The Power of Perspectives

The Canadian Bar Association
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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Big picture

Canada's pot laws

By CBA/ABC National March 7, 2018 7 March 2018

Canada's pot laws

 

With the adoption in the House of Bill C-45 last year, recreational marijuana is still officially on track to become legal in Canada sometime during the upcoming summer. The amendments leave it largely up to provincial and territorial governments to decide on the best model for its sale distribution. Only five provinces have so far proposed a legal framework for retail marijuana sale.

For the full infographic, click here.

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Creative licence

Embracing the inner cinephile: Hugh Murphy

By CBA/ABC National March 7, 2018 7 March 2018

Embracing the inner cinephile: Hugh Murphy

 

“I had recently relocated from Toronto and I wanted to see independent cinema. I was thirtysomething with time on my hands so I started Far Out East Cinema. Now 600+ films, 100,000+ admissions and twentysomething years later, I still enjoy it. I do it because my patrons like what I do, a lot. And it puts me in touch with a completely different crowd than I would otherwise be exposed to. Indispensable: A dozen volunteers and 300+ movie-going members.”

Hugh Murphy, Murphy Murphy & Mollins, Moncton, NB

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International law

Women are still seriously underrepresented in the shaping of international law

By Erika Schneidereit March 7, 2018 7 March 2018

Women are still seriously underrepresented in the shaping of international law

At first glance, it is perhaps understandable how international law could be misconstrued as gender-neutral. With seemingly objective doctrines and the fact that international legal rules apply primarily to states, it is difficult to see how this particular body of law could possibly be subject to feminist debate. But the very fact that international law appears to draw no gendered distinctions raises a red flag, as it suggests that international legal norms and institutions are free from bias. Contrary to its apparent universality, however, the development of international law has continually under-represented women and marginalized female perspectives.

The clearest example of how women are excluded from international law is their striking absence from the institutions shaping how international rules are made and applied. Despite recent progress, women remain under-represented in domestic legislatures around the world. In a system where states negotiate and ratify treaties (one of the two main sources of international law), this absence of female decision-makers is striking.

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Criminal justice

Report card on Canada's criminal justice system

By Yves Faguy March 6, 2018 6 March 2018

Report card on Canada's criminal justice system

Put together by Benjamin Perrin and Richard Audas, the Macdonald-Laurier Institute report card paints a not-so-pretty picture of Canada's criminal justice landscape, characterized  by "shockingly high rates of crime" in the territories, disproportionately high levels of Indigenous incarceration rates, lengthier court delays, fairness and access to justice indicators  getting worse in a number of provinces -- namely in Manitoba and Quebec.  Ontario has seen the biggest improvement in its ranking, while Quebec has slipped, and B.C. gets a particularly brutal review:

British Columbia’s criminal justice system significantly underperforms that of most other provinces on many measures. BC has one of the highest property crime rates among the provinces. It has the lowest weighted violent crime clearance rate (51.7 percent) and the lowest weighted non-violent crime clearance rate (20.4 percent) in Canada. The province has one of the highest rates of breach of probation in Canada and relatively high rates of failure to comply with court orders. Public perceptions of the police in British Columbia are below average, specifically in enforcing the law, ensuring public safety, satisfaction with public safety, providing information, being approachable, being fair, and responding promptly. Confidence in the police, justice system, and courts in BC is below average.

Read the whole report.

Source: Macdonald-Laurier Institute

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Trade

How to respond to Trump’s tariffs threats

By Yves Faguy March 6, 2018 6 March 2018

How to respond to Trump’s tariffs threats

Yesterday Donald Trump tweeted that his recently threatened steel/aluminum tariffs could be lifted if Canada and Mexico were to agree to a new NAFTA deal – trade apparently being a zero-sum game.

U.S. House  Speaker Paul Ryan also came down hard on Trump’s proposed tariffs, arguing they will lead to a trade war that is nobody’s interest: “We are extremely worried about the consequences of a trade war and are urging the White House to not advance with this plan,” he said.  It seems Congressional Republicans are mounting an effort to stop Trump from implementing the tariffs

Now there appear to be signals from factions within the White House to weaken the tariffs. “Gary Cohn and other free-trade advocates inside the White House and the Treasury Department are mounting a last-ditch effort to blunt the impact of Trump’s head-turning decision,” Politico reports.

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