The Power of Perspectives

The Canadian Bar Association

McLachlin: Where do we go from here?

By Yves Faguy August 14, 2015 14 August 2015

McLachlin: Where do we go from here?

“The question is not whether the rules governing the legal profession should be liberalized but how.”

That was the clear message delivered by the Chief Justice of the Supreme Court Beverley McLachlin to delegates at the opening of this year’s CBA Legal Conference in Calgary.

Quoting from Lord Tennyson's Ulysses (Come my friends, it's not too late to seek a newer world) and drawing inspiration from the findings of the CBA Legal Futures report, McLachlin urged the legal profession to explore new ways to deliver legal services all the while protecting its core values.

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Anti-terrorism

Travel bans and mobility rights

By Justin Ling August 13, 2015 13 August 2015

Travel bans and mobility rights

Determined to stop Canadians joining the terrorist conflict abroad and vying for re-election, Stephen Harper has vowed that if he returns to 24 Sussex, he’ll institute new criminal sanctions on anyone caught trying to enter terrorism hotspots.

The Conservative Party leader has yet to detail where would be listed as verboten areas — except to say that regions inside the Islamic State would likely be on the shortlist — or how stiff the penalty would be. Speaking to supporters last week, Harper said his proposal would criminalize the act of travelling to certain regions under extremist control.

Some lawyers are raising the possibility that the proposal would, almost by definition, infringe the mobility rights of Canadians, protected under section of the Canadian Charter.

The Conservative Party has said that the new law would exempt travellers from prosecution if they were travelling for humanitarian purposes, as a journalist, or to fight for an armed group against the terrorist organization. It is not clear whether there is also an exemption for those who are visiting family.

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Criminal law

The new self-defence law: Progressive development?

By Vanessa MacDonnell August 12, 2015 12 August 2015

The new self-defence law: Progressive development?

For decades, feminist law reformers have argued that the law must account for the different ways that men and women act in self-defence. In the 1990 decision of R v Lavallee, the Supreme Court of Canada agreed, concluding that “the perspectives of women, which have historically been ignored, must now equally inform the ‘objective’ standard of the reasonable person in relation to self-defence.”

It should perhaps have come as no surprise, then, that when the government introduced changes to the law of self-defence in 2014, the amendments would reflect a more context-sensitive approach. The extent of the feminist imprimatur on the law is nonetheless unexpected.

The new section 34 of the Criminal Code replaces a number of existing self-defence provisions. The first part of the provision sets out the basic requirements of self-defence. Persons acting in self-defence must “believe on reasonable grounds that force [or a threat of force] is being used against them or another person”; “the act that constitutes the offence [must be] committed for the purpose of defending or protecting themselves or the other person,” and “the act committed [must be] reasonable in the circumstances.”

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CBA Legal Futures

The CBA Legal Futures report, a year later

By Yves Faguy August 11, 2015 11 August 2015

The CBA Legal Futures report, a year later

A year after the CBA Legal Futures Initiative released its final report on new directions for the legal profession in Canada, National sat down with Fred Headon, chair and past president, to talk about the impact the report’s recommendations have had and where the discussion goes next.

National:  A year later, how would you describe the general reaction to the CBA Legal Futures report?

Fred Headon: Very encouraging. Overall, we are finding many lawyers are keen to better understand what is going on in the market for legal services and who are committed to finding better ways to serve their clients. How we get there, rather than whether we need to get there, is what we grapple with now. The themes in the recommendations seem to resonate.

N:  What tells you that?

FH: Well, the report is being cited by a number of media outlets.  We’ve also had almost 3,000 people now attend our presentation on the report. It is now mandatory reading on some law school course curricula. Firms and regulators also wanted to hear from us. Lawyer from overseas are interested in our work. Richard Susskind’s Guide to Strategy for Lawyers, written for CBA members, was downloaded almost 900 times the day it was released alone. That suggests to us that there’s a thirst for work of this sort out there.

N: So what comes next?

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Opinion

The Supreme Court and the legacy of the Quebec Secession Reference

By Jennifer Taylor August 10, 2015 10 August 2015

The Supreme Court and the legacy of the Quebec Secession Reference

From time to time the Supreme Court is called upon to answer the big, existential questions about Canada. So it is noteworthy that the newest appointment to the court, Justice Russell Brown, once wrote—when he was a University of Alberta law professor—that a province’s secession was not a matter for the court to decide.

The comment was published in a blog post about the Supreme Court’s groundbreaking opinion in the Reference re Secession of Quebec, handed down a few years after the razor-thin referendum result in 1995, and which established the “clear majority on a clear question” principle: If a clear majority of Quebecers voted to secede, that would trigger a constitutional obligation on the rest of the federation to negotiate the terms of that secession. Here’s what Professor Brown wrote in 2007:

Parliament conferred upon the Court powers to interpret the rules of the game, not to determine how and when someone can quit the game. If there ever was a question for legislatures and parliaments to sort out for themselves, subscription to and disassociation from a federal structure is surely it, no?

Respectfully, my own view is that the Supreme Court was right to tackle this question, and has the competence and legitimacy to answer similar questions in future. This part of the court’s role is all the more important given that in 2015 and onward, many of the existential questions facing Canada will inevitably relate to the urgent issue of reconciliation of Aboriginal and non-Aboriginal communities in Canada. These are likely to end up on the Supreme Court Justices’ desks.

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Mining & human rights

Shortcomings in mining oversight are real but fixable

By Josh Scheinert August 10, 2015 10 August 2015

Shortcomings in mining oversight are real but fixable

The UN Human Rights Committee (HRC) has concluded that Canadian extractive companies operating abroad are not behaving responsibly, and the Canadian government is not addressing the issue effectively.

As part of its Universal Periodic Review process, the UN HRC expressed concern over “allegations of human rights abuses by Canadian companies operating abroad” and the lack of effective remedies for affected persons. It called on the government to increase its efforts in ensuring Canadian extractive companies respect human rights abroad.

The government should not dismiss the HRC’s recommendation. Court cases against Canadian owned mining companies in Ontario and British Columbia allege that companies are complicit in forced labour, rape, and murder. This issue is real and serious.

Canada has tried to improve the human rights record of Canadian extractive companies operating abroad, putting out an Enhanced Corporate Social Responsibility (CSR) Strategy in November 2014. But, there are practical steps based on global best practices it can take to provide an even better framework to make sure companies act in a manner that respects human rights abroad.

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Privacy Rights

Mass internet surveillance or unconstitutional search and seizure?

By Justin Ling August 7, 2015 7 August 2015

Mass internet surveillance or unconstitutional search and seizure?

An American court challenge could spell the end to one of the NSA’s most powerful mass-surveillance programs, and that may impact Canadian privacy rights.

An application filed on Tuesday to the 9th Circuit Court of Appeals in California is alleging that, by hard-tapping fibre optic cables that carry the majority of our communications on the internet, the American foreign intelligence agency is perfectly emulating the activities that led to the fourth amendment.

The challenge is being brought forward by the Electronic Frontier Foundation, an organization of pro-privacy advocates who have been litigating cases like this for much of a decade.

In this appeal, Jewel v. NSA, the organization is trying to convince the federal court that they can litigate the case without delving into a trove of classified material that the courts will be extremely resistant to touching.

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Peer support resources for solos and small firms

By James Careless August 6, 2015 6 August 2015

Peer support resources for solos and small firms

Compared to their larger legal counterparts, solo practitioners and small law firms don’t have the time or money to invest in analysing and improving their business practices. Fortunately, there are many peer-based support options that can them up their games in affordable, efficient ways.

Tap Into associations

Whether it be a local CBA branch or a group of lawyers focused on a specific area of legal practice, associations can be great peer resources. After all, their members are lawyers too; they have an intimate knowledge of the struggles of legal life. 

A case in point: As a solo who specializes in immigration, Toronto lawyer Vince Wong relies on the Canadian Association of Refugee Lawyers, the CBA’s National Citizenship and Immigration Law Section, and the Toronto Lawyers Association for peer support. “I tap into these associations for the additional formal training I need, and to keep myself on top of changes to the law and new legal precedents,” said Wong. “These are my peers; people who are doing the same work as I am, and who understand what I am dealing with.”

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The practice

Your chance at the speaker’s podium: four success factors

By Carl Friesen August 5, 2015 5 August 2015

Your chance at the speaker’s podium: four success factors

Have you ever looked through the lineup of speakers at a conference, seen the name of someone you knew at law school, and wondered why your name isn’t on that program?

There are many advantages for lawyers who give presentations to industry and association gatherings of people in their market. Consider: 

·      Public speaking can be a great opportunity to connect with potential clients -- you have the chance to present yourself as knowledgeable about your area of expertise, as well as show your understanding of the issues potential clients are facing.

·      There’s just something about wearing a “Speaker” badge at an industry conference or other event – what you say in your conversations has more power.

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Supreme Court of Canada

An unconventional but welcome pick

By Justin Ling July 29, 2015 29 July 2015

An unconventional but welcome pick

Though the announcement of Canada’s newest appointment to the top court stirred some mild controversy in the national press, Supreme Court-watchers are rather more optimistic about the unconventional — albeit expected — pick.

Russell Brown — usually referred to as just “Russ” — was appointed from the Alberta Court of Appeal, after a brief stint on that bench, and was previously Associate Professor and Associate Dean at the University of Alberta. Brown previously served as Associate Counsel at firms in Alberta and British Columbia — Miller Thomson LLP, Carfra & Lawton and Davis & Company, according to a release from the Prime Minister’s Office.

But the job that has drawn the most attention — and which is not mentioned in the government’s announcement about his appointment — was on the advisory board of the Justice Centre for Constitutional Freedoms.

“The free and democratic society which the Canadian Charter of Rights and Freedoms holds out as our ideal can only be fulfilled by honouring and preserving Canada’s traditions of freedom of speech, freedom of religion, freedom of association, other individual rights, constitutionally limited government, the equality of all citizens before the law, and the rule of law,” the organization’s mission statement reads on their website.

“And yet these core principles of freedom and equality continue to be eroded by governments and by government-funded and government-created entities like Canada’s public universities, and human rights commissions.”

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Opinion

Mitigating the perils of international child abductions

By Senator Raynell Andreychuk July 28, 2015 28 July 2015

International travel and transnational marriage have become increasingly common.

So has divorce.

When a relationship falls apart, it is not unusual for one or both parties to want to return to their country of origin. In a marriage breakdown, children can be the issue of discord, with the child’s best interest being lost.

When there are children involved, and one parent decides to bring the children from the relationship along without the consent of the other parent, it can lead to complex legal problems, requiring coordination between different jurisdictions, as well.

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Prison law reform

By Justin Ling July 27, 2015 27 July 2015

Prison law reform

After nearly ten years in power, the Harper government is looking back on its legacy and pointing to its criminal justice reforms as one of its primary accomplishments.

But while the crime rate has continued to fall as those reforms have come into force, there are mounting concerns about the state of Canada’s prisons. Legal experts in the area are even pushing the idea that  Charter rights of Canada's prisoners are being violated as a consequence. 

Now, the Canadian Bar Association is looking to address some of these concerns. At the annual general meeting in August, the CBA council will be debating four resolutions that will set the association’s position on prison reform.

If adopted, one will formally request that all levels of government engage in legislative changes that “clearly restrict and regulate the use of solitary confinement in Canadian correctional institutions,” and make sure those regulations are followed. Another is requesting that the federal government ensure that it is meeting its own commitments under the Corrections and Conditional Release Actwhich guarantees prisoners’ access to medical care, especially mental health services.

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