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Yves Faguy

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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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The risks of whistleblowing at the Charbonneau Commission

By Yves Faguy October 16, 2012 16 October 2012

In his column today, Yves Boisvert sorts through the stew of allegations made by Lino Zambito that have placed a number of politicians and political operatives in Quebec under the spotlight, not least of which is the mayor of the province’s second largest city.

According to the star witness, Mayor Vaillancourt, a fixture in Laval municipal politics since the 1970s, was known to take a 2.5 percent cut of all city construction contracts. It can hardly be a coincidence, Boisvert suspects, that just last week an anticorruption unit came down on the mayor’s house last week with search warrants. Of course, there has been plenty of speculation as to the reasons compelling Zambito to speak as freely as he has chosen to do – he himself admits he was “no angel.” But Boisvert doesn’t deny that Zambito, for all his past dodgy dealings, is still a credible witness. Even so, the columnist is worried that the Charbonneau Commission may have overreached in allowing Zambito to name certain names:

Lino Zambito did not witness any payment to Gilles Vaillancourt. He “was told” that the mayor took 2.5 percent of the contracts; the engineer Marc Gendron of Tecsult [an engineering firm that has admitted under oath in a tax matter to illegally financing political parties] allegedly asked him for $25,000 for the mayor, he said.

That’s all the proof he has to offer. So up to this point, it’s all hearsay. One can imagine that had Gendron actually said that, he could conceivably have kept the money for himself – an old trick. If so, it wouldn’t have been prudent for the Commission to allow the witness to name Gilles Vaillancourt. I expect there is more to come. [My Translation]

It’s likely that Zambito is safe from criminal prosecution or, at the very least, that he’s made an arrangement of some kind in exchange of his candour. As for the hearsay about Vaillancourt, well, there have been stern denials of any wrongdoing. But no talk of suing Zambito for defamation. After all, it was only a year ago – almost to the day – that the mayor backed off such a threat against two other politicians who had claimed that he had offered them money to help them win tough elections in their own ridings. Still, the city of Laval is considering whether it should request to be a participant in the Commission so that it may have the opportunity cross-examine him. Will he back off from that threat too?

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Did Canada get steamrolled by China?

By Yves Faguy October 9, 2012 9 October 2012

Paul Wells commits journalism and reads the fine print of the Foreign Investment Promotion and Protection Agreement (FIPA) between Canada and China, which will soon come into force:

Most of the news coverage about Canada-China investment has centred on Chinese attempts to buy into Canada, especially on the Nexxen deal [sic]. But Canadians are also trying to buy into China and they have had a hard time of it. That’s what was making Harper nervous in Vancouver (and former Harper cabinet minister Jim Prentice borderline apoplectic). And the vaunted FIPA provides prospective Canadian investors (of which there are many) very limited protection compared to what it provides existing Canadian investors (of which there aren’t enough).

Why is that? Well, because it seems that Canada abandoned its own model for FIPAs and agreed to go along with China’s preferred wording for the national treatment clause, which normally would give foreign investors the same rights in the host country as those of its own investors.

So in its current wording, that clause excludes those Canadian investors still trying to establish themselves in China. And vice versa, mind you, which is why I can’t see how this would pose Canada a problem if it would want to block a takeover similar to CNOOC’s bid for Nexen. Still, Canadian investors not already established in China may find it difficult to get around new Chinese regulations aimed at protecting national and economic security, not to mention a number of industry-specific standards that favour domestic firms.

But what should worry advocates of transparency are the provisions of the FIPA dealing with dispute resolution. Again, Wells drills down to the specifics:

Here again, the language in the final treaty is very restrictive. “The treaty does not require that arbitration of disputes be done in a manner that is open to the media and the public,” Luke Eric Peterson told me. He’s a reporter in New York City with this investment arbitration newsletter. ”This is a huge concern,” he added — especially because the arbitration process is designed to supplant the previous forum for such disputes, which is the courts. “Journalists that want to cover this beat in future may be deeply chagrined to discover that they are barred from arbitration hearings and may not be able to access the ‘court file’ related to major disputes — unless the states decide that it is in the ‘public interest’ to allow such access."  So when massive commercial disputes are arbitrated under this FIPA, they will be arbitrated out of public view unless both Canada and China agree. Again, this is a departure from Canadian practice and an embrace of Chinese practice.

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Public inquiry witness protection?

By Yves Faguy October 5, 2012 5 October 2012

Catherine Solyom at The Gazette wonders whether Lino Zambito of Charbonneau Commission fame is immune from prosecution in court about his own involvement in the system of collusion that ruled Montreal’s construction industry for so many years:


Presumably, he believes his testimony before the Commission cannot be used against him in court. But while that may be true for criminal proceedings, it is not clear whether it holds true for civil suits — including those for defamation and slander.

In June, when former police chief Jacques Duchesneau was testifying, Sylvain Lussier, the lead counsel for the Charbonneau Commission, at first said testimony before the commission could be used in civil suits. Then he changed his mind. He and his team had examined the relevant laws, the Commission heard, and determined that yes, witnesses are also protected against civil suits.

But as Solyom points out, here’s what Lussier told Luis Millán in the Lawyer’s Weekly, regarding a claim in restitution he launched representing the Canadian government against defendants for their role in the sponsorship scandal:

"I myself used what was said in the Gomery Commission against civil defendants and was vindicated by Justice Hébert,” said Lussier, adding that in his own opinion s. 13 of the Canadian Charter does not grant protection against self-incrimination in civil proceedings. Though on less solid ground because of the absence of precedence, Lussier also believes that witnesses who slander while providing testimony before a commission of inquiry cannot hide behind the shield of immunity.

And finally there’s this other quote from Lussier in Millán’s reporting:

“You can sue for defamation for slanderous procedures. Lawyers and clients do engage their liability if they write defamatory procedures. The fact that it’s in court does not grant immunity from defamation suits. So why would something slanderous being said before a commission (of inquiry) be immune from ulterior prosecution.

So it seems an admission of responsibility made before a commission of inquiry can be used in civil proceedings (in Quebec at least). Which explains why the Commission has ordered a publication ban on the remainder of Zambito’s continuing testimony.

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