Legal Feeds Blog
|Money laundering legislation makes lawyers into agents of the state, says John Hunter.|
“It’s a case that has national ramifications, which is why it’s not a surprise at all that the Supreme Court granted leave,” says Ottawa University law professor Adam Dodek.
In 2000, the federal government enacted the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and in 2002 passed similar money laundering regulations. The legislation required everyone, including lawyers, to report suspicious transactions, among other things.
The Law Society of British Columbia and the Federation of Law Societies of Canada brought a challenge to this in British Columbia, arguing lawyers should be exempt from the legislation because it poses a threat to solicitor-client privilege.
“Our view has been from the beginning that requiring lawyers either to report directly or to prepare reports for the benefit of state authorities really turns them into state agents in a way that’s completely incompatible with the historic relationship of lawyers to clients and the relationship of that to the administration of justice in Canada,” says John J. L. Hunter of Hunter Litigation Chambers in Vancouver, who represents the FLSC.
After receiving an injunction from a B.C. court that prevented the legislation from applying to the legal profession, along with a series of injunctions from other provinces, the federal government agreed to treat the B.C. case as the test case.
“It has been explicitly a test case from the beginning,” says Hunter. “It was agreed by the federal government lawyers that the result of the B.C. case would apply across Canada, so it does have on the face of it national importance.”
In 2010, the government amended its money laundering regulations with provisions that specifically applied to the legal profession, such as client identification and verification rules and reporting requirements of clients’ transactions. The FLSC took issue with this provision and challenged it.
Hunter argues the solicitor-client relationship is vital to the administration of justice.
“The Supreme Court of Canada has commented on [the solicitor-client relationship] many times, that it’s in a sense the grease that allows the system to work — the knowledge of the client that they can tell their lawyer exactly what happened knowing that their lawyer is not going to turn around and tell the government and cause the police to go after the client,” he tells Legal Feeds.
On Sept. 27, 2011, B.C. Supreme Court Justice Laura Gerow struck down the provisions on the basis that they interfered with solicitor-client privilege.
Earlier this year, B.C. Court of Appeal Justice Christopher Hinkson affirmed that decision on slightly different grounds, stating it interfered with the independence of the bar to an unacceptable degree, which is a principle of fundamental justice within the meaning of s. 7 of the Charter of Rights and Freedoms.
Hunter says this was the first time that had been said by a Canadian court, which he suspects is one of the reasons the SCC decided to take on the case.
SCC hears challenge of national security certificates, Toronto Star
Judge acquits 89-year-old peace activist who refuses to fill out census, The Globe and Mail
Magnotta, legal team absent from pre-trial, Winnipeg Sun
Judge rules creditors of bankrupt LightSquared can vote on competing plans, Reuters
Trade representatives opted to uphold ban on Samsung products, Reuters
Police in China target Internet 'rumours,' activists call it 'blow to free speech', Reuters
Suspect in notorious cybercrime case arrested in Russia, Reuters
It was the second in a series of CBA chats being hosted by Ha-Redeye every Tuesday in October from 7 to 7:30 p.m. Last week’s conversation focused on the objectives of legal education.
Ha-Redeye posed five questions to participants in last night’s articling discussion.
1. What is the most important thing articling gets right? What are the current system’s strengths?
Alex Shalashniy, an associate at Kanuka Thuringer LLP in Regina, wrote: “current articles get ‘real world experience’ right, something that totally needs emphasis after law school.”
Heather MacMillan, a partner at Miller Thomson LLP in Saskatoon, said: “in theory, articling provides ‘real world experience’ but that requires principal/firm that invests in process.”
Jonathan MacKenzie, who just completed his articles, agreed that your articling experience depends on your principal.
Another tweeter, identified as Valarie, a Harvard University law graduate who recently moved to Canada, said: “In principal [articling] makes sense, but if you’re going to a big firm it just seems like a way to keep salaries low.”
Shalashniy also mentioned articling rotations are key, especially for law students who don’t know what they want to practise.
“Exposure to many areas of law in articles will pay dividends in the future: more certainty, less burnout down the road,” he said.
2. Are there ways to preserve these articling strengths in alternative methods of professional training?
Shalashniy suggested cultivating more co-op programs in law schools.
Valarie said law schools are notoriously theory-heavy and suggested lawyers might need more management training.
Ha-Redeye also asked fellow tweeters what they think about legal clinics.
Valarie said “clinics are helpful, but there’s only so much you can learn in three months.”
Shalashniy said legal clinics are limited in focus.
3. What are the major limitations of the current articling system?
MacKenzie mentioned mentorship. “I think the mentorship aspect of articling (in many cases) has deteriorated. [I] have many colleagues that don’t get face time with principals.”
Toronto lawyer Monica Goyal said, “we’ve created a two tier system but I think the alternative of people not licensing was and is not an option.”
4. Which of the limitations above can be improved by revising the current system?
Lakehead University law student Ayoub Ansari said practical training can be taught through tutorials led by local lawyers, an initiative that Lakehead has started.
Ha-Redeye also asked why it’s difficult to get candid responses from articling students about their bad experiences.
Law student E Alderson replied: “because law students think there is a crisis, and we’re all desperately trying to get/keep jobs.”
Ha-Redeye quickly diverted the conversation. “Yes it’s the elephant in the room. But in the interest of being solution oriented, that’s not the focus tonight,” he said, adding, “We know, for example, that when studies are done anonymously law students tend to have a lot more to say.”
5. Describe your ‘ideal’ alternative to the current professional training system.
“Ideally students start practicums in 2L instead of summering and get a better idea for articling interviews held later,” said Shalashniy.
Tune in Oct. 15 at 7 p.m. using the hashtag #cbafutureschat for the next discussion, which will focus on necessary changes to legal education in Canada.
Hartslief v. Terra Nova Royalty concerned a contract reached by two solicitors regarding an employee’s termination.
The lawyers were named as Litherland, acting for Alan Hartslief, and Sangra, acting for the employer Terra Nova.
The lawyers agreed on a draft contract during a phone conversation on Dec. 10, 2012, and Litherland was under the impression all that remained was for each side to sign the documents.
However, Sangra thought they had agreed Terra Nova would not sign the agreement until the firm was satisfied Hartslief had returned books and records.
Terra Nova subsequently pulled out of the agreement and offered new terms that were unacceptable to Hartslief, who launched a lawsuit.
On Nov. 15, 2012, trial judge Justice Brian MacKenzie found both solicitors had been acting with authority to bind their clients, but that Sangra may not have communicated the conditional element of the contract to Litherland.
At an appeal on Sept. 20, 2013, Terra Nova argued the trial judge had erred in finding Sangra had the authority to bind his client on Dec. 10, 2012.
There were occasions during the negotiations when Sangra had said he would have to seek instructions from his client before he could respond to draft terms suggested by Litherland, said Justice Mary Newbury in an oral decision published yesterday.
“On this basis, counsel seemed to suggest that Mr. Litherland had been put on notice or should have known that Mr. Sangra did not have authority to bind his client in the discussions on Dec. 10,” she said.
But, she added: “I am not persuaded that the trial judge erred in ruling that Mr. Sangra had the authority to bind his client.
“Indeed, the fact Mr. Sangra had in the past had to seek instructions before agreeing to something, but did not do so when he agreed to the draft on the morning of Dec. 10, would seem to indicate that he had such authority on that occasion.”
Terra Nova’s counsel J. Groia had “cautioned us that the practice of commercial law might be adversely affected by the trial judge’s ruling in this regard,” she added.
But she pointed to the 2009 case Sekhon v. Khangura, which found: “It is in the interests of the administration of justice that solicitors be free to complete settlements with solicitors without having to enquire about or be concerned with the actual authority of the solicitor.”
Groia had “submitted that the question of the authority of a solicitor acting for a sophisticated party to bind his or her client is an important one.”
Newbury agreed, but said: “Unless a solicitor clearly communicates the contrary to those with whom he or she is negotiating, a solicitor is the agent of his or her client and thus may bind the client to an agreement such as this. After all, a solicitor ‘acts for’ the client.”
The appeal was dismissed.
Toronto lawyer set to challenge Nadon's appointment to SCC, The National Post
Hells Angels claim civil forfeiture law violates constitutional rights, Vancouver Sun
Lululemon struggles with overseas growth as it fights legal battle, Reuters
Judge struggles to find impartial jurors in Madoff employee trial, Reuters
Former Sentinel executive pleads guilty to fraud charges, Reuters
South African cellphone company lodges antitrust complaint against competitor, Reuters
China charges chairman of world's largest tin producer for accepting bribes, Reuters
|The constitutionality of Justice Marc Nadon’s appointment should have been decided by the top court, says the challenge. (Photo: Chris Wattie/Reuters)|
Nadon was officially sworn in as a judge of the Supreme Court in a private ceremony at the top court yesterday.
The notice of the challenge, filed with the Federal Court yesterday, names Prime Minister Stephen Harper, who nominated Nadon for the job, as one of the respondents.
When properly interpreted, s. 5 and 6 of the Supreme Court Act allows only for the appointment of Court of Appeal and Superior Court judges, or a lawyer who has been a member of the bar for at least 10 years, the notice reads.
“Conforming to constitutional requirements is always an issue, abiding by the law is always an issue,” Galati says.
Prior to Nadon’s nomination, Harper sought former Supreme Court justice Ian Binnie’s opinion on the matter. Binnie said, “There is nothing in the Supreme Court of Canada Act” that would prevent the appointment.
But Galati says it wasn’t up to Binnie to make that decision.
“We feel that the issue should not have been the subject of an opinion of a retired judge, but should have gone to the eight judges of Supreme Court on a reference if they had any doubt about it. There’s a lot to doubt here in terms of the ability to appoint Federal Court judges as Quebec judges,” he says.
In his written opinion to the prime minister, Binnie said other federal court judges, including justices Frank Iacobucci and Marshall Rothstein, have been appointed to the Supreme Court without controversy.
“That’s never an answer,” says Galati. “The fact of the matter is this has never been raised.
“The difference here is that the other federal judges were not from Quebec,” he adds. [Nadon] is the first one from Quebec. There are different provisions that apply.”
Binnie had also said although a Federal Court judge doesn’t fulfill one of the requirements for appointment to the top court — being a judge of either a Court of Appeal or a Superior Court — he meets the other criteria, which is having been a member of the bar for more than 10 years.
“In the English version the words ‘is or has been’ refer grammatically to both judges and advocates,” Binnie said. “If an individual has ‘at least ten years standing at the bar of a province’ he or she ‘is or has been’ such a member, and despite a lapse of time while serving the Federal Court, the s. 5 requirement is met.”
For Galati, Nadon is either a judge or a lawyer, and judges of the Federal Court cannot be appointed to the Supreme Court. Binnie’s reasoning is also “besides the point,” he says.
“There’s a lot of reasons the provision is there. One of the reasons with respect to the accommodation of Quebec is that you don’t want people being absent that long from Quebec and then purporting to be Quebec judges.
“[Nadon] has been a Federal Court judge for 20 years. The section doesn’t allow his appointment.”
Galati is also seeking an interim order to stay Nadon’s appointment.
Justice Minister Peter MacKay's spokesperson Paloma Aguilar told Legal Feeds: "Justice Nadon is qualified and we are certain he will serve the court with distinction. Constitutional experts agree that the Supreme Court Act allows for a sitting Federal Court judge to be appointed to the Supreme Court of Canada — this includes the opinion of former Supreme Court Justice Ian Binnie.”
Update 1:45 pm: comments from Justice minister
Update: 3:40 pm: Press release from the Supreme Court of Canada: "Mr. Justice Marc Nadon has decided, in light of the challenge to his appointment pending before the Federal Court, not to participate for the time being in matters before the Supreme Court of Canada."
Update Oct. 12: The Barreau du Quebec has asked Prime Minister Stephen Harper to refer Galati's challenge directly the the Supreme Court of Canada because it considers Nadon's temporary removal will adversely affect the rights and principles for a sound administration of justice, particularly in light of some of the major cases the court is hearing this session. "I have asked Prime Minister Stephen Harper to refer this matter directly to the Supreme Court of Canada, as allowed under the Supreme Court Act, instead of following the usual judicial process, which could be longer," explained Johanne Brodeur, Ad. E., battonier of the Barreau du Québec.
The Barreau du Québec
Edmonton police call for 'special criminal law' after police dog stabbed to death, The Globe and Mail
Police chief wants federal legislation changed to allow DNA sample on arrest, Montreal Gazette
Canada's Lululemon sees U.S. pension fund lead lawsuit against it, Reuters
First day back for Supreme Court sees justices divided over Stanford Ponzi scheme case, Reuters
Regulatory filing by Xerox says SEC investigating accounting practices at ACS, Reuters
Size of Gulf of Mexico spill disputed by BP lawyers, Reuters
European Union lawyers warn of 'limits' in building bank union, Reuters
The Supreme Court of Canada kicks off its fall session this week where there are a number of new things happening, including the swearing in of its newest member, Justice Marc Nadon, who replaces justice Morris Fish who retired at the end of August.
|The Supreme Court kicks off the fall session this week with its newest judge, Justice Marc Nadon, who was officially sworn in today. (Photo: Chris Wattie/Reuters)|
October 9 — Quebec — Babos v. R.
Criminal law: Antal Babos was pulled over by police officers because they had information regarding possession of firearms. When they searched his vehicle they found a prohibited semi-automatic gun in the trunk. Babos was arrested. Another man, Sergio Piccirilli, was arrested and held in custody until the trial judgment. The trial judge ordered a final stay of proceedings in both cases because the initial Crown counsel of record made repeated threats against Piccirilli, the conduct and testimony of the officers, and the fact that counsel had obtained Piccirilli’s medical record.
Read the Quebec Court of Appeal’s decision.
Other related news articles:
Errors quash drugs case, The Gazette
October 10 & 11 — Federal Court — Minister of Citizenship and Immigration v. Harkat
Constitutional law: In this in camera hearing, the SCC will hear an appeal involving, Mohamed Harkat, whom the government deemed inadmissible to Canada on security grounds for allegedly engaging in terrorism. Harkat challenged the constitutionality of the security certificate regime but it was upheld by the Federal Court and the Federal Court of Appeal. The Federal Court of Appeal ruled that destruction by CSIS of originals of conversations breached Harkat’s rights and sent the case back to the designated judge to reassess the reasonableness of the security certificate. There is a sealing order in the case.
Read the Federal Court of Appeal’s decision.
Other related news articles:
Secret Supreme Court hearing focuses on security certificate, CBC News
Mohamed Harkat no longer bound by GPS bracelet, other restrictions, Ottawa Citizen
|Parisa Nikfarjam says punishments for social media transgressions need to be contextual.|
The matter dates back to Oct. 18, 2011, when A.B., who’s gay, posted on Facebook: “We’ve failed yet again. I’m ashamed that this happens in Ontario schools. It’s difficult enough being an openly gay high school teacher in a small community. I can’t imagine being an LGBQT student. I strive every day not be part of the problem. From this day forward I will be part of the solution. To the homophobic Principal who told me that she didn’t think a gay teacher should be part of the GSA [gay straight alliance] — we need real leaders, not sheep.”
The school board took issue with the post for, among other things, reputational damage and the fact that, according to Hayes, “C.D. did not do what A.B. suggested had been done in his posting.” The union, in turn, admitted the posting was intemperate but suggested A.B. honestly believed “he had been the object of discrimination.” In addition, it noted Hayes was remorseful and had a clear record with more than 10 years of service.
In the end, Hayes found the school board had every right to impose discipline.
“The board had every right to be deeply concerned about the content of such a posting as did the principal who had every reason to be personally upset and angry. It would have taken no effort to identify C.D.; A.B.’s school was identified on his Facebook wall. I do not believe that the board’s concern about ‘reputational damage’ was in any way misplaced or exaggerated. The issues of particular concern to A.B. are also of great import to any school board. A.B. had no right to attack his principal, and implicitly his employer, in such a way.”
But he also considered the mitigating factors, including A.B.’s regret as well as his discipline-free record of service in reducing the discipline to a letter of apology and three-day suspension.
For lawyers like Rubin Thomlinson LLP associate Parisa Nikfarjam, the case is a reminder that social media postings “can be grounds for discipline or dismissal,” an area where the law is pretty clear. Where it’s not so clear, however, is on the severity of punishment.
Still, she notes the Simcoe case shows the need to take a contextual approach to the issue that considers the various factors at play, including an employee’s length of service and discipline history. While she can’t predict what might happen with any grievance in the high-profile firefighter case, she says the Simcoe matter highlights the fact that the law will treat social media issues in employment matters the same as other types of misconduct.
Harper cites human rights violations in boycotting visit to Sri Lanka, Toronto Star
Canadians released in Egypt, denied flight hoome as prosecutors 'weigh charges', The National Post
Investigation reveals Canada targeted Brazil's Mines and Energy Ministry, The Globe and Mail
U.S. Supreme Court to weigh in on 'pivotal' campaign finance case, Reuters
Bernard Madoff's 'inner circle' goes on trial for role in Ponzi scheme, Reuters
Belgium prosecutors demand answers over telecom spying investigation, Reuters
British court will hold inquest into death of Merrill Lynch intern, Reuters
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