The Power of Perspectives

The Canadian Bar Association
Climate change

A pathway for climate change litigation in Canada

By Supriya Tandan September 11, 2017 11 September 2017

A pathway for climate change litigation in Canada


Earlier this summer the Supreme Court of Canada handed down two rulings clarifying how regulatory bodies, such as the National Energy Board, can fulfill the Crown’s duty to consult. The Clyde River and Chippewas of the Thames First Nation rulings are noteworthy in that the top court has recognized that evaluating cumulative effects of a proposed project and its impact on existing aboriginal and treaty rights can inform the scope of that duty.  That raises the question of the scope of the duty to consult include giving proper consideration to the impacts of a project on the climate.

Climate change litigation has yet to reach the Supreme Court, but it has made headway in a growing number of jurisdictions, namely in Norway, Pakistan, the United States and the Philippines. And now our top court appears to have offered a pathway for similar litigation in Canada.

What should the NEB do, for example, with an inter-provincial pipeline that would increase greenhouse gas emissions, shifting the migratory patterns of caribou? Following the Chippewas decision, the NEB might have to evaluate the environmental impacts related to shifting caribou distribution as well as seriously consider the importance of that mammal’s importance on the rights, cultural tradition and diets of Aboriginal people. The SCC, in explaining why established rights to hunt and harvest mammals was related to the spiritual, cultural and economic well-being of the Inuit people of Clyde River, cited the Nunavut Court of Justice:

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CBA Futures

Legal futures round-up

By Yves Faguy September 8, 2017 8 September 2017

Legal futures round-up


Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our regular round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

Thomson Reuters recently shared findings that show 484 per cent increase in global patent filings for new legal services technology in the last five years, the bulk in 2016 being filed in the U.S. (38 per cent), China (34 per cent) and South Korea (15 per cent).

To Mark A. Cohen, the findings are evidence that China is “fast becoming a force  in the global legal marketplace… actively working on tech solutions – including artificial intelligence.” For an overview of top Chinese legal tech companies, check out this rundown by Artificial Lawyer.

A new index has been launched to measure innovation in legal services delivery among law firms. Behind the effort is Daniel Linna, the director of the Center for Legal Services Innovation at Michigan State University College of Law.  His hope is that buyers of legal services will use the index to gauge the efficiency of their law firms. 

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Justice

Judging sexual assault trials: Best put it in writing

By Yves Faguy September 6, 2017 6 September 2017

Judging sexual assault trials: Best put it in writing


In her recent Canadian Bar Review article, Dalhousie Associate-Professor Elaine Craig reviews the trial record in R v Al-Rawi, in which a provincial court judge found the accused not guilty of sexually assaulting a highly intoxicated woman, found partially naked in the back of his cab. In his oral judgment, Judge Gregory Lenehan said the Crown hadn’t proved beyond a reasonable doubt her lack of consent. His widely reported comment that “clearly a drunk can consent” drew strong criticism across the country.  To be fair, Craig pins some of the responsibility on legal counsel, whom she suggests failed to uphold some legal protections that should have been afforded to the complainant under Canada’s rape-shield provisions. But she makes a strong case for writing as a thinking process, when making the case that judges in sexual assault cases should be required to provide written decisions (in addition to undergoing more rigorous sexual assault training): 

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CBA influence

Third time’s the charm: Once more on immigration consultants

By Kim Covert September 5, 2017 5 September 2017

The CBA’s Immigration Law Section applauds the emphasis in a recent report on immigration consultants by the Citizenship and Immigration Committee on protecting individuals who want to immigrate to Canada. Still, it feels the Committee’s recommendations “have missed the mark in a number of key areas” by not addressing fundamental issues that have led to the failure of two separate regulatory bodies for consultants.

The Section endorses a number of the report’s recommendations, those which it says will, among others, improve access to justice, reduce language barriers, increase fines for ghost consultants, and give more financial support to settlement agencies.

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The practice

Managing the Trump effect

By Ann Macaulay September 5, 2017 5 September 2017

Managing the Trump effect

 

Donald Trump has been president of the United States for just eight months but many Canadian lawyers have already started to see the impact of his protectionist policies on their practices. And that impact will likely continue to affect Canadian businesses and their lawyers as more policies are unveiled.

Where many are seeing doom and gloom, however, at least one Canadian lawyer sees opportunity.

“This is the best time to be a trade lawyer and to be able to go out there and make a difference,” says Cyndee Todgham Cherniak of LexSage, a boutique international trade law and sales tax firm in Toronto. She points to renegotiation of the North American Free Trade Agreement, continuing softwood lumber issues and Trump’s Buy-American policy as creating a significant increase in legal work recently.

Trump’s protectionist bent has some Canadian companies looking to move to the U.S., and American companies that have set up operations in Canada considering pulling up stakes and moving home, says Todgham Cherniak. “And if the tax reforms go through in the U.S., there’s going to be a greater incentive for Canadian companies to open branch operations in the U.S.”

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Privacy

Digital privacy at the border: What’s in your phone?

By Justin Ling September 1, 2017 1 September 2017

Digital privacy at the border: What’s in your phone?


As it stands, crossing the border back into Canada can be risky privacy-wise.


To order a search of a traveller, their briefcase, or cellphone, a border guard need only have a reasonable grounds for supposing that they have “contraband secreted about his or her body,” as the Supreme Court established in 1988’s R. v. Simmons.

Such reasonable grounds are enough for customs officers to take actions that risk subjecting travellers to some pretty embarrassing and compromising situations — such as imposing “bedpan vigils” on people suspected of using their bodies as a vehicle for smuggling drugs.

In R. v. Monney, the Supreme Court of Canada held that was the price to be paid to strike a “necessary balance between an individual’s privacy interest and the compelling countervailing state interest in protecting the integrity of Canada’s borders from the flow of dangerous contraband materials.”

That was in 1999, when cellphones were repositories of little more than contacts and call logs. Even desktop computers could hold little more than 15 gigabytes of data.

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CBA Influence

The law should encourage people to do the right thing

By Kim Covert August 31, 2017 31 August 2017


Canada Revenue Agency’s Voluntary Disclosures Program is generally considered a win-win – people who’ve made errors on their taxes are given the opportunity to come forward and correct their mistakes, and the CRA collects taxes that otherwise have gone unpaid.

But proposed changes to the VDP have the potential to disrupt that balance, and could, when it comes to businesses collecting GST and HST, result in harsher penalties than if the errors were caught in a CRA audit.

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CBA Influence

How to align new NAFTA with more modern trade deals

By Kim Covert August 31, 2017 31 August 2017

 

Time passes, the world moves on, and today’s new kid in town is tomorrow’s been there, done that.

And so it is with the North American Free Trade Agreement, which came into effect 23 years ago. At the time it was hailed as a state-of-the-art trade agreement between Canada, the United States and Mexico. Over the last two decades it has accomplished what it was supposed to accomplish: it currently links 459 million people producing more than $19 trillion worth of goods and services; it has increased trade between the member states; it has created more integrated supply chains between the member states.

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Legal innovation

Why law firms are paying attention to blockchain

By Yves Faguy August 30, 2017 30 August 2017

Why law firms are paying attention to blockchain

 

 

A new index has been launched to measure innovation in legal services delivery among law firms. It’s the creation of Daniel Linna, the director of The Center for Legal Services Innovation at Michigan State University College of Law.  His hope is that buyers of legal services will use the index to gauge the efficiency of their law firms. 

As Robert Ambrogi notes, the index is not without its shortcomings. For starters it focuses on large law firms, even though smaller outfits play a big role in driving innovation.  And by Linna’s own admission, it relies heavily (based on Google advanced searches) on what law firms say about their innovation efforts on their websites. There is no guarantee that they are doing anything meaningful.

Still, the index offers a window into how firms see the innovation landscape evolving. And the emerging technology that appears to have captured their imagination is blockchain – even more so than artificial intelligence.

A reason for this may be, as Bill Henderson suggests in a recent post, that blockchain-based “smart contracts” and their potential to automate and enforce contract terms are “closer to lawyers’ natural wheelhouse.” And as Henderson observes, that will have an impact on the substantive aspects of law, as well as business of law itself.

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CBA Influence

Less isn’t necessarily more when it comes to blood alcohol limit

By Kim Covert August 29, 2017 29 August 2017

If a blood-alcohol limit of 80 mg is an effective deterrent to drinking and driving, a 50 mg limit should be even better, right?

That’s essentially the thinking behind a proposal to limit the criminal blood alcohol concentration limit, but less, in this case, isn’t necessarily more.

That’s because 50 mg indicates the presence of alcohol in the blood but isn’t necessarily an indicator of impairment, says the CBA’s Criminal Justice Section in a letter to Justice Canada. While there is enough evidence of impairment to support a limit of 80 mg, there is “little to no consensus in the scientific community that 50 mg is impairing.”

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CBA Influence

Speaking out for judicial independence in Poland

By Kim Covert August 28, 2017 28 August 2017


Poland is becoming known as Europe’s problem child, with what one report calls a “worrying policy of polarization” that stems back to the election in 2015 of the Law and Justice party (PiS). Issues came to a boil this summer with a number of planned reforms that would have the effect of erasing judicial independence and give rise to the possibility of political influence on judicial decisions.

In July, the EU deemed those plans an amplification of a “systemic threat to the rule of law” in the country. It demanded that Poland “address these problems within one month,” failing which it was prepared to trigger Article 7, in which a member country’s EU voting rights are suspended.

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NAFTA negotiations

Does Canada’s NAFTA wish list contain key to compromise?

By Doug Beazley August 25, 2017 25 August 2017

Does Canada’s NAFTA wish list contain key to compromise?


Every new article about the negotiations to modernize the North American Free Trade Agreement ought to start the way this one does — by admitting that, really, nobody knows anything.

During a rally speech on August 22, U.S. President Donald Trump threatened — again — to tear the agreement up. That was just days after a first round of talks in Washington, D.C. wrapped up with all three NAFTA negotiating teams still very far apart on the key files, such as rules-of-origin and ‘Buy American’.

So the NAFTA talks could end in a deal or in a messy political confrontation between the President and a reluctant Congress over whether he can cancel NAFTA on his own. Oddly enough, one of the most controversial sections in the agreement is offering a glimmer of hope for a compromise.

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