The Power of Perspectives

The Canadian Bar Association

CBA/ABC National

CBA influence

Protecting the non-default position on gender identity

By CBA/ABC National December 2, 2016 2 December 2016

If you’re cis-gendered, chances are that somebody in the past 10 years has had to explain that term to you – and chances are equally good that you asked why the term was necessary, because to embody the gender you’re born with is generally the default human condition. It’s all those other people who are living hyphenated lives.

That may be true, but it’s just as true that the cis-gendered mayn’t have the first clue of how difficult life can be when you’re not the default, and the law doesn’t protect your difference.

The Nunavut Branch of the CBA, along with the Association’s Sexual Orientation and Gender Identity Community Forum, have written to the Nunavut government asking that it amend the territory’s Human Rights Act to include both gender identity and gender expression as prohibited grounds of discrimination.

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CBA influence

Oversight without access to information

By CBA/ABC National November 29, 2016 29 November 2016

Do you need a mechanism to rein in the watchers watching the watchers?

Bill C-22, currently making its way through Parliament, seems to put a few too many constraints on a proposed Parliamentary committee that would provide oversight of all national security activity, suggests a CBA submission.

In its 2015 submission on the previous government’s Bill C-51, the CBA recommended the creation of a Parliamentary committee “with access to secret information.” But it will not recommend passage of Bill C-22 without important amendments first being made.

Bill C-22 contains a number of mechanisms that would actually prevent the committee from carrying out its mandate – by limiting its access to the information it needs, for example, or calling its independence into question. Essentially, the submission suggests, these proscriptions imply a lack of trust in the MPs and Senators who would sit on the committee.

 “Without trust in the members to act responsibly in the national interest, there is little point in forming a Committee,” the submission says. “If there is trust in the members of the Committee, there is no need for unnecessary restrictions that undermine its work and role...”

The CBA’s greatest concern lies with section 16, which would allow Ministers and departments to refuse to provide information on vague national security grounds – an exemption that seems “unnecessary and illogical” because the MPs and Senators that a Minister might prevent from seeing any particular information “have the same lawful authority to see that information as the Minister him or herself.”

The Association’s concerns with this section are severe enough that it would oppose passage of the bill if it is not removed, the submission says.

“Put simply, section 16 would gut the proposed law and preclude the Parliamentary Committee from achieving its objective. It would create a broad and largely standardless ‘out clause’ for Ministers to exempt themselves from the Committee’s disclosure regime.”

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CBA influence

Laws of gravity: Aviation ownership and security

By CBA/ABC National November 28, 2016 28 November 2016

 

Look up in the sky! It’s a plane! Is it Canadian?

That last question is a little harder to answer when it comes to a globalized aviation industry, as the CBA’s Air and Space Law Section notes in its response to the Canada Transportation Act Review Report. The Section’s response deals specifically with Chapter 9 of the report on air transport, and addresses issues of economic policy, aviation safety and customer complaints.

The Section suggests that economic policy and competition related to air transport should be the purview of the Canada Transportation Agency (CTA), not Transport Canada. Canada appears to be the only Chicago Convention signatory-nation where economic policy matters are addressed by the same regulator that oversees aviation security.

Recommendation 4 in the Air Transport chapter, which advises the government to allow foreigners to own up to 49 per cent of an air carrier, up from the current 25 per cent, raises the question of de facto control vs. de jure control. The Section notes that any time the Minister has previously allowed a foreign company 49 per cent ownership, this has, “notwithstanding regulatory decisions to the contrary, resulted in clear de facto control residing outside of the Canadian jurisdiction. For these reasons, should this recommendation be adopted, changes would also be necessary to the Act insofar as the de facto control provisions are concerned.”

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The Supreme Court

SCC protects solicitor-client and litigation privilege

By CBA/ABC National November 25, 2016 25 November 2016

The Supreme Court handed down a pair of decisions today on solicitor-client and litigation privilege.  The CBA intervened in both cases.

In Alberta (Info. and Priv. Comm.) v. Univ. of Calgary, the Court held that Alberta’s privacy commissioner cannot order the production  of records over which an organization has claimed to be protected by solicitor-client privilege.  The case turned on s. 56 (3) of the province’s Freedom of Information and Protection of Privacy Ac. Justice Suzanne Côté wrote:

As this Court held in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. In the present case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege. It is well established that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection. Therefore, I am of the view that solicitor-client privilege is not captured by the expression “privilege[s] of the law of evidence”. Moreover, a reading of s. 56(3) in the context of the statute as a whole also supports the conclusion that the legislature did not intend to set aside solicitor-client privilege. Further, even if s. 56(3) could be construed as authorizing the Commissioner to review documents over which privilege is claimed, this was not an appropriate case in which to order production of the documents for review. Consequently, I would dismiss the appeal.

Representing the CBA in this matter were former CBA president Michele Hollins and Jim Lebo of McLennan Ross LLP, both of Calgary.

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CBA influence

Housekeeping items: Following up on promises for MAID

By CBA/ABC National November 25, 2016 25 November 2016

In June, the Liberals’ Bill C-14 on medical assistance in dying received royal assent despite widespread criticism that it was more restrictive than the Supreme Court’s ruling in Carter had said it need be. The saving grace was the government’s promise that it would carry out further study “in the context of mature minors, people for whom mental illness is the sole underlying condition and advance requests” within six months of the bill passing into law.

With the six-month deadline approaching and “planning likely underway” to begin these studies, CBA President René Basque wrote to Justice Minister Jody Wilson-Raybould and Health Minister Jane Philpott to lay out the CBA’s position on these issues.

At the CBA Legal Conference in Ottawa this past August, Council passed three resolutions proposed by the Association’s End of Life Working Group meant to advance the discussion on medical assistance in dying on the issues the Liberals have promised to revisit.

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