The Power of Perspectives

The Canadian Bar Association

Yves Faguy

The profession

The fight over mandatory CPD: A waste of judicial resources?

By Yves Faguy April 18, 2017 18 April 2017

 

Omar Ha-Redeye struggles to understand why anyone would take on mandatory CPD imposed by his law society as something worthy of a challenge all the way to the Supreme Court of Canada (in Green v Law Society of Manitoba, the top court ruled that law societies can suspend lawyers for not completing their mandatory credits)

Aside from the fact that he was being compelled to do it, I'm not exactly sure what the lawyer was objecting to with mandatory CPD. Granted, many lawyers simply complete it to check off a box. But many more actually benefit from CPD, gaining useful insight into strategy and techniques, obtaining copies of checklists and precedents, or learning about new and emerging areas of law.

Jim Middlemiss thinks he’s missing the broader point:

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Constitution 150

Religious freedoms: How will Canada relate to its minority communities

By Yves Faguy April 18, 2017 18 April 2017

Religious freedoms: How will Canada relate to its minority communities


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 Howard Kislowicz, an assistant professor at UNB Fredericton Faculty of Law, who shares his views on where litigation of religious freedoms may be headed in the coming years.

CBA National: Why are religious freedoms so difficult to balance against other rights recognized under the Charter?

Howard Kislowicz:  Well the main challenge is that the Supreme Court of Canada has said that there’s no hierarchy of rights in the Charter. So there’s no presumption that when an equality right comes into conflict with a religious freedom right that one or the other will win.  The lawyers advising clients can’t give necessarily too sound a prediction just based on the nature of the right. Like all constitutional analysis now, context is everything.

N: So where do the tensions lie within religious rights themselves?

HK: First, you have to read the Charter guarantee in conjunction with other mentions or constitutional protections of religious rights in the constitution. The most obvious one is in the 1867 Constitution Act which gave protection to minority religious communities in terms of having their schooling rights protected. What it generally meant was that in Quebec, Protestant schools would get constitutional protection in most of the province, and then in the other provinces, Catholic schools would get protection. So this idea that Canada is Catholic and Protestant in its constituent parts, is in tension with the more universalistic, more non-denominational guarantees of religious freedom, which are supposed to apply to everybody, regardless of whether they’re one of those two founding groups.

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International law

Was the U.S. strike against Syria legal under international law?

By Yves Faguy April 10, 2017 10 April 2017

Was the U.S. strike against Syria legal under international law?


Noting that U.S. President Trump can invoke no clear authority in international law to use force in response to Syria’s use of chemical weapons, John Bellinger argues that he needs to justify his actions legally all the same:

Although a U.S. military strike cannot be easily justified as self-defense of the United States, it is possible that the United States could argue that the use of force was permissible as an action in collective self-defense of Syria’s neighbors.  Alternatively, it might be better for the Trump Administration to argue that its limited use of force was justified, even if not strictly lawful, under international law based on the specific facts in Syria and that other avenues had been exhausted.   This is the approach the Clinton Administration took when it participated in the NATO bombing campaign in Kosovo in the 1990s, and that the Obama Administration was apparently prepared to take if it had decided to use force against Syria in 2013.

But for Craig Forcese, there are no persuasive legal arguments to be articulated, notably around exceptions of  “humanitarian intervention” or the “responsibility to protect”:

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The profession

SCC: Lawyers can be suspended for not doing CPD

By Yves Faguy March 30, 2017 30 March 2017

SCC: Lawyers can be suspended for not doing CPD

 

The Supreme Court of Canada has ruled that law societies can suspend lawyers for not completing their mandatory continuing professional development.  The top court held that the Law Society of Manitoba should enjoy “considerable latitude” in making rules that are the public interest.

Justice Richard Wagner wrote for the court:

To ensure that those standards have an effect, the Law Society must establish consequences for those who fail to adhere to them. As a practical matter, an unenforced educational standard is not a standard at all, but is merely aspirational.

A suspension is a reasonable way to ensure that lawyers comply with the CPD program’s educational requirements. Its purpose relates to compliance, not to punishment or professional competence. Other consequences, such as fines, may not ensure that the Law Society’s members comply with those requirements. An educational program that one can opt out of by paying a fine is not genuinely universal. I am mindful of the fact that in making these mandatory rules, the Law Society was responding to the reality that many lawyers in Manitoba had not complied with the CPD program when it was voluntary.

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Legal marketplace

A sign that in-house legal support is becoming big business

By Yves Faguy March 29, 2017 29 March 2017

A sign that in-house legal support is becoming big business

 

Catrin Griffiths reports that mid-tier firms are right to worry about PwC’s recent decision to snap up half of GE’s tax department – along with 600 of its lawyers – as part of a five-year deal to provide tax services to the multinational conglomerate, starting April 1:

So here’s the initial question for PwC: how long can you get away with providing business services to a market you are also competing with? Isn’t this doomed?

The answer is no, it’s not in the slightest bit doomed. PwC has been consistently smart about what it wants long-term, and right now what it’s doing is disrupting its own business. However strong its law firm consultancy service is, it pales into insignificance against the growth potential of its legal arm, which grossed £60m in the UK last year alone with a 24 per cent increase in billings. Yes, PwC may have lost audit clients among the top 100 – Burges Salmon and Ince & Co being two examples – but at the same time, it has won Clifford Chance and Herbert Smith Freehills. Neither CC nor HSF is likely to have sleepless nights over PwC as a competitor; they’re too busy worrying about the US firms.

Part of the worry for law firms, understandably, resides in what one industry watcher called a “rapid blurring of the boundaries between what used to be thought of as separate and distinct professional services.”

Fair enough. But another takeaway is that that PWC’s efforts are really a confirmation that clients see value in the delivery of in-house legal services.

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