The Power of Perspectives

The Canadian Bar Association

National Blog

The common interest: When privileged information is shared

By Alexander Gay December 14 2016 14 December 2016

     

    In-house counsel are often asked to share privileged materials with third parties that have a common interest in a piece of litigation. Common interest privilege is a category of privilege that permits parties to disclose privileged evidence between themselves without losing privilege. The determination of common interest is a factual one, which may consider whether the parties share a common goal, seek a common outcome or have a self-same interest on either or both the general claims (e.g., both sued for exactly the same alleged misconduct) or certain specific allegations (e.g., an expert report on one specific matter in issue). Common interest privilege is asserted and the documents are shared—often with little to no understanding about the nature of the privilege claim being asserted or how to best share documents with the third party in a way that protects its subsequent dissemination.

    A common interest privilege is not a stand-alone privilege that can be claimed on all documents shared with third parties in the face of actual or impeding litigation. In order to claim the benefit of a common interest privilege, the documents must benefit from either solicitor-client privilege or litigation privilege. Where the privileged document is shared, both the originating party and the third party receiving the document can claim a common interest privilege, independent of one another.

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    Real solutions for fixing court delays

    By CBA/ABC National December 13 2016 13 December 2016

       

      Earlier this month, Ontario’s Attorney General Yasir Naqvi (pictured above) and Quebec’s Justice Minister Stephanie Vallée both announced measures to reduce the seemingly intractable problem of court delays in our justice system, primarily by promising to hire more judges and prosecutors and to inject cash into the justice system.  Nova Scotia appears to be leaning more heavily on restorative justice programs as way of moving offenders charged with less serious crimes away from the court system.

      Michael Spratt calls these band-aid solutions. He argues for the government to start reigning in prosecutors:

      Any public anger should rightly be directed at the actions of the Crown. And this is where the government’s attention should be focused. A handful of additional judges and prosecutors will do little to change a systemic Crown culture of complacency, possessiveness and overzealousness.

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      Rights of the child: Have we really come such a long way?

      By The Hon. Donna J. Martinson, Caterina E. Tempesta and Suzanne S. Williams December 13 2016 13 December 2016

         

        Twenty-five years after ratifying the United Nations Convention on the Rights of the Child (CRC) Canada ranks 17th out of 29 affluent nations for children’s overall wellbeing. Canada drops to 26th for inequality between the most affluent and least affluent children. Children of all backgrounds are affected by our poor performance, but high risk and marginalized youth are particularly vulnerable.  So, what can lawyers do to improve the state of Canadian children?

        Since Canada ratified the CRC on December 13, 1991, it has become the most universally accepted human rights instrument with all but one country in the world having ratified it. The CRC contains a bundle of civil, political, economic, social and cultural rights to support children’s optimal development and wellbeing.

        While the CRC is not directly incorporated into domestic law through enabling legislation, it is referenced in Canadian law in limited instances, for example, the preamble to the Youth Criminal Justice Act, and has been cited in Supreme Court of Canada decisions. Canada’s position is that such enabling legislation is not required as it ensured when the CRC was ratified and continues to ensure that its laws, policies and practices comply with the CRC. It is presumed that Canadian statutes conform to the CRC and other international instruments.

        However, in the most recent “report card” on Canada’s CRC compliance, the UN Committee on the Rights of the Child said the absence of comprehensive CRC legislation results in inconsistencies in implementing child rights across the country.  Limited awareness of the CRC among not only children, but also adults, was noted by the Committee, as well as the need for child rights training for professionals working with children, including judicial authorities.

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        US extraterritorial hacking warrants in effect

        By Mariane Gravelle December 12 2016 12 December 2016

           

          As the landscape of our society has changed significantly with the advent of the internet, it should come as no surprise that an extensive amount of criminal activity takes place online. This poses new challenges to law enforcement agencies as the development of rules and regulations has not been as quick to evolve as technology has.

          In April 2016, however, the Supreme Court of the United States approved changes to rule 41 of the Federal Rules of Criminal Procedure, which came into effect last month, that allow law enforcement agencies to obtain search warrants that are enforceable in extraterritorial jurisdictions. Simply put, this will allow American law enforcement agencies to, amongst other things, hack into the computers of individuals located outside of the jurisdiction they operate in. These changes came into effect Thursday December 1st, 2016.

          Of the changes, Motherboard contributor Joseph Cox writes

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          Building a legal app: What principle do you want to teach?

          By Sam Sasso December 12 2016 12 December 2016

             

            When coming up with an idea for building a legal app, the first question you should answer is what principle it is that you want to teach.

            Start with the area of law you enjoy most.  Be honest.  It's okay to enjoy tax law above all others.  Personally, insurance is my favourite.

            Make the principle you want to teach as personal as possible, that is make sure it's something you are going to work on for hours on end, or present to your clients or other lawyers as part of a seminar.  With any luck, you could become a go to person with respect to that principle, so make it one that you would like to be attached to for a while.

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            Silencing disagreement and promoting understanding of the law

            By Yves Faguy December 6 2016 6 December 2016

               

              Commenting on a recent political rally in Alberta where chants of “Lock her up” broke out against Premier Rachel Notley, communications professor Brian Gorman  remarked, "There's an ugly tendency among the extreme right, and I suppose the extreme left as well ... to confuse any disagreement with something that must be eliminated."

              Of course, there is absolutely no legal basis for putting Notley in jail. The crowd mimicking the frequent rallying cry at Trump campaign events was there to protest the NDP government’s proposed carbon tax, legally introduced in the province’s legislature for a vote. But the Carleton University professor could have just as easily been referring to the worrying trend on university campuses across North America to shout down controversial figures invited to speak to students.

              The latest among these is renowned criminal defence lawyer, Marie Henein, who successfully defended former CBC radio host Jian Ghomeshi at his sexual assault trial. Ghomeshi was acquitted on all counts, but Henein has been the subject of harsh judgment in some quarters for her role in attacking the credibility of key female witnesses who claimed they had been assaulted by him.

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              Pomp and circumstance: A supreme swearing-in

              By Kim Covert December 5 2016 5 December 2016

                 

                What do cupcakes and show tunes have to do with the selection of Canada’s newest Supreme Court justice?

                Cupcakes were the fuel and show tunes – led by committee chair Kim Campbell – were the glue that held the special advisory committee appointed by Prime Minister Justin Trudeau together, say sources who shall remain nameless. Committee members “gelled” quickly and did a tremendous amount of work, the sources say, and they’re very pleased with the result.

                The result, of course, is the appointment of Malcolm Rowe as the first Supreme Court Justice from Newfoundland. Rowe was quietly sworn in and put to work three days after he was named to the court in October (“We don’t wait around,” Chief Justice Beverley McLachlin says). The pomp and circumstance, complete with that lovely ermine collar, waited until Dec. 2.

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                Provinces move to help remedy long delays in criminal cases

                By Yves Faguy December 2 2016 2 December 2016

                   

                  It hasn't taken long for the Supreme Court's ruling in R. v. Jordan, which reframed the right to a trial in a reasonable time (by setting 18 and 30-month presumptive ceiling on criminal cases), to be felt in our criminal justice system.  It has threatened to derail organized crime cases in Quebec as well as numerous first-degree murder charges across the country, some of which have already being stayed because of unreasonable delay. You can sense the panic coming from provincial governments who are suddenly springing into action.  Yesterday Ontario  announced bail reforms and plans to take steps to unclog the courts by investing $25 million to appoint new judges, hire prosecutors and court staff. Quebec’s Justice Minister, Stéphanie Vallée, followed suit today by promising “tens of millions of dollars” to introduce similar measures, though she did not provide an exact figure.  It appears the top court’s call to action is working.

                  However, Keenan Sprague writes on Twitter that as laudable as the SCC ruling was, it might carry unintended consequences for the civil justice system.

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                  Tips for dealing with self-represented litigants

                  By Carolynne Burkholder-James December 2 2016 2 December 2016

                     

                    The number of people representing themselves in family and civil court has dramatically increased over the last few years throughout Canada. For example, an Alberta study in 2012 found that more than half of family law files involved a self-represented litigant.

                    Self-represented litigants pose a challenge for lawyers, their clients and the judicial system in general. Here are some tips on how to deal with them.

                    Not all self-represented litigants are the same

                    Lawrence Pinsky lawyer at Taylor McCaffrey LLP in Winnipeg, says there are at least two types of self-represented litigants.

                    “First, there are those who can’t afford a lawyer. They are self-reps, not by choice but by no choice,” he says.

                    “Second, there are the self-reps who are self-reps by choice because they feel that one does not need any sort of education or objectivity to be a lawyer or they really want to have their voices heard or they have personality disorders,” says Pinsky. 

                    “I don’t think it’s fair to lump both of those groups together,” he adds.

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                    Protecting the non-default position on gender identity

                    By CBA/ABC National December 2 2016 2 December 2016

                      If you’re cis-gendered, chances are that somebody in the past 10 years has had to explain that term to you – and chances are equally good that you asked why the term was necessary, because to embody the gender you’re born with is generally the default human condition. It’s all those other people who are living hyphenated lives.

                      That may be true, but it’s just as true that the cis-gendered mayn’t have the first clue of how difficult life can be when you’re not the default, and the law doesn’t protect your difference.

                      The Nunavut Branch of the CBA, along with the Association’s Sexual Orientation and Gender Identity Community Forum, have written to the Nunavut government asking that it amend the territory’s Human Rights Act to include both gender identity and gender expression as prohibited grounds of discrimination.

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                      Supporting asylum seekers in South Africa

                      By Emelie Kozak December 2 2016 2 December 2016

                        It was a Monday morning and I knew the waiting room of our small legal clinic would be packed with new arrivals to South Africa. Most were from Burundi and the Democratic Republic of Congo, having arrived on foot or as stowaways in transport trucks, travelling for days or weeks at a time to reach safety. As they registered at the front desk, they were asked to explain in a few words why they had fled their home countries. The responses were often similar: “War.” “Insecurity.” “I opposed the government and was afraid of being killed.”

                        For the first six months of 2016, I worked in Durban for the Refugee and Migrant Rights Programme of Lawyers for Human Rights, a non-governmental organization with offices throughout South Africa. With a staff of less than ten people, the Durban office assists hundreds of asylum seekers and refugees a year. These are people, like you or me, who had no choice but to leave their homes, their families and their lives behind because the threat of arbitrary detention, torture, forced recruitment, sexual violence, or even death, was too great. They are in desperate need of legal advice as they join the nearly one million people attempting to navigate South Africa’s asylum seeker process.

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                        Three legal pitfalls for Trans Mountain to avoid the fate of Northern Gateway

                        By Supriya Tandan December 1 2016 1 December 2016

                           

                          Kinder Morgan’s Trans Mountain pipeline may have gotten the nod from Ottawa. But proponents would be wise to draw some legal lessons from the dismissal of Enbridge’s proposed Northern Gateway Project. In May 2016, the National Energy Board reported seven court challenges to the Trans Mountain project from environmental groups, municipalities and indigenous communities. The Trans Mountain project may affect different communities and landscapes than Northern Gateway but it is hardly immune to threats that ultimately killed the Enbridge proposal.

                          For starters, the Northern Gateway project was halted due to an improper use of an equivalency agreement between the Government of British Columbia and the National Energy Board. In its decision, the BC Supreme Court held that while the province could rely on a federal environmental assessment, it still had to issue its’ own Environmental Assessment Certificate. As Roy Millen, Sandy Carpenter and Peter Hogg pointed out at the time, the court effectively was telling the B.C. government that it could impose its own conditions:

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