The Power of Perspectives

The Canadian Bar Association

Yves Faguy


The royal baby bill: Do the provinces have a say?

By Yves Faguy January 31, 2013 31 January 2013

There have been some amusing exchanges in the twitterverse over the law introduced in the House of Commons today aimed at changing the royal succession rules to make them compatible with announced changes to those in the UK. The question for many has been whether Canada’s assent is enough to incorporate the new rules into our own laws or whether we need a full-blown constitutional amendment. Scholars will certainly get a kick out of this paper by Anne Twomey of the University of Sidney (hat tip: Philippe Lagassé), who takes us from the pre-Statute of Westminster days, through the abdication crisis of 1936 and up until today. But first here’s some context explaining why both the Gordon Brown and David Cameron governments have treaded carefully with the matter of changing the laws of succession in the first place:

One of the notable aspects of the debate on this Bill was the confusion about whether all Commonwealth countries would have to be consulted about it, or whether consultation was confined to the 15 other Realms. It was even suggested that all the British overseas territories would have to be consulted, as well as devolved administrations, such as Scotland. There was also confusion about whether mere consultation was required, which could be done by a phone call, or whether the Parliament of each of these polities would have to legislate prior to the United Kingdom Parliament enacting its legislation.

The problem, Twomey explains, lies in the wording of the Statute of Westminster (more after the jump).

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The Supreme Court ruling on unmarried couples

By Yves Faguy January 28, 2013 28 January 2013

Admittedly, the Supreme Court’s ruling last week on spousal support for unmarried couples affects Quebecers for the most part. That said, Canadians from other provinces are impacted by the questions surrounding the division of property rights. So here’s a round-up of commentary on the decision.

Yves Boisvert, notes that the ruling is a divided one in which the Chief Justice found herself in the middle but leaning on the side of validating the provisions of the Civil Code of Quebec.

It would seem, at first blush, that the judges were were split along gender lines: the women came down on one side, the men on the other.

In truth, what was really at stake in the Lola case was the very notion of what the role of judges should be. And the majority concluded that it is up to the National Assembly – not judges – to redefine or not [Quebec’s] conjugal regime for unmarried couples. It was the right decision. You simply do not marry one million people without asking them first. It is neither polite nor, from a legal standpoint, promising. [Our translation]

Angela Campbell writes that the decision might be better for women than some might think (more after the jump):

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Copyright and "I'm right to nuke you" ethics

By Yves Faguy January 21, 2013 21 January 2013

Plenty has been written in the last week about the death of Aaron Swartz. Predictably, opinions tend to diverge sharply among supporters of content consumers vs. supporters of content owners (was Swartz hero or thief?)

But the more nuanced commentators are asking some rather pertinent questions about how our governments go about targeting alleged criminals and how they are prosecuting crimes. Food for thought for legal minds. Here’s Clive Crook in one of his last posts at the Atlantic:

By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.

The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.

Stephen Carter at Bloomberg calls the prosecution of Swartz ridiculous, but argues that the overly zealous lawmakers are the real problem. Drawing inspiration from Douglas Husak, author of the book Overcriminalization, he writes (more after the jump):

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Non-status Indians: The impact of Daniels

By Yves Faguy January 18, 2013 18 January 2013

The recent Federal Court decision in Daniels v. Canada will no doubt have a major impact on a number of financial, legislative and political considerations of the federal government in dealing with non-status Indians. And yes, the ruling might yet be appealed before the Supreme Court. But for now it concludes that Métis and non-status Indians are “Indians” within the meaning of Section 91(24). It is worth noting though that the Federal Court did dismiss two other requests by the plaintiffs in Daniels – a declaration that Ottawa owes a fiduciary duty to MNSI as Aboriginal people; and that the feds have a duty to consult and negotiate with MNSI.

National contributor Brad Mackay had a chance to catch up with Joe Magnet (still recovering from a bout of laryngitis), who was the lead counsel representing the Congress of Aboriginal Peoples. Brad asked him to explain what was at stake, to tie the ruling to the Idle No More movement and to share his thoughts on what Canada needs to do to fix the legal relationship between Ottawa and Aboriginal people.

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Intervention in Mali: a legal concern?

By Yves Faguy January 15, 2013 15 January 2013

So Canada has decided to provide logistical support to France’s military intervention in Mali (false starts notwithstanding), and play host to talks in Ottawa. All of this a week after Harper ruled out sending troops to the country – an announcement that followed recent statements made by Robert Fowler (interviewed in the above video in August at the Canadian legal Conference in Vancouver) criticizing the Harper government for saying that it had not been asked to contribute to the international military mission to Mali. At least one paper admits to being confused.

Part of the reason might have something to do with a whole lotta disagreement (between France and the U.S.) over which strategy to pursue: a frontal attack on the country or a quieter campaign against jihadi groups – like the one tried in Somalia maybe?

Perhaps most telling, the U.S. is now citing legal concerns in delaying decisions about supporting France's military campaign in Mali. The main obstacle, it seems, is that direct military aid to Mali is forbidden under U.S. law because the current government seized power in a military coup. But more pertinent could be the fact that Obama's recently named national security team is, by all accounts more favourable to testing the light footprint strategy in military matters. 

But Daveed Gartenstein-Ross worries in a recent G&M piece, with the U.S. primarily in mind, that supporters of a light footprint strategy in Mali ought to be more careful when talking up the merits of the quiet campaign against jihadi groups in Somalia as the successful model of intervention that should be followed:

It is unclear precisely what the administration and commentators have in mind when they speak about drawing lessons from Somalia, though a few threads of thought are clear. One principle is that there should be no Western “boots on the ground” – although drones, special forces, and the ubiquitous “military trainers” may play a role. Other principles include local forces taking the lead in combat operations, and working multilaterally with other countries. The aforementioned UN Security Council resolution on Mali laid the groundwork for multilateral efforts there. But the $64,000 question is how well will things turn out in Somalia? While al-Shabaab has experienced legitimately large setbacks, there are reasons for concern that the Somalia model is being oversold.

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