The Power of Perspectives

The Canadian Bar Association
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.

Read More
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.

Read More
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.

Read More
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.

Read More
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.

Read More
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

Read More
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.

Read More
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.

Read More
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.

Read More
Criminal justice

Are Corrections Canada's psychological tests for Indigenous inmates reliable?

By Justin Ling October 13, 2017 13 October 2017

Are Corrections Canada's psychological tests for Indigenous inmates reliable?

 

The Supreme Court has reserved judgement in a case that could hold huge ramifications for Indigenous prisoners.

The top court heard arguments yesterday from Jeffrey Ewert, a Metis man who sued the Correctional Services of Canada, arguing that the psychological tests applied to would-be inmates discriminated against Indigenous prisoners.

Ewert won his case at trial, but lost on appeal. At the top court, a slew of interveners — including the Canadian Human Rights Commission, Native Women's Association of Canada, Criminal Lawyers' Association of Ontario — have joined the fight.

What’s wrong with the tests? CSC uses these psychological tests to help determine “the management of the risk of criminal behaviour by the offender.” There are five tests employed by the criminal justice system in Canada, although none are actually mandatory. They attempt to measure the offender’s psychological well-being, their risk of violence, and their risk for sexual violence. While the Crown contends that these tests are merely data points that allow psychologists to make decisions regarding parole, the availability of supervised and scheduled releases, and what level of security the inmates require.

Read More
CBA Influence

Air travel and a bid to modernize the Competition Act

By Kim Covert October 13, 2017 13 October 2017


A bill that would modernize parts of the Canada Transportation Act and relevant portions of other Acts is making its way through the House of Commons. While Bill C-49, Transportation Modernization Act, deals with planes (including passengers’ rights), trains and maritime transportation, the submission from the CBA Competition Law Section focuses on the parts dealing with airline competition.

Specifically, the Section comments on additions to the Canada Transportation Act and Competition Act to provide for a voluntary review and approval process for airline joint venture arrangements that would make Canada’s approach to these arrangements substantially similar to that of the U.S., where the Secretary of Transportation has jurisdiction to exempt airlines from the application of federal antitrust laws.

Read More
CBA Futures

Legal futures round-up

By Yves Faguy October 13, 2017 13 October 2017

Legal futures round-up

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

Here at home, Conduit Law, after an 18-month affiliation, announced its “renewed independence” from Deloitte.  Canadian national expansion is certainly on the table. Founder Peter Carayiannis told CBA National he was “definitely looking forward to being an entrepreneur again” and hinted at plans for expanding Conduit Law nationally.

Meanwhile Big Four accountancy giant PwC  announced it is opening a U.S. law firm in Washington, D.C. The firm will operate as an affiliate, ILC Legal, and will work primarily on international corporate restructuring matters. PwC is also making a move into the alternative legal services market with a new flexible lawyering service.

Read More

Current Issue

Editor's Picks

Google's US court challenge to SCC "repugnant" order

Editor's Picks

Closing tax loopholes for professionals who incorporate

Editor's Picks

Copyright fees at York: Federal Court rejects fair dealing

National TV

  • Thumb

    CBA's intervention in Lloyd v. R

  • Thumb

    Margaret Hagan on the role law schools can play in fostering innovation

  • Thumb

    Melina Buckley on the importance of legal aid benchmarks in Canada

View All Videos

Partners In Your Success