The Power of Perspectives

The Canadian Bar Association
International law

War as a political, not a legal concept

By Emily Alderson July 27, 2016 27 July 2016


As tensions have mounted this summer between law enforcement and black communities, there has been growing concern that the United States is headed toward a “race war”. The term “war” evokes a special state of emergency, where civil liberties can be restrained and violence is permitted. But in this case “war” is a political term, not a legal one.

While some media might speak of a race war (small “w”) just like the Bush administration spoke of a “war on terror”, we shouldn’t let the hyperbole distract us from the reality. Conflict and crime are governed by two very separate bodies of law. Police forces are not combatant armies in an armed conflict. When IHL isn’t functioning to protect people from the worst excesses of violence, regular law should be functioning to protect people from all excesses.

War is legally defined as international armed conflict. A “civil war” is correspondingly called a non-international armed conflict. Where an armed conflict is taking place, a special body of law kicks in creating special rights and responsibilities for those involved. This is called international humanitarian law (IHL), also referred to as the law of armed conflict (LOAC, the term preferred by the Canadian military).

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Women in law

"The billable hour issue really is, at the heart of it, a feminist one"

By National July 26, 2016 26 July 2016


A recently published Standford Law white paper explores why diversity programs in law firms are failing:

It is clear that broader problems exist, and are not being addressed by existing strategies. These broader problems are complex and multifaceted, and have both structural dimensions—such as the impact on women lawyers of “conservative and rigid workplace structures,” including the billable hour and associated expectations of total availability, or the opacity of firm management—as well as societal and cultural dimensions, such as the influence of implicit and in-group biases on purportedly “meritocratic” systems. These problems also manifest themselves in a number of ways, and ultimately result in disproportionate impacts upon the retention and advancement of women lawyers.

Following the release of the white paper, Stanford Law then held a hackathon, the purpose being to shake up the dialogue surrounding the persistent diversity gap in BigLaw (The winner came up with a new and more gender neutral compensation model for law firms). Melanie Heller, the VP and general manager of Bloomberg Law, gave the keynote and challenged law firms to get serious about moving more women into law firm leadership positions:

I’m starting to think, after reading the Stanford white paper, and reflecting on the stories I’ve just relayed, that the billable hour issue really is, at the heart of it, a feminist one. Maybe it’s the one we should all consider tackling first.

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Whistleblower programs

Ontario and Quebec's Whistleblower programs: Reward and protect

By National July 25, 2016 25 July 2016


Canadian securities regulators in Ontario and Québec have recently introduced programs to encourage individuals to come forward and report information about known or suspected violations of securities laws. CBA National interviewed Keith Geurts and Ellen Snow of Clyde & Co Canada in Toronto about the launch of the two programs.

CBA National: How do the two whistleblower programs, in Ontario and Quebec, differ from one another?

Keith Geurts: The primary difference between the two programs is the form of incentive offered to potential informants. Under the program implemented by the Ontario Securities Commission, eligible individuals who provide information about possible violations of securities law may be entitled to monetary awards of up to $5 million if the information provided leads to an administrative proceeding pursuant to which over $1 million in monetary sanctions are ordered and/or voluntary payments are made. Monetary awards are available in the range of 5 to 15 per cent of the total monetary sanctions awarded against or agreed upon by wrongdoers, up to a maximum of $1.5 million.  In cases where the monetary sanctions exceed $10 million and that amount has been collected, an informant may be awarded up to $5 million. 

In Québec, the Authorité des marchés financiers Whistleblower Program focusses solely on maintaining confidentiality of the informant's identity and information as well as ensuring that the informant is not subject to reprisal in the workplace and is immune from civil suits. It does not offer financial compensation for information leading to findings of liability. The AMF considered the financial reward model and rejected it as part of its overall program.  Its program is more similar to those in place in the United Kingdom and Australia where no financial incentives are offered.   The AMF's rationale for rejecting monetary awards is that informants are primarily motivated by confidentiality protections and there is no conclusive evidence demonstrating that financial rewards result in higher quality reporting. 

N: Does the Quebec approach surprise you?

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CBA influence

National securities regulator: Questions about opt-in; privacy

By National July 22, 2016 22 July 2016


In May the federal government moved one step closer to creating a national securities regulator by opening up consultations on a revised Capital Markets Stability Act – revisions based on previous consultations on the 2014 draft.

The CBA’s Business Law Section brought together securities law experts from across the country to comment on the latest draft, as well as the 2014 consultation document on the capital markets regulatory system governance and legislative framework and a 2015 revised consultation draft and draft initial regulations.

A repeated recommendation in the latest submission on the Act from the Business Law Section is that the government should extend the time for consultations “to allow for more robust feedback” on the design of the federal regulator for opt-in provinces – British Columbia, Saskatchewan, Ontario, New Brunswick, P.E.I. and Yukon.

On the whole, the Section says it supports many of the changes to the Act in response to previous feedback from stakeholders, but it still has concerns in a number of areas, primarily governance.

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Military law

Presumed independent

By Justin Ling July 22, 2016 22 July 2016

Presumed independent


Canada’s military justice system withstood a constitutional challenge today, as the Supreme Court of Canada ruled unanimously that the Minister of National Defence’s authority over court martial appeals does not violate section 7 of the Canadian Charter

The case R. v. Cawthorne involved an officer — an ordinary seaman in the Canadian navy — who was accused of possessing child pornography.

At trial, presided over by a military judge, the officer’s ex-girlfriend testified that he had told her about “inappropriate” images on his phone, and that he had been arrested for them. In cross-examination, she told the court that he merely made mention of the charges, but had not admitted his guilt.

But in re-examination, prosecutors asked her whether the accused, in fact, had admitted to her he had done these things. The ex-girlfriend responded in the affirmative.

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The Pitch

Five startups, five questions: Loom Analytics

By National July 20, 2016 20 July 2016

Photo: Mona Datt, Loom Analytics

As part of a weekly series leading up to The Pitch, the first-ever legal innovation startup competition hosted by the Canadian Bar Association and LegalX, we’re asking each finalist the same 5 questions.  This week’s Q&A is with Loom Analytic’s Mona Datt.

National: What made you realize that you wanted to build a business?

Mona Datt: Loom Analytics is actually my second venture.  I have spent the last ten years building eDecree, a BPO that works with the legal and insurance sectors. I’ve always had an independent streak, and the freedom to create something from scratch is what attracted me to starting eDecree and Loom Analytics. 

After graduating, I wrote my LSATs and was accepted into law school, but chose to continue practising engineering, before I started eDecree.  I decided to start Loom because it is the perfect opportunity to blend my interest in law with my engineering background. 

N: What unique problem are you trying to solve?

MD: We are trying to bring metrics and structure to case law.  If a lawyer can sit at their desk and decide more quickly and more intelligently whether they want to pursue a particular motion, bring a case to trial or settle, take on a case in the first place, or assess business risk, then we’ll have achieved our goal.

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A roadmap to legalizing marijuana

By Justin Ling July 19, 2016 19 July 2016


Call it the summer of consultations.

As the Liberal government looks to round out its first year in office, it is embarking on months of public canvassing on everything: from defense, to criminal justice, to counter-terrorism.

But none is bound to elicit quite the plethora of disparate reactions as pot.

“The Government understands the complexity of this challenge and the need to take the time to get it right,” reads the introduction to the government’s online consultation portal.

The consultations are designed to provide a roadmap to the ministers responsible for the file — Justice Minister Jody Wilson-Raybould, Health Minister Jane Philpott and Public Safety Minister Ralph Goodale — as well as the task force struck recently by the government.

On the task force is a few familiar faces: primarily, chair Anne McLellan, who previously served as Deputy Prime Minister under Jean Chretien, as well as Minister for Justice and Public Safety. After politics, she joined Bennett Jones’ Edmonton office. Joining her is two doctors, two mental health professionals, two cops, a former city councillor, and a law professor — Barbara von Tigerstrom, who teaches at the University of Saskatchewan College of Law.

The online consultation consists largely of a government-crafted discussion paper, designed to elicit essay-style responses from Canadians.

The paper lays out the array of different regulatory systems that could make up the backbone of the system that is intended to become Canadian law sometime before 2018: Should Canada manage commercial growers like Uruguay or Colorado? Should it, like both of those examples, place limits on the number of plants private individuals can grow? Should growers have to pay a fee? Should there be labelling requirements?

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Intellectual property

IP tip sheet for Brexit

By National July 19, 2016 19 July 2016


Now that the British public has voted to exit from the European Union, how will it affect IP rights? The CBA National IP Section has collated a number of tips to assist in your understanding of what changes are to come. There are still many more questions than answers. We shall endeavour to provide you with further information as it becomes known.

1. Keep calm and carry on!

Clients should continue with business as usual. The UK has two years (and maybe longer) to negotiate its exit from the EU (post-Brexit) and will remain as a member state until then.

2. What will happen to the EU Community Trademark?

The EUTM will not extend to the UK post-Brexit, but shall continue to do so until then. After the exit, brand owners will be required to obtain a UK trademark separate from a EUTM.

3. What will happen to the Registered Community Design regime?

The RCD regime will not extend to the UK Post-Brexit, but shall continue to do so until then. Post-Brexit, design owners will be required to obtain a UK design separate from a RCD through the Hague system at WIPO or through the UKIPO.

4. How will the European Patent Convention be affected?

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CBA Futures

Legal Futures round-up: July 18, 2016

By Emily Alderson July 18, 2016 18 July 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.

A London law firm has started legal action to ensure the UK Parliament, not the Prime Minister, invokes Article 50 of the Lisbon Treaty to start the UK’s formal separation from the EU. The firm wants to ensure Members of Parliament get to vote on Article 50 – an opportunity to change the course of Brexit and remain in the EU. A petition calling for a vote in Parliament has accumulated the signatures of over 1,000 lawyers.

The inaugural graduating class of the innovative program at Lakehead Law is coming up against some obstacles in their search for employment. Firms and government departments often limit hiring of first-year associates to students who have articled with them. Lakehead includes practical skills training within their three-year curriculum, so graduates are not required to article. Gina Alexandris of Ryerson’s Law Practice Program says the response is a knee-jerk reaction to an unfamiliar program: “In a profession where a lot is based on evidence, it’s interesting how quickly some of our colleagues are prepared to make judgments without actually looking at evidence.”

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International law

South China Sea ruling: International law at work

By Emily Alderson July 18, 2016 18 July 2016


Skeptics claim international law isn’t really law. Their argument often centers on the lack of enforcement – unlike domestic law, there is no global police force to arrest wrongdoers or to enforce decisions of international courts. Therefore, the argument goes, international law does not constrain the actions of states and is of little value.

It’s more accurate to say that this lack of direct enforcement makes international law different, not meaningless. Its influence is visible even in the recent judicial decision regarding the South China Sea.

On July 12, the Permanent Court of Arbitration (PCA) released its award in the case between the Philippines and China. At issue were three main legal questions, which the five-member panel largely decided in favor of the Philippines. The decision is not a final answer to region’s disputes. For starters, Vietnam, Brunei, Malaysia and Indonesia also have claims that overlap with China’s claims, marked by the so-called “nine-dash line.”

China, unsurprisingly, dismissed the ruling. President Xi Jinping declared it will not affect Chinese rights or policy “in any way.” Indeed, China refused to participate in the legal proceedings and maintains that the PCA has no jurisdiction. China continues military maneuvers in the region, and even landed two civilian planes on built-up airstrips in the Spratly Islands last week. It also maintains the right to create an air defence identification zone, requiring all foreign planes to file flight plans and identify themselves over Chinese-claimed airspace.

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The judiciary

Red card for Justice Ginsburg

By Léonid Sirota July 18, 2016 18 July 2016


In a series of much noticed interviews, Justice Ruth Bader Ginsburg of the Supreme Court of the United States made it perfectly clear that she does not think much at all of Donald Trump, the presumptive Republican nominee for the presidency. Such overt and public condemnation of a candidate for office by a sitting member of the Supreme Court is apparently unprecedented in the United States (though then-Justice Sandra Day O’Connor’s privately expressed dismay at the prospect of Al Gore’s election in 2000 became public knowledge). Justice Ginsburg’s comments have been widely condemned, including by the editorial boards of the New York Times and the Washington Post, and she ended up expressing regret, although not quite apologizing. Still, there might be some lessons to draw from this imbroglio.

One lesson is that appearances matter. It’s not exactly a shock that Justice Ginsburg doesn’t like Mr. Trump. (For the record ― I don’t like him either.) Indeed, given the contempt of many prominent right-leaning legal academics for Mr. Trump, it wouldn’t exactly be surprising if all of Justice Ginsburg’s colleagues, not just her habitual ideological allies, felt the same way. Why, then, should we care that Justice Ginsburg publicly expressed what we could reasonably guess she already thought? Some people, indeed, have been praising her for her “transparency.” But we insist on judges keeping an appearance of neutrality, even we can guess their likely thinking on an issue, for a good reason. It’s not merely, as some have said (following La Rochefoucauld), a matter of the vice of bias paying homage to the virtue of impartiality. A judge having an opinion on a social controversy is not in itself a vice, because to have no such opinions at all, judges would need to be quite out of touch with the society in which they live. But so long as the judge keeps that opinion to him- or herself, or at least does not publicly commit to it, there is a better chance that he or she will be able to set it aside when adjudicating, or even to revise it in the face of proof and argument. It is human nature to stand by opinions to which one is publicly committed, and the judicial duty of reserve is supposed to shield judges from the temptation to seek consistency by closing their minds.

Another lesson is, I am afraid, that age matters too.

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Microsoft Corporation v USA: A win for privacy?

By National July 15, 2016 15 July 2016


In what is being billed as a major victory for privacy advocates, the Second Circuit Court of Appeals held this week that the U.S. government can’t force the handover of personal data stored overseas, citing that warrant provisions invoked do not “apply exatraterritorially”:

Timothy Tobin and James Denvil explain the broader impact of the decision:

Although the court acknowledges that “domestic contacts” can eliminate concerns of  extraterritoriality in a given case, the court found that in this case, the SCA’s focus on the “privacy of the content of a user’s stored electronic communications” tipped the balance in favor of the presumption against extraterritorial application of the SCA.  The court addressed earlier cases where subpoenas were issued to businesses that owned the information sought, finding that compelling the production of information stored abroad from the owner of the information is distinguishable from compelling the production of information stored abroad from a caretaker of that information.  The court also noted the importance of international comity that “ordinarily govern the conduct of cross-boundary criminal investigations.”

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