The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Criminal law

Aggravating factors: Sentencing for male intimate violence against women

By Yves Faguy August 16, 2018 16 August 2018

Aggravating factors: Sentencing for male intimate violence against women

 

Isabel Grant examines, in the latest issue of the Canadian Bar Review, sentencing for male intimate partner violence against women (MIPVW) since the Criminal Code provision made it a mandatory aggravating factor where the offender was in a spousal or common-law relationship with the victim.

The provision, section 718.2(a)(ii), was adopted in response to a growing recognition that courts were typically trivializing violence within intimate relationships. Grant aims to study whether the provision, over the last 22 years, has made a difference.

Acknowledging that the vast majority of the cases under study (94 per cent) involved male offenders being violent against female victims, Grant concludes that appellate courts are generally taking MIPVW seriously – though less so where sexual assault is committed. What’s more, at trial, myths about women who stay in abusive relationships are still hard to shake:

Read More
CBA Futures

Friday weekly wrap-up

By Yves Faguy August 10, 2018 10 August 2018

Friday weekly wrap-up

 

Here’s a quick look at some the top legal affairs stories from the past week in our Friday Wrap-Up.

Ontario Premier Doug Ford’s announced $25M in funding for “legal swat teams” at provincial courthouses to fight gun violence in Toronto.  Citing Chicago's experience as proof handgun bans don't work, Ford also dismissed calls for a similar ban on the sale of handguns in Toronto. In fact, the handgun ownership ban is no longer in effect in the Windy City. The U.S. Supreme Court ruled it unconstitutional in 2010. Meanwhile, Evan Dyer points out that Canada needs much better data on where crime guns are coming from.

Beginning in September, Quebec’s Independent Investigations Bureau (BEI) will investigate all criminal allegations against police officers members of a First Nation or the Inuit nation. The BEI also announced its intention to recruit, as soon as possible, one or more First Nations and Inuit Investigators for greater representation within their organization.

Read More
CBA Futures

Legal futures round-up

By Yves Faguy August 8, 2018 8 August 2018

Legal futures round-up

 

Time for a quick round-up of notable trends and developments and views that highlight innovation in the legal industry.

The big news was the recent announcement that Big Four accountancy EY will acquire Riverview, a leader in the managed legal services space since its launch in 2012 with the backing of global law firm DLA Piper. Legal Business reports that DLA Piper is selling its interest in Riverview, though it retains a small stake in Kim Technologies, an AI platform that Riverview acquired in 2015 (but from which it has since demerged). The acquired entity will be known as EY Riverview Law once the deal is completed (possibly by the end of the month).

Liam Brown notes the obvious – that the move “reflects the growing ambitions of the Big 4 in law” – but also that “Riverview’s action reflects that making a dent in the legal market is hard yards.” He also cautions that we recently witnessed a similar move when Conduit Law partnered up with Deloitte in 2016, only to end their affiliation 18 months later.

The Ontario Bar Association is launching a first “Innovator in Residence” program that aims to identify, develop and advance innovations that will help members better serve their clients.  Peter Aprile, a tax litigator and founder of Counter Tax Lawyers, will be the first Innovator in Residence as of September.

Read More
Family law

How to fix Quebec’s surrogacy laws

By Yves Faguy August 7, 2018 7 August 2018

How to fix Quebec’s surrogacy laws

 

Though surrogacy is legal in Canada, surrogacy contracts are mostly deemed unenforceable throughout the country.  In Quebec, they are qualified as “absolutely null” under the Civil Code’s article 541. That means that in Quebec a woman who agrees to carry a child for another individual or intended parents is deemed a threat to public order. So the contract, whether verbal or in written form, may not be enforced. But in an article recently published in the Canadian Bar Review, McGill University’s Stefanie Carsley notes that lawmakers have largely failed at dissuading people from taking the risk of entering surrogacy arrangements. Intended parents in the province have sought ways around the unenforceability issue by applying to the courts for legal status through adoption – more specifically through special adoption. This allows one birth parent to maintain their bond of filiation while their spouse adopts the child.  Carsley reviews recent Quebec case law addressing article 541 and concludes that the province’s legal framework is failing all parties :

While article 541 CCQ was intended to protect surrogate mothers, in practice it leaves surrogates in a precarious position. Quebec’s current regime fails to offer surrogates any protection should one or more intended parents change their minds and refuse to honour their agreement to take the child. This may happen, for instance, if the child is found to have a disability, if the intended parents divorce, or if an intended mother becomes pregnant after the surrogate conceives. The surrogate may be left to care for and pay for the costs of raising a child that she did not intend to keep, while the intended parents might not experience any financial or legal repercussions for their actions. At most, an intended father might be held liable to pay child support, but only if he used his own sperm to conceive.

Read More
Indigenous law

Looking back at Latif and the challenge of proving discrimination

By Yves Faguy July 13, 2018 13 July 2018

Looking back at Latif and the challenge of proving discrimination

 

This month marks the third anniversary of the Supreme Court of Canada ruling in which it rejected an appeal from Javed Latif, a Canadian pilot of Pakistani origin who claimed the transportation company Bombardier Inc. had discriminated against him on account of his ethnic background. Bombardier refused to provide him training at its facility in Quebec because U.S. authorities had declared him a threat to aviation security (Latif was also licensed in the U.S.). The Quebec Human Rights Tribunal agreed with Latif’s position, Quebec’s Court of Appeal set aside its decision because it could not find that Bombardier had discriminated against Latif without proof that the U.S. authorities’ decision was itself based on a ground that the Charter prohibits. In its ruling Supreme Court outlined the test for establishing discrimination in human rights cases.

In their recent article published in the current edition of the Canadian Bar Review, Colleen Sheppard and Mary Louise Chabot draw parallels with a very different decision, the SCC’s Taypotat ruling, that decided that minimum education requirements to run for Chief or Band Councillor in the Kahkewistahaw First Nation are not discriminatory under section 15 of the Charter. The authors argue that our courts need to be more sensitive to the evidentiary challenges facing plaintiffs in establishing discrimination:

Read More