The Power of Perspectives

The Canadian Bar Association
Law firm leaders

The law firm leader’s bookshelf: Wiser

By Kim Nayyer May 2, 2017 2 May 2017

The law firm leader’s bookshelf: Wiser


The March/April 2017 issue of Harvard Business Review features an item on managing people. Undoubtedly, this responsibility and the concomitant function of managing teams of these individual people, is a recurring or ongoing focus of attention for many leaders. And as this HBR Spotlight illustrates, the topic is invariably timely.

One of a leader’s key functions is to manage personalities and working styles. We identify and capitalize on individual strengths, and we ameliorate (or at least neutralize) challenging behaviours and approaches to work and thought. And this responsibility often engages the more discrete challenge of creating and managing teams or groups of individuals, each with a unique perspective. We must facilitate interactions in a way that is productive for the group and in furtherance of the larger organization’s goals.

The book Wiser: Getting Beyond Groupthink to Make Groups Smarter, a publication of Harvard Business Review Press, is an invaluable resource for the leader. In fact, it offers a solid grounding to the approaches discussed in the HBR Spotlight. Wiser counsels us in strategies to lead teams that will be most likely to make sound and successful group decisions and, conversely, shows us the pitfalls of group decision-making that can lead to failed projects. A witty and highly readable book, it is a good companion for a commute, flight, or waiting room, or a quick weekend read.

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Criminal justice

The trial is disappearing

By Yves Faguy May 1, 2017 1 May 2017

 

Fair trials are under threat around the world. That’s the message of a recent report by Fair Trials, an international human rights organization that advocates for fair trial rights, and global law firm Freshfields. The reason is an increase in plea bargaining deals, and trial waiver systems, which are removing procedural protections for many accused, a phenomenon the international community has failed to address:

Trial waiver systems – defined for the purpose of this report as creating “a process not prohibited by law under which criminal defendants agree to accept guilt and/or cooperate with the investigative authority in exchange for some benefit from the state, most commonly in the form of reduced charges and/or lower sentences” – have the potential to enhance human rights protection in criminal proceedings due largely to the removal of the burdens which full trial procedures impose on criminal justice systems. Trial waiver systems can provide a solution to endemic case backlogs that contribute to excessive pre-trial detention, by reducing the time and resources necessary to adjudicate cases. These systems can also be employed, for example, to combat corruption and complex criminal networks, to reduce prison sentences and the over-reliance on incarceration and to improve the protection of the rights of victims.

In addition to these benefits, however, human rights and rule of law concerns can also result from the decreasing incidence of full trials as the means of administering criminal justice around the world. Trial waiver systems usually substitute confessions and waivers of procedural rights in place of the procedural and evidentiary rigours of the trial, removing many of the key points at which police and prosecutorial activity is made public and scrutinised. This lowered threshold of scrutiny can exacerbate and reduce accountability for human rights abuses that occur during arrest and the pre-trial period. It can also unsettle the balance of power between actors in the criminal justice system and overly incentivise the use of criminal sanctions to address social problems, with potentially far-ranging impacts on the rule of law.

The report makes the case for the enhancement of certain safeguards such as manadatory access to a lawyer, more scrutiny of the prosecution’s case, added judicial scrutiny, and better data collection to get a better record of the negotiations.

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Young Lawyers International Program

Why domestic partners have no rights in South Africa

By Brooke MacDonald April 28, 2017 28 April 2017

Why domestic partners have no rights in South Africa

 

Picture this: You’re 18 years old when you meet someone and fall in love. Two years later, you have a child with them. This person then pays “damages” to your parents for having a child with you outside of wedlock. At age 21, your parents give their approval for you to move in with this person’s mother because “no one else would want you”. Together you have three more children. This person repeatedly tells you that they love you and want to marry you, but they just need more money. You remain with this person’s mother, caring for her until her death. You never get a proper education and you never get the opportunity to gain real work experience because you’ve been raising your four children, managing the household and caring for this person’s family while they are away doing offsite work.

Now imagine that all of this takes place in a township in rural South Africa. You are a Zulu woman and this person who entered your life, three decades ago, is a Zulu man who has recently left you to be with another woman. You live in a country where only males can legally enter into polygamous marriages under Zulu customary law. You also live in a country where you have no legal right to spousal support, because you are not married, either civilly or customarily. Unlike in Canada (except Quebec), there is no legal mechanism in South Africa for you, as a non-married partner, to receive spousal maintenance – nor a number of other benefits.

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Climate law

Trump and the Paris Climate Accord: Should I stay or should I go?

By Yves Faguy April 28, 2017 28 April 2017

Trump and the Paris Climate Accord: Should I stay or should I go?

 

From Bloomberg, we’re told that advisors to U.S. President Donald Trump are now at odds over whether to pull out of the Paris Climate-Change Accord or not.  If there is any consensus at all, it appears to be that the obligations imposed by the treaty are hardly onerous, and mostly “process-oriented:”

But there are potential domestic legal implications of staying in the deal anyway, representatives from the White House counsel’s office told the group. There is some risk that if the U.S. stays in the agreement and doesn’t take actions to cut emissions, it could surface in legal challenges to Trump’s moves to roll back environmental regulations, they said.

The topic came up yesterday at the CBA Environmental, Energy & Resources Law Summit in Montreal. Seth Davis of the Elias Group in New York reminded the audience that the accord was never submitted to the Senate as a treaty for ratification because there is no way the Upper Chamber would have approved it. He offered three explanations why Trump has yet to carry out his promise to cancel the agreement.

The first – corroborated by the Bloomberg report – is that U.S. Secretary of State Rex Tillerson is forcefully arguing that the U.S. should keep its seat at the table. “Remember, this is someone coming from Exxon Mobil,” said Davis of the former CEO.  “He has some understanding of the art of diplomacy.” It’s also worth noting that Exxon Mobil has endorsed the pack, along with other major energy producers, such as Royal Dutch Shell. Amazingly, the head of the Environmental Protection Agency Scott Pruitt wants the U.S. to pull out.

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Trade

The trouble with ending NAFTA: No survival clause

By Yves Faguy April 27, 2017 27 April 2017

 

Amid the posturing and talk of issuing an executive order to pull the U.S. out of NAFTA – but not just yet Carlos Alvarado reminds us of one major reason for the Trump administration to tread carefully.  NAFTA has no survival clause, which is problematic for existing foreign investors seeking protection through international arbitration:

The U.S. is the biggest investor in Latin America and the Caribbean, with total Foreign Direct Investment (“FDI”) of US $404 billion in 2014 (compared to only US $60 billion of investment from Canada), and Mexico is one of the biggest recipients of such investment. From 1999 to early 2016, Mexico received a total of US $436 billion of FDI and almost US $200 billion (45%) of such FDI inflows came from the U.S.

[…]

Unluckily for NAFTA investors, NAFTA is one of the 3% of investment treaties that do not contain a survival clause. Chapter Eleven’s effects would not be extended after the termination or withdrawal of the treaty. Therefore, six months after serving notice of withdrawal on Canada and Mexico, the U.S. would no longer be part of NAFTA and U.S. FDI in Mexico would no longer be protected under Chapter Eleven.

As soon as any U.S. withdrawal from NAFTA became effective, all the U.S. existing investments in Mexico (around US $200 billion), together with all new FDI inflows coming from the U.S. to Mexico, would no longer enjoy the substantive protections granted by NAFTA (e.g. national treatment, most favoured nation treatment, minimum standard of treatment, fair and equitable treatment, full protection and security, non-discriminatory treatment, no expropriation without compensation). Moreover, U.S. investors would no longer have access to investment treaty arbitration and the international approach therein used against Mexico. In the event of any violation by the host State of applicable Mexican legislation, the affected investor would be obliged to litigate and seek relief from the Mexican courts.

 

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Trade

Why we can't seem to solve the softwood dispute for good

By Justin Ling April 27, 2017 27 April 2017

Why we can't seem to solve the softwood dispute for good

 

How many softwood lumber disputes is it going to take before Canada gets a long-term deal with the U.S.?

This last week appears to have been the beginning of Lumber V, the fifth incarnation of a long-standing trade dispute that has taken place on the margins of NAFTA, wherein Washington has consistently insisted that Ottawa has dumped subsidized lumber into its market. Trade tribunals — even America’s own internal trade authorities — have sided with Canada.

Indeed, past disputes have wound up before arbitration, and led to agreements that have cooled cross-border sniping on the file. Now the two countries have been without a deal since 2015.

And while Prime Minister Justin Trudeau had marathon talks to try and get a deal to pre-empt Lumber V, none came (according to one former U.S. trade representative, Canada was close to sealing one with the Obama administration, but decided to hold out for better terms with his successor). And, as such, President Donald Trump has picked up the mantle.

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Your practice

Really getting things done on a firm retreat

By Carolynne Burkholder-James April 26, 2017 26 April 2017

Really getting things done on a firm retreat

 

Law firm retreats should be about more than just golf, experts say. With some preparation, a clear goal and agenda, these retreats can be a good opportunity for team building and strategic planning.

Sandra Bekhor is the president of Bekhor Management, a Toronto-based consulting firm that provides marketing and strategic planning services to professional practices and small to mid-sized businesses. She says that law firm retreats can be a chance for lawyers to get out of the day-to-day practise of law and focus on the bigger picture.

“Every law firm has higher-level objectives that they can’t get to during the week because they’re busy running their practice,” Bekhor says. “And if you don’t carve out that time outside of the office, outside of meeting with clients and managing your staff, you just never get to it.”

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Criminal justice

To fix our justice system we must reform child welfare laws

By Rebecca Bromwich April 25, 2017 25 April 2017

To fix our justice system we must reform child welfare laws

 

Across Canada, we are dealing with an overburdened justice system, court delays and, as we have seen in the wake of the Supreme Court of Canada’s R. v. Jordan ruling, this is leading to the dismissal of serious charges.  Meanwhile, Statistics Canada data shows that the incarcerated population has never been higher, and that numbers of people in pre-trial detention outnumber those in sentenced custody.

The Canadian Bar Association has identified 10 ways to deal with the overburdening of the justice system.  I agree with everything on the list, but would add another item that requires urgent attention: The need for our provinces and territories to reform child welfare laws. 

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CBA Influence

Sympathy for fallen cop basis of flawed proposed legislation

By Kim Covert April 25, 2017 25 April 2017

 

A proposed bill that made it from the Senate to the House of Commons on a wave of sympathy for the police officer whose death prompted it is so flawed it should not pass into law, says the CBA’s National Criminal Justice Section.

Bill S-217, sponsored by Conservative Senator Bob Runciman, was drafted in response to the death of Edmonton RCMP Const. David Wynn, who was killed by a “career criminal” out on bail.

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Constitution 150

Understanding citizenship and why some Charter rights should be extended to non-citizens

By Yves Faguy April 24, 2017 24 April 2017

Understanding citizenship and why some Charter rights should be extended to non-citizens

 

As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National is featuring opinions by leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ recent conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Y.Y. Brandon Chen, an assistant professor at the University of Ottawa's Faculty of Law, to discuss the meaning of citizenship in Canada and whether the Charter should do more for non-citizen residents.

CBA National: We see governments around the world taking steps to tighten the boundaries of citizenship.  There’s been some evidence of that in Canada too. What is behind that?

Y.Y. Brandon Chen:  In many countries, because of growing anti-immigrant pressure, citizenship is becoming harder to obtain and easier to lose. Several factors have contributed to such an anti-immigrant push. First, the number of forcibly displaced people worldwide has been on the rise. As some of these forced migrants sought protection in high-income countries such as Canada, it fuels a narrative that our society is under siege.

Second, since 9/11, countries around the world have increasingly viewed international migration through the lens of national security. Meanwhile, for many citizens of receiving countries who have been negatively affected by neoliberal austerity measures, the inflow of newcomers raises the spectre of further diminished social resources and economic opportunities. Together, these forces cast non-nationals as a threat that society must guard against rather than embrace.

Third, many governments have discovered that they stand to gain by not extending citizenship to newcomers, at least not right away. In Canada, for example, governments’ denial of legal protection or benefits to non-citizens is largely condoned. This in turn transforms non-citizens into a pool of “flexible” workers that can be fully exploited by employers when the demand for labour is high and yet readily disposable when the demand sags.

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CBA influence

Changing the culture in sexual assault trials

By Kim Covert April 24, 2017 24 April 2017

Changing the culture in sexual assault trials

 

In the wake of the outrage that followed comments by some judges in sexual assault trials, including former judge Robin Camp’s suggestion that a victim should have “kept her knees together,” there have been many calls for better education of judges with regard to sexual assault – particularly, in the way they deal with victims of assault.

Interim Conservative leader Rona Ambrose weighed in with a private member’s bill, the Judicial Accountability through Sexual Assault Law Training Act, which easily passed first and second reading and is now in committee.

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Criminal law

Will the new roadside testing rules pass a Charter challenge?

By Justin Ling April 21, 2017 21 April 2017

Will the new roadside testing rules pass a Charter challenge?

 

Much has already been made of the Liberal government’s pledge to legalize marijuana, and parliamentary debate has yet to even begin.

But one element of the massive legislative effort that has received less scrutiny is a pledge to implement mandatory roadside tests for intoxication — the common breathalyzer test for alcohol, and the still-unproven oral swab test for THC, the psychoactive component in marijuana.

Bill C-46, the legislation updating the Criminal Code’s impaired driving sections, reads that a police officer may, in their “lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law … by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath.”

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