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Political activities for charities: Reframe the question

By Kim Covert January 9, 2017 9 January 2017

The personal is political – and so is the charitable it seems. Federal regulations limiting activities of a political nature have left charities tying themselves into knots and spending valuable resources trying to decide whether any given activity or statement is political – or more importantly perhaps, could be perceived to be so.

The problem is worsened by the fact that many things a charity does can be seen through the lens of political activity. Charities have a unique role to play in public policy debates, as acknowledged in the government’s public policy guidance on political activities, which states in part:

Through their dedicated delivery of essential programs, many charities have acquired a wealth of knowledge about how government policies affect peoples’ lives. Charities are well-placed to study, assess, and comment on those government policies. Canadians benefit from the efforts of charities and the practical, innovative ways they use to resolve complex issues related to delivering social services. Beyond service delivery, their expertise is also a vital source of information for governments to help guide policy decisions. It is therefore essential that charities continue to offer their direct knowledge of social issues to public policy debates.

But with limits placed on political activities, many in the voluntary sector feel it’s not worth the risk to undertake them.

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Legal education

My resolution for legal education: Breaking through the echo chambers

By Rebecca Bromwich January 6, 2017 6 January 2017


2017. It is a new year, a time of new snow, and a time for new ideas. I suggest one counter-cultural notion for all of our consideration that is more often expected from a right-wing thinker than a soft leftie like me:  what if legal classrooms are not meant to be safe spaces?  What if they need to be raw with articulated disagreement and debate in order for learning, and democracy, to take place?

The echo chambers of the 2016 U.S. election have insight to offer us about legal education.  My resolution for 2017 follows from this.  I want to encourage disagreement to take place within my classrooms when I teach. My resolution for 2017 is to do as Desmond Tutu says, “If you want peace, don’t talk to your friends, talk to your enemies.”

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Criminal Law

Strip-searching of women in Canada: Wrongs and rights

By Yves Faguy January 5, 2017 5 January 2017


In the latest issue of The Canadian Bar Review, Michelle Psutka and Elizabeth Sheehy of the faculty of law at Ottawa University remind us that, in its 2001 R. v. Golden ruling, the Supreme Court of Canada recognized that strip-searches of women, particularly by male police officers, are “inherently humiliating and degrading’ and therefore should not be a routine practice. And yet, the authors write, illegal strip-searching of women “remains a persistent problem in Canada.” They offer some reasons why our legal system has failed to end the practice, and propose some solutions. CBA National sat down with Michelle Psutka to discuss their findings:


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A busy year for trade lawyers in 2017

By Mariane Gravelle January 5, 2017 5 January 2017

A busy year for trade lawyers in 2017


The unequal distribution of benefits from globalization dominated much of world politics in 2016. The coming year will be a crucial one for trade law. 

North American Free Trade Agreement (NAFTA):

Signed in 1994 by Canada, the United States and Mexico, the North American Free Trade Agreement (NAFTA) created the largest free trade area in the world. According to GAC, “The NAFTA, being the first comprehensive trade agreement of its type, has set a valuable example of the benefits of trade liberalization for the rest of the world.”

Spurred by PEOTUS Donald Trump’s protectionist trade agenda and his promise to bring jobs back to America, we might see NAFTA being reopened to negotiation in the near future, which may or may not be in the best interest of Mexico and Canada. Renegotiation of this agreement will impact all of Canada’s trade with the USA, and Canada’s economy as a whole. One of the trade goods we’ll be watching for is softwood lumber, which is vitally important to many regions in Canada.

according to their factum filed on appeal.

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Crime Stoppers: How do you guarantee anonymity?

By Justin Ling January 4, 2017 4 January 2017

Crime Stoppers: How do you guarantee anonymity?


Just how far should anonymity stretch to would-be tipsters and whistleblowers in criminal cases? That’s one of the first questions the Supreme Court of Canada will tackle in 2017, as the Crown faces off against a group that it can usually consider an ally: Crime Stoppers.

The case is unusual, but will serve as the goalpost to determine where informer privilege begins and ends for third-party tiplines, like those operated by Crime Stoppers. It comes out of a voir dire decision made at a lower Ontario court, stripping an anonymous phone call made to Crime Stoppers of its automatic privilege.

The call, the Crown contends, was made by the accused — whose identity is protected by a publication ban — and therefore cannot be protected by informer privilege.

Crime Stoppers is coming to the Supreme Court in the hopes that it will “provide a clear statement that informant privilege attaches automatically, as soon as the phone rings,” according to their factum filed on appeal.

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Environmental litigation will be big in 2017

By Supriya Tandan January 4, 2017 4 January 2017

Environmental litigation will be big in 2017


Environmental litigation promises to make headlines in 2017, as some major cases are likely to be heard or decided in different courts around the globe.  Here’s an overview of five trends to keep an eye out for.

1. As Earth’s warming trend continues, citizens sue for action

Climate change litigation gained momentum in 2016 with lawsuits launched against several governments and multinationals.

The right to a livable climate and environment, as articulated in Article 112 of Norway’s constitution, is the basis for legal action by environmental groups suing the country’s national government.

At issue is whether Norway’s decision to award new exploration licences in the Barents Sea violates the right of citizens to a healthy environment.  Coming off the heels of a Dutch court decision in 2015 (still under appeal), which ordered its government to cut emissions by 25 per cent by 2020, a Norwegian re-think of offshore oil and gas development would go a long way in forcing governments to take action on climate change.

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Pet custody: No laughing matter when it comes to women’s equality

By Kerri Froc January 3, 2017 3 January 2017

Pet custody: No laughing matter when it comes to women’s equality


Right before the December holidays, a Canadian judgment denying an application for pet custody, Henderson v Henderson,  captured the attention of the national and international media (including People magazine and the Washington Post).  The treatment of the issue in Henderson, like very many of the pet custody cases, was, at turns, somewhat humorous and derisive, implying that the parties were locked in legal battle because the pets were substitute children (“not unusual in such a situation” because the couple was childless).  It is written in a conversational style that undoubtedly added to its media appeal (“Dogs are wonderful creatures…But after all is said and done, a dog is a dog.”). 

In Henderson, the husband framed his application as an “interim exclusive possession order” for either one of two family dogs, named Willow and Kenya.  Justice Danyliuk ruled that “for legal purposes, there can be no doubt: Dogs are property” and child custody principles cannot apply to them.  Accordingly, the court was unwilling to make “what amounts to a custody order pertaining to dogs” and furthermore, “this sort of application should not even be put before the court.” 

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Year in review

CBA National’s top 10 articles for 2016

By CBA/ABC National December 22, 2016 22 December 2016

CBA National’s top 10 articles for 2016


Here are the top stories that resonated with our readers in 2016.

1. Shaking up the academy

By Leo Singer

Canadian law schools are suffering from an existential crisis.

The prospective lawyers emerging from their hallowed halls are unprepared for a profession in flux, critics argue.  It’s a new world out there: Billable hours and traditional large firms are giving way to new business structures, law is becoming increasingly globalized, and entrepreneurs are creating new ways to deliver cost-effective and flexible legal services.

Meanwhile, law schools are struggling to reconcile the contradictions and tensions inherent in a cobbled-together educational mandate. They find it increasingly tough to defend high tuition fees and higher expectations. And they remain mired in a debate about the true mission of a legal education, and its role in society.

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Legal marketplace

Third-party litigation funding enters a new chapter

By Yves Faguy December 22, 2016 22 December 2016

Last week, Burford Capital, the world’s largest litigation finance company the world, Ltd., bought its main rival Gerchen Keller Capital for $US 160 million. The tie-up is being hailed as  a sign that the litigation funding industry is maturing in the U.S (it is far more established in other jurisdictions, namely Australia and the UK).

Alison Frankel reported on the reasoning behind the tie-up:

The two companies operate via different business models - and the combined Burford plans to continue to use them both. Burford's management owns 13 percent of its publicly traded equity, so its principals make money alongside investors when the firm's investments pay off.

Gerchen Keller, by contrast, is structured like a hedge fund. It has raised more than $1 billion in a handful of closed-end investment vehicles, mostly from large institutional investors such as university endowments and public pension funds, including Michigan and Texas municipal employee funds.

Gerchen Keller earns a stream of income from the 1-to-2 percent management fees it charges for deciding how to invest the money it has raised. It may also bring in performance fees of 15 to 50 percent if its investment decisions pay off. Gerchen's funds have not been in operation long enough to have kicked off performance fees, which will belong in the future to the combined entity.

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Legal marketplace

Looking to 2017: Jordan Furlong on the state of the legal marketplace

By Yves Faguy December 21, 2016 21 December 2016

Looking to 2017: Jordan Furlong on the state of the legal marketplace


As we close out the year, it’s time to take a look at where the legal market is at, and where it might be going. I caught up with legal market analyst and principal of, Jordan Furlong, for what is becoming an annual year-end tradition, where we discuss key developments in the legal industry.

CBA National: Where do you see the legal market going in 2017?

Jordan Furlong: There are probably two parallel tracks of change. Within the legal profession, law firms and the legal community, my sense is that we will continue to see a slow but steady evolution of service provision. I’m not seeing any imminent sign of major change or extraordinary innovation. For the most part the profession’s leadership — law societies, courts and judges, attorneys general, and of course bar associations such as the CBA — generally seem to be positioning themselves in favour of cautious, careful progress towards a number of broadly stated goals. That seems to be consistent with what we’ve seen in the past few years.

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Legal innovation

A technician of the robot revolution

By Kirsten Thompson December 20, 2016 20 December 2016

A technician of the robot revolution


I worry about my role in the future. 

Sure, pundits and thought leaders call it “legal innovation” but, frankly, I’m at risk of being replaced by a robot. And, my friend, so are you. 

The machines have already consolidated their gains in automated industries and are continuing their migration into white-collar work. Artificial intelligence (AI) and cognitive computing, the “next generation” of computing, will render most paperwork (and pushers of paper) redundant. Even contracts, the bread and butter of most lawyers, will be automated—there are already small-scale examples of self-executing “smart contracts.” 

In terms of litigation, not only are computers demonstrating pretty good batting averages in predicting case outcomes (the judicial decisions of the European Court of Human Rights were recently predicted at 79 per cent accuracy using AI) but they are also pretty good at predicting your personal batting average. That’s right—there’s at least one service (Premonition Analytics) that uses AI, predictive analytics and data mining to figure out which lawyers win the most before which judge. 

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Corporate taxes

Apple's legal challenge to EU's Irish tax decision

By Yves Faguy December 20, 2016 20 December 2016


Apple and the Irish government are challenging the European Commission’s August ruling, published yesterday, ordering Ireland to recoup undue tax breaks to the tune of $13 billion euros. The Commission found that the Irish government had selectively conferred an advantage on the iPhone maker – a measure, it says, that carries the risk of distorting competition and affecting trade between EU member states.

Under the terms of the Treaty on the Functioning of the European Union, the measure amounts to state aid, which is forbidden under the common market’s rules.

Apple has responded by charging that the EU has “retroactively changed the rules, disregarding decades of Irish tax law, U.S. tax law as well as global consensus on tax policy." The Irish government is making the case that tax matters are for each member state to decide.

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