CBA adopts resolutions on NDAs and intersectional judicial data collection at annual meeting

Passing with 94 percent of the vote, the CBA adopted a resolution to reign in the use of non-disclosure agreements. The measure discourages using NDAs to silence whistle-blowers and victims of abuse, discrimination, and harassment and to promote their proper use to protect intellectual property. The CBA will advocate and lobby Canada’s federal, provincial, and territorial governments to act on the misuse of NDAs.

The CBA’s child and youth law section brought a resolution calling the federal government to live up to its commitments under the UN Convention on the Rights of the Child. In response to recommendations from the UN committee on the rights of the child, which criticized Canada for not yet fully implementing the UNCRC, the CBA resolution urges the Government of Canada “to commit to tabling a detailed action plan” by June 9. The resolution passed without any debate.

Two students at the Lincoln Alexander School of Law at Toronto Metropolitan University, Olivia Coombe and Rosalyn Elizabeth Martin, brought forward another resolution. It said that while the Office of the Commissioner for Federal Judicial Affairs Canada collects and reports on the self-identification data of judges and judicial applicants, the data “does not report on the intersectionality between indigeneity, race, ethnicity, disability, gender, gender expression, or sexual orientation.”

The resolution, sponsored by the judicial issues subcommittee and equality subcommittee, called on the CBA to convene stakeholders to review the data and discuss how to improve the collection, analysis, and reporting of intersectional data. The resolution passed.

In his address to the members, federal Justice Minister and Attorney General David Lametti commented on the provincial premiers recently writing a letter proposing changes to the bail regime in Canada.

The letter highlights a growing number of calls for changes to prevent accused people out on bail from committing further criminal acts. It also calls on the federal government to establish a "reverse onus" system for specific firearms offences requiring the person seeking bail to demonstrate why they should not remain behind bars.

Lametti said he is giving "serious consideration" to this proposal and expects the topic will be on the agenda when he meets with provincial justice ministers later this year.

He added that when Bill C 75 incorporated reforms to bail laws, there was much “misinformation about what C-75 did and how bail works.”

The portion on bail was a small piece of that legislation that mainly codified principles from decisions of the Supreme Court of Canada, he said. “So, for all the talk about C-75 representing a major change in the law of bail, it really wasn’t,” he said. “It did not alter the criteria under which a defendant can be released. If fact, Bill C-75 made it harder to be released on bail for intimate partner violence offences.”

Lametti said that “despite claims of a crisis in our bail courts,” data from Toronto show that between 2019 and 2021, “there was a decrease both in percentage of individuals granted bail and in the number of people rearrested while on bail.”

However, Lametti said he understands that “to restore the trust in the population towards this justice system, we need to find ways to react to the worries of Canadians in terms of the worst delinquents and the most violent ones and the small minority responsible for the troubles that we have had recently.”

Added Lametti: “A community that feels unsafe is a community that is afraid. And from that fear comes an impulse to fix it with quick solutions – solutions that can sometimes do more harm than good.

Lametti said some people choose to stoke fear for political gain rather than advancing viable policies to address specific and narrow issues.

“We need your help to push back on those who seek to exploit fear by spreading misinformation about our justice system. And to provide the kinds of positive, proactive suggestions that we need to listen to, and we need to implement.”

Towards the end of the afternoon, Chief Justice of the Supreme Court of Canada Richard Wagner addressed the crowd and took questions. Wagner discussed initiatives from the SCC and the Canadian Judicial Council.

He mentioned the SCC’s new secure online platform for filing documents, about which the court had recently issued a notice to the profession, including instructions and guidelines.

Wagner also said that the CJC expanded its outreach and public education activities.

“Beginning in April of this year, judges and court communications employees from across Canada will meet in Ottawa to share best practices and exchange ideas on how to make courts more accessible to journalists and members of the public,” he said. “In this age of myths and disinformation, it is in all of our interest to support those who provide the public with fact-based news and analysis about the justice system.”

Bill C-9, an Act to amend the Judges Act, is currently in second reading in the Senate. The CJC has worked with the minister of justice on these judicial conduct reforms, including proposing a new regime to deal with complaints “more effectively and efficiently,” said Wagner.

“Canadian lawyers and judges can help make this country and the world better for everyone. Even here in Canada, we must never take our strong and stable democracy for granted. Especially now. Around the world, tyranny is on the rise. It is chipping away at democratic principles, such as the rule of law, judicial independence and freedom of the press.”

He noted that Human Rights Watch had recently reported that the world was trending toward more authoritarianism.

“Only when the judiciary is fully independent can we uphold the rule of law, strengthen democracy, and ensure that vulnerable people are treated with fairness and dignity,” he said. “That is the promise of our Constitution and a promise that every one of us must defend. Again, I want to thank the CBA for standing with the Canadian judiciary in defending traditional independence at every opportunity. Judicial independence is not for judges, but the people we serve.”

When Wagner opened the floor for questions, he was asked about a statistical decline in the leave applications granted over the last three years and whether this was due to the national interest criteria in s. 40 of the Supreme Court Act.

Wagner said there had been a decline in the number of leave applications and fewer judgments from courts of appeal, possibly due to COVID. The court would have to examine whether the public interest criterion was an issue. “We are trying to have as many cases as possible.”

Another questioner asked how the SCC is responding to the emergent multi-jural nature of Canadian law – going from exclusively civil and common law to recognizing a variety of Indigenous legal orders. Wagner responded that the SCC is uniquely advantaged among the world’s apex courts because it is the only one that is both bi-jural and bilingual. Generally speaking, he said, it has the flexibility to deal with different legal traditions.

“I think that the Supreme Court of Canada is well placed to decide these issues because of the specific nature of our organization,” said Wagner.

Another resolution passed by the CBA at Thursday’s annual meeting was to promote the use of French in the CBA and advance the interests of French speakers in Canada. The motion said that the CBA would reiterate that equal access to justice in French and English is essential, advance language rights of Francophone minority communities in Canada, “reiterate the importance of using French in the [CBA],” ensure internal CBA communications are written in French and English, and offer CPD to CBA members in French.

The CBA also passed a resolution dealing with the scholar membership class, board elections, AGM resolutions and enterprise risk management.

In the 1980s, the CBA established a special class for members who were “undertaking full-time graduate legal studies or bar admission studies.” While they retain all the rights and privileges of regular membership, the scholar class pays a lower fee. The other membership classes – student, associate, and retired – do not retain all membership rights and privileges. The CBA moved the scholars from a membership class to a fee category to be consistent with the other regular members who pay discounted fees, such as those on parental leave or working part-time.

For board elections, the CBA amended bylaw s. 33(4), to clarify that elections occur when more than one applicant wishes to stand for election. The change to AGM resolutions concerned moving responsibilities under bylaw ss. 53 and 54 from the governance and equality committee to the policy committee.

The CBA renamed the enterprise and risk management subcommittee to the audit and risk committee, and following the advice of CBA’s auditors, it no longer reports to the finance committee but reports directly to the board.

*with files from Zena Olijnyk