The Power of Perspectives

The Canadian Bar Association

National Blog

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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                  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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