The Power of Perspectives

The Canadian Bar Association
Criminal law

Feds expand the rape shield protections

By Justin Ling June 7, 2017 7 June 2017

Feds expand the rape shield protections

 

It was 25 years ago that Canada saw the adoption of a rape shield law, designed to protect survivors of sexual assault from being cross-examined on their sexual history, unless it was directly pertinent to the facts of the case.

But now, under legislation tabled by Justice Minister Jody Wilson-Raybould on Tuesday, the shield law is getting an update. And with it, the statutes around consent will gain further clarity.

It’s all a part of a revamping of the Criminal Code, undertaken by Wilson-Raybould, which will see a host of antiquated laws deleted or modernized, as part of a bid to drag the Criminal Code into the 21st century. The bill is titled, perhaps unfortunately, C-51.

The crux of the changes to the rape shield law will clarify that no communications from the complainant’s past can be admitted into evidence if they are being used by defence counsel to do one of two things: Undercut the credibility of the witness, or establish a likelihood that the complainant would’ve consented. These are the so-called “twin myths.”

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Patents

The blockchain patent rush

By Yves Faguy June 6, 2017 6 June 2017

The blockchain  patent rush

 

Blockchain, the peer-to-peer distributed ledger technology that underlies Bitcoin but which also has other uses, has everyone predicting it will revolutionize everything from banking and finance to insurance and law. That revolution, however, will play out over decades, explain Marco Iansiti and Karim Lakhani in the Harvard Business Review:

True blockchain-led transformation of business and government, we believe, is still many years away. That’s because blockchain is not a “disruptive” technology, which can attack a traditional business model with a lower-cost solution and overtake incumbent firms quickly. Blockchain is a foundational technology: It has the potential to create new foundations for our economic and social systems. But while the impact will be enormous, it will take decades for blockchain to seep into our economic and social infrastructure. The process of adoption will be gradual and steady, not sudden, as waves of technological and institutional change gain momentum.

But as the Economist reported earlier this year, that hasn’t stopped battle lines from being drawn early over patenting that “foundational” technology – or at least improvements on it.  Among notable companies filing patents are Amazon.com, Apple and Facebook, and the number of filings in the U.S. is tripling each year. But what makes this area of patenting particularly challenging is that open-source nature of core blockchain technology, say Paul Horbal and Brian De Vries:

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Kinder Morgan: Is the law really on its side?

By Supriya Tandan June 5, 2017 5 June 2017

Kinder Morgan: Is the law really on its side?

 

Politics will surely intervene in determining whether the Trans Mountain Kinder Morgan pipeline expansion project goes ahead.  It’s still unclear how things will get resolved in the BC legislature with possible challenges ahead surrounding the election of a new Speaker, and there’s even a chance the province could hold a new election.

But if the NDP and Green Party do succeed in forming an alliance to create a stable minority government, what happens to the Kinder Morgan the pipeline expansion project? The NDP and Green Party agreement includes a statement of shared interest in halting the project.

Can they do so legally?

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Climate law

Withdrawing from the Paris Agreement: The legal picture

By Yves Faguy June 2, 2017 2 June 2017

Withdrawing from the Paris Agreement: The legal picture

Now that the world has expressed profound regret at President Donald Trump's decision to pull the U.S out of the Paris Climate Agreement, and issued warnings that its terms are non-negotiable, it’s worth pausing to consider what it all means legally.

The most puzzling statement Trump made yesterday is that he wants “a better deal” claiming, “Believe me, we have massive legal liability if we stay in.”

More than a few commentators are calling Trump out on this claim. David Roberts explains:

Paris’s only constraint on Trump comes through intangibles like reputation and influence. It imposes absolutely no practical or legal constraint on his actions — not on trade policy, not on domestic energy policy, nothing.

That means all talk of Paris being a “bad deal” for the US, or hurting US trade, or affecting the US coal industry in any way, is nonsense. Paris does not and cannot do any of those things.

Indeed, though the treaty is technically binding under international law, it is built aound mostly non-binding undertakings. Yes, it requires countries to report on their progress, but the targets themselves are not legally binding. Michael Grunwald offers his best guess at the real motives behind the decision:

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National security

Sharing national security secrets: More oversight

By Justin Ling June 1, 2017 1 June 2017

Sharing national security secrets: More oversight


When the Liberal government finally gets around to introducing a reform package on Canada’s national security laws, chances are that much of the attention will focus on the Security of Canada Information Sharing Act, or SCISA.

Skepticism over information sharing has reached peaked in recent years, thanks in no small part to the Edward Snowden leaks and subsequent revelations and litigation surrounding the integration of the Five Eyes intelligence partners.  Together they have produced a steady trickle of information that has shown how Canadian intelligence agencies are integrated to the services of American and foreign partners. And how that can impact Canadians, even innocent ones.

Given that, and thanks to reforms introduced by the Harper government, the Liberals have honed in on tinkering with SCISA in order to write in some more general stopgaps and safeguards.

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BC election

What if BC can't elect a new Speaker?

By Yves Faguy May 31, 2017 31 May 2017

What if BC can't elect a new Speaker?

 

 

Faced with two options  — resign now or face defeat on a confidence vote — BC Premier Christy Clark has made it clear that she is going the latter route.  She has stated, however, that she will recall the legislature for a vote soon, and won't ask the province’s Lieutenant Governor for a new election if defeated.  So far, there is little controversy surrounding her decision, at least from a legal point of view.  Even or political opponents, NDP leader John Horgan and Green Party leader Andrew Weaver have acknowledged her right to have the first opportunity at forming a government. 

But by forcing the vote of no confidence, is the premier not just putting off the inevitable?

Perhaps not. For starters, the NDP-Green Party pact could always fall apart. It’s also worth pausing to consider an intriguing possibility raised by James Bowden. The new legislature may not be able to elect a new Speaker:

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Pot legalization

No logo for cannabis

By Doug Beazley May 30, 2017 30 May 2017

No logo for cannabis

 

Walk into a convenience store in Colorado and you might encounter Toast — the new face of marijuana marketing. It’s smokeable cannabis in the form of machine-rolled cigarettes, each tipped with a royal-purple filter embossed with a gold-foil butterfly. The package is jet black, with the label embossed in gold, deco-style type.

The effect is one of sophisticated, rakish elegance — a cocktail-chic approach to a drug typically sold in plastic baggies in city parks. Marijuana is legal for recreational sale and consumption in Colorado. Toast’s makers are pursuing an upscale demographic: well-heeled users who smoke socially and can afford a premium product.

It’s the kind of thing Canadian cannabis producers would very much like to do with their own product once the legal recreational market is in place here. They’re probably going to be disappointed.

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Technology

Blockchain: Why lawyers should take note

By Kim Nayyer May 30, 2017 30 May 2017

Blockchain: Why lawyers should take note

 

In recent months, discussion of legal issues and business applications of blockchain have proliferated in the press and on legal technology and blockchain technology websites. In April, the ABA even held a day of blockchain discussion.

Many will have first heard of “the blockchain” in the context of Bitcoin, the cryptocurrency developed in 2009. Blockchain is the term given to the computational model underlying Bitcoin. Leaving aside the mystique associated with Bitcoin, and separate and apart from the idea of cryptocurrency, its peer-to-peer, secure, verified transaction system is revolutionary. At minimum, blockchain can be understood as a means of creating trust in and establishing evidence of transactions without the need for a traditional trusted intermediary. Or as one wrote, ”Blockchain is an escrow of conclusive transaction evidence. That’s it … All you need to know as a lawyer, a banker, a creditor, a vendor, a buyer, and a debtor is that blockchain eliminates transaction disputes.”

Without delving into computing and mathematics, one can see the essence of blockchain in a few fundamental features, well illustrated in, for example, The World Economic Forum's "What is Blockchain?", or IBM’s “Blockchain, How it works.” Here is a distillation:

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Climate law

Moving to a low-carbon economy is the future story of growth

By Yves Faguy May 29, 2017 29 May 2017

Moving to a low-carbon economy is the future story of growth

 

OECD countries should work to raise the cost of carbon emissions to US$100 per metric ton by 2030 to meet pledges made under the Paris Climate Agreement to keep global temperatures from rising above 2°C.

That’s according to a report released in Berlin today by The High-Level Commission on Carbon Prices, led by Nobel Laureate Joseph Stiglitz and Lord Nicholas Stern:

The proposed federal pricing in Canada would see a mandatory minimum floor price of CAN$50/ton in 2022. (Carbon should be priced at US$40-$80 per ton by 2020, says the Stiglitz-Stern report).

In China, Russia, Brazil, and South Africa the price of carbon in the power and industrial sectors should rise to US$75/tCO2 by 2030, in conjunction with a phasedown of fossil fuel subsidies.

The economists make the case that effective pricing carbon will help drive innovation in technologies and new business models, and therefore ultimately  boost productivity.

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Supreme Court of Canada

Is there a duty to consult in the legislative processes?

By Justin Ling May 25, 2017 25 May 2017

Is there a duty to consult in the legislative processes?

 

The rules around the Crown’s duty to consult have come a long way in Canada, thanks in large part to courts who have been broadly supportive of the principle that when the Crown is planning action that that could have an adverse impact on Indigenous or Treaty rights, those communities should be heard and, where appropriate, accommodated. A recent example involves the Supreme Court of Canada Supreme Court declaring Aboriginal title in Tsilhqot'in Nation v. British Columbia in 2014. 

But what if Parliament were required to consult Indigenous peoples on legislation it plans on adopting? 

The Supreme Court granted leave last week in a matter that may begin to answer that question. 

In Courtoreille v. Canada, the Mikisew Cree First Nation — represented by Chief Steve Courtoreille — claims that the previous government introduced and adopted omnibus legislation passed by into law without consulting with his nation. That, Courtoreille argued, abridged the Mikisew nation’s treaty rights. 

The dispute is a complex one that strikes at the very core of Canada’s system of governance.

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CBA influence

Time to revitalize the business immigration program

By Kim Covert May 25, 2017 25 May 2017

Time to revitalize the business immigration program

 

The key to a thriving economy is a strong, skilled and knowledgeable workforce. And while in a perfect world a company might be able to find that skill and knowledge on its doorstep, the reality in the global economy is that companies might have to look far and wide for the right people.

Under current guidelines, leading stars such as economist Janet Yellin, Microsoft’s Bill Gates, director Sofia Coppola or chef Ana Ros might not be able to get a work permit to operate a business or be self-employed in Canada.

“Canada needs to attract and retain temporary and permanent business workers as key talent to support economic development in today’s competitive global market,” says the CBA’s National Immigration Law Section in a recent submission to Immigration, Refugees and Citizenship Canada. In fact, the Section notes, the government has made it clear in the Immigration and Refugee Protection Act that it is committed to pursuing economic goals through business.

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Legal information

A new player in Canada's legal information market

By Yves Faguy May 24, 2017 24 May 2017

A new player in Canada's legal information market

 

Distilling large amounts of complex information for others has always been part of what lawyers do.  But even they need help finding it, which is why providing legal information is such a big part of the legal services business.

Over the last decade, the two main players in this space in Canada, LexisNexis and Thomson Reuters, have done just that, and more, by betting on technology to support lawyers in firms and law departments in applying their legal knowledge.

Now, a new competitor hopes to shake-up the space. Earlier this month, Compass, the new Canadian legal research platform — and new incarnation — of Maritime Law Book, announced that vLex, a Barcelona and Miami-based legal publisher, and California-based Justia were taking a stake in the company.

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