The Power of Perspectives

The Canadian Bar Association

National Blog

"The US border has been breached for Canadian law firms"

By Yves Faguy November 15 2012 15 November 2012

    National caught up with Jordan Furlong this week to discuss the impact of recent mergers involving Norton Rose, FMC and Fasken Martineau on Canadian firms:

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    The pro-life movement's new approach

    By Yves Faguy November 14 2012 14 November 2012

      Charlie Gillis explains how the pro-life movement is changing its tactics in advocating for fetal rights:

      A pivotal moment came last May, when representatives from the Association for Reformed Political Action, a national Christian advocacy group, approached Vancouver-based activist Mike Schouten about running an initiative to build support for fetal protection legislation. Schouten, 36, is a former Christian Heritage Party candidate with a history of backing hardline conservative causes (including limits on Muslim immigration). He also has a knack for teasing rational arguments out of emotional issues. The result was WeNeedaLaw.ca, an online campaign using social media and electronic petitions to paint Canada’s lack of an abortion law as an international anomaly—an embarrassment not by the standards of social conservatives, but of liberal democracies like Sweden and France.[...]

      The group’s approach is part of a broader strategy within the anti-abortion movement to win hearts and minds instead of lecturing or shaming. “Changing the culture” was the theme of a national conference held last month in Toronto by LifeCanada, the umbrella organization of pro-life groups across the country; it could be viewed as the coalition’s mission statement for the future. “The view of the pro-life movement for the last two decades has been that of a small minority outside the mainstream, older and probably religious fundamentalist,” says Lisa Smith, president of LifeCanada’s board, from her home in Drayton Valley, Alta. “But we can look around now and see young people taking up the cause. I think there’s a lot of optimism and encouragement.”

      The effect has been to refurbish the image of the anti-abortion movement, and its newfound momentum has not escaped the attention of its pro-choice foes. Carolyn Egan, a veteran activist with the Abortion Rights Coalition of Canada (ARCC), says the pro-choice camp must now step up its response that even discussing a fetal rights law is the first step on a slippery slope. “Their strategy could be referred to as anti-choice by stealth,” she says. “Step by step, they want to create barriers for women to access abortions. But it’s true that the message is gaining some traction.”

      Be that as it may, The National Post has a new poll out in which finds that a full 60 percent of Canadians say that abortion should always be legal, without restriction.That's up from 51 percent in February.  And yes, it probably has something to do with this vote.

       

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      Using counsel's submissions without attribution

      By Yves Faguy November 13 2012 13 November 2012

        An interesting case was heard today at the SCC, with Osler’s Mahmud Jamal representing the CBA as intervenor. In Cojocaru v. BC Women's Hospital et al, the justices are considering a judge’s duties in giving attribution when writing reasons for judgment.

        Briefly, the trial judge found in favour of a child born severely brain damaged, who sued for medical malpractice. Trouble is he used, without attribution, the plaintiff’s written argument (321 paragraphs of a 368 paragraph judgment) and apparently neglected to address several arguments raised by the defendants. The CBA’s position on this is that the SCC should follow a functional context-specific approach.

        Jamal tried to make the case that judicial writing draws upon many sources including past judgments, submissions and doctrine. It can be appropriate at times to adopt submissions, Jamal told Natalie Stechyson at Postmedia. “The challenge is to identify the circumstances where doing so gives the perception that the losing party hasn’t been heard – and that’s the difficult question for the Supreme Court Tuesday.”

        The test asks whether the reasons given are sufficient to fulfil their various functions, namely:

        • to justify and explain the result
        • to tell the losing party why he or she lost (for the judge to give proof that he has heard and considered both sides' evidence and arguments and has not taken extraneous considerations into account)
        • to provide public accountability (to satisfy the public that justice is not only done, but seen to be done), and to permit effective appellate review (to allow for informed consideration of the grounds of appeal).

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        Stepping down from the Supreme Court

        By Yves Faguy November 13 2012 13 November 2012

          Philip Slayton at Canadian Lawyer wonders why so many Supreme Courts of Canada Justices retire before the mandatory retirement age of 75:

          “Compare the Supreme Court of Canada to its American equivalent. Appointment to the Supreme Court of the United States is for life. More than half the judges appointed to the U.S. court since its creation have died in office. The last four SCOTUS judges to retire were Lewis Powell at age 80, John Paul Stevens at 90, Sandra Day O’Connor at 76, and David Souter at 70. Their average length of service on the court was almost 25 years. The average length of service of the last four Canadian Supreme Court justices to retire was just over 10 years.”

          He offers up a few theories:

          "When a judge leaves the Supreme Court prematurely, it is likely a combination of all these factors — tough job, dull town, attractive opportunities elsewhere, not much love in the air on Wellington Street — plus, no doubt, a few idiosyncratic personal considerations. But the question remains: Why don’t the justices of the Supreme Court of Canada who go early have the mettle of their American counterparts? Why don’t they stick it out?"

          There’s no question that the job of a Supreme Court Justice is a tough slog, and personality clashes can be a factor. That said, by all accounts the McLachlin court has a reputation for being quite convivial, at least more so than the Lamer court ever was. As for the argument of more attractive opportunities elsewhere, who knows? It strikes me as a personal thing. Louise Arbour stepped down after a short five years on the SCC to become UN High Commissioner for Human Rights, but she was always known as someone more comfortable working in the field – a woman of action, so to speak.

          In the end what differentiates our top court from the American one is our mandatory retirement rule. And given the 50-50 polarizing state of politics in the US, the members of the court simply have an added incentive to staying on longer: They dig in because the stakes are higher.

          The Justice whose name is most often mentioned as the next to step down is Ruth Bader Ginsburg. The 79-year-old Clinton appointee has survived two bouts of cancer and has hinted she might retire before Obama’s mandate is up. Were that to happen, the Obama administration would have an opportunity to maintain the current ideological balance by appointing a new Justice that could be expected to vote with the minority liberal wing of the court. But should a Republican-appointed Justice, such as Antonin Scalia or Anthony Kennedy (both 76) take his leave, the president would have a rare opportunity to reposition that balance. Many court watchers think that is unlikely, if only because the two men are intent on securing their respective legacies, and would not care to be associated with such a shift. Headlines like these certainly feed that notion.

          Contrast that with reactions in Canada’s papers to Harper’s five appointments to the Court. Sure, there’s been the odd story about Harper's chance at reshaping the court to align it with his conservative principles. But there has been little outcry over his choice of nominees, even from opposition critics. Of course nobody is suggesting that Harper isn’t trying to put a more conservative bent on a court that will continue to impact Canadians well after he has left office. But the mandatory retirement rule assures both right and left of a regular turnover of Supreme Court Justices, at least insofar has it is more likely to reflect shifts in electoral patterns. And for that reason alone, the pressure to stay on isn't quite the same.

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          Protesting and freedom of speech

          By Yves Faguy November 11 2012 11 November 2012

            In the aftermath of the student protests, there is an interesting debate under way about the trials and tribulations surrounding Gabriel Nadeau-Dubois (aka GND) and what his recent conviction says about freedom of speech in this country.

            Quebec’s Superior Court ruled earlier this month that GND, the more radical of the student leaders last spring, was guilty of contempt of court for having incited protesters to ignore an injunction allowing students to return to class (It was a Laval University student who sought and won both the injunction and the contempt of court ruling). Here’s the line from an interview GND gave on Radio-Canada in May that got him into trouble:

            “I think that it is completely legitimate for students to undertake the means necessary to respect the democratic choice to strike... It’s completely regrettable that a minority of students are using the courts to go around decisions that were made collectively... If students need to form picket lines to ensure that their strike votes are respected, we think that’s a completely legitimate.”

            In his ruling Justice Jacques Denis wrote that GND had advocated “anarchy and civil disobedience.”

            Yves Boisvert, no fan of GND, fears that the student leader has not been judged under a standard of proof appropriate for a criminal case.

            “The injunction obtained by this student prohibits blocking entry to class. Not picketing. GND is talking about forming picket lines. He’s not saying that people should be prevented from entering class, and certainly not in this particular department [at Laval University]. He’s saying 1) that turning to the courts is deplorable, which is a perfectly legitimate opinion, that I hope we can still express in public. And 2) That he thinks it’s legitimate to resort to forming picket lines to ensure that strike votes are respected. He is careful not to give any recommendations or encouragement, and not to openly challenge the court order. He expresses the opinion of his group. Cleverly, he stands close to the thin line that separates freedom of expression and inciting violations of law. " [Our translation]

            Sentencing arguments were heard on Friday. The lawyer representing the student who initially asked for the injunction and then followed through with the contempt of court filing is asking for a 30-day prison sentence or 150 hours of community work for GND.  As for the student leader, well, no surprise there: He'll be appealing his conviction.

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            Should we worry about the privatization of prosecutions?

            By Yves Faguy November 1 2012 1 November 2012

              Remarking on news that Former U.S. Attorney Patrick Fitzgerald is moving to private practice (at Skadden’s in Chicago) to focus on corporate investigations, L. Lee Smith notices how many of the functions of prosecutions are being privatized:

              Hardly surprising, but a comment by Mr. Fitzgerald caught my ear: “I’m not changing who I am, ... just who my client is.” The news article went on to note that he expected to be conducting internal corporate investigations, perhaps similar to the one former FBI Director and federal prosecutor Louis Freeh did on behalf of Penn State.

              Privatizing prosecution, or something close to it, has become the newest edifice in the intersection between corporations and crime. In the last decade or so, large corporations, particularly those funded, paid, or regulated by the federal and state governments (hospitals, universities, banks and publicly traded companies) have created and expanded compliance offices. While it’s possible these institutions are discovering the moral value of abiding by the law, it’s more probable that they’ve discovered the economic value of looking prosecutorial, instead of conspiratorial. The organization that can honestly and perhaps publicly say, “We had a problem, and we’re fixing it,” stands in a far better posture with the government and the public than one that is perceived to be hiding its wrongdoing.

              Of course, the downside is that individuals don’t have same rights in corporate investigations as they do when the government is in charge of the file:

              A corporation is not a person when it comes to confronting its criminal conduct. A person can’t cut off an offending limb, grow a new one and continue on. A corporation can do something like that. If a corporation’s goal is to control the damage to it resulting from its employees acts it can and will distance itself from the individual. The role of the internal investigator, as Mr. Fitzgerald’s comments suggest, must necessarily align itself with the greater good of the organization, disregarding the defenses and interests of the corporation’s individual members. Individual employees facing such a situation may find that prosecutorial perspective has been privatized and should seek protection in their own counsel.

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              Opitz v. Wrzesnewskyj reactions, continued

              By Yves Faguy October 26 2012 26 October 2012

                Emmett Macfarlane says the SCC made the right call yesterday and takes further issue with the Chief Justice's dissenting opinion in yesterday's divided ruling:

                In effect, the minority position is that it doesn’t matter whether the voter was, in reality, eligible to vote; what matters is whether all the I’s were dotted and T’s crossed from a procedural perspective. This approach, according to the majority, is contrary to the main (though not only) purpose of the Elections Act and the Charter of Rights: enfranchising Canadian citizens. The majority writes that the “procedural safeguards in the Act are important; however, they should not be treated as ends in themselves. Rather, they should be treated as a means of ensuring that only those who have the right to vote may do so. It is that end that must always be kept in sight.”

                […]

                The minority’s reasoning has highly problematic implications. First, it suggests the onus is not on a complainant to demonstrate irregularities actually affected the outcome of an election but that in light of procedural irregularities otherwise legitimate votes should nonetheless be discounted. This goes to the heart of the franchise. Not only does it fail to safeguard constitutionally protected voting rights, but it would also have the perverse effect of producing the sort of irregularities we want to avoid (legitimate votes being discounted).

                Second, if the minority judgment had won out in this case, it would mean an avalanche of litigation after every election for any riding outcome with a margin of a few hundred votes. If the mere existence of administrative errors creeping into our electoral process causes a crisis of confidence for some people, imagine what dozens of court challenges to the results in every federal and provincial election would do.

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                How many internets are there?

                By Yves Faguy October 26 2012 26 October 2012

                  Quite a few, apparently. From The Economist:

                  China demonstrates a basic truth: that the internet, despite its global image, is not the same everywhere. “The internet doesn’t exist,” says Steve Prentice of Gartner, a research and consulting firm. “There are 190 different internets.” One way or another, just about every government tries to control what its citizens may do online. Using Skype to make a voice call, Mr Prentice notes, is routine in America, subject to some restrictions in Canada and can get you arrested in Ethiopia.

                  Case in point: China’s recent move to block online access to The New York Times after the news organization published a piece about the massive fortune amassed by Premier Wen Jiabo’s family during his years in power. But as the Economist points out, China’s leadership is not alone in trying to put the lid on embarrassing revelations:

                  Governments often ask internet companies to remove material that breaks local laws or offends local sensibilities, and even Western democracies are not above trying to censor political content. Last year Google turned down a request from Spanish regulators to delete 270 search results referring to mayors, prosecutors and other public figures. In September this year police in Brazil briefly detained the head of Google’s operations there after the company balked at an order to remove YouTube videos about a paternity suit involving a mayoral candidate, before Google complied.

                  For more on requests from government agencies and courts around the world to remove content from its services, here's Google's Transparency Report.
                   

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                  When should voting irregularities annul an election?

                  By Yves Faguy October 25 2012 25 October 2012

                    From the Chief Justice's dissent today:

                    A court may annul an election under s. 531(2) if the applicant establishes that there were “irregularities . . . that affected the result of the election” within the meaning of s. 524(1)(b). The term “irregularities” should be interpreted to mean failures to comply with the requirements of the Act, unless the deficiency is merely technical or trivial. For “irregularities” to have “affected the result of the election”, they must be of a type that could affect the result of the election and impact a sufficient number of votes to have done so. Votes cast by persons not entitled to vote are irregularities that can affect the result of the election, because they are votes that should not have been cast. If the number of such votes equals or exceeds the winner’s plurality, then the result of the election is affected and the election should be annulled.

                    […]

                    Since the 65 votes properly set aside exceed the 26 vote plurality, the election should be annulled.

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                    Opitz v. Wrzesnewskyj reactions

                    By Yves Faguy October 25 2012 25 October 2012

                      A couple of comments regarding today’s Supreme Court ruling confirming Conservative MP Ted Opitz win in the last federal election:

                      John Ibbitson:

                      The courts wade into such murky waters at their peril. The independence of the judiciary from the legislature is a cornerstone of the checks and balances on which parliamentary democracy is based. The Court affirmed, in its decision, that judges must not become embroiled in such partisan contests unless absolutely necessary. Given any kind of choice, judges must stand aside. Thursday morning, the Court stood aside.

                      Paul Wells:

                      There was some chatter on Twitter this morning, after the Supreme Court ruled to uphold the election results in Etobicoke Centre, to the effect that Stephen Harper has finally succeeded in stacking the top court with corrupt thugs and we are now fully entered into a post-democratic era here in KanuckiHarperStan. My hunch is that this overstates things. First, this was actually the Harper government’s first good day at the Court in a while. The Supremes have more often been in the habit of handing Harper trouble, as with the Insite supervised-injection site case and Jim Flaherty’s dead-parrot project for a national securities regulator. In those highest of high-profile cases, Harper appointees concurred with their colleagues in unanimous judgments.

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                      The end of articling in Ontario?

                      By Yves Faguy October 24 2012 24 October 2012

                        The LSUC is struggling with how to address the articling crisis in Ontario.

                        Today, the law society's Articling Task Force released its final report on reforming lawyer licensing in the province. The report will be debated live on Thursday 9:30 am at LSUC Convocation.

                        Everybody on the task foce seems to agree that a change is needed. But the big question being debated tomorrow is whether the LSUC should a) approve a five-year pilot project that will allow articling and a new Law Practice Program (LPP) to operate side by side; or b) effectively scrap the articling program altogether for fear that a) would create a two-tiered licensing process.

                        The majority of the task force is favouring a).

                        It should make for an interesting debate.

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                        Partners for progress

                        By Robert Brun October 23 2012 23 October 2012

                          I had an opportunity recently to speak to the Federation of Law Societies in Vancouver. It brought to mind the importance of partnership in our life as an association.

                          As the voice of the legal profession in Canada, we strive to show leadership on the important issues affecting our members and our society. But it is important to recognize that we have partners who also act in the public interest, albeit from a different perspective.

                          For example, the function of the law societies is to regulate the legal profession in the public interest; the job of the CBA is to represent the interests of members of the profession. There is a clear distinction between the two — and this distinction between regulator and advocate reinforces our right to self-governance.

                          However, our separate roles do not preclude us both from acting in the public interest.

                          It is clear that the challenges facing our justice system are matters of public interest that require all stakeholders to work together. Consider the continuing crisis surrounding access to justice. A lot of good work is already being done: the Action Committee on Access to Justice, headed by Mr. Justice Thomas Cromwell of the Supreme Court of Canada, has brought together representatives of the judiciary, government, court administrators, the practising bar and, of course, the CBA.

                          The CBA has also launched the Envisioning Equal Justice Project, chaired by Dr. Melina Buckley. This initiative takes a holistic approch to the issue and examines how we can get government, the bar and the court system to work together.

                          There are many stakeholders in our justice system and many competing priorities. But if we can identify where our interests intersect, we will find common ground on which to build a solution. The public interest in a sustainable, accessible justice system surely demands that we move forward together as partners to achieve progress.

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