The Power of Perspectives

The Canadian Bar Association
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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Conduct becoming

Ontario’s Statement of Principles: overreach or overdue?

By Gavin & Brooke MacKenzie December 8, 2017 8 December 2017

Ontario’s Statement of Principles: overreach or overdue?

 

Ontario’s Law Society has sparked a vigorous debate over its decision to require lawyers, including retired and non-practising members, to adopt a Statement of Principles. Lawyers must declare that they have an “obligation to promote equality, diversity, and inclusion generally, and in their behaviour towards colleagues, employees, clients, and the public”. Our columnists weigh in.

Gavin: The Law Society’s express purpose is to “accelerate a culture shift” and to educate lawyers about their obligations to bring about “cultural and attitudinal change”. But aren’t principles personal? Don’t lawyers have the right to think and speak for themselves?

Brooke: Absolutely – but I’ve found the opposition to the Statement of Principles to be hyperbolic, and to misconceive both the problem and the proposed remedy. Queen’s Professor Bruce Pardy wrote in an op-ed in the National Post that upon learning about it he felt the need to check his passport to make sure he wasn’t in North Korea. “Godwin’s Law” states that once someone invokes an analogy to Nazi Germany, they lose the argument. I think that should apply equally to comparisons to North Korea and Orwell’s 1984. I also have concerns, but we need to do what we’re trained to do as lawyers: consider the intent of the policy, examine the facts, and then get into a fight about it.

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Agents of innovation

How legal writing can be a communications tool

By Geneviève Fortin December 7, 2017 7 December 2017

How legal writing can be a communications tool

 

If you’re a lawyer, you’re used to reading and deconstructing long, dull and complex documents. That’s what you do for a living. But how well do you tolerate complexity? How do you feel about reading the terms of your mortgage, documents from Revenue Canada, or your investment statements?

Now imagine how your clients might feel reading your letters, legal notices and contracts.

Not only are they often overwhelmed by the complexity of what you’ve written, but many of them feel they are paying a lot for your services only to be left in the dark.

Our relationship with information is changing and we expect more of the professionals we hire. Now more than ever, your clients assess the quality of your services by placing a premium on the simplicity of the advice and documents they receive. Whether your client is an individual, an employee from another department or a business, simplicity is indicative of quality. 

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Closing argument

Lawyers will pay our fair share of tax – if others do too

By Omar Ha-Redeye December 7, 2017 7 December 2017

Lawyers will pay our fair share of tax – if others do too

 

Selling more taxes is rarely a popular political move, especially in difficult financial times. But even if we don’t like them, taxes remain necessary.

An effective justice system could be described as a hallmark of a civilized society. Without legal institutions, individuals and businesses lack effective conflict resolution systems. Not only does this create uncertainty for capital investment and commercial activities, but, at worst, these disputes can devolve into violence.

Maintaining a legal system that works effectively, however, does not happen without significant support from government in the form of administrative services and other funding. For this reason, there is a deep and necessary relationship between the legal profession and the payment of taxes.

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Creative licence

Creative licence: Michael Shain

By CBA/ABC National December 7, 2017 7 December 2017

Creative licence: Michael Shain

 

“ Poetry is my way of connecting to the raw beauty and magic of this Island landscape and its people and their history. You know you’re in the right place when, after all these years, you still greet each new day with a sense of wonder.”

Michael Shain is Director of the Manitoulin Legal Clinic, located near Little Current, Ont., on the Aundeck Omni Kaning First Nation. He scribbles poetry on the side.

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Indigenous rights

Why full recognition of UNDRIP in Canada would be a game changer

By Supriya Tandan December 7, 2017 7 December 2017

Why full recognition of UNDRIP in Canada would be a game changer

Bill-C262 a, small, four-page bill with the power to fundamentally change the relationship between Indigenous Peoples and the Canadian government was debated for an hour in the House of Commons on Tuesday. The main goal of the NDP-sponsored bill (with Liberal-support) is to establish a national action plan to guide the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law. It’s the seventh attempt in nine years to do so, but this time the bill has the support of the government. The implementation would be in-keeping with Prime Minister Trudeau’s recent announcement before the United Nations that his government would remove Canada’s objector status to UNDRIP, and add its signature to the document.

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Interprovincial trade

Comeau booze battle before the Supreme Court

By Yves Faguy December 6, 2017 6 December 2017

Comeau booze battle before the Supreme Court

The Supreme Court of Canada is hearing arguments today in the “free-the-beer” case (R. v. Comeau)

What’s the issue?

Five years ago, Gerard Comeau was arrested and fined for bringing beer he purchased in Québec into New Brunswick. Comeau is challenging the constitutionality of section 134 of the New Brunswick’s Liquor Control Act that limits the quantity of alcohol that can be brought into the province by an individual. The trial judge declared the contested provision unconstitutional, as it amounted to a trade barrier in violation of section 121 of the Constitution Act, 1867, which stipulates that goods must “be admitted free into each of the other provinces.” That, Comeau is arguing, prohibits both tariffs and non-tariff barriers. The Court of Appeal of New Brunswick dismissed the application for leave to appeal, and the Supreme Court granted leave in May.

In a 2016 post, Ian A Blue wrote:

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International law

When the laws on universal jurisdiction mix with politics

By Erika Schneidereit December 5, 2017 5 December 2017

When the laws on universal jurisdiction mix with politics

 

Part 1 of this series provided an overview of universal jurisdiction, and looked at how Argentina has used this doctrine to dig into Spain’s troubled past. But how has Spain itself grappled with the benefits – and drawbacks – of embracing universal jurisdiction?

The doctrine of universal jurisdiction is certainly a polarizing subject in international law – so why dig into the history of its use in one particular country? While exploring the rise and fall of universal jurisdiction in Spain is undoubtedly intriguing from an academic perspective, it is more importantly a crucial exercise for advocates of the doctrine who seek to entrench universal jurisdiction as one of the core jurisdictional bases in customary international law.

Despite its recent fall from Spanish good graces, since its 1985 adoption into Spanish law “no country has been more assertive in using [universal jurisdiction] than Spain.” Spain’s championing of a legal tool used to prosecute human rights violations beyond national borders is somewhat surprising, given the country’s own historical experience with post-conflict justice — notably, Spain’s decision to effectively prohibit prosecution of the crimes occurring under the Franco dictatorship and the Spanish Civil War. Alternatively, it is perhaps precisely because of this reluctance to turn its historical gaze inward that Spain so readily allowed for the pursuit of justice outside its borders. 

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CBA advocacy

The CBA intervention in TWU: Lessons from the U.S.

By Mariane Gravelle December 4, 2017 4 December 2017

The CBA intervention in TWU: Lessons from the U.S.

 

Hearings in the TWU case are now complete. On Friday, the Supreme Court of Canada heard submissions from over 25 interveners – including the Canadian Bar Association – and heard reply from the appellants and respondents.

Appearing on behalf of the Canadian Bar Association, Susan Ursel of Ursel Phillips Fellows Hopkins LLP presented the CBA’s factum and responded to questions from Justices Brown and Rowe. The CBA’s pro bono counsel also included David Grossman, Olga Redko, and Angela Westmacott (not present in the picture above). Ursel concluded the CBA’s intervention by re-iterating the CBA’s position that “there is a government interest in limiting long-standing discrimination against the LGBT community and while TWU has a right to its belief and covenant, it has no right to state support for same.”

In 2014, CBA members passed a resolution calling on law societies and government to require that admission to law schools be open, without discrimination related to any grounds under s. 15 of the Canadian Charter. The CBA has since intervened at appellate courts in Ontario and Nova Scotia, and has been asked to present arguments and law from the US experience.

Drawing upon that experience, the CBA’s submission states:

Examples from the U.S. jurisprudence illustrate that state actors’ refusal to grant benefits to institutions that maintain discriminatory admission policies can be legitimate even where those policies are characterized as manifestations of the freedoms of religion, expression and association. Particularly where benefits rather than prohibitions are at stake, freedom of religion in the U.S. can yield to a compelling state interest in protecting or vindicating competing fundamental rights such as equality.

Webcasts from both days of hearings have been archived and can be watched here.

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Press freedom

VICE journalist privilege case heads to Supreme Court

By Justin Ling December 1, 2017 1 December 2017

VICE journalist privilege case heads to Supreme Court

The Supreme Court will hear arguments in a case that promises to redefine the parameters of press freedom.

The top court granted leave for appeal in R v. Vice Media on Thursday, which paves the way for what could be the most important ruling for press freedom since R. v. National Post in 2010.

The top court’s decision to wade into the case may spell a willingness to move the goalposts on how police can obtain information from journalists.

What’s the case about?

In 2015, an Ontario court signed off on an RCMP production order, ordering Vice and its reporter Ben Makuch to surrender all his notes and communications with Farah Mohamed Shirdon, a Canadian believed to have travelled to the Islamic State, as well as any communications internally at Vice regarding several interviews with Shidon.

The U.S-based media company, which also has offices in Canada, fought the production order, arguing that, if the courts allow journalists and media organizations to become appendages for police investigations, it could severely weaken freedom of the press in Canada.

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Supreme Court of Canada hears appeals in TWU

By Mariane Gravelle November 30, 2017 30 November 2017

Supreme Court of Canada hears appeals in TWU

 


The Supreme Court of Canada (SCC) held the first day of hearings in two concurrent appeals in the case of Trinity Western University’s proposed law school. The appeals, broadcast live here will continue tomorrow to determine whether the Law Societies of Upper Canada (LSUC) and British Columbia acted reasonably in refusing the accreditation of TWU’s proposed law school – a private institution. TWU Counsel Kevin Boonstra, in his opening argument, argued that the Canadian Charter “protects the right to establish communities of faith like TWU.  In order for any religious community to exist and thrive, it has to be able to define itself. In the evangelical context, this includes defining religiously appropriate conduct while individuals are part of the community."

Background

In 2014, three Canadian provinces – Nova Scotia, Ontario and British Columbia – refused accreditation to graduates of TWU’s proposed law school on the basis that a covenant that students were obligated to sign – which requires students to abstain from sexual relations outside of marriage between a man and a woman – was discriminatory towards the LGBTQ population.

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Equality rights

Legislation for past wrongs against LGBTQ2 falls short of meaningful action

By Michael Motala November 30, 2017 30 November 2017

Legislation for past wrongs against LGBTQ2 falls short of meaningful action

Though it was characteristically brisk in the nation’s capital last Tuesday, partly cloudy and hovering just two degrees above centigrade, inside the centre block of Parliament, there was an unusual feeling of warmth.

Lining the House of Commons’ parliamentary gallery, bearing witness to an historic moment, were a handful of the victims of the government’s “queer purge,” a national security campaign targeted at LGBTIQ2S in the civil service, Military and RCMP.

A stone’s throw away from Parliament Hill, at the Cartier Drill Hall, an even larger group was gathered. Scores of victims, human rights campaigners, and other community members were invited to the off-site viewing. The anticipation in the room was palpable.

At ten minutes past three, Prime Minister Justin Trudeau rose from his seat, delivering a much anticipated apology for Canada’s shameful history of state-sponsored discrimination toward LGBTIQ2S communities.

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