The Power of Perspectives

The Canadian Bar Association
Trade

Why we can't seem to solve the softwood dispute for good

By Justin Ling April 27, 2017 27 April 2017

Why we can't seem to solve the softwood dispute for good

 

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.

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Your practice

Really getting things done on a firm retreat

By Carolynne Burkholder-James April 26, 2017 26 April 2017

Really getting things done on a firm retreat

 

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.”

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Criminal justice

To fix our justice system we must reform child welfare laws

By Rebecca Bromwich April 25, 2017 25 April 2017

To fix our justice system we must reform child welfare laws

 

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. 

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CBA Influence

Sympathy for fallen cop basis of flawed proposed legislation

By Kim Covert 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.

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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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CBA influence

Changing the culture in sexual assault trials

By Kim Covert April 24, 2017 24 April 2017

Changing the culture in sexual assault trials

 

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.

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Criminal law

Will the new roadside testing rules pass a Charter challenge?

By Justin Ling April 21, 2017 21 April 2017

Will the new roadside testing rules pass a Charter challenge?

 

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.”

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Corporate law

The law of corporate responsibility must reflect the new corporate reality

By Alexander Gay April 20, 2017 20 April 2017

The law of corporate responsibility must reflect the new corporate reality

 

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. 

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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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CBA influence

Enriching Canadians’ access to justice through language

By Kim Covert April 19, 2017 19 April 2017


Nearly 49 years after then-prime minister Pierre Trudeau introduced the Official Languages Act in the House of Commons, and 48 years since it became law, the federal government is preparing to develop another action plan on official languages.

The CBA has gone on record as strongly encouraging the government to include improved access to justice in both official languages as part of its calculations.

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Corporate counsel

Strategic thinking for in-house counsel

By Mariane Gravelle April 19, 2017 19 April 2017

Strategic thinking for in-house counsel

 

From law school to professional development, there’s no shortage of ways to teach a lawyer about the practice of law. And as the profession changes, there’s always new skills to learn. Today, the ability to think and work strategically is increasingly important – and the Canadian Corporate Counsel Association has created a program to deliver that training to the profession.

The CCCA’s Business Leadership Program for In-House Counsel (BLPIHC), taught in collaboration with the University of Toronto’s Rotman School of Management faculty covers useful skills such as communication within organizations, corporate and organizational dynamics and management and leadership.

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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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