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The Canadian Bar Review is now open access

By Yves Faguy May 24, 2018 24 May 2018

The Canadian Bar Review is now open access

Open research is gradually reshaping the way that researchers collaborate to advance knowledge and discovery. Now, as part of its mandate to foster dialogue and collaboration between legal scholars and practitioners, the CBA’s bilingual peer-reviewed legal journal, The Canadian Bar Review, has gone open access

The move to an open access platform is also in keeping with the CBA’s commitment to advancing access to justice and the advancement of the law.

The country’s top legal minds can now publish their articles in a timely manner and even use the new platform’s automated submission process.  Readers will have easier access to the publication and be able to effortlessly share its contents.

To get a sense of our new platform, please go visit the most recent edition.  It explores a range of issues from Canada’s "institutional turn" in religious freedom litigation and how Canada’s legal framework should be reformed to restructure Canada’s relationship with Indigenous peoples to data on defamation law in Canada, the prosecutor’s role in seeking justice in an adversarial system and the outsourcing of legal services.

Do take the time to check it out.  It’s time well spent.

The Canadian Bar Review, founded in 1923, is edited by Law dean Chris Waters, criminal law professor David M. Tanovich, both from the Faculty of  Law at the University of Windsor, and by Patrice Deslauriers, professor in the Faculty of Law at the Université de Montréal.

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Justice

Trial and error: criminal justice reform

By Justin Ling May 24, 2018 24 May 2018

Trial and error: criminal justice reform

At the end of March, the Trudeau government introduced new legislation that it claims will modernize the criminal justice system, reduce court delays, reduce the overpopulation of Indigenous people in Canadian jails, clean up the Criminal Code, and ensure a broader representation of marginalized people in the court process. Bill C-75 would, it promised, “transform the criminal justice system to make it more efficient, effective, fair, and accessible.”

It was ambitious language, and came at the culmination of more than a year of consultations and conversations between the department of justice and lawyers across the country. The reviews have been less enthusiastic.

CBA National canvassed a number of defence lawyers who routinely deal with the processes that C-75 addresses. Few aspects of the bill have garnered accolades, particularly among defence lawyers. Even well-received measures are dismissed as insufficient, or overdue.

Some critics are even warning that C-75 would exacerbate some of the problems it seeks to fix: lengthening court delays, entrenching a lack of diversity, and disadvantaging accused at trial, especially those with less resources to fight the charges against them.

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CBA influence

Draft M&A guide takes positions inconsistent with jurisprudence

By Kim Covert May 23, 2018 23 May 2018

 

Google “mergers” and “efficiencies” and the helpful suggestion for a search that comes up is “mergers create efficiencies.” It’s apparently so true that even Google knows it.

In March, the Competition Bureau released a draft document, A practical guide to efficiencies analysis in merger reviews, sharing its perspective and experience on trade-off analysis, and when the Commissioner may decide not to challenge a merger due to efficiency gains.

The CBA’s Competition Law Section commends the Bureau on its commitment to transparency and public consultation, but has a number of concerns with the document, recommending that language in a number of areas be clarified or reconsidered.

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Family law

A major overhaul of Canada's Divorce Act

By Yves Faguy May 23, 2018 23 May 2018

A major overhaul of Canada's Divorce Act

Justice Minister Jody Raybould-Wilson has introduced legislation that would represent a major overhaul of Canada's divorce laws.  The main thrust of the amendments is to place the best interest of the child at forefront of resolving disputes, and emphasize parenting responsibilities after separation in less adversarial terms than the existing legislation does (exit talk of “custody” and “access”). They also include measures to address family violence and push spouses to rely more on family-dispute resolution services instead of the courts. Also noteworthy are new guidelines for parents wishing to relocate with children.

The amendments appear at first blush to be broadly in line with a number of CBA recommendations made over the years, including a recent submission on a private member’s bill dealing with shared parenting and a letter calling for specific changes to the Divorce Act.

John-Paul Boyd, the Executive Director of the Canadian Research Institute for Law and the Family, also remarked on Twitter that the proposed legislation bill owes much to provincial efforts already well under way (namely in Alberta and British Columbia) to modernize family law.

You can read the CBA’s statement on the proposed legislation here, and the Justice Minister’s Charter Statement, which looks at how the bill might affect issues surrounding mobility rights, expanded search and disclosure powers, and enforcement of family support orders.

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Decriminalization

Could Portugal’s drug policy work in Canada?

By Doug Beazley May 22, 2018 22 May 2018

Could Portugal’s drug policy work in Canada?

 

Party policy conventions are to politics what fantasy football is to the real thing. Delegates gather to discuss blue-sky proposals to reshape the nation and the world — banning nuclear weapons, for example, or putting new limits on abortion access. Then the professionals weigh in to explain why those ideas won’t fly.

Sometimes the reasons are legal; sometimes they’re political. Sometimes they’re both — which is what happened when Liberal Party of Canada delegates gathered in Halifax last month to talk about following the Portuguese model on drug policy: decriminalizing consumption and possession of small amounts and diverting users into the health care system. The resolution hadn’t even been adopted before key members of Prime Minister Justin Trudeau’s cabinet were taking turns tossing buckets of cold water on the idea.

“I recognize there’s a lot of comparison with Portugal and Canada but I think we have to develop the Canadian model here,” said Health Minister Ginette Petitpas Taylor.

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Indigenous law

Truth and reconciliation: More guidance is needed on legal reform

By Yves Faguy May 18, 2018 18 May 2018

Truth and reconciliation: More guidance is needed on legal reform

 

The Truth and Reconciliation Commission’s work and report may have achieved a lot in terms of raising awareness about past efforts in Canada to assimilate Indigenous individuals and erase their cultures. Unfortunately, Michael Coyle argues, it doesn’t focus enough on the specific ways Canada’s legal framework should be reformed to restructure Canada’s relationship with Indigenous peoples. In a recent article published in the Canadian Bar Review, Coyle offers the following comparison with other similar works:

The abstraction of the TRC’s recommendations for restructuring Canada’s relationship with Indigenous peoples may have rendered them easier for governments to embrace. Although Canada’s then Prime Minister, Stephen Harper, declined even to attend the ceremony accompanying the TRC’s final report, the current government indicated almost immediately that it would fully implement the TRC Calls to Action, including using the UNDRIP as the framework for reconciliation.

It is not clear at this time what systemic changes, if any, the Canadian government intends to implement in relation to their relationship with Indigenous peoples. It is clear, however, that some degree of support from the Canadian public will be required if the relationship is to be transformed. The failure of the TRC’s report to communicate more forcefully to the public the link between past government policies subordinating Indigenous peoples and the current legal regime will not assist efforts in this regard. It is worth noting that the TRC report follows the work of two other Canadian commissions, the six-volume Report of the Royal Commission on Aboriginal Peoples published in 1996, and the four-volume Report of the Ipperwash Inquiry published 11 years later. Both of those reports recommended significant legal reform to recognize the principles of treaty partnership with Indigenous peoples. Neither of these earlier reports provoked such reform. It will be worthwhile to reflect on at least one of the possible impediments to fundamental change.

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Trade

How missing NAFTA deadline could have an impact on talks

By Yves Faguy May 17, 2018 17 May 2018

How missing NAFTA deadline could have an impact on talks

 

U.S. House Speaker Paul Ryan issued a warning that today is the deadline for notifying Congress of a deal that could be voted on in 2018, before midterm elections in November.  Indications from U.S. Trade Representative Robert Lighthizer are that a deal – even a pared-down version – isn’t likely to be reached so soon.

Why the deadline matters

On December 1, 2018, Mexico will have a new president – possibly the leftist Andres Manuel Lopez Obrador who has opened up a wide lead in the polls, and who might want to push his own amendments with a new team of negotiators.  Also, the midterm elections in the U.S. could produce a very different Congress, controlled by Democrats, which might be inclined to pursue new trade priorities. Simon Lester noted in a couple of recent posts that the Democrats’ stand on trade policy could be even more protectionist than the Trump administration’s, or then again not:

Some months ago a group of Senate Democrats including New York's Charles Schumer put together a trade platform premised on outdoing Donald Trump as a protectionist (I blogged on that here back last August). 

In a recent candidates' debate in Houston, the Democratic primary finalists for multicultural urban District 07 were asked to address trade […]. Laura Moser, a Texas-born and -bred writer and activist whose campaign has attracted national and international attention, set out a different Democratic vision than Schumer & company. Moser said she believes in trade agreements and while noting that NAFTA has hurt some Americans she freely admitted it's benefited others, including in her own region of the country. She even supports TPP, stressing the importance of an accord in the Pacific region, but criticizes the existing agreement as giving inadequate consideration to environment and labor laws, while important parts have been drafted to suit entrenched corporate interests.

Those are positions that Team Trudeau might welcome, though how NAFTA negotiations move forward with new players in the mix is really anyone’s guess.

What to worry about in the short term

The Trump administration will have to soon decide on whether to extend a June 1 deadline for new tariffs imposed on steel and aluminum to take effect on imports from Canada and Mexico.

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CBA influence

Bill C-66 not a complete fix for historically unjust convictions

By Kim Covert May 17, 2018 17 May 2018

 

We’ve come a long way, baby. Time passes and society evolves and so do its attitudes to certain behaviour. Some laws are slower to change than others, but once something becomes more socially accepted, the laws regulating that behaviour gradually fall off the books.

The convictions under those laws, however, are another matter.

Many members of the LGBTQ2S community still have a criminal record for activities that have not been illegal for some time. It is these people whom Bill C-66, the Expungement of Historically Unjust Convictions Act, is supposed to help.

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CBA Futures

Legal futures round-up

By Yves Faguy May 16, 2018 16 May 2018

Legal futures round-up

 

Time for a round-up of notable trends and developments that highlight innovation in the legal industry.

Rosenblatt Solicitors announced plans to go public, and is hoping to raise £43m on its IPO, which would make it the largest of its kind. It would be the fourth English law firm to do so since the liberalization of the market for legal services in England and Wales five years ago. The other three are Gately, Keystone and Gordon Dadds.  

Allen & Overy (A&O) is bringing in a second cohort of startups into its tech space Fuse, which launched in London last year. The new cohort, includes Canadian based AI document review platform Kira Systems. According to Fuse chairman Jonathan Brayne: “This cohort’s focus is very different to that of the first – there’s a strong AI theme here.”

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Religious freedoms

Canada’s “institutional turn” in religious freedom litigation

By Yves Faguy May 14, 2018 14 May 2018

Canada’s “institutional turn” in religious freedom litigation

 

Kathryn Chan writes in an article published in the Canadian Bar Review that the “institutional turn” in religious freedom litigation we have seen in Europe and the United States is now apparent in Canada.

The Supreme Court of Canada is scheduled to render judgment in three religious freedom cases in the fall, in Wall v Highwood Congregation of Jehovah’s Witnesses and two Trinity Western University appeals. But until now, the top court’s approach to institutional religious freedom claims, “is deeply ambiguous,” Chan explains:

The big unanswered question is the “constitutional personhood” question: are corporations included in the “everyone” that is entitled to the protections of freedom of conscience and religion under section 2(a) of the Charter? In Loyola High School, the majority of the Court declined to decide whether corporations “enjoy religious freedom in their own right under ... the Charter”, “since the Minister was bound ... to exercise her discretion in a way that respect[ed] ... [the] religious freedom of the members of the Loyola community who [wished to offer or] receive a Catholic education.” However, the remaining three justices declared their willingness to recognize the religious freedom of a “non-profit religious corporation”, constituted for the purpose of offering a Jesuit education to Catholic children in Quebec. The minority justices also proposed a general test for an institutional religious freedom claim, stating “that an organization [should meet] the requirements for s. 2(a) protection if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.”

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Competition law

Hipster antitrust: Not so cool

By Justin Ling May 11, 2018 11 May 2018

Hipster antitrust: Not so cool

There are many things antitrust law shouldn’t do: Like fixing everything from bad labour practices, low wages, media centralization, and everything in between. At least that was the consensus among a panel of legal experts discussing the growing influence of the hipster antitrust movement at the CBA’s Competition Law Spring Conference in Toronto on Thursday.

The question put to them for debate, at a time when there is a growing backlash against tech giants in particular, was whether public interest or other consumer-focused considerations have a place in antitrust enforcement.

Joshua Wright, a George Mason University Professor and Executive Director of the Global Antitrust Institute, located near D.C., has been pushing back against the rising tide of populism that is trying, in his view, to twist antitrust law into a sort of progressive swiss army knife. “Most of the ideas have a bit of a retro, blast-from-the-past feel,” he said.

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Equal rights

SCC strikes down part of Quebec’s pay equity law

By Yves Faguy May 10, 2018 10 May 2018

SCC strikes down part of Quebec’s pay equity law

 

The Supreme Court of Canada has confirmed, in a pair of section 15 Charter  decisions, the unconstitutionality of provisions of Quebec’s Pay Equity Act, which was initially passed in 1997 to address systemic wage discrimination against women.

The challenge came from unions representing employees who work in predominantly female job classes. They were arguing that the amendments adopted in 2009 had in effect substantially reduced the rights and benefits of employees.  These amendments imposed pay equity audits every five years, which critics charged was insufficient and served only to allow inequities go uncorrected for too long in the interval between audits.  The province was arguing that denying compensation between audits was a more realistic approach to ensuring compliance by companies. The top court disagreed  (with Justices Côté, Brown and Rowe dissenting):

Although the scheme purports to address systemic discrimination, it in fact codifies the denial to women of benefits routinely enjoyed by men — namely, compensation tied to the value of their work. Men receive this compensation as a matter of course; women, under this scheme, are expected to endure five-year periods of pay inequity, and to receive equal compensation only where their employer voluntarily acts in a non-discriminatory manner, or where they can meet the heavy burden of proving the employer engaged in deliberate or improper conduct. The scheme thus places barriers along the path to equal pay for women. And it correspondingly tolerates undervaluation of women’s work whenever women cannot clear the specific hurdle of proving that they should be paid equally not merely because they are equal, but because their employer acted improperly. Absent such behaviour, working women are told that they must simply live with the reality that they have not been paid fairly, even where a statutorily mandated audit has made that fact clear. In this way, the scheme, by privileging employers, reinforces one of the key drivers of pay inequity: the power imbalance between employers and female workers. By tolerating employer decision-making that results in unfair pay for women, the legislature sends a message condoning that very power imbalance, further perpetuating disadvantage.

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