The Power of Perspectives

The Canadian Bar Association

National Blog

National security legal analysts brace themselves

By CBA/ABC National November 10 2016 10 November 2016


    Benjamin Wittes of the Brookings Institution and the editor in chief of Lawfare defines his role in the years ahead during the coming Trump presidency:

    Trump’s election will fundamentally change my work on this site over the next few years, and probably off the site too. Because at least for me, Trump does not enter office with a presumption of regularity in his work. He does not enter office with a presumption that as President he will pursue a vision of what national security means that is remotely related to my own or that he will do so in a rational fashion—or even that he and I share a common idea of what aspects of this nation we are trying to secure. I take what he has said, over a long period of time now, too seriously for that.  

    So in a way I never did with George W. Bush or Barack Obama or Bill Clinton—the other presidents I have covered as a journalist or analyst—I will write about the actions of the Trump presidency with the working assumption that our nation must be protected both by and from the president. I will support him and dispassionately analyze policy and law related to his functioning as the lawful executive responsible for the nation’s security. But I will always also keep the sharpest of eyes out for the areas where he himself is the threat and dispassionately analyze policy and law related to the threat he poses.

    Craig Forcese, noting the unlikelihood of a Trump administration being “a government of law by lawyers,” tackles the ripple effects in Canada:

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    Conflicting decisions on conflicting rights

    By Jena McGill November 9 2016 9 November 2016


      This week the Law Society of British Columbia (LSBC) announced its intention to seek leave to appeal to the Supreme Court of Canada the recent decision of the British Columbia Court of Appeal in Trinity Western University v the Law Society of British Columbia. TWU has already filed its leave application in the parallel Ontario case. The opposing conclusions reached by the appeal courts in British Columbia and Ontario on the reasonable balance between the religious rights of the TWU community and the equality rights of LGBTQ Canadians are sure to make for a particularly contentious debate at the country’s highest court.

      The facts of the TWU law school dispute are by now well known: all TWU students must sign a Community Covenant that prohibits sexual intimacy outside of heterosexual marriage.  In 2014, the law societies of British Columbia and Ontario (as well as Nova Scotia) denied TWU’s applications for accreditation of its proposed law school on the basis that the Covenant discriminates against LGBTQ students.  The refusals mean that graduates of TWU would not be eligible to be called to the bar in these provinces. TWU sought judicial review of these decisions.

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      How Trump could dump the Paris Agreement

      By Supriya Tandan November 9 2016 9 November 2016

        A month before the last night’s election the  Sandra Day O’Connor College of Law published a document outlining the legal pathways a U.S. President could use to withdraw from the Paris Agreement. There are two major routes.

        The slower route would be to withdraw from the Paris Agreement itself. Article 28.1 of the Paris Agreement authorizes a country to withdraw from the agreement without reason or justification. The only limitation is timing. Countries would only cease to have emission reduction and reporting obligations four years after the agreement came into force. If President Trump gives notification for withdrawal on the first day of his term, then the withdrawal would only come into force on November 4, 2020.

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        Artificial intelligence is not magic...

        By Natalie McFarlane November 9 2016 9 November 2016


          But the magic happens where legal tech and the legal profession intersect.  This was the key message that emerged from Toronto Legal Hackers’ inaugural event on Cognitive Computing and the Future of Law that took place at Dev Hub last month.  

          A room of lawyers, technologists and people keen on the role of AI in legal technology joined Legal Innovator and ABA Best-selling Author, Mitch Kowalski, as he engaged the audience and panel of legal technology startups on the existing and potential implications of AI on the legal profession.  The featured panelists were Cian O’Sullivan: Founder of, Mona Datt: Co-founder of Loom Analytics, Rob Warren Ph.D.: Chief Data Scientist of Kira Systems, and Josh Borts: Co-founder of Functional Imperative and Lighthouse Labs.

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          Removing obstacles to family reunification

          By CBA/ABC National November 8 2016 8 November 2016


            Cost vs. Value is one of the principal tensions that plays out in Canada’s immigration policy – fears that family-class immigrants will be a burden on the economy without adding to it tend to trump any consideration of the value these immigrants will bring.

            “The economic, social and cultural benefits of family reunification have been underestimated, particularly when the analysis of these benefits includes multiple generations,” the Immigration Law Section says in a submission it prepared for the House Committee on Citizenship and Immigration’s study of family reunification. Section Chair Vance Langford appeared before the committee in late October. (Vance Langford also spoke briefly with

            The Section supports the principle of family reunification as an objective of the Immigration and Refugee Protection Act and has several ideas for improving an obstacle-ridden process which can stretch well beyond reasonable limits of time and patience.

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            CSIS' illegal collection of metadata

            By Justin Ling November 8 2016 8 November 2016


              Figuring out the legal strategy behind top-secret intelligence gathering by CSIS, and how the Attorney General defends its methods, isn’t easy.

              But a recent decision from the Federal Court peels back a layer of the onion in a way that the public doesn’t usually get to enjoy.

              Reviewing an application for undisclosed warrants, and in an effort to amend CSIS’ warrant templates, the Federal Court discovered some unsavoury and flatly illegal data retention policies taking place inside Canada’s main human intelligence agency.

              The court found that the spy agency’s practice of archiving metadata for “third-party, non-threat” Canadians — people who had their data swept up under a lawful warrant — was completely contrary the Canadian Security Intelligence Service Act.  The Act requires the service to delete all data collected, unless it is directly authorized under a warrant, pertaining to an ongoing investigation, relating to the security of Canada, or otherwise relevant to the conduct of foreign affairs or the Canadian military.

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              A modest judge

              By Léonid Sirota November 7 2016 7 November 2016


                There has been some debate about whether Justice Russel Brown of the Supreme Court was part of a trend of judicial arrogance. Alice Woolley argued that he was, citing the opening paragraph of his majority opinion in Canada (Attorney General) v Igloo Vikski Inc. I said no, as did Nicholas Hay over at The Court. So it is timely that Ultra Vires, the University of Toronto Faculty of Law student newspaper, has recently published an interview with Justice Brown himself. While it contains no insights on the art of hockey goaltending, it does give us a better sense of Justice Brown's views on judging ― and indications, insofar as extrajudicial talk, which like any talk is by definition cheap, can give us indications about the judge's true views, that this judge is a rather modest one.

                In response to a question about the influence of his background on his judicial work, Justice Brown says that his "experience as an academic has been helpful in the sense of taking seriously what the other side says". (Actually, this is a useful reminder for academics as well as judges; Justice Brown attributes it to advice from David Dyzenhaus, and prof. Dyzenhaus will not give bad advice!) Audi alteram partem ― listen to the other side ― is of course the very first part of a judge's job description, but keeping to it consistently does require some humility, or at least an awareness that one does not have all the answers worked out beyond dispute.

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                Advancing gender equality in the workplace

                By Mariane Gravelle November 4 2016 4 November 2016

                  Wednesday evening, capping an unseasonably warm Fall day in Ottawa, was an event hosted by the National Association of Women and the Law (NAWL) to formally launch their new bilingual, free, web-based Feminist Law Reform 101 course. The evening provided its many attendees with the opportunity to connect with like-minded people while offering them a look at this terrific new resource.  

                  In attendance at the event were newly-appointed Senator Kim Pate, Shirley E. Greenberg – who attended law school in the 1970s and has long been a trailblazer for the Women’s Rights movement – and The Honourable Patti Hajdu, Federal Minister of Status of Women. Both Greenberg and Hajdu addressed the crowd and recounted their – very inspiring – experiences of working in predominantly masculine fields. While Greenberg light-heartedly shared her hope that there were budding “rich women” present in the crowd who could, one day, finance Women’s Rights initiatives, Hajdu cautioned the audience that the fight for equality wasn’t yet over. She told of a few instances in which she and her female colleagues on the Hill experienced some differential treatment that was likely due to their gender. Though she vehemently assured the audience that her lived experiences did not stem from a place of unkindness, she did use those examples to highlight society’s underlying gender inequalities.

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                  When newspapers call judges traitors

                  By Yves Faguy November 4 2016 4 November 2016


                    The London High Court ruling that Parliament must get a say in triggering article 50 has generated plenty of furor, including over this front page headline of the Daily Mail recklessly declaring the judges to be “enemies of the people.”

                    Here are some other unsettling headlines from the gutter press.

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                    Admitting hearsay evidence

                    By Justin Ling November 3 2016 3 November 2016


                      How good is the word of a snitch?

                      That’s the question that the Supreme Court of Canada is wrestling with today, as it hears oral arguments in R. v. Bradshaw.

                      The case could determine how criminal courts deal with the principled exception for hearsay evidence.

                      In this case, police suspected Robert Bradshaw and Roy Thielen in a pair of murders in British Columbia. Police collected evidence on the dual murder plot stemming from a Mr. Big operation run on Thielen, and clandestine audio records used to eavesdrop on conversations between the two men. They also eventually obtained confessions from Thielen.

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                      An initiative that helps families in marital breakdown

                      By CBA/ABC National November 2 2016 2 November 2016

                        Its name doesn’t trip off the tongue and its abbreviation is no catchy acronym, but the Supporting Families Experiencing Separation and Divorce Initiative has been a boon to families in marital breakdown.

                        Established in 2009 as a five-year, $122-million project by Justice Canada, the Initiative was “intended to strengthen the family justice response to the needs of families experiencing separation and divorce by contributing to the continued improvement of access to family justice and by encouraging greater parental compliance with family obligations, notably support and access.”

                        Both the federal and provincial components of the SFI are scheduled to end on March 31, which is why the CBA Family Law Section has written to Justice Minister Jody Wilson-Raybould in a plea to have it renewed with a permanent mandate.

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                        BC Court of Appeal: Benchers "abdicated their responsibility" in TWU decision

                        By CBA/ABC National November 1 2016 1 November 2016


                          The Court of Appeal for British Columbia has decided in favour of Trinity Western University and against the Law Society of BC.

                          The Court is particularly critical of how the LSBC's came to its decision:

                          …we conclude that the Benchers improperly fettered their discretion by binding themselves to adopt the decision of the majority of members on whether “not to approve”. It appears they did so altruistically in the sense of letting “democracy” dictate the result, and letting the members have their say. But in so doing, the Benchers abdicated their duty as an administrative decision-maker to properly balance the objectives of the Legal Profession Act with the Charter rights at stake.

                          The ruling also draws the following conclusions on the balancing of Charter rights:

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