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The Canadian Bar Association
CBA Advocacy

Concerns over access rights, judicial independent and privilege

By CBA/ABC National May 29, 2018 29 May 2018

Concerns over access rights, judicial independent and privilege

 

CBA sent its submission this morning on Bill C-58 – and proposed amendments to the Access to Information Act (ATIA) and the Privacy Act  – to the Senate’s Legal & Constitutional Affairs Committee. It is identified three areas of particular concern cover issues surrounding access rights, judicial independence and solicitor-client privilege. The bill is in its 2nd reading in the Senate.

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CBA influence

Search engines’ raison d’être at the base of online privacy debate

By Kim Covert May 29, 2018 29 May 2018

 

Are search engines engaged in commercial activity? Is it practical to require them to obtain consent before gathering personal data? Is it appropriate to ask them to decide what information needs to be removed from their indexes?

These are just some of the thorny questions in the debate over online reputation, and the right to be forgotten. Three CBA groups – the CCCA, the Privacy and Access Law Section and the Children’s Law Committeerecently responded to the Office of the Privacy Commissioner’s Draft Position on Online Reputation and the only things the three wholeheartedly agreed on were that children must be protected online and that privacy laws, written for a different time and circumstance, need to be studied by Parliament.

“Privacy legislation, as well as the Canadian Charter of Rights and Freedoms, are interpreted today in a different context than when they were originally drafted,” the Sections say. “As the internet broadly, and search engines specifically, are significant sources of information for Canadians, online reputation and disclosure of personal information online are important issues for regulators, policy makers and legislatures to examine.”

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International law

Prohibiting chemical weapons: The short arm of the law

By Erika Schneidereit May 28, 2018 28 May 2018

Prohibiting chemical weapons: The short arm of the law

 

In March 2018, the poisoning of former Russian military officer Sergei Skripal and his daughter Yulia on British territory captured the international media spotlight. Reports later claimed that the pair had been exposed to a Novichok nerve agent, quickly leading to allegations that its use constituted a violation of international law. But what international law actually says about the use of chemical weapons, and the options available to states subjected to a chemical attack, is regrettably absent from most conversations on the topic of chemical warfare.

The international legal prohibition on the acquisition and use of chemical weapons is grounded in the Chemical Weapons Convention (CWC), a multilateral treaty with 192 state-parties. Only three states (Egypt, North Korea, and South Sudan) have neither signed nor ratified the convention. This near-universal ratification is impressive given the CWC’s wide-ranging prohibitions – banning use as well as the development, production, acquisition, retention and transfer of chemical weapons. Also targeted is any assistance provided to other states to engage in activities prohibited by the CWC.

Even so, violations of the treaty (or at least, allegations of violations) continue to occur. So what actually happens when states fail to adhere to the strict rules of the CWC?

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Cryptocurrency

Parliament should formally legalize cryptocurrency as “money”

By Chetan Phull May 25, 2018 25 May 2018

Parliament should formally legalize cryptocurrency as “money”

 

Cryptocurrency can arguably exist as a commodity and security, and be a medium of exchange on this basis. However, legally speaking, cryptocurrency cannot be “money” in commercial dealings.

The reason is twofold. First, any contract involving the payment of “money” must be denominated in fiat currency under the Currency Act. Second, cryptocurrency has not yet achieved fiat status in Canada or any other country.

The legality of cryptocurrency contracts under Canadian law is therefore challenged by the view that cryptocurrency is in fact “money”.

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CBA influence

Voter intelligence is big business unfettered by regulation

By Kim Covert May 25, 2018 25 May 2018

 

The recent scandal surrounding information-gathering by Cambridge Analytics and Facebook opened a lot of eyes to the amount of data that is out there to be collected, and the uses to which it can be put.

Usually when we think about Big Data we think of it in commercial terms – companies finding ways to use personal information about consumers in order to enhance their bottom lines. But Big Data’s not just for Big Business any more –political parties are also hoovering up Canadians’ data, and they’re doing it with relative abandon, compared with the restrictions placed on the business world.

“Political parties are not subject to privacy laws,” the CBA’s Privacy and Access Law Section points out in a submission regarding Bill C-50, An Act to Amend the Canada Elections Act, noting that laws meant to protect Canadians privacy in almost all other aspects of their lives, including the Personal Information Protection and Electronic Documents Act, the Privacy Act, or Canada’s Anti-Spam Law, do not apply to political parties.

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CBA influence

Impact assessments: Bill C-69 needs clarity and guidance to achieve stated goals

By Kim Covert May 25, 2018 25 May 2018

 

The federal government set out a host of worthy goals in the preamble for Bill C-69,An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, which had its first reading in the House in February.

The government aims to implement an assessment and regulatory system that:

  • people can trust, that will protect the environment and the health and safety of Canadians
  • that allows decisions to be predictable and timely, therefore providing the stability business needs
  • reflects the government’s commitment to achieving reconciliation with First Nations
  • uses transparent processes built on early engagement and inclusive participation
  • considers both scientific and traditional knowledge
  • assesses the broader impact of policies, programs and projects.

These are all goals the CBA can get behind, say the Aboriginal Law Section and the National Environmental, Energy and Resources Law Section in a submission centred on the proposed Impact Assessment Act.

The devil, as always, is in the details.

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CBA Community

The Canadian Bar Review is now open access

By Yves Faguy May 24, 2018 24 May 2018

The Canadian Bar Review is now open access

Open research is gradually reshaping the way that researchers collaborate to advance knowledge and discovery. Now, as part of its mandate to foster dialogue and collaboration between legal scholars and practitioners, the CBA’s bilingual peer-reviewed legal journal, The Canadian Bar Review, has gone open access

The move to an open access platform is also in keeping with the CBA’s commitment to advancing access to justice and the advancement of the law.

The country’s top legal minds can now publish their articles in a timely manner and even use the new platform’s automated submission process.  Readers will have easier access to the publication and be able to effortlessly share its contents.

To get a sense of our new platform, please go visit the most recent edition.  It explores a range of issues from Canada’s "institutional turn" in religious freedom litigation and how Canada’s legal framework should be reformed to restructure Canada’s relationship with Indigenous peoples to data on defamation law in Canada, the prosecutor’s role in seeking justice in an adversarial system and the outsourcing of legal services.

Do take the time to check it out.  It’s time well spent.

The Canadian Bar Review, founded in 1923, is edited by Law dean Chris Waters, criminal law professor David M. Tanovich, both from the Faculty of  Law at the University of Windsor, and by Patrice Deslauriers, professor in the Faculty of Law at the Université de Montréal.

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Justice

Trial and error: criminal justice reform

By Justin Ling May 24, 2018 24 May 2018

Trial and error: criminal justice reform

At the end of March, the Trudeau government introduced new legislation that it claims will modernize the criminal justice system, reduce court delays, reduce the overpopulation of Indigenous people in Canadian jails, clean up the Criminal Code, and ensure a broader representation of marginalized people in the court process. Bill C-75 would, it promised, “transform the criminal justice system to make it more efficient, effective, fair, and accessible.”

It was ambitious language, and came at the culmination of more than a year of consultations and conversations between the department of justice and lawyers across the country. The reviews have been less enthusiastic.

CBA National canvassed a number of defence lawyers who routinely deal with the processes that C-75 addresses. Few aspects of the bill have garnered accolades, particularly among defence lawyers. Even well-received measures are dismissed as insufficient, or overdue.

Some critics are even warning that C-75 would exacerbate some of the problems it seeks to fix: lengthening court delays, entrenching a lack of diversity, and disadvantaging accused at trial, especially those with less resources to fight the charges against them.

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CBA influence

Draft M&A guide takes positions inconsistent with jurisprudence

By Kim Covert May 23, 2018 23 May 2018

 

Google “mergers” and “efficiencies” and the helpful suggestion for a search that comes up is “mergers create efficiencies.” It’s apparently so true that even Google knows it.

In March, the Competition Bureau released a draft document, A practical guide to efficiencies analysis in merger reviews, sharing its perspective and experience on trade-off analysis, and when the Commissioner may decide not to challenge a merger due to efficiency gains.

The CBA’s Competition Law Section commends the Bureau on its commitment to transparency and public consultation, but has a number of concerns with the document, recommending that language in a number of areas be clarified or reconsidered.

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Family law

A major overhaul of Canada's Divorce Act

By Yves Faguy May 23, 2018 23 May 2018

A major overhaul of Canada's Divorce Act

Justice Minister Jody Raybould-Wilson has introduced legislation that would represent a major overhaul of Canada's divorce laws.  The main thrust of the amendments is to place the best interest of the child at forefront of resolving disputes, and emphasize parenting responsibilities after separation in less adversarial terms than the existing legislation does (exit talk of “custody” and “access”). They also include measures to address family violence and push spouses to rely more on family-dispute resolution services instead of the courts. Also noteworthy are new guidelines for parents wishing to relocate with children.

The amendments appear at first blush to be broadly in line with a number of CBA recommendations made over the years, including a recent submission on a private member’s bill dealing with shared parenting and a letter calling for specific changes to the Divorce Act.

John-Paul Boyd, the Executive Director of the Canadian Research Institute for Law and the Family, also remarked on Twitter that the proposed legislation bill owes much to provincial efforts already well under way (namely in Alberta and British Columbia) to modernize family law.

You can read the CBA’s statement on the proposed legislation here, and the Justice Minister’s Charter Statement, which looks at how the bill might affect issues surrounding mobility rights, expanded search and disclosure powers, and enforcement of family support orders.

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Decriminalization

Could Portugal’s drug policy work in Canada?

By Doug Beazley May 22, 2018 22 May 2018

Could Portugal’s drug policy work in Canada?

 

Party policy conventions are to politics what fantasy football is to the real thing. Delegates gather to discuss blue-sky proposals to reshape the nation and the world — banning nuclear weapons, for example, or putting new limits on abortion access. Then the professionals weigh in to explain why those ideas won’t fly.

Sometimes the reasons are legal; sometimes they’re political. Sometimes they’re both — which is what happened when Liberal Party of Canada delegates gathered in Halifax last month to talk about following the Portuguese model on drug policy: decriminalizing consumption and possession of small amounts and diverting users into the health care system. The resolution hadn’t even been adopted before key members of Prime Minister Justin Trudeau’s cabinet were taking turns tossing buckets of cold water on the idea.

“I recognize there’s a lot of comparison with Portugal and Canada but I think we have to develop the Canadian model here,” said Health Minister Ginette Petitpas Taylor.

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Indigenous law

Truth and reconciliation: More guidance is needed on legal reform

By Yves Faguy May 18, 2018 18 May 2018

Truth and reconciliation: More guidance is needed on legal reform

 

The Truth and Reconciliation Commission’s work and report may have achieved a lot in terms of raising awareness about past efforts in Canada to assimilate Indigenous individuals and erase their cultures. Unfortunately, Michael Coyle argues, it doesn’t focus enough on the specific ways Canada’s legal framework should be reformed to restructure Canada’s relationship with Indigenous peoples. In a recent article published in the Canadian Bar Review, Coyle offers the following comparison with other similar works:

The abstraction of the TRC’s recommendations for restructuring Canada’s relationship with Indigenous peoples may have rendered them easier for governments to embrace. Although Canada’s then Prime Minister, Stephen Harper, declined even to attend the ceremony accompanying the TRC’s final report, the current government indicated almost immediately that it would fully implement the TRC Calls to Action, including using the UNDRIP as the framework for reconciliation.

It is not clear at this time what systemic changes, if any, the Canadian government intends to implement in relation to their relationship with Indigenous peoples. It is clear, however, that some degree of support from the Canadian public will be required if the relationship is to be transformed. The failure of the TRC’s report to communicate more forcefully to the public the link between past government policies subordinating Indigenous peoples and the current legal regime will not assist efforts in this regard. It is worth noting that the TRC report follows the work of two other Canadian commissions, the six-volume Report of the Royal Commission on Aboriginal Peoples published in 1996, and the four-volume Report of the Ipperwash Inquiry published 11 years later. Both of those reports recommended significant legal reform to recognize the principles of treaty partnership with Indigenous peoples. Neither of these earlier reports provoked such reform. It will be worthwhile to reflect on at least one of the possible impediments to fundamental change.

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