The federal government will seek to appeal to the Supreme Court of Canada an Ontario ruling that effectively legalized brothels across the country, Justice Minister Rob Nicholson said on Wednesday.

In Canada (Attorney General) v. Bedford, the Ontario Court of Appeal last month struck down a section of the Criminal Code that bars brothels, saying that forcing sex workers to stay on the street made it hard for them to take safety precautions.

The judges also upheld a section of the code that restricts street prostitution. Accepting money in return for sex is not illegal in Canada, but most related activities are. The safety of sex workers played a large part in the appeal court’s decision.

“The state response is out of all proportion to the state objectives,” the judges wrote. “While the provision is ostensibly aimed at protecting prostitutes from harm, it prevents them from taking measures that could reduce harm and at worst drives them into the hands of the very predators that the law intends to guard against.”

The federal Conservatives say the Criminal Code sections in question are sound. The Supreme Court of Canada will now have to decide whether to hear the appeal.

Nicholson told the House of Commons that Ottawa felt a “binding, national decision” was needed on the constitutionality of the laws on brothels and living on the avails of prostitution.

“Prostitution is harmful for society as it exploits Canada’s most vulnerable people, especially women,” he said.

Nicholson was reacting to a question in the House from Conservative MP Roxanne James, who said she was “absolutely horrified and saddened” by the Ontario ruling.

“Canadians . . . right across our great country are very concerned about this ruling and the impact it will have on women, families and our communities,” she told legislators.

The safety of sex workers has become a high-profile social issue in Canada since the trial and 2007 conviction of serial killer Robert Pickton, who preyed on prostitutes in Vancouver.

If the Ontario court’s decision stands, Ottawa may have to find new ways to regulate prostitution, perhaps by accepting legalized brothels of the sort found in Nevada.

The Quebec government is under fire from lawyers’ groups after refusing to sign a tentative deal reached last summer with government lawyers in the province.

The Association des Juristes de l’État has launched a bad-faith bargaining complaint against the province. (Photo: abdallahh/Flickr)

The 825-member Association des Juristes de l’État, which represents Quebec government lawyers and notaries who draft laws and defend them in court, has launched a bad-faith bargaining complaint against the province at Quebec’s labour relations commission. They claim the government has reneged on a clause in the agreement that promised to put the civil lawyers’ pay on par with criminal prosecutors.

the AJE is a member, accused the government of “holding the entire negotiated settlement hostage and threatening to return this part of the administration of justice in Quebec to the state of crisis that existed prior to the settlement.”

“Sadly, it would appear that the Quebec government has returned to its practice of negotiating in bad faith,” Chaffe said in a statement.

Louis Masson, the president of the Barreau du Quebec, also backed the AJE, urging the government to stop underfunding the justice system and calling the civil lawyers “essential to the proper functioning of our democratic society.”

The civil lawyers and prosecutors both went out on strike in early 2011 before controversial legislation sent them back to work two weeks later. In July 2011, the AJE and the government agreed a settlement that included a parity clause that would match civil lawyer compensation to their criminal prosecutor counterparts.

When the prosecutors reached their own deal in September 2011, the AJE claimed eight changes to their agreement based on the parity clause, which, according to Le Devoir could cost the government up to $10 million.

But the government has refused to sign the deal unless the AJE accepts its narrower interpretation of the parity clause. In a vote last week, two-thirds of the AJE’s members rejected the government proposal, paving the way for the labour commission complaint.

Another strike is out of the question, since the AJE members are still bound by the controversial back-to-work legislation enacted last year.

“Front-line government lawyers are the institutional safeguard that ensures that your provincial government acts lawfully. They play an essential constitutional role, often behind closed doors, speaking truth to power. They have the support of the CACC and they deserve the support of the public,” Chaffe said.

Canada

Que. proposes legislation to loosen liquor laws, The Gazette

Sask. couple who starved granddaughter jailed for 3 years, Calgary Herald

Man who killed wife can collect her life insurance: Ont. court, Toronto Star

United States

Judge approves MF Global payout up to $685M, Reuters

U.S. refuses to reopen 1970 Kent State shooting case, Reuters

International

Former PM paid Mafia for protection: Italian court, Reuters

Libya bans political parties based on religion, tribe, ethnicity, Reuters

Transparency will trump dark orders in the future as Canadian regulators push forward with a new framework to handle dark pools of trade orders from institutions.

A new regulatory framework for the use of dark orders will be in place this fall. (Photo: Mark Blinch/Reuters)

The Canadian Securities Administrators and the Investment Industry Regulatory Organization of Canada have announced they are implementing a new regulatory framework for the use of orders entered without pre-trade transparency, known as dark orders.

To implement the framework, amendments have been made to National Instrument 21-101 Marketplace Operation and to the Universal Market Integrity Rules, approved by the CSA on March 30. The rules will be effective Oct. 10, 2012.

The framework involves the following key messages:

• visible order priority: visible orders will have execution priority over dark orders on the same marketplace at the same price;
• meaningful price improvement: in order to trade with a dark order, smaller orders must receive a minimum level of price improvement, which is defined as one trading increment or half a trading increment for securities with a bid-ask spread of one trading increment; and
• minimum size: IIROC has the ability to designate a minimum size for dark orders. It is not doing so at this time, but the CSA and IIROC will monitor market developments to consider whether it should implement a minimum size.

The UMIR provisions will introduce a new regulatory approach to safeguard the price discovery process in Canadian equity markets and recognizes the increasing use of dark liquidity and balances displayed and dark liquidity for healthy price discovery, said Susan Wolburgh Jenah, IIROC president and chief executive officer in a statement.

“These proposals are intended to ensure Canadian equity markets continue to evolve in a fair and competitive manner that strengthens market integrity and investor protection.”

The initiative follows consultations with industry and stakeholders that began in 2009. The rules are designed to enable institutional traders to continue to execute large orders with minimal market impact, while ensuring investors with smaller orders receive meaningful price improvement when they trade with dark orders.

“We never had dark orders for the longest time but institutions sometimes had trouble executing their large orders because they figured everyone was always talking about them,” says Simon Romano, of Stikeman Elliott LLP, who suggests the new rules are probably a good thing for retail but not for institutions.

“When the big guys would tell their broker they want to sell one million shares and then they would go looking for buyers it leaks out and the market goes down because there is greater supply. So the theory of dark orders was to let it interact quietly and not show the big volume orders that could be price raising or lowering. In concept it’s a little troubling all of this happens in the dark,” says Romano.

The new framework allows for regulation of minimum sizes of large orders in the future.

“If they think it’s starting to impact the retail market it means they can put a threshold on it and it gives them a regulatory tool they didn’t have before,” says Romano.

Over time the framework is probably intended to discourage a greater move toward dark orders.

“With the threat of being able to regulate it and put a minimum size on it means people shouldn’t develop their whole structures to move baby orders to the dark side,” he adds.

The new rules allow exemptions for trades that have a value of more than $100,000. But for smaller trades, the new framework only allows dark trades in cases where one of the party finds a meaningfully better price than “light” trades available on the open market.

The rules will require light orders take priority over dark orders at the same marketplace, at the same price.

“To me it’s not interesting as a policy matter, it’s these rules about when retail orders get in the door and forcing big orders to interact with retail orders — in some ways it’s a very socialist system,” says Romano.

“If you have an order out there for 100 orders of one of the big banks and all these big guys are trading around you and they want to do a $100,000 order and they don’t want their order broken up but the law says your order gets to break it up because your price is a little better. It’s kind of sharing the wealth with the little people.”

Combined, dark liquidity makes up about five per cent of the total equity trading market share in Canada. Dark trading in Canada reached US$12.99 billion in March, the highest total ever recorded and over double the amount recorded in the same period last year, according to figures from Thomson Reuters.

Canada

Man charged in deaths of Alta. couple, The Globe and Mail

Tories secure majority in Alta. election, National Post

Ont. man charged after dog fatally stabbed, CTV News

United States

American Airlines begins court hearing with unions, Reuters

Supreme Court won't hear N.Y.C. rent control case, Reuters

International

ICC might investigate Mali war crimes, Reuters

Saudi man's jail sentence extended on father's request, Reuters

The Ontario government must stop requiring transgendered people to have surgery before they can change the sex designation on their birth certificates, the Human Rights Tribunal of Ontario has ordered.

Ruling in XY v. Ontario (Government and Consumer Services),  HRTO vice chairwoman Sheri Price considered the complaint of a male-to-female transgendered person that the requirement was discriminatory on the basis of unequal treatment on the grounds of sex and/or disability. The woman, XY, had in fact had a bilateral orchiectomy in order to change the designation on her birth certificate — which she did successfully — but she then went on to challenge the requirement before the HRTO.

The government’s response included a number of defences, including the argument that XY did in fact get her birth certificate changed and that the requirement advances the legitimate public policy objective of ensuring the accuracy of registered vital event data. It also argued the requirement was reasonable and bona fide with the meaning of the Human Rights Code.

Price, however, saw the issue differently and ordered the government to change the requirement. “I further find that the requirement that Ontario birth certificates reflect the sex assigned at birth unless a person has and certifies to the respondent that he or she has had ‘transsexual surgery’ is substantively discriminatory because it exacerbates the situation of transgendered persons as a historically disadvantaged group, and thus perpetuates their disadvantage,” wrote Price.

“In the alternative, the requirement that Ontario birth certificates reflect the sex assigned at birth unless a person has and certifies to the respondent that he or she has had ‘transsexual surgery’ is substantively discriminatory because it perpetuates stereotypes about transgendered persons and their need to have surgery in order to live in accordance with their gender identity, among other things.”

The Ontario Human Rights Commission, which intervened in the matter, is lauding the decision.

“Transgender people’s rights are human rights,” said chief commissioner Barbara Hall. “This decision is a welcome step forward in recognizing and promoting the dignity and equality of trans people.”

Price’s order gives the government 180 days to revise the criteria for changing the sex designation on a birth registration.

Canada

RIM hires law firm to work on restructuring plan, Ottawa Citizen

Ex-Liberal MP challenges election result in court, CBC News

Man acquitted in Air India bombing can't recover legal fees, The Vancouver Sun

United States

No remains found in search for N.Y. boy missing since 1979, Reuters

Del. judge fast-tracks lawsuit against Amylin Pharmaceuticals, Reuters

International

Italian court trims Parmalat founder's jail sentence, Reuters

Iceland court to rule on ex-PM's role in financial crisis, Reuters

Alain Perron

Ontario Chief Justice Annemarie Bonkalo has named a new judge to the Ontario Court of Justice this week.

Alain Perron will join the court April 25 in a bilingual position in Parry Sound.

Perron comes from a managing partner position at Wallace Carr Klien & Trenker and practised as an associate in criminal and family law after joining the bar in 1994.

Perron has prosecuted Provincial Offences Act matters for the City of North Bay and has acted as standing federal Crown for the Public Prosecution Service of Canada, in the past.

He has also been a part-time prosecutor for the Ministry of Transportation in Nipissing and was deputy judge in the Small Claims Court of the Superior Court of Justice. In his spare time, Perron has also held various executive positions with the North Bay General Hospital and the North Bay Crisis Centre.

Canada

Kingston, Laval prisons to close, CTV News

Judge to rule in RCMP, Que. corruption inquiry, CBC News

Proposed Man. law would help with missing persons cases, Winnipeg Free Press

United States

Goldman Sachs faces new insider trading investigation, Reuters

Proposed 'personhood' bill rejected by Okla. legislature, Reuters

International

Chinese court overturns woman's death penalty, Reuters

Australia's richest woman loses bid for private hearing, Reuters

The Supreme Court of Canada set new guidelines for determining the law of jurisdiction in a trio of decisions yesterday.

Brian Radnoff notes the SCC has made it clear that courts should not consider non-objective factors.

In dismissing the appeals in Éditions Écosociété Inc. v. Banro Corp, Club Resorts Ltd. v. Van Breda, and Breeden v. Black, the top court established certain factors to consider when determining whether a Canadian can sue a foreign defendant in a Canadian court.

In Van Breda, Justice Louis LeBel wrote that in a case involving a tort, the court should consider these factors:
“(a) the defendant is domiciled or resident in the province;
(b) the defendant carries on business in the province;
(c) the tort was committed in the province; and
(d) a contract connected with the dispute was made in the province.”

Lebel also recognized that in the future other factors might pop up that should be added to his list and put forth some consideration to guide judges down the road:
"(a) the similarity of this new connecting factor with the recognized presumptive connecting factors;
(b) the treatment of the connecting factor in the case law;
(c) the treatment of the connecting factor in statute; and
(d) the treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity."


Brian Radnoff, a partner at Lerners LLP, says prior to this ruling, the courts recognized non-objective factors like fairness and justice but now the Supreme Court has made it clear that courts should not consider non-objective factors in determining jurisdiction.

Overall, Radnoff says he’s satisfied with the decisions. “The test is logical and shouldn’t be difficult to apply, and it should assist in giving parties to litigation more certainty and reducing disputes and costs regarding jurisdictional issues,” he says.

Radnoff notes that it’s imperative to know when Canadian courts will take jurisdiction over certain claims. “We have an increasingly global marketplace. And in this country itself, commerce and any business activity increasingly occurs beyond the borders of any particular province,” he says.

“The issue of when Canadians can sue defendants in other provinces, in the U.S., and other countries is going to be of increasing importance because of the way our economy works . . . there are going to be disputes arising all the time,” he adds.

Van Breda dealt with personal injuries in a foreign country while Éditions Écosociété and Black related to Internet defamation.

“[Internet defamation] is an issue that’s going to be increasingly important,” says Radnoff. “In terms of those decisions, I would say they’re fairly plaintiff-friendly. So long as information published over the Internet is accessed and downloaded in the province where the action is commenced, that should be sufficient to give that court jurisdiction.”

One of the decisions he’s referring to is Black, in which the court ruled that Conrad Black can pursue his libel lawsuits against the authors of a report that he claims defamed him in Ontario, as his reputation in Ontario would be most affected. Read more about the Black ruling here.