Young Lawyers International Program
Picture this: You’re 18 years old when you meet someone and fall in love. Two years later, you have a child with them. This person then pays “damages” to your parents for having a child with you outside of wedlock. At age 21, your parents give their approval for you to move in with this person’s mother because “no one else would want you”. Together you have three more children. This person repeatedly tells you that they love you and want to marry you, but they just need more money. You remain with this person’s mother, caring for her until her death. You never get a proper education and you never get the opportunity to gain real work experience because you’ve been raising your four children, managing the household and caring for this person’s family while they are away doing offsite work.
Now imagine that all of this takes place in a township in rural South Africa. You are a Zulu woman and this person who entered your life, three decades ago, is a Zulu man who has recently left you to be with another woman. You live in a country where only males can legally enter into polygamous marriages under Zulu customary law. You also live in a country where you have no legal right to spousal support, because you are not married, either civilly or customarily. Unlike in Canada (except Quebec), there is no legal mechanism in South Africa for you, as a non-married partner, to receive spousal maintenance – nor a number of other benefits.
April 28, 2017
28 April 2017
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.
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.
April 27, 2017
27 April 2017
How many softwood lumber disputes is it going to take before Canada gets a long-term deal with the U.S.?
This last week appears to have been the beginning of Lumber V, the fifth incarnation of a long-standing trade dispute that has taken place on the margins of NAFTA, wherein Washington has consistently insisted that Ottawa has dumped subsidized lumber into its market. Trade tribunals — even America’s own internal trade authorities — have sided with Canada.
Indeed, past disputes have wound up before arbitration, and led to agreements that have cooled cross-border sniping on the file. Now the two countries have been without a deal since 2015.
And while Prime Minister Justin Trudeau had marathon talks to try and get a deal to pre-empt Lumber V, none came (according to one former U.S. trade representative, Canada was close to sealing one with the Obama administration, but decided to hold out for better terms with his successor). And, as such, President Donald Trump has picked up the mantle.
Law firm retreats should be about more than just golf, experts say. With some preparation, a clear goal and agenda, these retreats can be a good opportunity for team building and strategic planning.
Sandra Bekhor is the president of Bekhor Management, a Toronto-based consulting firm that provides marketing and strategic planning services to professional practices and small to mid-sized businesses. She says that law firm retreats can be a chance for lawyers to get out of the day-to-day practise of law and focus on the bigger picture.
“Every law firm has higher-level objectives that they can’t get to during the week because they’re busy running their practice,” Bekhor says. “And if you don’t carve out that time outside of the office, outside of meeting with clients and managing your staff, you just never get to it.”
Across Canada, we are dealing with an overburdened justice system, court delays and, as we have seen in the wake of the Supreme Court of Canada’s R. v. Jordan ruling, this is leading to the dismissal of serious charges. Meanwhile, Statistics Canada data shows that the incarcerated population has never been higher, and that numbers of people in pre-trial detention outnumber those in sentenced custody.
The Canadian Bar Association has identified 10 ways to deal with the overburdening of the justice system. I agree with everything on the list, but would add another item that requires urgent attention: The need for our provinces and territories to reform child welfare laws.
April 25, 2017
25 April 2017
A proposed bill that made it from the Senate to the House of Commons on a wave of sympathy for the police officer whose death prompted it is so flawed it should not pass into law, says the CBA’s National Criminal Justice Section.
Bill S-217, sponsored by Conservative Senator Bob Runciman, was drafted in response to the death of Edmonton RCMP Const. David Wynn, who was killed by a “career criminal” out on bail.
April 24, 2017
24 April 2017
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.
April 24, 2017
24 April 2017
In the wake of the outrage that followed comments by some judges in sexual assault trials, including former judge Robin Camp’s suggestion that a victim should have “kept her knees together,” there have been many calls for better education of judges with regard to sexual assault – particularly, in the way they deal with victims of assault.
Interim Conservative leader Rona Ambrose weighed in with a private member’s bill, the Judicial Accountability through Sexual Assault Law Training Act, which easily passed first and second reading and is now in committee.
April 21, 2017
21 April 2017
Much has already been made of the Liberal government’s pledge to legalize marijuana, and parliamentary debate has yet to even begin.
But one element of the massive legislative effort that has received less scrutiny is a pledge to implement mandatory roadside tests for intoxication — the common breathalyzer test for alcohol, and the still-unproven oral swab test for THC, the psychoactive component in marijuana.
Bill C-46, the legislation updating the Criminal Code’s impaired driving sections, reads that a police officer may, in their “lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law … by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath.”
April 20, 2017
20 April 2017
The last few months have seen a great deal of activity before the courts on the issue of corporate responsibility. Plaintiffs are struggling to find different legal avenues to attribute legal responsibility between related companies. Two recent cases that have dealt with this issue are Yaiguaje v. Chevron Corporation and Garcia v. Tahoe Resources Inc. The former involves the piercing of the corporate veil, and the latter, the attribution of liability from a subsidiary to a parent company under tort law.
These cases are anchored on legal theories that are not responsive to a new modern corporate reality, where related companies act in concert as a group of companies, yet are allowed to enjoy limited liability. The challenge for the courts will be to find a legal theory that allows companies to act as legally distinct entities, and yet be accountable for the actions of related companies operating within a group of companies in certain circumstances.
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.