The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Immigration

Why the Preclearance Act needs to be be significantly changed

By Yves Faguy May 18, 2017 18 May 2017

 

Calgary lawyer Michael Greene from the CBA’s Immigration Law Section appeared this week before the House Standing Committee on Public Safety and National Security to give recommendations on Bill C-23 on  the preclearance of persons and goods in Canada and the United States.  The submission is here, and CBA National reported on it last month. We caught up with Greene and asked him to explain why the CBA Sections do not support Bill C-23 in its current form.  He also shares his views on some of the challenges involved in changing the legislation.

Read More
Human rights

CBA appearance on transgender bill

By Yves Faguy May 15, 2017 15 May 2017

CBA appearance on transgender bill

 

Last week, Marie Laure Leclercq, lawyer with De Grandpr√© Chait, and Siobhan O’Brien, associate with Hicks Morley, appeared on behalf of the CBA before the Senate Legal and Constitutional Affairs Committee. The CBA believes the bill will advance equality in Canada, and provide tangible protections for transgender people from discrimination and hate crimes. 

It encouraged Senators to pass Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, without further amendment. CBA National reported in March on how the Senate has been delaying and frustrating passage of the act. The CBA’s submission reads:

Bill C-16 represents a long overdue step to include these protections expressly in areas of federal jurisdiction. This is not a bold move, nor should it be controversial. The Canadian Human Rights Commission takes the position that the Commission, the Tribunal and the courts view gender identity and gender expression as protected by the Canadian Human Rights Act. Statutory protections on one or both of these grounds are already available in all but one territory (Yukon). In all jurisdictions, protections for transgender persons are implicit in the law.

It’s worth noting that the Yukon government introduced a trans rights bill in its legislature last month.  Two bills in New Brunswick aimed at expanding trans rights passed final reading last month.

Read More
Environmental law

Carta de Foresta: A guide for protecting the commons and individual rights

By Yves Faguy May 15, 2017 15 May 2017

Carta de Foresta: A guide for protecting the commons and individual rights

 

As far as medieval English Charters go, Magna Carta, famous for curbing royal authority and arbitrary use of power, is unquestionably the most celebrated. Lesser known today, but no less successful in its own time, is the Great Charter’s younger cousin, Carta de Foresta.

Also known as the Charter of the Forest of 1217, it was radically in its impact, in that it returned to private ownership vast areas of forest that had been expropriated by England’s kings, all the way back to William the Conqueror.  It also gave a right of common access to royal private lands.

It was issued by the nine-year old King Henry III in 1217, and reaffirmed many times thereafter over the next eight centuries, often in tandem with Magna Carta.  Carta de Foresta remained in force as a statute in England until it was replaced by the superbly named Wild Creatures and Forest Laws Act in 1971.

Read More
Securities

Quebec Court of Appeal: The national securities regulator project is unconstitutional

By Yves Faguy May 10, 2017 10 May 2017

Quebec Court of Appeal: The national securities regulator project is unconstitutional

 

The Court of Appeal of Quebec has ruled that the plan for a new national securities regulator is unconstitutional.  The plan called for a new regulatory regime for capital markets, including a national regulator, a uniform act  that each participating province and territory would adopt, and a federal act aimed at ensuring the stability of capital markets.

The court ruled that the proposed mechanism for amending the Uniform Act violates the parliamentary sovereignty of the provinces. That's because the provinces' power to legislate in this area would require  the approval of an external body, the Council of Ministers, which is prohibited. Also problematic is the Council’s voting mechanisms for adopting regulations under the federal law, as they would essentially grant the an effective veto to the provinces over federal initiatives targeting systemic risks that could pose a serious risk to Canada's financial system.

Read More
The Charter

Using the notwithstanding clause: Too easy?

By Yves Faguy May 9, 2017 9 May 2017

Using the notwithstanding clause: Too easy?

 

Every so often, one of Canada’s favourite constitutional pastimes – debating the frequently decried, sometimes beloved, section 33 of Canadian Charter of Rights and Freedoms – comes back in vogue.

Last week, Andrew Coyne argued against governments in Canada using the notwithstanding clause to override certain Charter provisions.  Though it has rarely been invoked over the last 35 years – and never by Ottawa  – his main objection is that it dilutes the rights and freedoms promised by our constitution. And he worries about repeated use becoming easier and easier with each transgression: 

Notwithstanding is not the emergency safety valve its advocates pretend, but a bottle marked “drink me”: its existence is a standing invitation to use it. Even in repose it is a silent rebuke to the Charter, for it suggests that its guarantees are not guarantees at all, but merely guidelines, contingent at all times on the mood of the government of the day.

L√©onid Sirota also took on the issue, jumping off a recent Saskatchewan decision, which found that the province’s funding of non-Catholic students in Catholic schools violated religious liberty and equality guarantees.

Read More