The Power of Perspectives

The Canadian Bar Association

Yves Faguy


NAFTA: Canada and Mexico's prisoners' dilemma

By Yves Faguy February 22, 2017 22 February 2017

NAFTA: Canada and Mexico's prisoners' dilemma


In recent days, we heard Canadian and Mexican officials say that NAFTA should be re-negotiated trilaterally.  Foreign Minister Chrystia Freeland has stated that NAFTA talks must involve Mexico. And former PM Brian Mulroney has warned, “throwing friends and neighbours and allies under the bus is a position for a weak leader.”

That may be easier said than done, given that economic ties between Mexico and Canada, while not negligible, pale in comparison to ties between Canada and the U.S. on the one hand, and the U.S. and Mexico on the other. That can make standing united in the face of U.S. pressure to re-negotiate a little awkward.

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Legal marketplace

Why traditional firms will want re-regulation of the legal industry

By Yves Faguy February 20, 2017 20 February 2017


Last year, Malcolm Mercer wrote about the various regulatory challenges in the U.S. and Canada with respect to innovation in the provision of legal services. He describes how protectionist pressures have put the breaks on any efforts to involve law societies (and the ABA in the U.S.) in facilitating new ways of providing legal services.  Then, casting an eye to the future, Mercer guesses that, ultimately, regulators will be forced to face the music one way or the other:

It seems to me inevitable and proper that new ways of providing legal services will be allowed in unserved and underserved areas. Whether Canadian law societies are up to the challenge of allowing this is unclear. But if they don’t, someone else will.

If encouraging the evolution of the existing practice of law with new forms of capital and expertise is not in the cards, permitting new entrants is the alternative. The question then will be how new entrants should be regulated and by whom.

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Access to justice

How self-represented litigants view the justice system

By Yves Faguy February 17, 2017 17 February 2017


The National Self-Represented Litigants Project has released its report for 2015-16 tracking trends among the SRL population, including data about income:

We continue to see the majority of those representing themselves reporting lower income levels below $50,000 with the majority below $30,000. In the latest sampling, 51% state that their income is under $30,000 (in the 2013 Study this figure was 40%, and in the 2014-15 Intake Report it was 45%).

The next largest group (15%) report annual income of between $50,000- $75,000, followed closely by those reporting income of $30,000-$50,000 (1%). This also closely resembles the data reported in both the 2013 Study and the 2014-15 Intake Report.

Also consistent with earlier reporting, 8% of respondents (6% in both the 2013 Study and the 2014-15 Intake Report) report earning more than $100,000. As income rises, so does the likelihood that the respondent previously retained a lawyer for this matter. One respondent in this sample group reported having spent more than $100,000 on legal fees before becoming self-represented.

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Charter law

Improving the Court Challenges Program

By Yves Faguy February 16, 2017 16 February 2017


LĂ©onid Sirota sizes up the reinstated Court Challenges Program and reiterates his concern that “choosing to fund court litigation based on language and equality rights,” Parliament is in fact saying that it values those right over constitutionally protected rights.

Nicolas Hay acknowledges the argument, but writes that a well designed program still has merit. He cites the Canadian Human Rights Tribunal case upholding a discrimination complaint against the federal government by failing to provide an adequate level of child welfare on First Nations reserves, as the type of challenge that requires a financing program:

I wholeheartedly agree: privileging some rights over others can have serious implications for federalism, and a Program that treated all rights equally would be more appropriate.

The Program is undoubtedly worth saving if it were adjusted to include the changes I have outlined so far: a more accountable selection process; a more robust method of allocating subsidies; and an expansion to include all Charter rights...

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The judiciary

Appeals court to weigh Trump executive order

By Yves Faguy February 7, 2017 7 February 2017


The Ninth Circuit Court of Appeals is hearing the challenge to U.S. President Donald Trump’s ban today. He has received plenty of pushback for singling out a a "so-called" federal judge in a tweet for blocking his immigration order.

Will Baude considers the difference between executive official criticizing a court’s decision and it criticizing its authority:

If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.

Yves Boisvert addresses the independence of U.S. courts:

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