The Power of Perspectives

The Canadian Bar Association

National Blog

Sympathy for fallen cop basis of flawed proposed legislation

By Kim Covert April 25 2017 25 April 2017

     

    A proposed bill that made it from the Senate to the House of Commons on a wave of sympathy for the police officer whose death prompted it is so flawed it should not pass into law, says the CBA’s National Criminal Justice Section.

    Bill S-217, sponsored by Conservative Senator Bob Runciman, was drafted in response to the death of Edmonton RCMP Const. David Wynn, who was killed by a “career criminal” out on bail.

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    Canada's Criminal Code needs a "different perspective"

    By Yves Faguy April 19 2017 19 April 2017

       

      Lisa Silver has an interesting post up with some ideas on modernizing the Criminal Code.  She welcomes the repeal of invalid “zombie” provisions that the government is looking to remove, but is less impressed with recently proposed amendments to the impaired driving offences – “Charter unfriendly”, in her view – that are part of the government’s move to legalize pot by next year. She laments that the government is taking a piecemeal approach to the Code’s modernization and makes a pitch for a grander makeover:

      What needs to be done instead of modernization for the sake of modernizing is a thoughtful and deliberate consideration of the whole of the Code. What needs to be done is a rethinking of our criminal law not as a jumble of sections prohibited conduct but as a unified reflection of societal values. This includes all of what the criminal law stands for such as the integrity of the administration of justice itself.  This requires, as suggested by the Supreme Court of Canada in Jordan, a cultural change. Not just a “new look” but a different perspective. To do this, instead of taking a page from the Code, let’s learn from our case law and use the principled or contextual approach to change. Real change is only possible if we design laws holistically mindful of the law as a mere part of the larger social fabric. Laws can act as visual markers, creating and defining social space in a community. Successful laws will therefore integrate with society, be flexible to societal needs and frame societal space. The Criminal Code must therefore be considered as part of the social landscape and be created as a marker of who we are, not as a headstone marking the past. The federal government has an opportunity to do this, let’s hope that in the next step to rethinking the Criminal Code, they will fulfill their promise and do just that.

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      Enriching Canadians’ access to justice through language

      By Kim Covert April 19 2017 19 April 2017


        Nearly 49 years after then-prime minister Pierre Trudeau introduced the Official Languages Act in the House of Commons, and 48 years since it became law, the federal government is preparing to develop another action plan on official languages.

        The CBA has gone on record as strongly encouraging the government to include improved access to justice in both official languages as part of its calculations.

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        The fight over mandatory CPD: A waste of judicial resources?

        By Yves Faguy April 18 2017 18 April 2017

           

          Omar Ha-Redeye struggles to understand why anyone would take on mandatory CPD imposed by his law society as something worthy of a challenge all the way to the Supreme Court of Canada (in Green v Law Society of Manitoba, the top court ruled that law societies can suspend lawyers for not completing their mandatory credits)

          Aside from the fact that he was being compelled to do it, I'm not exactly sure what the lawyer was objecting to with mandatory CPD. Granted, many lawyers simply complete it to check off a box. But many more actually benefit from CPD, gaining useful insight into strategy and techniques, obtaining copies of checklists and precedents, or learning about new and emerging areas of law.

          Jim Middlemiss thinks he’s missing the broader point:

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          CBA welcomes diversity measures in Bill C-25

          By Kim Covert April 11 2017 11 April 2017


            Changes to the Canada Business Corporations Act designed to make certain enterprises more accountable for diversity in corporate leadership get a thumbs-up from a number of CBA groups.

            The Canadian Corporate Counsel Association, the Women Lawyers Forum, the Business, Charities and Not-for-Profit and Competition sections and the Equality Committee collaborated on a submission responding to Bill C-25, which proposes amendments to the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-Profit Corporations Act and the Competition Act.

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            Technology-neutral PIPEDA’s consent model has aged well; Regulations have not

            By Kim Covert April 7 2017 7 April 2017


              If it ain’t broke…

              That’s essentially what the CBA told the Access to Information, Privacy and Ethics Committee in March about the existing consent model in PIPEDA – the Personal Information and Protection of Electronic Documents Act that was enacted in 2001.

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              CBA groups urge repeal of Criminal Code section 159 at ‘earliest opportunity’

              By Kim Covert April 6 2017 6 April 2017


                It used to be that when the Criminal Code talked about sex, it talked about sexual acts – and it made a whole host of them illegal – particularly if they were associated with homosexuality. But in the 1980s, a more open-minded wind blew through the Code, bringing with it the idea that the specific acts should be less of a focus than the age of the people performing them and their capacity to consent to them.

                As it currently stands, the age of consent is 16, and 16-year-olds can consent to any form of sexual activity that it pleases them to engage in – except one.

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                When the U.S. turns its back on Pacific trade

                By Yves Faguy March 14 2017 14 March 2017

                   

                   

                  Adam Behsudi reports on the trade fallout from the U.S. dumping the TPP:

                  Competitors say they have no choice but to take the money U.S. businesses would have earned otherwise.

                  “We are not trying to take market share from the U.S. It’s more like you are putting money on the table and pushing it towards us,” said Carlo Dade, director of trade and investment policy for the Canada West Foundation, a Calgary-based think tank.

                  Carlos Dade (featured in the video above) has an interesting primer where he ranks the possibilities for the other TPP prospects, including Canada:

                  Without the TPP, Canada does better defensively in not having to worry about competitors gaining access to the U.S. market. But it does worse offensively in having the poorest access to Asian markets of any country on the Americas’ Pacific coast. This makes Canadian attempts to diversify away from its dependence on the U.S. market more difficult.

                  Canada also appears to stand to gain the most from the TPP going ahead without the U.S. as its companies, but not American firms across the border, will have preferential access to the new bloc. This could create a powerful incentive for firm relocation. Mexico will receive a similar but potentially smaller boost as it lacks Canada’s English language operating environment for service firms.

                  All of this could be viewed offensively, in both senses of the word, by the Trump administration.

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                  All in good time: Private right of action provisions in CASL can wait

                  By Kim Covert March 3 2017 3 March 2017


                    When Canada’s Anti-Spam Legislation was passed nearly three years ago, it contained provisions for private rights action, which come into force on July 1, 2017, as well as a requirement for a statutory review, also scheduled to begin on July 1, 2017.

                    In a letter to Innovation, Science and Economic Development Canada, the CBA makes a strong argument for holding off on implementing the former until the latter is completed.

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                    Clarity and consistency: What IRCC needs for client service delivery

                    By Kim Covert March 1 2017 1 March 2017


                      In January, the CBA National Immigration Law Section outlined how the government can improve the way it deals with immigrants, in a submission to the Standing Committee on Citizenship and Immigration’s study on the modernization of client service delivery. The MPs want to know about the experience clients have with the government departments and recommend best practices for improvement. Why? Because when things go wrong, the complaints land on their desks.

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                      Social media and the Rule of Law

                      By Yves Faguy February 28 2017 28 February 2017

                         

                        We have often discussed in this space the impact of social media and misinformation on public confidence in our justice system, and the need to adapt how we educate the public about the law.  Mark A. Cohen describes how he views the challenge:

                        Snippets of human interaction are captured on a smart phone or other device and go viral in minutes. This creates an instant, powerful, quickly scalable, and often biased court of public opinion. Social media is unfettered by rules of evidence that weigh credibility, materiality, and prejudicial impact. Social media is wildly popular because it is accessible, fast, unfiltered, and largely devoid of rules—the antithesis of the deliberate-often snail like pace of the judicial process. Social media has become a people’s court, shaping public opinion by providing a snapshot rather than a montage of human interaction and lacking truth filters. Social media also can serve as a global bullhorn for ‘leaks,’ misinformation, and propaganda. There are no easy fixes. Technologists, social scientists, media experts, legislators, and lawyers—among others– must create inter-disciplinary guardrails for social media to insure—among other things—that it does not subvert the judicial process. Social media is a new frontier in establishing appropriate boundaries for free speech as well as ensuring that the court of public opinion does not eclipse the judicial process as the arbiter of the social contract.

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                        Personal information in the balance under SCISA

                        By Kim Covert February 27 2017 27 February 2017


                          When it comes to information sharing for national security, everything is a balancing act – the government needs to protect its citizens from outside threats without depriving them of their civil liberties in the process. Both of these important concerns are fundamental to our freedom.

                          Parts of the Security of Canada Information Sharing Act, according to the CBA, may tip the scales a little too far toward national security.

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