The Power of Perspectives

The Canadian Bar Association
Children's rights

Rights of the child: Have we really come such a long way?

By The Hon. Donna J. Martinson, Caterina E. Tempesta and Suzanne S. Williams December 13, 2016 13 December 2016

 

Twenty-five years after ratifying the United Nations Convention on the Rights of the Child (CRC) Canada ranks 17th out of 29 affluent nations for children’s overall wellbeing. Canada drops to 26th for inequality between the most affluent and least affluent children. Children of all backgrounds are affected by our poor performance, but high risk and marginalized youth are particularly vulnerable.  So, what can lawyers do to improve the state of Canadian children?

Since Canada ratified the CRC on December 13, 1991, it has become the most universally accepted human rights instrument with all but one country in the world having ratified it. The CRC contains a bundle of civil, political, economic, social and cultural rights to support children’s optimal development and wellbeing.

While the CRC is not directly incorporated into domestic law through enabling legislation, it is referenced in Canadian law in limited instances, for example, the preamble to the Youth Criminal Justice Act, and has been cited in Supreme Court of Canada decisions. Canada’s position is that such enabling legislation is not required as it ensured when the CRC was ratified and continues to ensure that its laws, policies and practices comply with the CRC. It is presumed that Canadian statutes conform to the CRC and other international instruments.

However, in the most recent “report card” on Canada’s CRC compliance, the UN Committee on the Rights of the Child said the absence of comprehensive CRC legislation results in inconsistencies in implementing child rights across the country.  Limited awareness of the CRC among not only children, but also adults, was noted by the Committee, as well as the need for child rights training for professionals working with children, including judicial authorities.

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Criminal law

US extraterritorial hacking warrants in effect

By Mariane Gravelle December 12, 2016 12 December 2016

 

As the landscape of our society has changed significantly with the advent of the internet, it should come as no surprise that an extensive amount of criminal activity takes place online. This poses new challenges to law enforcement agencies as the development of rules and regulations has not been as quick to evolve as technology has.

In April 2016, however, the Supreme Court of the United States approved changes to rule 41 of the Federal Rules of Criminal Procedure, which came into effect last month, that allow law enforcement agencies to obtain search warrants that are enforceable in extraterritorial jurisdictions. Simply put, this will allow American law enforcement agencies to, amongst other things, hack into the computers of individuals located outside of the jurisdiction they operate in. These changes came into effect Thursday December 1st, 2016.

Of the changes, Motherboard contributor Joseph Cox writes

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Legal innovation

Building a legal app: What principle do you want to teach?

By Sam Sasso December 12, 2016 12 December 2016

 

When coming up with an idea for building a legal app, the first question you should answer is what principle it is that you want to teach.

Start with the area of law you enjoy most.  Be honest.  It's okay to enjoy tax law above all others.  Personally, insurance is my favourite.

Make the principle you want to teach as personal as possible, that is make sure it's something you are going to work on for hours on end, or present to your clients or other lawyers as part of a seminar.  With any luck, you could become a go to person with respect to that principle, so make it one that you would like to be attached to for a while.

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Cover story

Who owns space?

By Doug Beazley December 7, 2016 7 December 2016

Who owns space?

 

When Canadian-American tech mogul Elon Musk stood before an International Astronautical Congress audience in Mexico in September to roll out a wildly ambitious plan to start ferrying human settlers to Mars over the next decade or so, online comment boards instantly lit up with armchair engineers arguing over whether the plan could actually work.

The tiny international community of specialists in space law, on the other hand, zeroed in on a different question – whether what Musk was planning would be legal.

Sounds academic, right? It’s not – not any more. Fifty years after the United Nations General Assembly adopted the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space – better known as the ‘Outer Space Treaty’ – private enterprise has started pushing forward into the vacuum left by the slow collapse of government-sponsored manned space exploration following the end of the Cold War. Musk’s grand vision notwithstanding, private enterprise’s interest in space is commercial, not scientific: There are vast sums of money to be made up there – from mining, power generation and tourism, for starters – and no shortage of entrepreneurs looking to plant their flag in extraterrestrial soil.

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Conflicts of law

Battle to rule the splinternet

By Yves Faguy December 6, 2016 6 December 2016

Battle to rule the splinternet

 

Ever since the world went online, free-speech enthusiasts have worried about national governments legislating the internet, and domestic courts enforcing those laws beyond their territory.

The first signs of this appeared with libel cases. Media companies were especially spooked in 2002 after an Australian court allowed a Melbourne businessman to sue New York publishing company Dow Jones & Co for online defamation. Critics of the ruling at the time declared it a tragedy for free speech, and warned of the demise of the internet and its fragmentation. Before long, media companies adjusted themselves and the internet continued on its path to become the global mass medium of choice.

Still, anxiety over the legal fragmentation of the internet keeps returning to the fore, with national courts now targeting the likes of Google and Facebook.

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Q&A

Q&A with Daniel Martin Katz: The finance of law

By Yves Faguy December 6, 2016 6 December 2016

Q&A with Daniel Martin Katz: The finance of law

Lawyers need to pay more attention to the financial industry, do better at predicting and pricing risk for their clients, and limit their own exposure to swings in the business cycle. Daniel Martin Katz, an associate professor of law at Illinois Tech – Chicago Kent College of Law, sat down with Senior Editor Yves Faguy to discuss some of the lessons fintech offers for the future of law.

CBA National: You say we are beginning to see the financialization of legal services. What do you mean by that?

Daniel Martin Katz: So in one bucket we’re seeing fintech removing meaningless frictions from various types of financial processes, by trying to work around banks – in mortgage underwriting, and peer-to-peer lending, that sort of thing. In the other bucket, there’s what we previously thought of as exotic risks or uncharacterizable risk. With data analytics, we’re able to predict or characterize them. There are aspects of those two branches in law. Financialization [of legal services] deals mostly with the risk part – predicting risk, which is a big thing that enterprise lawyers in particular do for people.

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Practice hub

Lunch with Eric Gottardi: Becoming a spokesperson

By Dana Kelly December 6, 2016 6 December 2016

Lunch with Eric Gottardi: Becoming a spokesperson

 

The Diners

The expert: Eric V. Gottardi, criminal defence lawyer and senior partner at Peck and Company, Vancouver; regularly appears as a legal analyst in the media

Background: Gottardi worked as a judicial law clerk at the Court Appeal of Ontario after obtaining his law degree from Queen’s University

The apprentice: Catherine Rose, articling student at Sutherland Jetté, Vancouver

Background: Rose recently graduated from the Allard School of Law at U.B.C. Areas of interest include advocacy, litigation, criminal law and constitutional law

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Practice hub

Your career: Seeking client feedback

By Kim Covert December 6, 2016 6 December 2016

Your career: Seeking client feedback

 

What does your client think about the service you provide? Have you asked?

Clients like being asked for feedback, says Mark Howe, Director of Client Relations for Thompson Dorfman Sweatman.

In fact, Howe said during a PD session at the CBA Legal Conference in Ottawa in August, it’s usually the lawyers in the firm who need to be convinced that asking clients what they think is not a bad idea.

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Health and fitness

Band-aid for the mind: Mental health first aid training

By Katya Hodge December 6, 2016 6 December 2016

Band-aid for the mind: Mental health first aid training

 

If you find yourself choking in public, chances are someone will recognize your health crisis and put their first aid training in action. But suffer a panic attack in public? People will walk right past you, avoiding all contact.

“They just don’t know how to respond,” explained Dr. Raj Bhatla, chief of psychiatry at The Royal Ottawa Hospital, during a PD session at the CBA Legal Conference in August in Ottawa. “And the barrier to action tends to be fear and lack of understanding.”

According to Bhatla, the course helps “build capability and confidence” dealing with someone who might be experiencing a mental health issue. This includes spotting early signs of distress and helping in a crisis situation, like a colleague (or stranger on the street) having a panic attack.

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Big picture

Protecting children’s rights starts with knowing what they are

By CBA/ABC National December 6, 2016 6 December 2016

Protecting children’s rights starts with knowing what they are

The United Nations Convention on the Rights of the Child, which Canada ratified along with 194 other countries, instructs that the child’s best interests must be a primary consideration in all actions concerning children. Though the Canadian Charter is explicit in that it should be read as being consistent with our international obligations, the CBA has expressed serious concerns about the knowledge lawyers and other legal professionals have about children’s rights, and how rarely the Convention is invoked particularly with respect to vulnerable, high risk and marginalized children in a number of areas.  Here are some figures.

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Ethics

Should lawyers have a monopoly over the provision of legal services?

By Gavin & Brooke MacKenzie December 6, 2016 6 December 2016

Should lawyers have a monopoly over the provision of legal services?

 

Is there a good reason to allow non-lawyers to provide legal services?

Lawyers’ education and training is superior. Admission standards are high. We are bound by codes of conduct and must be insured. Lawyers who breach professional duties may be disciplined. Why should anyone with lesser qualifications be inflicted on the public?

The short answer is that lawyers do not and cannot fill the public’s need for legal services. According to the 2009 Ontario Civil Legal Needs Project, lawyers provide advice and representation for only 11.7 per cent of what the study called “justiciable events:” issues relating to consumers, employment, debt, social assistance, housing, disability pension, discrimination, family law, and hospital treatment issues, among many others.

As Ontario bencher Malcolm Mercer has pointed out, lawyers don’t necessarily perceive the extent to which the public’s legal needs are unmet. We tend to see the access to justice problem strictly from our own professional perspective. And as Professor Gillian Hadfield has noted, the problem is aggravated by the fact that the employer, the bank, or the business on the other side the legal issue, does have access to expert legal advice.

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Agents of innovation

A2J Evolution: Time for a redesign

By Brandon Hastings December 6, 2016 6 December 2016

A2J Evolution: Time for a redesign

 

Why, after 30 years of reports on the access to justice crisis, do we have no real fundamental change?

One answer to this question, posed by Nicole Aylwin, assistant director of the Winkler Institute and adjunct professor at Osgoode Hall, may be that the justice system has evolved similarly to our common law, leaving our justice-delivery mechanisms in a deceptively tangled Gordian Knot.

In the common law tradition, each new set of facts forces the law to grapple with human nature, incrementally refining its rules and in theory moving us closer to an ideal world. The trouble is that evolution is not always as tidy as we would like it to be. Over time, the sum of its almost imperceptibly small changes can mask more serious, fundamental deficiencies.

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