The Power of Perspectives

The Canadian Bar Association
Article

The gender identity bill

By Justin Ling March 18, 2015 18 March 2015

The gender identity bill

The Senate of Canada has taken a bill that would afford rights to transgender Canadians and turned it into something entirely different.

That’s the conclusion drawn up by the co-chairs of the Canadian Bar Association’s Sexual Orientation and Gender Identity Conference.

“It’s absolutely damaging. Actually, I think it’s taking away rights that transgender people already have,” says first co-chair Kael McKenzie

The two are referring to an amendment sprung upon Bill C-279 during its study in the Senate’s Legal and Constitutional Affairs Committee.

After months of stalling, the Senators finally brought the bill, which would enshrine ‘gender identity’ in the federal Human Rights Act and add it as a protected ground in the Criminal Code, forward for clause-by-clause.

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Article

The right to strike

By Stéphane Lacoste March 16, 2015 16 March 2015

The right to strike

The Supreme Court of Canada recently issued a ground-breaking decision. The effect of Saskatchewan Federation of Labour v. Saskatchewan v. Saskatchewan has already spurred a litany of literature, but few commentators or journalists have truly grasped the ramifications of this case’s effects.

The case centred on a law passed by Saskatchewan’s government to prevent duly recognized unions from launching a strike in the public sector where the public employer has designated services as “essential.”

In a split 5-2 ruling, the Supreme Court overturned a 1987 decision that refused to acknowledge that the right to strike was protected under the Charter.

Justice Abella, writing for the majority, said striking was an integral part of our democracy and that “the test is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with a meaningful process of collective bargaining”. In that case, the restriction on the right to strike infringes freedom of association and will therefore be saved only if it is justified in a free and democratic society under section 1 of the Canadian Charter.

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Judicial independence

When the personal is political

By Jennifer Taylor March 11, 2015 11 March 2015

When the personal is political

You could hear the cries of “judicial activism” before the ink was dry on Carter v Canada (Attorney General). Carter, of course, was the Supreme Court’s February decision striking down the criminal prohibition on physician-assisted suicide as unconstitutional.

The definition of “judicial activism” is a political one — a vessel into which a whole bunch of preconceptions are poured — and reveals just as much about the definer as it does about the Court. For the sake of this post, let’s just say it means that the Court has reached a decision, most likely in a constitutional case, that invalidates a statutory provision and / or contradicts government policy. It has long been trendy to critique the Supreme Court as “activist.” As Emmett Macfarlane has put it, “In a lot of public discourse, complaints about activist decisions are simply complaints from someone who disagrees with a particular outcome.”

That’s certainly a good part of it.

But the conversation seems different this time. Why so?

Because this time, it feels personal.

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Article

Beware of trolls

By Carolynne Burkholder-James March 5, 2015 5 March 2015

Beware of trolls

A new change to Canada's trademark registration requirements could lead to a rise in trademark trolls, experts warn.

Bill C-31, the Economic Action Plan Act, which passed as an omnibus bill in June 2014, eliminates the "use requirement" as a prerequisite to register trademarks. This means that entities will be able to register trademarks in Canada with merely an intent to use the marks, with the meaning of "intent" yet to be determined by the courts.

"Canadian businesses should know that registered trademark owners will be able to exercise exclusive rights over marks even if they are not using and have never used the mark in Canada or, indeed, elsewhere," explains Carys Craig, an associate professor at Osgoode Hall Law School.

Calling this the most substantial change to Canadian trademark law in more than 50 years, intellectual property experts warn that people will be able to register trademarks for the express purpose of suing entities that want to use the marks for legitimate business purposes. Essentially the trolls would hold the trademarks for ransom from their legitimate owners.

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Criminal law

Life sentences without parole

By Justin Ling March 4, 2015 4 March 2015

Life sentences without parole

The faint hope clause is gone. Not criminally responsible offenders deemed ‘high risk’ may never be released. Consecutive sentences mean judges can imprison Canadians for, virtually, their entire life. Mandatory minimums have removed judicial discretion from sentencing.

Now, the Harper Government is looking to put the final flourish in its tough-on-crime agenda—likely the last initiative it will pass before an election.

It’s fulfilling a promise made by the Prime Minister in 2013: the end of parole for violent murders. “A life sentence in Canada will mean exactly that,” the Prime Minister told a crowd on Wednesday. “A sentence for life!”

The legislative scheme will set an automatic life sentence without chance for parole for anyone convicted of first degree murder if their crime falls into a schedule of exacerbating circumstances.

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Legalization

The business of pot

By Doug Beazley March 3, 2015 3 March 2015

The business of pot

Once there was a federal government with a drug problem. Publicly, it was fighting a war on drugs. Privately, it knew it was losing both the war and the argument.

A government commission recommended that the drug be decriminalized for recreational use. And tobacco companies — anxious to co-opt what they saw as a threat to their core market — began exploring the idea of getting into legal weed.

“The only real threat to our business is that society will find other means of satisfying those needs,” read one confidential memo from an unnamed tobacco industry executive.

The government in question was Richard Nixon’s administration; he ignored the 1972 presidential commission’s recommendation and opted to keep marijuana illegal. But the parallels between where the American drug conversation was 43 years ago and where Canada’s is right now are striking.

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Article

Diversity and inclusion

By Katya Hodge March 3, 2015 3 March 2015

As part its ongoing diversity efforts, the Law Society of Upper Canada released a consultation paper, Developing Strategies for Change: Addressing Challenges Faced by Racialized Licensees.  The paper is the result of an investigation into the challenges faced by racialized lawyers and paralegals by Challenges Faced by Racialized Licensees Working Group in 2012.   This past fall and winter the LSUC held public consultations to gather feedback on the paper and its findings. Raj Anand, former chair and current member of the working group spoke to National about the initiative.

National: Why was it time for this study?

Raj Anand: Because there is an increase of professionals in the legal profession — it’s now about 17 per cent of lawyers in Ontario by our last count — that are racialized and are experiencing challenges on both an individual and systemic level.  But it’s largely anecdotal evidence.  There has been very little study of these issues.  We thought that it was important to the mandate of the Law Society’s acting in the public interest to look into these issues to verify whether the anecdotal evidence was accurate and to determine what would be within the jurisdiction of the Law Society to act upon it.

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Article

Reforming expert evidence

By Yoram Beck and Suzanne Loomer March 2, 2015 2 March 2015

Reforming expert evidence

Expert evidence is a key piece of the litigation process, and, despite its challenges, is here to stay. But that doesn’t mean our legal system shouldn’t explore alternative approaches that reduce the cost of litigation and present expert evidence more effectively.

Of course, expert evidence has always occupied an area somewhere between fact evidence and judicial determination.  Historically, the courts have recognized this and set clear rules and exceptions governing its admissibility. And over the last few years, rules of civil procedure in Canada have empowered the courts to guard against improper conduct by experts. The case law even emphasizes the need for governing bodies to remain vigilant and proactive in their oversight of expert evidence. 

So how should we go about bringing down the costs associated with expert testimony?

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Anti-terror

A terrible oversight

By Justin Ling February 26, 2015 26 February 2015

A terrible oversight

In what appeared to be a hat tip to judicial oversight, Defence Minister Jason Kenney told reporters last week that the government’s new anti-terrorism legislation doesn’t change anything to “strong system of oversight that has always existed” over Canada’s spy agency. "It doesn't give new powers to police or intelligence agencies,” Kenney said of the omnibus public safety legislation. “But rather to judges, to courts."

Similar, albeit slightly less categorical, promises were heard from Public Safety Minister Steven Blaney (“if there are any legal implications, the intelligence agency will have to obtain a warrant and judicial authorization”) and Justice Minister Peter MacKay (“judicial oversight is the backbone of these criminal reforms”). The message: Bill C-51 would require robust oversight from the courts.

Two experts in national security law, Craig Forcese and Kent Roach, are far from convinced.

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Article

After Carter v. Canada

By Jocelyn Downie February 24, 2015 24 February 2015

After Carter v. Canada When it recently struck down the Criminal Code prohibitions on physician-assisted dying, the Supreme Court of Canada gave federal and provincial legislatures 12 months to craft new legislation to meet the conditions set out in its landmark ruling. Of course, the legislatures could do nothing, just as they did after the SCC struck down the criminal law on abortion years ago. But this would mean that, as of February 6, 2016, physician-assisted dying would be legal in Canada for those individuals who meet the criteria set out by the Court (subject to the general regulation of health services).

I leave the assessment of the political wisdom of choosing this path to the political scientists and strategists.  Here, I simply explore what the next steps for federal lawmakers would be if Parliament were to decide to legislate in an effort to respect the SCC decision and reflect the will of the electorate. The obvious questions then are: “what should this legislation contain?” and “how should the federal Parliament go about legislating on the issue of physician-assisted dying?”

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Article

Is it time to legalize marijuana?

By February 20, 2015 20 February 2015

Is it time to legalize marijuana? Public support for the legalization of marijuana in Canada has increased over the decades, with 59 per cent of people polled saying they think the use of marijuana should be made legal, according to a 2014 survey by Angus Reid Global. But just as public support has grown, so has the scientific understanding of the real dangers of marijuana. Opponents to the legalization of marijuana worry about the health risks of “normalizing” its use, including the risk of addiction and the implications for brain and heart health, particularly for younger users.

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Article

A return to the fold?

By Yves Faguy February 20, 2015 20 February 2015

A return to the fold?

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