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The Canadian Bar Association

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Canada and the South China Sea Dispute: Promoting adherence to UNCLOS

By Emily Alderson May 30 2016 30 May 2016


    Tensions in the habitually unstable South China Sea are on the rise once again. On May 18th, Chinese fighter jets intercepted an American reconnaissance plane flying close to the Chinese island of Hainan. The week before, China warned an American destroyer as it sailed close to a Chinese-build artificial island. These incidents come just as a ruling on the maritime boundary dispute between China and the Philippines is expected from the Permanent Court of Arbitration (PCA). Skeptics doubt that the Court’s decision will have any affect on the ground. China maintains that the PCA lacks jurisdiction (the PCA found otherwise), and says it will not be bound by the verdict. China’s recent actions are a show of physical strength in defiance of a ruling largely expected to go against their claims.

    The legal dispute falls under the United Nations Convention on the Law of the Sea (UNCLOS) a wide-ranging treaty that contains rules on most oceanic affairs, from fisheries to navigation and pollution to maritime boundaries. The PCA case only deals with the dispute between China and the Philippines, but Brunei, Malaysia and Vietnam also have claims in the area and are party to UNCLOS. Indeed, most of the world’s countries (167 to be precise) are party to UNCLOS, including Canada. That is why Canada, a distant and seemingly unrelated country, should be concerned with the current dispute halfway around the world.

    As a middle power, Canada is generally more reliant on the international rule of law than large powers. The new Liberal government has already stepped up engagement at the United Nations, for example adhering to the United Nations Declaration on the Rights of Indigenous Peoples. Canada also hopes to win a Security Council seat in 2021 and forget the ignominy of our electoral loss in 2010. But in addition to being a good team player, there are specific reasons Canada should be concerned with upholding respect for UNCLOS.

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    Guyana: Ending the incarceration of children

    By Andrea VanderHeyden May 30 2016 30 May 2016


      At 11 years old, she’s still small for her age.  She sits down for the interview with one of the lawyers from the Guyana Legal Aid Clinic, laughing and making a joke as one of the other children leaves the room.  Her hair is braided back, her clothes are baggy, and her smile is contagious.  She seems out of place in the detention centre.  She becomes more somber while politely answering the lawyer’s preliminary questions, and as she tells her story, she starts to cry.

      Like many of the children in the detention centre, this girl is officially being held for “wandering”.  In Guyana, children found without a proper guardian are brought before the Court under the Juvenile Offenders Act, and put through the criminal justice system.

      It’s an archaic law that is still selectively enforced.  At best, the law is used as a way for police to arrest unsupervised children of a lower socio-economic status, including those trying to escape a dangerous home environment; at worst, parents will report their own child if they have behaviour problems, and have them sent to the detention centre.  One mother reported her daughter for wandering because she suspected her child was becoming sexually active.  Designed to ensure children had appropriate guardianship, it is now sometimes used to punish them.

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      The speed of social change

      By Rebecca Bromwich May 30 2016 30 May 2016


        When I was a law student at Queen’s, in the year 2000, I attended a conference on marriage equality for same-sex partners.  At that time, this was a radical notion only being advanced by a small group of family lawyers and legal academics -- people like Martha McCarthy, and Nathalie Desrosiers. However, it wasn’t yet clear what the best path forward was.  How quickly things change.  By 2004, marriage equality had opened up new possibilities for LGBT individuals in Canada.  And in 2015, love finally won the day when the United States Supreme Court recognized same-sex marriage as a right. Even some U.S. evangelicals, and mainline churches, like the Presbyterian denomination, recognize it.

        This spring, we are witnessing similar advances in transgender rights.  This May, the federal government introduced Bill C-16, which would grant protection under human rights legislation and the Criminal Code’s hate speech provisions to transgender individuals. While it’s now making headlines, Bill C-16 was preceded by more obscure private members’ bills, C-279 and C-389, both introduced by former NDP MP Randall Garrison in the past two Parliaments, under Stephen Harper. The Bill passed through the House and Senate twice, only to be stalled and die on the order paper both times.

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        Have we hit peak arbitration?

        By National May 25 2016 25 May 2016



          According to this 2015 international survey, arbitration remains by far the preferred method of resolving cross-border disputes.  However, the mechanism is not without its share of critics:

          We also asked respondents what they perceived as the worst characteristics of international arbitration. “Cost” was by far the most complained of characteristic, followed by “lack of effective sanctions during the arbitral process”, “lack of insight into arbitrators’ efficiency” and “lack of speed”. The common denominator of these characteristics is that they relate to the internal workings of the arbitral system which can be influenced by its stakeholders. Factors such as “lack of third party mechanism” or “national court intervention”, which are not within the control of stakeholders, were listed markedly less often.

          Part of the problem is the perception that international arbitration is becoming more complex and judicialized, giving way to concerns that some its traditional advantages, namely efficiency, speed and costs, are under threat.

          Klaus Peter Berger and J. Ole Jensen address the question of whether litigants might turn away from international arbitration in favour of alternative methods or even national legal systems:

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          Celebrities and privacy injunctions: Is there any point?

          By National May 24 2016 24 May 2016


            The UK’s Supreme Court has allowed an injunction to continue against publishing details of a celebrity affair  – information that can easily be found on Canadian, U.S. and Scottish websites. By a 4 to 1 majority the court overturned a ruling by the Court of Appeal, raising questions about the spread of information through social media and how to treat privacy rights where material has become widely available to the public.

            Louise Berg and Michael Skrein, reacting to the ruling, worry that the UK’s top court has left itself exposed to criticism that it is out of touch (criticism that the court itself has preemptively acknowledged):

            The Supreme Court is bound to be criticised for allowing protection for this story to continue. Although many will agree that there was no true 'public interest' in the story being published, there will be real questions over whether there was any point in allowing the injunction to remain in place. Anyone who is interested in celebrity gossip has known for months who the injunction was about, and so it is, to a great extent, worthless.

            But PJS knew about the widespread disclosures, and still fought tooth and nail to preserve the injunction. He clearly thought it still had value. It is obvious that he is a wealthy man, and maybe he just didn't like to lose. However, perhaps his determination is an endorsement of the Supreme Court's view that it is far worse to have the gory minutiae of your private affair splashed over the printed press, TV and internet in your home country, than it is to have names and sketchy details available on foreign websites.

            Inevitably though, the Supreme Court will be accused of failing to acknowledge the realities of a connected and globalised media landscape.

            They point to this passage from the dissenting opinion:

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            Re-thinking lawyer discipline : Taking a risk-based approach

            By Emily Alderson May 24 2016 24 May 2016


              In Canada today, lawyer discipline is largely complaint-based and reactionary. Yet there is data that tells us where complaints are mostly likely to arise. Adopting a risk-based regulatory approach would help law societies turn that data into preventative action.

              Two academic studies from Australia have examined trends in complaints against lawyers. Both found that gender, age and practice type correlate with the risk of complaints being made. Linda Haller and Heather Green found that male solicitors were almost three times more likely to undergo a disciplinary hearing than a female solicitor.

              In a separate paper, Francesca Bartlett suggests that this is because fewer women have gained seniority in the legal profession. Complaints tend to be filed against older solicitors. The same holds true in Ontario: last year, lawyers in practice more than 30 years made up 20 per cent of the profession but accounted for 30 per cent of complaints.

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              The challenge of regulating blockchain

              By National May 20 2016 20 May 2016


                Toby Thwaites sizes up how regulators are grappling with the emergence of cryptocurrencies:

                Janet Yellen stated that the Federal Reserve would not be seeking to inhibit the current levels of innovation and that the central bank does not have the authority to regulate digital currencies and its variations including the likes of Bitcoin. The SEC on the other hand appears to be focused on ensuring that investors in the marketplace are protected from potential instability that could arise from the application of new financial technologies. The Federal Reserve Bank of St. Louis and the Bank of England are considering the option of a central bank operated digital currency.

                With this being said it must not be forgotten that despite the high level of market activity in the financial services industry we are still in an elementary phase, where there is a lack of standardisation across the sector among the major players

                Andreas Gustafsson notes that financial regulators have plenty to gain from regulating blockchain, the technology behind bitcoin, and public databases known as distributed ledger technology (DLT):

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                Reverse class actions: The next step in the fight against copyright infringement?

                By National May 19 2016 19 May 2016


                  Daniel Daniele remarks that legal action recently launched in Federal Court by U.S.-based movie company Voltage Pictures seeking certification of a reverse class action is a harbinger of more sophisticated attacks to come in the fight against copyright infringement:

                  As the courts continue to grapple with increasingly complex legal issues surrounding the balance between intellectual property and privacy, it is becoming clear that anonymity of online users may have its limitations. In some cases, the privacy rights of individuals will have to yield to the rights of IP holders who are vigilant in protecting their assets.

                  The lesson learned from the Voltage cases is that as the Internet and its users continue to become more sophisticated, companies may need to consider new and creative strategies to protect their innovations.

                  Cost is also clearly a consideration for Voltage in adopting this unusual strategy. Here’s an excerpt from its application:

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                  Bill C-16: Once more unto the breach

                  By Kim Covert May 18 2016 18 May 2016


                    Justice Minister Jody Wilson-Raybould introduced Bill C-16 on Tuesday, a piece of proposed legislation that will, if passed, amend the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination and amend the Criminal Code to “extend the protection against hate propaganda set out in that Act to any section of the public that is distinguished by gender identity or expression and to clearly set out that evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that a court must take into consideration when it imposes a sentence.”

                    It’s not the first time that this kind of legislation has been tabled in Parliament – in fact, it’s the seventh, over the course of a decade – but it’s the first time that a sitting government has done so, which increases the likelihood that something will actually be accomplished this go-round.

                    Prime Minister Justin Trudeau made his government’s intentions clear in the Justice Minister’s mandate letter last fall, setting as one of her priorities to “introduce government legislation to add gender identity as a prohibited ground for discrimination under the Canadian Human Rights Act, and to the list of distinguishing characteristics of ‘identifiable group’ protected by the hate speech provisions of the Criminal Code.

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                    GIC appointments? We have a problem

                    By National May 18 2016 18 May 2016


                      The CBA is eagerly anticipating an engagement with the current government on Governor in Council appointments – in fact, as CBA President Janet Fuhrer said in a recent letter to Prime Minister Justin Trudeau, it’s been ready to go for 26 years.

                      The CBA commissioned Ottawa University law professor Ed Ratushny to look into the problem of GIC appointments. He submitted his report, Task Force on the Independence of Federal Administrative Tribunals and Agencies in Canada, in 1990.

                      “The Ratushny report identified concerns that the piecemeal approach to federal tribunals, boards, agencies and commissions created ‘too many gaps and too many opportunities for abuse’,” Fuhrer says in the letter.

                      The report underlined the need for a statute to establish standards of independence for appointments, and made recommendations for reform on issues such as methods of appointment, tenure, remuneration, accountability, budgeting and training.

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                      Restoration of queer dignity: Toward a more just society

                      By Michael Motala May 17 2016 17 May 2016


                        Today, the Minister of Justice is poised to introduce amendments to the Criminal Code and Federal Human Rights Act in a historic legislative effort aimed at protecting gender identity. Canadian Prime Minister Justin Trudeau’s recent promise to pardon Everett Klippert, the last man convicted of gross indecency, also starts an important, and long overdue, national conversation about the redress of queer injustice. Canada has a checkered history of homosexual regulation, circumscribed by the enforcement of sexual and gender norms, as well as unjust discrimination outside the criminal law. The queer community’s calls for a formal apology have gone unheeded by successive federal governments. Fatefully, political context has shifted.  

                        What is the appropriate scope for the government’s acknowledgment and redress toward the queer community? Should state-authorized action, through Canadian ministries and state agents—administering residential schools, enforcing institutional discrimination in the military and public service, and enforced with heavy-handed police tactics—factor into the conversation?  

                        The history of gender and sexual regulation in Canada points to numerous examples where the law and state-authorized action targeted men and women, both cis and trans, of every race and class, as well as aboriginal populations. Viewed comprehensively, there was a coherent policy aimed at oppressing and criminalizing same-sex conduct through heteronormalization. Persecuting homosexuals was first a tool of European conquest and then a form of aboriginal assimilation. Canadian policy toward indigenous populations in residential schools, for example, oppressed the two-spirited identity in aboriginal culture.

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                        Legislating a bilingual Supreme Court

                        By National May 17 2016 17 May 2016


                          Last year CBA National published a piece by Justin Ling exploring whether legislating a requirement to make bilingualism mandatory for judges appointed to the Supreme Court would survive a constitutional challenge. The prevailing view was that it would not:

                          Lynne Watt, a partner in Gowlings’ Ottawa office, sees some grey area, but broadly agrees that bilingualism may be well outside the unilateral power of Parliament. “I could hear an argument being made that it unreasonably narrows the pool of candidates, and that’s trenching on the composition of the court,” she says.

                          The Nadon reference appears to bear that out. “Any substantive change in relation to those eligibility requirements is an amendment to the Constitution in relation to the composition of the Supreme Court and triggers the application of Part V,” wrote Chief Justice Beverley McLachlin, writing for the majority.

                          That, coupled with the Senate reference and a general lack of enthusiasm for constitutional reform, means that we’re unlikely to see bilingualism become an essential eligibility requirement for appointment to the top court in the near future.

                          In the reference, the court held that a change to its composition of could only be made by a unanimous constitutional amendment under s. 41 of the Constitution Act, 1982

                          But in a recent post, S├ębastien Grammond takes the opposite view, arguing somewhat counter-intuitively that Parliament could make bilingualism an eligibility requirement to sit on the top bench:

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