The Power of Perspectives

The Canadian Bar Association
Constitutional law

Putting the Charter first

By Justin Ling September 23, 2016 23 September 2016

Canada’s constitutional safeguards are failing us, according to a new report from the Canadian Civil Liberties Association, and that’s enabling the passage of too many unconstitutional laws.

The CCLA released the new report as a part of their Charter First campaign, seeking to raise awareness about the constitutional vetting process.  The aim is to get Parliament to introduce new checks and balances into Canada’s federal lawmaking process.

“These mechanisms would provide more transparency and accountability to Canadians, as well as more information and resources to parliamentarians in their consideration of Charter issues,” the report reads.

The report discusses at length the case of Schmidt v. Canada, in which CCLA intervened. Edgar Schmidt is a former Department of Justice lawyer who sued the government over its process for vetting legislation to ensure its validity under the Charter of Rights and Freedoms.

CBA National has extensively covered Schmidt’s lawsuit, and his effort to force the government to adopt clear Parliamentary reporting rules around legislation if it is believed to be likely unconstitutional.

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CBA influence

Being reasonable when it comes to temporary residents

By CBA/ABC National September 23, 2016 23 September 2016

When it comes to the rules governing implied status and conditional permanent residence in Canada, a little reasonableness wouldn’t go amiss, the Chair of the CBA’s Immigration Section suggests in a letter to Immigration Minister John McCallum.

The letter follows up on a meeting held in the spring with Immigration, Refugee and Citizenship Canada officials. Section Chair Vance Langford notes that the implied status rules can place an unnecessary burden on temporary residents, here on a work or study permit, who for example might file for an extension but not hear back before the permit expires. “These conditions force a temporary resident holding (implied status) who is required to travel outside of Canada to choose between remaining in Canada until a decision is made on the application or losing the ability to work or study.”

It shouldn’t be assumed that a foreign national who must leave the country doesn’t want to come back, either, the letter says – they may have to leave to do their jobs, or to attend to critical family matters. If they applied for but didn’t receive the extension before they left, they are forced to reapply for the permit at a point of entry. “This burden is greater for citizens of countries requiring a Temporary Resident Visa because a new TRV in addition to a work permit is required to return.”

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CBA influence

Weed whacking: Consultation on legalizing marijuana

By CBA/ABC National September 23, 2016 23 September 2016

Rethinking the role of marijuana in Canadians’ lives is an exercise fraught with obstacles, including nearly a century of social and legal stigma and the confusing dual nature of marijuana use – marginally accepted medical use and still-criminal recreational use. It’s hard for anyone outside the 4:20 culture to sit back and get mellow about it.

And that includes the federal government. The governing Liberals made big waves with their election promise to legalize marijuana. But the CBA response to a discussion paper released this summer notes that legalization is not the same as decriminalization, and legalizing without decriminalizing will be problematic.

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Legal innovation

Legal analytics: Where are the data scientists?

By Yves Faguy September 21, 2016 21 September 2016

What is it that lawyers do?

“They help people navigate complexity and manage enterprise legal risk," according to Daniel Katz, an expert on emerging legal technology and one of the speakers at a conference put on by LegalX and Thomson Reuters in Toronto this week.

A follow-up question to that is, how does one put a dollar figure on a lawyer’s work, other than relying on the billable hour? Unfortunately for clients, it’s the complex nature of legal services that makes it so hard to ascribe value to what lawyers do. For the unsophisticated client in particular, it’s almost impossible to separate the wheat from the chaff.

But in the age of data analytics, that is all quickly changing. There are several tools already available on the market that help companies control their legal spend. Last year, AIG launched a legal consulting company that harnesses the insurer’s own internal data to sell it to corporate clients to help them set competitive pricing for legal services. Increasingly, law departments are looking at past case performance to select law firms and lawyers, says Toby Unwin, co-founder of Premonition LLC, a Florida outfit that uses artificial intelligence to determine the effectiveness of trial lawyers.

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CBA influence

Judging the judges: CBA comments on judicial discipline

By CBA/ABC National September 21, 2016 21 September 2016

When news is released after business hours on a Friday or on the last day before government takes a holiday of some sort, don't expect it to get a lot of attention. That’s when the government released its consultation paper on judicial discipline – the last working day in June, at 4:30, on Twitter, with an Aug. 31 deadline for responses.

Nonetheless, the CBA brought together a team of lawyers with experience in the judicial discipline process and other professional discipline matters, including the chair of the Ethics Committee, to comment on the proposals. Their letter builds on a 2014 submission to the Canadian Judicial Council on the topic.

The CBA framed its response within the dual requirements of protecting the independence of the judiciary and ensuring that justice is not only done, but seen to be done.

“Self-governing professions are vulnerable to public suspicion that their governing bodies act in the interest of members of the profession rather than in the public interest,” the submission says.

The submission makes a total of 16 recommendations, including:

 

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The profession

LSUC recommends end to LPP

By CBA/ABC National September 20, 2016 20 September 2016

The LSUC is recommending scrapping the Law Practice Program as an alternative to articling.  More from the Law Times here.

Noel Semple is aghast

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Corporate counsel

Five simple rules for getting along with regulators

By Pablo Fuchs September 19, 2016 19 September 2016

 

Keg Restaurants Ltd. was caught in an unfortunate and unlikely situation recently, in which the liquor licence for one of its locations was about to expire due to a series of unforeseen circumstances. An important document was sent to the location rather than the appropriate liquor regulator; the main contact at the liquor regulator was away on vacation; and, after several attempts to get in touch with that contact’s backup, it was discovered that the person had fallen ill.

Catherine Chow, Vice-President Legal and General Counsel (pictured above), who manages the legal matters of more than 100 restaurants across North America for the company, knows that of the many complex relationships she and her team manage, few are as sensitive—or can have such a profound impact—as those with the regulators that oversee their business. As such, she’s fully aware that ensuring in-house counsel have strong, cordial, open and collaborative relationships with regulators can pay off greatly.

“We followed up and found a live body to get a hold of, which is very challenging because they deal with a lot of files,” she says. “But we’re a big chain, so liquor regulators and other regulators know us. We’ve been in business for 40 years. Knowing that, and who we are, helped us resolve communication gaps that occurred naturally.”

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CBA Futures

Legal Futures roundup: September 19, 2016

By Brandon Hastings September 19, 2016 19 September 2016

 

Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our biweekly round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

The United Kingdom’s Legal Services Board has released a report for legislative reform of the legal services industry in England and Wales. The report, among other things, recommends a shift from various regulators of legal activities to a single regulatory body. Currently, there are six legal activities that are reserved for barristers and solicitors, and regulated by a patchwork of regulators. Neil Rose expatiates on the issue, speaking on frustration with the apparent arbitrariness of these reserved areas.

Meanwhile, Andy Somerville writes on the wisdom of specialization in law firms, exploring whether is it more sensible for partners to develop their management skills, or for firms to hire-in business acumen. Perhaps a mix? Managing lawyers tend to be time-poor, and working on lawyers to develop business acumen can be an expensive proposition. By the same token, however, there is clearly value in having subject-matter expertise in the management-suite.

Closer to home, Jordan Furlong offers six takeaways from Norton Rose’s acquisition of Bull Housser in Vancouver, suggesting that the move adds to Vancouver’s appeal as “a hub between North America and the Asia-Pacific region” and giving it the upper hand over Calgary and Montreal in the contest to be Canada’s Second City to Toronto.

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Criminal law

The Vader decision: Mistrial or down to manslaughter?

By Justin Ling September 16, 2016 16 September 2016

Justice Denny Thomas might be wishing that he wrote his conviction of Travis Vader in pencil.

The Alberta Queen’s Bench judge appears to have made an error in law in his second degree murder conviction, delivered live on TV, when he relied on Section 230 of the Criminal Code.

Section 230 maintains that an accused is guilty of culpable murder if they commit death occurs during the commission of a litany of crimes, including — in Vader’s case — robbery.

Thomas concluded that Vader had killed Lyle and Marie McCann, two Alberta seniors whose bodies have yet to be found.

But the murder charge may be thrown out, as Thomas likely should’ve relied on Section 229, which deals with simple murder.

Alberta law professor Peter Sankoff was the first to point out the error, taking to Twitter upon watching the decision to note that Section 230 had been declared unconstitutional.

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The practice

Lawyers not great at building relationships under pressure

By CBA/ABC National September 16, 2016 16 September 2016

At the CLC in August, CBA National caught up with J.P. Pawliw-Fry, a global leadership expert with the Institute for Health and Human Potential who gave a talk on performing under pressure. Above is what he had to say about lawyers in particular.

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Trade

The new face of globalization: Internal trade

By CBA/ABC National September 16, 2016 16 September 2016

In his latest column, Tyler Cowen refutes the notion that globalization has “hit a wall”, post-Brexit, and with TPP and TTIP on the skids:

Globalization isn’t so much slowing as it is taking new forms. The most potent form of globalization today is occurring inside nations, notably China and India.

Globalization typically is defined as the movement of goods, services, ideas, labor and investment across national borders. But many nations lack integrated economic relations within their borders, and thus they could reap high gains from trade by opening up internally. This is happening, and its logic very much resembles that of globalization.

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CBA Influence

Trust the market and just say no to regulations

By CBA/ABC National September 16, 2016 16 September 2016

Innovation is a Canadian value,” Innovation, Science and Economic Development Canada says in an online consultation on the federal government’s innovation agenda asking for input from stakeholders in six areas:

  • Entrepreneurial and creative society
  • Global science excellence
  • World-leading clusters and partnerships
  • Grow companies and accelerate clean growth
  • Compete in a digital world
  • Ease of doing business

The Competition Law Section replied to the last item on Sept. 9 with a clear caution that if the government wants to foster innovation, regulations are contraindicated – open market forces, should be trusted to promote increased competition and innovation, it says.

 

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