The Power of Perspectives

The Canadian Bar Association

National Blog

The royal baby bill: Do the provinces have a say?

By Yves Faguy January 31 2013 31 January 2013

    There have been some amusing exchanges in the twitterverse over the law introduced in the House of Commons today aimed at changing the royal succession rules to make them compatible with announced changes to those in the UK. The question for many has been whether Canada’s assent is enough to incorporate the new rules into our own laws or whether we need a full-blown constitutional amendment. Scholars will certainly get a kick out of this paper by Anne Twomey of the University of Sidney (hat tip: Philippe Lagassé), who takes us from the pre-Statute of Westminster days, through the abdication crisis of 1936 and up until today. But first here’s some context explaining why both the Gordon Brown and David Cameron governments have treaded carefully with the matter of changing the laws of succession in the first place:

    One of the notable aspects of the debate on this Bill was the confusion about whether all Commonwealth countries would have to be consulted about it, or whether consultation was confined to the 15 other Realms. It was even suggested that all the British overseas territories would have to be consulted, as well as devolved administrations, such as Scotland. There was also confusion about whether mere consultation was required, which could be done by a phone call, or whether the Parliament of each of these polities would have to legislate prior to the United Kingdom Parliament enacting its legislation.

    The problem, Twomey explains, lies in the wording of the Statute of Westminster (more after the jump).

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    A new era of collaboration

    By Robert Brun January 31 2013 31 January 2013

      I had the great pleasure recently of speaking at the swearing-in ceremony of Mr. Justice Richard Wagner of the Supreme Court of Canada. 
      As one might expect, our newest appointee to the top court has impeccable credentials. But what really struck me about his legal career is this: Richard Wagner is a man who does not back down from a challenge. That’s why I wasn’t surprised to read that not long after his swearing-in, he sounded a warning to government and the judiciary about access to justice.
      Justice, he told The Globe and Mail, is quickly becoming beyond the reach of many Canadians. Furthermore, the failure to ensure access to justice can create serious problems for democracy. “What we see is a common problem across the provinces,” he said. “First of all, we should talk to each other.” He is calling for a national summit that would bring together lawmakers and the judiciary from across the country to start a dialogue.
      The CBA identified some of the tough questions that need to be asked when it launched the Envisioning Equal Justice initiative last summer. For example: Can we be innovative to improve access to justice without absolving governments of their role in legal aid? How much pro bono can lawyers reasonably be expected to provide? How can we recognize the different legal needs of low- and middle-income people?
      On April 25-27, the CBA will begin a new era of strategic collaboration with a national access to justice summit in Vancouver. Mr. Justice Thomas Cromwell of the Supreme Court of Canada will deliver the keynote address.
      The time has come for action. Lawyers recognize it. The judiciary recognizes it. Too many people are slipping through the cracks of the justice system.
      We can’t shy away from that challenge.
      Send your comments to

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      Lights, camera, action!

      By January 31 2013 31 January 2013

        Lawyers are not exactly famous for being cutting-edge innovators or for quickly adapting to change for that matter. As legal futurist Richard Susskind jokes, there’s a reason you don’t find many lawyers on Twitter: They’re still waiting for it to take off.
        This issue features five examples of practitioners who put paid to the idea that lawyers have trouble adapting, whether it’s to new technology or to a new way of doing business. These experienced entertainment lawyers have witnessed a sea change in the industry and had to adapt their practices accordingly. And they’re thriving.
        The role of lawyers in the entertainment industry was radically redefined as new technology ranging from iPads to e-books revolutionized how the world consumes entertainment. The client base is different, the law is advancing in leaps and bounds and the deals are more complicated than ever.
        Major label deals are being overtaken by a greater variety of creative smaller deals and non-traditional players are entering the field as everyone scrambles for new ways to monetize products. Intellectual property law is barely keeping pace with new developments.
        Some of the changes have made work more efficient — Dean Chenoy of Heenan Blaikie says that 15 years ago, it would have taken him several days to accomplish what he does today in just one. On the other hand, the pace is faster; clients want answers right away — sometimes within the hour.
        Does any of this sound familiar? It should. Not every practice area has seen this much change, but there are common themes that will resonate with most practitioners: technology is redefining both industry and service delivery; client demands are ramping up; and there is no such thing as coasting.
        Fortunately, there are a lot of examples in the profession of how to adapt. And how to thrive at the same time.
        Send your comments to

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        The Supreme Court ruling on unmarried couples

        By Yves Faguy January 28 2013 28 January 2013

          Admittedly, the Supreme Court’s ruling last week on spousal support for unmarried couples affects Quebecers for the most part. That said, Canadians from other provinces are impacted by the questions surrounding the division of property rights. So here’s a round-up of commentary on the decision.

          Yves Boisvert, notes that the ruling is a divided one in which the Chief Justice found herself in the middle but leaning on the side of validating the provisions of the Civil Code of Quebec.

          It would seem, at first blush, that the judges were were split along gender lines: the women came down on one side, the men on the other.

          In truth, what was really at stake in the Lola case was the very notion of what the role of judges should be. And the majority concluded that it is up to the National Assembly – not judges – to redefine or not [Quebec’s] conjugal regime for unmarried couples. It was the right decision. You simply do not marry one million people without asking them first. It is neither polite nor, from a legal standpoint, promising. [Our translation]

          Angela Campbell writes that the decision might be better for women than some might think (more after the jump):

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          The CBA intervenes in McKercher, ctd

          By January 24 2013 24 January 2013

            As a follow-up to our earlier post, you'll find the CBA's factum here. And if you want to listen in on the hearing, here's a link to the live webcast (accessible until around 11:30).

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            The CBA intervenes in McKercher before the Supreme Court

            By January 24 2013 24 January 2013

              The CBA is at the Supreme Court of Canada today advocating for conflict of interest rules that don’t deny Canadians choice of legal representation when there is no need to do so.

              The association is intervening in the case of CN v. McKercher LLP and Wallace, arguing that the scope of the duty to avoid conflicts of interest does not categorically prohibit acting directly adverse to the immediate interests of a current client.

              Malcolm Mercer, Eric Block and Brendan Brammall of McCarthy Tétrault LLP acted as counsel for CBA on a pro bono basis. Malcolm Mercer explains the association’s position and the implications of the case for access to justice.

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              Copyright and "I'm right to nuke you" ethics

              By Yves Faguy January 21 2013 21 January 2013

                Plenty has been written in the last week about the death of Aaron Swartz. Predictably, opinions tend to diverge sharply among supporters of content consumers vs. supporters of content owners (was Swartz hero or thief?)

                But the more nuanced commentators are asking some rather pertinent questions about how our governments go about targeting alleged criminals and how they are prosecuting crimes. Food for thought for legal minds. Here’s Clive Crook in one of his last posts at the Atlantic:

                By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.

                The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.

                Stephen Carter at Bloomberg calls the prosecution of Swartz ridiculous, but argues that the overly zealous lawmakers are the real problem. Drawing inspiration from Douglas Husak, author of the book Overcriminalization, he writes (more after the jump):

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                Non-status Indians: The impact of Daniels

                By Yves Faguy January 18 2013 18 January 2013

                  The recent Federal Court decision in Daniels v. Canada will no doubt have a major impact on a number of financial, legislative and political considerations of the federal government in dealing with non-status Indians. And yes, the ruling might yet be appealed before the Supreme Court. But for now it concludes that Métis and non-status Indians are “Indians” within the meaning of Section 91(24). It is worth noting though that the Federal Court did dismiss two other requests by the plaintiffs in Daniels – a declaration that Ottawa owes a fiduciary duty to MNSI as Aboriginal people; and that the feds have a duty to consult and negotiate with MNSI.

                  National contributor Brad Mackay had a chance to catch up with Joe Magnet (still recovering from a bout of laryngitis), who was the lead counsel representing the Congress of Aboriginal Peoples. Brad asked him to explain what was at stake, to tie the ruling to the Idle No More movement and to share his thoughts on what Canada needs to do to fix the legal relationship between Ottawa and Aboriginal people.

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                  Intervention in Mali: a legal concern?

                  By Yves Faguy January 15 2013 15 January 2013

                    So Canada has decided to provide logistical support to France’s military intervention in Mali (false starts notwithstanding), and play host to talks in Ottawa. All of this a week after Harper ruled out sending troops to the country – an announcement that followed recent statements made by Robert Fowler (interviewed in the above video in August at the Canadian legal Conference in Vancouver) criticizing the Harper government for saying that it had not been asked to contribute to the international military mission to Mali. At least one paper admits to being confused.

                    Part of the reason might have something to do with a whole lotta disagreement (between France and the U.S.) over which strategy to pursue: a frontal attack on the country or a quieter campaign against jihadi groups – like the one tried in Somalia maybe?

                    Perhaps most telling, the U.S. is now citing legal concerns in delaying decisions about supporting France's military campaign in Mali. The main obstacle, it seems, is that direct military aid to Mali is forbidden under U.S. law because the current government seized power in a military coup. But more pertinent could be the fact that Obama's recently named national security team is, by all accounts more favourable to testing the light footprint strategy in military matters. 

                    But Daveed Gartenstein-Ross worries in a recent G&M piece, with the U.S. primarily in mind, that supporters of a light footprint strategy in Mali ought to be more careful when talking up the merits of the quiet campaign against jihadi groups in Somalia as the successful model of intervention that should be followed:

                    It is unclear precisely what the administration and commentators have in mind when they speak about drawing lessons from Somalia, though a few threads of thought are clear. One principle is that there should be no Western “boots on the ground” – although drones, special forces, and the ubiquitous “military trainers” may play a role. Other principles include local forces taking the lead in combat operations, and working multilaterally with other countries. The aforementioned UN Security Council resolution on Mali laid the groundwork for multilateral efforts there. But the $64,000 question is how well will things turn out in Somalia? While al-Shabaab has experienced legitimately large setbacks, there are reasons for concern that the Somalia model is being oversold.

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                    Should ISPs defend the privacy of their clients?

                    By Yves Faguy January 15 2013 15 January 2013

                      Credit: Creative Commons/Deyan Sedlarski (

                      TekSavvy Solutions Inc., the internet service provider that – in its own words – “believes in doing the right thing” has come under pretty heavy fire recently for not sufficiently protecting its customers’ privacy.

                      It all started late last year when L.A.-based Voltage Pictures filed a motion in the Federal Court of Canada aimed at forcing TekSavvy to disclose the names and addresses of subscribers tied to some 2,000 IP addresses. Why? Because Voltage is seeking compensation for alleged copyright violations by Canadian file-sharers using peer-to-peer networks. So when TekSavvy announced that it would not oppose Voltage’s motion, many admirers of the company were angered that it didn’t mount a more vigorous defense of subscriber privacy.

                      Howard Knopf, who represented CIPPIC in a similar case back in 2005 against subscribers of the larger telecoms (Shaw, Rogers, Bell, Telus and Videotron), is one of them:

                      Generally speaking, the real issue now is under what circumstances, if any, an ISP is expected or maybe even required to take reasonable steps to safeguard its customers' privacy. If an ISP can successfully and inexpensively oppose an inadequately documented attempt to breach its customers’ privacy, then why should it be able to walk away and leave its customers on their own and just tell them they can hire their own lawyers? It’s the ISP’s duty under the PIPEDA federal privacy legislation to protect its customers’ privacy. That presumably does not mean simply telling them that their privacy is about to breached, that they are on their own and are free to get a second mortgage and hire their own lawyer. ISPs are paid a lot for their services, and one part of their job is to live up to their PIPEDA obligations. ISPs customers pay $25, $50, $60, $80 or more a month and part of their expectation, beyond fast and reliable service, is an expectation of privacy and an expectation that their privacy will be safeguarded – especially if an ISP promotes this aspect to get and retain customers.

                      In a later post, Knopf lists three reasons why TekSavvy ought to have taken an active role in opposing the motion:

                      1. First, since it is the only entity that can resolve the link between IP addresses and subscriber identities, it is in the best place to challenge the technical evidence that Voltage and its forensics contractor, Canipre, have put forward;

                      2. Second, in the BMG case, Telus and Shaw actively stood in opposition to the record labels’ bid to obtain subscribers’ identities on just this ground and TekSavvy should do no less in the present case, especially given that it holds itself out as being more attuned to its subscribers’ interests than its corporate cousins – a point that Koblovsky also relies on heavily;

                      3. Third, it is too much to ask of CIPPIC, an organization with a skeletal staff and limited resources, to take the lead in the case.

                      But following yesterday’s decision by the Federal Court to grant an adjournment to allow CIPPIC to make its motion to intervene in the proceedings, David Ellis pushes back on the cost issue and defends TekSavvy’s actions:

                      First, “if” an ISP can find a cheap way to oppose, etc is worth nothing as a statement of empirical value. If I could fly, I’d spend a lot more time hiking in southern California. Second, let’s update the “inexpensive” part of this with real numbers: [TekSavvy lawyer] Nick McHaffie revealed in court today that TS will be seeking $190,000 in costs from Voltage. [TekSavvy CEO] Marc Gaudrault assures me this figure represents a very conservative accounting of his legal and technical costs to date – and this case is far from over. Third, there’s no way in our system you can oppose a motion for disclosure purely on privacy grounds.

                      Several factors led critics to reach wrong-headed conclusions about what TS was or was not doing for its customers. Many took to heart Marc’s statement that TS was not going to “oppose” the Voltage motion. In retrospect, he probably regrets emphasizing this position when TS was in fact working against Voltage on several fronts. Moreover, because that assertion was only the tip of a much larger iceberg, many of these same folks also assumed they knew what TekSavvy’s legal strategy was: cave in and wait for the court order to arrive, then drop all that personal customer info into Voltage’s lap.

                      […] For reasons I still don’t get, the critics chose to ignore one obvious way in which TS stuck its neck out to help its customers. They provided notice to everyone who appeared on the charge list – something they were under absolutely no obligation to do. That took a lot of work at a time when TS and its lawyers were hard pressed preparing for the December 17 hearing. This notice provided a service in particular to customers who did not download any of Voltage’s property, giving them a heads-up they might be dragged into a proceeding despite their putative innocence.

                      Finally Ellis questions whether TekSavvy really ought to play the role of privacy advocate:

                      One of the most frustrating themes in the recent debate has been the insistence that TS must somehow not merely stand up for its customers, but go on the offence as a privacy advocate. Whose privacy are we talking about anyway? Naturally, everyone wants to see the putatively innocent protected from any unjust disclosures. As for those who might turn out to be guilty, who says their privacy wouldn’t be respected as far as public disclosure is concerned?

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                      The Supreme Court in 2013

                      By Yves Faguy January 10 2013 10 January 2013

                        The winter session of the SCC is about to get under way. So we thought it would be a good idea to share this video of Henry Brown of Gowlings discussing the recent niqab case and what to expect in 2013.

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                        Furlong's legal predictions for 2013

                        By Yves Faguy January 8 2013 8 January 2013

                          Happy New Year everyone. To get things going, we asked Jordan Furlong to give us three bold predictions for 2013. He definitely sees more law firm merger activity. And he also expects that the LSUC’s decision late last year to create an alternative to articling is bigger than most people think. But take a look: His third prediction on the diverging interests of law firms and lawyers is perhaps the most interesting one.

                          More about Jordan's third point here.

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