The Power of Perspectives

The Canadian Bar Association

Yves Faguy


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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