Legal Feeds Blog
History today was made as the Supreme Court of Canada declared all non-status and Métis Indians to be, without exception, “Indians” under the Constitution — and afforded all rights therein.
|Lawyer Jason Madden says he was pleasantly surprised at how far the court was willing to go to bring Métis and non-status Indians into the fold.|
The ruling, Daniels v. Canada, is the fruit of a legal battle initiated more than a decade ago by the late Métis leader Harry Daniels, who sought on behalf of Métis and non-status Indians a three-part declaration:
1. that Métis and non-status Indians are “Indians” as the term is used in s 91(24) of the Constitution Act, 1867,
2. that the Queen owes a fiduciary duty to them as such,
3. and that they have the right to be consulted by the federal government on a collective basis, respecting their rights, interests and needs as Aboriginal people.
At trial, the court dismissed the second and third declarations, but ruled that Métis and non-status aboriginals were indeed Indians under the Constitution.
The Federal Court of Appeal, however, narrowed that definition last year, excluding non-status Indians outright and ruling that only Métis who met certain criteria under the SCC’s 2003 decision in R. v. Powley could be deemed “Indian.”
Today, a unanimous panel of nine judges set aside the appeal court’s narrow definition and granted constitutional rights to all Métis and non-status Indians. And while the decision, written by Justice Rosalie Abella, similarly dismisses the second and third declarations, it does so only because fiduciary and consultative duties are presumptive under the first declaration.
“There is no need to delineate which mixed ancestry communities are Métis and which are non status Indians. They are all ‘Indians’ under s. 91(24) by virtue of the fact that they are all Aboriginal peoples,” the decision states.
“The historical, philosophical, and linguistic contexts establish that ‘Indians’ in s. 91(24) includes all Aboriginal peoples, including non status Indians and Métis. The first declaration should accordingly be granted.”
Jason Madden, who represented the Métis National Council, says he was pleasantly surprised by the emphatic language used by Justice Abella, and how far the court was willing to go to bring Métis and non-status Indians into the fold.
“We got the trifecta today, and we weren’t expecting it,” he says. “We were clearly expecting number one, which was inclusion, but they went even further to say, ‘On fiduciary relationships, we will reaffirm what we’ve already said, and on the duty to negotiate . . . we’ve already recognized it.”
Madden calls the decision “elegant” in the way it “walks around” the issue of whether non-status and Métis aboriginals should be forced to meet criteria before being deemed Indian enough to demand consultation and negotiation.
As the decision explains, s. 91(24) and s. 35 in the Constitution play different roles: the former sets out jurisdictional obligations owed to aboriginals; the second creates a framework for land claims and treaty negotiations.
So, while Métis and non-status aboriginals are all collectively “Indians” under s. 91(24) of the Constitution, individual native bands, along with Métis and non-status Indians, must be assessed on a case-by-case basis — employing the framework set out under s. 35 and the criteria under Powley — when pressing cases around land claims and treaties.
That may not sound like a substantial victory, but until now Métis and non-status Indians have been denied jurisdictional responsibility or even a seat at the table.
“Because of the lack of accountability and the lack of certainty, these people have fallen through the cracks,” says Madden. “And the court is saying, ‘No longer . . . You cannot sit on your hands when you know there are rights and claims there and there is a positive obligation to negotiate.’”
Perhaps more importantly, Madden says the decision opens the door to wider reconciliation with Métis and non-status Indians, who’ve historically been disenfranchised and disregarded by both government and aboriginal groups.
“I actually like the way Abella starts it. She says that the curtains are opening wider on the stage, because previously Métis have been shuffled off the stage, and what she is saying is that reconciliation is about all aboriginal people, and that they need to be included on the stage.”
The Liberal government unveiled draft legislation today on doctor-assisted death which would apply to adults suffering incurable illness or disability but stopped short of extending it to minors or the mentally ill for now.
|Parliament will vote on the draft assisted-dying law by June 6. (Photo: Gail J. Cohen)|
The Supreme Court of Canada overturned a ban on physician-assisted dying last year but gave the new government of Prime Minister Justin Trudeau extra time to pass legislation, adding Canada to the handful of Western countries that allow the practice.
Trudeau, whose father declined treatment for cancer before his 2000 death, said Canadians were “extremely seized with this issue.”
“It’s a deeply personal issue that affects all of us and our families and all of us individually as we approach the end of our lives,” he told a news conference in London, Ont.
“The plan we have put forward is one that respects Canadians’ choices while putting in place the kinds of safeguards needed.”
Under the law, patients would have to make a written request for medical assistance in dying or have a designated person do so if they are unable. There would be a mandatory waiting period of at least 15 days in many cases, and patients would be able to withdraw a request at any time.
Patients would also have to be experiencing “enduring and intolerable suffering” and death would have to be reasonably foreseeable. Only those eligible for Canadian health services are eligible, eliminating the prospect of “suicide tourism.”
Critics are already calling out some aspects of the law. Toronto health law practitioner Mark Handleman says the draft law flies in the face of the Supreme Court’s decision in Carter v. Canada (Attorney General), which recognized that there are people who have conditions such as multiple sclerosis, which is debilitating but not terminal.
“There is a requirement that the patient’s death is ‘reasonably foreseeable,’ says Handleman. “What does that mean? Everyone’s death is ‘reasonably foreseeable.’ What isn’t foreseeable is the timeline, certainly for healthy patients but also for many people with terminal conditions. Medical complications, effective cures, and even a person’s will to live (or lack thereof) will affect the time line. What if death is ‘reasonably foreseeable” within five years? Ten years?”
The Supreme Court stipulated that a patient need not accept a particular, or any, treatment, notes Handleman. The legislation requires that the illness, disease, or disability also be “incurable.”
But “what if it is curable, but with a treatment the patient does not wish to accept?” he asks.
The government did not adopt suggestions from a parliamentary committee that had suggested the law should also apply to those who suffer only from mental illness, or those who put forward advance requests. It said those issues needed more study.
Polls show physician-assisted suicide has broad support in Canada but the issue has divided politicians in Parliament as they grapple with how to protect vulnerable Canadians while respecting their rights and choices at the end of life.
The Liberals will allow a free vote on the issue and not require its legislators to back it.
Handleman notes the government did not table the regulations setting out when and how reports of medical assisted death must be made, or to whom. He says, “if these are not available when the legislation is passed, what assurances of consistent application of the law, of protection of the vulnerable, of access to assisted death for all Canadians equally, do the people of Canada have?”
He also suggests that there will likely be court challenges to the legislation from those under the age of 18 who wish aid to die; persons with intolerable conditions that are not terminal — including people with serious mental disorders.
In December, a Quebec court ruled the province can implement Canada’s first law permitting physician-assisted death while the federal government decides on a framework for how to handle the issue.
The Quebec legislation recognizes the need for access to palliative care, says Handleman, while this federal legislation “does not address this valid concern about a significant shortage of this resource everywhere in Canada.”
With files from Reuters.
Assisted-dying law to be unveiled today, Canadian Press
Supreme Court to rule today on Metis, non-status Indian rights, Canadian Press
NEW YORK — The complex duties of today’s corporate counsel can be such a tightrope act — carefully walking among the board, the CEO and the law — that it’s surprising leotards and long balance poles aren’t given as part of the employment package.
|'There has been a revolution of GC’s role within their companies that has transformed both law and business,' says Ben Heineman. (Photo: Gregg Wirth)|
“There has been a revolution of GC’s role within their companies that has transformed both law and business,” said Heineman.
His comments came at an event sponsored by Thomson Reuters and the Harvard Law School, highlighting the public launch of his new book, The Inside Counsel Revolution: Resolving the Partner-Guardian Tension, published by the American Bar Association.
Indeed, the four main framework ideas Heineman described are not some dry, guiding principles; rather, they are the bedrock on which all day-to-day activities and interactions in the corporate legal department should be built. The four framework ideas for GCs include:
1. Fusing together high performance, high integrity, and sound risk management
Heineman said that successfully fusing these elements together at the corporate level not only mitigates risk but also achieves positive benefits within the company, the marketplace, and broader society. Think of it as a “corporation-specific optimization” that creates value for key stakeholders — from shareholders to employees and customers.
2. Becoming the needed lawyer/statesman
Today’s GCs are expected to be outstanding legal experts, wise counselors, and accountable leaders for the company, said Heineman, but that has to be balanced with a strict responsibility to the higher tenants of the law. “The first question should always be, ‘Is it legal?’” he said. “And the last should always be, ‘Is it right?’”
3. Resolving the partner/guardian tension
This is where the tightrope walk gets really tricky. GCs have to balance their duties to the company as an employee and stakeholder with their duty to guard the company from any legal missteps that could damage it. Heineman pointed out that GCs battle a lot of negative perceptions in this area, and attitudes about “company lawyers” as naysayers, being overly cautious, and hurting business are common and must be battled back. “As a GC, you owe it to the board to speak up, even though that may put you cross-ways with your CEO.”
4. Creating and maintaining an ‘integrity culture’
Heineman described this framework idea as one of the most important. The ability to articulate and define shared principles and practices throughout not only the corporate legal department but the company as a whole is vital, he explained, and management walking the walk is key. “It is this culture that will influence how people will feel, think and work,” he explained. “But the leaders have to live it.”
Heineman said instilling these framework ideas within a company have become more important — and more possible — as general counsel have become more “sophisticated, capable, and influential” within a company.
“They are now a core member of top management, participating in discussions beyond risk and the law, to include opportunities and business development,” he said.
University of Calgary law professor Alice Woolley has been appointed Calgary’s first ethics adviser. Woolley takes the role alongside Allen Sulatycky, a former associate chief justice of the Court of Queen’s Bench of Alberta, who has been appointed as the city’s independent integrity commissioner.
|Alice Woolley says her new job is to help city councillors navigate the ethical boundaries of their roles.|
Woolley, an outspoken academic who writes about legal ethics and professionalism, also has a background in administrative law. Her new role will be helping city councillors navigate the legality and ethics of their individual actions, she says.
“City council discharges a statutory function. They have a specific role that they occupy and there are things they should do in that role and things they shouldn’t do in that role,” says Woolley. “My job is just to help them navigate that boundary to the extent there are issues that they’re worried about.
“It’s not about helping them be good, upstanding citizens of the city of Calgary; they’re more than capable of doing that on their own. It’s just a question of in this role, there are things you ought to do and things you ought not do, and sometimes, like in all roles, the difference between those is not always obvious,” Woolley adds.
If complaints about members of city council can be resolved by an apology or via mediation, it would fall into Woolley’s role. Sulatycky would handle more complex complaints requiring full investigations and hearings.
Woolley will remain a full-time professor of law at the University of Calgary.
“I’m not leaving; I’m still going to be at the university and I’m still going to be writing things that get under the skin of people,” she says with a chuckle.
“It will be complicated to make it work time-wise but it’s not taking away my university job and I’d never have taken it if it was,” she adds.
According to Nenshi’s office, Sulatycky will be the first city integrity commissioner in western Canada. A former MP for Rocky Mountains, he previously served on various House of Commons committees and as parliamentary secretary to both the ministers of Energy, Mines and Resources and Indian Affairs and Northern Development.
Sulatycky was appointed to the Court’s Queen’s Bench of Alberta in 1982. He later became a judge of the appeal courts in Alberta and Nunavut before his appointment as associate chief justice of the Court of Queen’s Bench of Alberta. Sulatycky retired as a judge in 2013.
By June, Sulatycky and Woolley are to provide city council with a report with enhanced definition and scope of their roles. They’re also to present a plan to transition responsibility for the city’s whistle-blower program (as it relates to council members) from the city auditor’s office to the newly created integrity and ethics office.
Man charged with murder of Halifax yoga instructor, Canadian Press
Hundreds contesting payments from Lac-Mégantic settlement fund, Canadian Press
A new program in Calgary offers three free hours of advice to entrepreneurs and startups, in an effort to connect businesses to legal services they need to expand.
|‘We looked at what is being offered by large firms for startups and we saw an opportunity to provide a different kind of service,’ says Karen Keck.|
The firm calls this is a diagnostic consultation, and also provides a customized legal services plan for the business based on the meeting.
“We looked at what is being offered by large firms for startups and we saw an opportunity to provide a different kind of service,” says Karen Keck, a partner in Bennett Jones’ Calgary office.
Kelly R. Ford, an associate in the Calgary office, says the program started to take shape more than a year ago. Lawyers with the firm talked to a number of startups to find out what they needed most from a law firm as they built their businesses. The result was the program.
“We’ve seen startups get poor advice at the start of their business, and it’s disheartening to see them get started on the wrong path, and we wanted to provide them with high-quality advice that will help them grow,” says Ford.
The firm has teamed up with Innovate Calgary, VA Angels, District Ventures, and the Entrepreneurs’ Organization for the program. The program was designed after consultation with more than 10 representatives from startups, accelerators, incubators, and entrepreneurs.
“Entrepreneurs and startups have an opportunity to come and meet with us, which really helps us to develop and foster our relationship with them. After the consultation, we provide them with a report to help guide . . . what type of legal services they may require and then a Kickstart participant is then able to retain us, and we’ll provide the services we provide to all startups,” says Keck.
Ford says Kickstart is a “customized” and “bespoke” plan for startups and entrepreneurs on how to address any potential legal concerns. The firm then makes sure its fees are cost-effective and predictable for the client.
“The diagnostic consultation, and the report, they come at no charge,” says Keck.
“If we’re subsequently engaged to provide legal services, then we provide them at predictable rate to Kickstart participants. This is really the most important aspect of our rate . . . innovators have told us how important this is, so when they know what the cost will be up front, they can assess and budget effectively to work that into their startup plan.”
“When we were setting up the program, we went out and spoke with a lot of individuals in the innovation community and asked them, ‘What do they need? What’s important to them?’ and it really is budgeting,” says Ford. “When you’re working on an hourly model, they don’t have maybe a strong sense of how much it’s going to cost at the end of the day to get what they think they need done, done.”
So far, they’ve worked with startups and entrepreneurs in the energy sector, technology, retail, and retail distribution. They’d like to see the program grow and include people like social entrepreneurs.
Keck and Ford say the current economic climate in Alberta is not a barrier to innovation.
“We see that there’s an opportunity here. I think that innovation can play a meaningful role in the province’s recovery, and we really want to be part of that, on a national scale and provincially. I think the governments are interested in this, as well, and have stressed the importance of innovation at this time for Alberta,” says Keck.
Submissions are open for the third edition of the TrustLaw Index of Pro Bono, the world’s leading global pro bono survey.
|Law firms are invited to submit their pro bono data through an online survey before May 23.|
“Pro bono data matters,” says Serena Grant, the director of TrustLaw, a part of the Thomson Reuters Foundation. “This is the feedback we have received from firms large and small — whether used by a pro bono co-ordinator to advocate for better resources or a firm setting up its pro bono practice and wanting benchmarks on how their counterparts have structured their practices.”
The Thomson Reuters Foundation launched the TrustLaw Index of Pro Bono in 2014 to provide analysis on the key national, regional, and global trends shaping the pro bono marketplace, and to assess the pro bono participation of law firms on a country by country basis.
“Acclaimed pro bono surveys have long collected data on a national basis in markets such as England and Wales, the U.S., Australia and even in parts of Latin America. Yet, there was not a comprehensive report mapping trends and measuring pro bono engagement on a global basis until we created the TrustLaw Index of Pro Bono,” adds Grant.
In Canada, Canadian Lawyer conducted the first survey of pro bono activity in this country in 2014.
Its unique global reach allows the TrustLaw Index of Pro Bono to unearth relevant, yet previously unexplored trends in pro bono markets from Cambodia to Germany to Colombia, highlighting successful programs as well as identifying gaps in pro bono participation.
“Since different cultures and jurisdictions hold diverse attitudes to pro bono, we created a definition of pro bono that allows for consistent submissions globally, and that enables comparison across the findings,” explains Grant.
The TrustLaw Index of Pro Bono also recognizes the role of local law firms in advancing pro bono, especially in jurisdictions such as India, which restrict the operation of foreign law firms.
The findings challenge the conventional notion that international law firms are better resourced to commit to pro bono practices. Rather, the TrustLaw Index of Pro Bono is a platform where firms of all shapes and sizes can share their experience and expertise.
The 2015 findings unveil an incredible enthusiasm for pro bono with 2 million hours of free legal support provided by the 140 respondent firms across 76 countries, and an average of 43 hours of free legal assistance invested annually by individual lawyers.
In Canada, the Index reported that fee-earners at respondent firms on average performed 14.8 hours of pro bono work in 2015. The Index compared Canadian firms with other firms across the Americas (though excluding the U.S. given the very significant resources devoted to pro bono there) and found that Canadian lawyers performed broadly the same amount of pro bono on average to their colleagues throughout the region (14.8 hours compared to a regional average of 14.6).
It is well known that Canadian lawyers have worked to promote access to justice through both legal aid and pro bono work for many years, and this has generally been conducted at a provincial level. In recent years, however, with the founding of Pro Bono Canada in 2012, pro bono in the country has become more organized on a national scale.
This year’s Index aims to explore this trend further, welcoming feedback from Canadian law firms on their pro bono service to build a more comprehensive picture of the country’s pro bono landscape. Law firms are invited to submit their pro bono data through an online survey before May 23.
“More and more around the world, barriers to pro bono are falling, participation is up, and lawyers are excited to make a difference in their jurisdictions and beyond. This sea change is happening in no small part thanks to the TrustLaw Index of Pro Bono. It is an aspirational tool for us to gauge how we’re doing, and inspires us to do more,” says Louis O’Neill, pro bono counsel at White & Case LLP, in anticipation of the 2016 TrustLaw Index of Pro Bono.
Findings of the 2016 TrustLaw Index of Pro Bono will be launched July 18.
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