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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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Law firm valuations: Don't forget the liabilities

By Yves Faguy December 5, 2012 5 December 2012

Last week, The American Lawyer tried calculating the value of the world’s highest-grossing law firms: 


The Global 100 is collectively worth $97 billion, as calculated by our formula, which takes each firm's net profit, makes deductions by assigning equity partners with a notional salary, then applies a multiple based on the firm’s size, average growth rates in revenue and profits, and brand strength. Kirkland & Ellis narrowly edges out Latham & Watkins to head the list with a valuation just shy of $4 billion. In total, 33 firms have valuations exceeding $1 billion. In value per equity partner, Quinn Emanuel Urquhart & Sullivan is the clear leader. Its $1.96 billion valuation puts the effective stakes held by its 111 equity partners at an average worth of more than $17 million — almost $5 million more than any other Global 100 firm.

Schumpeter cautions readers to take the rankings “with a grain of salt”:

In assigning a multiple of profits to reach a total value, American Lawyer had to make some tricky calls: how to calculate average profit, how to project it years out, how to weight revenue growth versus profit growth, and, perhaps most subjectively, how to assign a multiple based on the firm's brand. The editors gamely lay out how they did all this, admitting that it is impossible to be perfectly scientific. One twist, for example, is that London's elite "Magic Circle" firms were hurt by the weakening of the pound against the dollar in recent years.

But perhaps the biggest flaw in this calculation is that it doesn't show what any investor would demand to know when buying a firm: its liabilities. Law firms are small compared to other professional-services firms. The big audit firms, or a public consulting firm like Accenture, have staff numbering in the hundreds of thousands. The biggest law firms are in the single-digit thousands. The smaller size makes them less robust. When hard times hit, money-making partners begin to leave, revenue dries up, and more partners leave in a spiral that can quickly turn fatal. Ask anyone from Dewey & Leboeuf, a firm that ranked 38th in the AmLaw 100 in 2011 in profits per lawyer. What readers of that years' charts didn't know was the size of Dewey's debts, which quickly became unmanageable late last year, forcing the company into bankruptcy in May this year.

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