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The Canadian Bar Association
CBA Influence

A few challenges in the reinstated Court Challenges Program

By Kim Covert June 23, 2017 23 June 2017

 

The Canadian Bar Association is happy to see the Court Challenges Program reinstated. The program has played an important role in developing groundbreaking jurisprudence on equality and language rights in Canada.

That said, the reinstated and modernized program as proposed – particularly the decision to extend the scope of the Program and the continued exclusion of Aboriginal and treaty rights – has triggered some concerns.

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National security

The new national security bill: Just tinkering?

By Justin Ling June 22, 2017 22 June 2017

The new national security bill: Just tinkering?

 

The federal government unveiled its wide-ranging national security overhaul this week, to a chorus of decidedly mixed reactions.

The omnibus legislation, bill C-59, updates a wide array of Canada’s national security framework, from adding the role of an Intelligence Commissioner, tasked with approving operations and activities; to the newly-created oversight committee, designed to keep a watchful eye on the wider security environment; to the creation of a standalone legal authority for the Communication Security Establishment, the country’s spy agency that performs foreign electronic surveillance.

At the core of the bill is a plan to trim aspects of C-51, the Harper government’s previous attempt to overhaul the Anti-Terrorism Act and CSIS Act, which drew heavy criticism from a variety of constitutional and criminal lawyers.

One of the most controversial aspects of C-51 was its commitment to allow CSIS to break Canadians’ Charter rights in pursuing its newly-afforded disruption powers.

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CBA influence

‘Use’ requirement for trademark registration doesn’t need fixing

By Kim Covert June 22, 2017 22 June 2017

 

Amendments  to the Trade-Marks Act made in 2014, despite not being fully implemented yet, have already encouraged squatting and over-claiming, and have resulted in a 75 per cent increase in the number of Canadian applications waiting to be registered, from 40,000 in 2014 to nearly 70,000, the CBA National IP Section says in a letter to Innovation, Science and Economic Development Canada.

“We believe many of these pending applications would be registered, but for the current requirement to file a declaration of use,” the Section says.

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CBA Influence

End of life: Chairs are seated, let’s get to work

By Kim Covert June 22, 2017 22 June 2017


In April, the Council of Canadian Academies announced the appointment of its Expert Panel on Medical Assistance in Dying, to be chaired by former Supreme Court Justice Marie Deschamps.

It also announced the chairs of the working groups tasked with studying the three areas that the federal government marked out for further study when it passed the medical assistance in dying law: mature minors, advance requests and mental illness.

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Big picture

The long road to reconciliation

By CBA/ABC National June 19, 2017 19 June 2017

The long road to reconciliation

 

In 1996, the Royal Commission on Aboriginal Peoples issued a roadmap for transforming the relationship between Aboriginal peoples and the Crown. The majority of its recommendations were never implemented. But its findings “opened people’s eyes and changed the conversation about the reality for Aboriginal people in this country,” the Truth & Reconciliation Commission later wrote.

In 2016, Canada declared its full support for the UN Declaration on the Rights of Indigenous Peoples which recognizes Indigenous Peoples’ rights to self-determination, language, equality and land, among others.

Despite some progress, however, the issues identified more than 20 years ago remain a pressing concern. As Canada prepares to mark National Aboriginal Day on June 21, here is a snapshot of the community.

Source: Aboriginal Peoples in Canada: First Nations People, Métis and Inuit, 2011 National Household Survey, Statistics Canada.

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Cover story

Will the Jordan ruling speed up reform of our justice system?

By Doug Beazley June 16, 2017 16 June 2017

Will the Jordan ruling speed up reform of our justice system?

 

Back in March — less than a year after the Supreme Court of Canada rolled a live grenade into the nation’s courtrooms with its ruling on R v. Jordan — someone asked Eric Gottardi what he thought the long-term fallout from the decision would be. “I still don’t know what to think of it,” he said. “Whether they’re right or wrong, time will be the judge of that.”

Ask him the same question today and you’ll get roughly the same answer. “The thing is, I still think it’s too early to tell,” says Gottardi, the Vancouver-based criminal lawyer who represented Barrett Jordan on trafficking charges before the SCC when — in an unusually contentious 5-4 split decision — the justices not only ruled that the 49.5 months it took to complete Jordan’s trial constituted a violation of his Charter rights, they set a hard cap on the length of trials: 18 months in provincial court, 30 months in Superior Court.

“We have to see what happens with subsequent cases. We still don’t know if Jordan has rewritten all the relevant jurisprudence, or just the central stuff. In the short term, I think most of the impact has been good. We’re used to seeing these sorts of warnings from the courts almost cyclically. But it’s a perpetual problem — and long-term, it’s not getting any better.”

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In person

In person: Orlando Da Silva

By CBA/ABC National June 16, 2017 16 June 2017

In person: Orlando Da Silva

 

A former president of the Ontario Bar Association, Orlando Da Silva became a mental health advocate after opening up about his personal struggle with depression. He is counsel with the Crown Law Office – Civil, Ministry of the Attorney-General, Ontario.

National Magazine: Who has had the biggest influence on you and why?

Orlando Da Silva: My father was an angry working class man who suffered no fools and demanded excellence from his children. He was a hard man to please. He left home when I was 10 and died when I was 19 and he was only 51. Yet, in his short life, he taught me about perseverance and persistence. I have used both to challenge my doubts and fears, which, in turn, allowed me to engage the world in rewarding and often surprising ways. So in the end, my father taught me gratitude for having, and continuing to live, an interesting life.

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Practice hub

Social notes: When Bench & Bar meet

By Suzanne Dansereau June 16, 2017 16 June 2017

Social notes: When Bench & Bar meet

The Diners

The retired judge: The Honourable François Rolland. Appointed judge of the Superior Court of Québec in 1996, then Chief Justice in 2004. As of 2015, manages the voluntary reimbursement program implemented by the province following revelations of fraud in public contracts during the Charbonneau Commission.

The lawyer: Stéphane Verreau Verge, Lévis. Civil litigator, cofounded Verreau Dufresne Avocats in 2013. In 2015, created a website to help citizens file cases with the Small Claims Division. Advocates for modernization of the justice system.

Two men are seated together for a light meal at Modavie in Old Montréal: Lawyer Stéphane Verreau Verge has come from Québec and chosen the salmon tartar, while François Rolland, former Chief Justice of the Superior Court, enjoys bass with a side of vegetables—no carbs. There will be no wine at this lunch as the men discuss the relationship between judges and lawyers in a social context.

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Practice hub

Does your office need an ombudsperson?

By Julie Sobowale June 16, 2017 16 June 2017

Does your office need an ombudsperson?

 

Melanie Raymond vividly remembers her first impression of law firm culture as an articling student.

“I was surprised in my first encounters with fellow colleagues about how everybody was bragging about being overloaded with work,” says Raymond, a commissioner at the Immigration and Refugee Board of Canada. “I was surprised how this was something that was seen as positive.”

Every workplace culture is different – and those differences can lead to conflict. In a diverse work environment, it’s easy to miscommunicate and a simple misunderstanding can quickly escalate into a full-blown fight. 

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Conflicts of law

Home trade: A free-trading nation comes of age

By Yves Faguy June 16, 2017 16 June 2017

Home trade: A free-trading nation comes of age

 

In the last six months, we’ve seen the United States drop the Trans-Pacific Partnership, then threaten to pull out of NAFTA, and Britain trigger its formal divorce from the European Union.

But as the world flirts with rising protectionism, Canada carries on as a free-trading nation in a hurry, pursuing ambitious talks far and wide; with China, India, Japan and now the Mercosur trading bloc. It has agreed to reopen NAFTA in the hopes of saving it. Fingers are still crossed on full ratification of the Comprehensive Economic and Trade Agreement with Europe. Informal discussions are taking place with Britain — still barred from direct talks until Brexit is completed. In May, Canada hosted its jilted TPP partners in an effort to salvage part of that deal. And on July 1st, new free trade rules come into force between the provinces under the Canadian Free Trade Agreement.

Save perhaps for that last bit, none of these efforts are controversial in the least due to this country’s broad acceptance that trade and globalism are the key to Canada’s economic well-being.

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Q&A

Benjamin Alarie on intuition versus the data

By Yves Faguy June 16, 2017 16 June 2017

Benjamin Alarie on intuition versus the data

 

Over the last few years, we’ve seen artificial intelligence make inroads into every sector of the economy, from health care and education to finance and law. At the CCCA’s National Conference in April, Yves Faguy interviewed Benjamin Alarie, CEO of Blue J Legal, which uses machine learning to help predict tax case outcomes, about the promise that AI holds for law firms and possible pitfalls.

CBA National: There are quite a few legal outfits, here in Canada, moving into the AI space. How do you explain that?

Benjamin Alarie: There are a few different reasons why it’s happening now. One is that legal research for a very long time was purely analog. And then we saw the advent of digital in legal research and now we’re seeing the advent of computational legal research where you’re using applied mathematics to extract information from the digital content. And what facilitates that is the computing power that’s now available and the algorithms that allow us to harness that power and engage in computational legal research.

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Conduct becoming

First come, first served: Revisiting the cab rank rule

By Gavin & Brooke MacKenzie June 16, 2017 16 June 2017

First come, first served: Revisiting the cab rank rule

 

Lawyers agree about the importance of competent legal representation for accused persons in criminal matters even when the charges relate to the worst offences imaginable. But do Canadian lawyers have any responsibility to represent unpopular parties in civil cases?

In Britain, barristers are bound by the “cab rank” rule: barristers, like taxis, must accept work on a ‘first-come, first-served’ basis. Barristers must accept matters appropriate for their experience irrespective of the client's identity, the nature of the case, or “any belief or opinion which [they] may have formed as to the character, reputation, cause, conduct, guilt, or innocence of the client”.

Canadian lawyers are not subject to the cab rank rule per se. We are entitled – in criminal and civil cases alike – to decline a retainer because we disagree with a client’s cause or conduct, but our regulators discourage this. 

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