The Power of Perspectives

The Canadian Bar Association

Charitable intent: navigating the murky waters of terrorist financing

By Doug Beazley July 22, 2015 22 July 2015

Charitable intent: navigating the murky waters of terrorist financing

If the first casualty of war is truth, the second is altruism. In its rush to strengthen the legal bulwarks against terrorism in the years since 9/11, the federal government may have lost sight of one of the more powerful tools in the hearts-and-minds arsenal: charity.

Consider this scenario: You’re running an aid group that provides disaster relief. Your work involves delivering medical supplies to a conflict zone where terrorist cells are active. A clinic uses drugs supplied by your group to treat someone for gunshot wounds who turns out to be a terrorist. 

Technically, you’ve just committed a crime that could put you in prison — or at least put you out of the giving business for good. Section 83.19 of the Criminal Code makes it an offence to “knowingly” facilitate terrorist activity. But the mens rea element covered by the word “knowingly” is made almost meaningless by subsection 83.19(2) — which says that a terrorist activity is “facilitated” regardless of whether you knew that a terrorist activity was being facilitated, whether any terrorist activity was forseen or planned, or whether any terrorist activity was carried out.

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If this, then that: award-winning contract innovation at CIBC

By CBA/ABC National July 22, 2015 22 July 2015

The legal contracting team at CIBC in Toronto employed modular design concepts to streamline and harmonize the elements of the thousands of supplier contracts CIBC produces each year, saving the bank time and optimizing legal resources.

Dubbed “Project Refresh,” the system won the 2015 CCCA Innovation Award, presented earlier this year.

“Like a lot of in-house contracting teams, you’ll have a variety of contracts to do, lower-dollar to higher-dollar, lower-risk to higher-risk, different types of products and different types of services, different clients, bank clients with higher or lower risk tolerances, it runs the gamut,” says Tammara Pabón, senior counsel and a member of the award-winning team.

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Anti-terrorism

Bill C-51 challenged in court

By Justin Ling July 21, 2015 21 July 2015

Bill C-51 challenged in court

It’s been law for barely a month, but a constitutional challenge to Canada’s new anti-terrorism law has already been filed.

In an application to an Ontario Superior Court in Toronto filed Tuesday morning, the Canadian Civil Liberties Association (CCLA) and Canadian Journalists for Free Expression (CJFE) are asking that core provisions of the Canadian Anti-Terrorism Act 2015 be declared null and void.

It’s fulfilling a prediction made by many in the legal community that the legislation would soon be put through the legal wringer.

It also promises to set an interesting precedent in Canadian law, should the courts even entertain the challenge.  Indeed, as far as the litigants are concerned the law has yet to be applied.

Such is the catch-22 of the Anti-Terrorism Act, 2015: proving its supposed constitutionality, or more specifically the lack thereof, appears to be virtually impossible by design.

The CCLA and CJFE are specifically attacking five specific elements of the law.

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Voting rights

Remembering the fight for women’s suffrage

By Rebecca Bromwich July 17, 2015 17 July 2015

Remembering the fight for women’s suffrage

“Well-behaved women rarely make history”, as was famously said by Laura Taylor Ulrich. This year’s Meryl Streep film, set to be released in October, “Suffragette” stars her as Emmeline Pankhurst, a major figure in the history of the women’s suffrage movement in the British Empire. The film chronicles the lives of women who were, by the standards of their times, badly behaved indeed, and portrays them blowing up post-boxes, marching in demonstrations, and resisting arrest. Without a doubt, this factually-grounded cinematic portrayal will bring to the mainstream public consciousness a renewed awareness of the risks, losses, and sacrifices associated with the hard-won vote.

Hopefully, this consciousness will also help entice Canadians – all Canadians – to actually use their right to vote in the federal election set to take place at the same time.

The story of Canadian democracy is one in which a debt is owed to military men, yes, but it is also a story of people of courage in civilian life, ordinary people doing extraordinary things.  It was not just soldiers on battlefields who won for us our democracy but we owe our democratic rights but also women suffragists, who undertook many years of struggle, were beaten, jailed, went on hunger strikes, carried out acts of civil disobedience, and even died, for their cause.  The striving of activist women like Nellie McClung was crucial to building the representative democracy we experience today.

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Going solo – do you have what it takes?

By James Careless July 16, 2015 16 July 2015

Going solo – do you have what it takes?

A solo legal practice is not for everyone. There’s no regular paycheque, and you’re in charge of everything from conducting cases to finding clients to making sure the bills are paid – and collected.

On the other hand, solo practitioners can create their own careers. They don’t have to seek employment because they are their own employers. Within reason, solo practitioners can also set their own hours and work from home if they so choose.

So what does it take to be a solo practitioner? Here are some must-haves:

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The practice

Is there a doctor in the courtroom?

By Carolynne Burkholder-James July 16, 2015 16 July 2015

Is there a doctor in the courtroom?

John Norman did not initially plan to become a lawyer. 

“I was really into science,” says Norman, who has a master’s degree in molecular genetics and a doctoral degree in biochemistry. “My wife makes the joke that I was like one of the guys on The Big Bang Theory.”

Norman, now a partner at Gowling Lafleur Henderson LLP, is just one Canadian lawyer who uses his advanced academic credentials in practising law. At the time when he was completing his PhD, many students were having difficulty finding post-doctoral research positions because of grant cubacks, says Norman.

He became interested in law after attending a seminar where a representative from a global pharmaceutical company described the advantages of blending science with the law. “I remember I was walking home with my wife and I said, ‘I'm going to apply to a professional school.’ And she said, ‘I was wondering when you were going to say that. So when are you going to write the MCAT?’” Norman says with a laugh. “And I said, ‘Actually I'm thinking about law school.’ And she said, ‘You've got to be kidding me.’”

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Article

Drone laws

By Caitlin Szymberski July 15, 2015 15 July 2015

Drone laws

Once exclusively associated with military operations abroad, unmanned aerial vehicles (UAVs), more commonly known as drones, are finding an increasing number of commercial applications in Canadian civilian life — in construction, land surveying, meteorology, urban planning and film/cinematograpy.  In light of their growing popularity, Transport Canada is in the process of amending its current regulatory framework, which lacks rules governing the use and purpose of UAVs. Set to be introduced sometime in 2016, these new regulations will render UAVs more accessible for businesses wishing to facilitate their operations with on-demand aerial views all the while ensure that Canadians in the sky and on the ground are safe.

In the past, civilian use of UAVs in Canada was limited by high costs and regulations, the latter requiring UAV operators to obtain permission from Transport Canada in the form of a Special Flight Operator Certificate (SFOC) before each operation. According to Martin Sheehan, partner specializing in, inter alia, aviation law at Fasken Martineau Dumoulin LLP, the cost of UAVs has considerably decreased over the last few years, rendering them more accessible to the public. According to Transport Canada, the number of SFOCs that they have issued has increased 485 per cent in the last two years, going from 345 in 2012 to 1,672 in 2014, 

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Criminal law

Who are you calling racist?

By Rakhi Ruparelia July 14, 2015 14 July 2015

Who are you calling racist?

What would you say if someone asked you if you were racist? Even if you were aware of your racial prejudices, would you admit to them? What about in open court?

The questions we use to screen prospective jurors for racial partiality in trials involving racialized accused are equally blunt, unsophisticated, and unhelpful. Our examination, originating from the Ontario Court of Appeal’s groundbreaking decision in R v Parks in 1993, essentially consists of asking prospective jurors whether they harbour racial prejudices and if so, whether they can put them aside in their decision-making.

Mr. Parks, a Black man in Toronto, was accused of the second-degree murder of a white cocaine user in the course of selling him drugs. Relying on s. 638(b) of the Criminal Code which provides an accused or prosecutor the right to challenge on the ground that “a juror is not indifferent between the Queen and the accused”, Parks’ counsel sought to ask prospective jurors whether their “ability to judge the evidence in the case without bias, prejudice or partiality” would be affected by the fact that the accused was Black and the deceased was a white man.

Arguably the most noteworthy decision on racism in Canadian criminal justice of that decade, Parks not only recognized the right of Black accused to question prospective jurors about racial partiality; it also highlighted the pervasive and “grim reality” of anti-Black racism. Racism in its many manifestations, Justice Doherty concluded, is part of our “community’s psyche.”

Sadly, the decision also was inherently limited.

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Charter arguments won’t be heard in niqab ban appeal

By Justin Ling July 10, 2015 10 July 2015

Charter arguments won’t be heard in niqab ban appeal

When Zunera Ishaq goes before the Federal Court of Appeal to fight for her ability to become a citizen, a coalition of six religious, human rights and legal organizations will not be heard as intervenors.

The Canadian Civil Liberties Association, the National Council of Canadian Muslims, the South Asian Legal Clinic of Ontario, South Asian Bar Association of Toronto, the Ontario Human Rights Commission, the Barbra Schlifer Commemorative Clinic, and the Women’s Legal Education and Action Fund all applied to intervene in the case. Ottawa is appealing a Federal Court decision allowing Ishaq to wear her niqab when she takes the citizenship oath.

In June, the Court of Appeal rejected their applications.

“In this case a number of the applicants seem to think they will be able to assert new factual matters in the area of social science in support of their submissions in the appeal,” the Court of Appeal wrote.

It went on to note that, in submissions to the court, the would-be intervenors spent significant time explaining why their submissions would be unique and non-redundant, but did very little to establish that their arguments would differ in any important way from the case made by Ishaq; or that they would exist within the scope of the existing case, and within the confines of the existing evidence.

It’s not clear whether the court will permit any other intervenors, but it does offer a cautionary tale for would-be litigants looking to join cases of public interest.

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Access to justice

An arm and a leg

By Noel Semple June 28, 2015 28 June 2015

How much does it cost individual Canadians to seek civil justice?  The answer, it seems, is "too much.” There is broad agreement that the high cost of justice is undermining their ability to access justice in matters relating to family, employment, and consumer law.  This is confirmed by research carried out by the Costs of Justice project at the Canadian Forum for Civil Justice. The National Self-Represented Litigants Project at the University of Windsor’s law faculty has also contributed valuable data from the perspective of justice-seeking individuals.

Seeking to build on this progress, my new paper offers a comprehensive empirical account of the costs confronting individual justice-seekers in this country.  It defines and categorizes monetary, temporal, and psychological costs. It compiles data quantifying these costs for Canadian litigants, including both those with the benefit of counsel and those who are self-represented. Some of the key findings:

·       The monetary costs of seeking civil justice include court fees and disbursements, but lawyer’s fees dwarf these costs.  In the personal client hemisphere of legal practice, time-billing Canadian lawyers charge roughly 50 per cent more per hour than their American counterparts do.

·       Temporal costs can be understood in three ways. First, Canadians' efforts to obtain civil justice often last for many months (duration cost).  Second, while these efforts continue, they can consume many hours from the justice-seeker's days (workload cost).  Third, for self-represented litigants in particular, seeking civil justice can be time-consuming enough to undermine employment and personal relationships (opportunity cost).

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Article

Senate set to vote on controversial private member’s bill

By Justin Ling June 26, 2015 26 June 2015

After years of wrangling in Parliament, and an unprecedented vote by Conservative senators against a ruling by the Senate’s Conservative Speaker, C-377 is now finally coming for a final vote in the Red Chamber.

The private member’s bill, dubbed the Union Transparency Act, has been one of the most controversial of the last decade to make it this far in the legislative process.

The purpose of the bill is simple: it would extend application of the Income Tax Act to cover labour unions, and, as the bill phrases it, “labour trusts.” That means they would have to report certain information – assets and liabilities, accounts payable and receivable, salaries, bonuses, gifts, service credits, lobbying activities, etc. – to the Canada Revenue Agency each year or be subject to a $25,000 fine. Much of that information would be published shortly thereafter.

Criticism of the bill has focused on two pegs: the bill burdens unions with costly paperwork and bureaucracy, and it subjects them to entirely unfair treatment.

On the former, proponents — like the bill’s author, Conservative MP Russ Hiebert — have said much of this reporting already exists, and this is merely requiring them to provide some of the information in a more detailed manner.

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The practice

Two experts, two opinions

By Suzanne Loomer June 24, 2015 24 June 2015

Two experts, two opinions

Often in cases where the quantum of finan­cial loss or business value is at issue, two financial experts will give two different opinions about the value of a business or the financial losses suffered by one of the parties.  When the differences in opinion are significant, there is a risk that one or both testimonies will be ignored, lose credibility or, at the very least, create confusion among the stakeholders.  And beyond that, the litigants find themselves in the difficult situation of negotiating a settlement based on divergent valuations. As well, the court faces the challenge of understanding the reasons for the difference in the opinions.   While financial expert witnesses, like Chartered Business Valuators, strive to uphold their duty to remain independent and objective, significant differences in opinions can be met with allegations of expert bias and advocacy.

So how is it that two experienced expert witnesses form conclusions that are dramatically different from one another, yet seemingly based on the same set of facts?  And, how can experts and counsel work toward improving the presentation of expert evidence in a way that encourages settlement and better informed judgements, as well as reduces the perception of bias on the part of experts?

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