The Power of Perspectives

The Canadian Bar Association
Closing argument

Cleaning the cobwebs – and some outdated presumptions – from the Criminal Code

By Omar Ha-Redeye September 15, 2017 15 September 2017

Cleaning the cobwebs – and some outdated presumptions – from the Criminal Code

 

The federal government is finally doing some housekeeping of the Criminal Code with Bill C-51. It may find some hidden cobwebs – and according to some, there may even be monsters under the bed.

The Criminal Code is a place where old, obsolete, or even unconstitutional laws languish in purgatory. Most governments have been content to simply ignore these outdated provisions, knowing that most would never actually be used. The result is a long, rambling and sometimes unnecessarily confusing statute.

Sometimes, the Code is sufficiently complicated to confuse even the judges. 

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CBA community

A conversation with Raymond Adlington

By CBA/ABC National September 15, 2017 15 September 2017

A conversation with Raymond Adlington

 

Raymond Adlington, a partner with the Halifax office of McInnes Cooper, was elected vice-president of the CBA this summer.

His appointment was effective September 1. He took time out of his busy schedule to answer some questions from CBA National.

How did you first get involved in the CBA?

As a young lawyer I attended local CBA professional development and networking events. My first CBA volunteer experience was serving as vice-chair and then chair of the Tax Section of the Nova Scotia branch from 2004-2006. That led to my appointment as a member of the CICA-CBA Joint Committee on Taxation in 2005 for a four-year term.

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Creative licence

Creative Licence: Ashley Syer and Mark Wolf

By CBA/ABC National September 15, 2017 15 September 2017

Creative Licence: Ashley Syer and Mark Wolf

 

“Theatre and musical theatre in particular provide a wonderful escape from the seriousness of practising law. [Both] performing and litigating put a premium on clear communication, creative thinking and a touch of fearlessness.”

Veteran musical theatre performers Ashley Syer and Mark Wolf star in The Last Five Years, Nov. 2-11, 2017, at Studio 1398 on Vancouver’s Granville Island. 

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Privacy

RCMP conducted unauthorized searches using mobile tracking technology

By Justin Ling September 14, 2017 14 September 2017

RCMP conducted unauthorized searches using mobile tracking technology

 

We've been waiting for this for some time but we finally know the legal basis behind the RCMP’s use of IMSI catchers. 

The RCMP have used the mobile phone eavesdropping and tracking technology, sometimes referred to as Mobile Devices Identifiers (MDIs) or by the brand name Stingray, in 125 investigations, according to a new report by Privacy Commissioner Daniel Therrien. 

Strikingly, the RCMP concluded that judicial authorization wasn’t always necessary to use the technology, which can scrape identifying data from all cellphones within kilometers — including those of innocent bystanders — and can geographically pinpoint a cellphone. 

In six cases, the RCMP broke the Privacy Act and conducted unauthorized searches, contrary to section 8 of the Canadian Charter of Rights and Freedoms, Therrien found.

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Cybersecurity

Is Canada ready for a new data breach notification regime?

By Justin Ling September 13, 2017 13 September 2017

Is Canada ready for a new data breach notification regime?

 

Businesses in Canada are going to have to get serious about figuring out how to respond to a data breach.

This week’s massive Equifax breach is a reminder of the stakes at play when dealing with users’ data. The looming implementation of proposed regulations under Canada’s Digital Privacy Act should also stiffen their resolve.

After Equifax’ systems were hacked, data on as many as 143 million Americans — and possibly a number of Canadians and others — was potentially compromised.

The fallout has the U.S. Congress demanding answers, the New York Attorney General’s office has launched an investigation, and class action lawsuits are being filed against it across America.

One application for a class action, filed this week in a New York courtroom, contends that Equifax acted negligently by taking more than a full month to report the breach to their consumers on September 7, after learning of it on July 29.

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Climate change

A pathway for climate change litigation in Canada

By Supriya Tandan September 11, 2017 11 September 2017

A pathway for climate change litigation in Canada


Earlier this summer the Supreme Court of Canada handed down two rulings clarifying how regulatory bodies, such as the National Energy Board, can fulfill the Crown’s duty to consult. The Clyde River and Chippewas of the Thames First Nation rulings are noteworthy in that the top court has recognized that evaluating cumulative effects of a proposed project and its impact on existing aboriginal and treaty rights can inform the scope of that duty.  That raises the question of the scope of the duty to consult include giving proper consideration to the impacts of a project on the climate.

Climate change litigation has yet to reach the Supreme Court, but it has made headway in a growing number of jurisdictions, namely in Norway, Pakistan, the United States and the Philippines. And now our top court appears to have offered a pathway for similar litigation in Canada.

What should the NEB do, for example, with an inter-provincial pipeline that would increase greenhouse gas emissions, shifting the migratory patterns of caribou? Following the Chippewas decision, the NEB might have to evaluate the environmental impacts related to shifting caribou distribution as well as seriously consider the importance of that mammal’s importance on the rights, cultural tradition and diets of Aboriginal people. The SCC, in explaining why established rights to hunt and harvest mammals was related to the spiritual, cultural and economic well-being of the Inuit people of Clyde River, cited the Nunavut Court of Justice:

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CBA Futures

Legal futures round-up

By Yves Faguy September 8, 2017 8 September 2017

Legal futures round-up


Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our regular round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

Thomson Reuters recently shared findings that show 484 per cent increase in global patent filings for new legal services technology in the last five years, the bulk in 2016 being filed in the U.S. (38 per cent), China (34 per cent) and South Korea (15 per cent).

To Mark A. Cohen, the findings are evidence that China is “fast becoming a force  in the global legal marketplace… actively working on tech solutions – including artificial intelligence.” For an overview of top Chinese legal tech companies, check out this rundown by Artificial Lawyer.

A new index has been launched to measure innovation in legal services delivery among law firms. Behind the effort is Daniel Linna, the director of the Center for Legal Services Innovation at Michigan State University College of Law.  His hope is that buyers of legal services will use the index to gauge the efficiency of their law firms. 

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Justice

Judging sexual assault trials: Best put it in writing

By Yves Faguy September 6, 2017 6 September 2017

Judging sexual assault trials: Best put it in writing


In her recent Canadian Bar Review article, Dalhousie Associate-Professor Elaine Craig reviews the trial record in R v Al-Rawi, in which a provincial court judge found the accused not guilty of sexually assaulting a highly intoxicated woman, found partially naked in the back of his cab. In his oral judgment, Judge Gregory Lenehan said the Crown hadn’t proved beyond a reasonable doubt her lack of consent. His widely reported comment that “clearly a drunk can consent” drew strong criticism across the country.  To be fair, Craig pins some of the responsibility on legal counsel, whom she suggests failed to uphold some legal protections that should have been afforded to the complainant under Canada’s rape-shield provisions. But she makes a strong case for writing as a thinking process, when making the case that judges in sexual assault cases should be required to provide written decisions (in addition to undergoing more rigorous sexual assault training): 

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CBA influence

Third time’s the charm: Once more on immigration consultants

By Kim Covert September 5, 2017 5 September 2017

The CBA’s Immigration Law Section applauds the emphasis in a recent report on immigration consultants by the Citizenship and Immigration Committee on protecting individuals who want to immigrate to Canada. Still, it feels the Committee’s recommendations “have missed the mark in a number of key areas” by not addressing fundamental issues that have led to the failure of two separate regulatory bodies for consultants.

The Section endorses a number of the report’s recommendations, those which it says will, among others, improve access to justice, reduce language barriers, increase fines for ghost consultants, and give more financial support to settlement agencies.

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The practice

Managing the Trump effect

By Ann Macaulay September 5, 2017 5 September 2017

Managing the Trump effect

 

Donald Trump has been president of the United States for just eight months but many Canadian lawyers have already started to see the impact of his protectionist policies on their practices. And that impact will likely continue to affect Canadian businesses and their lawyers as more policies are unveiled.

Where many are seeing doom and gloom, however, at least one Canadian lawyer sees opportunity.

“This is the best time to be a trade lawyer and to be able to go out there and make a difference,” says Cyndee Todgham Cherniak of LexSage, a boutique international trade law and sales tax firm in Toronto. She points to renegotiation of the North American Free Trade Agreement, continuing softwood lumber issues and Trump’s Buy-American policy as creating a significant increase in legal work recently.

Trump’s protectionist bent has some Canadian companies looking to move to the U.S., and American companies that have set up operations in Canada considering pulling up stakes and moving home, says Todgham Cherniak. “And if the tax reforms go through in the U.S., there’s going to be a greater incentive for Canadian companies to open branch operations in the U.S.”

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Privacy

Digital privacy at the border: What’s in your phone?

By Justin Ling September 1, 2017 1 September 2017

Digital privacy at the border: What’s in your phone?


As it stands, crossing the border back into Canada can be risky privacy-wise.


To order a search of a traveller, their briefcase, or cellphone, a border guard need only have a reasonable grounds for supposing that they have “contraband secreted about his or her body,” as the Supreme Court established in 1988’s R. v. Simmons.

Such reasonable grounds are enough for customs officers to take actions that risk subjecting travellers to some pretty embarrassing and compromising situations — such as imposing “bedpan vigils” on people suspected of using their bodies as a vehicle for smuggling drugs.

In R. v. Monney, the Supreme Court of Canada held that was the price to be paid to strike a “necessary balance between an individual’s privacy interest and the compelling countervailing state interest in protecting the integrity of Canada’s borders from the flow of dangerous contraband materials.”

That was in 1999, when cellphones were repositories of little more than contacts and call logs. Even desktop computers could hold little more than 15 gigabytes of data.

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CBA Influence

The law should encourage people to do the right thing

By Kim Covert August 31, 2017 31 August 2017


Canada Revenue Agency’s Voluntary Disclosures Program is generally considered a win-win – people who’ve made errors on their taxes are given the opportunity to come forward and correct their mistakes, and the CRA collects taxes that otherwise have gone unpaid.

But proposed changes to the VDP have the potential to disrupt that balance, and could, when it comes to businesses collecting GST and HST, result in harsher penalties than if the errors were caught in a CRA audit.

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