The Power of Perspectives

The Canadian Bar Association
CBA Influence

CBA submission on the environmental review process

By Kim Covert May 18, 2017 18 May 2017


In the tennis match that is the government’s review of its environmental assessment process, the ball is back in the CBA’s court – and the Association is calling a fault on the play.

In December, the CBA’s National Aboriginal Law Section and the National Environmental, Energy and Resources Law Section made a joint submission to the expert panel in Vancouver, and followed up with a letter in response to questions asked by the panel.

Read More
Children's rights

CBA rolls out child rights toolkit

By CBA/ABC National May 17, 2017 17 May 2017

 

The CBA has launched an online toolkit packed with information and resources to help lawyers, judges and other professionals make better decisions for children.

The CBA Child Rights Toolkit provides checklists, key cases, precedents and sample facta plus basic information on overarching principles of children’s rights, constitutional considerations, legal representation, the role of independent human rights institutions and child rights impact assessments.

It is designed to help identify breaches of legal rights and provide remedies across a broad range of practice areas from family law and child protection to immigration and education law.

The resource is a collaborative effort of 13 CBA sections led by the UN Convention on the Rights of the Child subcommittee of the Children’s Law Committee. It was funded by the CBA Law for the Future Fund, and inspired by the need to improve access to justice for children in Canada.

Read More
Human rights

CBA appearance on transgender bill

By Yves Faguy May 15, 2017 15 May 2017

CBA appearance on transgender bill

 

Last week, Marie Laure Leclercq, lawyer with De Grandpré Chait, and Siobhan O’Brien, associate with Hicks Morley, appeared on behalf of the CBA before the Senate Legal and Constitutional Affairs Committee. The CBA believes the bill will advance equality in Canada, and provide tangible protections for transgender people from discrimination and hate crimes. 

It encouraged Senators to pass Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, without further amendment. CBA National reported in March on how the Senate has been delaying and frustrating passage of the act. The CBA’s submission reads:

Bill C-16 represents a long overdue step to include these protections expressly in areas of federal jurisdiction. This is not a bold move, nor should it be controversial. The Canadian Human Rights Commission takes the position that the Commission, the Tribunal and the courts view gender identity and gender expression as protected by the Canadian Human Rights Act. Statutory protections on one or both of these grounds are already available in all but one territory (Yukon). In all jurisdictions, protections for transgender persons are implicit in the law.

It’s worth noting that the Yukon government introduced a trans rights bill in its legislature last month.  Two bills in New Brunswick aimed at expanding trans rights passed final reading last month.

Read More
Environmental law

Carta de Foresta: A guide for protecting the commons and individual rights

By Yves Faguy May 15, 2017 15 May 2017

Carta de Foresta: A guide for protecting the commons and individual rights

 

As far as medieval English Charters go, Magna Carta, famous for curbing royal authority and arbitrary use of power, is unquestionably the most celebrated. Lesser known today, but no less successful in its own time, is the Great Charter’s younger cousin, Carta de Foresta.

Also known as the Charter of the Forest of 1217, it was radically in its impact, in that it returned to private ownership vast areas of forest that had been expropriated by England’s kings, all the way back to William the Conqueror.  It also gave a right of common access to royal private lands.

It was issued by the nine-year old King Henry III in 1217, and reaffirmed many times thereafter over the next eight centuries, often in tandem with Magna Carta.  Carta de Foresta remained in force as a statute in England until it was replaced by the superbly named Wild Creatures and Forest Laws Act in 1971.

Read More
Immigration

Key parts of citizenship revocation process struck down

By Justin Ling May 11, 2017 11 May 2017

Key parts of citizenship revocation process struck down

 

The Federal Court just beat Justin Trudeau to the punch.

In a ruling yesterday, the court found that three provisions in the Citizenship Act were unconstitutional and denied Canadian citizens the right to due process afforded to them under the Canadian Bill of Rights.

Justice Jocelyne Gagné ruled that Ottawa’s powers to strip citizenship from dual citizens, in cases where they believe the citizenship was obtained through fraud or misrepresentation, lacked safeguards.

Thanks to changes brought in under the Strengthening Canadian Citizenship Act, people facing revocation were only afforded a trial if the Minister of Citizenship and Immigration deemed it necessary. Otherwise, their representations would be made only in writing.

Read More
Securities

Quebec Court of Appeal: The national securities regulator project is unconstitutional

By Yves Faguy May 10, 2017 10 May 2017

Quebec Court of Appeal: The national securities regulator project is unconstitutional

 

The Court of Appeal of Quebec has ruled that the plan for a new national securities regulator is unconstitutional.  The plan called for a new regulatory regime for capital markets, including a national regulator, a uniform act  that each participating province and territory would adopt, and a federal act aimed at ensuring the stability of capital markets.

The court ruled that the proposed mechanism for amending the Uniform Act violates the parliamentary sovereignty of the provinces. That's because the provinces' power to legislate in this area would require  the approval of an external body, the Council of Ministers, which is prohibited. Also problematic is the Council’s voting mechanisms for adopting regulations under the federal law, as they would essentially grant the an effective veto to the provinces over federal initiatives targeting systemic risks that could pose a serious risk to Canada's financial system.

Read More
Trade

Beer pressure

By Justin Ling May 10, 2017 10 May 2017

Beer pressure

 

When the Supreme Court granted leave last week to hear the appeal in R. v. Comeau, there was elation in all sorts of different corners of the country.

Free marketeers are hoping the top court will finally pave the way for legal challenges to enforce the sort of free-trading union that (they suspect) the framers of the constitution always wanted.

Wine aficionados are anticipating the pleasure sipping B.C. wine in Nova Scotia, and Nova Scotia wine in B.C.

For provincial governments, the hope is that a ruling will reinforce their long-held power to regulate and manage certain domestic industries at their province’s borders.

Caught in the middle of it all are the provincial liquor boards, whose very existence might be on the line.

Read More
Access to justice

Newfoundland’s new small claims legal aid clinic

By Mariane Gravelle May 9, 2017 9 May 2017

Newfoundland’s new small claims legal aid clinic

 

Even getting through small claims can be a nightmare for litigants who represent themselves. Thankfully there is help in St. John’s.  The Newfoundland and Labrador Small Claims Legal Assistance Clinic. This clinic is born of a partnership between the CBA Newfoundland & Labrador branch and the Public Legal Information Network of NL (PLIAN) and is helmed by Joe J. Thorne (CBA-NL Pro Bono Chair), Ashley Woodford (Executive Director of the CBA-NL branch), and Kevin O’Shea (Executive Director of PLIAN).

The clinic, which also includes ties to the provincial court and the Newfoundland and Labrador Law Society, was set up to fill an existing gap in the institutional pro bono sector of the profession. Says Joe J. Thorne, “$25000 [the maximum claim amount allowed in small claims court] is a lot of money for people, but maybe not enough to retain a lawyer.” Clinic officials hope their services will help those clients who would benefit from legal advice but may not be in a position to pay for them.

Read More
The Charter

Using the notwithstanding clause: Too easy?

By Yves Faguy May 9, 2017 9 May 2017

Using the notwithstanding clause: Too easy?

 

Every so often, one of Canada’s favourite constitutional pastimes – debating the frequently decried, sometimes beloved, section 33 of Canadian Charter of Rights and Freedoms – comes back in vogue.

Last week, Andrew Coyne argued against governments in Canada using the notwithstanding clause to override certain Charter provisions.  Though it has rarely been invoked over the last 35 years – and never by Ottawa  – his main objection is that it dilutes the rights and freedoms promised by our constitution. And he worries about repeated use becoming easier and easier with each transgression: 

Notwithstanding is not the emergency safety valve its advocates pretend, but a bottle marked “drink me”: its existence is a standing invitation to use it. Even in repose it is a silent rebuke to the Charter, for it suggests that its guarantees are not guarantees at all, but merely guidelines, contingent at all times on the mood of the government of the day.

Léonid Sirota also took on the issue, jumping off a recent Saskatchewan decision, which found that the province’s funding of non-Catholic students in Catholic schools violated religious liberty and equality guarantees.

Read More
Environmental law

Priority of creditors: Sacrificing the environment?

By Supriya Tandan May 8, 2017 8 May 2017

Priority of creditors: Sacrificing the environment?


A new case that pits federal insolvency laws against provincial schemes to clean-up environmental contamination may be headed to the Supreme Court of Canada. Last month the, Alberta Court of Appeal affirmed the Alberta Court of Queen’s Bench’s decision in Redwater Energy Corporation (Re), which ruled last year that federal provisions that give creditors the ability to disclaim certain uneconomic assets hold priority over provincial orders to remediate abandoned wells. The Alberta courts drew heavily upon Newfoundland and Labrador v. AbitibiBowater Inc, a 2012 top court ruling that dealt with similar issues but drew criticism for its potential in creating of perverse incentives. 

Read More
Inter-provincial trade

Interprovincial beer case heads to the SCC

By Justin Ling May 5, 2017 5 May 2017

Interprovincial beer case heads to the SCC

A case that will decide the fate of Canadian liquor laws, and perhaps inter-provincial trade itself, is heading to the Supreme Court.

R. v. Comeau, which found that a ticket issued against Gerard Comeau ran afoul of the Constitution Act, 1867, was decided at the Provincial Court Of New Brunswick in 2016.

Since then, the province has tried to appeal to both New Brunswick Court of Appeal and the Court of Queen’s Bench, to little avail. Their hail mary pass, which came with the enthusiastic support of Comeau himself, was to file for leave to the Supreme Court.

The top court granted leave yesterday.

Read More
Privacy rights

Surveillance oversight requires international effort

By Erika Schneidereit May 3, 2017 3 May 2017

Surveillance oversight requires international effort

 

Since reports on Edward Snowden’s leaks on U.S. spying were published four years ago, the question of where (and how) to draw the line between privacy rights and security interests has generated considerable interest both domestically and at the international level. And yet, international law is still grappling with how to effectively regulate governmental surveillance and access to personal data.

Any discussion on the topic must begin by considering the right to privacy in international law, enshrined as a fundamental human right both in Article 12 of the United Nations Declaration of Human Rights and in Article 17 of the International Covenant on Civil and Political Rights (as well as a handful of other international and regional agreements). But the right to privacy is also a qualified protection. Article 12 refers to no person being subjected to “arbitrary interference” with privacy and Article 17 prohibits “arbitrary or unlawful interference’ with privacy.

What does this mean exactly? 

Read More

Current Issue

Editor's Picks

Unanimous SCC confirms Jordan framework on trial delays

Editor's Picks

Blockchain for in-house counsel

Editor's Picks

Why Canada needs limits on immigration detention

National TV

  • Thumb

    CBA's intervention in Lloyd v. R

  • Thumb

    Margaret Hagan on the role law schools can play in fostering innovation

  • Thumb

    Melina Buckley on the importance of legal aid benchmarks in Canada

View All Videos

Partners In Your Success