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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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Legal technology

Is arbitration the best way to resolve blockchain-based disputes?

By Yves Faguy March 6, 2018 6 March 2018

Is arbitration the best way to resolve blockchain-based disputes?

 

Will smart contracts really replace traditional legal agreements and courts with code?

Charlie Morgan discusses blockchain’s application to contract formation and execution, and warns that the challenge is in ensuring that rights and obligations contained in smart contracts have a sound legal basis and can be enforced in the real world.  Indeed, the potential for disputes remains very real.

Morgan then explores whether arbitration will become the forum of choice for resolving blockchain-based disputes:

Arbitration is a non-national and neutral dispute resolution forum which enables parties to nominate a tribunal of industry or technical specialists to efficiently and effectively resolve the different types of disputes that may arise from their relationship (which, as mentioned above, may include real world as well as digital world disputes, in each case ranging from a simple contract law claim to claims of a highly technical and complex nature).

The relative ease of cross-border enforcement of awards under the New York Convention also gives arbitration a huge advantage in the context of blockchain disputes, given the transnational nature of this technology and of the players involved in blockchain transactions.

But arbitration also offers a further material benefit in this context, compared to court litigation. Indeed, the inherent flexibility of the arbitral process (its procedure being tailored in material respects by the parties’ agreement) enables efficient conflict management approaches to be developed and for the dispute resolution process itself to harness the benefits of blockchain technology. This means that arbitration has the potential to keep pace with a new breed of disputes.

 

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Litigation

Designing the right clawback agreement for privileged information

By Alexander Gay March 5, 2018 5 March 2018

Designing the right clawback agreement for privileged information

 

Think of it as “produce first and verify later”. 

With the growth of e-discovery use, counsel are relying more heavily on clawback agreements to mitigate against the inadvertent production of privileged documents. Here a few essential elements that should be considered by counsel when drafting such an agreement.

A clawback agreement should contain a provision that confirms that the inadvertent production of a privileged document does not constitute a waiver of privilege.  That may seem obvious, but the obligation that a party be made to return a privileged document is separate and apart from the waiver that may occur with from its production in the first place. 

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Graphic of the day

SCC rulings: Split v. Unanimous

By CBA/ABC National March 1, 2018 1 March 2018

SCC rulings: Split v. Unanimous

 

You can see other graphs here.

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Environmental law

How $1 billion can help decide what is good for Canada’s environment

By Supriya Tandan February 28, 2018 28 February 2018

How $1 billion can help decide what is good for Canada’s environment

 

Ministers Bill Morneau and Catherine McKenna are both attempting to address issues of equality and, yesterday, Budget 2018 outlined how a $1 billion dollar investment will be used to support the Bill C-69, which would replace the current Canadian Environmental Assessment Act.

With Bill C-69, McKenna is hoping to change the way that Canadians weigh the merits of major projects against the impacts on, amongst other things, our environment, health and relations with Indigenous Peoples. Proponents, like the Pembina Institute have applauded the efforts while critics charge that the new Impact Assessment Act has a back-to-the-future feel. The new Act, they say, largely restores requirements that were in place before the Harper government, leaving the more ambitious goals up to political will.

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CBA influence

Principles for confidentiality in IP hearings

By Kim Covert February 28, 2018 28 February 2018

 

The CBA’s Intellectual Property Section welcomed the opportunity to comment on the Federal Court’s Draft Report on Confidentiality Orders, offering up its own proposal for a set of six principles for establishing best practices on the protection and handling of confidential information.

The Section says it supports the establishment of a series of guidelines or a Practice Direction based on these principles:

  1. Parties should try to come to an out-of-court agreement on handling information they consider to be confidential. It would be beneficial, the Section says, if the court could outline specific steps the parties need to take in order for the Federal Court to have jurisdiction to enforce the agreements.

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Budget

Budget 2018: What's in it for justice

By Justin Ling February 28, 2018 28 February 2018

Budget 2018: What's in it for justice

In the Trudeau government’s 2018 budget, the penultimate for its first mandate, the government has pledged new money for Canada’s court system, access to justice, and fighting sexual assault and harassment in the workforce.

The new funding comes in a budget that has been heavily marketed to address gender inequality and systemic failures in outcomes for Indigenous peoples. Here are some highlights.

Money for the courts: Amid longstanding concerns that Canada’s court system is underfunded to address the volume of cases it currently faces — a concern exacerbated by the 2016 Supreme Court ruling in R. v. Jordan, which set strict timelines on trial delays — this year’s budget does offer some new money to help the courts cope.

The budget allocates $75 million for the courts themselves, as well as additional $77 million to expand family courts, as well as another $13 million for access to justice programs and legal aid for immigrants and refugees, all over the next five years.

The money for the family courts will allow for 39 new judicial positions in a handful of provinces, and six new spots on the Ontario Superior Court and the Saskatchewan Court of Appeal.

Beyond that details are relatively scant about what, precisely, the government plans to do to address the strain on the courts and access to justice.

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Canada Summer Jobs

It’s not about women’s constitutional right to abortion

By Beverley Baines February 27, 2018 27 February 2018

It’s not about women’s constitutional right to abortion

 

Does the constitutionality of the Canada Summer Jobs attestation requirement depend on whether the Canadian Charter of Rights and Freedoms protects women’s right to abortion or more generally to reproductive freedom? The answer is no.

The federal Liberal government imposed the attestation requirement on not-for-profit, public-sector, and small business employers who apply for wage subsidies to hire secondary and post-secondary students for summer jobs. Liberals had received complaints about previous summer job funding going to summer camps that refused to hire LGBTQ staff and to groups that distribute graphic anti-abortion pamphlets.

The coming summer could also see complaints from students working in faith-based hospitals and long-term care homes that refuse to comply with new assisted dying laws. To protect women, LGBTQ, and differently abled students from employment discrimination, the Liberals require employers to sign an attestation requirement asserting they respect human rights, that is, that they do not seek to remove or actively undermine these rights.

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