The Power of Perspectives

The Canadian Bar Association
Resolutions

CBA resolution: What’s the meaning of diversity?

By Yves Faguy January 18, 2019 18 January 2019

CBA resolution: What’s the meaning of diversity?

 

Ensuring diversity and inclusion throughout an organization requires more than good intentions. It takes support from leadership and a willingness to change attitudes and behaviour.  It also helps to have a shared understanding of what diversity means. Without it, the organization will struggle to measure the success of its D&I policies and to hold its leaders accountable.

The tricky part is settling on a formal definition that recognizes the many dimensions of diversity across a range of contexts. Listing a broad range of personal attributes is one way to go about it. The risk, though, is the more you add to a definition, the more you risk highlighting what you leave out.  Complicating matters further is that traditional definitions of demographic diversity are making room for new concepts centered on experiential or cognitive differences.

So how should we define diversity?

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Resolutions

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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The Supreme Court

Stop, border ahead

By Doug Beazley January 15, 2019 15 January 2019

Stop, border ahead

 

If you’ve been watching the news, you could be forgiven for thinking that all the action in Indigenous law these days is happening out west, where First Nations protesters have been facing off with police over a controversial natural gas pipeline.

On the opposite coast, meanwhile, a file is going forward to the Supreme Court of Canada that could keep the specialists busy for decades to come. In April, the high court will hear an appeal filed by Newfoundland and Labrador in a case that pits provincial jurisdiction against Indigenous rights — with almost a billion dollars hanging in the balance.

In 2013, the Uashaunnuat Innu, a First Nation claiming traditional territory straddling the boundary between Quebec and Newfoundland/Labrador, filed a lawsuit in civil liability against the Iron Ore Company of Canada (IOC, majority owned and operated by mining giant Rio Tinto) and the Quebec North Shore and Labrador Railway Company Inc. They’re claiming $900 million in damages, accusing the mining company and the railway of causing environmental destruction and displacing traditional activities such as hunting and fishing through its operations at Schefferville, Que. and Labrador City.

Photo licensed under Creative Commmons by Neil and Kathy Carey

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Justice

David Lametti, Canada’s new Minister of Justice and Attorney General

By Yves Faguy January 14, 2019 14 January 2019

David Lametti, Canada’s new Minister of Justice and Attorney General

 

David Lametti has been sworn in as Canada’s new Minister of Justice and Attorney General of Canada, replacing Jody Wilson-Raybould.  The Montreal MP for LaSalle-Emard-Verdun steps into his new role as Prime Minister Justin Trudeau was prompted to shuffle his cabinet following last week’s announced departure of former Treasury Board president Scott Brison.

“On behalf of CBA members, I congratulate the new Minister on his appointment. We look forward to meeting him in the coming weeks to discuss issues of mutual interest on which we can work together,” said CBA President Ray Adlington. He also wishes former minister Wilson-Raybould well as she takes up her new duties as Minister of Veteran Affairs. He acknowledged her efforts at handling many challenging justice files — from the legalization of cannabis to medical assistance in dying and criminal law reform. “Minister Wilson-Raybould also deserves recognition for all her success in diversifying the Canadian judiciary through her appointments.”

Lametti, previously a well-regarded parliamentary secretary to Innovation Minister Navdeep Bains, was a law professor at McGill before he entered politics. He taught civil and common law property, intellectual property, property theory, and ethics, and co-founded the Centre for Intellectual Property Policy.  He won his riding's seat in Parliament in the 2015 federal election.

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Climate law

Smart business money is on carbon tax

By Doug Beazley January 11, 2019 11 January 2019

Smart business money is on carbon tax

 

Assuming everything goes to plan (and the plan isn’t quite what it used to be), starting in April the Trudeau government will be imposing a carbon tax on provinces that have no carbon pricing mechanisms of their own.

Right now, that’s four provinces — Ontario, Saskatchewan, Manitoba and New Brunswick. (P.E.I., Yukon and Nunavut are adopting the federal carbon pricing scheme voluntarily.) The federal Conservatives under Andrew Scheer plan to make the fight against carbon pricing a key part of their 2019 election campaign. Ottawa’s carbon strategy seems to have split Canada politically, deepening the chasm between resource-dependent provinces like Alberta and Saskatchewan and the eastern urbanites who tend to support environmental initiatives.

Or has it? A recent Angus Reid poll suggested 54 per cent of Canadians now support the carbon tax. The poll tracked a remarkable 18-point spike in support for the tax in Saskatchewan, to 29 per cent. Most Ontarians opposed carbon pricing in July; a narrow majority now supports it, despite Premier Doug Ford’s ferocious opposition. (Ford’s government introduced a climate change plan in late November, but since it doesn’t mandate a carbon price, it’s believed the federal carbon tax will still apply in Ontario.) The shift in support seems to have followed Prime Minister Justin Trudeau’s promise of generous household rebates.

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International human rights

The sovereignty of states and multinational corporate accountability

By Justin Ling January 11, 2019 11 January 2019

The sovereignty of states and multinational corporate accountability

 

In 1897, a U.S. citizen living in Venezuela, George F. Underhill, brought a suit in a New York court to recover damages against the revolutionary Venezuelan General Hernandez, who had occupied part of the country and had effectively tried to nationalize his business.

Damage was done, the American claimed, and he wanted to be made whole.

The U.S. Supreme Court ultimately ruled against Underhill, in a decision that would enshrine the Act of State Doctrine as a general rule of thumb for modern Western legal systems.

“Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory,” U.S. Chief Justice Melville Fuller then wrote.

Later this month, the Supreme Court of Canada will hear Nevsun Resources v Gize Yebeyo Araya, a case that will put the Act of State Doctrine to its first test in a Canadian court.  The case will serve to gauge the extent to which international human rights law has a footing in the Canadian legal system.

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Litigation

Expert evidence: What is reliable specialized knowledge?

By Yves Faguy January 8, 2019 8 January 2019

Expert evidence: What is reliable specialized knowledge?

 

There is always a risk that experts will unduly influence the outcome of a trial. Because of this, Jason M. Chin notes in a recent Canadian Bar Review article, courts will scrutinize the reliability of their evidence by branding the expertise as either science or “specialized knowledge” – all depending on “the witness’ training, experience, and research.”

Chin takes a careful look at Ontario’s leading opinion on the issue, a 2009 Court of Appeal ruling in R v Abbey, which distinguished between the “product of scientific inquiry” and “specialized knowledge gained through experience and specialized training in the relevant field.” The author is critical of this categorization and it’s worth noting that the Abbey ruling involved evidence that was admitted, but later discovered to be unreliable.  Still, according to Chin, courts have often relied on the Abbey ruling to justify giving almost no scrutiny to specialized knowledge.  He calls for more scrutiny over the manner of demonstrating transparency and proficiency of the expert, given the task at hand:

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Contracts

Online boilerplate contracts and the muddle of judicial policymaking

By Yves Faguy January 3, 2019 3 January 2019

Online boilerplate contracts and the muddle of judicial policymaking

 

When, in 2017, the Supreme Court of Canada ruled in Douez v. Facebook that the Privacy Act superseded the forum selection clause in Facebook’s boilerplate terms of use, it was continuing an unfortunate trend, in contract law, of blurring the lines between policymaking and doctrinal considerations. That’s the takeaway from Jason MacLean’s recently published article in the Canadian Bar Review.

Briefly, in Douez v. Facebook, a B.C. woman succeeded in getting a class action certified against Facebook for deploying its users’ photos in its sponsored content postings, in violation of the province’s Privacy Act. Facebook countered, however, that the B.C. Supreme Court, which handles all Privacy Act cases in the province, was not the right venue. Indeed, she had agreed to the media giant’s terms of use, and that California would be the jurisdiction to litigate any disputes arising from them. The SCC ultimately held that the Privacy Act superseded the forum selection clause in Facebook’s terms, and in doing so slightly modified an earlier two-step test (the Pompey test) when those types of clauses apply. The Pompey test required asking, first, whether there is an enforceable contract binding the parties; and if so, is there strong enough cause for the clause not to be enforced, mainly because another forum would be far better suited to hear the case?

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Q&A

Jeff Beedell on what to expect from the SCC in 2019

By Yves Faguy January 2, 2019 2 January 2019

Jeff Beedell on what to expect from the SCC in 2019

 

We recently sat down with Jeff Beedell, a partner in Gowling WLG’s Ottawa office whose practice provides Supreme Court of Canada agency services. In a recent interview with CBA National, he gave us a preview of what to look out for in the coming year at the SCC. 

CBA National: It’s been roughly a year since Richard Wagner has taken up the role Chief Justice. What are your impressions and takeaways so far?

Jeff Beedell: One impression is that there’s been a healthy contribution of dissenting opinions written in the first year of Chief Justice Wagner’s leadership. Everyone acknowledges Justice [Suzanne] Côté as our new ‘great dissenter’ but Justices Rowe, Brown, and Gascon also haven’t been shy about expressing independent judicial views. I can’t say if our new Chief Justice marks any change in the pattern of dissents because when I look back at 2017 [the year former Chief Justice Beverley McLachlin retired], we saw the most split decisions in 10 years. Of 67 appeals heard, 36 were unanimous and 31 were split decisions. So, comparing 2018 against 2017, I don't know that there’s any new trend to describe other than that we have a good bench of independent legal thinkers.

N: Is that a good thing or a bad thing to have a little more dissent on the Court?

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Climate law

The kids aren’t alright

By Supriya Tandan January 2, 2019 2 January 2019

The kids aren’t alright

 

Millennials are blamed for all sorts of contemporary society ills, but there is at least one societal issue for which they can pin the blame on their elders: climate change. A group of youth based in Quebec are applying to bring a class action suit against the federal government at the Superior Court of Québec. The youth are claiming that the failures of successive federal governments to appropriately tackle climate change is resulting in charter rights violations.

Could the effort succeed?

The Quebec lawsuit follows the precedent of other citizen-led lawsuits and, in particular, a youth-led lawsuit that has been launched in the United States. In that one, American children are arguing that the under-regulation of greenhouse gases and subsidies made to the oil and gas industry are exacerbating climate change and thereby violating the youth’s constitutional rights, as delineated by the public trust doctrine.

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Justice

Applying the Jordan framework: Are courts placing too much of the burden on the defence?

By Doug Beazley December 18, 2018 18 December 2018

Applying the Jordan framework: Are courts placing too much of the burden on the defence?

 

In R v. Jordan, the Supreme Court put a hard cap on the duration of criminal trials — sending a thrill of panic through the justice system in the process. The ruling is roughly two and a half years old now. Time for the training wheels to come off.

A quick recap: In July 2016, in a 5-4 split decision, the Supreme Court ruled that the 49.5 months it took to complete accused drug trafficker Barrett Jordan’s trial constituted a violation of his Section 11 b Charter right. The justices set presumptive limits on the length of trials going forward: 18 months in provincial court, 30 months in superior court.

Result: multiple stays, some in high-profile cases involving violent crimes — even murder. Wary of the risk of giving lawyers an incentive to slow down trials, the SCC justices added caveats to R v. Jordan. When deciding whether a trial blew past the Jordan limit, judges must include institutional delays that can’t be blamed on the Crown. But delays caused, or waived, by the defence do not count toward the Jordan ceiling.

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Q&A

How law firms should prepare for the next economic downturn

By Yves Faguy December 18, 2018 18 December 2018

How law firms should prepare for the next economic downturn

 

Jordan Furlong, whom you all know from his writing at Law21.ca, was kind enough to sit down with me for our annual year-end discussion on the state of the legal market. This time we discussed a range of topics, from legal innovation in Canada and pushes towards regulatory reform, to the growing presence of the Big Four in legal, and advice on preparing for the next economic downturn. 

CBA National: Has innovation finally come to the Canadian legal marketplace?

Jordan Furlong: To a certain extent. Everybody talks about innovation, of course. But for me, innovation starts growing teeth when actual money is spent and actual lawyers' time is dedicated to creating products and services and systems and changes that did not exist before. We're at that first stage now, and in fairness, you're seeing many large Canadian firms doing this. In no particular order, Fasken Martineau, Osler, McCarthy Tétrault are out in front in these areas. Gowling WLG and Blakes are also showing real interest. You'll find other firms that are a bit more around the periphery of this change. The next steps are harder, though, because they involve two things that are really difficult for lawyers individually, and law firms collectively, to do. The first is to truly listen to what their clients are telling them that they want; about their business and their industry; what their internal targets and mandates are. Firms should listen, go away, think about it on their own time, and come back with something that will help them meet their goals and objectives. The second aspect — even harder — is that innovation needs to change how the law firm works, how lawyers work, and how the law firm operates. That's the kind of innovation that is most desperately needed. But the number one thing to do is figure out how to compensate people within your firm, based on their accomplishments, and not just the hours they bill. Also, how are you pricing the services that you are providing to your clients?

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