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The Canadian Bar Association

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Judicial discretion restored

By Justin Ling October 26 2016 26 October 2016


    Ottawa’s federal victim surcharge, also described as a “tax on broken souls,” is finally facing reform.

    The surcharge was an automatic levy placed on certain offenders, aimed at funding victim services and support systems in the criminal justice realm.

    But when the Harper government expanded that system in 2014, many criminal justice lawyers worried that things had been thrown out of whack.

    Previously, judges could choose to waive the surcharge. Under the 2014 changes, it became mandatory. The charge could ding the offender for as much as 30 per cent of their fine, or $200 per offence.

    Judges across the country balked at the charge. Ottawa contended that it would not serve as a further form of punishment, because offenders could work off the surcharge in fine repayment programs. But the federal government neglected to inform the provinces, several of whom do not have fine repayment programs, or which have programs that would not accommodate the surcharge.

    What’s more, the victim surcharge could be slapped on offenders in addition to restitution charges.

    Now current Justice Minister Jody Wilson-Raybould is tinkering with the system to ensure that it wouldn’t double-penalize offenders.

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    The Kigali Agreement: Finally, an enforceable climate deal

    By Supriya Tandan October 25 2016 25 October 2016

      Only 12 days after confirmation that the Paris Agreement will come into effect, a smaller but no less significant climate agreement was brokered in Kigali, Rwanda. The Kigali Agreement is an amendment to the Montreal Protocol, which was initially brokered to help patch up the ozone layer, and considered among one of the most effective environmental agreements in history. A creative addition to the Montreal Protocol was, in part, an initiative of U.S. President Barack Obama to bypass the U.S. Senate and make some progress on his climate change agenda.

      The Kigali amendments introduce limits to Hydrofluorocarbons (HFC) emissions, a potent greenhouse gas, by using a “common but differentiated responsibility” approach :

      “The principle of CBDR as applied to international environmental treaties has two elements: it entitles, or possibly requires, all concerned States to participate in international response measures aimed at addressing environmental problems. Furthermore, it leads to the adoption and implementation of different commitments for States, taking into account their diverse situations, circumstances and capacities, their historical contribution to a problem, as well as their future development needs”

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      CETA and ISDS: A descredited mechanism

      By CBA/ABC National October 24 2016 24 October 2016


        Canada's long-awaited trade deal with the European Union is far from the sure thing we thought it was. Last week International Trade Minister Chrystia Freeland walked out on talks complaining that that the EU “is incapable of reaching an agreement.”  Then there was hope again, followed by an ultimatum from the EU to Belgium’s government to decide whether it will agree to sign.

        The main obstacle to the deal is the private arbitration mechanism, or investor-state dispute settlement (ISDS), which allows companies to sue national governments where for interfering in trade, matters (there is a clause that has been added reaffirming the “right to regulate” in order “to achieve legitimate policy objectives”)

        Tyler Cowen has a piece taking on the critics of ISDS:

        Part of the discomfort over dispute-resolution panels is the notion that their private deliberations circumvent the democratic process. But it is a basic feature of most democratic governments that the legislature sets up legal institutions that subsequently act outside of direct democratic control.

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        The SCC’s stringent test for joint submissions on sentencing

        By Justin Ling October 21 2016 21 October 2016

          If you’re going to overturn a joint submission on sentencing, you better have a darn good reason.

          That’s the takeaway from the Friday morning ruling from the Supreme Court, which has set new precedent in how judges should treat plea bargains.

          In R. v. Anthony-Cook, a 28-year-old man was charged with manslaughter. He pleaded guilty, confessing to punching a man outside a B.C. homeless shelter. The man fell, hitting his head off the pavement, and died.

          When Matthew Anthony-Cook appeared in court to enter his plea, his counsel and the Crown had already come to an agreement — 18 months in custody, no probation.

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          The time to reform the Youth Criminal Justice Act is now

          By Rebecca Bromwich October 21 2016 21 October 2016

            October 19 marked the 9th anniversary of Ashley Smith’s death in Corrections custody, whose tragic story I wrote about a year ago.  Smith died in solitary confinement at age 19 in an adult prison after having been convicted with a series of offences in relation to disciplinary infractions while in youth custody.  She was first imprisoned for the offence of throwing apples.

            The verdict in the 2013 inquest into her death ruled it to be a homicide.  She died from a caustic combination of administration of justice sentences and correctional processes that excluded her and violated her rights progressively and unremittingly. I joined many others in calling for action on Canada’s problems with solitary confinement.  I also argued for a rethink of how youth criminal justice law is being deployed against girls.  

            In the ensuing 12 months, much has changed, but these problems have not been solved.  We need to redouble our efforts to ensure changes to conditions of custody and the Youth Criminal Justice Act are made so that deaths like hers become less likely to occur.

            October 19th also marks the first anniversary of the Trudeau governments election win. Politicians are again finally talking about solitary confinement and justice issues in general. Prime Minister Justin Trudeau made direct reference to the Smith case and the need to change correctional practices in the letter to Justice Minister Jody Wilson-Raybould in November 2015

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            Competition Act remedies not for the faint of heart

            By Michael Osborne October 21 2016 21 October 2016

              The Competition Act permits private parties to apply for leave to commence a private application under the Act’s refusal to deal, exclusive dealing, tied selling, and price maintenance provisions. But these law suits are not for the faint of heart. The Competition Tribunal has a gatekeeper role that it takes very seriously, subjecting evidence at the leave stage to intense scrutiny. Of the few cases where the Tribunal has granted leave, only two have proceeded to a full hearing. Both of those private applications were ultimately dismissed.

              A recent decision from the Tribunal highlights the uphill battle faced by would-be private applicants.

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              Vacancies filled and changes to Judicial Advisory Committees announced

              By CBA/ABC National October 20 2016 20 October 2016


                Justice Minister Jody Wilson-Raybould filled 24 judicial vacancies and announced some changes to the judicial appointment process with a view to improving transparency and accountability.  Changes have been made to the Judicial Advisory Committees responsible for assessing the qualifications for applicants.

                From now on, each committee will consist of seven members representing the bench, the bar and the general public, four of whom are nominated by entities in the province or territory in question. 

                • a nominee of the provincial or territorial law society;
                • a nominee of the provincial or territorial branch of the Canadian Bar Association;
                • a judge nominated by the Chief Justice of the province or by the senior judge of the territory;
                • a nominee of the provincial Attorney General or territorial Minister of Justice; and
                • three nominees of the Government representing the general public.

                There will no longer be a law-enforcement member sitting on the committees – a change the previous Conservative government had introduced to the recommendation panels when they were in power.

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                Preserving regional representation on the SCC: but what about diversity?

                By Jennifer Taylor October 20 2016 20 October 2016


                  It was a relief to learn that Prime Minister Justin Trudeau chose someone from Atlantic Canada to fill the vacant spot on the Supreme Court. As I have argued, it would have been constitutionally questionable – and politically problematic – for him to do otherwise. Assuming all goes smoothly, Justice Malcolm Rowe will become Newfoundland and Labrador’s first Supreme Court judge within the next few weeks.

                  This milestone is worth applauding. So is the preservation of regional representation on the Supreme Court. But – and there’s always a ‘but’ with judicial appointments – what about diversity?

                  Because of that nagging question, there’s something unsettled about this appointment. Justice Rowe, it must be stated, is yet “another white male,” when the Supreme Court already has four of them. #SCCsowhite is a hashtag for a reason.

                  Would I have liked to see a woman nominated, to give the Court a majority of women judges? Of course. I would have been even more thrilled if the PM had chosen the court’s first indigenous jurist, or the first SCC judge of colour, or the first openly queer Supreme Court justice. (And unlike the Globe and Mail editorial board, I don’t see “demographic variety” and competence as either/or criteria – there were surely qualified candidates who weren’t white men, and their diverse backgrounds would have only enhanced their competence.)

                  My relief about maintaining regional diversity was, then, mixed with disappointment about not advancing demographic diversity. (With a nod to Leonid Sirota for the helpful “regional diversity” and “demographic diversity” terminology.) To quote my original post on the revamped appointments process: “The essential goal of enhancing diversity on the Supreme Court can work in tandem with the need to preserve regional representation.”

                  I thought we could have both this time. And we certainly can, with future appointm

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                  Norway's turn to face a climate lawsuit

                  By CBA/ABC National October 19 2016 19 October 2016

                    In June, Norway became the first developed country to ratify the Paris Agreement. Now environmental groups are suing its government for violating the climate treaty by forging ahead on oil exploration plans in the Barents Sea. The fight centers on Norway’s decision in May 2016 to award 10 new drilling licenses to oil companies. That decision, the plaintiffs say, goes against Article 112 of Norway’s Constitution, which reads:

                    Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.

                    The legal writ, published online, acknowledges that there is little precedent in the Norway for invalidating decisions under Article 112.  Nonetheless, here’s how the plaintiffs intend to argue their case:

                    The presumption principle, which calls for Norwegian law to be interpreted in accordance with international law, makes international law rules and fundamental principles of international law a part of our national legal system. This means that the Climate Convention, the Paris Agreement and international human rights and environmental principles are relevant sources of law when the limitations in Article 112 of the Constitution are to be determined.

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                    Malcolm Rowe nominated to the Supreme Court of Canada

                    By CBA/ABC National October 17 2016 17 October 2016

                      In a move that maintains the regional representation on the top court, Justin Trudeau has nominated Justice Malcolm Rowe, a first for Newfoundland & Labrador, to the Supreme Court of Canada to replace retiring Justice Thomas Cromwell.

                      Justice Rowe comes from the Supreme Court of Newfoundland and Labrador (Court of Appeal). As a practitioner before that, he focused primarily on constitutional matters, foreign relations, and the arbitration of maritime boundaries.  He participated in the negotiations that led to the end of the ''turbot war'' and the agreement at the UN for a new convention on high seas fisheries

                      The appointment leaves the gender balance of the court unchanged at five men to four women. This is the first nomination by the federal government under its new Supreme Court open application process.  For further insight into Justice's Rowe's background and ideas, you can read his application questionnaire here:


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                      Fintech: Rethinking the rules of financial services

                      By Mark Bourrie October 17 2016 17 October 2016


                        Fintech companies are telling the Competition Bureau that they want a new regulation regime because it would strengthen trust in their businesses. “Building trust is extremely important in the financial services sector, in particularly in regards to access to banking, which is usually more conservative,” Vicky Eatrides, the deputy commissioner of the Competition Bureau’s Competition Promotion Branch told lawyers at the CBA’s Competition Law fall conference in Ottawa last week.

                        The federal government has plans to introduce new regulations for the online financial services, or fintech, sector once it hears from business and other stakeholders.

                        Eatrides said the new rules must balance consumer protection with the federal government’s policy of fostering greater competition and innovation.

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                        Access to justice: Part of a lawyer’s ethical responsibilities?

                        By Kerri Froc October 14 2016 14 October 2016


                          Lawyers are invested in access to justice.  Many see pro bono work as part of their obligations as a member of the profession.  Others build access to justice, such as providing unbundled legal services, into the day to day operations of their law firm.

                          But, should access to justice be built in as part of a lawyer’s ethical responsibilities and regulated by law societies?

                          The CBA’s Access to Justice Committee’s report, Equal Justice: Balancing the Scales, suggests that law societies could enhance access to justice in a number of ways.  For instance:

                          • The Federation of Law Societies could include an access to justice component in its competency requirements for new lawyer licensing;
                          • Law societies and the Federation of Law Societies could include access to justice in their codes of conduct;
                          • The Federation of Law Societies could require experiential education and/or access to justice in the law school curriculum in order to be called to the bar following law school.

                          Can we – should we – foster access to justice through lawyer regulation?

                          Join the CBA’s next Twitterchat, Can Regulation Advance Access to Justice?, as part of Access to Justice Week organized by TAG - The Action Group on Access to Justice. Hosted by Amy Salyzyn (@AmySalyzyn), a professor from the University of Ottawa, she is an expert in legal ethics, who is currently researching innovative ways to foster access to justice.  How can law societies help strengthen the link between access to justice and lawyers’ ethical identity?

                          Tune into #cbaa2j #a2j2016 on Tuesday, October 18 at 12:00 p.m. ET to join the conversation and find out.

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