The Power of Perspectives

The Canadian Bar Association
Conflicts of laws

The new censors

By Yves Faguy March 14, 2018 14 March 2018

The new censors

Liberal democracies are wrestling with a crisis of confidence in freedom of speech.

It’s a sentiment that has been tracking alongside other worries – about erosions to the rule of law, reports of declines in civil liberties in many parts of the world, and distress over the torrent of invective that social media has unleashed. Civility is out the window. Women and Muslims are disproportionately the targets of trolls and haters. The loudest individuals will hijack debate and intimidate others into silence.

Caught in middle of all this are the new arbiters of acceptable conduct online – principally Facebook, Twitter, and Google.

It’s a role they would prefer not to have, after years of holding the internet up as the modern public square where views can be freely exchanged.

Facebook has always sold itself as a neutral platform for information. But the social media giant has been caught wrong-footed in a number of recent instances. In the lead-up to the 2016 U.S. election, it was accused of tweaking its algorithm to bury conservative viewpoints, then later of enabling the spread of right-wing misinformation. It recently announced plans to overhaul its newsfeed by letting users rank the credibility of news sources. Meanwhile it is accused of promoting Western-centric bias on its trending topics.

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Cover story

Automating justice

By Agnese Smith March 13, 2018 13 March 2018

Automating justice

 

It’s been a bad decade for gut feelings.

Computers are taking over what used to be the exclusive domain of human decision-making. From movie-picking algorithms to self-driving cars that promise an end to fatal crashes caused by human error, we’re striving to develop technology that can predict when we will make bad choices and help us avoid mistakes.

But as the sophistication of software programs powered by artificial intelligence grows, so does our unease: We are increasingly dependent on technology we do not fully understand. And nowhere is that unease more apparent than in the legal world as it grapples with the implications of using a new generation of risk-assessment tools to guide decision-making in the justice system.

“People’s freedom is at stake,” said Carmen Cheung, professor of global practice at the Munk School of Global Affairs at the University of Toronto. “There’s a sense that [predictive software] might help, but we haven’t had a robust enough debate around the issues. Until we have a proper conversation, they probably shouldn’t be rolled out.”

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Profile

In Person – Thomas Cromwell

By CBA/ABC National March 13, 2018 13 March 2018

In Person – Thomas Cromwell

 

Retired Supreme Court of Canada Justice Thomas Cromwell was made a companion of the Order of Canada in December “for his illustrious service as a Supreme Court justice, and for his leadership in improving access to justice for all Canadians.” The former chair of the Canadian Bar Review Editorial Board now serves as counsel with Borden Ladner Gervais in Vancouver.

Name three books that influenced you and tell us why.

It’s hard to limit it to three! To keep it to law books, one would be S.F.C. Milsom’s Historical Foundations of the Common Law. It confirmed for me the wisdom of Holmes’ remark that sometimes a page of history is worth a volume of logic. Lawyers and especially judges need to understand why and how the law got to be the way it is. This book, more than anything else, taught me that. A second would be Ronald Dworkin’s Taking Rights Seriously. Dworkin’s thinking about the nature of law and legal analysis has influenced me throughout my career. Finally, Stephen Armstrong and Tim Terrell’s Thinking Like a Writer is the best book on legal writing that I have seen. Don’t judge it by my writing!

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Q&A

Q&A with Anver Saloojee: Ryerson takes on legal education

By Beverley Spencer March 13, 2018 13 March 2018

Q&A with Anver Saloojee: Ryerson takes on legal education

 

Ryerson University has ruffled a few feathers with its proposal for a new law school. Law Society of Ontario has approved its program, but some observers wonder whether there’s room for a new law school – and jobs for the additional graduates it would produce. CBA National asked Professor Anver Saloojee, dean of record for Ryerson’s proposal, to elaborate on the school’s plans.

CBA National Does Ontario – or Canada for that matter – really need another law school?

Anver Saloojee Absolutely yes and in particular one that focuses on equity diversity and inclusion, on technological innovation and on access to justice. Ryerson intends to produce graduates whose nimbleness and ability to compete in new ways will enhance access to justice in the province. Technology is creating new opportunities in the legal sector with the legal industry on the cusp of transformation driven by the application of technology to legal work in ways previously not imagined. And the Greater Toronto Area is rapidly emerging as one of the legal innovation clusters in the world.

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Agents of Innovation

The ascendancy of the business of law

By Mark A. Cohen March 13, 2018 13 March 2018

The ascendancy of the business of law

 

Law is no longer exclusively about lawyers.

Technology, the global financial crisis, and globalization have created a new buy/sell dynamic that has disrupted industries from ride hailing to hospitality – even getting a date. These powerful forces are having an impact on law, too.

Consumers have a new set of expectations for legal delivery that has spawned a migration of work from law firms to corporate legal departments as well as a new breed of well-capitalized law companies, whose DNA is business-based but laced with legal industry knowledge.

Law, now a trillion-dollar global industry, is being re-engineered by business and tech professionals as well as entrepreneurs. Meanwhile, the parameters of legal practice – what, when, and to what degree a lawyer is required – are narrowing, as the industry is increasingly supported by technological and business expertise.

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Ethics and criminal justice

Sexual assault trials: A failure of the legal profession?

By Ann Macaulay March 12, 2018 12 March 2018

Sexual assault trials: A failure of the legal profession?

 

The way sexual assault cases are practised and adjudicated by defence lawyers, prosecutors and judges regularly imposes unnecessary harms upon complainants, according to Dalhousie University law professor Elaine Craig. Players in each of these roles should play a part to prevent these harms and all have a duty to “uphold the law and those legal reforms that we have in place to protect complainants and the duty to intervene to prevent arguably unnecessarily aggressive, discriminatory or abusive cross-examinations,” she said.

Conclusions from Craig’s recent book, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, were central to the discussion of ethical challenges by a panel moderated by University of Calgary law professor Alice Woolley at a March CBA-FLSC Ethics Forum in Toronto.

Craig’s book examines ways the criminal trial process can be made less traumatic for sexual assault complainants without threatening or eroding the rights of the accused. She found that some criminal defenders ask improper questions, including prior sexual history. They “sometimes exploit rape myths that have been categorically rejected at law and sometimes unnecessarily harass and intimidate complainants in an effort to discourage them from continuing to willingly participate in the process.” These strategies are inconsistent with the law, she said, and judges have an ethical obligation “to make courtrooms as humane as possible under the circumstances,” including not forcing a complainant to testify while standing.

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Practice hub

AI and the future of the profession

By Suzanne Dansereau March 10, 2018 10 March 2018

AI and the future of the profession

 

THE DINERS

The president of CanLII: Xavier Beauchamp-Tremblay. He has been heading the Canadian Legal Information Institute for two years and is working on refining the search engine by incorporating deep learning.

The in-house counsel: Kang Lee. He manages disputes for the pharmaceutical company Sandoz and is responsible for the data required to manage risk.

Kang Lee and Xavier Beauchamp-Tremblay work with new technology on a daily basis. They sit down over filet mignon and gnocchi in cream sauce at Le Richmond restaurant in Montréal’s Griffintown neighbourhood to discuss their impressions of an American software program that promises to assess a litigator’s rate of success, time spent on litigation and cost-benefit ratio.

Lee seems sold. Beauchamp-Tremblay, less so; he doesn’t believe the software is sufficiently advanced yet.

“What annoys me about new technology, and artificial intelligence in particular, is that there’s a lot of smoke and mirrors involved.”

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Practice hub

Mentor me

By Mariane Gravelle March 10, 2018 10 March 2018

Mentor me

 

You’ve probably heard of it and you may have even taken part in it at some point in your career. Mentoring – a partnership between an experienced individual and a less experienced one – can benefit people with many different backgrounds in a wide variety of contexts.

It’s not a new concept – mentoring dates back to Ancient Greece and Homer’s The Odyssey – but today it’s an increasingly important part of professional development.

What is mentoring?

A mentor helps guide a mentee through a particular situation; starting a new career or progressing in a chosen field, for example. Unlike activities such as coaching and training which focus on an individual’s performance or details of a particular job, mentoring addresses the personal growth of an individual – often with a long-term view. That’s why it’s important to choose a mentor you respect and with whom you can feel comfortable sharing personal information.

Why do it?

CBA National recently caught up with two members of the CCCA mentoring program to get their take on their experience.

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Conduct becoming

Have legal regulators lost sight of the public interest?

By Gavin & Brooke MacKenzie March 10, 2018 10 March 2018

Have legal regulators lost sight of the public interest?

 

In December, a British disciplinary tribunal suspended a barrister for six months because he gave £2,300 ($3,930 CDN) to a legal aid client who had told him that she could not afford food or electricity. The barrister, who had recently reported earnings of £787,000 ($1.3-million CDN) a year from legal aid, told the disciplinary panel that he wanted to help the woman, who struggled with drug addiction, “turn her life around.”

The panel found that the barrister had compromised his independence, and that his conduct was “likely to diminish the trust and confidence which the public place in the profession”.

The disciplinary tribunal’s decision can be explained in part by the differences between the British and Canadian systems of legal regulation; in Britain the bar has traditionally enforced a more stringent view on the distance required between lawyers and clients. The penalty was also influenced by the panel’s finding that the barrister had failed to co-operate with the regulator.

Nevertheless, the panel’s conclusion is dubious or worse. The barrister’s decision to give money to a struggling client for food and shelter was “likely to diminish the trust and confidence which the public place in the profession”? Really? The opposite is true. There may have been a technical breach here, but given lawyers’ longstanding public image problem, such good faith acts of generosity are likely to improve the public’s trust in our profession.

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CBA influence

Proposed MAID regulations open door to self-incrimination for practitioners

By Kim Covert March 8, 2018 8 March 2018

 

The CBA’s End-of-Life Working Group has some concerns about the implications for medical professionals in the proposed Monitoring of Medical Assistance in Dying Regulations published in December.

The regulations require medical practitioners and nurse practitioners who receive a written request for MAID, and pharmacists who dispense the drugs, to disclose certain information so governments can track how it is being used.

The CBA Working Group sees problems both with the specific kinds of information requested and the fact that the information is being compelled on threat of criminal sanctions.

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CBA influence

Extrapolating the decision in Green to other limited partnership cases

By Kim Covert March 8, 2018 8 March 2018

 

The decision in Green v R, 2017 FCA 107, was engineered to avoid an inappropriate result, but in turn could lead to other inappropriate results if applied broadly.

This sparked a discussion between the CRA and the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada late last year on what factors the Department should take into account if it proposes a legislative response to the decision. A recent submission sets out the Joint Committee’s position.

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Closing argument

Minimum wage, maximum benefit

By Omar Ha-Redeye March 7, 2018 7 March 2018

Minimum wage, maximum benefit

 

Your morning coffee might be a bit more expensive in 2018, partly due to increased labour costs. But it will be worth it in the long run.

Across Canada, provinces are raising their minimum wages. Alberta has the most ambitious plan, with an increase to $13.60 on Oct. 1, 2017, and plans to raise it to $15 by Oct. 1, 2018. Ontario is close behind, raising the minimum wage to $14 on Jan. 1, 2017, with plans to go to $15 on Jan. 1, 2019.

The Bank of Canada responded with a study estimating that Ontario’s move could cost up to 60,000 jobs. The traditional arguments underpinning these conclusions are that higher wages mean a more expensive payroll, reducing the ability of employers to hire people.

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Automating justice

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In Person – Thomas Cromwell

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Sexual assault trials: A failure of the legal profession?

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