The federal government wants to push through it’s “copyright modernization act” before the end of the year, but one critic asks what the rush is all about, especially when there are five copyright cases scheduled to come before the Supreme Court of Canada in the first week of December that could be related to current aspects of the act.

“There will be five cases heard in two days on Dec. 6 and 7, which is absolutely unprecedented in Canada,” says Howard Knopf, counsel with Ottawa’s Moffat & Co./Macera & Jarzyna LLP.

On Sept. 29, the federal government reintroduced bill C-11, the proposed copyright act. It will amend the current act in a several ways, such as making the circumvention of technological protection measures an infringement of copyright; amending fair dealing to include the purpose of education, parody, and satire; establishing an exception for user-generated content; and limiting the liability of Internet service providers.

C-11 is said to be identical to bill C-32, which was introduced into Parliament in 2010 and died on the order paper when the federal election was called.

Federal Heritage Minister James Moore has said he wants to get the bill through the House of Commons by the end of December, and hearings on the bill as it is currently proposed will be shortened.

“They’ve said they’re not interested in any change unless it’s extremely important,” says Knopf. “I think that’s unfortunate because while there’s a lot of good stuff in the bill, there’s also a lot of stuff that still needs some hard work and serious change.”

The last two major copyright revision efforts in Canada took place in 1988 and 1997.

“Those were majority government situations as well and were less controversial bills in much simpler times. I don’t know what the great haste is to get this done,” he says. “It would be much better that it be done right than done quickly.”

Knopf says bill C-11 is counter-productive to Canadian interests and can be improved. “Yes, hearings can take place on the bill at the same time, but we really should wait to see what the Supreme Court has to say as well.”

One of the cases coming before the Supreme Court in December is Province of Alberta, as represented by the Minister of Education v. Access Copyright, known as the K-12 case. It is thought to be the most important of the five cases because it will have implications beyond K-12 to the university level and to research and innovation.

From a business and innovation standpoint, Knopf says the bill as presented is behind the times. He points to the digital locks provisions and references to fair dealing and educational exceptions saying it “leaves a lot to be desired.”

“There are problematic aspects with respect to the digital locks. It’s almost oxymoronic to say we’re trying to encourage innovation and at the same time we’re allowing a handful of entertainment conglomerates and copyright lawyers to put locks and limits on innovative devices and content that creative engineers and artists develop and that consumers want to use and pay for,” he says.

The five copyright cases to be heard at the Supreme Court of Canada in December are:

• Province of Alberta, as represented by the Minister of Education v. Access Copyright.

• Sound v. Motion Picture Theatre Association of Canada: Whether soundtracks for movies and television programs are “sound recordings,” and whether there can be a tariff for section 19 remuneration for recordings that are part of a soundtrack.

Three appeals that deal with Tariff 22.A (Internet-Online Music Services):

• Entertainment Software Association and the Entertainment Software Association of Canada v. CMRRA/SODRAC Inc.: the use of music in video games, and whether download of a video game is a communication to the public by telecommunication.

• Shaw Cablesystems v. Society of Composers, Authors and Music Publishers of Canada: The role of ISPs in providing access to music websites.

• Society of Composers, Authors and Music Publishers of Canada v. Bell Canada: This will look at whether previews of music on music download websites are considered “fair dealing.”

Canada

Coroner declares new inquest into death of Ashley Smith, The Globe and Mail

Lawyer says RCMP tactics in sex-related civil suit are 'unlawful', The Province

Winnipeg woman gets one year in prison for drunken car crash, Winnipeg Free Press

United States

Supreme Court rejects online music downloading case, Reuters

Top court rejects Blackstone Group LP lawsuit appeal, Reuters

International

Italian court rejects request to suspend Berlusconi sex trial, Reuters

Egyptian court postpones TMG hearing, Reuters

Yesterday’s rumours about the merger of Norton Rose OR and Calgary-based Macleod Dixon turned out to be spot on. The global law firm’s foothold in Canada has increased dramatically as has its reach into the area of energy and mining law.

Norton Rose Group chief executive Peter Martyr, Macleod Dixon managing partner Bill Tuer, and Norton Rose OR managing partner John Coleman.

The two firms will be joining forces officially on Jan. 1, 2012. The new firm will be renamed Norton Rose Canada and with close to 700 lawyers, including those from Macleod Dixon in Calgary, Montréal, Ottawa, Toronto, Québec, Caracas and Bogotá, the new firm will become one of the three largest in the country.

This merger significantly increases Norton Rose’s resources across its six key sectors in Canada, particularly energy and infrastructure and mining and commodities. This also now gives Norton Rose a solid team in Calgary, which had been somewhat of a hole after the initial merger with Ogilvy Renault earlier this year.

For Macleod Dixon, which has always had a strong stable of large international energy clients, the merger allows for more global scope to serve them.

“Our decision to merge was the result of a detailed strategic review. Joining Norton Rose Canada is a major global step in serving our clients through a broader and more sophisticated international practice,” said Bill Tuer, Macleod Dixon’s managin partner. “We have had offices in emerging markets for 20 years and investment is flowing into and out of Canada more than ever before. This merger will allow us to assist our clients in most of the important markets around the globe.”

With the merger between Ogilvy Renault and Norton Rose Group, John Coleman has already been instrumental in changing the legal landscape in Canada. This latest announcement rocks the establishment even further.

“This is about creating a new Canadian powerhouse that can serve clients through its international platform,” said Coleman, managing partner of Norton Rose OR. “We will have unmatched strength and reach in the mining and energy business in Canada and throughout the world including Latin America. This merger also bolsters our operations in Calgary making us the market leader in western Canada.”

Coleman also noted the two Canadian firms have highly complementary strengths as well as similar cultures and values.

"We will remain proudly Canadian and the way we serve you locally will not change," said Coleman, who will continue as the managing partner of Norton Rose Canada's enlarged operations. Tuer will join the executive committees of both Norton Rose Canada and the international group.

The merger will also make Norton Rose Group one of the five largest international legal practices by number of lawyers, with more than 2,900 lawyers in 43 offices throughout Europe, Asia Pacific, Canada, Africa, Central Asia, the Middle East and Latin America.

“This is another very exciting move for the group and constitutes a significant step towards realizing our ambition of becoming one of the world’s leading providers of legal services,” said Peter M. Martyr, chief executive of Norton Rose Group.

Macleod Dixon’s origins date back almost 100 years in Calgary, an important energy capital. The firm also has offices in Toronto, Caracas, Bogotá, Moscow, and Almaty, Kazakhstan. It was the first Canadian law firm to open an office in Latin America in Caracas in 1997, where it is a top-ranked practice. Macleod Dixon also opened its first international office in Moscow in 1991, and in Kazakhstan in 1994.

The federal government has announced seven new appointments to courts across the country.

Randall Bocock joins the bench of the Tax Court of Canada.

Starting from the West, litigator Patrice Abrioux joins the British Columbia Supreme Court bench in Vancouver. A lawyer with Quinlan Abrioux in Vancouver, he replaces Justice J.S. Sigurdson, who became a supernumerary judge on April 4.

In Alberta, Craig Jones, of Felesky Flynn LLP in Calgary, heads to the Court of Queen’s Bench in that city. A tax and trusts and estates lawyer, he takes the place of Justice C.A. Kent, who moved to supernumerary status on May 18.

Saskatchewan’s Court of Queen’s Bench will see the addition of Richard Danyliuk, a lawyer with McDougall Gauley LLP in Saskatoon. His areas of practice included civil litigation and criminal and family law. He fills the vacancy left by Justice P. Foley, who became a supernumerary judge on Sept. 1.

In Ontario, Crown attorney Brian O’Marra leaves the Ministry of the Attorney General to take a spot on the Superior Court bench at the busy Brampton courthouse. A criminal lawyer, he has been a Crown in Halton region since 1993. He replaces Justice E.R. Kruzik, who became a supernumerary judge on May 7.

Moving to Quebec, Borden Ladner Gervais LLP’s Thomas Davis becomes a judge of that province’s Superior Court. A lawyer at BLG since 2000, his main areas of practice included labour and employment, workers’ compensation, and health, administrative, and education law. Davis will sit in Montreal, where Justice D. Richer resigned as of April 2.

In addition, Michael Wood of Burchell Hayman Parish in Halifax joins the Supreme Court of Nova Scotia. A lawyer since 1982, his practice areas include commercial litigation, professional discipline, human rights, professional liability, aboriginal rights, and administrative, municipal, and employment law.

The final appointment was to the Tax Court of Canada, where Hamilton, Ont., lawyer Randall Bocock of Evans Philp LLP replaces Justice P. Archambault. Archambault became a supernumerary judge on April 23.

Canada

Canadian sex offender, 71, arrested in California, National Post

Mississauga inquiry into mayor's dealings to be released, CBC News

More B.C. cases dismissed as courts struggle with delays, The Vancouver Sun

United States

Obama's healthcare law tops Supreme Court agenda, Reuters

Calif. governor signs bill against male circumcision ban, Reuters

International

ICC to investigate Ivory Coast election, Reuters

Italian court to rule on Amanda Knox appeal, Reuters

Joseph Arvay represented PHS Community Services Society in the case.

Canada’s top court has ruled that Vancouver’s supervised injection site for drug addicts should be exempt from federal drug laws.

In a unanimous decision, the Supreme Court of Canada dismissed the appeal in Canada (Attorney General) v. PHS Community Services Society and ordered the minister of health to grant an immediate exemption to the safe injection facility.

Insite has been in operation since 2003, offering a supervised environment for drug users without the fear of prosecution. In 2008, the federal government refused to extend Insite’s exemption from criminal laws outlined in the Controlled Drugs and Substances Act. The SCC ruled that the minister of health’s refusal to extend the exemption was in violation of the Charter of Rights and Freedoms.

Joseph Arvay, who represented PHS Community Services Society, expects the ruling will pave the way for other supervised injection sites in Canada.

“In so far as there is a similar need in other parts of Canada and in so far as the supervised injection sites are going to be operated in the same excellent way that Insite has been operated, there’s no reason for the government to deny an exemption,” he tells Legal Feeds.

In the decision, Chief Justice Beverley McLachlin wrote: “The notion of a supervised injection facility, although politically contentious in North America, has precedent elsewhere. Supervised injection sites have been used with success to address health issues associated with injection drug use in other parts of the world. . . .These sites are evidence that health authorities are increasingly recognizing that health care for injection drug users cannot amount to a stark choice between abstinence and forgoing health services.”

The Attorney General of Canada was hoping that the top court would overturn the British Columbia Court of Appeal’s ruling on the case, which upheld the trial judge’s decision that Insite should be exempt from federal drug laws.

Most importantly, says Arvay, the ruling means that lives will be saved.

McLachlin agreed. “Insite saves lives. Its benefits have been proven. There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation,” she wrote.

“The effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.”

Canada

Harper gov't cracks down on digital piracy in Canada, The Globe and Mail

Deliberating jury returns with 3 requests in Ariana Simpson trial, The Vancouver Province

Supreme Court set for landmark ruling on Vancouver safe injection site, Winnipeg Free Press

United States

U.S. court vacates "Don't ask don't tell" ruling on gays in military, Reuters

U.S. judge dismisses Toyota bellwether case for lack of jurisdiction, Reuters

International

UN court acquits two former Rwandan ministers of genocide, Reuters

Prosecutor says Amanda Knox killed her roommate 'for no reason', Reuters

A Quebec judge will not have his day in court after the Supreme Court of Canada dismissed his application for leave to appeal last week in a case where he was accused of judicial misconduct.

On June 20, 2007, Claude Provost, a Court of Quebec judge, was presiding over a preliminary inquiry in a case involving assault charges against a police officer. During the hearing, Provost said he didn’t believe the testimony he had previously heard from the complainants. One of the complainants, Roland Plante, stood up and addressed the judge without being asked and thanked him in what the judge considered a sarcastic tone.

Provost had Plante taken into custody but did not cite him for contempt and released him at the end of the hearing. Plante filed a complaint with the Conseil de la magistrature du Québec and an inquiry committee was established. The committee found that the judicial code of ethics had been violated and therefore allowed Plante’s application.

The Conseil reprimanded the judge based on the committee’s findings. Provost filed a motion for judicial review at the Quebec Superior Court alleging his judicial independence had been breached. The Superior Court dismissed the motion for judicial review and on Oct. 21, 2009, the Quebec Court of Appeal upheld that decision.

François Grondin, a partner at Borden Ladner Gervais LLP, represented Provost. He says the case questioned the boundaries of power that judges have in the courtroom. “I will readily admit that sometimes the boundaries are difficult to identify clearly, but we felt that this was a case where [Provost] was acting in accordance with recognized legal powers and which powers are designed exactly to deal with those exceptional situations,” he tells Legal Feeds.

“I thought it would have been a good occasion for the Supreme Court to sort of clarify . . . which boundaries are not clear and not agreed by all the provincial judicial councils,” he adds.

According to Grondin, several judges he spoke to about the issue asked: “If we cannot discipline our courts, who will?”

He proposes a happy medium. “I’m certainly not suggesting that judicial independence can protect judges from doing anything [or] from saying whatever they feel like.”

However, “there’s not one model judge for all judges,” he says. “You also have to respect their individuality and differences in personality and respect their discretion and judgment.”

Canada

Cdn lawyers exempt from money-laundering laws, CBC News

Ont. farmer convicted for distributing unpasteurized milk, The Globe and Mail

N.S. condom saboteur found guilty of sex assault in 2nd trial, The Chronicle-Herald

United States

More psychiatric care for Ariz. shooting suspect: judge, Reuters

Gov't bailout program paid suspicious legal fees: watchdog, Reuters

International

German court upholds ban on online gambling, Reuters

Australian newspaper found guilty of breaching race laws, Reuters

The Supreme Court of Canada will not hear an appeal from a Quebec company that sued the lawyers involved in a tax dispute over gaming machines.

From 1985-1992, Revenu Québec imposed sales tax on the use of gaming machines, such as ones used to play poker.

In 1989, 2731-9359 Québec Inc. was established to receive mandates from the companies distributing these gaming machines. It argued it should be reimbursed for the taxes paid, claiming about $15-20 million, at which time it retained the services of the defendants.

This was the first time the Quebec government was being challenged for taxing the gaming machines and as a result had to change the laws.

There was a series of administrative challenges to the assessments for 1985-89 and a test case. After the Quebec Court of Appeal ruled in favour of the test case in 1995, new claims were filed for 1991-92.
 
Due to disappointing results and financial losses, in 1998 Québec Inc. and others decided to sue the lawyers who were involved in the case for about $13 million, alleging professional misconduct.

Pierre Cantin of Lavery, de Billy, who represented the defendant lawyers, was surprised when the applicants filed for leave to appeal to the Supreme Court since the defendants had won the arguments at the Quebec Superior Court and Quebec Court of Appeal.

He says Québec Inc. and others obtained some reimbursement from the provincial government, but “the government plays hard ball in a case like that so they decided because of that the lawyers should be responsible. The courts said, ‘No way.’”