The Power of Perspectives

The Canadian Bar Association

CBA/ABC National

Charter rights

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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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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