The Power of Perspectives

The Canadian Bar Association

National Blog

Pomp and circumstance: A supreme swearing-in

By Kim Covert December 5 2016 5 December 2016

     

    What do cupcakes and show tunes have to do with the selection of Canada’s newest Supreme Court justice?

    Cupcakes were the fuel and show tunes – led by committee chair Kim Campbell – were the glue that held the special advisory committee appointed by Prime Minister Justin Trudeau together, say sources who shall remain nameless. Committee members “gelled” quickly and did a tremendous amount of work, the sources say, and they’re very pleased with the result.

    The result, of course, is the appointment of Malcolm Rowe as the first Supreme Court Justice from Newfoundland. Rowe was quietly sworn in and put to work three days after he was named to the court in October (“We don’t wait around,” Chief Justice Beverley McLachlin says). The pomp and circumstance, complete with that lovely ermine collar, waited until Dec. 2.

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    Provinces move to help remedy long delays in criminal cases

    By Yves Faguy December 2 2016 2 December 2016

       

      It hasn't taken long for the Supreme Court's ruling in R. v. Jordan, which reframed the right to a trial in a reasonable time (by setting 18 and 30-month presumptive ceiling on criminal cases), to be felt in our criminal justice system.  It has threatened to derail organized crime cases in Quebec as well as numerous first-degree murder charges across the country, some of which have already being stayed because of unreasonable delay. You can sense the panic coming from provincial governments who are suddenly springing into action.  Yesterday Ontario  announced bail reforms and plans to take steps to unclog the courts by investing $25 million to appoint new judges, hire prosecutors and court staff. Quebec’s Justice Minister, Stéphanie Vallée, followed suit today by promising “tens of millions of dollars” to introduce similar measures, though she did not provide an exact figure.  It appears the top court’s call to action is working.

      However, Keenan Sprague writes on Twitter that as laudable as the SCC ruling was, it might carry unintended consequences for the civil justice system.

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      Tips for dealing with self-represented litigants

      By Carolynne Burkholder-James December 2 2016 2 December 2016

         

        The number of people representing themselves in family and civil court has dramatically increased over the last few years throughout Canada. For example, an Alberta study in 2012 found that more than half of family law files involved a self-represented litigant.

        Self-represented litigants pose a challenge for lawyers, their clients and the judicial system in general. Here are some tips on how to deal with them.

        Not all self-represented litigants are the same

        Lawrence Pinsky lawyer at Taylor McCaffrey LLP in Winnipeg, says there are at least two types of self-represented litigants.

        “First, there are those who can’t afford a lawyer. They are self-reps, not by choice but by no choice,” he says.

        “Second, there are the self-reps who are self-reps by choice because they feel that one does not need any sort of education or objectivity to be a lawyer or they really want to have their voices heard or they have personality disorders,” says Pinsky. 

        “I don’t think it’s fair to lump both of those groups together,” he adds.

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        Protecting the non-default position on gender identity

        By CBA/ABC National December 2 2016 2 December 2016

          If you’re cis-gendered, chances are that somebody in the past 10 years has had to explain that term to you – and chances are equally good that you asked why the term was necessary, because to embody the gender you’re born with is generally the default human condition. It’s all those other people who are living hyphenated lives.

          That may be true, but it’s just as true that the cis-gendered mayn’t have the first clue of how difficult life can be when you’re not the default, and the law doesn’t protect your difference.

          The Nunavut Branch of the CBA, along with the Association’s Sexual Orientation and Gender Identity Community Forum, have written to the Nunavut government asking that it amend the territory’s Human Rights Act to include both gender identity and gender expression as prohibited grounds of discrimination.

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          Supporting asylum seekers in South Africa

          By Emelie Kozak December 2 2016 2 December 2016

            It was a Monday morning and I knew the waiting room of our small legal clinic would be packed with new arrivals to South Africa. Most were from Burundi and the Democratic Republic of Congo, having arrived on foot or as stowaways in transport trucks, travelling for days or weeks at a time to reach safety. As they registered at the front desk, they were asked to explain in a few words why they had fled their home countries. The responses were often similar: “War.” “Insecurity.” “I opposed the government and was afraid of being killed.”

            For the first six months of 2016, I worked in Durban for the Refugee and Migrant Rights Programme of Lawyers for Human Rights, a non-governmental organization with offices throughout South Africa. With a staff of less than ten people, the Durban office assists hundreds of asylum seekers and refugees a year. These are people, like you or me, who had no choice but to leave their homes, their families and their lives behind because the threat of arbitrary detention, torture, forced recruitment, sexual violence, or even death, was too great. They are in desperate need of legal advice as they join the nearly one million people attempting to navigate South Africa’s asylum seeker process.

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            Three legal pitfalls for Trans Mountain to avoid the fate of Northern Gateway

            By Supriya Tandan December 1 2016 1 December 2016

               

              Kinder Morgan’s Trans Mountain pipeline may have gotten the nod from Ottawa. But proponents would be wise to draw some legal lessons from the dismissal of Enbridge’s proposed Northern Gateway Project. In May 2016, the National Energy Board reported seven court challenges to the Trans Mountain project from environmental groups, municipalities and indigenous communities. The Trans Mountain project may affect different communities and landscapes than Northern Gateway but it is hardly immune to threats that ultimately killed the Enbridge proposal.

              For starters, the Northern Gateway project was halted due to an improper use of an equivalency agreement between the Government of British Columbia and the National Energy Board. In its decision, the BC Supreme Court held that while the province could rely on a federal environmental assessment, it still had to issue its’ own Environmental Assessment Certificate. As Roy Millen, Sandy Carpenter and Peter Hogg pointed out at the time, the court effectively was telling the B.C. government that it could impose its own conditions:

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              CETA is not a done deal yet

              By Erika Schneidereit November 30 2016 30 November 2016

                 

                After months of uncertainty, CETA appears to be back on track. While the European Parliament has yet to formally back the agreement, it recently rejected a motion that would delay implementation, suggesting that lawmakers will consent to the treaty’s provisional application. So does that mean CETA is safe?

                Although CETA’s future looks relatively secure, any international agreement can be derailed. Canadians caught a glimpse of this with CETA’s last-minute challenge from Wallonia, the French-speaking region of Belgium. Although Walloon Minister-President Paul Magnette (pictured above) eventually withdrew his opposition, this may not be the last roadblock CETA must face.

                To secure Walloon support, Belgium agreed to ask the European Court of Justice to review CETA’s investment dispute settlement system, leaving the door open to one of CETA’s more controversial aspects. Regardless of the Court’s decision, the investment dispute settlement system remains outside the scope of CETA’s provisional application, meaning that all Parties must ratify the agreement before it comes into force. This leaves plenty of time for Wallonia, or any other region, to bring up new concerns.

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                Oversight without access to information

                By CBA/ABC National November 29 2016 29 November 2016

                  Do you need a mechanism to rein in the watchers watching the watchers?

                  Bill C-22, currently making its way through Parliament, seems to put a few too many constraints on a proposed Parliamentary committee that would provide oversight of all national security activity, suggests a CBA submission.

                  In its 2015 submission on the previous government’s Bill C-51, the CBA recommended the creation of a Parliamentary committee “with access to secret information.” But it will not recommend passage of Bill C-22 without important amendments first being made.

                  Bill C-22 contains a number of mechanisms that would actually prevent the committee from carrying out its mandate – by limiting its access to the information it needs, for example, or calling its independence into question. Essentially, the submission suggests, these proscriptions imply a lack of trust in the MPs and Senators who would sit on the committee.

                   “Without trust in the members to act responsibly in the national interest, there is little point in forming a Committee,” the submission says. “If there is trust in the members of the Committee, there is no need for unnecessary restrictions that undermine its work and role...”

                  The CBA’s greatest concern lies with section 16, which would allow Ministers and departments to refuse to provide information on vague national security grounds – an exemption that seems “unnecessary and illogical” because the MPs and Senators that a Minister might prevent from seeing any particular information “have the same lawful authority to see that information as the Minister him or herself.”

                  The Association’s concerns with this section are severe enough that it would oppose passage of the bill if it is not removed, the submission says.

                  “Put simply, section 16 would gut the proposed law and preclude the Parliamentary Committee from achieving its objective. It would create a broad and largely standardless ‘out clause’ for Ministers to exempt themselves from the Committee’s disclosure regime.”

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                  Renegotiating NAFTA: Opportunities for Canada

                  By Justin Ling November 29 2016 29 November 2016

                     

                    If you deal in trade law in Canada — or are one of many, many lawyers who have clients integrated into the North American market — you might be looking at the current continental state of affairs in one of two ways.

                    The bright side: more work for lawyers.

                    The downside: the world’s most ambitious trade deal could be in jeopardy.

                    But despite the uncertainty thrust into the global financial markets following the election of trade-skeptic President-Elect Donald Trump, some legal experts observers are allowing themselves some degree of optimism.

                    “I think we need to walk away from the notion that the negotiations are a sky-is-falling scenario,” Clifford Sosnow, a partner in Fasken Martineau’s Toronto and Ottawa offices told CBA National. “The truth of the matter is, we really don’t know. When we look at NAFTA, it really does allow for parties to modify or make additions.”

                    Allowing for some changes, he says, might be perfectly healthy. At the very least, the worst-case scenario isn’t likely that bad.

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                    Laws of gravity: Aviation ownership and security

                    By CBA/ABC National November 28 2016 28 November 2016

                       

                      Look up in the sky! It’s a plane! Is it Canadian?

                      That last question is a little harder to answer when it comes to a globalized aviation industry, as the CBA’s Air and Space Law Section notes in its response to the Canada Transportation Act Review Report. The Section’s response deals specifically with Chapter 9 of the report on air transport, and addresses issues of economic policy, aviation safety and customer complaints.

                      The Section suggests that economic policy and competition related to air transport should be the purview of the Canada Transportation Agency (CTA), not Transport Canada. Canada appears to be the only Chicago Convention signatory-nation where economic policy matters are addressed by the same regulator that oversees aviation security.

                      Recommendation 4 in the Air Transport chapter, which advises the government to allow foreigners to own up to 49 per cent of an air carrier, up from the current 25 per cent, raises the question of de facto control vs. de jure control. The Section notes that any time the Minister has previously allowed a foreign company 49 per cent ownership, this has, “notwithstanding regulatory decisions to the contrary, resulted in clear de facto control residing outside of the Canadian jurisdiction. For these reasons, should this recommendation be adopted, changes would also be necessary to the Act insofar as the de facto control provisions are concerned.”

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                      SCC protects solicitor-client and litigation privilege

                      By CBA/ABC National November 25 2016 25 November 2016

                        The Supreme Court handed down a pair of decisions today on solicitor-client and litigation privilege.  The CBA intervened in both cases.

                        In Alberta (Info. and Priv. Comm.) v. Univ. of Calgary, the Court held that Alberta’s privacy commissioner cannot order the production  of records over which an organization has claimed to be protected by solicitor-client privilege.  The case turned on s. 56 (3) of the province’s Freedom of Information and Protection of Privacy Ac. Justice Suzanne Côté wrote:

                        As this Court held in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. In the present case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege. It is well established that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection. Therefore, I am of the view that solicitor-client privilege is not captured by the expression “privilege[s] of the law of evidence”. Moreover, a reading of s. 56(3) in the context of the statute as a whole also supports the conclusion that the legislature did not intend to set aside solicitor-client privilege. Further, even if s. 56(3) could be construed as authorizing the Commissioner to review documents over which privilege is claimed, this was not an appropriate case in which to order production of the documents for review. Consequently, I would dismiss the appeal.

                        Representing the CBA in this matter were former CBA president Michele Hollins and Jim Lebo of McLennan Ross LLP, both of Calgary.

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                        Housekeeping items: Following up on promises for MAID

                        By CBA/ABC National November 25 2016 25 November 2016

                          In June, the Liberals’ Bill C-14 on medical assistance in dying received royal assent despite widespread criticism that it was more restrictive than the Supreme Court’s ruling in Carter had said it need be. The saving grace was the government’s promise that it would carry out further study “in the context of mature minors, people for whom mental illness is the sole underlying condition and advance requests” within six months of the bill passing into law.

                          With the six-month deadline approaching and “planning likely underway” to begin these studies, CBA President René Basque wrote to Justice Minister Jody Wilson-Raybould and Health Minister Jane Philpott to lay out the CBA’s position on these issues.

                          At the CBA Legal Conference in Ottawa this past August, Council passed three resolutions proposed by the Association’s End of Life Working Group meant to advance the discussion on medical assistance in dying on the issues the Liberals have promised to revisit.

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