The Power of Perspectives

The Canadian Bar Association

Kim Covert

Aboriginal law

Section 35: Unpacking the Crown’s baggage

By Kim Covert May 10, 2016 10 May 2016




The Honour of the Crown was both the theme of and a bone of contention at the sold-out Aboriginal Law Section conference last week in Ottawa – a city which occupies unceded Algonquin territory.

It was a difference perhaps best illustrated by capitalization: the Honour of the Crown was examined as a concept by philosopher and author John Ralston Saul; its historical origins were traced by Chief Justice Beverley McLachlin; Crown lawyers and aboriginal law practitioners on panels last Thursday talked about how it shapes their work. But Louis Riel descendant Jean Telliet and Chief Shining Turtle of the Whitefish River First Nation in Ontario talked about the honour of the Crown – or more to the point, the lack thereof.

Telliet, the last speaker of the morning on a panel discussion titled Fighting with Honour – The Honour of the Crown in the Litigation Context, blew the roof off the packed ballroom following quiet presentations by three government representatives – Nunavut’s deputy Justice Minister; Ontario’s Assistant Deputy Attorney General; and a Crown attorney from B.C. who has spent his career working on aboriginal issues – who talked about cases they’ve seen and how they define the Honour of the Crown in relation to their own work.

Telliet started with Section 35 of the Constitution Act 1982, which she says “was supposed to be the settlement of old and difficult grievances … but it has become a tool” governments use “to go to court and spend hundreds of millions of dollars to prove something at you already know exists.”

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CBA Influence

Don’t have a cow, man: Seeking elasticity in court gowning directives

By Kim Covert February 26, 2016 26 February 2016

Many say pregnancy is a gift. And so it is. A big gift that becomes more expensive and awkward to wrap the bigger it gets.

Thus the maternity-wear conundrum – how much can or should you shell out for clothes that you might wear for three months and then never need again? It’s even more problematic when your job requires a specialized uniform that is not readily or inexpensively available in maternity sizes.

Which brings us to the dilemma faced by a female litigator whose fitted court gown and waistcoat are unwelcoming of her baby bump.

According to a resolution brought forward by the CBA’s Women Lawyers Forum, and passed by Council at the MidWinter meeting in Ottawa, “judges and court staff may take a strict view of required court attire, and may react negatively to any unauthorized variation of the gowning requirements.”

WLF co-chair Heidi Schedler says pregnant litigators have done everything from splitting the back seam of a waistcoat (which gets circulated to others when they need it), to wearing a black cardigan in place of the waistcoat, or skipping the waistcoat altogether.

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Access to information

Making – and unmaking – retroactive law

By Kim Covert January 15, 2016 15 January 2016

In January, the Chair of the National Privacy and Access Law Section wrote to the deputy minister of Justice, the deputy secretary to the cabinet and the secretary of the Treasury Board urging the government “to introduce legislation to repeal the retroactive provisions introduced by Bill C-59, the Economic Action Plan 2015 Act, No. 1. It also recommends that the government take all necessary steps to eliminate the barriers in Bill C-59 that prevent the Information Commissioner from fully discharging her mandate.”

For those needing a refresher, in March 2012, the RCMP received an Access to Information request for information contained in the long-gun registry. In April, the Information Commissioner wrote to the then-Minister of Public Safety reminding him that under law those records could not be destroyed, and the minister responded in May, saying that the RCMP would abide by the right of access contained in the Access to Information Act. And then in October of 2012, the RCMP destroyed most of those records.

In May last year Information Commissioner Suzanne Legault laid out her findings in a special report, just days after the federal government introduced its omnibus Bill C-59, which retroactively rewrote the 2011 Ending the Long-gun Registry Act to usurp the application of the ATIA and make the destruction of the records a legal act.

The Access to Information Act, the letter says, has been held by the Supreme Court to be a “quasi-constitutional law, in part because of the paramountcy provision in section 4(1).”

“The CBA Section is concerned about the retroactive denial of a quasi-constitutional right of access supported by blanket immunity for all officials responsible for the destruction of records during an ongoing investigation under ATIA,” the Section writes. The letter reminds the government of its commitment not to interfere in the work of parliamentary officers, and to enhance the openness of government.

Legault filed a lawsuit against the government in Ontario Superior Court. In December, the newly appointed Attorney General asked for a three-month delay in Information Commissioner of Canada and Bill Clennett v Attorney General of Canada , in order to “consider its position in these proceedings.”

Photo licensed under Creative Commons by kjetikor

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Your career: Tripping up your time trolls

By Kim Covert December 10, 2015 10 December 2015

Your career: Tripping up your time trolls

In the Norweigan fairy tale The Three Billy Goats Gruff, a fearsome troll living under a bridge is outsmarted and defeated by the quicker-witted and more nimble goats.

The trolls that suck away your time at work are likewise easily vanquished, says Andrea Verwey, a Vancouver-based lawyer coach and consultant. Even if, as she says, “Often the troll is you.”

So how do we steal time away fromourselves?

Verwey says there are two main categories of time trolls: those that keep lawyers from getting the work they’ve done down on their time sheet; and those that keep lawyers from getting down to work at all.

Making sure that you record every bit of work you do – those three calls you made from the train on your way to work, or the half-hour you spent on a file after dinner – can add as much as an hour a day to your billings, says Verwey, who was a presenter at the November CBA Leadership Conference for Professional Women in Vancouver.

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Missing and murdered indigenous women inquiry gets the go-ahead

By Kim Covert December 9, 2015 9 December 2015

Days after a throne speech heralding a more transparent and responsive government, the Liberals made good on their election promise to hold an inquiry into the issue of missing and murdered indigenous women.

The inquiry will happen in two phases: in the first, Justice Minister Jody Wilson-Raybould says government will consult victims’ families, aboriginal organizations and front-line workers to determine what the inquiry needs to accomplish. The second phase, the inquiry itself, should be announced in the spring, said Carolyn Bennett, Minister of Indigenous Affairs.

While statistics are hard to come by, in 2014 the RCMP said there were nearly 1,200 documented cases of missing and murdered aboriginal women and girls between 1980 and 2012. A 2015 report from the UN found indigenous women were five times more likely than non-aboriginals to die a violent death.

"The victims deserve justice, their families an opportunity to be heard and to heal. We must work together to put an end to this ongoing tragedy," Prime Minister Justin Trudeau said. The party’s platform put the cost of an inquiry at about $40 million over two years.

Wilson-Raybould said this report won’t simply sit on a shelf. "Doing better requires openness and the ability to listen. We have heard this loudly and clearly, and we have heard that this cannot be just another report," she said.

In a written statement, AFN National Chief Perry Bellegarde welcomed the announcement. "After years of denial and deflection, it is my hope we can make real strides in achieving justice for families and achieving safety and security for all our people.”

The CBA is also happy to finally see action taken on the file. In a 2012 letter to then-Justice Minister Rob Nicholson, and again in a 2013 resolution passed by CBA council, the CBA called on the government to do what it can to end the “intergenerational cycles of violence” against aboriginal women and call an inquiry into the issue. In March 2014, then-Justice Minister Peter MacKay said “the biggest mistake that we could make on (the issue of missing and murdered indigenous women) would be to spend more time studying it.” Current Conservative Leader Rona Ambrose, however, says the Liberal government is doing the right thing.

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