The Power of Perspectives

The Canadian Bar Association

Kim Covert


CBA resolution calls for limits on disclosure of non-criminal records

By Kim Covert January 17, 2019 17 January 2019

CBA resolution calls for limits on disclosure of non-criminal records


Anyone who’s ever watched a cop show knows that the perpetrator is often caught thanks to a fingerprint left at the scene.

What’s less well-known is that even minor interactions we have with the criminal justice system can leave a fingerprint on the record – literal or virtual. Someone looking for a job or a travel visa can be tripped up because they were once implicated in an investigation, even if they were never charged with or found guilty of an offence.

One of the three resolutions up for discussion at this year’s AGM would have the CBA urge governments of all levels to limit the disclosure of non-conviction information that resides in law-enforcement databases, as well as to provide a way for people to review that information and address any errors or immaterial content.

“It’s an important initiative that legislation could support to protect people’s privacy and protect people who are marginalized,” says Tony Paisana, L&LR Coordinator for the CBA’s Criminal Justice Section. “Numerous studies have concluded that people from marginalized and racialized communities are far more likely to interact with police at a disproportionate rate, and these non-conviction records are created at a much higher rate with respect to these people who are already at a disadvantage.”  To see their opportunity at getting a job or an education thwarted because of a record that they had no opportunity to challenge does not reflect our Charter values, he says.

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CBA influence

In summary, trials preferred to hearings

By Kim Covert December 17, 2018 17 December 2018


Bill C-77, which is currently before Parliament, would bring a “fundamental change” to the military justice system by amending the National Defence Act and related legislation to change the system of summary trials, creating a non-penal, non-criminal process for dealing with minor service infractions by military personnel.

As it stands, members of the Canadian Armed Forces who are charged with an offence can elect to be tried by court martial or by summary trial, depending on the seriousness of the offence – courts martial, which are similar to civilian criminal courts, are used for more serious offences. Summary trials are decided by a commanding officer and have fewer procedural protections. In 2017-2018 there were 596 summary trials and 62 courts martial.

What’s being recommended in Bill C-77 is that summary hearings take the place of summary trials, with a lesser burden of proof – a balance of probabilities instead of proof beyond a reasonable doubt. The bill introduces the concept of service infractions – non-criminal offences punishable by one or a combination of sanctions such as demotions, reprimands or loss of pay.

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Best interests of the child primary concern in Divorce Act changes

By Kim Covert December 13, 2018 13 December 2018


There’s much to applaud in Bill C-78, which amends the Divorce Act and other related legislation: the increased use of plain language, for example, along with proposals to replace the terms “custody and access” with concepts related to parenting; adopt a list of relevant factors in the determination of a child’s best interests; and encourage use of alternative dispute resolution processes, among others.

Still, a number of CBA Sections, led by the Family Law and the Child and Youth Law Sections, have proposed a total of 45 recommendations for changes to make to the bill. The concern central to most of these recommendations is that the best interests of the child be a paramount consideration in every facet of the Act that touches on children.

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IP Section recommends items for consideration in Copyright Act review

By Kim Covert December 12, 2018 12 December 2018


“The subject of copyright can be quite controversial,” says the CBA’s Intellectual Property Section in its submission regarding the statutory review of the Copyright Act.

The Section proceeds to avoid taking sides in the controversies by focusing its response on “the practice of law in Canada, particularly the ability of lawyers to provide clear advice to clients in the field.” A theme that runs through the letter is using judicial resources only when really necessary.

It recommends several issues be considered as part of the review:

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Bill C-83: Vague language could render good intentions meaningless

By Kim Covert December 10, 2018 10 December 2018


It could be said that when it comes to the Corrections and Conditional Release Act, the problem is not so much with what’s in it as with what is absent – a guiding philosophy.

In recent years language requiring “that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders” was removed. The CBA’s Criminal Justice Section recommends that this “guiding principle” be restored, and along with it provisions to ensure that prisoners are out of their cells and allowed human contact as much as possible throughout the day.

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