The Power of Perspectives

The Canadian Bar Association

National Blog

In summary, trials preferred to hearings

By Kim Covert December 17 2018 17 December 2018


    Bill C-77, which is currently before Parliament, would bring a “fundamental change” to the military justice system by amending the National Defence Act and related legislation to change the system of summary trials, creating a non-penal, non-criminal process for dealing with minor service infractions by military personnel.

    As it stands, members of the Canadian Armed Forces who are charged with an offence can elect to be tried by court martial or by summary trial, depending on the seriousness of the offence – courts martial, which are similar to civilian criminal courts, are used for more serious offences. Summary trials are decided by a commanding officer and have fewer procedural protections. In 2017-2018 there were 596 summary trials and 62 courts martial.

    What’s being recommended in Bill C-77 is that summary hearings take the place of summary trials, with a lesser burden of proof – a balance of probabilities instead of proof beyond a reasonable doubt. The bill introduces the concept of service infractions – non-criminal offences punishable by one or a combination of sanctions such as demotions, reprimands or loss of pay.

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    Best interests of the child primary concern in Divorce Act changes

    By Kim Covert December 13 2018 13 December 2018


      There’s much to applaud in Bill C-78, which amends the Divorce Act and other related legislation: the increased use of plain language, for example, along with proposals to replace the terms “custody and access” with concepts related to parenting; adopt a list of relevant factors in the determination of a child’s best interests; and encourage use of alternative dispute resolution processes, among others.

      Still, a number of CBA Sections, led by the Family Law and the Child and Youth Law Sections, have proposed a total of 45 recommendations for changes to make to the bill. The concern central to most of these recommendations is that the best interests of the child be a paramount consideration in every facet of the Act that touches on children.

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      IP Section recommends items for consideration in Copyright Act review

      By Kim Covert December 12 2018 12 December 2018


        “The subject of copyright can be quite controversial,” says the CBA’s Intellectual Property Section in its submission regarding the statutory review of the Copyright Act.

        The Section proceeds to avoid taking sides in the controversies by focusing its response on “the practice of law in Canada, particularly the ability of lawyers to provide clear advice to clients in the field.” A theme that runs through the letter is using judicial resources only when really necessary.

        It recommends several issues be considered as part of the review:

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        Bill C-83: Vague language could render good intentions meaningless

        By Kim Covert December 10 2018 10 December 2018


          It could be said that when it comes to the Corrections and Conditional Release Act, the problem is not so much with what’s in it as with what is absent – a guiding philosophy.

          In recent years language requiring “that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders” was removed. The CBA’s Criminal Justice Section recommends that this “guiding principle” be restored, and along with it provisions to ensure that prisoners are out of their cells and allowed human contact as much as possible throughout the day.

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          Political parties must meet basic privacy standards for personal data

          By Kim Covert December 6 2018 6 December 2018


            If hacktivists decide to go after political parties in next year’s federal election (and Canada’s Communications Security Establishment is pretty sure they will) the personal information about the voting public that those parties hold could be up for grabs – and no party would be obliged to report the breach.

            “Mandatory reporting of a breach is accepted as a basic privacy protection principle, evidenced by Personal Information Protection and Electronic Documents Act amendments that took effect on Nov. 1, 2018,” the CBA’s Privacy and Access Law Section wrote in a submission to government on proposed changes to the Elections Act. “Yet Bill C-76 does not require notifications in the event of a breach. This basic standard should apply to political parties.”

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            C-86: Trademark, copyright amendments need work

            By Kim Covert December 4 2018 4 December 2018


              Bill C-86, the omnibus Budget Implementation Act, 2018, No. 2, is an important piece of legislation making speedy progress through Parliament despite its size and many varied component parts.

              The CBA’s Intellectual Property Section recently commented on several of those parts, the proposed amendments to the Trade-marks Act and to the Copyright Act and proposed framework for a College of Patent and Trademark Agents.

              For the most part, the Section approves of the proposed amendments to the Copyright Act, particularly changes to Copyright Board procedures. That said, it does see a few of the proposals as more problematic: for example, as proposed, amendments to harmonize and streamline tariff proceedings would have unintended negative consequence by excluding collectives that deal in sound recordings from eligibility for statutory damages.

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              Canada’s unilingual constitution: More than just bad optics

              By Kim Covert November 30 2018 30 November 2018


                Words matter. When it comes to the Constitution – the document which guarantees the equality of English and French – the fact that the majority of constitutional documents are available in English only makes it look like the words are more equal in one language than the other.

                The optics, as they say, are bad.

                “The lack of a complete official French version of the constitutional documents … has a jarring symbolic effect, and is an affront to the equality of status of both official languages in Canada and to our Constitution’s underlying fundamental principles, which are the rule of law and the protection of minorities,” say the CBA’s French-Speaking Common Law Members Section and Constitutional and Human Rights Section in a joint submission to the Parliamentary committee studying the modernization of the Official Languages Act.

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                Canada’s labour market impact assessment is too unpredictable

                By Kim Covert November 29 2018 29 November 2018


                  The CBA’s Immigration Law Section is taking the federal review of the standards and fees associated with the Temporary Foreign Worker Program Labour Market Impact Assessment Process as an opportunity to reiterate its arguments that the process does not serve the interests of employers – and can have a negative impact on the employment of Canadians.

                  There are knock-on effects when obstacles are placed in the way of prospective employers who want to bring in foreign workers, the Section says. If a meatpacking operation can’t bring in workers for processing jobs where there is a shortage of workers in Canada, for example, that could mean direct and indirect losses in related industries such as transportation, marketing, trade, etc.

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                  Delays can be a disincentive to applying for an open work permit

                  By Kim Covert November 28 2018 28 November 2018


                    Officials at Immigration, Refugees and Citizenship Canada have made a lot of improvements to the spousal sponsorship process in recent years, but problems remain, particularly in the area of the timeliness of approvals for work permits.

                    In the case of out of status sponsored spouses applying for work permits, the CBA Immigration Law Section writes in a letter to IRCC, the applicants will either not receive the permit, or will receive it only at the end stage of their permanent residence application. “By this point, the processing time for the work permit will exceed the remaining processing time for the sponsorship application. This creates a disincentive for out of status sponsored spouses to apply for an open work permit due to the perception that it will be a waste of time and money.”

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                    Canada should facilitate asylum for targeted LGBTI+ individuals in Tanzania

                    By Kim Covert November 23 2018 23 November 2018


                      The headlines out of Tanzania tell the story of dangerous and deadly times for the country’s LGBTI+ community, as many gay men are in hiding from vigilante squads on a mission to find and arrest them.

                      While the Tanzanian government says it does not support these measures, the CBA’s Sexual Orientation and Gender Identity Community says it expects “the proposed plan has already further marginalized Tanzania’s LGBTI+ community by inciting hatred, discrimination and possibly violence.”

                      SOGIC has written to Prime Minister Justin Trudeau and Foreign Affairs Minister Chrystia Freeland asking the government to take steps to help support LGBTI+ individuals living in Tanzania, to ensure their well-being and safety.

                      The government can do this, SOGIC says, by obtaining information with regard to the extent to which the LGBTI+ community is being targeted; denouncing any actual or threatened human rights abuses against that community and individuals in it; and facilitating asylum in Canada for LGBTI+ individuals fleeing persecution.

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                      Input tax credit rules ain’t broke – careful how you fix ‘em

                      By Kim Covert October 30 2018 30 October 2018


                        The CBA’s Commodity Tax, Customs and Trade Law Section was happy to respond to Finance Canada’s proposed amendments to GST/HST holding corporation rules issued in July. But it had one big question about the changes: Why?

                        The current rules are effective and accomplish their goal, the Section says in a letter to the Department of Finance. It notes that the courts have adopted a flexible and sensible approach to input tax credits, where GST/HST credits should be recoverable as a matter of tax credits.

                        “Given the current constructive state of the rules, we trust that the rationale for the proposed amendments is to clarify (and not restrict) the existing approach to ITCs for holding corporations,” the Section says. “We would appreciate, however, clarification on the rationale for the proposed amendments.”

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                        Quantum of political participation: Proposed changes remove limits for charities

                        By Kim Covert October 29 2018 29 October 2018


                          Draft legislation that would lift the limits placed on non-partisan political activities by charitable organizations are a welcome change, says the CBA’s Charities and Not-for-Profit Law Section.

                          “These proposals will hopefully afford charities more freedom to conduct non-partisan political activities, such as public advocacy, than in the past, which we support,” the Section says in a submission to Finance Canada’s Tax Policy Branch.

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