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The CBA intervenes in McKercher, ctd

By Beverley Spencer January 24 2013 24 January 2013

    As a follow-up to our earlier post, you'll find the CBA's factum here. And if you want to listen in on the hearing, here's a link to the live webcast (accessible until around 11:30).

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    The CBA intervenes in McKercher before the Supreme Court

    By Beverley Spencer January 24 2013 24 January 2013

      The CBA is at the Supreme Court of Canada today advocating for conflict of interest rules that don’t deny Canadians choice of legal representation when there is no need to do so.

      The association is intervening in the case of CN v. McKercher LLP and Wallace, arguing that the scope of the duty to avoid conflicts of interest does not categorically prohibit acting directly adverse to the immediate interests of a current client.

      Malcolm Mercer, Eric Block and Brendan Brammall of McCarthy Tétrault LLP acted as counsel for CBA on a pro bono basis. Malcolm Mercer explains the association’s position and the implications of the case for access to justice.

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      Copyright and "I'm right to nuke you" ethics

      By Yves Faguy January 21 2013 21 January 2013

        Plenty has been written in the last week about the death of Aaron Swartz. Predictably, opinions tend to diverge sharply among supporters of content consumers vs. supporters of content owners (was Swartz hero or thief?)

        But the more nuanced commentators are asking some rather pertinent questions about how our governments go about targeting alleged criminals and how they are prosecuting crimes. Food for thought for legal minds. Here’s Clive Crook in one of his last posts at the Atlantic:

        By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.

        The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.

        Stephen Carter at Bloomberg calls the prosecution of Swartz ridiculous, but argues that the overly zealous lawmakers are the real problem. Drawing inspiration from Douglas Husak, author of the book Overcriminalization, he writes (more after the jump):

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        Non-status Indians: The impact of Daniels

        By Yves Faguy January 18 2013 18 January 2013

          The recent Federal Court decision in Daniels v. Canada will no doubt have a major impact on a number of financial, legislative and political considerations of the federal government in dealing with non-status Indians. And yes, the ruling might yet be appealed before the Supreme Court. But for now it concludes that Métis and non-status Indians are “Indians” within the meaning of Section 91(24). It is worth noting though that the Federal Court did dismiss two other requests by the plaintiffs in Daniels – a declaration that Ottawa owes a fiduciary duty to MNSI as Aboriginal people; and that the feds have a duty to consult and negotiate with MNSI.

          National contributor Brad Mackay had a chance to catch up with Joe Magnet (still recovering from a bout of laryngitis), who was the lead counsel representing the Congress of Aboriginal Peoples. Brad asked him to explain what was at stake, to tie the ruling to the Idle No More movement and to share his thoughts on what Canada needs to do to fix the legal relationship between Ottawa and Aboriginal people.

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          Intervention in Mali: a legal concern?

          By Yves Faguy January 15 2013 15 January 2013

            So Canada has decided to provide logistical support to France’s military intervention in Mali (false starts notwithstanding), and play host to talks in Ottawa. All of this a week after Harper ruled out sending troops to the country – an announcement that followed recent statements made by Robert Fowler (interviewed in the above video in August at the Canadian legal Conference in Vancouver) criticizing the Harper government for saying that it had not been asked to contribute to the international military mission to Mali. At least one paper admits to being confused.

            Part of the reason might have something to do with a whole lotta disagreement (between France and the U.S.) over which strategy to pursue: a frontal attack on the country or a quieter campaign against jihadi groups – like the one tried in Somalia maybe?

            Perhaps most telling, the U.S. is now citing legal concerns in delaying decisions about supporting France's military campaign in Mali. The main obstacle, it seems, is that direct military aid to Mali is forbidden under U.S. law because the current government seized power in a military coup. But more pertinent could be the fact that Obama's recently named national security team is, by all accounts more favourable to testing the light footprint strategy in military matters. 

            But Daveed Gartenstein-Ross worries in a recent G&M piece, with the U.S. primarily in mind, that supporters of a light footprint strategy in Mali ought to be more careful when talking up the merits of the quiet campaign against jihadi groups in Somalia as the successful model of intervention that should be followed:

            It is unclear precisely what the administration and commentators have in mind when they speak about drawing lessons from Somalia, though a few threads of thought are clear. One principle is that there should be no Western “boots on the ground” – although drones, special forces, and the ubiquitous “military trainers” may play a role. Other principles include local forces taking the lead in combat operations, and working multilaterally with other countries. The aforementioned UN Security Council resolution on Mali laid the groundwork for multilateral efforts there. But the $64,000 question is how well will things turn out in Somalia? While al-Shabaab has experienced legitimately large setbacks, there are reasons for concern that the Somalia model is being oversold.

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            Should ISPs defend the privacy of their clients?

            By Yves Faguy January 15 2013 15 January 2013

              Credit: Creative Commons/Deyan Sedlarski (

              TekSavvy Solutions Inc., the internet service provider that – in its own words – “believes in doing the right thing” has come under pretty heavy fire recently for not sufficiently protecting its customers’ privacy.

              It all started late last year when L.A.-based Voltage Pictures filed a motion in the Federal Court of Canada aimed at forcing TekSavvy to disclose the names and addresses of subscribers tied to some 2,000 IP addresses. Why? Because Voltage is seeking compensation for alleged copyright violations by Canadian file-sharers using peer-to-peer networks. So when TekSavvy announced that it would not oppose Voltage’s motion, many admirers of the company were angered that it didn’t mount a more vigorous defense of subscriber privacy.

              Howard Knopf, who represented CIPPIC in a similar case back in 2005 against subscribers of the larger telecoms (Shaw, Rogers, Bell, Telus and Videotron), is one of them:

              Generally speaking, the real issue now is under what circumstances, if any, an ISP is expected or maybe even required to take reasonable steps to safeguard its customers' privacy. If an ISP can successfully and inexpensively oppose an inadequately documented attempt to breach its customers’ privacy, then why should it be able to walk away and leave its customers on their own and just tell them they can hire their own lawyers? It’s the ISP’s duty under the PIPEDA federal privacy legislation to protect its customers’ privacy. That presumably does not mean simply telling them that their privacy is about to breached, that they are on their own and are free to get a second mortgage and hire their own lawyer. ISPs are paid a lot for their services, and one part of their job is to live up to their PIPEDA obligations. ISPs customers pay $25, $50, $60, $80 or more a month and part of their expectation, beyond fast and reliable service, is an expectation of privacy and an expectation that their privacy will be safeguarded – especially if an ISP promotes this aspect to get and retain customers.

              In a later post, Knopf lists three reasons why TekSavvy ought to have taken an active role in opposing the motion:

              1. First, since it is the only entity that can resolve the link between IP addresses and subscriber identities, it is in the best place to challenge the technical evidence that Voltage and its forensics contractor, Canipre, have put forward;

              2. Second, in the BMG case, Telus and Shaw actively stood in opposition to the record labels’ bid to obtain subscribers’ identities on just this ground and TekSavvy should do no less in the present case, especially given that it holds itself out as being more attuned to its subscribers’ interests than its corporate cousins – a point that Koblovsky also relies on heavily;

              3. Third, it is too much to ask of CIPPIC, an organization with a skeletal staff and limited resources, to take the lead in the case.

              But following yesterday’s decision by the Federal Court to grant an adjournment to allow CIPPIC to make its motion to intervene in the proceedings, David Ellis pushes back on the cost issue and defends TekSavvy’s actions:

              First, “if” an ISP can find a cheap way to oppose, etc is worth nothing as a statement of empirical value. If I could fly, I’d spend a lot more time hiking in southern California. Second, let’s update the “inexpensive” part of this with real numbers: [TekSavvy lawyer] Nick McHaffie revealed in court today that TS will be seeking $190,000 in costs from Voltage. [TekSavvy CEO] Marc Gaudrault assures me this figure represents a very conservative accounting of his legal and technical costs to date – and this case is far from over. Third, there’s no way in our system you can oppose a motion for disclosure purely on privacy grounds.

              Several factors led critics to reach wrong-headed conclusions about what TS was or was not doing for its customers. Many took to heart Marc’s statement that TS was not going to “oppose” the Voltage motion. In retrospect, he probably regrets emphasizing this position when TS was in fact working against Voltage on several fronts. Moreover, because that assertion was only the tip of a much larger iceberg, many of these same folks also assumed they knew what TekSavvy’s legal strategy was: cave in and wait for the court order to arrive, then drop all that personal customer info into Voltage’s lap.

              […] For reasons I still don’t get, the critics chose to ignore one obvious way in which TS stuck its neck out to help its customers. They provided notice to everyone who appeared on the charge list – something they were under absolutely no obligation to do. That took a lot of work at a time when TS and its lawyers were hard pressed preparing for the December 17 hearing. This notice provided a service in particular to customers who did not download any of Voltage’s property, giving them a heads-up they might be dragged into a proceeding despite their putative innocence.

              Finally Ellis questions whether TekSavvy really ought to play the role of privacy advocate:

              One of the most frustrating themes in the recent debate has been the insistence that TS must somehow not merely stand up for its customers, but go on the offence as a privacy advocate. Whose privacy are we talking about anyway? Naturally, everyone wants to see the putatively innocent protected from any unjust disclosures. As for those who might turn out to be guilty, who says their privacy wouldn’t be respected as far as public disclosure is concerned?

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              The Supreme Court in 2013

              By Yves Faguy January 10 2013 10 January 2013

                The winter session of the SCC is about to get under way. So we thought it would be a good idea to share this video of Henry Brown of Gowlings discussing the recent niqab case and what to expect in 2013.

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                Furlong's legal predictions for 2013

                By Yves Faguy January 8 2013 8 January 2013

                  Happy New Year everyone. To get things going, we asked Jordan Furlong to give us three bold predictions for 2013. He definitely sees more law firm merger activity. And he also expects that the LSUC’s decision late last year to create an alternative to articling is bigger than most people think. But take a look: His third prediction on the diverging interests of law firms and lawyers is perhaps the most interesting one.

                  More about Jordan's third point here.

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                  Niqab decision reactions

                  By Yves Faguy December 20 2012 20 December 2012

                    Today’s long-awaited decision in R. v. N.S., on whether an Islamic witness ought to be required to remove her niqab veil to testify in court (in a sexual assault case), was a divided one.

                    As usual, Supreme Advocacy has the goods on the key passages of the decision, perhaps best summarized in the following tweet by Errol Mendes (@3mendous) Peter Sankoff (@petersankoff):

                    #SCC split on wearing niqab as witness. Majority says "sometimes". Minority says "never". Dissent says "almost always".

                    McLachlin wrote for the majority, with Deschamps, Fish and Cromwell concurring. Lebel wrote for the minority. And Abella had her own take.

                    Sheema Khan writes that the court managed to strike "a reasonable balance”:

                    Rather than an “all” or “none” approach, the court outlined a four-part approach toward answering the question: Should a woman be required to remove her niqab while testifying? This framework will apply on a case-by-case basis, and the result will depend on each case. As the court ruled, no right is absolute. In trying to reconcile the right of religious freedom versus the right to a fair trial, we should consider four questions. Those questions are: Would requiring the witness to remove the niqab while testifying interfere with her religious freedom? Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? Is there a way to accommodate both rights and avoid the conflict between them? If not, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?

                    Emmett McFarlane thinks the decision is vintage McLachlin consensus building, but of the kind that produces “confused decisions”:

                    You or I may believe the niqab is an offensive anachronism, predicated on absurd patriarchal notions. But that’s not the point. The point is the niqab is central to the religious convictions of the individual, to their sense of self and their own dignity. It is precisely why the Court has rejected the idea that it would ever analyze the relative value or sensibility of religious practices in its approach to Charter rights, and instead only focus on the sincerity of the beliefs in question. So long as the decision to wear the niqab is made freely, it ought to be respected from a rights perspective. And in weighing so heavily the risks to a fair trial over not just the latitude given to religious freedom, but also the deleterious and societal effects of providing insufficient protection for them, the majority has handed trial courts a messy confluence of rules likely to do more harm than good.

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                    My 2012 Clawbies nominations

                    By Yves Faguy December 19 2012 19 December 2012

                      National has, I confess, arrived a little late at the ball when it comes to blogging (we do appreciate your patience by the way).  But that isn’t to say we haven’t been paying attention to some great writing by legal bloggers.   And so, without further delay, here are my nominations for the 2012 Clawbies:

                      1.    Environmental Law and Litigation: Dianne Saxe continues to offer clear, relevant and timely updates  on environmental law and provides reliable and insightful commentary on some of the most important legal issues of the day in her field.  She remains the go-to source for environmental professionals (whether they're lawyers or not).  And the site remains simple,  crisp and at times playful.  She won the award in 2010. If we survive 2012, she should win it again.

                      2.    À bon droit:  À bon droit is a fantastic resource for Quebec practitioners.  Any “civiliste”  worth one's salt reads the blog regularly.  If founder and main contributor Karim Renno could clone himself and cover all areas of practice, we wouldn’t need CLE. He gets our second nomination.

                      3.    Our third goes to Canadian Charity Law, the project of Mark Blumberg, of Blumberg Segal LLP, a Toronto firm which primarily serves Canadian charities.  According to the site, the average Canadian charity has annual revenue of under $100,000. Mark's efforts are guided by the belief, in his words, “that irrespective of size and budget, legal compliance and ethical conduct on the part of charities is important to maintaining the public’s trusts in the charitable sector.”  So in this regard, the blog has the ambition to improve access to justice. And it seems to be working. People in the non-profit sector swear by this site: “Interesting, prolific and very helpful,” tells me one regular reader.

                      There are plenty of other great blogs that deserve mention. For now, I'll just say thanks for making it easy for me to find quality legal information. And to those that I haven't yet discovered, I hope to run into you soon.

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                      Our top 12 for '12

                      By Yves Faguy December 17 2012 17 December 2012

                        It’s been a year full of changes at National and we look forward to what promises to be a fun and fascinating 2013.

                        But before we tackle a whole new set of trends and developments in law, we’d like to take this opportunity to revisit some of our best articles from 2012. So, in no particular order, and in the spirit of palindrome and same-number calendar dates that characterized this last year, we offer you our top 12:

                        1. The hurting profession
                        2. The tipping point
                        3. Unwarranted access 
                        3. Crime and punishment 
                        4. The art of intervention 
                        5. In conversation: Alison Redford
                        6. The endangered partner
                        7. Interview with Jean Chrétien
                        8. The law of expedience 
                        9. Taking the short view
                        10. Licensed to know
                        11. So you want to be a judge?
                        12. Evidence over ideology

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                        CNOOC-Nexen reactions

                        By Yves Faguy December 11 2012 11 December 2012

                          There's plenty of commentary out there applauding the government's handling of a tricky file. But some dissenting opinions stand out. La Presse’s André Pratte, for one, gives Harper high marks for striking the right balance:

                          The signal sent to foreign state investors is clear: Your money is welcome in Canada, provided it doesn’t enable your government to get the upper hand in important sectors of the Canadian economy (Our translation).

                          Ibbitson sees a new economic policy brought about by compromise within Tory ranks:

                          Not only was caucus largely opposed, the debate within cabinet was intense, with one side favouring an open environment for investment and the other demanding protection for strategic industries, especially from state-owned enterprises in emerging markets.

                          Mr. Harper’s solution was to permit the CNOOC/Nexen deal, but with tough new rules requiring reciprocity from countries seeking to invest in Canada, and with special restrictions on state-owned enterprises. Cabinet voted unanimously in favour of that solution. And when caucus was briefed Friday, according to sources, any who still had reservations kept those reservations to themselves

                          Coyne, after calling Harper’s foreign takeover policy “murky” and “incoherent”, worries that the central question has been overlooked:

                          The real conflict here isn’t between China’s interests and Canada’s, but between one group of Canadian investors and another. The government hopes, by refusing to allow the Canadian owners of certain assets to sell them to China, to pressure China into allowing other Canadian investors to buy assets from them. Certainly it would be preferable if China were to do that. But why should the interests of those Canadian investors, the ones who would like to buy, take precedence over the interests of the others, the ones who would like to sell? Did anyone even stop to ask?

                          Meanwhile, the folks at Osler explain the murkiness:

                          Interestingly, the New SOE Guidelines do not elaborate upon the nature of specific undertakings that SOEs will be required to give to the government in order to establish a net benefit. For example, the government did not make it mandatory for an SOE to publicly list its shares or those of the Canadian target company on a Canadian exchange. The Prime Minster did indicate that the CNOOC and PETRONAS decisions “will be closely studied”. This suggests both that the undertakings given by these SOEs to the federal government will be disclosed and that the undertakings will have precedential value for other SOEs contemplating reviewable investments.

                          It is important to underline that the government has not announced any restrictions on private investment in Canada, and in fact re-confirmed the government’s commitment to liberalize the regime governing such investment by raising the threshold for “net benefit” review under the ICA over a period of four years to $1 billion based on enterprise value rather than asset value. However, the increased threshold will be applicable to private sector investments only. SOEs will be subject to the existing net benefit review threshold of $330 million in asset value (not enterprise value), adjusted annually to reflect the change in nominal gross domestic product in the previous year

                          We should note that the Canadian Bar Association sent a letter at the end of May to the House of Commons Standing Committee on Finance recommending, among other things, a requirement in the Investment Canada Act to publicly disclose reasons for Ministerial decisions approving or rejecting an investment. Bottom line:

                          “The ability for the Minister to issue opinions is already in the ICA but there is no requirement to disclose the opinions. These opinions – purged of commercially-sensitive information – could form a body of helpful guidance and ensure consistency in the government’s interpretation and enforcement of the Act. There is precedent for this: ICA opinion summaries were issued in the 1980s.”

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