The Power of Perspectives

The Canadian Bar Association
The Supreme Court

Filling McLachlin's seat: What does tradition tell us?

By Justin Ling June 13, 2017 13 June 2017

Filling McLachlin's seat: What does tradition tell us?

 

With Chief Justice Beverley McLachlin retiring, the Trudeau government will have to search for a replacement in that role for the first time in 17 years. The Prime Minister will also have the opportunity to fill her seat.

The big question that will be debated in legal circles in the coming weeks and months is, who will fill her shoes?

Chief Justice McLachlin has been heralded as a consensus-builder on the top court over a nearly two-decade stretch where the court has crafted whole new approaches to the Charter of Rights and Freedoms, breathed new life into ancestral rights for Indigenous peoples and reinforced centuries-old treaties signed with the Crown, and pronounced itself on an array of controversial topics from gay marriage to medical marijuana, assisted dying, and sex work.

"Ever the collaborative jurist, she is known for finding consensus on the court and fostering cordial and collaborative relationships with the profession," CBA President René Basque said in a recent statement following the announcement of her retirement.

Her legacy will be a hard one to match.

And the prime minister is going to have a tough job picking one from the current contingent of justices to fill her role as head of the country.

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The Supreme Court

Words of advice to lawyers from CJ McLachlin

By Yves Faguy June 13, 2017 13 June 2017

Words of advice to lawyers from CJ McLachlin

 

As the Canadian legal community digests the news that our Chief Justice of 17 years will be retiring in December, here’s some friendly advice Beverley McLachlin shared with us during an interview in 2010  for lawyers appearing before her court:

Think about what the court will need, what it will be grappling with. We regard counsel as sources of assistance in deciding the case. Will spending 20 minutes on facts help the court? Not really. We’ve already read the briefs and know the facts. So how can you best help the court? Maybe it’s by going to the most difficult issue you face. I’m not trying to give a prescription for how a case should be argued. It varies from case to case. But sometimes one gets the feeling that counsel are trying to bury the most difficult issue, or escape by it, and hope no one will notice. Well the chances are not good. In the spirit of being helpful to the judges, go to the most difficult part of the issue. Say ‘Your honours, you will be grappling with this issue. It is a difficult issue. This is what I have to say about it, and this is why I believe you should decide that issue in favour of my client.’ Give the judges the ammunition, the cases and the resources they need.

It’s perhaps obvious advice to many advocates out there, but I’m struck at how often lawyers are surprised when I relay her comments.

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Child labour

Working towards eradicating child labour

By Mariane Gravelle June 13, 2017 13 June 2017

Working towards eradicating child labour

 

It’s an uncomfortable notion to entertain: the idea that the clothes we wear, the food we eat and the technology that makes our lives easier each day may have been brought to reality – in one small way or another – by the hands of a child. Rare are those who want to support child labour but the fact remains that it still endures, even in 2017.

June 12 – the International Labour Organization’s (ILO) World Day Against Child Labour – offers the opportunity to shine a light on this practice. A report by the same organization offers an insight into the prevalence of – and current trends in – child labour around the world. Examining data collected from 2000-2012, the ILO estimates that 168 million – or 11 per cent – of the world’s children are engaged in some form of child labour. The organization has been collecting data with the view of “eliminating all the worst forms of child labour by 2016”. When the report was published in 2013, the ILO expressed doubt regarding the achievement of that goal and urged the international community to increase their efforts to reduce child labour.

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Immigration law

Why Canada needs limits on immigration detention

By Yves Faguy June 12, 2017 12 June 2017

Why Canada needs limits on immigration detention

 

Immigration detention is a form of administrative detention, and as such should be brief.  But while that may be true for a large majority of immigration cases, says Anthony Navaneelan, a lawyer with the Refugee Law Office at Legal Aid Ontario, we’re seeing more and more cases “where individuals are being detained for extremely long periods of time” under the Immigration and Refugee Protection Act.

Navaneelan, who was part of a panel discussion on immigration detention at the CBA’s Immigration Law Conference in Toronto last week, was making the case that there should be a clear time limit on immigration detention.  Unlike some other countries, Canada has not set a maximum length of time a person can be held.  Navanaleen proposes that limit be set at two years.

To be fair, the Canadian government has made efforts to reduce the length of detentions in Canada. According to the Canadian Border Services Agency, the average duration in 2016-2017 was 19 days, down from 23 days in 2015-2016. The figure has dropped by 20.4 per cent over the last three years.

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CASL

Canadian government suspends right to private right of action under CASL

By Mariane Gravelle June 8, 2017 8 June 2017

Canadian government suspends right to private right of action under CASL

 

Under Canada’s anti-spam law, or CASL, new provisions were to come into force on July 1 that would expose non-CASL compliant organizations to lawsuits brought by affected individuals in response to violations. But in a cabinet order dated June 2, 2017, Parliament has halted this this process indefinitely, effectively suspending the private right of action. This decision has been met with mixed reactions.

Lawyer Barry Sookman welcomes the news:

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Criminal law

Feds expand the rape shield protections

By Justin Ling June 7, 2017 7 June 2017

Feds expand the rape shield protections

 

It was 25 years ago that Canada saw the adoption of a rape shield law, designed to protect survivors of sexual assault from being cross-examined on their sexual history, unless it was directly pertinent to the facts of the case.

But now, under legislation tabled by Justice Minister Jody Wilson-Raybould on Tuesday, the shield law is getting an update. And with it, the statutes around consent will gain further clarity.

It’s all a part of a revamping of the Criminal Code, undertaken by Wilson-Raybould, which will see a host of antiquated laws deleted or modernized, as part of a bid to drag the Criminal Code into the 21st century. The bill is titled, perhaps unfortunately, C-51.

The crux of the changes to the rape shield law will clarify that no communications from the complainant’s past can be admitted into evidence if they are being used by defence counsel to do one of two things: Undercut the credibility of the witness, or establish a likelihood that the complainant would’ve consented. These are the so-called “twin myths.”

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Patents

The blockchain patent rush

By Yves Faguy June 6, 2017 6 June 2017

The blockchain  patent rush

 

Blockchain, the peer-to-peer distributed ledger technology that underlies Bitcoin but which also has other uses, has everyone predicting it will revolutionize everything from banking and finance to insurance and law. That revolution, however, will play out over decades, explain Marco Iansiti and Karim Lakhani in the Harvard Business Review:

True blockchain-led transformation of business and government, we believe, is still many years away. That’s because blockchain is not a “disruptive” technology, which can attack a traditional business model with a lower-cost solution and overtake incumbent firms quickly. Blockchain is a foundational technology: It has the potential to create new foundations for our economic and social systems. But while the impact will be enormous, it will take decades for blockchain to seep into our economic and social infrastructure. The process of adoption will be gradual and steady, not sudden, as waves of technological and institutional change gain momentum.

But as the Economist reported earlier this year, that hasn’t stopped battle lines from being drawn early over patenting that “foundational” technology – or at least improvements on it.  Among notable companies filing patents are Amazon.com, Apple and Facebook, and the number of filings in the U.S. is tripling each year. But what makes this area of patenting particularly challenging is that open-source nature of core blockchain technology, say Paul Horbal and Brian De Vries:

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Kinder Morgan: Is the law really on its side?

By Supriya Tandan June 5, 2017 5 June 2017

Kinder Morgan: Is the law really on its side?

 

Politics will surely intervene in determining whether the Trans Mountain Kinder Morgan pipeline expansion project goes ahead.  It’s still unclear how things will get resolved in the BC legislature with possible challenges ahead surrounding the election of a new Speaker, and there’s even a chance the province could hold a new election.

But if the NDP and Green Party do succeed in forming an alliance to create a stable minority government, what happens to the Kinder Morgan the pipeline expansion project? The NDP and Green Party agreement includes a statement of shared interest in halting the project.

Can they do so legally?

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Climate law

Withdrawing from the Paris Agreement: The legal picture

By Yves Faguy June 2, 2017 2 June 2017

Withdrawing from the Paris Agreement: The legal picture

Now that the world has expressed profound regret at President Donald Trump's decision to pull the U.S out of the Paris Climate Agreement, and issued warnings that its terms are non-negotiable, it’s worth pausing to consider what it all means legally.

The most puzzling statement Trump made yesterday is that he wants “a better deal” claiming, “Believe me, we have massive legal liability if we stay in.”

More than a few commentators are calling Trump out on this claim. David Roberts explains:

Paris’s only constraint on Trump comes through intangibles like reputation and influence. It imposes absolutely no practical or legal constraint on his actions — not on trade policy, not on domestic energy policy, nothing.

That means all talk of Paris being a “bad deal” for the US, or hurting US trade, or affecting the US coal industry in any way, is nonsense. Paris does not and cannot do any of those things.

Indeed, though the treaty is technically binding under international law, it is built aound mostly non-binding undertakings. Yes, it requires countries to report on their progress, but the targets themselves are not legally binding. Michael Grunwald offers his best guess at the real motives behind the decision:

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National security

Sharing national security secrets: More oversight

By Justin Ling June 1, 2017 1 June 2017

Sharing national security secrets: More oversight


When the Liberal government finally gets around to introducing a reform package on Canada’s national security laws, chances are that much of the attention will focus on the Security of Canada Information Sharing Act, or SCISA.

Skepticism over information sharing has reached peaked in recent years, thanks in no small part to the Edward Snowden leaks and subsequent revelations and litigation surrounding the integration of the Five Eyes intelligence partners.  Together they have produced a steady trickle of information that has shown how Canadian intelligence agencies are integrated to the services of American and foreign partners. And how that can impact Canadians, even innocent ones.

Given that, and thanks to reforms introduced by the Harper government, the Liberals have honed in on tinkering with SCISA in order to write in some more general stopgaps and safeguards.

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BC election

What if BC can't elect a new Speaker?

By Yves Faguy May 31, 2017 31 May 2017

What if BC can't elect a new Speaker?

 

 

Faced with two options  — resign now or face defeat on a confidence vote — BC Premier Christy Clark has made it clear that she is going the latter route.  She has stated, however, that she will recall the legislature for a vote soon, and won't ask the province’s Lieutenant Governor for a new election if defeated.  So far, there is little controversy surrounding her decision, at least from a legal point of view.  Even or political opponents, NDP leader John Horgan and Green Party leader Andrew Weaver have acknowledged her right to have the first opportunity at forming a government. 

But by forcing the vote of no confidence, is the premier not just putting off the inevitable?

Perhaps not. For starters, the NDP-Green Party pact could always fall apart. It’s also worth pausing to consider an intriguing possibility raised by James Bowden. The new legislature may not be able to elect a new Speaker:

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Pot legalization

No logo for cannabis

By Doug Beazley May 30, 2017 30 May 2017

No logo for cannabis

 

Walk into a convenience store in Colorado and you might encounter Toast — the new face of marijuana marketing. It’s smokeable cannabis in the form of machine-rolled cigarettes, each tipped with a royal-purple filter embossed with a gold-foil butterfly. The package is jet black, with the label embossed in gold, deco-style type.

The effect is one of sophisticated, rakish elegance — a cocktail-chic approach to a drug typically sold in plastic baggies in city parks. Marijuana is legal for recreational sale and consumption in Colorado. Toast’s makers are pursuing an upscale demographic: well-heeled users who smoke socially and can afford a premium product.

It’s the kind of thing Canadian cannabis producers would very much like to do with their own product once the legal recreational market is in place here. They’re probably going to be disappointed.

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