The Power of Perspectives

The Canadian Bar Association

National Blog

It’s time Canada’s courts joined the 21st Century

By Kim Covert February 1 2017 1 February 2017


    It’s an idea whose time came some time ago – and then it had to wait around for someone in charge to notice.

    But now the Courts Administration Service has announced an initiative to modernize its technological infrastructure to create a fully electronic-based system for the Federal Court, Tax Court and Federal Court of Appeal, and the CBA’s Federal Courts and Tax Court bench and bar committee couldn’t be more pleased, calling it a move that is both worthwhile and necessary.

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    It’s a wrap! The rest of what we did in 2016

    By Kim Covert January 31 2017 31 January 2017


      2016 was a banner year for CBA advocacy – we broke the previous record for submissions in a single year by 15, with a total of 97.

      And 19 of those submissions came in late November and December ahead of the Christmas break, as CBA National Sections and Forums and the Legislation and Law Reform people scrambled to meet deadlines and respond to consultations even after Parliament rose for the holidays.

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      The executive order and data protection

      By Yves Faguy January 31 2017 31 January 2017

         

        U.S. President Donald Trump’s executive order on “Enhancing Public Safety” has generated a lot of concern about it eliminating privacy protections enjoyed by foreigners, including Canadians, in the U.S. It would also affect much of the internet traffic in Canada that gets routed through the U.S. (see video above); Michael Geist writes that it’s clear that the personal information of Canadians will not be protected under the US Privacy Act.

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        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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