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The Canadian Bar Association
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Changes to Citizenship Act: Amended Bill C-6 before Senate committee

By Kim Covert February 24, 2017 24 February 2017

Bill C-6, which contains amendments to the Citizenship Act, continues to make its way through Parliament. The CBA’s National Immigration Law Section first appeared in support of its submission on the proposed legislation last May before a House committee; in February, it brought the same submission to a Senate committee.

Well, almost the same submission. After the CBA appeared in the House, the government made a few tweaks to the bill in response to recommendations from the Immigration Law Section (and others), and the submission was reflected to update those changes.

The primary objective of Bill C-6 is to “return Canadian citizenship law to its state before the changes introduced by Bill C-24, the Strengthening Canadian Citizenship Act. In 2014, the CBA Section largely opposed the changes introduced by Bill C-24, and so in general we support reversing those changes,” the submission says.

 

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Not Just a Bystander

Q&A: Tracy Porteous on addressing workplace sexual harassment

By Mariane Gravelle February 23, 2017 23 February 2017

Q&A: Tracy Porteous on addressing workplace sexual harassment

 

As part of a weekly series leading up to the release of the Not Just a Bystander” Podcast, presented by the CBA National Women Lawyers Forum on addressing sexual assault and sexual harassment in the workplace, we interviewed Tracy Porteous, the executive director of the Ending Violence Association of British Columbia and co-chair of the Ending Violence Association of Canada. Tracy has been involved in developing programs and policy that respond to violence against women for 35 years; one example being the More Than A Bystander Program.

CBA National: In your experience, how is the issue of violence against women being handled now compared to when you became involved in that line of work 35 years ago? Have you seen positive change?

Tracy Porteous: For over 40 years, women’s anti-violence advocates across the globe have been raising awareness on issues related to violence against women to whoever would listen. There is much we can be proud of - many social policy advances have occurred over many decades. Great thanks are owed to thousands of feminists, the United Nations, many levels of government, First Nations women and labour groups who have concerned themselves with the all too stark, often lethal, epidemic of violence against women.

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Privacy

Why searching phones at the border might violate privacy rights

By Yves Faguy February 23, 2017 23 February 2017

 

Steven Penney of the University of Alberta has a topical paper out in which he argues that customs searches, without suspicion, of digital data are unreasonable under section 8 of the Canadian Charter. Specifically, he pushes back against the notion upheld by our courts that seizing electronic devices at the border, and demanding to access them with passwords, is justified by border security interests.

It has become a cliché to say that the law struggles to keep up with technological change. Both police and privacy advocates claim that digitization has put them at a disadvantage. For the most part, however, courts have done a credible job in adapting criminal procedure doctrine both to account for the unique qualities of digital data and networks and to preserve consensus accommodations between privacy and law enforcement.

Digital customs searches have so far been an exception to this. Reflexive adherence to precedent has led courts to discount the intrusiveness of digital searches and inflate the harms of digital contraband. At customs, searches of digital containers are much more intrusive than searches of physical ones. And they do almost nothing to stop, deter, or regulate the flow of harmful data into Canada. Instead they have become an adjunct to non-border criminal law enforcement, unjustifiably exempt from the civil liberties protections applying in that realm.
 

 

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Legal marketplace

Re-regulating of the legal industry, Cont'd

By Yves Faguy February 23, 2017 23 February 2017

 

On the topic of re-regulation of the legal profession, Kenneth Grady writes that complaining about the slow pace of reform is a "red herring":

We have what we need to fix the lack of access to civil justice problem. Changing the regulations may make a few things easier and transaction costs could drop. But, the problems we need to solve are independent of the regulatory structure. The barrier to solving the problems is lawyer resistance to change. Fix that problem and changing the regulations will become a side show at best.

Consider this one example. Solo practitioners argue they have a technological disadvantage. The cost of emerging software is beyond their grasp, either in time to implement or money. The professional responsibility rules prohibit law firms from having owners without law licenses. If we re-regulate, the argument goes, these firms can get access to money and resources through new owners. They can use those investments to bridge the technology gap. We already have a solution. Create a technology business (incorporation costs are trivial). Get investments in the second business which acts as a services business to the law firm. Spread the technology firm’s costs across several small firms. This model, or variations of it, exists.

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Trade

NAFTA: Canada and Mexico's prisoners' dilemma

By Yves Faguy February 22, 2017 22 February 2017

NAFTA: Canada and Mexico's prisoners' dilemma

 

In recent days, we heard Canadian and Mexican officials say that NAFTA should be re-negotiated trilaterally.  Foreign Minister Chrystia Freeland has stated that NAFTA talks must involve Mexico. And former PM Brian Mulroney has warned, “throwing friends and neighbours and allies under the bus is a position for a weak leader.”

That may be easier said than done, given that economic ties between Mexico and Canada, while not negligible, pale in comparison to ties between Canada and the U.S. on the one hand, and the U.S. and Mexico on the other. That can make standing united in the face of U.S. pressure to re-negotiate a little awkward.

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Legal marketplace

Why traditional firms will want re-regulation of the legal industry

By Yves Faguy February 20, 2017 20 February 2017

 

Last year, Malcolm Mercer wrote about the various regulatory challenges in the U.S. and Canada with respect to innovation in the provision of legal services. He describes how protectionist pressures have put the breaks on any efforts to involve law societies (and the ABA in the U.S.) in facilitating new ways of providing legal services.  Then, casting an eye to the future, Mercer guesses that, ultimately, regulators will be forced to face the music one way or the other:

It seems to me inevitable and proper that new ways of providing legal services will be allowed in unserved and underserved areas. Whether Canadian law societies are up to the challenge of allowing this is unclear. But if they don’t, someone else will.

If encouraging the evolution of the existing practice of law with new forms of capital and expertise is not in the cards, permitting new entrants is the alternative. The question then will be how new entrants should be regulated and by whom.

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Access to justice

How self-represented litigants view the justice system

By Yves Faguy February 17, 2017 17 February 2017

 

The National Self-Represented Litigants Project has released its report for 2015-16 tracking trends among the SRL population, including data about income:

We continue to see the majority of those representing themselves reporting lower income levels below $50,000 with the majority below $30,000. In the latest sampling, 51% state that their income is under $30,000 (in the 2013 Study this figure was 40%, and in the 2014-15 Intake Report it was 45%).

The next largest group (15%) report annual income of between $50,000- $75,000, followed closely by those reporting income of $30,000-$50,000 (1%). This also closely resembles the data reported in both the 2013 Study and the 2014-15 Intake Report.

Also consistent with earlier reporting, 8% of respondents (6% in both the 2013 Study and the 2014-15 Intake Report) report earning more than $100,000. As income rises, so does the likelihood that the respondent previously retained a lawyer for this matter. One respondent in this sample group reported having spent more than $100,000 on legal fees before becoming self-represented.

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Not Just a Bystander

Q&A: Dr. Harry Stefanakis on preventing violence in the workplace

By Mariane Gravelle February 17, 2017 17 February 2017

Q&A: Dr. Harry Stefanakis on preventing violence in the workplace


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 Dr. Harry Stefanakis, a psychologist and educator in Vancouver, British Columbia.  Dr. Stefanakis is an active participant in programs seeking to end violence in relationships and workplaces, and he has appeared in the video “Men Speak Up: Ending Violence Together”.

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Security

CBA on the Security of Canadians Information Sharing Act

By Mariane Gravelle February 16, 2017 16 February 2017

CBA on the Security of Canadians Information Sharing Act

 

The Privacy and Access Law Section has been active in law reform this year, engaging in a number of initiatives – including initiatives related to SCISA, the Privacy Act, Canada’s Anti-Spam Laws (CASL), and the Personal Information and Protection of Electronic Data Act (PIPEDA) – the latest of which being the CBA’s January 31st, 2017 submission to the Standing Committee on Access to Information, Privacy and Ethics (ETHI) study on the Security of Canadians Information Sharing Act (SCISA).

This appearance and submission to the ETHI Committee, led by Stikeman Elliott’s David Elder, was a follow-up to the recent CBA submission in response to the Government’s Green Paper on National Security, which itself echoed many of the concerns that the CBA had raised previously in its submission respecting Bill C-51, part of which contained SCISA.

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Charter law

Improving the Court Challenges Program

By Yves Faguy February 16, 2017 16 February 2017

 

Léonid Sirota sizes up the reinstated Court Challenges Program and reiterates his concern that “choosing to fund court litigation based on language and equality rights,” Parliament is in fact saying that it values those right over constitutionally protected rights.

Nicolas Hay acknowledges the argument, but writes that a well designed program still has merit. He cites the Canadian Human Rights Tribunal case upholding a discrimination complaint against the federal government by failing to provide an adequate level of child welfare on First Nations reserves, as the type of challenge that requires a financing program:

I wholeheartedly agree: privileging some rights over others can have serious implications for federalism, and a Program that treated all rights equally would be more appropriate.

The Program is undoubtedly worth saving if it were adjusted to include the changes I have outlined so far: a more accountable selection process; a more robust method of allocating subsidies; and an expansion to include all Charter rights...

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Environmental law

How to fix Canada's broken environmental assessment framework

By Supriya Tandan February 15, 2017 15 February 2017

How to fix Canada's broken environmental assessment framework

 

The Ministry of Environment and Climate Change has passed the halfway mark of its review of Canada’s environmental assessment laws and procedures.

The current framework originated with the passage of the Canadian Environmental Assessment Act in 1992. In 2012, the Harper government tried to limit the scope of the Act, by repealing and replacing it with a new version intending to reduce the number of projects that fell under its purview. However, the 2012 version of the CEAA 2012 has come under criticism for being unable to adequately address the magnitude of modern environmental problems. Most experts agree that in order to modernize the environmental assessment process, we cannot just tinker with the existing legislation but need to completely repeal and replace it. What is needed, they argue, is a brand new legislation with an evaluation infrastructure capable of grappling with the diffuse, inter-related and complex nature of environmental problems.

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Contract law

One-sided jurisdiction clauses: The case for validity

By Alexander Gay February 15, 2017 15 February 2017

One-sided jurisdiction clauses: The case for validity

 

Is it abusive for one party to an agreement to have the right to choose to pursue a claim in any competent court while the other party is bound to only one jurisdiction?

Until recently, asymmetrical jurisdiction clauses – also know as one-sided clauses –  in commercial agreements have come under assault.

Fortunately, that appears to be changing.

There have been a number of court decisions, from the French courts in particular, declaring asymmetrical jurisdiction clauses to be unfair and abusive and are therefore void. These courts have held that these clauses contravene the basic procedural principle of equality of parties, where one party is granted under the agreement better opportunities to bring claims against the other.

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