The Power of Perspectives

The Canadian Bar Association
Beverley McLachlin

Reflecting on the legacy of Chief Justice Beverley McLachlin

By CBA Presidents/Présidents et Présidentes de l'ABC December 15, 2017 15 December 2017

Reflecting on the legacy of Chief Justice Beverley McLachlin

 

On December 15, after 28 years on our highest court and some 37 years as a judge, Beverley McLachlin will retire as the first woman Chief Justice of Canada and the longest-serving Chief Justice in Canada's history.

She is a magnificent contributor, with an undeniably broad influence on all of our lives, indeed on aspects of living that we now take as essential hallmarks of a just and fair society.

No area of the law is untouched. Our Chief Justice has delivered scores of judgments touching on everything from the finer points of contract law, to criminal law, to constitutional issues, including the interwoven roles of the legislative, executive and judicial branches of government, and the proper duties of each. Through these decisions, we have come to grips with things as fundamental as the relationship between Canadians, as individuals or as groups, and the State.

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Privacy

Unwarranted: The search and seizure of text messages in Canada

By Doug Beazley December 15, 2017 15 December 2017

Unwarranted: The search and seizure of text messages in Canada

 

Earlier this month, the Supreme Court of Canada dropped a ruling that (depending on where you sit) either affirms the privacy rights of people taking part in digital conversations — or makes the work of police and prosecutors a whole lot harder.

In 2012, Toronto police executed a series of search warrants at four addresses related to a gun trafficking investigation. Three of the addresses linked back to one Andrew Winchester; one linked back to Nour Marakah. When police executed the warrants they seized the suspects’ phones — Marakah’s BlackBerry and Winchester’s iPhone. A subsequent search of the phones found text messages that police said implicated both men in gun trafficking.

Marakah was convicted of several firearms offences, largely on the strength of the texts he had exchanged with Winchester — texts that were pulled from Winchester’s phone. Marakah challenged the search and seizure of Winchester’s phone under Section 8 of the Canadian Charter of Rights and Freedoms, the section that guarantees against “unreasonable search and seizure.”

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CBA influence

Flagpoling pilot project unlawful, says Immigration Section

By Kim Covert December 14, 2017 14 December 2017

 

A controversial Immigration Department pilot program that the CBA has argued should be stopped is instead being expanded, much to the dismay of the Immigration Law Section.

The Section wrote to Immigration, Refugee and Citizenship Canada in July stating that its members had heard troubling accounts from foreign nationals trying to use the pilot project to renew or confirm status and seek re-entry into Canada. The Section offered up a more collaborative approach to addressing excessive wait times at ports of entry.

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CBA influence

Competition Bureau’s merger fee review would change more than the money

By Kim Covert December 13, 2017 13 December 2017

 

The Competition Bureau’s proposal to increase the amount it charges for a merger review is more than the first fee increase in 14 years – it represents a change in philosophy about how the Mergers Directorate is funded.

In their response to the proposal to increase filing fees to $72,000, the CBA Competition Law Section notes that previous fee analyses have “recognized that administering the Act’s merger provisions has public benefits that should be at least partially funded by taxpayers.” The current proposal assumes that the Mergers Directorate would be funded entirely by filing fees.

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The Supreme Court

Richard Wagner named new Chief Justice

By Yves Faguy December 12, 2017 12 December 2017

Richard Wagner named new Chief Justice

Prime Minister Justin Trudeau has announced that Richard Wagner will be the new Chief Justice of Canada, replacing Beverley McLachlin who retires on Friday.  The pick is hardly a major surprise. Tradition – to the extent there is one – suggested that Justice Wagner, 60, as the most senior member of Quebec, was the safe bet. This is especially so, as Justice Rosalie Abella, the most senior member on the bench, would have to retire in four years.  Prime Minister Stephen Harper appointed Justice Wagner to the Supreme Court in 2012.  Prior to that he had been appointed to the Quebec Superior Court in 2005, before being elevated to the Quebec Court of Appeal in 2011.

He became a member of the Canadian Bar Association in 1980 until he was appointed to the bench in 2004. Wagner sat on the board of the Association’s Quebec Branch and was president of, among others, the Construction Law Section. 

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Cover story

Decolonizing the Indian Act

By Doug Beazley December 8, 2017 8 December 2017

Decolonizing the Indian Act

 

Senator Lynn Beyak was already a controversial figure after her peculiar (and widely condemned) public defence of residential schools back in March. Her follow-up statement in September suggested she’d forgotten the first rule of political communications: When you’re in a hole,stop digging.

“Trade your status card for a Canadian citizenship, with a fair and negotiated payout to each Indigenous man, woman and child in Canada, to settle all the outstanding land claims and treaties,” Beyak wrote on her Senate website. “None of us are leaving, so let's stop the guilt and blame and find a way to live together and share.”

That a Canadian senator apparently believed status Indigenous Canadians are not citizens of Canada isn’t all that surprising – not when you remember that the law defining the First Nations-Crown relationship is 141 years old and was crafted not to support autonomous Indigenous communities, but to wipe out their culture.

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Profile

In person : Caitlin Pakosh

By CBA/ABC National December 8, 2017 8 December 2017

In person : Caitlin Pakosh

 

Caitlin Pakosh is Senior Staff Lawyer at Innocence Canada. She will be pursuing private criminal defence practice in the New Year. Her book, The Lawyer's Guide to the Forensic Sciences, won the 2017 Walter Owen Book Prize for excellence in legal writing and research.

Who has had the biggest influence on you and why?

My parents and my grandma, Mimi. My mother is an inspiration – I had the honour of watching her graduate from every one of her educational pursuits after high school, most recently her masters. Seeing her work so hard my whole life motivated me to pursue my educational opportunities and to truly value them. My father came from Saskatchewan to Toronto with next to nothing and worked his way into corporate finance. He taught me you have to try your best and, if things don’t work out, have a good sense of humor, learn, and move forward. My grandma, Mimi, is a seamstress/fashionista, baker, storyteller, artist, and all-around lovely person. She and I share stories over rum and cokes, both agreeing how great the other is while fully acknowledging that we’re the same personality displaced 60 years apart.

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Legal marketplace

Law firm partnership: in name only?

By Yves Faguy December 8, 2017 8 December 2017

Law firm partnership: in name only?

 

The law firm partnership model has been at the heart of the legal profession’s prosperity for much of the last century. But after decades of enviable growth, it is showing signs of wear. Now, as the legal industry faces major challenges on several fronts, the question is whether it can evolve with the times.

“I just don't think it's going to happen,” says Jordan Furlong, the Ottawa-based legal industry analyst. “The vast majority of law firms are incapable – not necessarily unwilling, though many are – of addressing the fundamental flaws at the heart of their model and making significant structural changes to address them.”

Furlong is not alone in doubting whether the old model can weather the combined forces of technology, globalization and a shift towards a buyer’s market for legal services. “What you’re seeing now is that the strains on the industry are revealing the issues that come with partnership,” says Janet Stanton, a partner at Adam Smith Esq, a New York-based consultancy for the legal industry. Stanton even challenges the notion that partnership was ever all that great a success. “Frankly, everybody was making a lot of money, so it didn’t really matter how they were organized,” she says.

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Practice hub- Lunch with

Stressed out? There’s help for that

By Ann Macaulay December 8, 2017 8 December 2017

Stressed out? There’s help for that

 

THE DINERS

The mentor: Doron Gold, Toronto psychotherapist and former family lawyer

The mentee: Madeleine Tyber, articling student with the Lawyers’ Professional Indemnity Company (LawPRO)

Madeleine Tyber is busy. She is articling with the Lawyers’ Professional Indemnity Company (LawPRO) and balancing her workload with family, hobbies and other personal commitments. Like many, she wonders how new lawyers can manage the stress of making it all work.

Across the table at Planta in Toronto’s Yorkville neighbourhood, Doron Gold, a Toronto psychotherapist and a former family lawyer, delivers some good news: there is plenty lawyers can do to protect their mental health. And there’s help available.

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Big picture

Canada's free-trading partners

By CBA/ABC National December 8, 2017 8 December 2017

Canada's free-trading partners

 

Canada’s federal trade department has been busy in 2017. It has been locked in tough talks with the U.S. and Mexico aimed at modernizing the North American Free Trade Agreement (NAFTA) But Canada has also been working to diversify its market access through trade deals. It has been mandated to negotiate an Asia-Pacific trade deal – known as TPP11 – following the U.S. withdrawal from the Trans-Pacific Partnership (TPP). Consultations have begun on a free trade deal with China. And in September, the bulk of the Canada-E.U. trade deal (CETA) was provisionally implemented. 

Click here for the full infographic.

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Practice hub

What’s your EQ? How lawyers can use emotional intelligence

By Mariane Gravelle December 8, 2017 8 December 2017

What’s your EQ? How lawyers can use emotional intelligence

 

Martin is meeting with a client for the first time. The client has retained Martin to represent him in his divorce proceedings and is becoming increasingly upset as the meeting progresses. Martin now has difficulty eliciting responses to his questions and is becoming frustrated.

Catherine’s client is involved in a lawsuit. The parties have been negotiating an out-of-court settlement for weeks but repeatedly face obstacles. She is on her way to a meeting with the other party and worries they might not be receptive to her offer.

Uncertainty has reigned in Simon’s workplace since the announcement was made that his firm would merge with another. Simon is a senior partner and shoulders much of the responsibility for raising the team’s morale throughout this transition.

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Q&A

Is Canada ready for the new EU data protection rules?

By Yves Faguy December 8, 2017 8 December 2017

Is Canada ready for the new EU data protection rules?

 

The European Union’s General Data Protection Regulation, which comes into force in May 2018, is meant to allow people tighter control over their data and requires businesses to get explicit consent for how they use it. The new regulations have extra-territorial reach, and carry costly fines for violations (up to 4 per cent of global revenues.) CBA National caught up with Anick Fortin-Cousens, the Program Director in IBM's Corporate Privacy Office, to discuss the impact on Canadian businesses.

CBA National: The EU’s GDPR comes in force next May. Why is this important?

Anick Fortin-Cousens: For over two decades Europe has possessed what has been seen by many as the gold standard as it pertains to data privacy laws. Most countries who have legislated in that space have followed its model to various extents. One reason for this is that it encompasses cross-border data flow restrictions which can be lifted if the transfer of personal information is made to a country that has laws deemed to be adequate by the European Union authorities. By adequate we really mean similar, substantially similar, to the European law. Those countries may want to keep it that way for trade and investment reasons, so may adopt similar models. Beyond this, it’s also important because it’s going to require many organizations to up their game.

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