The Power of Perspectives

The Canadian Bar Association

National Blog

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 Beagle.ai, 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 nationalmagazine.ca)

        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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            Advancing gender equality in the workplace

            By Mariane Gravelle November 4 2016 4 November 2016

              Wednesday evening, capping an unseasonably warm Fall day in Ottawa, was an event hosted by the National Association of Women and the Law (NAWL) to formally launch their new bilingual, free, web-based Feminist Law Reform 101 course. The evening provided its many attendees with the opportunity to connect with like-minded people while offering them a look at this terrific new resource.  

              In attendance at the event were newly-appointed Senator Kim Pate, Shirley E. Greenberg – who attended law school in the 1970s and has long been a trailblazer for the Women’s Rights movement – and The Honourable Patti Hajdu, Federal Minister of Status of Women. Both Greenberg and Hajdu addressed the crowd and recounted their – very inspiring – experiences of working in predominantly masculine fields. While Greenberg light-heartedly shared her hope that there were budding “rich women” present in the crowd who could, one day, finance Women’s Rights initiatives, Hajdu cautioned the audience that the fight for equality wasn’t yet over. She told of a few instances in which she and her female colleagues on the Hill experienced some differential treatment that was likely due to their gender. Though she vehemently assured the audience that her lived experiences did not stem from a place of unkindness, she did use those examples to highlight society’s underlying gender inequalities.

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              When newspapers call judges traitors

              By Yves Faguy November 4 2016 4 November 2016

                 

                The London High Court ruling that Parliament must get a say in triggering article 50 has generated plenty of furor, including over this front page headline of the Daily Mail recklessly declaring the judges to be “enemies of the people.”

                Here are some other unsettling headlines from the gutter press.

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                Admitting hearsay evidence

                By Justin Ling November 3 2016 3 November 2016

                   

                  How good is the word of a snitch?

                  That’s the question that the Supreme Court of Canada is wrestling with today, as it hears oral arguments in R. v. Bradshaw.

                  The case could determine how criminal courts deal with the principled exception for hearsay evidence.

                  In this case, police suspected Robert Bradshaw and Roy Thielen in a pair of murders in British Columbia. Police collected evidence on the dual murder plot stemming from a Mr. Big operation run on Thielen, and clandestine audio records used to eavesdrop on conversations between the two men. They also eventually obtained confessions from Thielen.

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                  An initiative that helps families in marital breakdown

                  By CBA/ABC National November 2 2016 2 November 2016

                    Its name doesn’t trip off the tongue and its abbreviation is no catchy acronym, but the Supporting Families Experiencing Separation and Divorce Initiative has been a boon to families in marital breakdown.

                    Established in 2009 as a five-year, $122-million project by Justice Canada, the Initiative was “intended to strengthen the family justice response to the needs of families experiencing separation and divorce by contributing to the continued improvement of access to family justice and by encouraging greater parental compliance with family obligations, notably support and access.”

                    Both the federal and provincial components of the SFI are scheduled to end on March 31, which is why the CBA Family Law Section has written to Justice Minister Jody Wilson-Raybould in a plea to have it renewed with a permanent mandate.

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                    BC Court of Appeal: Benchers "abdicated their responsibility" in TWU decision

                    By CBA/ABC National November 1 2016 1 November 2016

                       

                      The Court of Appeal for British Columbia has decided in favour of Trinity Western University and against the Law Society of BC.

                      The Court is particularly critical of how the LSBC's came to its decision:

                      …we conclude that the Benchers improperly fettered their discretion by binding themselves to adopt the decision of the majority of members on whether “not to approve”. It appears they did so altruistically in the sense of letting “democracy” dictate the result, and letting the members have their say. But in so doing, the Benchers abdicated their duty as an administrative decision-maker to properly balance the objectives of the Legal Profession Act with the Charter rights at stake.

                      The ruling also draws the following conclusions on the balancing of Charter rights:

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                      Exporting Canada's private sponsorship model

                      By Erika Schneidereit November 1 2016 1 November 2016

                        In the midst of the Syrian refugee crisis and demands on national governments to do more, other countries have started looking to the Canadian private sponsorship program as a template from which to design their own schemes. Australia and New Zealand have adopted some form of private sponsorship program over the past several years. The United States is looking at the Canadian model. In July, the United Kingdom also launched its own community sponsorship scheme for refugees.

                        In most developed economies, the resettlement of refugees has traditionally been considered a job for government. In Canada, the federal government plays a key role obviously, but private organizations and groups have been able to fund and sponsor refugees for over three decades. Known as private sponsorship, this process has been garnering considerable attention in recent years both for its distinctiveness (until recently, Canada had the only private sponsorship program in the world) and for its success. Given the positive effects of this program, the United Nations High Commissioner for Refugees has praised the Canadian refugee resettlement model and encouraged the exportation of Canadian-style private sponsorship to other countries.

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                        Hiding behind “locker room talk” and the Canadian legal system

                        By Daniel Del Gobbo November 1 2016 1 November 2016

                          The biggest scandal to rock Donald Trump’s presidential campaign – the now widely-seen video of Trump bragging about committing sexual assault – has inspired a range of reactions across the political spectrum.

                          For some of us, the video confirms what Trump’s record and rhetoric has made clear long ago. He is sexist, misogynist, and violent towards women — an assessment supported by the testimony of over 10 women who have since come forward to report Trump's sexually violent behaviour. For Trump and his supporters, this was “locker room talk” and nothing more. After all, Trump heard much worse from Bill Clinton on the golf course. Voters should dismiss the video because it is the product of a macho man culture in which such comments are pervasive and for which Trump cannot be blamed.

                          Trump has fewer public supporters in Canada than in the U.S., but their attitudes are more popular than many Canadians are prepared to admit. When a reporter recently asked Doug Ford if he still supported Trump, he stated succinctly: "The GOP is wavering. I wouldn't waver." When Ezra Levant was asked the same, he stated further: "Whether or not you’re doing it consciously or just through groupthink, your questions are part of a larger liberal media strategy: demonize real sexual assault victims (including ones the Clintons have admitted assaulting), but magnifying rhetorical flourishes by Trump."

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