The Power of Perspectives

The Canadian Bar Association

Beverley Spencer


Another big shift

By Beverley Spencer October 1, 2013 1 October 2013

When we talk about the forces disrupting traditional legal practice, there’s a tendency to point to technology and the rise of new rivals ranging from legal process outsourcers to alternative business structures.

We don’t really think about how new patterns of immigration are going to change how legal services are provided.  But according to the authors of a provocative new book on Canada’s changing demographic base, perhaps we should.

John Ibbitson and Darrell Bricker were at the CBA Legal Conference in Saskatoon this summer talking about their new book, The Big Shift, which examines how demographic changes are affecting business, policy-making and politics. When senior editor Yves Faguy caught up with them, they elaborated on the potential impact on the legal profession (see the video online.)

As Canada’s immigration mix shifts toward Asia and the Pacific, there are repercussions for everything from criminal justice policy to marketing milk, they argue. These new immigrants are culturally and economically more conservative in values; they worry more about crime, which is why the Conservatives’ tough-on-crime agenda resonates with immigrant voters in the suburbs that ring Toronto. It’s also why everyone should consider the business implications of those cultural differences.

Just as dairy farmers will have to adapt to a growing Asian market that sees milk as an ingredient, not a beverage, so too will the legal community need to understand who the new consumers of legal services will be in order to tap into this emerging client base.

It’s a daunting prospect to stay on top of new business models, new technology and how the demographic base might be shifting under your feet. We’re already busy enough.

But it illustrates why it’s so important to keep your eyes on the horizon: You’ll never be surprised by something you didn’t see coming.

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Think systemically, act locally

By Beverley Spencer August 20, 2013 20 August 2013

Equal justice is achievable, but it's going to take a commitment from everybody to make it happen, Melina Buckley told the closing lunch of CLC 2013.

She asked everyone in the room to commit to thinking systemically and acting locally to bring about change one step at a time. "Change doesn't have to be overwhelming," she said, but it doesn't happen by simply writing reports.

"I've written many reports in my time and what I know for sure is that reports don't make change; people make change," she said.

Even people who don't practise "people law" usually associated with legal aid can help. "You are all officers of the court and custodians of the justice system. You have privilege because of that and with privilege comes responsibility."

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The hidden barriers to success

By Beverley Spencer August 20, 2013 20 August 2013

Major research studies have identified 10 hidden barriers that exist in every legal organization. Kathleen Nalty, president of Kathleen Nalty Consulting LLC in Denver, presented the following list Monday to a session presented by the CBA’s Equality Committee and the Women Lawyers Forum.

As a group, female and diverse lawyers (including lawyers of colour, LGBT, disabled) have more limited access to career-enhancing opportunities that can make all the difference, such as formal and informal networking:

  • The pool of intelligence that flows through an organization’s internal networks that insiders can use to their advantage is less accessible to these groups.

  • The amount, type and profile of work assignments generate lots of billable hours but is not the high-profile work associated with advancement potential

  • They may have mentors, but they do not get sponsored in the same way that people in the majority do:  We tend to invest at that level in people who are like us.

  • They have less access to training and development.

  • They don’t have substantive contact with clients, including pitches and client meetings.

  • They have less access to decision-makers: They don't have a seat at the table let along have a voice.

  • They are likely to be socially isolated in the organization.

  • They receive receive inadequate feedback and soft evaluation.

  • They are disproportionately denied promotions.

The bottom line, Nalty says: hard work and technical skill are not enough; to be fully successful, lawyers must be able to access these opportunities. At the same time, the individual has responsibility for driving his or her own career and must put him or herself in position to gain access.

As for the cause of these hidden biases, it’s not intentional or even conscious: it’s an “affinity bias,” which Nalty describes as the human tendancy to hang out with people who like us and make us feel comfortable.


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CBA dialogue with the Minister of Justice

By Beverley Spencer August 20, 2013 20 August 2013


Justice Minister Peter MacKay may be only four weeks into his new job, but that didn’t stop CBA members from seeking commitments from him on some of the resolutions passed at Council this weekend. 

Not surprisingly, the minister refrained from making promises this early in the game, but his answers give some indication of his general direction on a number of issues. Here are some examples:

Accommodating Fetal Alcohol Spectrum Disorder (FASD) to improve access to justice:

Council passed a resolution Saturday urging the federal government to amend the Criminal Code and other legislation with respect to the definition of FASD, power to order assessments and FASD as a mitigating factor in sentencing, among other things.

Dan MacRury, a Crown prosecutor from Sydney N.S., asked MacKay whether he would commit to legislative changes “so we can treat people with FASD in a more humane manner in this country.”

The minister replied that the issue is a priority for his department and the federal-provincial territorial working group was bringing forward recommendations in the fall. “I will commit that we will act,” he said.

Harm reduction drug policy

This resolution passed Saturday urges the federal government to use evidence-based medical, social and health practices to address the effects of drug use and adopt legislation and policies that provide opportunities for drug users to access health and social supports rather than subjecting them to criminal sanctions. It also urges permitting the establishment of safe supervised injection sites and treatment programs.

Josh Weinstein, the Winnipeg lawyer who moved the resolution, asked the minister whether the government would adopt evidence-based legislation that takes a harm reduction approach which, he said, saves lives and makes good business sense.

The minister would only say that he could not commit to acting in a certain way; that medical evidence continues to evolve and he is concerned that government “gets it right,” for example by monitoring to ensure that safe injection sites are getting the desired result. “Your comments are duly noted,” he said.

Equality in judicial appointments

This resolution dealt with greater transparency with respect to the number of women and diverse candidates who apply to the Judicial Appointment Committee.

Part of it urges the Minister of Justice to direct the Commissioner for Federal Judicial Affairs to publish annual statistics on the number of women and men and candidates identifying as aboriginal, ethnic, visible minority and other equality seeking groups. The minister was asked whether the federal government would follow the CBA’s lead and ask the CFJA to publish those statistics.

MacKay responded that there is already a lot of statistical data and the more pressing issue is to ensure that “we have fully functioning judicial advisory committees with greater gender balance.” His priorities also include more public education to encourage more women and diverse candidates to apply to expand the pool of applicants.

Denunciation of anti-homosexuality laws and enforcement in Cameroon.

Since 2010, at least 28 natives of Cameroon have been arbitrarily arrested for same-sex conduct; prosecutions resulted in eight convictions. The CBA has joined the international community in urging the Cameroon government to repeal laws prohibiting same-sex conduct and order law enforcement officials to cease arrests and prosecutions under those laws.

The minister was asked whether the federal government would join efforts in Cameroon and whether it would make efforts to secure the safety of athletes and visitors at the Sochi Olympics in Russia.

The minister said the safety of athletes is a public safety issue for the military and it’s on the radar. Foreign Affairs Minister John Baird has already made several strong statements with respect to Russia and Cameroon and Ottawa will continue to “speak truth to the leadership of those countries that continue to slide backwards.”


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Equality in judicial appointments

By Beverley Spencer August 18, 2013 18 August 2013

A resolution designed to address gender balance and diversity on Canadian courts passed Saturday after a brief tussle over the wisdom of asking the minister of justice, in the words of one Council member to “stick his nose in something that he ought not to be doing.” 

The joint resolution, moved by the Women Lawyers Forum, Equality Committee and CCCA Diversity Committee, urged the Minister of Justice to “encourage” judicial advisory committees to submit qualified candidates that reflect the diverse nature of Canada. But Montreal lawyer Simon Potter objected to the paragraph, arguing that the JAC committees are independent of the minister, therefore the CBA can hardly urge him or her to tell them what to do.

Saskatoon lawyer Michelle Ouellette agreed, saying the motion was stronger without that clause. The resolution was withdrawn and Council went on to pass a new version that encourages the justice minister: 

  • to make appointments to judicial advisory committees that reflect Canada’s diverse population, including gender, aboriginal, ethnic, visible minority and other equality-seeking status; 
  • to direct the Commission for Federal Judicial Affairs to publish annual statistics on the number of women and men as well as the number of candidates identifying with the above groups;
  • to make judicial appointments that reflect the diverse nature of the Canadian population.

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