The Power of Perspectives

The Canadian Bar Association
Opinion

A telling reminder that what we do as lawyers matters

By Rebecca Bromwich February 14, 2017 14 February 2017

Many times, over the tinkling of glasses at dinner parties, I have heard lawyers reference the quote from William Shakespeare that runs ''The first thing we do, let's kill all the lawyers.'' The line comes from Henry VI and is uttered by Dick the Butcher, a supporter of the dissident Jack Cade, who supposed that if he disturbed the rule of law, he could seize the throne. Lawyers often rely on this quotation in speeches that present grand narratives about the important role of lawyers in warding off despotism.

 

Reference to this quotation has often felt unduly self-laudatory.  Praise for lawyers as defenders of democracy can ring discordant with the contemporary realities of the rising cost of legal services and other barriers to access to justice.

That isn’t to say that lawyers don’t deserve some recognition for what they do. The practice of law is a tough slog in many areas, and the machinery of the administration of justice, and the cultural baggage and business forms of the legal profession, can make work as a lawyer difficult indeed.

 

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Not Just a Bystander

Q&A: Gail Lynn Gatchalian on the pervasiveness of workplace sexual harassment

By Mariane Gravelle February 10, 2017 10 February 2017

Q&A: Gail Lynn Gatchalian on the pervasiveness of workplace sexual harassment

 

On March 8, 2017, coinciding with International Women’s Day, the CBA will release its new “Not Just a Bystander” Podcast, which is presented by the Women Lawyers Forum in collaboration with various CBA National Sections and the CCCA. This new podcast builds off of the Forum’s recent #WriteYourWrong campaign, through which individuals were encouraged to anonymously submit stories of their encounters with sexual assault and sexual harassment in the workplace, and strives to continue the discussion on this important issue and examine what lawyers, clients, and the community can do to fix this problem.

As part of a weekly series leading up to the release of the podcast, we’ve spoken with each of the podcast’s panelists about their efforts to end sexual harassment and violence. This week’s Q&A is with Gail Lynn Gatchalian, a lawyer and workplace investigator at Pink Larkin in Halifax, Nova Scotia. She is also the Vice Chair of the National Labour and Employment Law Section of the Canada Bar Association.

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CBA Board of Directors Elections

CBA Board of Directors Elections

By Mariane Gravelle February 9, 2017 9 February 2017

The CBA wants YOU – to join its board of directors!

Regular CBA members who want to contribute to the evolution of a more member-centric CBA are encouraged to apply for election to its Board of Directors. Deadline is February 17, 2017.

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Charter rights

Court Challenges Program reinstated and expanded

By Justin Ling February 7, 2017 7 February 2017

Court Challenges Program reinstated and expanded

 

The federal government has followed through on an election promise to reinstate the Court Challenges Program, and have agreed with a chorus of lawyers that Section 7 of the Charter of Rights and Freedoms ought to be included in the program.

“I am confident that through the new court challenges program, Canadians will have greater access to justice and greater protection of their rights,” Justice Minister Jody Wilson-Raybould said at a press conference on Tuesday.

The Canadian Bar Association has released a statement in support of the reinstated programme, also calling it a win for access to justice. “This program benefits all Canadians by funding test cases and interventions that will clarify our understanding of Charter and Official language rights,” the statement reads.

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Criminal law

In need of a search strategy for electronic evidence

By Justin Ling February 7, 2017 7 February 2017

In need of a search strategy for electronic evidence

 

In recent years, the Supreme Court of Canada has tackled the evidentiary and privacy concerns around cell phones, the internet, and third-party data disclosure. 

But are the courts really keeping pace with advances in technology? 

It wasn’t until 2013, in R. v. Vu, that the top court recognized that a computer isn’t like a cupboard — and, as such, isn’t covered under a search warrant for a residence. It noted, “privacy interests implicated by computer searches are markedly different.” 

Only in 2014, in R. v. Spencer, did the Supreme Court rule that warrantless requests for suspects’ personal data to telecommunications providers amounted to a circumvention of the lawful order process — and were therefore unconstitutional. The court, then, concluded that “particularly important in the context of Internet usage is the understanding of privacy as anonymity.”

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The judiciary

Appeals court to weigh Trump executive order

By Yves Faguy February 7, 2017 7 February 2017

 

The Ninth Circuit Court of Appeals is hearing the challenge to U.S. President Donald Trump’s ban today. He has received plenty of pushback for singling out a a "so-called" federal judge in a tweet for blocking his immigration order.

Will Baude considers the difference between executive official criticizing a court’s decision and it criticizing its authority:

If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.

Yves Boisvert addresses the independence of U.S. courts:

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Access to justice

HackJustice: Tech apps that will improve access to justice

By Yves Faguy February 6, 2017 6 February 2017

 

Over the course of two days, several participants at the MaRS Discovery District and at the Cyberjustice Laboratory at Université de Montréal gathered for Hackjustice, co-sponsored by the CBA, to code and build tech applications that will improve access to justice.

“I was truly excited, impressed and amazed by the technologies that our HackJustice participants were able to develop in what amounted to about 10 working hours,” said Nicole Aylwin, assistant director at the Winkler Institute for Dispute Resolution. “It was inspiring to see how conversations about the role of legal technology in improving access to justice helped informed participants creations.”

Each participating team was required to choose a challenge and later present their tech solution to panel of judges.  The three challenges were: to develop ways to use social media tools to engage and empower the public in policymaking; to resolve consumer disputes; and to develop tools to help people deal with everyday legal problems.

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The profession

Joe Groia’s incivility dispute heads to the Supreme Court

By Yves Faguy February 6, 2017 6 February 2017

 

It’s somewhat fitting that it is in these polarized and vitriolic times, where levels of incivility and nastiness seem to have become commonplace – in the media, in politics, on social platforms, in the workplace – that the Supreme Court of Canada has granted leave to hear the appeal by Toronto lawyer Joe Groia. 

As a quick recap, in 2011, the Law Society of Upper Canada found that Groia engaged repeatedly in uncivil conduct in the defense of his client, John Felderhof, the chief geologist and central figure of the Bre-X Minerals scandal. At trial, Felderhof was acquitted of all charges. Though the trial judge had never complained to the Law Society about Mr. Groia’s conduct, a disciplinary panel nevertheless found that Groia’s violated professional conduct rules by being rude and lacking respect for the court. Groia saw his licence briefly suspended.

Sean Robichaud gives some background, and frames the debate, arguing that advocacy is about “justice, not civility."

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CBA influence

Dual citizens take note – and your Canadian passport

By Kim Covert February 6, 2017 6 February 2017


If you’re a dual-nationality Canadian who was surprised by the requirement that you have a Canadian passport for travel to Canada over the holidays – well, the CBA’s Immigration Law Section is not surprised at your surprise.

In fact, it warned the government in a letter last month that not enough notice had been given to the requirement under the new Electronic Travel Authorization policy that Canadians holding dual citizenship would have to travel on their Canadian passports or risk being denied boarding.

 

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CBA influence

Navigating changes to the Navigable Waters Protection Act

By Kim Covert February 6, 2017 6 February 2017


As part of its broader review of environmental and regulatory processes, the federal government is looking at changes to the Navigable Waters Protection Act that came into effect in 2014, and asking the Canadian public for input.

“The Government of Canada has promised to review the recent changes to the Navigable Waters Protection Act, restore lost protections and incorporate modern safeguards,” the government says on the consultation website.

The CBA’s Maritime Law Section, which responded to the online consultation questions in December, says it does not believe additional protections are needed under the Act.

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Workplace

Sexual harassment in the workplace: Not just a bystander

By Kim Covert February 3, 2017 3 February 2017


On March 8, International Women’s Day, the CBA National Women Lawyers Forum will launch a podcast that grew out of their campaign about sexual harassment in the workplace.

After passing a resolution at the February, 2015 CBA Council meeting calling for an end to sexual harassment in the workplace, the WLF ran a campaign called #WriteYourWrong, inviting lawyers – male and female – to write in about their experiences with sexual harassment in law firms.

The podcast, Not Just a Bystander, is the next stage in the campaign. The title of the podcast is meant to emphasize that it’s everyone’s job to end sexual harassment – witnesses have to speak up, especially when victims can’t.

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Criminal justice

Social media luddites and the admissibility of evidence

By Justin Ling February 2, 2017 2 February 2017

Social media luddites and the admissibility of evidence

 

Social media has become a ubiquitous reality. But that doesn’t mean that everyone is on quite the same footing when it comes to Facebook, Twitter, Instagram, and the like.

Speaking to a conference of tech professionals and lawyers at Osgoode Hall Law School last week, Ontario Superior Court Justice Frances Kiteley offered some cautionary words, warning social media-savvy lawyers that many judges “don’t come with the same skills, knowledge, or expertise as those of you coming into the courtroom.”

“Do not assume that they know what you know,” Kiteley warned.

Obviously, not all members of the Canadian judiciary are social media luddites — from the judge who banned a violent ex-boyfriend from social media this month after a Snapchat post set him off on a violent attack, to the justice who took a very understanding view of one mother’s online dating proclivities in a family law case last year.

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