The Power of Perspectives

The Canadian Bar Association
Criminal law

Canada’s slow and insufficient efforts at ending solitary confinement

By Justin Ling November 27, 2018 27 November 2018

Canada’s slow and insufficient efforts at ending solitary confinement

 

It has been nearly 12 months since the Ontario Superior Court of Justice declared that Canada’s use of solitary confinement is unconstitutional.

Eleven months have passed since the Supreme Court of British Columbia handed down a similar ruling.

In September, Public Safety Minister Ralph Goodale issued a mandate letter to the Commissioner of the Correctional Service of Canada, instructing her to reduce the use of solitary confinement.

And just last month, Ottawa introduced Bill C-83, which promises to “eliminate the use of segregation” altogether.

From the outside, this looks like progress. But a loose coalition of organizations says the federal government’s effort to reduce the use of a practice that the UN essentially equates to torture is falling apart.

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International law

The Singapore Convention: A breakthrough for international trade

By Alexander Gay November 27, 2018 27 November 2018

The Singapore Convention: A breakthrough for international trade

 

Litigation and arbitration can be lengthy and costly, which explains in part why mediation has been gaining in popularity as a method for resolving cross-border commercial disputes. What’s lacking, however, is a comprehensive legal framework for the enforcement of international settlement agreements. Without one, parties to a mediated settlement usually have to get a court judgment in a foreign jurisdiction to enforce the agreement.

That is set to change, as the United Nations Commission on International Trade Law (UNCITRAL) moves forward with a new tool that will facilitate the recognition and enforcement of mediated settlements.  This year, UNCITRAL approved the Convention on International Settlement Agreements Resulting from Mediation – informally known as the Singapore Convention.  The document is now open for signing.

The document is the culmination of a process that began in May 2014, when the United States proposed to develop a multilateral approach that would assist with the recognition and enforcement of mediation settlements.  In essence, the idea was to replicate the mechanisms that exist under the New York Convention for arbitration awards.

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Access to justice

Plain language: Designed to empower the users

By Mélanie Raymond November 23, 2018 23 November 2018

Plain language: Designed to empower the users

 

Plain language isn’t just a buzzword. When well analyzed and properly planned, it can be used to give parties in a legal proceeding more power. “It’s about making sure people have some control” stresses Susan Kleimann. The CEO of Kleimann Communication Group made these remarks at a presentation in October at Montréal organization Clarity’s conference dedicated to promoting the use of plain language.

After 2009’s foreclosure crisis rocked the American economy, Susan Kleimann was tasked with reviewing the government mortgage form that prospective homeowners are required to fill out. “The statistics on the crisis were well known, but behind them hid a great deal of human suffering,” she says. “We were asked to prevent a repeat of the situation by helping expose the contract traps.”

They didn’t want to be paternalistic. After all, some customers were interested in high-risk products. They wanted to make sure of three things: that people truly understand the details of their mortgage, that they are able to make comparisons; and that they make informed choices.

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CBA influence

Canada should facilitate asylum for targeted LGBTI+ individuals in Tanzania

By Kim Covert November 23, 2018 23 November 2018

 

The headlines out of Tanzania tell the story of dangerous and deadly times for the country’s LGBTI+ community, as many gay men are in hiding from vigilante squads on a mission to find and arrest them.

While the Tanzanian government says it does not support these measures, the CBA’s Sexual Orientation and Gender Identity Community says it expects “the proposed plan has already further marginalized Tanzania’s LGBTI+ community by inciting hatred, discrimination and possibly violence.”

SOGIC has written to Prime Minister Justin Trudeau and Foreign Affairs Minister Chrystia Freeland asking the government to take steps to help support LGBTI+ individuals living in Tanzania, to ensure their well-being and safety.

The government can do this, SOGIC says, by obtaining information with regard to the extent to which the LGBTI+ community is being targeted; denouncing any actual or threatened human rights abuses against that community and individuals in it; and facilitating asylum in Canada for LGBTI+ individuals fleeing persecution.

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Law firms

Changes in the marketplace that call for innovation

By Yves Faguy November 21, 2018 21 November 2018

Changes in the marketplace that call for innovation

“An innovator is someone who makes a change in Year One that everyone else has to make in Year Five.”

Michael Torpey knows that from experience. As a practitioner in the 1990s, he spotted an opportunity after the U.S. Congress passed a new law designed to limit frivolous securities lawsuits. It required the first plaintiff filing a securities class action to publish a notice informing potential class members of their right to move to be named lead plaintiff.

“I figured out then that I [knew] where all the cases were being filed around the country,” Torpey said during his keynote address at the CBA’s Law Firm Leadership Conference this month in Toronto. Most of the securities litigators at the time were in New York and San Francisco, he explained. So he prepared an information package for everybody that got sued, paid some visits to some of the targeted companies, and volunteered his time to assess their case.  “For the next two or three years, I got 50 percent of the cases that were filed in the whole U.S,” he said. Apparently, nobody else had thought of doing that, until a couple of years later, when “everybody had thought of it.”

“I had an advantage that went away,” says Torpey, now the managing partner at Orrick, Herrington & Sutcliffe in San Francisco, named by the Financial Times as the most innovative law firm in North America in 2016 and 2017. There’s a lesson in that for law firms, he adds. “If your innovation is good, you get a little bit of edge for a little while. And if it’s not good, even though you spent a lot of money and nobody is following it, well you’re out of luck.”

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Supreme Court

Judges must ensure language rights are respected

By Yves Faguy November 16, 2018 16 November 2018

Judges must ensure language rights are respected

Any person who appears in a federal court must be able to exercise their right to speak in the official language of their choice.  That’s what the Supreme Court of Canada ruled in handing down s decision in Mazraani v. Industrial Alliance Insurance and Financial Services Inc.

“This is a great decision that meets our expectations concerning language rights and access to justice,” says Nicolas Rouleau who represented the Canadian Bar Association as intervener in the matter. “It clearly confirms the equal status of French and English in the federal courts.”

The case involved a representative for Industrial Alliance, Kassem Mazraani who after seeing his contract terminated, sought insurance benefits.  These were refused to him as he was considered to be a contractor for Industrial. Mazraani, who spoke only English, eventually took his case it to the Tax Court of Canada, where he represented himself. But many witnesses, as well as counsel for Industrial, who as intervener had an interest in the outcome of the proceedings, requested to speak in French.

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Environmental law

Canada’s proposed new Impact assessment: Putting science first?

By Doug Beazley November 15, 2018 15 November 2018

Canada’s proposed new Impact assessment: Putting science first?

 

Compromise is the lifeblood of working democracies. That doesn’t mean everyone has to like it. Bill C-69 — the Trudeau government’s attempt to reform Canada’s system of environmental reviews for major resource projects — is before the Senate, and making no one particularly happy.

C-69 (it’s actually a package of bills) would take the job of ordering project impact assessments away from the National Energy Board and hand it to a new body, the Impact Assessment Agency of Canada (IAAC). The IAAC is designed to not only conduct environmental assessments of large projects (such as interprovincial pipelines), but to broaden the scope of the assessments to cover the projects’ health, social and economic impacts, their effects on Indigenous peoples and on the federal government’s climate change commitments. The goal, according to the government, is to streamline project assessments through a “one project, one assessment” approach.

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Q&A

Penelope Simons on getting companies to respect human rights

By Yves Faguy November 14, 2018 14 November 2018

Penelope Simons on getting companies to respect human rights

 

This week, the Corporate Human Rights Benchmark (CHRB) published its 2018 report, concluding that most of the 100 companies reviewed are failing to live up to their duties under the UN Guiding Principles on Business and Human Rights.  Prior to the report’s release, CBA National interviewed Professor Penelope Simons of the University of Ottawa and the recipient of the 2018 Walter S. Tarnopolsky Award, recognized for her contribution to human rights, domestically and internationally, about how to address corporate complicity in human rights abuses.

CBA National: Can you give us a sense first of where we’re at in terms of corporate accountability for human rights violations?

Penelope Simons: This issue has been debated globally for decades. But in the early 2000s, the United Nations Sub-Commission on the Promotion and Protection of Human Rights adopted the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises which were submitted to what is now the Human Rights Council. The HRC rejected them. The Norms were drafted in mandatory language and were essentially a blueprint for a treaty that would impose binding legal obligations on business actors. Both states and businesses were strongly against the development of such obligations. However, the HRC did appoint, Harvard professor John Ruggie, as the Special Representative of the Secretary General on Business and Human Rights. He developed a policy framework and the United Nations Guiding Principles on Business and Human Rights (UNGPs) to operationalize the policy framework. In 2011 the Human Rights Council unanimously endorsed the Guiding Principles. This was an important step forward, to have widely accepted document addressing business and human rights. However, the UNGPs are also flawed in a number of ways.

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Practice

Working well with legal staff: Set the ground rules in the beginning

By Julie Sobowale November 13, 2018 13 November 2018

Working well with legal staff: Set the ground rules in the beginning

 

Nothing brings two people together more than email. When Jeremiah Kowalchuk started working as a lawyer, he and his seasoned paralegal, Lynette Senio, bonded over their hatred for printing emails. They decide to work in a paperless environment.

"Jeremiah and I have established a good way of communication, working together and exchanging work back and forth," says Senio, a legal assistant at Field Law. "For example, I will receive instructions from Jeremiah to draft a letter or document by email or dictation. I will then forward that drafted document to him by email. He will review and make any changes if needed and then forward the document back to me. When I get that forwarded document back, that means it’s good to go. We can essentially do this process without even exchanging a single word with each other.”

Senio and Kowalchuk are a team. Having a strong, collaborative relationship with support staff will not only benefit clients but make your practice more efficient and effective.

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Young lawyers

Escapes and opportunities: Is YLIP right for you?

By Laura MacLean November 9, 2018 9 November 2018

Escapes and opportunities: Is YLIP right for you?

 

Since high school, I’ve dreamed of having a dynamic, international career in human rights. I loved the idea of filling up my passport with stamps, learning dozens of languages and becoming a respected, unapologetic advocate for social justice. However, the stress of law school showed me I need to be near my family and friends. An international career was not in the cards for me after all. Still, I often fantasized about lighting my bar materials on fire and getting on the next flight to anywhere.

The Young Lawyers International Program is perfect for someone like me.

My craving for adventure came to life again while I was searching for post-articling work, and found out YLIP was recruiting. The program places 32 interns in ten different countries to work in law reform, human rights and access to justice for six months. I applied, underwent the rigorous interview process, and was placed at Lawyers for Human Rights in Durban, South Africa. Before you could say “Nelson Mandela,” my flights were booked, my bags were packed and I was off.

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Fintech

Canada’s cautious stance on regulating open banking

By Yves Faguy November 8, 2018 8 November 2018

Canada’s cautious stance on regulating open banking

 

When it comes to banking, Canadians tend to reach for the familiar.  Loyal to a fault, consumers here look to their primary financial institution for most products, even when they suspect they could get a better deal elsewhere.  No surprise then that few have taken notice of the open banking phenomenon sweeping across the globe, particularly in Europe, the U.S. and parts of Asia.

What is open banking? It’s an emerging model, fashioned by a mix of fintech innovation, changing consumer habits and regulatory forces, in which banks are being pressured to open up their customers’ data to third parties. This is done by allowing them to access open APIs, which offer a standard way for programmers to work with code they didn’t write, so that they can develop new and useful financial products for consumers. Those products, in turn, remove much of the hassle — known as friction — that comes with signing up new customers, and getting them to complete transactions using data collected by their banks.

For the consumers, the appeal is in getting better rates on lending rates and more transparency on financial products. 

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AI

Automation bias may be the end of us all

By Kim Covert November 7, 2018 7 November 2018

Automation bias may be the end of us all

 

Game 2, Move 37. A machine, AlphaGo, made a move in the game of Go that no human would have made.

AlphaGo itself worked out the chances of a human making that move as one in 10,000.

That 2016 game marked a turning point in the field of artificial intelligence – the machine had been able to teach itself to make such a “genius” move.

Two games later, AlphaGo’s human opponent, Lee Sedol, one of the world’s best Go players, made a move that AlphaGo did not expect – another one in 10,000 move that threw AlphaGo off its game so badly that Sedol won his first and only game of the five-game match.

One thing that stands out for the world of AI in these games is that playing against the machine made the human player better – if AlphaGo hadn’t startled him so with Move 37, Sedol might not have made his own move, which followers dubbed “God’s Touch.”

The thing that’s important about Game 2, Move 37 as far as the law is concerned, says University of Ottawa professor Ian Kerr, is that the machine making an unprogrammed move was not a matter of product liability or failure – the move was unprogrammed but not, in a real sense unanticipated.

We need new paradigms for thinking about a world where machines can teach themselves to do things humans wouldn’t, Kerr told a recent CBA Privacy and Access to Information Law conference session on artificial intelligence.

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