The Power of Perspectives

The Canadian Bar Association
CBA influence

Proceeds of Crime Act: Leave privilege out of it

By Kim Covert April 26, 2018 26 April 2018

 

Money laundering and terrorist financing is on the minds of both policy-makers and regulators this spring as the federal government carries out a statutory review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and the Federation of Law Societies of Canada proposes amendments to its Model Rules dealing with the subject.

The CBA has a long history of advocacy on the issue: it was involved in the development of the first proceeds of crime legislation in Canada and has commented since on proposed legislative and regulatory changes, always asserting that the laws must protect solicitor-client privilege. The CBA was an intervenor in Canada (Attorney General) v Federation of Law Societies of Canada, in which the Supreme Court confirmed that the proceeds of crime legislation cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.

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The Supreme Court

Reactions to the Comeau "free the beer" ruling

By Yves Faguy April 25, 2018 25 April 2018

Reactions to the Comeau "free the beer" ruling

Predictably, the Supreme Court’s ruling in Comeau has been greeted with a good measure of disappointment. Emmett Macfarlane was among the first to set the tone:

It’s the pitch-perfect case for why judicial deference to a legislature can still be inappropriately political, even activist. And as a result of this politicized timidity, we get a resounding absurdity. As economist Mike Moffatt tweeted, “With today’s SCC decision, there are fewer trade barriers for Ontario companies to sell to Michigan than to Quebec. This is a problem.”

It’s an absurdity of constitutional interpretation that the Court routinely allows in the context of federalism but would never countenance in other areas of law. But mostly, it’s just absurd.

Asher Honickman calls the unanimous ruling “bizarre:”

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The Pitch 2018

Getting to know The Pitch finalists: Digitory Legal

By Yves Faguy April 24, 2018 24 April 2018

 

As part of a weekly series leading up to The Pitch 2018, the legal innovation startup competition put on by the Canadian Bar Association and Law Made in partnership with LexisNexis, we’re publishing interviews with the five selected finalists to get to know them better.  This week’s Q&A is with Catherine Krow (featured in the above video), CEO and founder of Digitory Legal, a cost analytics and management platform for law firms and corporate legal departments.

 

CBA National: What are the origins of Digitory Legal?

Catherine Krow : Practising as a litigation lawyer, I realized a few years that this profession — this industry — is evolving. And that to be successful law firms and legal departments needed to change. I started seeing some of that change with the rise of legal operations and legal procurement, which were two job categories that barely existed five years ago. And to succeed in this market I really believed that law firms would need to start examining how they do things, adopt new technology and really make some changes to better meet the business needs of their clients. I found this exciting and saw a chance to do something new and different and focus less on the practice of law and more on the business of law.

N: Explain what Digitory Legal does.

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CBA influence

Amendments to Bill C-45 good, but more needed

By Kim Covert April 24, 2018 24 April 2018

 

Bill C-45, the Cannabis Act, set to become law this summer, is making its slow way through the approvals process, arriving in mid-April at the Senate Committee on Legal and Constitutional Affairs.

The CBA made a submission on the bill earlier in the process. For this Senate committee hearing the Criminal Justice Section sent a letter acknowledging that we generally support amendments made to the bill in the House, but emphasizing that the CBA still has serious concerns.

Amendments to the bill since our submission last fall include removing the height-restriction for home-grown plants, setting $200 as the maximum fine and specifying that probation is not to be imposed for ticketing offences, and adding certain immunities from prosecution for possession offences in the context of medical emergencies.

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Trade

Trade and national security risks

By Doug Beazley April 23, 2018 23 April 2018

Trade and national security risks

 

It’s a measure of just how unsettled things have gotten in the realm of international trade law commentary: the experts have started quoting Frank Zappa.

A quip attributed to the late gonzo rock star — “You can't be a real country unless you have a beer and an airline” — has been making the rounds in emails exchanged by trade lawyers. It’s a gag, of course, but it also reads as a better-phrased version of the justification U.S. President Donald Trump offered for his decision to cite a threat to national security to justify massive new tariffs on imports of steel and aluminium.

“Our steel industry is in bad shape,” Trump tweeted on March 2, before mashing the all-caps key. “IF YOU DON’T HAVE STEEL, YOU DON’T HAVE A COUNTRY!”

Trump has been president of the United States for over a year now, and in that time he has trampled any number of the political norms that serve as the unwritten laws of western democracy — in how he approaches party politics, gender and race relations, diplomacy and the rule of law, to list just the obvious examples.

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Legal marketplace

Another English firm goes public

By Yves Faguy April 23, 2018 23 April 2018

Another English firm goes public

Rosenblatt Solicitors has just announced its intentions to go public. It would be the fourth English law firm to do so since the liberalization of the market for legal services in England and Wales five years ago. The other three are Gately, Keystone and Gordon Dadds.  

According to Rosenblatt chief executive Nicola Foulston, the principal reason is to grow its dispute resolution practice in London and  “to take advantage of the disruption in the UK legal marketplace.”

Matt Byrne at The Lawyer notes that the reasons for going public can vary from one firm to the next, whether it is to attract a different kind of talent or fund growth through acquisitions. And though firms have been shy about making jumping in the fray, we can expect to see more law firm IPOs in the coming months:

Inevitably, there will be speculation about which firm will next go public. Personal injury giant Irwin Mitchell has long been seen as a candidate, while brand-savvy Mishcon de Reya is said in some circles to have at least considered an IPO last year. Highly profitable litigation boutique Stewarts could also make sense.

What is notable with the trio of deals so far in the UK is that the firms have different reasons for going public, highlighting the fact that each is a different type of firm. And while Gateley, which floated in 2015, is at the more traditional end of the market (IPO notwithstanding), the latter two deals underline the extent to which the market is reshaping. Indeed, it is the shape of the new breed of firms that might offer clues as to where the next IPO will come from.

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Law and technology

Are we putting too much trust in blockchain?

By Agnese Smith April 23, 2018 23 April 2018

Are we putting too much trust in blockchain?

 

During the go-go days of the 1990s, people who should have known better convinced themselves that economic booms and busts were a thing of the past. Such was their faith in traditional institutions like central banks that only small policy tweaks sufficed to magic away all perceived problems. 

“Trust the Fed — trust the market,” was the operating mantra, echoing globalist ideals. 

Fast forward post 2008 financial meltdown, ginormous hacks and fake news, and an entirely new slogan has taken hold, one that reflects a more libertarian mood: “Trust nobody — trust code.”  This includes bankers, lawyers, governments — even formerly beloved tech companies. 

Nothing captures the flavour of our unsettled and untrusting times like blockchain technology, a way to create a tamper-proof ledger that everyone can agree on without anyone being in charge. It was specifically created a decade ago to support the cryptocurrency Bitcoin, but enthusiasts see much wider applications, like helping people manage their online identities and assets.

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National Volunteer Week

Outstanding CBA Volunteer: Level Chan

By CBA/ABC National April 20, 2018 20 April 2018

Outstanding CBA Volunteer: Level Chan

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Level Chan: The more you put into the CBA, the more you get out of it. My involvement began as taking the opportunity to develop a better understanding of the substantive law applicable to my practice, pensions and employee benefits, and has grown to encompass learning from the many diverse perspectives among CBA members.  Whether from different provinces, client perspectives, levels of experience, or personal identities, the CBA has allowed me to learn from lawyers with a variety of backgrounds and helped me become a better lawyer.  As my roles have grown, I have been motivated by the influence that the CBA has with legislatures and regulators.  Being involved in the CBA has given me the opportunity to have an impact in the law, while still learning a lot along the way.

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National Volunteer Week

Outstanding CBA volunteer: Sabrina Bandali

By CBA/ABC National April 20, 2018 20 April 2018

Outstanding CBA volunteer: Sabrina Bandali

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Sabrina Bandali: I’ve mainly been involved in the CBA through the Women Lawyers Forum. It’s given me a special opportunity to connect with and learn from other women lawyers across the country. It’s easy to lose sight of the many different aspects of diversity in our profession – not just gender and cultural background, but life experiences, geography, and practice setting influence how each of us experience the unique challenges that women face in the profession. The Women Lawyers Forum is active in every province and territory, and having the perspective of women lawyers of all ages who practice in different communities and with different backgrounds sharpens our lens to understand what women lawyers across the country are grappling with, professionally and personally.

 

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Trade

Ratifying new NAFTA may not be be so easy

By Yves Faguy April 20, 2018 20 April 2018

Ratifying new NAFTA may not be be so easy

Progress is being made, reportedly, on the renegotiation of NAFTA, as trade representatives appear to be closing in on a deal on new auto rules of origin.

But here's something to worry about. Anna Palmer at Politico reports on growing doubts in Washington about Congress’ ability to ratify a new NAFTA deal in an midterm election year:

The Trump administration has done absolutely nothing to prepare the Hill for a bruising trade vote in the middle of an election year, according to key aides involved. GOP leadership is well aware of the void. When the Trans-Pacific Partnership cleared the Capitol, it benefited from a multi-year, multi-million dollar lobbying campaign.

One possible tactic apparently under consideration is to apply pressure by withdrawing from the current  agreement before a new deal is finalized:

U.S. Trade Representative Robert Lighthizer is said to have advocated for such an approach, according to current and former administration officials.

The strategy, which has been under consideration for months, figures that Congress may not act on the new agreement, preferring the status quo instead.

[…]

“As someone who counts votes that would not be a totally shocking scenario,” said one source who has advised Lighthizer on NAFTA. “If you actually want to get the vote done and you want to pass the damn agreement then you need to create the scenario of either nothing or something different.”

What could possibly go wrong?

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Interprovincial trade

Supreme Court upholds provincial liquor law

By Yves Faguy April 19, 2018 19 April 2018

Supreme Court upholds provincial liquor law

Canada’s Constitution does not guarantee interprovincial free trade, at least not how the term is broadly understood. That’s the key takeaway from the Supreme Court of Canada’s unanimous decision today in R. v. Comeau – commonly referred to as the free-the-beer case.

The case involved a constitutional challenge brought by Gerard Comeau, who had been arrested and fined for bringing beer he purchased in Quebec into New Brunswick, in violation of limits imposed under section 134 of that province’s Liquor Control Act. The trial judge declared the contested provision unconstitutional. In his view that amounted to a trade barrier in violation of section 121 of the Constitution Act, 1867, which stipulates that goods must “be admitted free into each of the other provinces”. The Court of Appeal of New Brunswick dismissed the application for leave to appeal, before the Supreme Court granted leave last year.

How the court decided

“Reading s. 121 to require full economic integration would significantly undermine the shape of Canadian federalism, which is built upon regional diversity within a single nation,” the Court wrote.

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National Volunteer Week

Outstanding CBA volunteer: Jennifer MacPherson

By CBA/ABC National April 19, 2018 19 April 2018

Outstanding CBA volunteer: Jennifer MacPherson

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Jennifer MacPherson: Volunteerism was instilled in me at a very young age while I was watching my parents and other members of my community give back. I am very fortunate to be able to practice law and carve out time to work on programming for non-profits, whether community organizations or professional organizations like the CBA. It has been very rewarding to work as a team with other members of the PEI Bar to identify programming needs for the Women Lawyers’ Forum and Continuing Legal Education Committee, to come up with ways to put some fun into those learning opportunities, and to then see those ideas come to life.  I have always been motivated by the supportive response we receive from members of the bar who come out in such large numbers to attend the events, and especially those members of the bar and the judiciary who donate their time to participate in the programming for the events. Whatever the topic, a big part of the success of any CBA event is providing the opportunity for members to come together to communicate with each other and get to know each other better.   

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