The Power of Perspectives

The Canadian Bar Association
National security

Sharing national security secrets: More oversight

By Justin Ling June 1, 2017 1 June 2017

Sharing national security secrets: More oversight


When the Liberal government finally gets around to introducing a reform package on Canada’s national security laws, chances are that much of the attention will focus on the Security of Canada Information Sharing Act, or SCISA.

Skepticism over information sharing has reached peaked in recent years, thanks in no small part to the Edward Snowden leaks and subsequent revelations and litigation surrounding the integration of the Five Eyes intelligence partners.  Together they have produced a steady trickle of information that has shown how Canadian intelligence agencies are integrated to the services of American and foreign partners. And how that can impact Canadians, even innocent ones.

Given that, and thanks to reforms introduced by the Harper government, the Liberals have honed in on tinkering with SCISA in order to write in some more general stopgaps and safeguards.

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BC election

What if BC can't elect a new Speaker?

By Yves Faguy May 31, 2017 31 May 2017

What if BC can't elect a new Speaker?

 

 

Faced with two options  — resign now or face defeat on a confidence vote — BC Premier Christy Clark has made it clear that she is going the latter route.  She has stated, however, that she will recall the legislature for a vote soon, and won't ask the province’s Lieutenant Governor for a new election if defeated.  So far, there is little controversy surrounding her decision, at least from a legal point of view.  Even or political opponents, NDP leader John Horgan and Green Party leader Andrew Weaver have acknowledged her right to have the first opportunity at forming a government. 

But by forcing the vote of no confidence, is the premier not just putting off the inevitable?

Perhaps not. For starters, the NDP-Green Party pact could always fall apart. It’s also worth pausing to consider an intriguing possibility raised by James Bowden. The new legislature may not be able to elect a new Speaker:

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Pot legalization

No logo for cannabis

By Doug Beazley May 30, 2017 30 May 2017

No logo for cannabis

 

Walk into a convenience store in Colorado and you might encounter Toast — the new face of marijuana marketing. It’s smokeable cannabis in the form of machine-rolled cigarettes, each tipped with a royal-purple filter embossed with a gold-foil butterfly. The package is jet black, with the label embossed in gold, deco-style type.

The effect is one of sophisticated, rakish elegance — a cocktail-chic approach to a drug typically sold in plastic baggies in city parks. Marijuana is legal for recreational sale and consumption in Colorado. Toast’s makers are pursuing an upscale demographic: well-heeled users who smoke socially and can afford a premium product.

It’s the kind of thing Canadian cannabis producers would very much like to do with their own product once the legal recreational market is in place here. They’re probably going to be disappointed.

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Technology

Blockchain: Why lawyers should take note

By Kim Nayyer May 30, 2017 30 May 2017

Blockchain: Why lawyers should take note

 

In recent months, discussion of legal issues and business applications of blockchain have proliferated in the press and on legal technology and blockchain technology websites. In April, the ABA even held a day of blockchain discussion.

Many will have first heard of “the blockchain” in the context of Bitcoin, the cryptocurrency developed in 2009. Blockchain is the term given to the computational model underlying Bitcoin. Leaving aside the mystique associated with Bitcoin, and separate and apart from the idea of cryptocurrency, its peer-to-peer, secure, verified transaction system is revolutionary. At minimum, blockchain can be understood as a means of creating trust in and establishing evidence of transactions without the need for a traditional trusted intermediary. Or as one wrote, ”Blockchain is an escrow of conclusive transaction evidence. That’s it … All you need to know as a lawyer, a banker, a creditor, a vendor, a buyer, and a debtor is that blockchain eliminates transaction disputes.”

Without delving into computing and mathematics, one can see the essence of blockchain in a few fundamental features, well illustrated in, for example, The World Economic Forum's "What is Blockchain?", or IBM’s “Blockchain, How it works.” Here is a distillation:

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Climate law

Moving to a low-carbon economy is the future story of growth

By Yves Faguy May 29, 2017 29 May 2017

Moving to a low-carbon economy is the future story of growth

 

OECD countries should work to raise the cost of carbon emissions to US$100 per metric ton by 2030 to meet pledges made under the Paris Climate Agreement to keep global temperatures from rising above 2°C.

That’s according to a report released in Berlin today by The High-Level Commission on Carbon Prices, led by Nobel Laureate Joseph Stiglitz and Lord Nicholas Stern:

The proposed federal pricing in Canada would see a mandatory minimum floor price of CAN$50/ton in 2022. (Carbon should be priced at US$40-$80 per ton by 2020, says the Stiglitz-Stern report).

In China, Russia, Brazil, and South Africa the price of carbon in the power and industrial sectors should rise to US$75/tCO2 by 2030, in conjunction with a phasedown of fossil fuel subsidies.

The economists make the case that effective pricing carbon will help drive innovation in technologies and new business models, and therefore ultimately  boost productivity.

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Supreme Court of Canada

Is there a duty to consult in the legislative processes?

By Justin Ling May 25, 2017 25 May 2017

Is there a duty to consult in the legislative processes?

 

The rules around the Crown’s duty to consult have come a long way in Canada, thanks in large part to courts who have been broadly supportive of the principle that when the Crown is planning action that that could have an adverse impact on Indigenous or Treaty rights, those communities should be heard and, where appropriate, accommodated. A recent example involves the Supreme Court of Canada Supreme Court declaring Aboriginal title in Tsilhqot'in Nation v. British Columbia in 2014. 

But what if Parliament were required to consult Indigenous peoples on legislation it plans on adopting? 

The Supreme Court granted leave last week in a matter that may begin to answer that question. 

In Courtoreille v. Canada, the Mikisew Cree First Nation — represented by Chief Steve Courtoreille — claims that the previous government introduced and adopted omnibus legislation passed by into law without consulting with his nation. That, Courtoreille argued, abridged the Mikisew nation’s treaty rights. 

The dispute is a complex one that strikes at the very core of Canada’s system of governance.

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CBA influence

Time to revitalize the business immigration program

By Kim Covert May 25, 2017 25 May 2017

Time to revitalize the business immigration program

 

The key to a thriving economy is a strong, skilled and knowledgeable workforce. And while in a perfect world a company might be able to find that skill and knowledge on its doorstep, the reality in the global economy is that companies might have to look far and wide for the right people.

Under current guidelines, leading stars such as economist Janet Yellin, Microsoft’s Bill Gates, director Sofia Coppola or chef Ana Ros might not be able to get a work permit to operate a business or be self-employed in Canada.

“Canada needs to attract and retain temporary and permanent business workers as key talent to support economic development in today’s competitive global market,” says the CBA’s National Immigration Law Section in a recent submission to Immigration, Refugees and Citizenship Canada. In fact, the Section notes, the government has made it clear in the Immigration and Refugee Protection Act that it is committed to pursuing economic goals through business.

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Legal information

A new player in Canada's legal information market

By Yves Faguy May 24, 2017 24 May 2017

A new player in Canada's legal information market

 

Distilling large amounts of complex information for others has always been part of what lawyers do.  But even they need help finding it, which is why providing legal information is such a big part of the legal services business.

Over the last decade, the two main players in this space in Canada, LexisNexis and Thomson Reuters, have done just that, and more, by betting on technology to support lawyers in firms and law departments in applying their legal knowledge.

Now, a new competitor hopes to shake-up the space. Earlier this month, Compass, the new Canadian legal research platform — and new incarnation — of Maritime Law Book, announced that vLex, a Barcelona and Miami-based legal publisher, and California-based Justia were taking a stake in the company.

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Perspectives from abroad

Ethical mining: A South African perspective

By Mariam Awan May 24, 2017 24 May 2017

Ethical mining: A South African perspective

 

The mining industry in South Africa has seen a push for economic liberalization aimed at attracting foreign investment. However, foreign investment and economic growth do not automatically lead to a higher standard of living and can even contribute to gross human rights and environmental violations. As there no are binding minimum standards for mining operations within the international community, foreign governments can play only a limited role in encouraging ethical behaviour of mining companies abroad. What’s more, victims of environmental damage and human rights violations have little success gaining access to foreign courts.

It’s up to South Africa’s government to regulate the licensing and monitoring of the industry by providing a predictable regulatory framework that is consistently enforced.

South Africa is a leading source of platinum, chromium, manganese and other minerals. Under South African common law, a landowner owned all the minerals underneath the soil. However, under the Apartheid regime, non-whites were precluded from acquiring roughly 80 percent of the land in South Africa, which explains the enduring poverty among black South Africans today.

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Legal innovation

Connecting hearts and minds in your law firm's data strategy

By Yves Faguy May 23, 2017 23 May 2017

Connecting hearts and minds in your law firm's data strategy

 

Scott Mozarsky of Bloomberg BNA shares his views on big data and analytics disrupting the legal sector in a recent Forbes interview.  Here he discusses how data helps guide GCs in retaining external firms:

Selecting and retaining outside counsel used to be a lot more about art than science. Pre-existing relationships and referrals often drove decisions regarding representation by outside counsel. Data and technology have changed the selection process and made it much more scientific. Analytical tools allow clients to see which firms have represented clients in different jurisdictions and in front of different judges as well as the type of transactions and cases they have worked on.

As a general counsel, when my company was sued in a jurisdiction outside of the norm or if we were working on a deal involving a unique type of target or state or local law issues, I would call my contacts and ask for referrals. Now, in a matter of minutes, I can figure out the two or three most experienced choices to fit my fact pattern. Also, with significant budget pressure on in-house teams, transparency driven by data and technology often enable outside counsel to save fees by identifying experienced and effective outside counsel from mid-sized firms or from firms that are not based in large cities.

Indeed, law is becoming digitized, Mark Cohen writes, though law firms have so far failed in keeping up with the dramatic changes occurring in the marketplace:

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Litigation privilege

Does litigation privilege always apply to internal investigations?

By Alexander Gay May 19, 2017 19 May 2017

Does litigation privilege always apply to internal investigations?

 

Lawyers are often asked whether a given communication is subject to litigation privilege. In answering this question, lawyers have to assess the facts and objectively determine whether the dominant purpose of a communication is in respect of litigation that is contemplated, anticipated or ongoing.

The issue is far more tenuous, however, in criminal matters.   The question is whether all internal investigations in respect of a contemplated, anticipated or ongoing criminal investigation are privileged.  Determining when litigation is being contemplated calls for different considerations that have yet to be fully considered by the courts in Canada.  But a recent decision from England’s High Court recent may come as a surprise to in-house counsel who assume that litigation privilege is more encompassing than it may really be.  

The basic rule is that litigation privilege applies to communications between a lawyer and third parties or a client and third parties, or to communications generated by the lawyer or client for the dominant purpose of litigation when litigation is contemplated, anticipated or ongoing.

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Immigration

Why the Preclearance Act needs to be be significantly changed

By Yves Faguy May 18, 2017 18 May 2017

 

Calgary lawyer Michael Greene from the CBA’s Immigration Law Section appeared this week before the House Standing Committee on Public Safety and National Security to give recommendations on Bill C-23 on  the preclearance of persons and goods in Canada and the United States.  The submission is here, and CBA National reported on it last month. We caught up with Greene and asked him to explain why the CBA Sections do not support Bill C-23 in its current form.  He also shares his views on some of the challenges involved in changing the legislation.

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