Modern Law - Droit Moderne

Nadia Effendi joins us again to review the output of the Supreme Court last year, shares her thoughts regarding Chief Justice Richard Wagner’s recent comments about the high number of judicial vacancies as well as comments about restricting interveners to virtual appearance. We discuss some recent judgments rendered (Commission scolaire francophone des Territoires du Nord-Ouest, Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) and the Reference re An Act respecting First Nations). She also weighs in on cases to watch that were recently granted leave, including AGO v. Working Families Coalition, a rare section 3 Charter case, and Sanis Health, which deals with the BC law that allows recovery of health-care costs from opioid providers.

Effendi is a partner at BLG, based out of Toronto and Ottawa, a member of the CBA’s Federal Courts Bench and Bar Liaison Committee. She is also the chair of BLG's Appellate Advocacy and Public Law Group. Before joining the firm, she served as a law clerk at the Supreme Court of Canada to then-Justice Michel Bastarache.

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As Russia’s full-scale invasion of Ukraine hits the two-year mark – 10 years since the invasion of the Crimean Peninsula – the situation is dire. The ground battle had become mostly deadlocked until Ukrainians retreated earlier this month from the town of Avdiivka. Support from Western democracies has been skittish of late. Republicans in the U.S. Congress have stalled sixty billion U.S. dollars' worth of defense aid for Ukraine. Still, there is some hope for the resistance: the unblocking of $ 54 billion in European Union aid; Sweden has announced it will give $682 million worth of military equipment. Canada is promising to donate $70 million worth of drones from already announced spending dating back to the summer.

The word we hear a lot these days is that the conflict in Ukraine is reaching an inflection point of sorts, though shifts in momentum are notoriously hard to read in times of war.

What hasn’t changed in all of this is that the invasion of Ukraine remains a war of aggression – in violation of the United Nations Charter and customary international law. It’s also an international crime under the Rome Statute. Over a fifth of Ukrainian territory is currently under occupation by Russian troops.

Arguably, it should be possible to prosecute a war of aggression committed by Russia's leadership before the ICC, as it should not be difficult to prove. 

But that isn’t the case. Although the ICC can charge individuals for war crimes, it doesn’t have jurisdiction over Russian crimes of aggression. Our guest today will discuss why that is and what a core group of members of the international community and Ukraine are trying to do about it.

Dr. Anton Korynevych is the Ambassador at Large of the Ministry of Foreign Affairs of Ukraine. He’s a lawyer specializing in public international law, international humanitarian, and international criminal law. He’s the Agent of Ukraine before the International Court of Justice, where he has been arguing the case that Russian President Vladimir Putin abused the U.N. Genocide Convention by using an alleged genocide in eastern Ukraine as a pretext for invasion). 

Dr. Korynevych is also in charge of gathering international support to establish a special tribune that could try Putin and his inner circle for the alleged crime of aggression — which no international court, including the International Criminal Court, has jurisdiction to do right now.

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Our guest today is Arif Virani, the Minister of Justice and Attorney General of Canada who has kindly agreed to share with our listeners the status of several pressing issues. We discuss criminal justice reform, the recent pause on the expansion of medical assistance in dying and plans to introduce online harms legislation. He also addresses judicial vacancies and the increasing resource challenges that our courts are facing.

Arif Virani was first elected as the Member of Parliament for Parkdale—High Park in 2015. Throughout his career, he has served in various roles, including as Parliamentary Secretary to the Minister of International Trade, Export Promotion, Small Business and Economic Development, as Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, as Parliamentary Secretary to the Minister of Democratic Institutions, as Parliamentary Secretary to the Minister of Canadian Heritage (Multiculturalism), and as Parliamentary Secretary to the Minister of Immigration, Refugees and Citizenship.

Before entering politics, he practised law for 15 years, starting his career as a civil litigator at Fasken Martineau and subsequently working as a constitutional litigator at the Ministry of the Attorney General of Ontario, advocating for human rights and access to justice.

Minister Virani previously worked as an analyst with the Canadian Human Rights Commission in Ottawa, an investigator at the Commission des droits de la personne et des droits de la jeunesse in Montréal, and an Assistant Trial Attorney prosecuting genocide at the United Nations International Criminal Tribunal for Rwanda. 

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In the field of law, there are several crucial areas where generative AI demonstrates considerable promise – namely in the efficiencies it can create in contract generation, document review, legal research, and predictive analytics. So it’s expected to become an indispensable productivity tool across the legal profession The question then arises: how can this technology be effectively integrated into a legal practice or department?

Amanda Chaboryk joins us for the second time on the show. She’s the Head of Legal Data and Systems within Operate at PricewaterhouseCoopers in London. Having started  her career in legal project management, she now focuses on the operational delivery of complex managed legal programs and helps clients navigate emerging technologies. We're also joined by Alex Hawley, an ESG regulatory solicitor for PwC in London. Having started her career as a commercial litigator, she now collaborates with clients new ESG developments and helps them incorporate emerging technologies, including Generative AI.

Last year, PwC announced an exclusive partnership with the legal startup Harvey, a platform built on AI technology from OpenAI. 

We've been talking a lot about AI on the podcast and on CBA National, and one of the issues that keeps coming up is the challenge for a country like Canada in selecting the right approach to regulating AI risk. 

It's not as if there's a single model out there. The EU is trying to set the gold standard for the world, much as it did with its GDPR privacy regulation. The US is contemplating various bills, but for the most part, it is applying existing laws and regulations through regulators like the Federal Trade Commission, the Consumer Financial Protection Board, and the US Department of Justice. These agencies have been instructed by the White House's executive order in October to follow eight guiding principles for AI safety. Meanwhile, China's approach is to ensure that all information generated by AI aligns with the state's interest. All are key players to watch as we try to understand where the future of global AI governance is headed. And today, we are going to take a closer look at a perspective coming from the US.

International privacy expert Woodrow Hartzog discusses the state of AI regulation in the U.S., his thoughts on the global dynamics at play, and his concerns surrounding the normalization of surveillance and our reliance on half-measures to save us from the potential harms of AI.

Hartzog is a professor at the Boston University School of Law, a faculty associate at the Berkman Klein Center for Internet & Society at Harvard Law School, and an affiliate scholar at the Center for Internet and Society at Stanford Law School, a non-resident fellow at the Cordell Institute at Washington University, where he's currently working on a project about AI half-measures in collaboration with Neil Richards.

Hartzog recently testified before the US Senate Committee on the Judiciary on the importance of substantive legal protections when it comes to AI. He’s been arguing that current AI policies and oversights are far too weak.”

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One of the significant controversies about AI is the impact of generative software on the use and production of cultural works. The fast-growing popularity of these tools raises big questions about the ethics of AI-generated works and whether they amount to a technologically advanced form of plagiarism. Lawsuits have been popping up around the world as artists, as well as corporate interests, claiming infringement of their intellectual property rights. (A U.S. federal court ruled back in August that art created by AI without any human input cannot be copyrighted under U.S. law).

The question is whether copyright should be the appropriate regulatory tool to determine these questions.

In fact, as listeners will hear from our guest today, the novelty of generative AI raises many questions about the socio-economic dynamics of cultural production – and whether it might not be time to re-examine the role of copyright law in encouraging and incentivizing creativity.

Dr. Craig is Osgoode Hall Law School’s Associate Dean of Research, and she’s recently stepped into the role of Director of IP Osgoode, which is the school’s  Intellectual Property Law & Technology program.  She joined the faculty at Osgoode Hall Law School in 2002 and is the is the author of Copyright, Communication & Culture: Towards a Relational Theory of Copyright Law (2011), among other writings. In 2018, she held a MacCormick Research Fellowship at the University of Edinburgh. She teaches JD, graduate and professional courses in the areas of intellectual property, copyright and trademark law, and legal theory. 

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Mary Moreau of Alberta has been tapped to fill the vacancy left by Russel Brown on the Supreme Court. Nadia Effendi gives us some background on Justice Moreau and what her nomination means.  Effendi also discusses the Supreme Court’s latest rulings in the IAA reference, Mason v. Canada (Citizenship and Immigration), La Presse inc. v. Quebec, as well as upcoming hearings in AGC v. Power, Yatar v. TD Insurance, and Attorney General of Ontario, et al. v. Mike Restoule. She also weighs in on the SCC’s decision to produce plain-language summaries of oral decisions.

Effendi is a partner at BLG, based out of Toronto and Ottawa, a member of the CBA’s Federal Courts Bench and Bar Liaison Committee. She is also the chair of BLG's Appellate Advocacy and Public Law Group. Before joining the firm, she served as a law clerk at the Supreme Court of Canada to then-Justice Michel Bastarache.

To contact us (please include in the subject line ''Podcast''): [email protected]

If you think that description of our criminal justice system is a bit harsh, well, you should read the latest book by our guest today.

Benjamin Perrin is a law professor at the UBC's Allard School of Law. He has served in the Prime Minister of Canada's Office as in-house legal counsel and lead policy advisor on criminal justice and public safety.

He's also the national best-selling author of Overdose: Heartbreak and Hope in Canada's Opioid Crisis, and before that Invisible Chains: Canada's Underground World of Human Trafficking.

His latest work is Indictment: The Criminal Justice System on Trial – a deep dive into a system that, in theory at least, is supposed to help keep Canadians safe while supporting victims of crime. 

We talk a lot about victims in this conversation – and offenders, too – and their struggles. Please keep an open mind as you hear this conversation. And a content warning: There is sensitive material covered in this episode that touches upon substance abuse, police brutality and a lot of discussion around trauma.

Benjamin Perrin - Criminal Justice, Overdose

Podcast — Myrna McCallum

https://indictment.simplecast.com/

https://johnhoward.on.ca/research-topic/incarceration-health/

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Kristen van de Biezenbos, a law professor at California Western, teaches environmental, energy and climate change law and has written extensively about energy justice and electricity regulation. Her research has also brought her to Canada – she taught for several years at the University of Calgary, where she focused on Canada’s energy transmission policy. She continues to serve as an expert on the mitigation panel for the Canadian Climate Institute, which advises the federal government on climate change.

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Jordan Furlong is an analyst and forecaster for the legal sector, focused on the most important trends shaping the provision of legal services and the formation and regulation of lawyers. He’s the author of a weekly Substack on a range of critical topics for the legal profession, and of the book Law Is a Buyer’s Market: Building a Client-First Law Firm.

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