The Power of Perspectives

The Canadian Bar Association
Criminal justice

Social media luddites and the admissibility of evidence

By Justin Ling February 2, 2017 2 February 2017

Social media luddites and the admissibility of evidence

 

Social media has become a ubiquitous reality. But that doesn’t mean that everyone is on quite the same footing when it comes to Facebook, Twitter, Instagram, and the like.

Speaking to a conference of tech professionals and lawyers at Osgoode Hall Law School last week, Ontario Superior Court Justice Frances Kiteley offered some cautionary words, warning social media-savvy lawyers that many judges “don’t come with the same skills, knowledge, or expertise as those of you coming into the courtroom.”

“Do not assume that they know what you know,” Kiteley warned.

Obviously, not all members of the Canadian judiciary are social media luddites — from the judge who banned a violent ex-boyfriend from social media this month after a Snapchat post set him off on a violent attack, to the justice who took a very understanding view of one mother’s online dating proclivities in a family law case last year.

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Legal innovation

HackJustice: Life hacks you and your clients might actually use

By Kerri Froc February 1, 2017 1 February 2017

I’m a big sucker for the life hack lists you see all over the Internet, like 100 Life Hacks to Make Life Easier, or 50 Incredibly Useful Life Hacks You Won’t Believe You Didn’t Know. But if you are like me, you still haven’t used Doritos to start a fire, still can’t fold a fitted sheet, and your attempt to use a walnut to fix scratches on your furniture just means it looks like a squirrel had a snack on your scratched furniture.

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CBA influence

It’s time Canada’s courts joined the 21st Century

By Kim Covert February 1, 2017 1 February 2017


It’s an idea whose time came some time ago – and then it had to wait around for someone in charge to notice.

But now the Courts Administration Service has announced an initiative to modernize its technological infrastructure to create a fully electronic-based system for the Federal Court, Tax Court and Federal Court of Appeal, and the CBA’s Federal Courts and Tax Court bench and bar committee couldn’t be more pleased, calling it a move that is both worthwhile and necessary.

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CBA influence

It’s a wrap! The rest of what we did in 2016

By Kim Covert January 31, 2017 31 January 2017


2016 was a banner year for CBA advocacy – we broke the previous record for submissions in a single year by 15, with a total of 97.

And 19 of those submissions came in late November and December ahead of the Christmas break, as CBA National Sections and Forums and the Legislation and Law Reform people scrambled to meet deadlines and respond to consultations even after Parliament rose for the holidays.

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Privacy

The executive order and data protection

By Yves Faguy January 31, 2017 31 January 2017

 

U.S. President Donald Trump’s executive order on “Enhancing Public Safety” has generated a lot of concern about it eliminating privacy protections enjoyed by foreigners, including Canadians, in the U.S. It would also affect much of the internet traffic in Canada that gets routed through the U.S. (see video above); Michael Geist writes that it’s clear that the personal information of Canadians will not be protected under the US Privacy Act.

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CBA advocacy

Statement by CBA President on US executive order on foreign entry

By Yves Faguy January 30, 2017 30 January 2017

 

The Canadian Bar Association's president René Basque has issued a statement on the United States' executive order on foreign entry, expressing concern over "the discriminatory nature and extraterritorial impact" of the EO on those it targets.

"While the US government has now given high-level assurances that the order does not apply to Canadian citizens and permanent residents, it seems to be based on the national interest exemption in the order and determined on case-by-case with no clear procedures," the statement reads. "Individuals may still face issues at ports of entry.

Basque also calls upon the federal government to examine how the order will affect  agreements and policies between Canada and the U.S., including the Safe Third Country Agreement, which manages requests for refugee protection in the two countries. "If refugee claimants no longer have access to a meaningful and fair adjudication process in the US, Canada must continue to fulfil its own international obligations and offer to process their claims in Canada," the statement concludes.

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CBA influence

Legal aid is an integral part of the social safety net

By Kim Covert January 30, 2017 30 January 2017

 

It’s time for the federal government to take a leadership role in access to justice, the CBA’s Access to Justice Committee says in a submission to the House of Commons Committee on Justice and Human Rights which is studying legal aid.

“Canada needs federal leadership in creating a properly funded, national legal assistance systems strategy, with services administered by each province and territory, and minimum national standards and comparable services available throughout Canada,” the submission says.

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International

Responding to Trump's executive order

By Yves Faguy January 30, 2017 30 January 2017

 

Shadi Hamid’s reaction to Trump’s now infamous executive order, temporarily suspending the U.S. refugee program and halting visas to citizens of several Muslim countries, is worth a read:

Some of the stories, after President Trump issued his executive order targeting Muslim immigrants, remind me of what I saw in the Middle East. No one has been killed, of course. But when an Iraqi who risked his life an interpreter for the Army arrives in New York only to be denied entry, it has the hallmarks of a different world, one he probably thought he had left behind: the fear of not knowing; the manipulation of law; the capriciousness of strongmen in midflight; and families divided in the name of politics

Benjamin Wittes bluntly calls the EO “malevolent.”  Acknowledging that the order is now tied up in litigation, because it was so poorly and incompetently crafted and therefore unlikely to be very effective from a legal point of view, his broader point is that its stated purpose — “detecting individuals with terrorist ties and stopping them from entering the United States” — is not the real purpose at all:

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Climate law

Who is really driving carbon pricing?

By Yves Faguy January 27, 2017 27 January 2017

 

Jason Kroft, Jonathan Drance and Luke Sinclair size up the outlook for carbon regulation and pricing now that the climate skeptics have taken over in the new Trump administration and take a somewhat sanguine view:

While government policy can significantly impact changes in corporate behavior, the transition away from coal to natural gas and renewables is largely driven by private market mechanics. Private actors invest in natural gas and renewables because they offer the highest level of risk adjusted return, not out of altruistic motives. The private market is increasingly incorporating carbon pricing into their risk analysis and investment decisions and project proponents at least consider the carbon “shadow price” in their financial metrics regardless of government policy.

With a long-term investment horizon, often approaching 30-40 years, most infrastructure projects currently in the planning phase will long outlive a Trump presidency. The views of one administration are largely irrelevant as project proponents must consider the risk of increased costs associated with carbon emissions over a project's useful lifetime.

Along similar lines, Lawrence Hsieh writes that it will be the cities that will have to respond to the challenges of climate change, because insurers who taken on municipal risk will be keeping an eye out their responses:

This is because many insurers invest their premiums in real estate. Falling property values due to inundation plus large disaster pay-outs and sudden upticks in disaster-related mortality could jeopardize insurer solvency across all lines of coverage, and threaten the reinsurers and capital markets investors who traffic in insurance risk.

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Foreign affairs

Passing judgment on Canada’s export of military goods

By Justin Ling January 26, 2017 26 January 2017

Passing judgment on Canada’s export of military goods

 

A law professor’s personal quest to force the Minister of Foreign Affairs to account for the decision to sell armoured vehicles to Saudi Arabia — and to justify that decision to the court — has reached the end of the road.

In a decision passed down by the Federal Court on Tuesday, Justice Danièle Tremblay-Lamer found that while the decision to sign off on the $15-billion export of arms to the Saudi government is reviewable by the courts, the minister retains a broad discretionary power to approve such sales.

The decision was a mixed bag for Daniel Turp (pictured above), a Université de Montréal professor in international law: It amounts to a recognition that litigants can, against the protests of the Attorney General, file such applications in the court; there remains, however, a high bar to succeed in such cases.

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Charter law

The Ernst decision: Taking issue with a divided Supreme Court

By Supriya Tandan January 25, 2017 25 January 2017

The Ernst decision: Taking issue with a divided Supreme Court

 

Though the Supreme Court of Canada recently denied an Alberta woman’s claim for damages against the province’s energy board, it remains unresolved whether its members could be sued for infringing a Canadian’s Charter rights and seek a remedy under Section 24 (1) of the Charter.  The Court’s majority found it to “be plain and obvious that s. 43 of the Energy Resources Conservation Act” – granting immunity to the regulator –  “on its face bars [Ernst’s] claim for Charter damages.”

It’s a decision that has raised a lot of eyebrows.

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Vote to leave the EU

Why Brexit requires an act of Parliament

By Yves Faguy January 24, 2017 24 January 2017

 

The U.K. Supreme Court has ruled that an act of Parliament is needed before the government can trigger article 50 of the Treaty of Lisbon, notifying its intent to pull out of the European Union, a process that must be completed within two years.

The president of the Supreme Court, Lord Neuberger of Abbotsbury, read a summary of the ruling:

Section 2 of the 1972 [European Communities] Act provides that, whenever EU institutions make new laws, those new laws become part of UK law. The 1972 act therefore makes EU law an independent source of UK law, until parliament decides otherwise.

“Therefore, when the UK withdraws from the EU treaties, a source of UK law will be cut off. Further, certain rights enjoyed by UK citizens will be changed. Therefore, the government cannot trigger article 50 without parliament authorising that course.

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