The Power of Perspectives

The Canadian Bar Association

National Blog

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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        In the Venn diagram of statehood, Canada exists in the overlap

        By CBA/ABC National October 28 2016 28 October 2016

          Every belief system – political, religious, cultural – is a consensus, a discrete entity that doesn’t interact with any other, says Dr. Yvon Pichette, calling extensively on the work of the philosopher John Rawls.

          In order for people to live together in society without fighting and killing each other, we have to create areas of overlapping consensus, which forms the public sphere of the country, while the remainder of those entities stay in the private sphere. To be Canadian then is to accept the parts that overlap, says Pichette, a Chaplain of the Canadian Armed Forces who is also a university instructor on the topic of ethics. For example, broadly speaking Canadians must act according to the Charter of Rights and Freedoms.

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          The CBA supports family reunification as an immigration priority

          By Katya Hodge October 27 2016 27 October 2016

            In an appearance before the Commons Citizenship and Immigration Committee on Oct. 27, the CBA’s Immigration Law Section expressed its support for the principle of family reunification as an objective of the Immigration and Refugee Protection Act. The CBA recognizes the economic, social and cultural benefits of family reunification and agrees that the government should make it a priority.

             

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            Reshaping refugee policy in South Africa

            By Katelyn Smith October 27 2016 27 October 2016

               

              The dismantling of apartheid in 1994 sparked an era of euphoria in South Africa. Within two years, the country had adopted one of the world's most progressively drafted constitutions to date, and a complete overhaul of legislation and policy followed in its wake. In 1998, the Refugees Act came into force, lending further evidence to South Africa's commitment to the advancement of human rights and freedoms. Celebrated for exceeding international standards, the new law expanded the definition of a refugee beyond the 1951 Refugee Convention and its 1967 Protocol to include individuals fleeing "events seriously disturbing or disrupting the public order." It explicitly included gender and sexual orientation as recognized grounds for persecution, and focused on urban integration rather than encampment of refugees, entitling asylum seekers to legally reside, work, and study in South Africa while awaiting the final adjudication of their claim.

              Two decades on, however, the asylum system is not functioning as intended. While the legislative framework held significant promise, in practice the system was not equipped to handle the sharp rise in asylum applications, pegged by the Department of Home Affairs at nearly 72,000 in 2014, up from 11,000 in 1998. The backlog of asylum claims awaiting finalization in South Africa has been estimated by the UNHCR in the hundreds of thousands, with many individuals sitting in limbo for upwards of 15 years.

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              Artificial intelligence and discriminatory behaviour

              By CBA/ABC National October 27 2016 27 October 2016

                Alex Lane illustrates, generally, how machine learning and privacy can be at odds with one another.

                As machine learning become increasingly powerful, algorithms could conceivably make high confidence predictions without having direct access to your private information. This was already seen to an extent when retailer Target’s predictive algorithm suggested a girl was pregnant and sent her promotional material accordingly - accidentally revealing the secret to her father, but in future it may not even be necessary to have access to any of her personal details to figure it out. In this world, there is no such thing as private information. Given the emphasis that so many put on privacy, the reaction to this is likely to be highly negative.

                In a recent Slaw post, David Canton highlights some interesting privacy challenges emerging as businesses shift toward big data.  Among them:

                If AI reaches conclusions that lead to discriminatory results, is that going to be dealt with by privacy regulators, or human rights regulators, or some combination?

                Stanford University’s One Hundred Year Study on Artificial Intelligence produced a report in September. It had this to say on the topic:

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                Judicial discretion restored

                By Justin Ling October 26 2016 26 October 2016

                   

                  Ottawa’s federal victim surcharge, also described as a “tax on broken souls,” is finally facing reform.

                  The surcharge was an automatic levy placed on certain offenders, aimed at funding victim services and support systems in the criminal justice realm.

                  But when the Harper government expanded that system in 2014, many criminal justice lawyers worried that things had been thrown out of whack.

                  Previously, judges could choose to waive the surcharge. Under the 2014 changes, it became mandatory. The charge could ding the offender for as much as 30 per cent of their fine, or $200 per offence.

                  Judges across the country balked at the charge. Ottawa contended that it would not serve as a further form of punishment, because offenders could work off the surcharge in fine repayment programs. But the federal government neglected to inform the provinces, several of whom do not have fine repayment programs, or which have programs that would not accommodate the surcharge.

                  What’s more, the victim surcharge could be slapped on offenders in addition to restitution charges.

                  Now current Justice Minister Jody Wilson-Raybould is tinkering with the system to ensure that it wouldn’t double-penalize offenders.

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                  The Kigali Agreement: Finally, an enforceable climate deal

                  By Supriya Tandan October 25 2016 25 October 2016

                    Only 12 days after confirmation that the Paris Agreement will come into effect, a smaller but no less significant climate agreement was brokered in Kigali, Rwanda. The Kigali Agreement is an amendment to the Montreal Protocol, which was initially brokered to help patch up the ozone layer, and considered among one of the most effective environmental agreements in history. A creative addition to the Montreal Protocol was, in part, an initiative of U.S. President Barack Obama to bypass the U.S. Senate and make some progress on his climate change agenda.

                    The Kigali amendments introduce limits to Hydrofluorocarbons (HFC) emissions, a potent greenhouse gas, by using a “common but differentiated responsibility” approach :

                    “The principle of CBDR as applied to international environmental treaties has two elements: it entitles, or possibly requires, all concerned States to participate in international response measures aimed at addressing environmental problems. Furthermore, it leads to the adoption and implementation of different commitments for States, taking into account their diverse situations, circumstances and capacities, their historical contribution to a problem, as well as their future development needs”

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                    CETA and ISDS: A descredited mechanism

                    By CBA/ABC National October 24 2016 24 October 2016

                       

                      Canada's long-awaited trade deal with the European Union is far from the sure thing we thought it was. Last week International Trade Minister Chrystia Freeland walked out on talks complaining that that the EU “is incapable of reaching an agreement.”  Then there was hope again, followed by an ultimatum from the EU to Belgium’s government to decide whether it will agree to sign.

                      The main obstacle to the deal is the private arbitration mechanism, or investor-state dispute settlement (ISDS), which allows companies to sue national governments where for interfering in trade, matters (there is a clause that has been added reaffirming the “right to regulate” in order “to achieve legitimate policy objectives”)

                      Tyler Cowen has a piece taking on the critics of ISDS:

                      Part of the discomfort over dispute-resolution panels is the notion that their private deliberations circumvent the democratic process. But it is a basic feature of most democratic governments that the legislature sets up legal institutions that subsequently act outside of direct democratic control.

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                      The SCC’s stringent test for joint submissions on sentencing

                      By Justin Ling October 21 2016 21 October 2016

                        If you’re going to overturn a joint submission on sentencing, you better have a darn good reason.

                        That’s the takeaway from the Friday morning ruling from the Supreme Court, which has set new precedent in how judges should treat plea bargains.

                        In R. v. Anthony-Cook, a 28-year-old man was charged with manslaughter. He pleaded guilty, confessing to punching a man outside a B.C. homeless shelter. The man fell, hitting his head off the pavement, and died.

                        When Matthew Anthony-Cook appeared in court to enter his plea, his counsel and the Crown had already come to an agreement — 18 months in custody, no probation.

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                        The time to reform the Youth Criminal Justice Act is now

                        By Rebecca Bromwich October 21 2016 21 October 2016

                          October 19 marked the 9th anniversary of Ashley Smith’s death in Corrections custody, whose tragic story I wrote about a year ago.  Smith died in solitary confinement at age 19 in an adult prison after having been convicted with a series of offences in relation to disciplinary infractions while in youth custody.  She was first imprisoned for the offence of throwing apples.

                          The verdict in the 2013 inquest into her death ruled it to be a homicide.  She died from a caustic combination of administration of justice sentences and correctional processes that excluded her and violated her rights progressively and unremittingly. I joined many others in calling for action on Canada’s problems with solitary confinement.  I also argued for a rethink of how youth criminal justice law is being deployed against girls.  

                          In the ensuing 12 months, much has changed, but these problems have not been solved.  We need to redouble our efforts to ensure changes to conditions of custody and the Youth Criminal Justice Act are made so that deaths like hers become less likely to occur.

                          October 19th also marks the first anniversary of the Trudeau governments election win. Politicians are again finally talking about solitary confinement and justice issues in general. Prime Minister Justin Trudeau made direct reference to the Smith case and the need to change correctional practices in the letter to Justice Minister Jody Wilson-Raybould in November 2015

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