Canada

Man in court to fight new Family Law Act, Vancouver Sun

Wounded soldier wins right to stay in military until pension qualification, The Globe and Mail

Mining firms face strict new rules as government 'cracks down' on foreign corruption, Toronto Star


United States

Changes to military sexual assault prosecution backed by Senate panel, Reuters

Broker's case sent back to SEC in rare move by appeals court, Reuters


International 

Chinese businessman gets prison time for selling $100 million in stolen software, Reuters

Class action lawsuit over European bank lending rate Euribor hits snags, Reuters

Canada’s conservative legal industry must overcome a vast array of “complex and compelling challenges” to remain viable, argues a Canadian Bar Association report published today.

Fred Headon and Allan Fineblit were in Toronto Tuesday for briefings on the CBA’s Legal Futures Initiative report. (Photo: Gail J. Cohen)

“The Future of Legal Services: Trends and Issues” sets out the economic factors, technological changes, and client demands forcing the profession to rethink traditional mindsets.

It warns: “Because of its relative success in the past, the legal profession in Canada is generally conservative. Psychological studies of lawyers have found that they are generally skeptical, autonomous and not resilient.”

They will need to be less “rigid” in future, for example by adopting different billing methods including fixed fees, the report argues.

“Emboldened” clients are increasingly questioning firms’ “basic value proposition”, and also expect to deal with lawyers via quick, electronic communications, it says.

Artificial intelligence will “become much more the norm in the coming years, including in the legal industry,” it adds. This could create time and cost savings for clients.

Alternative business structures already adopted overseas, including non-lawyer ownership, could migrate to Canada as markets grow closer together and competition increases, the publication states.

The document also highlights the problem of excess legal capacity in certain regions, and an undersupply of younger lawyers in other — mainly rural — areas.

It says: “Lawyers, law firms, and the overall legal industry in Canada will be facing a complex and compelling set of challenges over the next decade as they endeavour to remain viable, competitive and relevant in the face of a wave of fundamental change.

“. . . While these decisions may seem daunting to some people, they also present a vast range of opportunities for the profession to reinvent itself and thereby ensure that it remains dynamic and confident.”

CBA vice president Fred Headon said the report was aimed at providing a distinctly Canadian take on the industry and “transforming how legal services are delivered.”

It has been launched as the CBA enters the consultation phase of its Legal Futures Initiative. The initiative, which kicked off last August, is aimed at stimulating discussion and innovation.

Headon chairs the Legal Futures Initiative steering committee and said one of the goals is to “create a framework for ideas and to identify ways to help the legal profession understand the challenges ahead and shape the direction of the future – to the extent that that is possible.”

The initiative has teams examining three key areas of the industry:
1.    education;
2.    alternative business structures and innovation; and
3.    ethics and professional regulation.

At a briefing on the report’s release, Headon noted, “there are not only better way to serve the client but more clients to be had.”

While change could be very disruptive for lawyers, there is “plenty of opportunity if we come to it with a sense of confidence and not of fear,” he suggested.

Allan Fineblit, CEO of the Law Society of Manitoba and another member of the steering committee, stressed the importance of including all members of the profession — large firms, small firms, in-house counsel, the academy, law societies, and other professional organizations — in order to make change happen because there are “lots of rules regarding law firms that just don’t make any sense today.”

As part of the initiative, the CBA will be seeking input from lawyers, clients and non-legal and paralegal service providers. It is expected to report back in full sometime during 2014.

“Canadians deserve a vibrant legal profession that better responds to client expectation,” said Headon. “That is the purpose of this initiative.”

So who is favoured to fill the seat on the Supreme Court of Canada left empty by retiring Justice Morris Fish?

Chief Justice of Quebec Nicole Duval Hesler’s name is one considered a strong contender for a spot on the top court.

Minister of Justice Rob Nicholson announced today the members of the selection panel to advise on filling the vacancy for the Quebec region resulting from Fish’s retirement.

Many say it should probably be a woman with a debate over whether the person will come from Montreal or Quebec City.

Front-runners frequently mentioned include justices Marie-France Bich, France Thibault, of the Court of Appeal of Quebec as well as appellate judges and former McGill University law deans Nicholas Kasirer and Yves-Marie Morisette.

Bich is recognized by some for her writing but also her “connection to reality,” as one Quebec commercial litigation lawyer told Legal Feeds. “Some of the other professors on the Court of Appeal bench tend to forget that.” She was one of the top names bandied about to fill last year’s opening after justice Marie Deschamps retired.

Thibault, who is from Quebec City is thought to be a more natural fit when Justice Louis LeBel exits due to mandatory retirement next year.

“People also mention the Chief Justice of Quebec, Nicole Duval Hesler,” says Sébastien Grammond, dean of the civil law section of the University of Ottawa. “There are others such as Justice Francois Doyon. Another question is could they take someone from the Federal Court of Appeal? This is a possibility often overlooked.”

Doyon has significant criminal law experience, as did Fish, and is considered to be “well liked.”

Grammond points out that Justice Marshall Rothstein, who is currently the only Supreme Court judge who also sat in the Federal Court of Appeal, will retire in 2015 so it might be seen as being time to have another judge from the Federal Court of Appeal.

“Then you might think about people like Robert Mainville or Johanne Trudel who are Quebec judges on the Federal Court of Appeal,” he says.

There is also the possibility someone could be appointed directly from practice.

“That’s more difficult to predict because I would say it’s not obvious that the qualities needed to be a quality practitioner are the same skills to be a good Supreme Court judge,” says Grammond. “It’s more difficult to point to a leading lawyer as someone who make a good Supreme Court judge but names like Guy Pratte come up.”

Pratte is now a member of both the Ontario and Quebec bar and is widely known and well respected for his commercial litigation practice as well as his work on a number of public inquiries.

The selection panel announced today includes five MPs:

• Jacques Gourde, Conservative Party of Canada
• Shelley Glover, Conservative Party of Canada
• Robert Goguen, Conservative Party of Canada
• Francoise Boivin, New Democratic Party of Canada
• Dominic LeBlanc, Liberal Party of Canada

The mandate of the selection panel is to review and assess a list of qualified candidates put forward by Nicholson in consultation with the prime minister, the chief justice of Canada, the chief justice of Quebec, the attorney general of Quebec, and prominent legal organizations, including the Barreau du Quebec and Canadian Bar Association.

The Justice minister has also received public input with respect to candidates who merit consideration.

The selection process for the new Supreme Court judges is as follows:

• Members of the selection panel will meet to review the resumes provided by each candidate as well as a number of reported judgments and publications.

• Consult with the chief justice of Canada, the chief justice of Quebec, the attorney general of Quebec, the Barreau du Quebec, the Canadian Bar Association, and any other prominent members or organizations of the legal community the committee thinks would be valuable.

• All deliberations by panel members and consultations with third parties will be confidential.

• The selection panel will provide an unranked list of three qualified candidates to Nicholson and Prime Minister Stephen Harper.

• Harper and Nicholson will select a nominee from that list.

• The nominee will appear at a public hearing of an ad hoc parliamentary committee.

The hearing process — considered by critics as nothing more than window dressing — was first established by Harper for the appointment of Rothstein in 2006 and repeated with the appointments of justices Andromache Karakatsanis and Michael Moldaver in 2011 and Richard Wagner in 2012.

Canada

Authority for government to collect info on citizens without court order questioned, Reuters

Mountie pleads not guilty to perjury as Crown alleges he lied about tasering, Chronicle Herald

New law giving Royal baby succession even if female may need constitutional amendment in Canada, The National Post


United States

Lawyers for plaintiffs in Citi case seek $146 million in fees, Reuters

Obama administration withdraws challenge to all-age access to morning-after pill, Reuters


International

Blast outside Afghanistan's Supreme Court kills 8, Reuters

EU lawmakers 'rattled' by U.S. Prism spying program, Reuters

Peter Wardle has refused to recuse himself from the panel hearing Joe Groia’s appeal.

Toronto lawyer Joe Groia is seeking to have Law Society of Upper Canada Bencher Peter Wardle removed from the panel hearing his appeal over an alleged bias related to Wardle’s firm’s actions on behalf of the Ontario Securities Commission and the LSUC.

“There is a reasonable apprehension of bias arising from the fact that partners and associates at Mr. Wardle’s firm, Wardle Daley Bernstein LLP, regularly represent the Ontario Securities Commission as prosecutors and are closely involved in proceedings at the OSC and that Wardle LLP also regularly represents the Law Society of Upper Canada as prosecutors in discipline proceedings,” wrote Groia’s counsel, Earl Cherniak, in a June 5 notice of motion.

Groia is gearing up for his appeal of professional misconduct findings against him last year in relation to his courtroom tactics on behalf of John Felderhof on criminal charges stemming from the Bre-X Minerals Ltd. fiasco. The LSUC has been taking Groia to task for courtroom incivility as he aggressively challenged OSC prosecutors during his defence of Felderhof. A hearing panel recently suspended Groia for two months and ordered him to pay costs of $246,960. But Groia is appealing both the merits decision and the penalty with a hearing scheduled for Sept. 9 and 10. The penalty is on hold pending the appeal, and Wardle is one of five LSUC benchers assigned to hear the matter.

In his notice, Groia suggests the LSUC’s “prosecution of the lawyer has been and remains of continued interest to the OSC.” The notice then notes Wardle Daley Bernstein’s work as outside counsel for the OSC, including prosecuting cases on its behalf. In addition, an associate at Wardle’s firm reportedly assisted with the Bre-X prosecution, according to the notice of motion. “Given these circumstances, there can be no doubt that Wardle LLP and its partners and associates have a great deal of knowledge about the parties involved in the proceedings and an ongoing interest in the litigation and the result,” wrote Cherniak.

“Whatever Mr. Wardle’s own involvement may have been, a reasonable person properly informed would conclude that his firm’s connection to its client, the OSC, is deep, current, and multilayered. As the Wardle LLP firm owes duties of loyalty to its client, the OSC, this places Mr. Wardle in a clear and compelling conflict of interest.”

Besides the OSC issue, the notice also raises concerns about Wardle’s firm’s representation of the LSUC at tribunal hearings and in court. “A reasonable person would be concerned that the firm’s duty of loyalty to both clients could influence Mr. Wardle’s views on this appeal,” wrote Cherniak.

The LSUC has scheduled a hearing on the recusal motion for July 3. Wardle has refused to recuse himself, the notice of motion notes. Legal Feeds was unable to reach Wardle for comment by press time.

Finishing up its spring session this week, the Supreme Court of Canada will hear four appeals, including the highly anticipated hearing in the case regarding Canada’s prostitution laws. 

(Photo: Reuters)

June 10 — Saskatchewan — Rural Municipality of Britannia v. Acton

Insurance law: John Acton was seriously injured in a single vehicle rollover accident on a road maintained by the Rural Municipality of Britannia, which had hired Ron Handel Farm Ltd. to do certain work on the road. Action claimed the benefits he received through the Automobile Accident Insurance Act don’t fully cover his rehabilitation costs so he launched a tort action against the Rural Municipality of Britannia and Ron Handel Farm to recover damages. The chambers judge ruled that Acton wasn’t entitled to maintain the tort action. The Court of Appeal allowed his appeal.

Read the Saskatchewan Court of Appeal’s decision.

Other related news articles:
An insured is entitled to pursue a tort claim for his actual loss after deducting no fault benefits, Canadian Insurance Law Blog
 
June 11 — Alberta — Information and Privacy Commissioner v. United Food and Commercial Workers

Charter of Rights and Freedoms: The United Food and Commercial Workers union recorded a video and took photos of individuals crossing a picket line during a strike. Certain images were published on posters, newsletters, and leaflets. Complaints were subsequently filed with the Information and Privacy Commissioner of Alberta. An adjudicator held that the union was prohibited from collecting, using, and disclosing the video and photos without the individuals’ consent.

Read the Alberta Court of Queen’s Bench decision.

Other related news articles:
Alberta Court of Queen’s Bench finds Personal Information Protection Act, regulations, section 7 unconstitutional, ABlawg

June 12 — Federal Court — Bernard v. Attorney General of Canada

Charter of Rights and Freedoms: Elizabeth Bernard works for the Canada Revenue Agency. She declined to join the union and filed an application for judicial review of a consent order that authorized the disclosure of her home contact information to the union. The Federal Court of Appeal referred the matter to the Public Service Labour Relations Board. The board refused to consider Bernard’s Charter argument and held that disclosure of her information was authorized by the Privacy Act. The Federal Court of Appeal dismissed her application for judicial review.

Read the Federal Court of Appeal’s decision.

Other related news articles:
Karen Selick: Get the picketers off my porch, National Post

June 13 — Ontario — Attorney General of Canada v. Bedford

Charter of Rights and Freedoms: Former and current sex trade workers challenged the constitutional validity of parts of the Criminal Code that relate to prostitution. The trial judge found these provisions breach s. 7 and s. 2(b) of the Charter. The Court of Appeal allowed the appeal in part.

Read the Ontario Court of Appeal’s decision.

Other related news articles:
Sex workers, supporters march in Vancouver ahead of Supreme Court hearing in Ottawa, The Vancouver Sun

Ontario Appeal Court strikes down ban on brothels, CBC News

Update June 11: Bernard v. Attorney General of Canada will not be heard on June 12.

Canada

Botched case gives boost to calls for justices of the peace to have legal training, Toronto Star

Ottawa man accused of terrorist ties asks Federal Court for more freedom, The National Post

B.C.'s taser trial set to begin today, The Globe and Mail


United States

Florida court sees beginning of Trayvon Martin murder case, Reuters

LG patent case sent back to ITC, Reuters


International

China-Smithfield deal could run into problems over decades-old land laws, Reuters

Egyptian court unseals new evidence on demonstrator crackdown, Reuters

Bill C-54, the “criminally not responsible act,” is proposing a fix to a system that’s not broken, according to a Canadian Bar Association representative who appeared this week before the Commons committee on justice and human rights.

The CBA says there is no evidence to suggest added sanctions included in the government's proposed bill C-54 will make the public safer. (Photo: Shutterstock)

David Parry of the CBA’s national criminal justice section appeared before the committee with the CBA’s response to the bill, which opposes the reintegration of “high-risk” accused persons who are found not criminally responsible for their actions due to their mental illness. The bill proposes instead that such persons are held for up to three years in detention without a review.

The bill’s proponents say it would make public safety the “paramount consideration” when courts deal with those found not criminally responsible. But such consideration is already at the heart of review board assessments, according to the CBA, which says research shows that those found not criminally responsible are in fact held longer in hospital than if they had been found guilty and sent to prison.

“There is a delicate balance that must be struck between public safety and individual liberty when determining how best to handle accused persons who have been found not criminally responsible by reason of a mental disorder,” says Parry in a press release. “Substantial portions of bill C-54 threaten this critical balance.”

There is no evidence to suggest the added sanctions included in bill C-54 will make the public safer, the CBA said in its submission to the government, suggesting instead those sanctions could jeopardize the accused’s treatment, putting the public in danger.

“The concern we have with this legislation is that it’s unnecessary,” says Dan MacRury, chair of the CBA’s national criminal justice section. “It equates mental illness with violence.”

People found not criminally responsible due to mental illness “are patients, not prisoners.” MacRury tells Legal Feeds, adding there is also a constitutional overbreadth argument to be made on the bill.

“Bill C-54 sends the message that NCR accused who commit serious offences cannot be efficiently treated and should be afforded fewer procedural protections,” the submission reads. “It sends the message that the societal interest of treatment and reintegration of mentally ill offenders is less important than the needs of victims.”

On June 6, the University of British Columbia Faculty of Law celebrated the eminent career of Chief Justice Lance Finch, who is retiring from the B.C. Court of Appeal in 2013. (All photos: Katelyn Verstraten)