The Power of Perspectives

The Canadian Bar Association

National Blog

Seeking clemency: It’s time to let Leonard Peltier go

By CBA/ABC National November 14 2016 14 November 2016


    “I know that to watch him die in prison, without clearing his name, would devastate our family even more than the past four decades have.” – Kathy Peltier, writing in Time magazine in August

    In August, about the same time that Kathy Peltier was waiting anxiously to hear whether President Barack Obama had added her father’s name to the list of pardons in his last year in office, CBA Council passed a resolution to add its voice to the chorus of those pleading for clemency for a man who has spent 40 years in prison after being convicted on fraudulent evidence.

    Leonard Peltier was present when two FBI agents were killed at the Pine Ridge Reservation in South Dakota in 1975. But he was later extradited from Canada and faced murder charges in their killings based on what has been proved to be faulty evidence. And yet he remains in prison, 70 years old and ailing.

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    NAFTA: Goodbye to all that?

    By Yves Faguy November 11 2016 11 November 2016

      Canada and Mexico, it seems, are now happy to renegotiate NAFTA. But what if a President Donald Trump were really to scrap NAFTA, as he has promised he would if he can’t what he wants out of renegotiations? Article 2205 stipulates that “a Party may withdraw from this Agreement six months after it provides written  notice of withdrawal to the other Parties.” It’s unclear whether Trump could act alone or whether he would require a vote from Congress. Still it’s worth remembering, there is still an underlying 1989 Free Trade Agreement between the U.S. and Canada, which was never repealed. Thomas Walkom suggests that the end of NAFTA wouldn’t be all bad for Canada because, contrary to NAFTA, the 1989 FTA doesn’t have an investor-state dispute settlement mechanism:

      A 2015 study found that of the completed NAFTA disputes involving Canada, roughly half were decided in favour of the corporations.

      Others never made it to the dispute-resolution stage because Canadian governments caved in.

      By contrast, no Canadian corporate attempt to challenge U.S. laws under NAFTA has ever succeeded.

      In short, a U.S. decision to pull out of NAFTA could benefit this country. Technically, Canada and Mexico could continue on with the pact. But it was designed around the giant U.S. market and makes little sense without it.

      Wishful thinking perhaps. Michael Geist tries to guess at what NAFTA renegotiations might look like:

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      The LPP pilot project is extended for two additional licensing years

      By Mariane Gravelle November 10 2016 10 November 2016

        On September 22nd, 2016, the Professional Development and Competence Committee of the Law Society of Upper Canada released its Report to Convocation, addressing the Pathways Pilot Project. In that report, the committee recommended ending the Law Practice Program following the completion of its third year (2016-2017) because it “[…]does not appear to be providing an alternative to articling that has gained acceptance by candidates and the profession and that is sustainable in the long term.” (Report to ConvocationSeptember 22, 2016, page 2)

        Following the release of that report, the LSUC received “[…] 93 public submissions from individuals, plus 104 additional individual comments linked to a petition, and 32 from organizations, associations, legal clinics, law schools and others.” The overwhelming majority of these submissions argued in favour of retaining the program, citing – amongst other things – the lack of verifiable data to support the allegation of the creation of a two-tiered system, as well as their own positive experiences with the LPP.

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        Is Uber taking its drivers for a ride?

        By Michael Motala November 10 2016 10 November 2016


          A landmark ruling out of a British tribunal has put Uber’s wage policies in the cross-hairs. In the decision delivered on October 28th in London, Justice Anthony Snelson blasted Uber’s labour market practices. The tribunal’s ruling comes in the wake of the Airbnb ban in New York City and the EU’s ongoing battle with Google, another sign of a worldwide regulatory backlash against the so-called “sharing economy.”

          “The lady doth protest too much, methinks,” read Justice Snelson’s reasons, quoting Shakespeare’s Hamlet as he responded to the “grimly loyal evidence” presented by Uber’s lawyers. At times, the judge found that Uber’s defense had resorted to “fictions, twisted language, and even brand new terminology.”

          Contrary to Uber’s claim that drivers are independent contractors, a finding that would allow the tech company to continue operating while skirting the relevant labour regulations, the tribunal declared that they are in fact workers.

          “The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common platform is to our minds ridiculous,” read the decision.

          Classified as workers, the tribunal held that the time drivers spend between rides qualifies as unmeasured time in accordance with the UK’s National Minimum Wage Regulations. The decision means Uber, and similarly modeled tech companies operating in Britain, could be on the hook for the minimum wage and holiday pay.

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          Working toward climate change governance

          By Supriya Tandan November 10 2016 10 November 2016

            Monday marked the start of COP22 in Marrakech, where climate negotiators meet for a fortnight to transform political climate commitments into definitive action. Following the ratification of the Paris Agreement by 55 countries, representing 55 percent of global emissions, the Paris Agreement became a fully binding legal treaty, albeit one lacking any enforcement mechanisms. It provides goals for greenhouse gas emissions reductions but not, as many observers have noted, the methodology by which that can happen. COP22 is to address this gap by developing the rules, timelines and processes that will guide how the world will limit temperature increases to 1.5 – 2 degrees Celsius.

            To build this methodology, parties will have to tackle  climate change governance, namely with respect to transparency and reporting, mechanisms to fund the adoption of alternative technologies by developing countries, a compliance structure; and tying it all together, the creation of the CMA (aka “the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement”). The CMA will be the de facto governing body for the Paris Agreement and is made up of those countries of who have joined the Paris Agreement.

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            National security legal analysts brace themselves

            By CBA/ABC National November 10 2016 10 November 2016


              Benjamin Wittes of the Brookings Institution and the editor in chief of Lawfare defines his role in the years ahead during the coming Trump presidency:

              Trump’s election will fundamentally change my work on this site over the next few years, and probably off the site too. Because at least for me, Trump does not enter office with a presumption of regularity in his work. He does not enter office with a presumption that as President he will pursue a vision of what national security means that is remotely related to my own or that he will do so in a rational fashion—or even that he and I share a common idea of what aspects of this nation we are trying to secure. I take what he has said, over a long period of time now, too seriously for that.  

              So in a way I never did with George W. Bush or Barack Obama or Bill Clinton—the other presidents I have covered as a journalist or analyst—I will write about the actions of the Trump presidency with the working assumption that our nation must be protected both by and from the president. I will support him and dispassionately analyze policy and law related to his functioning as the lawful executive responsible for the nation’s security. But I will always also keep the sharpest of eyes out for the areas where he himself is the threat and dispassionately analyze policy and law related to the threat he poses.

              Craig Forcese, noting the unlikelihood of a Trump administration being “a government of law by lawyers,” tackles the ripple effects in Canada:

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              Conflicting decisions on conflicting rights

              By Jena McGill November 9 2016 9 November 2016


                This week the Law Society of British Columbia (LSBC) announced its intention to seek leave to appeal to the Supreme Court of Canada the recent decision of the British Columbia Court of Appeal in Trinity Western University v the Law Society of British Columbia. TWU has already filed its leave application in the parallel Ontario case. The opposing conclusions reached by the appeal courts in British Columbia and Ontario on the reasonable balance between the religious rights of the TWU community and the equality rights of LGBTQ Canadians are sure to make for a particularly contentious debate at the country’s highest court.

                The facts of the TWU law school dispute are by now well known: all TWU students must sign a Community Covenant that prohibits sexual intimacy outside of heterosexual marriage.  In 2014, the law societies of British Columbia and Ontario (as well as Nova Scotia) denied TWU’s applications for accreditation of its proposed law school on the basis that the Covenant discriminates against LGBTQ students.  The refusals mean that graduates of TWU would not be eligible to be called to the bar in these provinces. TWU sought judicial review of these decisions.

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                How Trump could dump the Paris Agreement

                By Supriya Tandan November 9 2016 9 November 2016

                  A month before the last night’s election the  Sandra Day O’Connor College of Law published a document outlining the legal pathways a U.S. President could use to withdraw from the Paris Agreement. There are two major routes.

                  The slower route would be to withdraw from the Paris Agreement itself. Article 28.1 of the Paris Agreement authorizes a country to withdraw from the agreement without reason or justification. The only limitation is timing. Countries would only cease to have emission reduction and reporting obligations four years after the agreement came into force. If President Trump gives notification for withdrawal on the first day of his term, then the withdrawal would only come into force on November 4, 2020.

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                  Artificial intelligence is not magic...

                  By Natalie McFarlane November 9 2016 9 November 2016


                    But the magic happens where legal tech and the legal profession intersect.  This was the key message that emerged from Toronto Legal Hackers’ inaugural event on Cognitive Computing and the Future of Law that took place at Dev Hub last month.  

                    A room of lawyers, technologists and people keen on the role of AI in legal technology joined Legal Innovator and ABA Best-selling Author, Mitch Kowalski, as he engaged the audience and panel of legal technology startups on the existing and potential implications of AI on the legal profession.  The featured panelists were Cian O’Sullivan: Founder of, Mona Datt: Co-founder of Loom Analytics, Rob Warren Ph.D.: Chief Data Scientist of Kira Systems, and Josh Borts: Co-founder of Functional Imperative and Lighthouse Labs.

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                    Removing obstacles to family reunification

                    By CBA/ABC National November 8 2016 8 November 2016


                      Cost vs. Value is one of the principal tensions that plays out in Canada’s immigration policy – fears that family-class immigrants will be a burden on the economy without adding to it tend to trump any consideration of the value these immigrants will bring.

                      “The economic, social and cultural benefits of family reunification have been underestimated, particularly when the analysis of these benefits includes multiple generations,” the Immigration Law Section says in a submission it prepared for the House Committee on Citizenship and Immigration’s study of family reunification. Section Chair Vance Langford appeared before the committee in late October. (Vance Langford also spoke briefly with

                      The Section supports the principle of family reunification as an objective of the Immigration and Refugee Protection Act and has several ideas for improving an obstacle-ridden process which can stretch well beyond reasonable limits of time and patience.

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                      CSIS' illegal collection of metadata

                      By Justin Ling November 8 2016 8 November 2016


                        Figuring out the legal strategy behind top-secret intelligence gathering by CSIS, and how the Attorney General defends its methods, isn’t easy.

                        But a recent decision from the Federal Court peels back a layer of the onion in a way that the public doesn’t usually get to enjoy.

                        Reviewing an application for undisclosed warrants, and in an effort to amend CSIS’ warrant templates, the Federal Court discovered some unsavoury and flatly illegal data retention policies taking place inside Canada’s main human intelligence agency.

                        The court found that the spy agency’s practice of archiving metadata for “third-party, non-threat” Canadians — people who had their data swept up under a lawful warrant — was completely contrary the Canadian Security Intelligence Service Act.  The Act requires the service to delete all data collected, unless it is directly authorized under a warrant, pertaining to an ongoing investigation, relating to the security of Canada, or otherwise relevant to the conduct of foreign affairs or the Canadian military.

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                        A modest judge

                        By Léonid Sirota November 7 2016 7 November 2016


                          There has been some debate about whether Justice Russel Brown of the Supreme Court was part of a trend of judicial arrogance. Alice Woolley argued that he was, citing the opening paragraph of his majority opinion in Canada (Attorney General) v Igloo Vikski Inc. I said no, as did Nicholas Hay over at The Court. So it is timely that Ultra Vires, the University of Toronto Faculty of Law student newspaper, has recently published an interview with Justice Brown himself. While it contains no insights on the art of hockey goaltending, it does give us a better sense of Justice Brown's views on judging ― and indications, insofar as extrajudicial talk, which like any talk is by definition cheap, can give us indications about the judge's true views, that this judge is a rather modest one.

                          In response to a question about the influence of his background on his judicial work, Justice Brown says that his "experience as an academic has been helpful in the sense of taking seriously what the other side says". (Actually, this is a useful reminder for academics as well as judges; Justice Brown attributes it to advice from David Dyzenhaus, and prof. Dyzenhaus will not give bad advice!) Audi alteram partem ― listen to the other side ― is of course the very first part of a judge's job description, but keeping to it consistently does require some humility, or at least an awareness that one does not have all the answers worked out beyond dispute.

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