Meaning of consent
March 28, 2017
28 March 2017
There is no right to sue for “involuntary parenthood.” That’s according to the Court of Appeal for Ontario in PP v DD, which upheld a lower court decision to toss out a father’s lawsuit against his former female sexual partner for making him a parent before he wanted to become one.
The decision helps prevent tort law from being used to control women by making them pay – literally – for the consequences of their reproductive choices.
I wrote about the lower court decision last year, arguing that it was the right call for women’s reproductive autonomy.
Let’s back up and recall the facts: PP, the male plaintiff (a doctor), and DD, the female defendant (who also worked in health care), had a brief sexual relationship in 2014. PP understood that DD took birth control pills, so they did not use condoms. DD became pregnant and informed PP, who suggested that she have an abortion. DD decided to have the baby, born in early 2015.
March 27, 2017
27 March 2017
An anniversary might be thought an occasion for commemorating the event to which it refers. Not so, apparently, the sesquicentennial of Confederation. Celebrations are due to take place, to be sure, but a visitor to Canada might be forgiven for wondering what it is that we are about to celebrate. He or she might head to the government’s Canada 150 website, and find plenty of information about the festivities that are due to occur―but precious little about the historical events that we will, or will not, be marking. Yet in case you forgot, July 1 will be the anniversary of the coming into force of what we now call the Constitution Act, 1867.
This lack of interest in one part of our constitution is all the more remarkable when contrasted with the attention being showered on another―the Canadian Charter of Rights and Freedoms. It is turning 35 this year, and the Canadian government wants to make sure we know. A special section of the Department of Justice’s website, complete with nifty graphics, is dedicated to the Charter’s 35th anniversary, while the Justice Minister herself is travelling the country speaking and tweeting. There was indignation when the previous government ignored the Charter’s 30th. The watchword this time seems to be “never again”―except, that is, for that pesky old Constitution Act.
March 24, 2017
24 March 2017
CBA National sat down with author and analyst of the global legal market (and former editor-in-chief of this publication) Jordan Furlong to talk about his just released book, Law Is A Buyer’s Market: Building a Client-First Law Firm in which he describes a rebalancing of power in the legal marketplace from sellers towards buyers, and offers some guidance on how law firms can respond to this fundamental shift.
CBA National: What surprised you the most about writing this book?
Jordan Furlong: I suppose one of the positive, unexpected takeaways is that we're not as far behind, collectively speaking, as we might otherwise have expected to be. When I first approached the subject, I proceeded on the assumption that there really weren't very many examples of law firms or organizations that are making strides towards becoming the kind of legal service supplier that the legal market requires. And I'm happy to report that there really are some. The obvious ones that are always mentioned – and they should be. In the U.S. Bryan Cave is a clear leader; Littler Mendelson, which of course now has an office in Toronto; Seyfarth Shaw. Some other firms don't get quite as much attention but are making strides in this direction: Perkins Coie is one of those; Davis Wright Tremaine certainly. Here in Canada, Gowlings usually heads my list of firms that are making real strides in this direction. But McCarthy's is making a serious investment and so is Osler. Among increasingly innovative Canadian firms, there’s Blakes and Torys too. I think the primary value in that for lawyers and law firms is they can say, “look, this can be done and it is being done right now in the market. There's no reason why we can't do it either.” And they can point them out to more skeptical colleagues.
N: So let’s say a firm recognizes that law is now a buyer’s market and is ready to align their innovation strategy, their interests and priorities with those of their clients. Where do you start?
March 22, 2017
22 March 2017
The federal budget proposes to spend $55 million over five years to hire new judges, aimed mostly at Alberta and Yukon, to speed up the trial process in Canada.
The prospect that scores of charges being thrown out due to trial delays caused by an over-burdened court system has been top-of-mind since the Supreme Court handed down its ruling last year in R. v. Jordan, setting a ceiling on delays at trial.
In fact, dozens of cases have been stayed, with Crown counsel shouldering the blame for not bringing cases forward fast enough. Lawyers across the country have called for a hike in spending to hire more judges, help legal aid, and streamline the court administration process.
March 22, 2017
22 March 2017
When progressive political leaders remind us that “the arc of the moral universe is long, but it bends towards justice,” the statement includes a caveat – that the arc does not travel in a straight line and that there will be setbacks.
But for climate activists, for whom time is of the essence, setbacks are to be avoided at all cost. “Do not backtrack” has become something of a rallying cry against regressive government action (or inaction).
In legal terms, that has led to calls for the recognition of the principle of non-regression in environmental law and policy, even as a fundamental human right. As University of Ottawa law professor Lynda Collins explains in the video above (around the 3:20 minute mark), non-regression means that part of one’s right to a healthy environment is to “have today’s level of environmental protection preserved.”
The Supreme Court
March 20, 2017
20 March 2017
Just what are “exigent circumstances,” anyway?
Turns out, they’re pretty specific.
“‘Exigent circumstances’ denotes not merely convenience, propitiousness or economy, but rather urgency,” wrote the majority of the Supreme Court in a decision passed down on Friday. “Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence.”
The ruling, R. v. Paterson, offers new guidance and framework on when police can enter and search a private residence without a warrant. What’s clear is that it’s a very high bar.
March 15, 2017
15 March 2017
Economists will tell you that trust is necessary for a stable economy. So what are we to make of growing concerns about what businesses do with the personal data of internet users?
Poll after poll shows that consumers simply don’t trust companies with their data and are losing faith in government’s ability to protect their personal information. Meanwhile, regulators around the world struggle to keep pace with technology and business models that are, by nature, anti-privacy; at the same time they worry that overly stringent rules could dampen growth in the digital economy which is expected to contribute an estimated $4-trillion to major economies.
“Today, the digital economy is the economy,” Navdeep Bains, Canada’s minister of innovation, science and economic development, said in a speech last year. In fact, mass data has become a valuable asset. Whether it’s vacuumed up by mobile or other internet devices, consumer data increasingly drives business decisions. Web-based giants like Google and Facebook are earning fat profits from targeted advertising.
Naiomi Metallic was the first Mi'kmaq law clerk at the Supreme Court of Canada. The Halifax lawyer holds the Chancellor’s Chair in aboriginal law and policy at Dalhousie University Schulich School of Law .
CBA National: Who has had the biggest influence on you and why?
Naiomi Metallic: My dad. My mom. My high school English teacher, Ora Watson. The Mi’kmaq professor who encouraged me to apply to law school, Patti Doyle-Bedwell. The Hon. Michel Bastarache for picking me, of all people, to be one of his law clerks. My husband, Al Mcpherson.
N: If you had a personal motto what would it be?
NM: Treat others as you wish to be treated.
March 15, 2017
15 March 2017
The Expert: Marjorie Hickey, partner at McInnes Cooper in Halifax. Hickey’s practice focuses on regulatory and liability issues for professionals. She is also a retired Commander in the Naval Reserve and past Commanding Officer of HMCS Scotian.
The Apprentice: Jennifer Taylor, research lawyer at Stewart McKelvey in Halifax. Taylor articled at the Crown Law office – Criminal in Toronto. She clerked at the Nova Scotia Court of Appeal after articling and completing her LL.M. She supports her firm’s advocacy group and has a special interest in aboriginal law and LGBQT issues.
What is in the public interest? It's a question Halifax lawyers Jennifer Taylor and Marjorie Hickey often ask themselves. Taylor, a research lawyer just seven years into her career, and Hickey, a 35-year veteran, may be at opposite ends of their arcs as legal professionals, but they’re both committed to that age-old law school ideal of “trying to make a difference” in the world – and they’re able to do so in private practice.
You’ve read the books, gone to the seminars and accepted the inevitable: If your firm wants to stay competitive and attract the best people, it has to develop a business strategy to deal with changing client demands, new technology and a shifting regulatory landscape.
So now what?
You’re already ahead of the game if you recognize that business as usual isn’t viable in the long-term, says Mike Ross, founder of Juniper, a Montreal-based strategy consulting boutique. Now you have to get your partners on board and start rethinking how to deliver client services.
That’s not going to be easy: in law firms where money is still rolling in, partners don’t have much incentive to change and there’s a succession crisis brewing; in
63 per cent of U.S. law firms, for example, partners age 60 or over control at least a quarter of total firm revenue but only 31 per cent of firms have a formal succession planning process, according to an Altman Weil study released last year.
Conflicts of law
March 15, 2017
15 March 2017
One of the most significant developments over the last decade in the legal world has been the rapid spread of global litigation finance.
It’s easy to understand its appeal, particularly in strict financial terms. Law firms can share some of their risk with investors, who in turn spread it across a portfolio of cases. As an asset class it isn’t tied to the volatility of financial markets. And for plaintiffs, the practice is a means
to overcome financial barriers to access
to justice to go after deep-pocketed and well-insured defendants.
But there are also reasons to watch
out for some of the disruptive effects it
can have on our justice system. Critics describe litigation funding as the “Wild West of finance,” largely unregulated,
or only mildly so by judge-made law and a patchwork of statutes, oftentimes at the subnational level.
March 15, 2017
15 March 2017
CBA National caught up with Andrew Arruda, one of the co-founders and CEO of ROSS Intelligence, the artificial intelligence-based legal research platform. Yves Faguy asked about the hype surrounding AI, what it means for law firm hiring and what legal organizations should do about it.
CBA National: So, is artificial intelligence being overhyped in the legal marketplace?
Andrew Arruda: As with most new technologies, oftentimes people overestimate where it is today and underestimate where it is going tomorrow. When you interact with an AI system, what typically occurs is that humans want it to be able to do every single thing a human can. And that’s because they grow up watching sci-fi, etc. But that’s just not where we are with AI today. It’s not going to be able to go into court and argue a matter for you, and I don’t know if it ever will. But it’s already adding a ton of value. We see it in legal research, finding better results. You see companies who have brought it into the diligence space – it offers a lot of efficiencies there. Really when you start moving lawyers away from information retrieval so that they’re not doing that, they focus in on high impact work, advising clients, and that speeds
up their learning curve.