz has this to say on the larger implications:

                    That decision today means Google Books won't have to close up shop or ask book publishers for permission to scan. In the long run, the ruling could inspire other large-scale digitization projects.

                    Fair use is a concept baked into US copyright law, and it's a defense to copyright infringement if certain elements are met. The US Copyright Office says the defense is decided on a case-by-case basis. "The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

                    Corynne McSherry takes on the critics of the decision:

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                    You say you want a career in international law?

                    By Emily Alderson April 18 2016 18 April 2016

                      International law: the notion evokes a world of international courts and overseas adventures. No wonder international classes are popular in law school.  However, many students are unclear on how to explore their interest beyond the classroom and even less clear on how to translate it into employment. One explanation for that is that law firms make an effort at at being present at law schools, by sponsoring events and participating in on-campus-recruitment. International law opportunities can be more difficult to spot, but they are there for those willing to look.

                      Many Canadian law schools have an international law club – sometimes a branch of the bigger, U.S.-based International Law Students Association (ILSA). If your school doesn’t have an international law club, starting a local ILSA chapter is easy. The larger ILSA even has grants available to sponsor your local events. ILSA also hosts an annual conference, to be held this year in New York City in October. The Canadian Conference on International Law takes place every fall in Ottawa, this year in early November. Many conferences run a student paper competition, and the winners receive free travel and conference attendance. With a little forward planning, you can chose paper topics that satisfy your course requirements and address a conference theme, making entry easy.

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                      Three questions on R. v Lloyd

                      By National April 15 2016 15 April 2016

                        The Supreme Court of Canada released its decision in R. v Lloyd today, ruling that a mandatory minimum sentence for drug-trafficking violates section 12 of the Charter because it doesn’t allow for judicial discretion based on the circumstances of the particular conduct and the individual offender.

                        Eric Gottardi and Mila Shah of Peck and Company appeared before the court, acting on behalf of the CBA, in January. They argued that all mandatory minimum sentences need exemption clauses, and while the sentence at issue in this case did have such a clause, it was insufficient.

                        We did a follow-up Q&A with Gottardi on Friday after the decision came down:

                        CBA National: Can you give us a quick summary of the decision?

                        Eric Gottardi: Chief Justice McLachlin, writing for the majority of the Supreme Court, held that the one-year mandatory minimum sentence for trafficking, where the offender has been convicted of a previous drug offence within the last 10 years, was unconstitutional. It amounted to cruel and unusual punishment. The problem is that the mandatory minimum sentence applies to a wide range of potential conduct. While it properly catches some serious drug trafficking, it also catches conduct that Canadian society would not find blameworthy. For example, the one-year minimum would apply to an addict who is charged with trafficking for giving a small amount of drugs to a friend or spouse, and who has a single previous conviction of sharing marijuana in a social setting nine years ago. The court held that most Canadians would be shocked to find that person could be sent to prison for one year.

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                        Tough-on-crime sentencing provisions struck down

                        By National April 15 2016 15 April 2016

                          One year after after its ruling in Nur the Supreme Court hands down two major rulings on sentencing. In R v. Lloyd, it ruled that a one-year mandatory minimum sentence for drug trafficking violates the Charter guarantee against cruel and unusual punishment. The CBA intervened in the case in January, arguing that it ran contrary to s. 12 of the Charter in the absence of judicial discretion to not apply them. Here's the Chief Justice:

                          [35]   As I have already said, in light of Nur, the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences. 

                          [36]  Another solution would be for Parliament to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment.  Residual judicial discretion for exceptional cases is a technique widely used to avoid injustice and constitutional infirmity in other countries…

                          Three justices (Wagner, Gascon and Brown) dissented in part:

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