The Power of Perspectives

The Canadian Bar Association
Opinion

Eliminating preliminary hearings isn’t the answer to court delays

By Ian M. Carter March 14, 2017 14 March 2017

Eliminating preliminary hearings isn’t the answer to court delays

 

That old saw about hammers and nails also holds true for scissors: that is, when you think your only tool is a pair of scissors, it will look like cuts are the solution to every problem.

But often cuts, however justifiable they seem in the moment, can end up creating more problems down the road than they were supposed to solve.

AGs in two provinces are now suggesting an end to preliminary hearings as a way to solve problems of delays in criminal courts. The need to find a solution to court delays has been under the spotlight following last year’s Supreme Court decision in Jordan, with reports of criminal cases being stayed or thrown out because it has taken too long for the case to get to court.

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Trade

When the U.S. turns its back on Pacific trade

By Yves Faguy March 14, 2017 14 March 2017

 

 

Adam Behsudi reports on the trade fallout from the U.S. dumping the TPP:

Competitors say they have no choice but to take the money U.S. businesses would have earned otherwise.

“We are not trying to take market share from the U.S. It’s more like you are putting money on the table and pushing it towards us,” said Carlo Dade, director of trade and investment policy for the Canada West Foundation, a Calgary-based think tank.

Carlos Dade (featured in the video above) has an interesting primer where he ranks the possibilities for the other TPP prospects, including Canada:

Without the TPP, Canada does better defensively in not having to worry about competitors gaining access to the U.S. market. But it does worse offensively in having the poorest access to Asian markets of any country on the Americas’ Pacific coast. This makes Canadian attempts to diversify away from its dependence on the U.S. market more difficult.

Canada also appears to stand to gain the most from the TPP going ahead without the U.S. as its companies, but not American firms across the border, will have preferential access to the new bloc. This could create a powerful incentive for firm relocation. Mexico will receive a similar but potentially smaller boost as it lacks Canada’s English language operating environment for service firms.

All of this could be viewed offensively, in both senses of the word, by the Trump administration.

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CBA Futures

Legal Futures round-up: March 14, 2017

By Brandon Hastings March 14, 2017 14 March 2017

Legal Futures round-up: March 14, 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.

Thompson Reuters’ review of the last decade of legal services concludes that a buyers’ market emerged during the global financial crisis, and that buyers’ market continues today. This is forcing law firms, increasingly, to look at doing things differently, but a paper from McGill suggests Canadian law firms may by talking a good innovation game, while doing little actual innovation.

Mark Cohen writes on legal education requiring a shift for a new legal marketplace, the need for re-regulation of the legal services industry, and changes in the demand for legal services. Jordan Furlong also covers this latter topic is some detail, also in reaction to the 2017 Report on the State of the Legal Market.

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LGBTQ2 rights

Interview with Randy Boissonnault

By Michael Motala March 13, 2017 13 March 2017

Interview with Randy Boissonnault

 

Randy Boissonnault, the MP for Edmonton Centre, is the Prime Minister’s Special Advisor on LGBTQ2 issues. His job is to advise on the federal government’s advancement of the LGBTQ2 agenda, working to promote equality for the LGBTQ2 community, protecting its members’ rights, and addressing discriminatory practices against them.  Michael Motala interviewed him for CBA National.

Michael Motala: Last June Prime Minister Justin Trudeau welcomed Egale's Just Society Report, saying the government shared the same values and objectives and that it would work with Egale “to end discrimination and further guarantee equality for all citizens." Can you please elaborate on what those values and objectives are?

Randy Boissonnault: The values are pretty clear. We believe fundamentally that we are stronger because of our differences, [we are] a welcoming country and that includes LGBTI newcomers in the regular immigration stream, but also LGBTI refugees. This is a place where you can come and you can be who you're meant to be and you have protection under the Charter’s rights freedoms to worship if you want to worship, to love who you want to love and that you're not going to be discriminated against.

In terms of some of the objectives, we [introduced] legislation to have gender diversity and gender expression written into the six sections of the Criminal Code but also to protect people under the Canadian Human Rights Act. That passed the House of Commons; it just last week passed second reading in the Senate. Now, it's going to one of the senate justice committees, then will go to the Senate for a vote. We need to see that get over the goal line, but that's progress.

Just [last week] the Minister of Justice put a piece of legislation in front of the House that will get rid of Section 159 [of the Criminal Code], an anti-sodomy provision that's just going to come off the books. Just the fact that the Prime Minister has announced a special adviser on LGBTQ2 issues is an indication of where our government's heading.

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Economy

Why taxing robots is easier said than done

By Doug Beazley March 13, 2017 13 March 2017

Why taxing robots is easier said than done

 

 

The populist wave turning democratic politics inside out throughout the developed West has many drivers; voter paranoia over migration and terrorism is only the obvious one.

Arguably, a bigger factor is the way globalization and the spread of automation have been eliminating many forms of work. Several solutions have been proposed, from the controversial (protectionism) to the novel (a guaranteed annual income). Bill Gates is now getting people to talk about taxing robots.

“Right now, the human worker who does, say, $50,000 worth of work in a factory, that income is taxed,” the philanthropist and tech mogul said in a recent interview. “If a robot comes in to do the same thing, you’d think that we’d tax the robot at the same level.”

What Gates proposes is to use the revenue from a robot tax to invest in employee re-training, to speed up the painful adjustment from one form of economy to another. What he fears is a neo-Luddite revolt against automation and new technologies in developed nations. He’s not wrong to worry about it; economists recently told the U.S. Congress that workers earning less than $20 an hour have an 83 per cent chance of losing their jobs to machines.

But how would a robot tax work? Would it work?

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Ethics

The presumption of innocence and trial by mob

By Beverley Spencer March 13, 2017 13 March 2017

The presumption of innocence and trial by mob

 

Postmedia columnist Christie Blatchford wants you to know that she really doesn’t care what you think of her. Her acerbic speech last week to a roomful of lawyers and judges at the CBA-FLSC Ethics Forum was laced with profanity and self-deprecating jabs (when she gave a similar speech to another CBA audience, she said she “finished to a lumpen and hostile silence.”)  She doesn’t just attack sacred cows; she beats them to a bloody pulp and mounts their heads on sticks as a warning to others.

But don’t dismiss her as another cranky contrarian. Strip away the snark and you’ll soon realize that Blatchford’s provocative positions are rooted in expertise developed over decades spent covering the criminal justice system. You might not agree with everything she says, but some of her insights are worth pondering.

Her topic at last week’s lunch was defending the presumption of innocence in sexual assault cases, a stand, she dryly observed, that she never realized would be controversial. 

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Criminal justice

Eliminating Canada's zombie laws

By CBA/ABC National March 9, 2017 9 March 2017

Eliminating Canada's zombie laws

 

Federal Justice Minister Jody Wilson-Raybould is taking a big old barbed-wire-covered bat to some Canada’s zombie laws in the Criminal Code – that is, invalid, unenforceable provisions in the Criminal Code that have been struck down by the courts for violating the Charter of Rights and Freedoms.

She introduced legislation on Wednesday that would remove or amend outdated provisions, such as the offence prohibiting abortion, as well as provisions dealing with driving under the influence and murder that have been struck down.

The fact that invalid provisions are still on the books has made headlines for creating confusion. CBA National reported last year on the judicial error made in the second-degree murder conviction of Travis Vader, where the presiding judge relied on a section declared unconstitutional in 1990 to deliver his verdict.

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Climate law

The case for constitutional environmental rights

By David R. Boyd, Alaya Boisvert, Lynda M. Collins and Kaitlyn Mitchell March 8, 2017 8 March 2017

The case for constitutional environmental rights

 

Nine in 10 Canadians believe the Canadian Charter of Rights and Freedoms should protect their right to live in a healthy environment. It doesn’t, and the question is whether it’s worth the effort to try to amend the Constitution to include it.

Everyone knows changing the Charter is a huge challenge. But as is often the case, the hardest things are the most worth doing. Efforts to expand the scope of human rights often seem almost impossible in the beginning. Ask abolitionists, suffragettes or other civil rights activists.

The right to live in a healthy environment enjoys constitutional protection in more than 100 countries, from Norway and Finland to Brazil and Costa Rica. Empirical evidence demonstrates that this can be a game-changer. Adding environmental rights and responsibilities to a constitution leads directly to enactment of stronger environmental laws, improved enforcement of those laws, increased public participation in environmental decision-making and preventing roll-backs of key environmental laws. Most importantly, it also leads to better environmental outcomes.

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Justice

When judges spark outcry

By Justin Ling March 7, 2017 7 March 2017

When judges spark outcry

 

In the days since Judge Gregory Lenehan acquitted Bassam al-Rawi in Halifax, there has been, to say the least, outcry.

A group of Haligonians took to the city’s central library to launch a letter-writing campaign. The leader of the opposition Progressive Conservatives has called for an inquiry. One petition calling for a formal investigation to the judge has hit nearly 35,000 signatures, while another calling for his resignation is nearing 2,000.

Lenehan’s decision added fuel to the fire of an ongoing debate over sexual assault, and where the law sits on consent.

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Climate change law

Linking cap-and-trade markets across the Pacific

By Supriya Tandan March 7, 2017 7 March 2017

Linking cap-and-trade markets across the Pacific


China, the world’s leader in greenhouse gas emissions, is moving ahead with its plan to implement a national emissions trading (or cap-and-trade) system. Meanwhile in Canada, Quebec emitters can already trade with those in California, and Ontario is set to link with these markets in 2018.  Beyond that, the question is whether we will soon see a carbon market spanning both sides of the Pacific Ocean that could tie the currently fragmented approach to emission reductions, and that would hopefully help lower costs and encourage innovation.

 

So far there have been no formal announcements about linking a Chinese national market with North America ones but the Paris Agreement does encourage and provide mechanisms to support such a linking.

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Constitution 150

The Charter as a living tree and the advance of socio-economic rights

By CBA/ABC National March 6, 2017 6 March 2017

The Charter as a living tree and the advance of socio-economic rights

 

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’ upcoming conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Kerri A. Froc, a Postdoctoral Fellow at Carleton University, and a Trudeau and Vanier Scholar, to discuss the impact living tree constitutional interpretation has had on the recognition of socioeconomic rights.

CBA National: How is the living tree approach to Charter interpretation supposed to hold promise for the advance of socio-economic rights?

Kerri Froc: “Living tree” constitutionalism, as we know it in Canada, is that the meaning of words in the Charter can change; judges need only consider the contemporary meaning of the words; and that the text is a very loose guide, a sort of empty vessel in which meaning can be poured in.  Under this approach constitution-making history is treated skeptically.  And the Supreme Court has stated that this is the best way to ensure that rights are not “frozen,” that we do not have a Constitution that is increasingly out of step with Canadian society and becomes less and less relevant. In 2002, the majority of the Supreme Court said in the Gosselin case that “one day,” section 7 might be interpreted to include “a positive state obligation to guarantee adequate living standards,” but just not then, in that case.  It cited “living tree” constitutionalism to ground that possibility.  So it’s throwing out this hope that despite socioeconomic rights getting short shrift in many decisions, there might be a course correction in the future.

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Foreign investment

Opaque guidance: National security review guidelines

By Doug Beazley March 6, 2017 6 March 2017

Opaque guidance: National security review guidelines


Nine years ago, the government of Prime Minister Stephen Harper was faced with a thorny public relations problem. Vancouver-based MacDonald, Dettwiler and Associates wanted to sell its space division — maker of the Canadarm, the Dextre space station robot and the Radarsat-2 satellite — to a U.S. firm for $1.3 billion.

Critics ripped the deal as a sell-out of Canadian technological sovereignty. Stung by the blowback, the Harper government blocked the sale, using the only tool it had at the time: the “net benefit” test in the Investment Canada Act, the federal law that allows the government to review foreign investment. Net benefit is a blunt instrument; the threshold for review is quite specific and limited by the value of the proposed investment and by where the foreign investor comes from (WTO nations get a higher threshold). A year later, the government amended the ICA to add a second hurdle for foreign investment: a national security test.

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