The Power of Perspectives

The Canadian Bar Association

National Blog

When the U.S. turns its back on Pacific trade

By Yves Faguy March 14 2017 14 March 2017

     

     

    Adam Behsudi reports on the trade fallout from the U.S. dumping the TPP:

    Competitors say they have no choice but to take the money U.S. businesses would have earned otherwise.

    “We are not trying to take market share from the U.S. It’s more like you are putting money on the table and pushing it towards us,” said Carlo Dade, director of trade and investment policy for the Canada West Foundation, a Calgary-based think tank.

    Carlos Dade (featured in the video above) has an interesting primer where he ranks the possibilities for the other TPP prospects, including Canada:

    Without the TPP, Canada does better defensively in not having to worry about competitors gaining access to the U.S. market. But it does worse offensively in having the poorest access to Asian markets of any country on the Americas’ Pacific coast. This makes Canadian attempts to diversify away from its dependence on the U.S. market more difficult.

    Canada also appears to stand to gain the most from the TPP going ahead without the U.S. as its companies, but not American firms across the border, will have preferential access to the new bloc. This could create a powerful incentive for firm relocation. Mexico will receive a similar but potentially smaller boost as it lacks Canada’s English language operating environment for service firms.

    All of this could be viewed offensively, in both senses of the word, by the Trump administration.

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    All in good time: Private right of action provisions in CASL can wait

    By Kim Covert March 3 2017 3 March 2017


      When Canada’s Anti-Spam Legislation was passed nearly three years ago, it contained provisions for private rights action, which come into force on July 1, 2017, as well as a requirement for a statutory review, also scheduled to begin on July 1, 2017.

      In a letter to Innovation, Science and Economic Development Canada, the CBA makes a strong argument for holding off on implementing the former until the latter is completed.

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      Clarity and consistency: What IRCC needs for client service delivery

      By Kim Covert March 1 2017 1 March 2017


        In January, the CBA National Immigration Law Section outlined how the government can improve the way it deals with immigrants, in a submission to the Standing Committee on Citizenship and Immigration’s study on the modernization of client service delivery. The MPs want to know about the experience clients have with the government departments and recommend best practices for improvement. Why? Because when things go wrong, the complaints land on their desks.

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        Social media and the Rule of Law

        By Yves Faguy February 28 2017 28 February 2017

           

          We have often discussed in this space the impact of social media and misinformation on public confidence in our justice system, and the need to adapt how we educate the public about the law.  Mark A. Cohen describes how he views the challenge:

          Snippets of human interaction are captured on a smart phone or other device and go viral in minutes. This creates an instant, powerful, quickly scalable, and often biased court of public opinion. Social media is unfettered by rules of evidence that weigh credibility, materiality, and prejudicial impact. Social media is wildly popular because it is accessible, fast, unfiltered, and largely devoid of rules—the antithesis of the deliberate-often snail like pace of the judicial process. Social media has become a people’s court, shaping public opinion by providing a snapshot rather than a montage of human interaction and lacking truth filters. Social media also can serve as a global bullhorn for ‘leaks,’ misinformation, and propaganda. There are no easy fixes. Technologists, social scientists, media experts, legislators, and lawyers—among others– must create inter-disciplinary guardrails for social media to insure—among other things—that it does not subvert the judicial process. Social media is a new frontier in establishing appropriate boundaries for free speech as well as ensuring that the court of public opinion does not eclipse the judicial process as the arbiter of the social contract.

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          Personal information in the balance under SCISA

          By Kim Covert February 27 2017 27 February 2017


            When it comes to information sharing for national security, everything is a balancing act – the government needs to protect its citizens from outside threats without depriving them of their civil liberties in the process. Both of these important concerns are fundamental to our freedom.

            Parts of the Security of Canada Information Sharing Act, according to the CBA, may tip the scales a little too far toward national security.

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            Changes to Citizenship Act: Amended Bill C-6 before Senate committee

            By Kim Covert February 24 2017 24 February 2017

              Bill C-6, which contains amendments to the Citizenship Act, continues to make its way through Parliament. The CBA’s National Immigration Law Section first appeared in support of its submission on the proposed legislation last May before a House committee; in February, it brought the same submission to a Senate committee.

              Well, almost the same submission. After the CBA appeared in the House, the government made a few tweaks to the bill in response to recommendations from the Immigration Law Section (and others), and the submission was reflected to update those changes.

              The primary objective of Bill C-6 is to “return Canadian citizenship law to its state before the changes introduced by Bill C-24, the Strengthening Canadian Citizenship Act. In 2014, the CBA Section largely opposed the changes introduced by Bill C-24, and so in general we support reversing those changes,” the submission says.

               

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              Why searching phones at the border might violate privacy rights

              By Yves Faguy February 23 2017 23 February 2017

                 

                Steven Penney of the University of Alberta has a topical paper out in which he argues that customs searches, without suspicion, of digital data are unreasonable under section 8 of the Canadian Charter. Specifically, he pushes back against the notion upheld by our courts that seizing electronic devices at the border, and demanding to access them with passwords, is justified by border security interests.

                It has become a cliché to say that the law struggles to keep up with technological change. Both police and privacy advocates claim that digitization has put them at a disadvantage. For the most part, however, courts have done a credible job in adapting criminal procedure doctrine both to account for the unique qualities of digital data and networks and to preserve consensus accommodations between privacy and law enforcement.

                Digital customs searches have so far been an exception to this. Reflexive adherence to precedent has led courts to discount the intrusiveness of digital searches and inflate the harms of digital contraband. At customs, searches of digital containers are much more intrusive than searches of physical ones. And they do almost nothing to stop, deter, or regulate the flow of harmful data into Canada. Instead they have become an adjunct to non-border criminal law enforcement, unjustifiably exempt from the civil liberties protections applying in that realm.
                 

                 

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                Re-regulating of the legal industry, Cont'd

                By Yves Faguy February 23 2017 23 February 2017

                   

                  On the topic of re-regulation of the legal profession, Kenneth Grady writes that complaining about the slow pace of reform is a "red herring":

                  We have what we need to fix the lack of access to civil justice problem. Changing the regulations may make a few things easier and transaction costs could drop. But, the problems we need to solve are independent of the regulatory structure. The barrier to solving the problems is lawyer resistance to change. Fix that problem and changing the regulations will become a side show at best.

                  Consider this one example. Solo practitioners argue they have a technological disadvantage. The cost of emerging software is beyond their grasp, either in time to implement or money. The professional responsibility rules prohibit law firms from having owners without law licenses. If we re-regulate, the argument goes, these firms can get access to money and resources through new owners. They can use those investments to bridge the technology gap. We already have a solution. Create a technology business (incorporation costs are trivial). Get investments in the second business which acts as a services business to the law firm. Spread the technology firm’s costs across several small firms. This model, or variations of it, exists.

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                  Why traditional firms will want re-regulation of the legal industry

                  By Yves Faguy February 20 2017 20 February 2017

                     

                    Last year, Malcolm Mercer wrote about the various regulatory challenges in the U.S. and Canada with respect to innovation in the provision of legal services. He describes how protectionist pressures have put the breaks on any efforts to involve law societies (and the ABA in the U.S.) in facilitating new ways of providing legal services.  Then, casting an eye to the future, Mercer guesses that, ultimately, regulators will be forced to face the music one way or the other:

                    It seems to me inevitable and proper that new ways of providing legal services will be allowed in unserved and underserved areas. Whether Canadian law societies are up to the challenge of allowing this is unclear. But if they don’t, someone else will.

                    If encouraging the evolution of the existing practice of law with new forms of capital and expertise is not in the cards, permitting new entrants is the alternative. The question then will be how new entrants should be regulated and by whom.

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                    How self-represented litigants view the justice system

                    By Yves Faguy February 17 2017 17 February 2017

                       

                      The National Self-Represented Litigants Project has released its report for 2015-16 tracking trends among the SRL population, including data about income:

                      We continue to see the majority of those representing themselves reporting lower income levels below $50,000 with the majority below $30,000. In the latest sampling, 51% state that their income is under $30,000 (in the 2013 Study this figure was 40%, and in the 2014-15 Intake Report it was 45%).

                      The next largest group (15%) report annual income of between $50,000- $75,000, followed closely by those reporting income of $30,000-$50,000 (1%). This also closely resembles the data reported in both the 2013 Study and the 2014-15 Intake Report.

                      Also consistent with earlier reporting, 8% of respondents (6% in both the 2013 Study and the 2014-15 Intake Report) report earning more than $100,000. As income rises, so does the likelihood that the respondent previously retained a lawyer for this matter. One respondent in this sample group reported having spent more than $100,000 on legal fees before becoming self-represented.

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                      Improving the Court Challenges Program

                      By Yves Faguy February 16 2017 16 February 2017

                         

                        Léonid Sirota sizes up the reinstated Court Challenges Program and reiterates his concern that “choosing to fund court litigation based on language and equality rights,” Parliament is in fact saying that it values those right over constitutionally protected rights.

                        Nicolas Hay acknowledges the argument, but writes that a well designed program still has merit. He cites the Canadian Human Rights Tribunal case upholding a discrimination complaint against the federal government by failing to provide an adequate level of child welfare on First Nations reserves, as the type of challenge that requires a financing program:

                        I wholeheartedly agree: privileging some rights over others can have serious implications for federalism, and a Program that treated all rights equally would be more appropriate.

                        The Program is undoubtedly worth saving if it were adjusted to include the changes I have outlined so far: a more accountable selection process; a more robust method of allocating subsidies; and an expansion to include all Charter rights...

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                        CBA Board of Directors Elections

                        By Mariane Gravelle February 9 2017 9 February 2017

                          The CBA wants YOU – to join its board of directors!

                          Regular CBA members who want to contribute to the evolution of a more member-centric CBA are encouraged to apply for election to its Board of Directors. Deadline is February 17, 2017.

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