The Power of Perspectives

The Canadian Bar Association
Justice

Budget 2017: What's in it for justice

By Justin Ling March 22, 2017 22 March 2017

Budget 2017: What's in it for justice

 

The federal budget proposes to spend $55 million over five years to hire new judges, aimed mostly at Alberta and Yukon, to speed up the trial process in Canada.

The prospect that scores of charges being thrown out due to trial delays caused by an over-burdened court system has been top-of-mind since the Supreme Court handed down its ruling last year in R. v. Jordan, setting a ceiling on delays at trial.

In fact, dozens of cases have been stayed, with Crown counsel shouldering the blame for not bringing cases forward fast enough. Lawyers across the country have called for a hike in spending to hire more judges, help legal aid, and streamline the court administration process.

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Climate law

Do not backtrack: Non-regression in environmental law

By Yves Faguy March 22, 2017 22 March 2017

 

When progressive political leaders remind us that “the arc of the moral universe is long, but it bends towards justice,” the statement includes a caveat – that the arc does not travel in a straight line and that there will be setbacks.

But for climate activists, for whom time is of the essence, setbacks are to be avoided at all cost. “Do not backtrack” has become something of a rallying cry against regressive government action (or inaction).

In legal terms, that has led to calls for the recognition of the principle of non-regression in environmental law and policy, even as a fundamental human right. As University of Ottawa law professor Lynda Collins explains in the video above (around the 3:20 minute mark), non-regression means that part of one’s right to a healthy environment is to “have today’s level of environmental protection preserved.”

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The Supreme Court

Warrantless searches: A high threshold

By Justin Ling March 20, 2017 20 March 2017

Warrantless searches: A high threshold

 

Just what are “exigent circumstances,” anyway?

Turns out, they’re pretty specific.

“‘Exigent circumstances’ denotes not merely convenience, propitiousness or economy, but rather urgency,” wrote the majority of the Supreme Court in a decision passed down on Friday. “Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence.”

The ruling, R. v. Paterson, offers new guidance and framework on when police can enter and search a private residence without a warrant. What’s clear is that it’s a very high bar.

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Cover story

The $4 trillion question

By Agnese Smith March 15, 2017 15 March 2017

The $4 trillion question

 

Economists will tell you that trust is necessary for a stable economy. So what are we to make of growing concerns about what businesses do with the personal data of internet users?

Poll after poll shows that consumers simply don’t trust companies with their data and are losing faith in government’s ability to protect their personal information. Meanwhile, regulators around the world struggle to keep pace with technology and business models that are, by nature, anti-privacy; at the same time they worry that overly stringent rules could dampen growth in the digital economy which is expected to contribute an estimated $4-trillion to major economies.

“Today, the digital economy is the economy,” Navdeep Bains, Canada’s minister of innovation, science and economic development, said in a speech last year. In fact, mass data has become a valuable asset. Whether it’s vacuumed up by mobile or other internet devices, consumer data increasingly drives business decisions. Web-based giants like Google and Facebook are earning fat profits from targeted advertising. 

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In person

Interview with Naiomi W. Metallic

By CBA/ABC National March 15, 2017 15 March 2017

Interview with Naiomi W. Metallic

 

Naiomi Metallic was the first Mi'kmaq law clerk at the Supreme Court of Canada. The Halifax lawyer holds the Chancellor’s Chair in aboriginal law and policy at Dalhousie University Schulich School of Law .

CBA National: Who has had the biggest influence on you and why?

Naiomi Metallic: My dad. My mom. My high school English teacher, Ora Watson. The Mi’kmaq professor who encouraged me to apply to law school, Patti Doyle-Bedwell. The Hon. Michel Bastarache for picking me, of all people, to be one of his law clerks. My husband, Al Mcpherson.

N: If you had a personal motto what would it be? 

NM: Treat others as you wish to be treated.

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Practice hub

Lunch with Marjorie Hickey: Practising with conviction

By Willy Palov March 15, 2017 15 March 2017

Lunch with Marjorie Hickey: Practising with conviction

 

The Diners

The Expert: Marjorie Hickey, partner at McInnes Cooper in Halifax. Hickey’s practice focuses on regulatory and liability issues for professionals. She is also a retired Commander in the Naval Reserve and past Commanding Officer of HMCS Scotian.

The Apprentice: Jennifer Taylor, research lawyer at Stewart McKelvey in Halifax. Taylor articled at the Crown Law office – Criminal in Toronto. She clerked at the Nova Scotia Court of Appeal after articling and completing her LL.M.  She supports her firm’s advocacy group and has a special interest in aboriginal law and LGBQT issues.

What is in the public interest? It's a question Halifax lawyers Jennifer Taylor and Marjorie Hickey often ask themselves. Taylor, a research lawyer just seven years into her career, and Hickey, a 35-year veteran, may be at opposite ends of their arcs as legal professionals, but they’re both committed to that age-old law school ideal of “trying to make a difference” in the world – and they’re able to do so in private practice.

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Practice hub

The innovation game

By Beverley Spencer March 15, 2017 15 March 2017

The innovation game

 

You’ve read the books, gone to the seminars and accepted the inevitable: If your firm wants to stay competitive and attract the best people, it has to develop a business strategy to deal with changing client demands, new technology and a shifting regulatory landscape.

So now what?

You’re already ahead of the game if you recognize that business as usual isn’t viable in the long-term, says Mike Ross, founder of Juniper, a Montreal-based strategy consulting boutique. Now you have to get your partners on board and start rethinking how to deliver client services.

That’s not going to be easy: in law firms where money is still rolling in, partners don’t have much incentive to change and there’s a succession crisis brewing; in 
63 per cent of U.S. law firms, for example, partners age 60 or over control at least a quarter of total firm revenue but only 31 per cent of firms have a formal succession planning process, according to an Altman Weil study released last year.

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Conflicts of law

From taboo to transparency

By Yves Faguy March 15, 2017 15 March 2017

From taboo to transparency

 

One of the most significant developments over the last decade in the legal world has been the rapid spread of global litigation finance.

It’s easy to understand its appeal, particularly in strict financial terms. Law firms can share some of their risk with investors, who in turn spread it across a portfolio of cases. As an asset class it isn’t tied to the volatility of financial markets. And for plaintiffs, the practice is a means 
to overcome financial barriers to access 
to justice to go after deep-pocketed and well-insured defendants.

But there are also reasons to watch 
out for some of the disruptive effects it 
can have on our justice system. Critics describe litigation funding as the “Wild West of finance,” largely unregulated, 
or only mildly so by judge-made law and a patchwork of statutes, oftentimes at the subnational level.

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Q&A

Andrew Arruda’s big bet on AI

By Yves Faguy March 15, 2017 15 March 2017

Andrew Arruda’s big bet on AI

 

CBA National caught up with Andrew Arruda, one of the co-founders and CEO of ROSS Intelligence, the artificial intelligence-based legal research platform. Yves Faguy asked about the hype surrounding AI, what it means for law firm hiring and what legal organizations should do about it.

CBA National: So, is artificial intelligence being overhyped in the legal marketplace?

Andrew Arruda: As with most new technologies, oftentimes people overestimate where it is today and underestimate where it is going tomorrow. When you interact with an AI system, what typically occurs is that humans want it to be able to do every single thing a human can. And that’s because they grow up watching sci-fi, etc. But that’s just not where we are with AI today. It’s not going to be able to go into court and argue a matter for you, and I don’t know if it ever will. But it’s already adding a ton of value. We see it in legal research, finding better results. You see companies who have brought it into the diligence space – it offers a lot of efficiencies there. Really when you start moving lawyers away from information retrieval so that they’re not doing that, they focus in on high impact work, advising clients, and that speeds 
up their learning curve.

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Conduct becoming

Public narrative vs. the “whole truth” from the courtroom

By Gavin & Brooke MacKenzie March 15, 2017 15 March 2017

Public narrative vs. the “whole truth” from the courtroom

 

At the time of writing, controversy is stirring at four Canadian universities that invited criminal lawyer Marie Henein to participate in a speaker series. A student wrote an opinion piece condemning the decision to invite Henein on the basis that she was Jian Ghomeshi’s defence counsel in his much-publicized sexual assault trial. The director of a Nova Scotia women’s centre echoed the criticism, stating that by extending this invitation to Henein, the universities were “potentially retraumatizing students… who have experienced sexual violence”.

Lawyers are familiar with the challenges inherent in advocating for an unpopular case – and such challenges are exacerbated in such a high-profile case. It is particularly troubling, however, that these critics attributed victim-blaming beliefs to Henein personally because of her advocacy on behalf of her client, and viewed the potential speech as something to suppress rather than an opportunity for productive discussion. 

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Legal education

Linguistic dualism and the LPP

By Anne Lévesque March 15, 2017 15 March 2017

Linguistic dualism and the LPP

 

The launch of the Law Practice Program in 2014 marked one of the most significant changes to the licensing process in Ontario in decades. So it was no surprise that all eyes were on the Law Society of Upper Canada’s Professional Development & Competence Committee last fall as members considered the future of the pilot project. They recommended ending it – however after receiving more than 130 submissions from lawyers, law students and organizations, Convocation voted to extend the project for another two years.

The move was especially significant to members of the francophone bar. Many celebrated it as a sign of the law society’s commitment to meet the distinct needs of Ontario’s French-speaking community. Indeed, even the PD&C report that recommended ending the program acknowledged the unique role and importance of the French LPP and recognized the principle of linguistic dualism. The report further noted that the LPP had enhanced competence in the delivery of French-language services and the practice of law in the language.

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Closing argument

Privacy and prejudice in the genetic age

By Omar Ha-Redeye March 15, 2017 15 March 2017

Privacy and prejudice in the genetic age

 

Imagine a dystopian future where genetically engineered babies give rise to a superior strain of humans who eventually dominate the world. Naturally conceived children are perceived as substandard and pushed to the fringes of civilized society.

It’s what we imagine when we watch science fiction films. But with the mapping of the human genome, and greater identification of specific genes that give rise to a medical predisposition, it’s a reality that some are taking very seriously.

In 2008, the U.S. introduced the Genetic Information Non-discrimination Act (GINA), legislation intended to prevent insurance companies from denying coverage based on a genetic profile and prohibit the use of such information in making hiring, promotion or firing decisions.

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