The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Criminal justice

The trial is disappearing

By Yves Faguy May 1, 2017 1 May 2017


Fair trials are under threat around the world. That’s the message of a recent report by Fair Trials, an international human rights organization that advocates for fair trial rights, and global law firm Freshfields. The reason is an increase in plea bargaining deals, and trial waiver systems, which are removing procedural protections for many accused, a phenomenon the international community has failed to address:

Trial waiver systems – defined for the purpose of this report as creating “a process not prohibited by law under which criminal defendants agree to accept guilt and/or cooperate with the investigative authority in exchange for some benefit from the state, most commonly in the form of reduced charges and/or lower sentences” – have the potential to enhance human rights protection in criminal proceedings due largely to the removal of the burdens which full trial procedures impose on criminal justice systems. Trial waiver systems can provide a solution to endemic case backlogs that contribute to excessive pre-trial detention, by reducing the time and resources necessary to adjudicate cases. These systems can also be employed, for example, to combat corruption and complex criminal networks, to reduce prison sentences and the over-reliance on incarceration and to improve the protection of the rights of victims.

In addition to these benefits, however, human rights and rule of law concerns can also result from the decreasing incidence of full trials as the means of administering criminal justice around the world. Trial waiver systems usually substitute confessions and waivers of procedural rights in place of the procedural and evidentiary rigours of the trial, removing many of the key points at which police and prosecutorial activity is made public and scrutinised. This lowered threshold of scrutiny can exacerbate and reduce accountability for human rights abuses that occur during arrest and the pre-trial period. It can also unsettle the balance of power between actors in the criminal justice system and overly incentivise the use of criminal sanctions to address social problems, with potentially far-ranging impacts on the rule of law.

The report makes the case for the enhancement of certain safeguards such as manadatory access to a lawyer, more scrutiny of the prosecution’s case, added judicial scrutiny, and better data collection to get a better record of the negotiations.

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Climate law

Trump and the Paris Climate Accord: Should I stay or should I go?

By Yves Faguy April 28, 2017 28 April 2017

Trump and the Paris Climate Accord: Should I stay or should I go?


From Bloomberg, we’re told that advisors to U.S. President Donald Trump are now at odds over whether to pull out of the Paris Climate-Change Accord or not.  If there is any consensus at all, it appears to be that the obligations imposed by the treaty are hardly onerous, and mostly “process-oriented:”

But there are potential domestic legal implications of staying in the deal anyway, representatives from the White House counsel’s office told the group. There is some risk that if the U.S. stays in the agreement and doesn’t take actions to cut emissions, it could surface in legal challenges to Trump’s moves to roll back environmental regulations, they said.

The topic came up yesterday at the CBA Environmental, Energy & Resources Law Summit in Montreal. Seth Davis of the Elias Group in New York reminded the audience that the accord was never submitted to the Senate as a treaty for ratification because there is no way the Upper Chamber would have approved it. He offered three explanations why Trump has yet to carry out his promise to cancel the agreement.

The first – corroborated by the Bloomberg report – is that U.S. Secretary of State Rex Tillerson is forcefully arguing that the U.S. should keep its seat at the table. “Remember, this is someone coming from Exxon Mobil,” said Davis of the former CEO.  “He has some understanding of the art of diplomacy.” It’s also worth noting that Exxon Mobil has endorsed the pack, along with other major energy producers, such as Royal Dutch Shell. Amazingly, the head of the Environmental Protection Agency Scott Pruitt wants the U.S. to pull out.

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The trouble with ending NAFTA: No survival clause

By Yves Faguy April 27, 2017 27 April 2017


Amid the posturing and talk of issuing an executive order to pull the U.S. out of NAFTA – but not just yet Carlos Alvarado reminds us of one major reason for the Trump administration to tread carefully.  NAFTA has no survival clause, which is problematic for existing foreign investors seeking protection through international arbitration:

The U.S. is the biggest investor in Latin America and the Caribbean, with total Foreign Direct Investment (“FDI”) of US $404 billion in 2014 (compared to only US $60 billion of investment from Canada), and Mexico is one of the biggest recipients of such investment. From 1999 to early 2016, Mexico received a total of US $436 billion of FDI and almost US $200 billion (45%) of such FDI inflows came from the U.S.


Unluckily for NAFTA investors, NAFTA is one of the 3% of investment treaties that do not contain a survival clause. Chapter Eleven’s effects would not be extended after the termination or withdrawal of the treaty. Therefore, six months after serving notice of withdrawal on Canada and Mexico, the U.S. would no longer be part of NAFTA and U.S. FDI in Mexico would no longer be protected under Chapter Eleven.

As soon as any U.S. withdrawal from NAFTA became effective, all the U.S. existing investments in Mexico (around US $200 billion), together with all new FDI inflows coming from the U.S. to Mexico, would no longer enjoy the substantive protections granted by NAFTA (e.g. national treatment, most favoured nation treatment, minimum standard of treatment, fair and equitable treatment, full protection and security, non-discriminatory treatment, no expropriation without compensation). Moreover, U.S. investors would no longer have access to investment treaty arbitration and the international approach therein used against Mexico. In the event of any violation by the host State of applicable Mexican legislation, the affected investor would be obliged to litigate and seek relief from the Mexican courts.


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Constitution 150

Understanding citizenship and why some Charter rights should be extended to non-citizens

By Yves Faguy April 24, 2017 24 April 2017

Understanding citizenship and why some Charter rights should be extended to non-citizens


As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National is featuring opinions by leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ recent conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Y.Y. Brandon Chen, an assistant professor at the University of Ottawa's Faculty of Law, to discuss the meaning of citizenship in Canada and whether the Charter should do more for non-citizen residents.

CBA National: We see governments around the world taking steps to tighten the boundaries of citizenship.  There’s been some evidence of that in Canada too. What is behind that?

Y.Y. Brandon Chen:  In many countries, because of growing anti-immigrant pressure, citizenship is becoming harder to obtain and easier to lose. Several factors have contributed to such an anti-immigrant push. First, the number of forcibly displaced people worldwide has been on the rise. As some of these forced migrants sought protection in high-income countries such as Canada, it fuels a narrative that our society is under siege.

Second, since 9/11, countries around the world have increasingly viewed international migration through the lens of national security. Meanwhile, for many citizens of receiving countries who have been negatively affected by neoliberal austerity measures, the inflow of newcomers raises the spectre of further diminished social resources and economic opportunities. Together, these forces cast non-nationals as a threat that society must guard against rather than embrace.

Third, many governments have discovered that they stand to gain by not extending citizenship to newcomers, at least not right away. In Canada, for example, governments’ denial of legal protection or benefits to non-citizens is largely condoned. This in turn transforms non-citizens into a pool of “flexible” workers that can be fully exploited by employers when the demand for labour is high and yet readily disposable when the demand sags.

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Criminal justice

Canada's Criminal Code needs a "different perspective"

By Yves Faguy April 19, 2017 19 April 2017


Lisa Silver has an interesting post up with some ideas on modernizing the Criminal Code.  She welcomes the repeal of invalid “zombie” provisions that the government is looking to remove, but is less impressed with recently proposed amendments to the impaired driving offences – “Charter unfriendly”, in her view – that are part of the government’s move to legalize pot by next year. She laments that the government is taking a piecemeal approach to the Code’s modernization and makes a pitch for a grander makeover:

What needs to be done instead of modernization for the sake of modernizing is a thoughtful and deliberate consideration of the whole of the Code. What needs to be done is a rethinking of our criminal law not as a jumble of sections prohibited conduct but as a unified reflection of societal values. This includes all of what the criminal law stands for such as the integrity of the administration of justice itself.  This requires, as suggested by the Supreme Court of Canada in Jordan, a cultural change. Not just a “new look” but a different perspective. To do this, instead of taking a page from the Code, let’s learn from our case law and use the principled or contextual approach to change. Real change is only possible if we design laws holistically mindful of the law as a mere part of the larger social fabric. Laws can act as visual markers, creating and defining social space in a community. Successful laws will therefore integrate with society, be flexible to societal needs and frame societal space. The Criminal Code must therefore be considered as part of the social landscape and be created as a marker of who we are, not as a headstone marking the past. The federal government has an opportunity to do this, let’s hope that in the next step to rethinking the Criminal Code, they will fulfill their promise and do just that.

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