The Power of Perspectives

The Canadian Bar Association

National Blog

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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      How many internets are there?

      By Yves Faguy October 26 2012 26 October 2012

        Quite a few, apparently. From The Economist:

        China demonstrates a basic truth: that the internet, despite its global image, is not the same everywhere. “The internet doesn’t exist,” says Steve Prentice of Gartner, a research and consulting firm. “There are 190 different internets.” One way or another, just about every government tries to control what its citizens may do online. Using Skype to make a voice call, Mr Prentice notes, is routine in America, subject to some restrictions in Canada and can get you arrested in Ethiopia.

        Case in point: China’s recent move to block online access to The New York Times after the news organization published a piece about the massive fortune amassed by Premier Wen Jiabo’s family during his years in power. But as the Economist points out, China’s leadership is not alone in trying to put the lid on embarrassing revelations:

        Governments often ask internet companies to remove material that breaks local laws or offends local sensibilities, and even Western democracies are not above trying to censor political content. Last year Google turned down a request from Spanish regulators to delete 270 search results referring to mayors, prosecutors and other public figures. In September this year police in Brazil briefly detained the head of Google’s operations there after the company balked at an order to remove YouTube videos about a paternity suit involving a mayoral candidate, before Google complied.

        For more on requests from government agencies and courts around the world to remove content from its services, here's Google's Transparency Report.

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        When should voting irregularities annul an election?

        By Yves Faguy October 25 2012 25 October 2012

          From the Chief Justice's dissent today:

          A court may annul an election under s. 531(2) if the applicant establishes that there were “irregularities . . . that affected the result of the election” within the meaning of s. 524(1)(b). The term “irregularities” should be interpreted to mean failures to comply with the requirements of the Act, unless the deficiency is merely technical or trivial. For “irregularities” to have “affected the result of the election”, they must be of a type that could affect the result of the election and impact a sufficient number of votes to have done so. Votes cast by persons not entitled to vote are irregularities that can affect the result of the election, because they are votes that should not have been cast. If the number of such votes equals or exceeds the winner’s plurality, then the result of the election is affected and the election should be annulled.


          Since the 65 votes properly set aside exceed the 26 vote plurality, the election should be annulled.

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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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              Partners for progress

              By Robert Brun October 23 2012 23 October 2012

                I had an opportunity recently to speak to the Federation of Law Societies in Vancouver. It brought to mind the importance of partnership in our life as an association.

                As the voice of the legal profession in Canada, we strive to show leadership on the important issues affecting our members and our society. But it is important to recognize that we have partners who also act in the public interest, albeit from a different perspective.

                For example, the function of the law societies is to regulate the legal profession in the public interest; the job of the CBA is to represent the interests of members of the profession. There is a clear distinction between the two — and this distinction between regulator and advocate reinforces our right to self-governance.

                However, our separate roles do not preclude us both from acting in the public interest.

                It is clear that the challenges facing our justice system are matters of public interest that require all stakeholders to work together. Consider the continuing crisis surrounding access to justice. A lot of good work is already being done: the Action Committee on Access to Justice, headed by Mr. Justice Thomas Cromwell of the Supreme Court of Canada, has brought together representatives of the judiciary, government, court administrators, the practising bar and, of course, the CBA.

                The CBA has also launched the Envisioning Equal Justice Project, chaired by Dr. Melina Buckley. This initiative takes a holistic approch to the issue and examines how we can get government, the bar and the court system to work together.

                There are many stakeholders in our justice system and many competing priorities. But if we can identify where our interests intersect, we will find common ground on which to build a solution. The public interest in a sustainable, accessible justice system surely demands that we move forward together as partners to achieve progress.

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                Happy Anniversary, National!

                By Beverley Spencer October 23 2012 23 October 2012

                  We’re celebrating a special anniversary at National magazine this month. It’s the 20th anniversary of the publication in magazine form, and a good time to look at how far we’ve come.

                  National magazine officially made its debut in October, 1992, but the CBA was publishing asso­ciation news long before that. Stephen Hanson, senior director of communications who retired in early October, was tasked with redesigning the CBA news sheet when he arrived in 1975.

                  The first incarnation of National was a tab newspaper produced under contract with Le Droit. Steve along with Hannah Bernstein (our current director of publishing), learned how to lay it out and send type (truly lost arts). Editorial independence was established early on. Content expanded to include commentary, regular features by professional writers, and a cartoonist. By the mid-1980s, the association decided it was time to create a magazine.

                  An agreement was reached with Mac­lean Hunter (now Rogers) to print and distribute the magazine, an arrangement that continues to this day.

                  Today we are on the cusp of another new era for National with the launch of You’ll also notice our magazine has a new look; thanks to our art director Tony Delitala for a great job in executing our new modern vision.

                  I’d like to thank everyone who has helped build our success, especially the many volunteers on our communications committees and editorial boards who have provided valuable guidance and direction over the years.

                  A special thanks to Steve and Hannah for building the foundation on which we stand today. National is one of Steve’s most important legacies as senior director of communications. His guidance and enthusiasm helped create a lively, intelligent publication of which we can all be proud. And I’ll be proud to build on his legacy into a bright new future for National.

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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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                        Mobile marketing for lawyers

                        By Yves Faguy October 4 2012 4 October 2012

                          Here are some striking figures from Pew Research Center's Project for Excellence in Journalism - most notably, how quickly people are embracing smartphones and tablets:

                          Nearly a quarter of U.S. adults, 22%, now own a tablet device-double the number from a year earlier. Another 3% of adults regularly use a tablet owned by someone else in their home. And nearly a quarter of those who don't have a tablet, 23%, plan to get one in the next six months. Even more U.S. adults (44%) have smartphones, according to the survey, up from 35% in May 2011.

                          And what’s encouraging for content providers (that includes lawyers, people) is this:

                          News remains an important part of what people do on their mobile devices-64% of tablet owners and 62% of smartphone owners say they use the devices for news at least weekly, tying news statistically with other popular activities such email and playing games on tablets and behind only email on smartphones (not including talking on the phone). This means fully a third of all U.S. adults now get news on a mobile device at least once a week.

                          Mobile users, moreover, are not just checking headlines on their devices, although nearly all use the devices for the latest new updates. Many also are reading longer news stories - 73% of adults who consume news on their tablet read in-depth articles at least sometimes, including 19% who do so daily. Fully 61% of smartphone news consumers at least sometimes read longer stories, 11% regularly.

                          This report is obviously great news for the media industry. But the rapidly changing habits of consumers of content have huge implications for lawyers and law firms eager to embrace social media and market themselves online.

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