The Power of Perspectives

The Canadian Bar Association

CBA/ABC National

Ethics

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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Technology

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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Trade

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 judiciary

Vacancies filled and changes to Judicial Advisory Committees announced

By CBA/ABC National October 20, 2016 20 October 2016

 

Justice Minister Jody Wilson-Raybould filled 24 judicial vacancies and announced some changes to the judicial appointment process with a view to improving transparency and accountability.  Changes have been made to the Judicial Advisory Committees responsible for assessing the qualifications for applicants.

From now on, each committee will consist of seven members representing the bench, the bar and the general public, four of whom are nominated by entities in the province or territory in question. 

  • a nominee of the provincial or territorial law society;
  • a nominee of the provincial or territorial branch of the Canadian Bar Association;
  • a judge nominated by the Chief Justice of the province or by the senior judge of the territory;
  • a nominee of the provincial Attorney General or territorial Minister of Justice; and
  • three nominees of the Government representing the general public.

There will no longer be a law-enforcement member sitting on the committees – a change the previous Conservative government had introduced to the recommendation panels when they were in power.

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Climate litigation

Norway's turn to face a climate lawsuit

By CBA/ABC National October 19, 2016 19 October 2016

In June, Norway became the first developed country to ratify the Paris Agreement. Now environmental groups are suing its government for violating the climate treaty by forging ahead on oil exploration plans in the Barents Sea. The fight centers on Norway’s decision in May 2016 to award 10 new drilling licenses to oil companies. That decision, the plaintiffs say, goes against Article 112 of Norway’s Constitution, which reads:

Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.

The legal writ, published online, acknowledges that there is little precedent in the Norway for invalidating decisions under Article 112.  Nonetheless, here’s how the plaintiffs intend to argue their case:

The presumption principle, which calls for Norwegian law to be interpreted in accordance with international law, makes international law rules and fundamental principles of international law a part of our national legal system. This means that the Climate Convention, the Paris Agreement and international human rights and environmental principles are relevant sources of law when the limitations in Article 112 of the Constitution are to be determined.

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