The Power of Perspectives

The Canadian Bar Association

National Blog

Statement by CBA President on US executive order on foreign entry

By Yves Faguy January 30 2017 30 January 2017

     

    The Canadian Bar Association's president René Basque has issued a statement on the United States' executive order on foreign entry, expressing concern over "the discriminatory nature and extraterritorial impact" of the EO on those it targets.

    "While the US government has now given high-level assurances that the order does not apply to Canadian citizens and permanent residents, it seems to be based on the national interest exemption in the order and determined on case-by-case with no clear procedures," the statement reads. "Individuals may still face issues at ports of entry.

    Basque also calls upon the federal government to examine how the order will affect  agreements and policies between Canada and the U.S., including the Safe Third Country Agreement, which manages requests for refugee protection in the two countries. "If refugee claimants no longer have access to a meaningful and fair adjudication process in the US, Canada must continue to fulfil its own international obligations and offer to process their claims in Canada," the statement concludes.

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    Legal aid is an integral part of the social safety net

    By Kim Covert January 30 2017 30 January 2017

       

      It’s time for the federal government to take a leadership role in access to justice, the CBA’s Access to Justice Committee says in a submission to the House of Commons Committee on Justice and Human Rights which is studying legal aid.

      “Canada needs federal leadership in creating a properly funded, national legal assistance systems strategy, with services administered by each province and territory, and minimum national standards and comparable services available throughout Canada,” the submission says.

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      Responding to Trump's executive order

      By Yves Faguy January 30 2017 30 January 2017

         

        Shadi Hamid’s reaction to Trump’s now infamous executive order, temporarily suspending the U.S. refugee program and halting visas to citizens of several Muslim countries, is worth a read:

        Some of the stories, after President Trump issued his executive order targeting Muslim immigrants, remind me of what I saw in the Middle East. No one has been killed, of course. But when an Iraqi who risked his life an interpreter for the Army arrives in New York only to be denied entry, it has the hallmarks of a different world, one he probably thought he had left behind: the fear of not knowing; the manipulation of law; the capriciousness of strongmen in midflight; and families divided in the name of politics

        Benjamin Wittes bluntly calls the EO “malevolent.”  Acknowledging that the order is now tied up in litigation, because it was so poorly and incompetently crafted and therefore unlikely to be very effective from a legal point of view, his broader point is that its stated purpose — “detecting individuals with terrorist ties and stopping them from entering the United States” — is not the real purpose at all:

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        Who is really driving carbon pricing?

        By Yves Faguy January 27 2017 27 January 2017

           

          Jason Kroft, Jonathan Drance and Luke Sinclair size up the outlook for carbon regulation and pricing now that the climate skeptics have taken over in the new Trump administration and take a somewhat sanguine view:

          While government policy can significantly impact changes in corporate behavior, the transition away from coal to natural gas and renewables is largely driven by private market mechanics. Private actors invest in natural gas and renewables because they offer the highest level of risk adjusted return, not out of altruistic motives. The private market is increasingly incorporating carbon pricing into their risk analysis and investment decisions and project proponents at least consider the carbon “shadow price” in their financial metrics regardless of government policy.

          With a long-term investment horizon, often approaching 30-40 years, most infrastructure projects currently in the planning phase will long outlive a Trump presidency. The views of one administration are largely irrelevant as project proponents must consider the risk of increased costs associated with carbon emissions over a project's useful lifetime.

          Along similar lines, Lawrence Hsieh writes that it will be the cities that will have to respond to the challenges of climate change, because insurers who taken on municipal risk will be keeping an eye out their responses:

          This is because many insurers invest their premiums in real estate. Falling property values due to inundation plus large disaster pay-outs and sudden upticks in disaster-related mortality could jeopardize insurer solvency across all lines of coverage, and threaten the reinsurers and capital markets investors who traffic in insurance risk.

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          Why Brexit requires an act of Parliament

          By Yves Faguy January 24 2017 24 January 2017

             

            The U.K. Supreme Court has ruled that an act of Parliament is needed before the government can trigger article 50 of the Treaty of Lisbon, notifying its intent to pull out of the European Union, a process that must be completed within two years.

            The president of the Supreme Court, Lord Neuberger of Abbotsbury, read a summary of the ruling:

            Section 2 of the 1972 [European Communities] Act provides that, whenever EU institutions make new laws, those new laws become part of UK law. The 1972 act therefore makes EU law an independent source of UK law, until parliament decides otherwise.

            “Therefore, when the UK withdraws from the EU treaties, a source of UK law will be cut off. Further, certain rights enjoyed by UK citizens will be changed. Therefore, the government cannot trigger article 50 without parliament authorising that course.

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            Post TPP, what are Canada's trade alternatives?

            By Yves Faguy January 23 2017 23 January 2017

               

              In addition to signing an executive order to renegotiate NAFTA, U.S. President Trump is formally withdrawing his country from the Trans-Pacific Partnership today. Under the terms of the trade deal, it cannot come into force without the participation of the U.S. Meanwhile, a China-led trade deal for Asia Pacific is reportedly nearing completion.

              Trade Minister Francois-Philippe Champagne expressed hope last week that Canada could pursue an alternative multilateral trade deal in the Pacific Rim. It could also negotiate a bilateral free trade agreement with Japan. It is planning exploratory trade talks with China.

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              Charter rights are not a technicality

              By CBA/ABC National January 17 2017 17 January 2017

                 

                Anne-Marie McElroy addresses concerns voiced in the public that the Supreme Court’s Jordan ruling, which imposed ceilings on getting criminal cases to trial, is contributing to more offenders being let go “on a technicality”:

                On the face of it, it’s easier to assume that someone is factually guilty and then to move to the idea that a conviction should automatically follow. But Charter rights aren’t just technical or trivial. They form the basis of our justice system, setting out guidelines of appropriate behaviour of all of the players within it. The Charter is often the only tool that a judge has to send a message to police that the community standards do not permit the behaviour seen in a case, and the same goes for the institutional problems that have become pervasive with delays in having matters get to trial.

                Léonid Sirota also tackled this question in a post following the release of the decision last year:

                The Charter does not speak of “a right to be tried within a reasonable time, except for those accused of depraved offences.” The Jordan majority is quite right to say that only the complexity of the legal or factual issues, rather than the gravity of the charge, can justify a prosecution taking longer to conclude. Those who think otherwise need to amend the constitution.

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                Building a legal app: What problem do you want to solve?

                By Sam Sasso January 13 2017 13 January 2017

                   

                  In my last post on building a legal app, I talked about how the first question you should answer is deciding on what principle it is that you want to teach. Let’s move on now to the matter of what problem it is that you want to solve.

                  Indeed, good apps are tailored to a particular purpose; they are tools built exclusively for specific uses; and they can help resolve some common problems. One of the ways that an app can be effective is to create an efficiency, usually done by eliminating an inefficiency.  Another is to create a convenience.  

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                  Clearing the record: Suggestions for the pardons process

                  By Kim Covert January 11 2017 11 January 2017

                    At what point does the justice system become unjust to the estimated one in 10 Canadians with a criminal record?

                    Depending on whom you talk to, a person could likely find injustices throughout – prolonged detention, delays in proceedings, inadequate legal aid funding and prison overcrowding are just some of the ways the justice system works against the people caught up in it.

                    A person who has served his or her time and been released back into the community can find it difficult to get out from under the stigma of that conviction – in fact, even people who’ve had charges against them stayed can still be negatively affected by their brush with the system.

                    In August, CBA Council passed a resolution urging the federal government to make changes to the current pardons process.

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                    Duty to consult: Reviewing the environmental assessment process

                    By Kim Covert January 10 2017 10 January 2017

                      The federal government’s attempts to balance the interests of business, the environment and Indigenous peoples in the environmental assessment process have met with varied success, depending on your area of particular interest.

                      The government has established an expert panel to review the environmental assessment process. A working group made up of members of the Environmental, Energy and Resources Law Section and the Aboriginal Law Section prepared a submission that was presented to the panel in Vancouver in December. Tony Crossman, who appeared before the panel for the CBA, also followed up by letter with a response to three particular questions he was asked by the panel.

                      The CBA submission made a total of 33 recommendations for modernizing the process, underlining the importance of the Canadian Environmental Assessment Act, 2012, as well as sufficient funding and resources.

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                      Legal futures round-up: January 10, 2017

                      By Brandon Hastings January 10 2017 10 January 2017

                         

                        Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our regular round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

                        Burford Capital, the world’s largest litigation finance company the world, bought its main rival Gerchen Keller Capital for $US 160 million. The tie-up has commentators calling it a sign that the litigation funding industry is maturing in the U.S.

                        According to a recent roundtable, summarized in this white paper, commentators expect that litigation funding will become increasingly prevalent in Canada. As a new wave in legal business, and an access to justice initiative, litigation funding (where large pieces of litigation is financed by third parties) litigation funding could help change the liability landscape in Canadian courts. Litigation which attracts funding currently requires a claim of $10 to $15 million.

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                        Political activities for charities: Reframe the question

                        By Kim Covert January 9 2017 9 January 2017

                          The personal is political – and so is the charitable it seems. Federal regulations limiting activities of a political nature have left charities tying themselves into knots and spending valuable resources trying to decide whether any given activity or statement is political – or more importantly perhaps, could be perceived to be so.

                          The problem is worsened by the fact that many things a charity does can be seen through the lens of political activity. Charities have a unique role to play in public policy debates, as acknowledged in the government’s public policy guidance on political activities, which states in part:

                          Through their dedicated delivery of essential programs, many charities have acquired a wealth of knowledge about how government policies affect peoples’ lives. Charities are well-placed to study, assess, and comment on those government policies. Canadians benefit from the efforts of charities and the practical, innovative ways they use to resolve complex issues related to delivering social services. Beyond service delivery, their expertise is also a vital source of information for governments to help guide policy decisions. It is therefore essential that charities continue to offer their direct knowledge of social issues to public policy debates.

                          But with limits placed on political activities, many in the voluntary sector feel it’s not worth the risk to undertake them.

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