The Power of Perspectives

The Canadian Bar Association
Voting rights

SCC to hear case on expat voting rights

By Justin Ling March 20, 2018 20 March 2018

SCC to hear case on expat voting rights

At a time when foreign influence in domestic elections is at an all time high, the Supreme Court will finally hear arguments tomorrow in favour of why outside agitators should be allowed to participate in Canadian elections. In so doing, the top court is set to tackle the definition of what, exactly, is in the Canadian social contract.

It’s not exactly Russian propaganda, however.

In 2015, the Ontario Court of Appeal ruled that section 11(d) of the Elections Canada Act, which bars Canadian expats who have been out of the country for more than five years from voting, was constitutional. In so doing it overturned a lower court ruling which struck down the section.

The legislation effectively disenfranchises more than a million Canadians living abroad, although Ottawa has held that such a prohibition is within international norms (as CBA National has written previously, that is not even remotely true in the G7 context, where most countries allow full franchise for non-resident citizens.)

Two Canadians living in the United States, who launched the lawsuit, contend otherwise. Pointedly, they write in their factum to the top court that “the disenfranchisement of Canadian citizens in this case cannot be saved by s. 1 of the Charter.”

Read More
Constitutional law

Untying the Blackmore case from the Polygamy Reference

By Beverley Baines March 19, 2018 19 March 2018

 

The recent ruling by the Supreme Court of British Columbia upholding the polygamy convictions of Winston Blackmore and James Oler raises three problematic questions, constitutionally speaking, about due process, the binding nature of reference opinions and the rules revisiting earlier decisions.

In 2011, the B.C. Supreme Court upheld Canada’s anti-polygamy laws in a much-publicized reference decision. In her ruling in  Blackmore, Justice Sheri Ann Donegan followed the opinion of then Chief Justice Richard Bauman in the Polygamy Reference. She viewed his opinion about the constitutionality of the polygamy prohibition as a binding judgment.  For the reasons discussed below, she should have untied her decision from his.

The first question raised by the Blackmore ruling is whether Justice Donegan adhered to due process when she raised the issue about the constitutionality of s. 293 of the Criminal Code banning polygamy. There is no indication in Justice Donegan’s otherwise detailed judgment that she gave the applicants, Winston Blackmore and James Oler, any notice of her intention to raise the issue of the constitutionality of section 293. Neither Mr. Blackmore or Mr. Oler argued this issue. Justice Donegan confirmed that “Mr. Blackmore specifically does not challenge the constitutionality of the polygamy provision” (emphasis in original).

Read More
Division of powers

A pan-Canadian securities regulator at last?

By Justin Ling March 19, 2018 19 March 2018

A pan-Canadian securities regulator at last?

It’s déjà vu, all over again, as the Quebec government heads to the Supreme Court to try and nix an opt-in national securities regulator.

The case is the culmination of a fight that originally began as a crowd-pleasing compromise solution.

A provincial history: In 2011, the top court considered in a reference case the constitutionality of a proposed national securities regulator and unanimously concluded “that the day-to-day regulation of securities […] essentially remains a matter of property and civil rights”, which falls under exclusive provincial jurisdiction.

It also held that the nature of a financial market “may, in principle, support federal intervention that is qualitatively different from what the provinces can do,” but ultimately concluded that, despite their fundamentally intertwined nature, they couldn’t be managed by a single desk — at least not by Ottawa’s edict. The court called that the “wholesale takeover of the regulation.”

Instead, the court said that a “cooperative approach” which would allow for “the essentially provincial nature of securities regulation” could work, while simultaneously addressing national issues “remains available and is supported by Canadian constitutional principles and by the practice adopted by the federal and provincial governments in other fields of activities.”

It was invitation of sorts to Ottawa to figure out a voluntary system.

Read More
Privacy

The law is failing at meeting our privacy expectations in a digital world

By Kristina Yeretsian March 16, 2018 16 March 2018

The law is failing at meeting our privacy expectations in a digital world

 

The interaction between digital proliferation and the law is growing increasingly complex, as courts are confronted with fundamental questions about our reasonable expectations of privacy in an online world.

The Supreme Court of Canada’s recent ruling in R. v. Marakah is a case in point. Marakah centers on text messages, and whether it is reasonable for a sender to have an expectation of privacy over messages once they have been received in the recipient’s phone. The appellant, Nour Marakah, sent text messages regarding illegal transactions in firearms. The police seized both Mr. Marakah’s BlackBerry and his accomplice’s iPhone, and found incriminating text messages. The police charged him and sought to use the text messages as evidence against him. In one of her final criminal law decisions, then Chief Justice Beverley McLachlin wrote for the majority, concluding that under s. 8 of the Charter of Rights and Freedoms, people have a reasonable expectation of privacy as to the contents of the text messages they send. McLachlin’s reasoning was consistent with the analysis of the United States’ Chief Justice John Roberts in a 2014 ruling, Riley v. California, where his court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.

Read More
Ethics and criminal justice

Reconciliation in Canada’s legal system

By Ann Macaulay March 16, 2018 16 March 2018

Reconciliation in Canada’s legal system

 

Lawyers, judges, law schools and legal organizations have a long and challenging road ahead in addressing historic and current deficiencies in how Indigenous peoples are treated in the Canadian legal system. Of the 94 calls to action in the Truth and Reconciliation Commission’s 2015 report, two are specifically directed towards the legal profession. One calls upon the Federation of Law Societies to ensure that lawyers receive cultural competency training. The other calls upon law schools to require that all law students take a course in Indigenous peoples and the law.

“Indigenous lawyers can only do so much,” said Koren Lightning Earle, Indigenous Initiatives Liaison at the Law Society of Alberta in Calgary, who spoke at a March CBA-FLSC Ethics Forum in Toronto on steps lawyers and the legal system can take to achieve reconciliation with Indigenous peoples. “Part of the next step of reconciliation is now that we know the truth, we have to deal with it, we have to swallow it, we have to move forward.”

Between 1831 and 1996, more than 150,000 First Nations, Inuit and Métis children were removed, sometimes forcibly, from their families and sent to residential schools. This was “designed to assimilate Indigenous children into Canadian society by eliminating parental involvement in their spiritual, cultural and intellectual development,” said moderator Paul Schabas, Law Society of Ontario Treasurer. Reconciliation is still at the beginning of the process, he added. 

Read More
Conflicts of laws

The new censors

By Yves Faguy March 14, 2018 14 March 2018

The new censors

Liberal democracies are wrestling with a crisis of confidence in freedom of speech.

It’s a sentiment that has been tracking alongside other worries – about erosions to the rule of law, reports of declines in civil liberties in many parts of the world, and distress over the torrent of invective that social media has unleashed. Civility is out the window. Women and Muslims are disproportionately the targets of trolls and haters. The loudest individuals will hijack debate and intimidate others into silence.

Caught in middle of all this are the new arbiters of acceptable conduct online – principally Facebook, Twitter, and Google.

It’s a role they would prefer not to have, after years of holding the internet up as the modern public square where views can be freely exchanged.

Facebook has always sold itself as a neutral platform for information. But the social media giant has been caught wrong-footed in a number of recent instances. In the lead-up to the 2016 U.S. election, it was accused of tweaking its algorithm to bury conservative viewpoints, then later of enabling the spread of right-wing misinformation. It recently announced plans to overhaul its newsfeed by letting users rank the credibility of news sources. Meanwhile it is accused of promoting Western-centric bias on its trending topics.

Read More
Cover story

Automating justice

By Agnese Smith March 13, 2018 13 March 2018

Automating justice

 

It’s been a bad decade for gut feelings.

Computers are taking over what used to be the exclusive domain of human decision-making. From movie-picking algorithms to self-driving cars that promise an end to fatal crashes caused by human error, we’re striving to develop technology that can predict when we will make bad choices and help us avoid mistakes.

But as the sophistication of software programs powered by artificial intelligence grows, so does our unease: We are increasingly dependent on technology we do not fully understand. And nowhere is that unease more apparent than in the legal world as it grapples with the implications of using a new generation of risk-assessment tools to guide decision-making in the justice system.

“People’s freedom is at stake,” said Carmen Cheung, professor of global practice at the Munk School of Global Affairs at the University of Toronto. “There’s a sense that [predictive software] might help, but we haven’t had a robust enough debate around the issues. Until we have a proper conversation, they probably shouldn’t be rolled out.”

Read More
Profile

In Person – Thomas Cromwell

By CBA/ABC National March 13, 2018 13 March 2018

In Person – Thomas Cromwell

 

Retired Supreme Court of Canada Justice Thomas Cromwell was made a companion of the Order of Canada in December “for his illustrious service as a Supreme Court justice, and for his leadership in improving access to justice for all Canadians.” The former chair of the Canadian Bar Review Editorial Board now serves as counsel with Borden Ladner Gervais in Vancouver.

Name three books that influenced you and tell us why.

It’s hard to limit it to three! To keep it to law books, one would be S.F.C. Milsom’s Historical Foundations of the Common Law. It confirmed for me the wisdom of Holmes’ remark that sometimes a page of history is worth a volume of logic. Lawyers and especially judges need to understand why and how the law got to be the way it is. This book, more than anything else, taught me that. A second would be Ronald Dworkin’s Taking Rights Seriously. Dworkin’s thinking about the nature of law and legal analysis has influenced me throughout my career. Finally, Stephen Armstrong and Tim Terrell’s Thinking Like a Writer is the best book on legal writing that I have seen. Don’t judge it by my writing!

Read More
Q&A

Q&A with Anver Saloojee: Ryerson takes on legal education

By Beverley Spencer March 13, 2018 13 March 2018

Q&A with Anver Saloojee: Ryerson takes on legal education

 

Ryerson University has ruffled a few feathers with its proposal for a new law school. Law Society of Ontario has approved its program, but some observers wonder whether there’s room for a new law school – and jobs for the additional graduates it would produce. CBA National asked Professor Anver Saloojee, dean of record for Ryerson’s proposal, to elaborate on the school’s plans.

CBA National Does Ontario – or Canada for that matter – really need another law school?

Anver Saloojee Absolutely yes and in particular one that focuses on equity diversity and inclusion, on technological innovation and on access to justice. Ryerson intends to produce graduates whose nimbleness and ability to compete in new ways will enhance access to justice in the province. Technology is creating new opportunities in the legal sector with the legal industry on the cusp of transformation driven by the application of technology to legal work in ways previously not imagined. And the Greater Toronto Area is rapidly emerging as one of the legal innovation clusters in the world.

Read More
Agents of Innovation

The ascendancy of the business of law

By Mark A. Cohen March 13, 2018 13 March 2018

The ascendancy of the business of law

 

Law is no longer exclusively about lawyers.

Technology, the global financial crisis, and globalization have created a new buy/sell dynamic that has disrupted industries from ride hailing to hospitality – even getting a date. These powerful forces are having an impact on law, too.

Consumers have a new set of expectations for legal delivery that has spawned a migration of work from law firms to corporate legal departments as well as a new breed of well-capitalized law companies, whose DNA is business-based but laced with legal industry knowledge.

Law, now a trillion-dollar global industry, is being re-engineered by business and tech professionals as well as entrepreneurs. Meanwhile, the parameters of legal practice – what, when, and to what degree a lawyer is required – are narrowing, as the industry is increasingly supported by technological and business expertise.

Read More
Ethics and criminal justice

Sexual assault trials: A failure of the legal profession?

By Ann Macaulay March 12, 2018 12 March 2018

Sexual assault trials: A failure of the legal profession?

 

The way sexual assault cases are practised and adjudicated by defence lawyers, prosecutors and judges regularly imposes unnecessary harms upon complainants, according to Dalhousie University law professor Elaine Craig. Players in each of these roles should play a part to prevent these harms and all have a duty to “uphold the law and those legal reforms that we have in place to protect complainants and the duty to intervene to prevent arguably unnecessarily aggressive, discriminatory or abusive cross-examinations,” she said.

Conclusions from Craig’s recent book, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, were central to the discussion of ethical challenges by a panel moderated by University of Calgary law professor Alice Woolley at a March CBA-FLSC Ethics Forum in Toronto.

Craig’s book examines ways the criminal trial process can be made less traumatic for sexual assault complainants without threatening or eroding the rights of the accused. She found that some criminal defenders ask improper questions, including prior sexual history. They “sometimes exploit rape myths that have been categorically rejected at law and sometimes unnecessarily harass and intimidate complainants in an effort to discourage them from continuing to willingly participate in the process.” These strategies are inconsistent with the law, she said, and judges have an ethical obligation “to make courtrooms as humane as possible under the circumstances,” including not forcing a complainant to testify while standing.

Read More
Practice hub

AI and the future of the profession

By Suzanne Dansereau March 10, 2018 10 March 2018

AI and the future of the profession

 

THE DINERS

The president of CanLII: Xavier Beauchamp-Tremblay. He has been heading the Canadian Legal Information Institute for two years and is working on refining the search engine by incorporating deep learning.

The in-house counsel: Kang Lee. He manages disputes for the pharmaceutical company Sandoz and is responsible for the data required to manage risk.

Kang Lee and Xavier Beauchamp-Tremblay work with new technology on a daily basis. They sit down over filet mignon and gnocchi in cream sauce at Le Richmond restaurant in Montréal’s Griffintown neighbourhood to discuss their impressions of an American software program that promises to assess a litigator’s rate of success, time spent on litigation and cost-benefit ratio.

Lee seems sold. Beauchamp-Tremblay, less so; he doesn’t believe the software is sufficiently advanced yet.

“What annoys me about new technology, and artificial intelligence in particular, is that there’s a lot of smoke and mirrors involved.”

Read More

Current Issue

Editor's Picks

Automating justice

Editor's Picks

In Person – Thomas Cromwell

Editor's Picks

Sexual assault trials: A failure of the legal profession?

National TV

  • Thumb

    CBA's intervention in Lloyd v. R

  • Thumb

    Margaret Hagan on the role law schools can play in fostering innovation

  • Thumb

    Melina Buckley on the importance of legal aid benchmarks in Canada

View All Videos

Partners In Your Success