The Power of Perspectives

The Canadian Bar Association
First Nations

Duty to consult gets another day in court

By Kim Covert October 1, 2015 1 October 2015

Fifteen months after Ottawa granted its approval for construction of the Northern Gateway pipeline, eight B.C. First Nations are appearing in Federal Court in Vancouver today to have that approval revoked.

The approval for the pipeline came with 209 conditions attached, but critics have argued that the environmental assessment process was flawed and that stakeholders who might oppose the project were not given an equal hearing. Pete Erickson, a hereditary chief with the Nak’azdli First Nation, told the Globe and Mail that while Enbridge was given days to present its case to the Joint Review Panel, he got 10 minutes to speak for his people.

“We’ve said that under no circumstances is the pipeline ever going to be allowed in the current presentation,” he said. “We’ve decided that there’s no way we can allow it and I believe that the court will recognize that we have the right to say that.”

The $7-billion pipeline would carry bitumen from Alberta’s oilsands to the B.C. coast.

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Volkswagen scandal: Where were the lawyers?

By National October 1, 2015 1 October 2015

Many questions have yet to be answered in the wake of the Volkswagen emissions testing scandal, and of particular concern to the legal community is the one posed by David Mowry: where were the lawyers?

I am not shocked that shenanigans go on in the business world. I am shocked that such shenanigans often go to the highest offices in the business world, in this case the former CEO of VW Europe. He apparently knew that his company rigged emissions testing equipment on their diesel automobiles. He knew it, and either didn’t care to stop it, or was frightened of the implications. There lies the rub for us as counsel, being frightened of implications. We, as inside counsel, have the duty to our clients (the corporations for which we work) to recommend against, avoid, and sometimes report — shenanigans. These usually appear before me as small potatoes type stuff, someone wants me to play wordsmith with some term or condition in order to achieve a sales goal. They also usually smell like day old fish, and I can root them out for what they are, and inform the requestor that such and such may not be a good idea. Luckily, we have sufficient controls in place, so that even if the person were to go ahead an attempt to pass off changes without my approval, they’d be caught somewhere in our processes.

Indeed, scandals such as this one raise important – if oft-ignored – questions ethics and professional duties. However, not everyone shares Mowry’s faith in effective counsel. Alice Wooley comes down much harder on the lawyers:

The ability of lawyers to prevent Volkswagen’s misconduct requires, though, that the company actually ask the lawyers for advice, which it is not obvious that they would have given the pretty clearly unlawful nature of what they did. It also requires that, when asked for their advice, the lawyers be willing to speak truth to power. To tell people at the company on which they economically depend – either as external counsel or in-house – and with whom they may have personal relations, that what they are doing is clearly wrong. And then – if their advice is ignored – to commit the social and professional solecism of calling out wrongdoing by their colleagues and, perhaps, their friends.

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Law firms

Shifting sands in the litigation market

By National October 1, 2015 1 October 2015

Gabe Friedman reports on a Citi Bank analyst who has flagged a “fundamental shift” in the American litigation market – one that will surely be felt north of the border.

[Gretta] Rusanow said Citi collects data from dozens of law firms and found two important trends: First, she said there’s been less work available with the number of billable hours for litigation experiencing a persistent decline. Secondly, there’s increased pricing pressure, with many law firms cutting their rates or offering discounts in order to retain more litigation, which has exacerbated law firms’ ability to collect revenue, according to Rusanow.

Looking deeper at why there’s less billable hours at law firms, she said her clients attribute the decline to a shift in attitude at major corporations, who have less appetite to litigate and are more willing to try alternative dispute resolution and engage in early settlement discussions. Also, corporate law departments are managing their expenses, by keeping more matters in house, and also sending more matters to low-cost service providers, such as offshore document review companies.

But, as Friedman notes, none of this should be taken to mean that litigation itself is declining; rather, the way in which litigation services are offered, as well as the kinds of cases that are litigated, are both witnessing important changes.

[I]n May, Norton Rose Fulbright released a survey of more than 800 in house counsel between late 2014 and early 2015 that found litigation spend is increasing.

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Of mice and pen

By Michael Motala September 30, 2015 30 September 2015

For at least as long as The Paper Chase has been a element of our popular imagination, it seems there have been two dominant features of the first year law school curriculum: the case book and the Socratic method. Does this signature pedagogical approach really teach first-year students to “think like a lawyer”? Or is it an ineffective and antiquated form of teaching? Might it even be, as critics suggest, an “infantilizing […] tactic for promoting hostility and competition among students” that is “self-serving, and destructive of positive ideological values?”

Little did I realize the first semester of contracts, criminal law and torts was at once the debut of the methodology as well as its pedagogical zenith. As soon as I had adjusted to the pace of question-and-answer based on hypothetical or case, by second semester, it seemed to diminish in discursive quality. Partly to blame are the students—exhausted by overwhelming readings and assignments, falling behind in the library, and distracted by Facebook and the daily news while in class. There are also the “gunners” who dominate the question-and-answer, evidently prepared, drowning out the rest, and certain to elicit schadenfreude among their peers when they inevitably blunder. Everyone knows the quiet ones do the best on exams anyway.

Equally, professors are to blame. Some have the charisma needed to capture and sustain a class’ attention and stimulate discussion, however ill-prepared or overworked its participants. Others retreat to a lecture-style dictation of slides or prepared remarks with no such bravado. Yet the popular discourse tends to eclipse the contribution of the teacher, foisting blame on the hazards of new technology for a lacklustre classroom experience.

Professors across the country are banning laptops in the classroom because of the supposed pedagogical benefits. But is the pen indeed mightier than the keyboard?

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Citizenship now comes with a caveat

By Kim Covert September 29, 2015 29 September 2015

At the end of May, measures came into force that allow the government to strip away the Canadian citizenship of terrorists and others who hold two passports.

The government has notified a half-dozen people that it intends to revoke their citizenship, and last week it accomplished that intention for the first time, rendering so-called “Toronto-18” ringleader Zakaria Amara un-Canadian. Amara is currently serving a life sentence for his part in a foiled 2006 plot to detonate truck bombs in downtown Toronto.

There’s no question that revoking a terrorist’s citizenship was a popular act among some Canadians. There is a sort of morally righteous legitimacy to that stance.

The legal point is less popular.

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Niqab ruling about judicial discretion, not Charter rights

By National September 29, 2015 29 September 2015

With the niqab debate having become overtly politicized in this unusually long federal election campaign, a key issue in the recent federal court of appeal decision appears to have slipped beneath the radar. As Manon Cornellier observes:

But all the party leaders are obscuring the debate by constantly tying the Federal Court ruling (affirmed by the Court of Appeal) to the Charter of Rights and Freedoms on wearing a full-face veil for the citizenship oath ceremonies.  By doing this they allow the Conservatives to get away with an abuse of power on the part of the Ministry of Citizenship and Immigration.

Indeed, that is the issue at hand. In his ruling on the niqab, Justice Keith Boswell was careful to specify that he was not addressing constitutional questions raised by the plaintiff Zunera Ishaq. He stuck to the existing conflict between a ministerial directive and the Citizenship Act. In that directive issued in December 2011, then minister Jason Kenney made an order not to grant citizenship to anyone whose face is uncovered at the citizenship oath ceremony. According to Justice Boswell, that went against the citizenship judge's discretion.

[Our translation]

Shaun Fluker delves further:

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An Arctic chill for the oil and gas industry

By National September 29, 2015 29 September 2015

Shell has decided to cease its resource exploration off the coast of Alaska. Jennifer Dlouhy considers some of the wider effects of the company’s decision:

The company’s declaration is likely to chill oil industry investment in the region, illustrating anew that despite the tremendous promise of crude and gas locked under Arctic waters, the financial and environmental risks of getting it may be too high. Other oil companies, including Statoil and ConocoPhillips, have leases in U.S. Arctic waters but have delayed their own exploratory bids, citing regulatory uncertainty.

Shell’s defeat also underscores the inherent risks of oil exploration, whether in icy seas north of Alaska or the temperate waters of the Gulf. In the deep-water Miocene play, where much Gulf activity is concentrated these days, just one in five recently drilled wells has been a success. Another top target, the Eastern Gulf Norphlet, has a success rate of just 17 percent.

In Elie Mystal’s view, Shell’s failed venture in the far north evidenced a functioning regulatory system.

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The case of Edgar Schmidt

By Justin Ling September 28, 2015 28 September 2015

The case of Edgar Schmidt

The whistleblower who called out Justice Canada for supposedly ignoring the unconstitutionality of several pieces of high-profile legislation finally had his day in court.

Edgar Schmidt, formerly general counsel for the department’s Legislative Services Branch, has been forging ahead with a lawsuit for more than three years, alleging that the federal government has disregarded its legal obligation to inform Parliament when its own legal assessment has found proposed legislation not to be consistent with the Charter of Rights and Freedoms.

The practice predates the Harper administration, Schmidt alleges. Even so, the Conservatives have faced, and flatly rejected, dogged calls to make public their legal assessments on several controversial laws.

According to arguments heard in an Ottawa federal courtroom last week, the government’s reticence is at least partly owing to a test for unconstitutionality allegedly so narrow and specific that it leads to the passage of bills that will face likely defeat at the hands of a Charter challenge.

National covered the overview of the case when counsel for Schmidt and the Attorney General managed to hammer out an agreed-upon statement of facts.

Schmidt says the Canadian Bill of Rights, coupled with the Statutory Instruments Act, forbids the government from introducing legislation that it knows to be unconstitutional. Where the Minister of Justice gets advice otherwise, the SIA requires that the “regulation-making authority” be told.

According to Schmidt, the requirement targets bills that may “trespass unduly on existing rights and freedoms” – to quote the Act’s language.

Now that the case is moving forward, and the two sides are asking the Federal Court to pronounce itself — or not — on where to draw the line on "unconstitutional," Schmidt’s theory is finally being put to the test.

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The arrival of artificial intelligence and “the death of contract”

By Ian Kerr September 28, 2015 28 September 2015

Like it was yesterday (it was in fact 1990), I remember when I was a 1L studying the law of contract.

The inimitable G.H.L. Fridman stood front and centre at the podium, a little man with a big British accent and all pomp and circumstance of a royal coronation. There he was, ready to deliver an hour-long introduction to our year-long subject matter—a single sentence, it seemed, comprised of many subordinate clauses, peppered throughout by a series of parenthetical remarks.

I remember many of his quips from that lecture and those that followed. But the one that has stuck with me the longest was practically muttered underneath his breath. It punctuated the finale of his first but also his closing lecture:

“Of course, Grant Gilmore once noted: ‘We are told that Contract, like God, is dead. And so it is.’”

Fridman never went on to explain the remark. But he didn’t have to. Half an hour after that lecture, I was in the library signing out Grant Gilmore’s 1974 book, The Death of Contract.

In the span of two decades since it was written, the book had generated more than a little academic excitement. So much so that an edited and updated 2nd edition was published some 20 years later—just as I was finishing up law school. Gilmore’s book was the subject of numerous law review articles, examined by many of jurisprudence’s heavy-hitters, including Morton Horwitz, Robert Gordon and others. Although not so in Canada, The Death of Contract is still required supplemental reading in many US law schools.

To invoke Nietzsche and thereby declare the death of god on your own subject matter is no small thing. Neither is it a trifle for a serious scholar to speculate that contract law would be swallowed up by tort—“Contorts” as Gilmore liked to call it.

While this was all very interesting to a 1L who was also in the final stages of a PhD in the philosophy of law, The Death of Contract struck a different chord in me. In my view, Gilmore’s takeaway was that that the great evolutionary forces of the common law did not generate 20th century contract law as we usually think it. It was a reminder that Contract Law, like the contracts made through it, is a human artifact; a golem created from whole cloth by a few elite members of the judiciary and the academy.

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VW cheating scandal: Many guilty parties

By National September 25, 2015 25 September 2015

Greg Archer points to evidence that Volkswagen wasn’t alone in cheating at emissions testing:

Over the past three years, Transport & Environment (T&E), with the support of the International Council on Clean Transportation (that alerted US authorities to its concerns over VW), has exposed countless ways carmakers manipulate emissions tests for both air pollution and CO2 emissions (fuel economy). For example, carmakers charge the car’s battery before a test, deduct 4% from each test result, and use incorrect laboratory settings for the inertia of the vehicle. The companies admit these tricks but claim they are “legitimate flexibilities” in the obsolete test used in Europe. Governments and the European Commission have been unwilling to challenge the industry and close the loopholes, instead focusing on introducing new testing systems that are scheduled to begin in three years’ time for all new vehicles.

Through trickery, the gap between official fuel economy figures and those achieved by an average driver have grown to 40%. For new diesel cars nitrogen oxide emissions are typically five times higher on the road than the allowed limit and just one in 10 cars meets the required level on the road. But for some models the gap is so large T&E suspects that the car is able to detect when it is tested using a “defeat device” and artificially lowers emissions during the test. For example [*]: a diesel Audi A8 tested in Europe produced nitrogen oxide emissions 21.9 times over the legal limit on the road; a BMW X3 diesel was 9.9 times over the limit on the road; an Opal Zafira Tourer, 9.5 times; Citroen C4 Picasso 5.1 times. All these vehicles passed the laboratory test.

Clive Crook calls the Volkswagen scandal “an embarrassment of riches” that should also demand more scrutiny about the role of regulators turning a blind eye to a testing system that invites automakers to cheat. Then he adds another layer:

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Rejecting joint plea deals: What's the standard?

By Justin Ling September 25, 2015 25 September 2015

Rejecting joint plea deals: What's the standard?

When, if ever, can a court reject a plea bargain?

That’s a question that the Supreme Court will tackle for the first time ever in the coming months.

The top court granted leave in Matthew John Anthony-Cook v. Her Majesty the Queen, a B.C. case in which a Vancouver man — living with mental illness and suffering from substance abuse issues — assaulted a volunteer at a local drop-in centre. That volunteer, as a result of Anthony-Cook’s assault, sustained a head injury upon falling, and later died.

Anthony-Cook pled guilty to manslaughter and, in a joint submission with the Crown, his lawyers accepted a prison sentence of three years, including pre-trial custody.

The judge in that case rejected the submission. The court added an additional three years of probation, during which Anthony-Cook was forbidden from consuming drugs, but kept the original prison sentence. The BC Court of Appeal upheld that ruling, finding that the joint submission proposed by defence counsel and the Crown was contrary to the public good.

In appealing that decision, lawyers for Anthony-Cook — his B.C. counsel, Micah Rankin of Jensen Law, and Michael Sobkin in Ottawa — have argued four reasons why the top court should address the issue.

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Life for a (schizophrenic?) terrorist

By Kim Covert September 24, 2015 24 September 2015

This week in Toronto, two would-be terrorists were sentenced to life in prison for a crime they bragged to the wrong person about wanting to do, but which they did not actually commit. In fact, questions were raised about whether they ever had or would have had the wherewithal to carry out their derail a Via passenger train.

Still, in these days when we worry about terrorists hiding under every rock, you can never be too safe.  Found guilty in March of conspiring to commit murder for the benefit of, at the direction of or in association with a terrorist group, along with six other terrorism charges between them, the two men will each have to serve 10 years before being eligible for parole.

Chiheb Esseghaier, who had represented himself, and who many might remember for demanding his trial be conducted according to Qur’anic law, threw back his copy of the judgment.

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