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Yves Faguy

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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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