The Power of Perspectives

The Canadian Bar Association
International law

Was the U.S. strike against Syria legal under international law?

By Yves Faguy April 10, 2017 10 April 2017

Was the U.S. strike against Syria legal under international law?


Noting that U.S. President Trump can invoke no clear authority in international law to use force in response to Syria’s use of chemical weapons, John Bellinger argues that he needs to justify his actions legally all the same:

Although a U.S. military strike cannot be easily justified as self-defense of the United States, it is possible that the United States could argue that the use of force was permissible as an action in collective self-defense of Syria’s neighbors.  Alternatively, it might be better for the Trump Administration to argue that its limited use of force was justified, even if not strictly lawful, under international law based on the specific facts in Syria and that other avenues had been exhausted.   This is the approach the Clinton Administration took when it participated in the NATO bombing campaign in Kosovo in the 1990s, and that the Obama Administration was apparently prepared to take if it had decided to use force against Syria in 2013.

But for Craig Forcese, there are no persuasive legal arguments to be articulated, notably around exceptions of  “humanitarian intervention” or the “responsibility to protect”:

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Constitutional

Who’s a parent? A Nova Scotia adoption case with constitutional implications

By Jennifer Taylor April 7, 2017 7 April 2017

Who’s a parent? A Nova Scotia adoption case with constitutional implications

 

Can a court issue a notice of constitutional question on its own motion?

That question is currently before the Nova Scotia Court of Appeal in an adoption case that has implications for women’s reproductive choices.

The court heard an appeal on March 30, 2017 from the decision of a Supreme Court Family Division judge to address whether a biological father – unidentified in the case at hand – has the constitutional right to be notified of an application to put a child up for adoption. Background information is reported in an earlier decision, but identifying details are subject to a publication ban under the province’s Children and Family Services Act.

Under that law, a biological mother signed an agreement with the Minister of Community Services to put her child up for adoption. The prospective adoptive parents then filed a Notice of Proposed Adoption. This is a routine proceeding, and all involved likely expected the court to issue the adoption order without question. It didn’t turn out that way. The court was concerned that the biological father was not involved.

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Transportation

Rules of the road: How are we going to regulate autonomous cars?

By Agnese Smith April 7, 2017 7 April 2017

Rules of the road: How are we going to regulate autonomous cars?


Canadian regulators pondering the possibility of a truly autonomous car future must grapple with two alternate realities — one where the necessary technology is right around the corner and the other where it’s way down the road. Either way, the question is how safe is safe enough, and at what cost?

Car makers like BMW and Ford are unsurprisingly in the former camp, announcing plans to deliver fully automated vehicles (AV), with Level 5 capabilities – or full automation – within the next five years. Tesla CEO Elon Musk tweeted in January its cars will have that in “3 months maybe, 6 months definitely.” Uber, Google and other technology firms are also investing billions in this space. Self-driving advocates point not only to the potential profits, but also the life-saving and environmental benefits this technology could eventually bring.  

But many in the artificial intelligence and engineering community are skeptical about this timeline. They say the technology for AVs to drive in mixed traffic — presumably, without chaos — are still many years away. For all the teeth-gnashing and shirt-rending angst about how AI might eventually kill off the human race, right now it can’t even drive to a suburban mall, let alone handle junctions like Paris’ Etoile, the intersection of Lake Shore Boulevard and Lower Jarvis St in Toronto or pretty much anywhere in Italy.

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CBA influence

Technology-neutral PIPEDA’s consent model has aged well; Regulations have not

By Kim Covert April 7, 2017 7 April 2017


If it ain’t broke…

That’s essentially what the CBA told the Access to Information, Privacy and Ethics Committee in March about the existing consent model in PIPEDA – the Personal Information and Protection of Electronic Documents Act that was enacted in 2001.

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CBA influence

Bill C-23: This strip of my country is your country

By Kim Covert April 6, 2017 6 April 2017

Bill C-23: This strip of my country is your country

 

What do you do with a bill to implement an agreement reached by governments in two countries that have each been replaced by administrations with very different priorities and ideologies?

When it comes to Bill C-23, which would implement the Agreement on Land, Rail, Marine and Air Transport Preclearance reached between Canada under Stephen Harper’s Conservatives and the U.S. under Barack Obama’s Democrats, a number of national CBA Sections suggest you step back – waaaaay back – and think hard about what the legislation would mean once enacted.

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Money-laundering

Who’s in Control? Unmasking the beneficial owners of companies

By Noah Arshinoff April 6, 2017 6 April 2017

Who’s in Control? Unmasking the beneficial owners of companies

 

They’ve been called the “puppet masters” by the World Bank. Indeed, the Panama Papers shed light on how beneficial owners, or the real people who own/control companies, sometimes go to great lengths to keep their identities hidden. And according to Transparency International, Canada’s opaque laws on beneficial ownership make it an ideal breeding ground for tax evaders and money launderers.

Canadian law permits the use of nominees—essentially custodians—for directors and shareholders, thereby masking the beneficial owners of a company. For in-house counsel, navigating this environment can be complex, especially within a company’s due diligence program.

Why it matters

According to the World Bank, anonymous companies are the most common way US$1-$2 trillion are lost to money laundering each year. They are also used to finance terrorist activities and line the pockets of drug traffickers and corrupt politicians. While no company means to aid those with illicit intentions, the absence of any sort of national registry of beneficial ownership can make it very difficult to determine who you are actually doing business with.

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CBA influence

CBA groups urge repeal of Criminal Code section 159 at ‘earliest opportunity’

By Kim Covert April 6, 2017 6 April 2017


It used to be that when the Criminal Code talked about sex, it talked about sexual acts – and it made a whole host of them illegal – particularly if they were associated with homosexuality. But in the 1980s, a more open-minded wind blew through the Code, bringing with it the idea that the specific acts should be less of a focus than the age of the people performing them and their capacity to consent to them.

As it currently stands, the age of consent is 16, and 16-year-olds can consent to any form of sexual activity that it pleases them to engage in – except one.

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Corporate counsel

Conduct risk threat rising

By Jim Middlemiss April 3, 2017 3 April 2017

Conduct risk threat rising

 

Banking giant Wells Fargo fires 5,300 employees for opening fake accounts, which would later cost the CEO his job. Stadium caterer Centerplate fires its CEO after elevator video surfaces showing him kicking a dog, but not before the matter is painfully stretched out over days amid much second-guessing and threats of food boycotts. Soccer giant FIFA finds itself embroiled in bribery allegations over the World Cup. The Russian Olympic federation engages in mass doping.

What do these seemingly disparate scandals have in common? At the centre of their storm is some form of alleged bad conduct by key actors in the organization, showing critical ethical lapses that exposed their organizations to risk.

“Conduct risk” is quickly emerging as a leading threat in-house counsel and their C-level executives must manage. It comes at a time when regulators, legislators and a grumpy public are aiming their arrows at what seems to be a growing phenomenon of bad behaviour across both corporate and public institutions.

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Public safety

Is a new warrantless access program in the works?

By Justin Ling March 31, 2017 31 March 2017

Is a new warrantless access program in the works?

 

In its landmark search and seizure ruling in R. v. Spencer, the Supreme Court was unanimous that real-time requests made by police to link Canadians’ IP addresses with basic subscriber information required a warrant, except in exigent circumstances. At least that appeared to be the obvious conclusion.

 “Some degree of anonymity is a feature of much internet activity and depending on the totality of the circumstances, anonymity may be the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure,” the court wrote, in declaring a warrantless access regime being used by Canadian police to be unconstitutional.

But new documents suggest that Ottawa is entertaining a somewhat different read of that court decision.

A background document, obtained under access to information laws from Public Safety Canada, reads that “the Court stated that where [basic subscriber information] can reveal a person’s ‘personal choices or lifestyles,’ which may be compared to the ‘biographical core information’ protected under s.8 of the Charter, a reasonable law, warrant, or exigent circumstances are required for that information to be obtained lawfully.”

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The profession

SCC: Lawyers can be suspended for not doing CPD

By Yves Faguy March 30, 2017 30 March 2017

SCC: Lawyers can be suspended for not doing CPD

 

The Supreme Court of Canada has ruled that law societies can suspend lawyers for not completing their mandatory continuing professional development.  The top court held that the Law Society of Manitoba should enjoy “considerable latitude” in making rules that are the public interest.

Justice Richard Wagner wrote for the court:

To ensure that those standards have an effect, the Law Society must establish consequences for those who fail to adhere to them. As a practical matter, an unenforced educational standard is not a standard at all, but is merely aspirational.

A suspension is a reasonable way to ensure that lawyers comply with the CPD program’s educational requirements. Its purpose relates to compliance, not to punishment or professional competence. Other consequences, such as fines, may not ensure that the Law Society’s members comply with those requirements. An educational program that one can opt out of by paying a fine is not genuinely universal. I am mindful of the fact that in making these mandatory rules, the Law Society was responding to the reality that many lawyers in Manitoba had not complied with the CPD program when it was voluntary.

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Human rights

The IOC and human rights

By Erika Schneidereit March 30, 2017 30 March 2017

The IOC and human rights

 

The Olympic Games – these words conjure up images of national anthems, medal counts, and the world’s best athletes competing for glory on the international stage.

But for many, reports of widespread human rights violations in the lead-up to the 2008, 2014 and 2016 Games overshadowed the excitement of watching the world’s finest go for gold.

The International Olympic Committee (IOC) has heeded calls from human rights organizations and other groups to establish the protection of human rights as a core value of the Games. In February, the IOC announced that it had revised its Host City Contract for the 2024 Games to strengthen human rights protections, including its first explicit reference to the United Nations Guiding Principles on Business and Human Rights. The amended contract states that host cities are required to:

protect and respect human rights and ensure any violation of human rights is remedied in a manner consistent with international agreements, laws and regulations applicable in the Host Country and in a manner consistent with all internationally-recognized human rights standards and principles, including the United Nations Guiding Principles on Business and Human Rights, applicable in the Host Country.

So, will this amendment really have an impact on the actions of future hosts?

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Legal marketplace

A sign that in-house legal support is becoming big business

By Yves Faguy March 29, 2017 29 March 2017

A sign that in-house legal support is becoming big business

 

Catrin Griffiths reports that mid-tier firms are right to worry about PwC’s recent decision to snap up half of GE’s tax department – along with 600 of its lawyers – as part of a five-year deal to provide tax services to the multinational conglomerate, starting April 1:

So here’s the initial question for PwC: how long can you get away with providing business services to a market you are also competing with? Isn’t this doomed?

The answer is no, it’s not in the slightest bit doomed. PwC has been consistently smart about what it wants long-term, and right now what it’s doing is disrupting its own business. However strong its law firm consultancy service is, it pales into insignificance against the growth potential of its legal arm, which grossed £60m in the UK last year alone with a 24 per cent increase in billings. Yes, PwC may have lost audit clients among the top 100 – Burges Salmon and Ince & Co being two examples – but at the same time, it has won Clifford Chance and Herbert Smith Freehills. Neither CC nor HSF is likely to have sleepless nights over PwC as a competitor; they’re too busy worrying about the US firms.

Part of the worry for law firms, understandably, resides in what one industry watcher called a “rapid blurring of the boundaries between what used to be thought of as separate and distinct professional services.”

Fair enough. But another takeaway is that that PWC’s efforts are really a confirmation that clients see value in the delivery of in-house legal services.

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