The Power of Perspectives

The Canadian Bar Association
Indigenous law

How extending personhood to Canada’s rivers could help reconciliation

By Supriya Tandan April 18, 2017 18 April 2017

How extending personhood to Canada’s rivers could help reconciliation


In March, governments in India and New Zealand independently extended personhood rights to rivers, making them the first jurisdictions in the world to do so. Is it possible that Canada could follow suit? Likely not in the foreseeable future.  Not that it’s impossible.  The Canada Business Corporations Act grants corporations the rights and privileges of a natural person.  But we have yet to have a serious debate in this country as to whether these rights should be extended to components of the environment, such as rivers and forests, as there is little political will among federal and provincial leaders. 

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Constitution 150

Religious freedoms: How will Canada relate to its minority communities

By Yves Faguy April 18, 2017 18 April 2017

Religious freedoms: How will Canada relate to its minority communities


As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National is featuring opinions by leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ recent conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Howard Kislowicz, an assistant professor at UNB Fredericton Faculty of Law, who shares his views on where litigation of religious freedoms may be headed in the coming years.

CBA National: Why are religious freedoms so difficult to balance against other rights recognized under the Charter?

Howard Kislowicz:  Well the main challenge is that the Supreme Court of Canada has said that there’s no hierarchy of rights in the Charter. So there’s no presumption that when an equality right comes into conflict with a religious freedom right that one or the other will win.  The lawyers advising clients can’t give necessarily too sound a prediction just based on the nature of the right. Like all constitutional analysis now, context is everything.

N: So where do the tensions lie within religious rights themselves?

HK: First, you have to read the Charter guarantee in conjunction with other mentions or constitutional protections of religious rights in the constitution. The most obvious one is in the 1867 Constitution Act which gave protection to minority religious communities in terms of having their schooling rights protected. What it generally meant was that in Quebec, Protestant schools would get constitutional protection in most of the province, and then in the other provinces, Catholic schools would get protection. So this idea that Canada is Catholic and Protestant in its constituent parts, is in tension with the more universalistic, more non-denominational guarantees of religious freedom, which are supposed to apply to everybody, regardless of whether they’re one of those two founding groups.

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CBA influence

Where is MAID working? Hard to say

By Kim Covert April 13, 2017 13 April 2017

Where is MAID working? Hard to say

 

As of mid-December 2016, reports say about 745 terminally ill people had taken advantage of medical assistance in dying, which became the law when Bill C-14 received royal assent six months earlier.

That this figure is based on information volunteered by – and not required of – the provinces, and not on hard, readily available data is an issue behind the CBA End of Life Working Group’s  letter to Health Minister Jane Philpott in March asking that the government get moving on the “monitoring system to collect and analyze data on the provision of medical assistance in dying” which it has itself identified as a “critical component” of the new regime and as “essential to foster transparency and public trust in the system.” 

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Criminal law

The system will adapt to Jordan

By Justin Ling April 12, 2017 12 April 2017

The system will adapt to Jordan

 

Ever since the Supreme Court put a hard cap on trial delays, and the subsequent slew of stays of proceedings in a variety of high-profile cases, there’s been a spirited debate over where to point the finger: At the top court for fumbling the file? At Ottawa, for its lackadaisical response? Or at the Crown, for failing to prioritize serious offences?

The finger pointing has correlated with a rise in attention over the impact of R. v. Jordan, the case that led the supreme justices to shoulder the prosecution with an obligation to conclude the trial within 18 months, 30 for serious offences, barring certain circumstances.

A high-profile case in Montreal is the most recent one to shine the light, where the prosecution of a man accused of brutally murdering his wife was stayed because it passed the 30 month ceiling — a delay caused largely by the prosecution’s push to upgrade second-degree charges to first-degree, contended the accused’s counsel, Joseph La Leggia.

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CBA Futures

Legal futures round-up: April 12, 2017

By Brandon Hastings April 12, 2017 12 April 2017

Legal futures round-up: April 12, 2017

 

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.

First, a glance at what’s happening across the pond. Five years after obtaining its ABS licence, among the first in England, and a difficult start, Co-operative Legal Services is now making real profits.

Signalling a possible trend toward outsourcing in-house legal services, PwC has recently snapped up half of GE’s tax department – including 600 of its lawyers -- as part of a five-year deal to provide tax services to the conglomerate.

Also supporting the trend, international law firm Pinsent Masons has taken a 20 per cent stake in New Law start-up Yuzu.

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Anti-corruption

Helping companies steer clear of corruption

By Michael Dempster April 11, 2017 11 April 2017

Helping companies steer clear of corruption


Alexandra Wrage receives more than a few calls from nervous CEOs these days.

They’re worried about dinner invitations to foreign officials. They’ve budgeted $200 for a meal—but when a large entourage arrives and orders expensive wines, the bill climbs to $1,000 or more. They want to know: Are we guilty of corruption? Bribery?

These dinner dates aren’t like handing over briefcases filled with money. But it’s an issue, Wrage says, that will keep executives up at night worrying about the consequences of possible wrongdoing.

How times have changed since November 2001, when Wrage founded TRACE International Inc. with the goal of making it easier and less expensive for companies to avoid corruption.

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CBA influence

CBA welcomes diversity measures in Bill C-25

By Kim Covert April 11, 2017 11 April 2017


Changes to the Canada Business Corporations Act designed to make certain enterprises more accountable for diversity in corporate leadership get a thumbs-up from a number of CBA groups.

The Canadian Corporate Counsel Association, the Women Lawyers Forum, the Business, Charities and Not-for-Profit and Competition sections and the Equality Committee collaborated on a submission responding to Bill C-25, which proposes amendments to the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-Profit Corporations Act and the Competition Act.

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CBA Submission

Suzanne Morin on the enforcement of meaningful consent under PIPEDA

By Mariane Gravelle April 10, 2017 10 April 2017

Suzanne Morin on the enforcement of meaningful consent under PIPEDA


Last month, the CBA made a submission commenting on the parliamentary review of PIPEDA. Suzanne Morin, the Vice-Chair of the CBA National Privacy and Access Section, represented the CBA.

CBA National: Broadly, what is the CBA’s position on this issue?

Suzanne Morin: The CBA Sections have made numerous submissions on PIPEDA since its enactment in 2001 and continue to support the existing consent and ombudsperson models in PIPEDA in the absence of a compelling need for legislative change. Within these existing models, however, a handful of targeted amendments are needed: first to the concept of publicly available information to ensure our PIPEDA framework remains technology neutral, and second to allow the Office of the Privacy Commissioner of Canada (OPC) to issue non-binding advance opinions.

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Criminal law

Countdown to 2018: Why the courts might not allow prosecutions for pot?

By Justin Ling April 10, 2017 10 April 2017

Countdown to 2018: Why the courts might not allow prosecutions for pot?

 

Justin Trudeau’s plan to legalize marijuana is coming down the pipes, as soon as this week.

You could be forgiven for wondering what, exactly, took the prime minister so long — he’s had a set of clear recommendations since December — but, if reports are to be believed, it will be more than a year before the actual legislation comes into force.

That leaves Canada with more than 12 months before the arrests and prosecutions of marijuana users and dealers comes to an end. Stuck, in other words, with a system that “does not work,” according to Trudeau’s own campaign document: A system which “does not prevent young people from using marijuana and too many Canadians end up with criminal records for possessing small amounts of the drug.”

So the question now is: Will the courts allow it?

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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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