The Power of Perspectives

The Canadian Bar Association
Privacy

The privacy divide: Bridging the gap between legal traditions

By Karen Eltis January 12, 2017 12 January 2017

The privacy divide: Bridging the gap between legal traditions

 

The European Court of Justice’s much maligned decision in Google Spain SL, Google Inc. v Agencia Espaňola de Protectión de Datos, Mario Costeja González handed down in May of 2014, appears to compel search engines (most notably Google, which it deems a “data controller”), to remove links to certain impugned search results at the request of individual Europeans (and potentially by others beyond Europe’s borders). It so held by virtue of the “right to be forgotten”, recently enshrined in article 12 of the revised 1995 European Data Protection Directive 95/46/EC. Further complicating an already thorny situation is the court’s failure to impart much-needed practical guidance in Costeja. More importantly perhaps, the decision underscores the right to be forgotten’s divisive character across common law/civilian lines that now extends beyond the United States.

What’s more, Costeja may inadvertantly and ironically have the effect of appointing (chiefly American) “data controllers” as unwitting and ill equipped private censors; arbiters of the European public interest and beyond.

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Climate law

The Crown has no duty to consult when legislating… for now

By Supriya Tandan January 11, 2017 11 January 2017

The Crown has no duty to consult when legislating… for now

 

A recent decision by the Federal Court of Appeal confirms that governments enjoy relative freedom when developing legislation, even when laws may impact traditional aboriginal rights. The decision at issue stems from legislative activity taken by the previous Harper government when it introduced bills C-38 and C-45 — both controversial on account of its reliance on omnibus budget bills to make major statutory reform, which critics charged were not subject to adequate parliamentary scrutiny.

Though the bills courted public discontent, protests and eventually spurred the Idle No More movement, there has been relatively little court action on these “behemoth” budget bills. That changed in Courtoreille v. Canada, an application for judicial review of C-38 and C-45 filed by Chief Steve Courtoreille and members of the Mikisew Cree First Nation.

In their application, Chief Courtoreille and the Mikisew Cree state that the purpose of the billsare to reduce federal oversight in environmental matters. 

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CBA Influence

Clearing the record: Suggestions for the pardons process

By Kim Covert January 11, 2017 11 January 2017

At what point does the justice system become unjust to the estimated one in 10 Canadians with a criminal record?

Depending on whom you talk to, a person could likely find injustices throughout – prolonged detention, delays in proceedings, inadequate legal aid funding and prison overcrowding are just some of the ways the justice system works against the people caught up in it.

A person who has served his or her time and been released back into the community can find it difficult to get out from under the stigma of that conviction – in fact, even people who’ve had charges against them stayed can still be negatively affected by their brush with the system.

In August, CBA Council passed a resolution urging the federal government to make changes to the current pardons process.

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Criminal law

Abusing civil forfeiture in Canada

By Justin Ling January 10, 2017 10 January 2017

Abusing civil forfeiture in Canada

 

Ontario’s civil forfeiture laws have created a system that is broad in scope and power, light on defence and relief, and they are being deployed very generously. 

That’s a reality that Margaret and Terry Reilly have learned the hard way over the past decade, as the government has aggressively pursued two of their properties, seizing their buildings and selling them off. 

It’s a case that highlights the bizarre nature of civil forfeiture — one that a group of lawyers is looking to scale back. 

The Reillys have found allies in the Canada Constitution Foundation (CCF), who are helping in the legal fight against the forfeiture order.

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CBA influence

Duty to consult: Reviewing the environmental assessment process

By Kim Covert January 10, 2017 10 January 2017

The federal government’s attempts to balance the interests of business, the environment and Indigenous peoples in the environmental assessment process have met with varied success, depending on your area of particular interest.

The government has established an expert panel to review the environmental assessment process. A working group made up of members of the Environmental, Energy and Resources Law Section and the Aboriginal Law Section prepared a submission that was presented to the panel in Vancouver in December. Tony Crossman, who appeared before the panel for the CBA, also followed up by letter with a response to three particular questions he was asked by the panel.

The CBA submission made a total of 33 recommendations for modernizing the process, underlining the importance of the Canadian Environmental Assessment Act, 2012, as well as sufficient funding and resources.

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CBA Futures

Legal futures round-up: January 10, 2017

By Brandon Hastings January 10, 2017 10 January 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.

Burford Capital, the world’s largest litigation finance company the world, bought its main rival Gerchen Keller Capital for $US 160 million. The tie-up has commentators calling it a sign that the litigation funding industry is maturing in the U.S.

According to a recent roundtable, summarized in this white paper, commentators expect that litigation funding will become increasingly prevalent in Canada. As a new wave in legal business, and an access to justice initiative, litigation funding (where large pieces of litigation is financed by third parties) litigation funding could help change the liability landscape in Canadian courts. Litigation which attracts funding currently requires a claim of $10 to $15 million.

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Privacy

Understanding surveillance technology

By Justin Ling January 9, 2017 9 January 2017

Understanding surveillance technology

 

Has the time come for the bench and the bar get a crash course in spying technology?

That’s a pretty clear take-away after a presentation on privacy and surveillance from Doug King, the police accountability campaigner at Pivot Legal.

King was speaking at the Canadian Constitution Foundation’s Law and Freedom Conference on Saturday, briefing the lawyers in the room on how police across Canada have deployed the powerful Stingray surveillance devices.

Pivot Legal and King have been

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CBA influence

Political activities for charities: Reframe the question

By Kim Covert January 9, 2017 9 January 2017

The personal is political – and so is the charitable it seems. Federal regulations limiting activities of a political nature have left charities tying themselves into knots and spending valuable resources trying to decide whether any given activity or statement is political – or more importantly perhaps, could be perceived to be so.

The problem is worsened by the fact that many things a charity does can be seen through the lens of political activity. Charities have a unique role to play in public policy debates, as acknowledged in the government’s public policy guidance on political activities, which states in part:

Through their dedicated delivery of essential programs, many charities have acquired a wealth of knowledge about how government policies affect peoples’ lives. Charities are well-placed to study, assess, and comment on those government policies. Canadians benefit from the efforts of charities and the practical, innovative ways they use to resolve complex issues related to delivering social services. Beyond service delivery, their expertise is also a vital source of information for governments to help guide policy decisions. It is therefore essential that charities continue to offer their direct knowledge of social issues to public policy debates.

But with limits placed on political activities, many in the voluntary sector feel it’s not worth the risk to undertake them.

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Legal education

My resolution for legal education: Breaking through the echo chambers

By Rebecca Bromwich January 6, 2017 6 January 2017

 

2017. It is a new year, a time of new snow, and a time for new ideas. I suggest one counter-cultural notion for all of our consideration that is more often expected from a right-wing thinker than a soft leftie like me:  what if legal classrooms are not meant to be safe spaces?  What if they need to be raw with articulated disagreement and debate in order for learning, and democracy, to take place?

The echo chambers of the 2016 U.S. election have insight to offer us about legal education.  My resolution for 2017 follows from this.  I want to encourage disagreement to take place within my classrooms when I teach. My resolution for 2017 is to do as Desmond Tutu says, “If you want peace, don’t talk to your friends, talk to your enemies.”

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Criminal Law

Strip-searching of women in Canada: Wrongs and rights

By Yves Faguy January 5, 2017 5 January 2017

 

In the latest issue of The Canadian Bar Review, Michelle Psutka and Elizabeth Sheehy of the faculty of law at Ottawa University remind us that, in its 2001 R. v. Golden ruling, the Supreme Court of Canada recognized that strip-searches of women, particularly by male police officers, are “inherently humiliating and degrading’ and therefore should not be a routine practice. And yet, the authors write, illegal strip-searching of women “remains a persistent problem in Canada.” They offer some reasons why our legal system has failed to end the practice, and propose some solutions. CBA National sat down with Michelle Psutka to discuss their findings:

 

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Trade

A busy year for trade lawyers in 2017

By Mariane Gravelle January 5, 2017 5 January 2017

A busy year for trade lawyers in 2017

 

The unequal distribution of benefits from globalization dominated much of world politics in 2016. The coming year will be a crucial one for trade law. 

North American Free Trade Agreement (NAFTA):

Signed in 1994 by Canada, the United States and Mexico, the North American Free Trade Agreement (NAFTA) created the largest free trade area in the world. According to GAC, “The NAFTA, being the first comprehensive trade agreement of its type, has set a valuable example of the benefits of trade liberalization for the rest of the world.”

Spurred by PEOTUS Donald Trump’s protectionist trade agenda and his promise to bring jobs back to America, we might see NAFTA being reopened to negotiation in the near future, which may or may not be in the best interest of Mexico and Canada. Renegotiation of this agreement will impact all of Canada’s trade with the USA, and Canada’s economy as a whole. One of the trade goods we’ll be watching for is softwood lumber, which is vitally important to many regions in Canada.

according to their factum filed on appeal.

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Crime Stoppers: How do you guarantee anonymity?

By Justin Ling January 4, 2017 4 January 2017

Crime Stoppers: How do you guarantee anonymity?

 

Just how far should anonymity stretch to would-be tipsters and whistleblowers in criminal cases? That’s one of the first questions the Supreme Court of Canada will tackle in 2017, as the Crown faces off against a group that it can usually consider an ally: Crime Stoppers.

The case is unusual, but will serve as the goalpost to determine where informer privilege begins and ends for third-party tiplines, like those operated by Crime Stoppers. It comes out of a voir dire decision made at a lower Ontario court, stripping an anonymous phone call made to Crime Stoppers of its automatic privilege.

The call, the Crown contends, was made by the accused — whose identity is protected by a publication ban — and therefore cannot be protected by informer privilege.

Crime Stoppers is coming to the Supreme Court in the hopes that it will “provide a clear statement that informant privilege attaches automatically, as soon as the phone rings,” according to their factum filed on appeal.

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