The Power of Perspectives

The Canadian Bar Association
Trade

Is the TPP coming back from the dead?

By Justin Ling October 24, 2017 24 October 2017

Is the TPP coming back from the dead?

 

When we last checked in with the Trans-Pacific Partnership, it was a deal wounded but not dead.

After the United States withdrew from the controversial agreement, trade watchers anticipated the remaining 11 signatories would simply let the deal fall away. It was assumed that substantial changes to the text would be required, and even re-ratification for the two signatories (Japan and New Zealand) who have already given their formal consent to the deal.

And yet, the deal limped on. New rounds of negotiations were held. Governments have voiced voice tepid optimism that a deal could still be reached with those remaining.

Where are we at now? Just as things appeared to look up for the beleaguered deal, it faced new hurdles. While TPP-boosting Shinzo Abe (pictured above) easily won re-election in Japan this past weekend, his New Zealand counterpart was unceremoniously dumped after failing to secure a majority in September’s elections. New Zealand First, a populist party, threw its support behind the country’s Labour Party and now sits as a junior coalition member in an avowedly trade-skeptic government, which also includes the Green Party.

New Zealand First reports in its official policy book that they intend to “oppose investor-state dispute settlement (ISDS) provisions in bilateral and multilateral agreements and by extension the Trans Pacific Partnership-11, which offers little for our exporters.

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Opinion

I am a white settler

By Caitlin Urquhart October 24, 2017 24 October 2017

 

Recently a presenter introducing me stumbled over these words. I still feel awkward saying them. These words can make everyone in the room tense, on edge.

I am a white settler. Not my ancestors, not my history, me. I live here on traditional unceded, unsurrendered Beothuk and Mi’kmaq territory. I am a citizen of this colonial government that through current racist and discriminatory practices allows Indigenous peoples to suffer under boil water advisories, abysmal housing conditions, unacceptably high rates of children in care and school drop out. I have allowed this current government to continue to ignore the orders of the Canadian Human Rights Tribunal to end the discriminatory chronic underfunding of Indigenous children in care. And I am a part of the justice system that allows Indigenous women, girls and two-spirit people to go missing and murdered and actively criminalizes Indigenous peoples making them the most overrepresented group in our prisons.

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The profession

LSUC's diversity statement: Unconstitutional?

By Yves Faguy October 23, 2017 23 October 2017

LSUC's diversity statement: Unconstitutional?

 

The soon-to-be-renamed Law Society of Upper Canada has caused significant controversy in the legal profession over its new requirement that licensees abide by a statement of principles promoting equality, diversity and inclusion. The requirement is part of a broader effort on the part of the law society to remove barriers encountered by racialized licensees, as proposed by a working group whose recommendations were adopted late last year.

Why the fuss? Critics say that requiring lawyers to adopt a statement on diversity and inclusion violates freedom of expression, as protected under the Canadian Charter.  The main objection here is that it amounts to forcing them to express opinions they may or may not share – very different, according to Bruce Pardy of Queen’s than having to comply with a law all the while having the right to disagree with it: “The Supreme Court of Canada has said that forcing someone to express opinions that they do not have “is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes,” he writes.  What’s more, writes Léonid Sirota, oaths like these are questionable from a constitutional point of view, and the legal profession should show some backbone by refusing to comply with orthodoxy imposed on it from above. Defenders of the requirement — Adam Dodek, among them — respond that these objections are a stretch too far, particularly as the law society is merely trying to promote Charter values and therefore the statement amounts to “nothing more than a positive affirmation.” To Jennifer Quito, the statement of principles “directs action, not belief” and merely upholds obligations not to discriminate already covered under Ontario’s professional conduct rules.  Even if there is a violation of freedom of expression, it is justified, she writes: “Requiring lawyers to confirm their human rights obligations is not deleterious, and in any event, it would be far outweighed by the salutary effects.”

So far, freedom of expression and thought appears to be alive and well in the legal profession.

 

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CBA Influence

Privacy at the border: Is a smartphone more like a letter or a briefcase?

By Kim Covert October 19, 2017 19 October 2017


The post-9/11 emphasis on the need for security has exacerbated the difficulty of balancing the individual right of privacy with the state’s right to know, especially at border crossings. And more and more the fulcrum those two balance upon is the personal electronic device, be it a laptop, a tablet or a smartphone.

The credit card used to be the thing we wouldn’t leave home without, these days it’s our electronic devices, particularly smartphones. They have become indispensable when travelling, especially now that travel providers have made tickets and boarding passes available electronically.

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Immigration

The Supreme Court rules on the meaning of "serious criminality"

By Yves Faguy October 19, 2017 19 October 2017

The Supreme Court rules on the meaning of "serious criminality"

 

The Supreme Court of Canada has ruled, in a unanimous decision, that a conditional sentence for a marijuana grow-up offence cannot justify the deportation of a foreign national.

What was at issue:  The top court had to decide whether a conditional sentence consists of a “term of imprisonment” as understood under the Immigration and Refugee Protection Act, and whether the appellant should be removed from Canada for serious criminality.  Under s. 36(1) of the IRPA, a permanent resident or a foreign national can be found inadmissible to Canada on grounds of “serious criminality.” That includes being convicted in Canada of a federal offence punishable by a maximum term of imprisonment of 10 years or more.  The appellant in this case was a Vietnamese citizen and permanent resident in Canada since 1989. In 2013, he received a 12-month conditional sentence after being convicted of charges related to his involvement in the grow-op. At the time he was charged, the maximum penalty was seven years of imprisonment, just before getting bumped up to 14 years under the Harper government.  In the court’s words:

It is clear from the wording of the provision that whether or not an imposed sentence can establish “serious criminality” depends on its length. Length is the gauge. It must be “more than six months”. However, the seriousness of criminality punished by a certain length of jail sentence is not the same as the seriousness of criminality punished by an equally long conditional sentence. In other words, length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of the permanent resident.

The court also ruled that a new maximum sentence cannot be retroactive to the time the offense was committed.

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Religious neutrality

Quebec’s religious neutrality bill: Legal challenges to pile up soon

By Beverley Spencer October 19, 2017 19 October 2017

Quebec’s religious neutrality bill: Legal challenges to pile up soon

 

It didn’t take long for legal experts to start poking holes in Quebec’s controversial new law which bans face-coverings for public workers and anyone receiving a government service. “I’ve never seen a more flagrantly unconstitutional law,” said Montreal human-rights lawyer Julius Grey. “The possibility that somebody could be refused service at a hospital or be thrown off a bus [because of a face veil] is scandalous,” he told The Globe and Mail.

There are still many unanswered questions, but here’s what is known so far.

The new law

The Quebec National Assembly passed Bill 62 on Wednesday. The stated purpose of the law is to establish the “neutrality of the state” for “communications reasons, identification reasons and security reasons.”  The Quebec Liberals, who hold the majority, voted in favour; the opposition Parti Québécois and Coalition Avenir Québec, who have argued the legislation doesn’t go far enough, voted against. Montreal Mayor Denis Coderre opposes denying services to people with covered faces and says it's unfeasible anyway. The law will go into effect after it receives Royal Assent.

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CBA Influence

Something’s gotta give when resources don’t grow with workload

By Kim Covert October 18, 2017 18 October 2017


Canada has opened its doors and its arms and its borders to refugees.

Now it needs to open its wallet.

British Columbia has gone from receiving 725 refugee claims in 2016 to 110 a month in 2016. In Ontario, if the current rate of refugee claimants continues, there could be nearly 5200 by the end of the year, almost double the number in 2015. Across the country, the Immigration and Refugee Board predicts 40,000 new claims by the end of the year.

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Aerospace

After the Bombardier-Airbus deal

By Yves Faguy October 18, 2017 18 October 2017

After the Bombardier-Airbus deal

 

Now that Bombardier has agreed to “sell” a majority stake in its C Series passenger jet business to aerospace manufacturer Airbus, it would seem that Boeing’s recent play in getting U.S. officials to threaten major import duties on the jet program has backfired. Under the agreement, some of the aircraft will be assembled at Airbus’ plant in Alabama.

This isn’t over yet: There’s no question that Airbus, and to a much lesser extent Bombardier, look to be coming out of this ahead. Already Delta Air Lines has said it looks forward to taking delivery of its order of C Series jets. But Boeing is calling the deal “questionable, ” trying to paint it as a barely transparent move to dodge U.S. trade law. In response to that claim, Bombardier President Alain Bellemare said: "It's not intended to circumvent anything, but the fact is that when you produce an aircraft in the U.S. it's not subject to any U.S. import tariff rules." We’ll see. How much of the aircraft will, in fact, be produced in the U.S. will likely be the focus of trade experts as the drama — not to mention simmering trade tensions between the U.S. and Canada — plays out.

Looking toward 2023 and beyond: Airbus has been pretty clear about wanting to become sole proprietor of the C Series program. “It’s not forever a threesome. Over time, we take 100 percent of the program. That’s the end game,” said Airbus vice president of communications Rainer Ohler on Monday. “At the end of the day, this will be an Airbus program.” Airbus will also be able to exercise warrants to acquire up to 100,000,000 subordinate voting Class B shares of Bombardier at an exercise price per share equal to C$2.29. The warrants will have a five-year term from the date of issue (likely in 2018).  In 2025, Airbus can exercise the right to buy the entire C Series program from Bombardier at a "fair value”. Bombardier will also have the reciprocal right to force the sale to Airbus, if it so decides.

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Resources

Judicial review of the Kinder Morgan Trans Mountain pipeline ends

By Mariane Gravelle October 17, 2017 17 October 2017

Judicial review of the Kinder Morgan Trans Mountain pipeline ends

 

The controversial Kinder Morgan pipeline expansion project – also known as the Trans Mountain Pipeline system – moves one step forward. Federal Court of Appeal proceedings in its most recent judicial review came to a close last week, leaving the parties awaiting a decision which could take several months to be issued.

A quick refresher

The Trans Mountain project is a proposed expansion of the existing Kinder Morgan pipeline running between Alberta and the west coast of British Columbia. The proposed expansion - which could so much as triple the system’s capacity – has been met with opposition from First Nations and environmental groups on the basis that it could potentially be detrimental to the environment. The pipeline project has also faced uncertainty due to provincial politics

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The profession

Moving toward racial diversity: strategies for success

By Kristen Liesch, PhD October 17, 2017 17 October 2017

Moving toward racial diversity: strategies for success

 

“Of course, we are trying to increase gender equality at our firm, but what we also need to focus on is improving our racial diversity.”  (Key stakeholder, Alberta-based firm.) 

Firms today are endeavouring to increase diversity according to a variety of metrics, including race. They’re motivated not only by the business case (that racial diversity increases revenue, client acquisition, market share, and relative profits), but by the fact that a firm’s diversity is becoming a key performance indicator that clients, competitors and job candidates use to assess the quality of a firm. 

A quick look at partner profiles of a given Canadian firm will confirm, however, that racially diverse partners are still in a very small minority (I acknowledge racial diversity cannot always be accurately determined without subject self-identification). 

Lack of progress in this area is sometimes explained as a pipeline problem, where there is a lack of qualified candidates to begin with. Research on the subject reveals a much more nuanced scenario. For example, studies shows that even the mild benefit white lawyers enjoy (due to more robust formal and informal workplace social networks) results in significant disparities at the top. Furthermore, when bias-interrupting measures are not in place, partners tend to promote candidates who are socially similar to themselves.

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CBA influence

Cannabis conundrum: If it’s legal, why treat it like the demon weed?

By Kim Covert October 17, 2017 17 October 2017

 

The CBA has been a vocal supporter of changing the way the law treats cannabis for nearly 40 years – in our first resolution on the subject, in 1978, the Association urged the government to stop criminalizing simple possession, and also advocated moving marijuana from the Narcotic Control Act to the Food and Drug Act.

While it applauds the intent behind Bill C-45, the Cannabis Act, the Criminal Justice Section notes that marijuana use would be far from normalized under the proposed law. In comments on a 2016 discussion paper, the Section noted that the government’s approach might be better described as a step toward “decriminalization” but could not be accurately referred to as “legalization” given its heavy reliance on criminal law.

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Human rights

Canada strengthens anti-corruption laws with Magnitsky Law

By Noah Arshinoff October 16, 2017 16 October 2017

Canada strengthens anti-corruption laws with Magnitsky Law

 

Though not first out of the gate, Canada is about to implement a law that would sanction human-rights abusers, modeled on Magnitsky-style legislation adopted in the U.S. and Britain.

Earlier this month, the House of Commons adopted Bill S-226, which empowers the federal cabinet to forbid Canadian business dealings, or dealings with Canadians abroad, by foreign nationals who are “responsible for, or complicit in, extrajudicial killings, torture or other gross violations of internationally recognized human rights.” Essentially, cabinet is responsible for maintaining a list of sanctioned individuals. For example, if a Canadian journalist were captured and tortured in Iran, Canada could publish the names of the prison guards who carried out the torture thus adding them to the sanctions list. Those on the list would face severe repercussions in Canada including having all of their property and assets in Canada seized and forfeited.

The bill returns to the Senate for a final look over before it is enshrined in  law.

The law is also Canada’s response to the suspicious death of Sergei Magnitsky in a Moscow prison in 2009.

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