A Toronto immigration lawyer who claims Citizenship and Immigration Canada tried to drive him out of business has won a new review of his access to information request on ministry communications about him.

CIC initially withheld more than 400 pages of the 509 it found mentioning Forefront Migration Ltd. owner Timothy Leahy, claiming they were protected by solicitor-client privilege.

The ministry decision was confirmed by the office of the privacy commissioner and a Federal Court judge, but in a Sept. 4 ruling, a three-judge panel of the Federal Court of Appeal found shortcomings in the ministry’s actions. The court found it was unclear who had made the decision to withhold the documents, and that there was no indication of how the determination was made.

“The decision letter, signed by Ms. McManus, merely asserts the exemptions that apply. No further reasons are given. The record consists of a relatively thin affidavit, documents that have been produced to the appellant, and documents that have been withheld from the appellant. This material does not provide us with the basic information we need in order to discharge our role,” says the appeal ruling.

“It may be that some or all of the documents were properly withheld from Mr. Leahy. We are unable to render a decision on this view of the paucity of evidence before us. In that circumstance, it would be inappropriate to order the disclosure of any document. Instead, we remit to a different decision-maker for redetermination.”

Leahy wants to uncover the chain of events that led to a September 2007 CIC operational directive ordering visa offices to have no contact with him because he was “considered not to be an authorized representative” under the Immigration and Refugee Protection Act.

Because the Law Society of Upper Canada listed his status as “not practising law — employed,” CIC took the position that Leahy was not a member in good standing of a Canadian law society, a requirement for authorized representatives who are not licensed immigration consultants.

The CIC also sent out letters to any applicants that were listed as clients of Leahy’s instructing them either to find another representative or proceed self-represented with their applications.

A short time later, the issue was rendered moot when Leahy’s law society categorization changed to “practising law — employed,” and the CIC sent out a new directive in January 2008 indicating that he would now be considered an authorized representative.

“It destroyed my practice. People were being crucified because they were associated with me. . . . I still see action that I think are because I’m counsel,” Leahy told Law Times earlier this year, adding he was confident the withheld documents would reveal the “smoking gun” he was looking for.

The bad blood between Leahy and CIC goes all the way back to 2002, when Leahy was admonished by the Law Society of Upper Canada for directing improper correspondence to immigration officials sent out of indignation on behalf of his clients.

According to Leahy, the officials complained after getting riled by his strongly worded complaints about allegedly abusive behaviour by immigration officers towards his clients.

In one case complained of, according to Leahy, an immigration application filed on behalf of a 70-year-old rice farmer from Hong Kong was returned because Leahy had failed to include the man’s intended occupation in Canada. He sent it back again, writing “Federal court judge.”

Leahy ran into more trouble with the law society in 2004, earning a nine-month suspension (http://canlii.ca/en/on/onlshp/doc/2004/2004onlshp10/2004onlshp10.html) for practising while uninsured between 1997 and 2001.

Leahy argued at a hearing that he had not been engaged in the private practice of law, but that he was employed as corporate counsel for a company he had formed, a situation he believed exempted him from paying insurance fees. But a panel rejected his case, finding that his appearances for his company’s clients at the Federal Court constituted the private practice of law.

Canada

Deportation of women by Protecting Canada's Immigration System Act halted by minister, The National Post

Ex-VANOC head urges police to investigate claims against him, The Globe and Mail

Man convicted of harassing orcas with boat, Vancouver Sun


United States

U.S. Supreme Court has human rights, affirmative action, gay marriage cases waiting, Reuters

Man behind anti-Muslim film violates probation, held in jail without bond, Reuters


International

U.N. human rights council extends war crimes inquiry in Syria, Reuters

Environmental groups' legal challenge revokes palm permit in Indonesia, Reuters

There is an increase in the legalization of society, a Canadian Bar Association panel on legal aid heard yesterday. That increase means the need for lawyers across many areas that were once non-essential before have become vital now, noted criminal defence lawyer Richard Schwartz.

(r to l) Justice Susan Wishart, Richard Schwartz, Trish Kumpf, and Kasari Govender at A Day for Legal Aid. (Photo: Zack Myers)

Legislation is vast and complex with serious distributive consequences outside of the particular proceeding for unrepresented litigants, he noted.

Schwartz was joined by West Coast Leaf’s Kasari Govender, Trish Kumpf, representing the aboriginal perspective, and Justice Susan Wishart to weigh in on the budgetary constraints plaguing legal aid at the CBA-BC-hosted A Day for Legal Aid event at the University of Victoria Sept. 26.

CBA-BC President Kerry Simons provided a short guide through the website www.weneedlegalaid.com where personal stories, news, and how to get involved in the “we need legal aid campaign” is detailed by the CBA.

The Canadian justice system has its hallmarks despite the tough government cutbacks it has recently faced. Wishart was the first to speak on the issue and commented: “Our legal system is envied around the world. . . legal aid is critical to allow all to participate in the justice system . . . real justice means fair access. We need legal aid so that everyone’s rights are protected.”

The panel all agreed legal aid is an essential service experiencing significant cutbacks, particular in family law, where unrepresented clients are suffering serious repercussions. The distributive consequences and costs to society created by legal problems are magnified when individuals go unrepresented.

Unfortunately, with so many other items of significance between Canadian politicians legal aid is often overlooked as a real issue. A Day for Legal Aid was established as a catalyst to change that attitude, because our revered justice system will not remain without appropriate public and government financial support.

A Day for Legal Aid engaged a breadth of legal stakeholders with the Dean of UVic law Donna Greschner, several local lawyers, former assistant deputy minister responsible for legal aid Jerry McHale, and a large representation of UVic students  attending.

Ironically, the conference engaged many in the legal community engaged, but very few individuals from the general public were privy to it. Public engagement in a larger forum is the logical next step for A Day For Legal Aid, as it is the fundamental tool for political change.

In a highly anticipated ruling involving a fake Facebook profile of a Nova Scotia girl, the Supreme Court of Canada has sided with the victim, ruling that it is of the utmost importance to protect young victims of cyberbullying.

The 15-year-old victim, identified only as A.B., discovered on March 4, 2010 that someone had created a fake Facebook profile of her using her photo, which also had “unflattering commentary about the girl’s appearance along with sexually explicit references.”

Through her father, identified as C.D., the girl applied for an order to require Internet service provider Eastlink, which is owned by Bragg Communications Inc., to reveal the identity of the person(s) who used the IP address to post the profile.

A.B. requested that she remain anonymous and for the court to impose a publication ban on the content of the profile.

Upon discovery of this request, the Halifax Herald and Global Television opposed the publication ban and A.B.’s right to proceed anonymously.

In A.B. v. Bragg Communications Inc., Supreme Court of Nova Scotia Justice Arthur J. LeBlanc ordered Eastlink to disclose the information about the publisher of the profile on the basis that a prima facie case of defamation had been established and there were no other means to identify the publisher. However, he did not grant anonymity or a publication ban due to insufficient evidence of specific harm to A.B.

LeBlanc then stayed the part of his order requiring Eastlink to reveal the publisher’s identity until A.B. obtained a successful appeal to proceed anonymously or if she agreed to use her and her father’s real names.

The Nova Scotia Court of Appeal upheld this decision on the ground that A.B. did not demonstrate significant harm to her to justify restricting access to the media.

Both courts awarded costs in favour of the Halifax Herald and Global Television.

In today’s ruling, Supreme Court of Canada Justice Rosalie Abella, writing on behalf of the bench, partially disagreed with the two lower court rulings.

“In my view, both courts erred in failing to consider the objectively discernable harm to A.B. I agree with her that she should be entitled to proceed anonymously, but once her identity has been protected, I see no reason for a further publication ban preventing the publication of the non-identifying content of the fake Facebook profile,” she wrote.

Michelle Awad, co-counsel for A.B., says the top court’s ruling sets a precedent for all child victims of cyberbullying. “[The ruling] basically says that when a child is a victim of cyberbullying, they can take whatever steps are necessary to identify the bully without having to have their own identity known. So that, prior to now, had not been established,” she says.

Jane O’Neill, also co-counsel for A.B., says the ruling shows that the court is in tune with the reality of cyberbullying.

“It’s a good recognition by the court of the reality now for kids that with the Internet, bullying is immediate, wide-reaching, and permanent. So it’s not the same as your schoolyard bully,” she tells Legal Feeds.

Abella made this point clear when she wrote: “The girl’s privacy interests in this case are tied both to her age and to the nature of the victimization she seeks protection from. It is not merely a question of her privacy, but of her privacy from the relentlessly intrusive humiliation of sexualized online bullying.”

The decision also states that it’s important for young victims of cyberbullying to remain anonymous so that they feel safe in coming forward.

Awad wholeheartedly agrees: “There’s absolutely no reason why the public needs to know who this particular young girl is. She is one of many cyberbullying victims and given that she falls within the class in our society that has been found at law to be vulnerable and deserving of protection, there’s no need to know her name.”

She also argues that anonymity will protect A.B. from further victimization. “She was already the victim of this horrible bullying, and didn’t want to be further victimized through re-publication of the disgusting remarks associated with her name. So it’s important for her to be able to proceed anonymously in order to eliminate — or at least hopefully reduce as much as we can — the risk of further harm, given her vulnerability,” she says.

Canada

UN questions children's rights in Canada, Toronto Star

B.C. municipal leaders vote to lobby Ottawa over the decriminalization of marijuana, The Globe and Mail

South Sudan gangster to be deported after serving time, Winnipeg Sun


United States

Amnesty International calls California's solitary confinement cruel, Reuters

New York appeals court to hear Defense of Marriage Act discriminatory, Reuters


International

EU preparing formal charges against Microsoft, Reuters

European lawmarkers 'Russophobic', Russian official says, Reuters

McGill University’s Paul-André Crépeau Centre for Private and Comparative Law is hosting an international conference called “Stateless Law? The Future of the Discipline” on Sep. 28 and 29.

Dean Daniel Jutras says the theme of stateless law reflects the open-ended understanding of law embodied in McGill’s law school.

According to McGill Law Professor Shauna Van Praagh, the name and scope of the conference are inspired by the 10th anniversary of the first graduating class of McGill’s unique program of legal education.

“McGill’s Faculty of Law introduced a double-degree program in the fall of 1999 that integrates legal traditions and systems in the teaching and learning of law. The conference provides an opportunity both to celebrate the success of the program, and to reflect in a broader way on lessons learned and related challenges for all scholars and teachers of law.”

Dean of McGill’s Faculty of Law and Wainwright Chair in Civil Law, Daniel Jutras, says the theme of stateless law reflects the open-ended understanding of law that is embodied in the program of legal education at McGill.

“Once one is no longer constrained by the ordinary boundaries of legal education and research — no longer restricted to explore only the law of one’s state or jurisdiction — the question of the future of the discipline of law is unavoidable. What should we study, alongside our own national law? What counts as ‘law’ and how do we know it? The reference to a stateless law leaves open a number of answers to those questions.”

Van Praagh says what ties the presentations and panels together under the rubric of stateless law is “a willingness to challenge legal scholarship, legal education, and legal knowledge by questioning, dislodging, and/or re-conceiving the significance of the state.”

She believes the conference is most likely to attract law professors, law students, lawyers, and scholars with expertise in arbitration, international law, civil obligations and commercial law.

“We hope all attendees will feel like active participants, and will find ways to incorporate ideas and insights from the conference into how they think and practice as jurists.”

Asked who she is most looking forward to seeing at the conference, Van Praagh is hard to pin down.

“The easiest answer is to list our outstanding plenary speakers: Ernest Weinrib, Annelise Riles and John Gardner. Everyone attending the conference will no doubt be inspired and provoked by their contributions, and the three presentations will serve as touchstones in the overall content, shape and tone of the conference.

“And yet, as a co-speaker with three academic colleagues, I could just as easily answer the question by saying that I’m looking forward to hearing what my co-panelists will say, and how our ideas will interact in our session and beyond. Finally, I am tempted to answer by saying that the best way to go into a conference is with a willingness to learn the most from perhaps unexpected places. That’s why it’s often the panel session that you choose from among two or three options that has the greatest impact on how we teach, write and do law.”

Adds Jutras: “Obviously, academics and students, both graduate and undergraduate, will find much to reflect upon at this conference, but lawyers, judges, arbitrators must also think carefully about the multiple layers and intersecting bodies of norms and rules that constitute the law today, and what it means to have and to maintain legal expertise. We think the conference is of interest to anyone who thinks about the changing shape of law in contemporary life.”

“Stateless Law? The Future of the Discipline,” will be held Sept. 28 and 29 at McGill University’s Faculty of Law. Accredited for continuing education hours. For more information see www.mcgill.ca/stateless.

Canada

Ontario public school system sued for advanced notice of lesson plans for Christian group, The National Post

Hep. C positive ex-prisoner sues federal government over no clean needle exchange, Chronicle Herald

B.C. mayor calling on provincial legislation to establish regulations against hoarding, Vancouver Sun


United States

Appeals court rejects blocking of 'show your papers' provision, Reuters

Probe of HSBC set back by bureaucracy, Reuters


International

Brazil court orders anti-Islam film off of YouTube, Reuters

Ukraine to halt libel law change after press expresses outrage, Reuters

A flood brought an abrupt halt to proceedings at the Ottawa courthouse on Elgin Street Tuesday morning, forcing the building to be evacuated and shut down for the day.

(File photo)

The courthouse was closed at 10:30 a.m. after a water main broke just outside the Laurier Street entrance to the building, causing water to pour in.

“Repairs are underway and it’s anticipated that the courthouse will re-open tomorrow,” said Rick Haga, executive director of the County of Carleton Law Association.

Cases including a police sergeant’s high-profile sex assault trial were postponed due to the burst pipe. Ottawa Police Sgt. Steven Desjourdy’s sexual assault trial had been scheduled to continue today.

When service workers shut off the water main it shut off the water to the courthouse and city hall.

The lack of running water for toilets and other necessities created a health and safety issue, which prompted officials to close the building.

“We were about to recommence a jury trial and it turns out there’s been a pipe that broke in the criminal vault downstairs where they keep the exhibits and things and it was filling up with water,” says James Foord of Foord Davies LLP and president of the Defense Counsel Association of Ottawa. “I guess whenever they have that type of situation the water will keep flowing until it fills the room which could include the cell block.”

Foord says everyone in custody awaiting bail hearings or sentencing had their matters adjourned until Wednesday morning.

It is the second flood this year at the courthouse. Earlier this spring a water system on the roof broke and leaked into the judges’ chambers and courtrooms.

“The Superior Court judges actually lost a lot of chambers and a couple of courtrooms and the pre-trial areas were water damaged and not able to be used,” says Foord. “It’s a bit of an infrastructure disaster.”

A Vancouver lawyer begins a steep ascent today in a bid to raise money for Alzheimer’s disease.

Barbara Devlin will spend the week climbing Kilimanjaro for charity.

Barbara Devlin, a partner at Alexander Holburn Beaudin + Lang LLP, will climb Mount Kilimanjaro in Tanzania as part of the 2012 Ascent for Alzheimer’s fundraiser in support of the Alzheimer Society of British Columbia. She’s part of an 11-member team that has already raised $200,000, a figure well beyond the $10,000 the event requires each climber to bring in. The firm supported and contributed to Devlin’s efforts, says firm business development co-ordinator Alison Stapleton.

Devlin herself has done lots of community work related to the elderly. She’s on the board of the Victorian Order of Nurses’ B.C. branch and is an advocate for the VON Family respite centre, which provides programs for families with dependent adult relatives living at home. In addition, she has a background in the health-care field through her previous work as a physiotherapist.

The climb up Mount Kilimanjaro will take place over a seven-day period starting today. Devlin and the other climbers all covered their own expenses. They’ll make the nearly 6,000-metre climb with the help of B.C. guide Sue Oakey and Tanzanian leader Seamus Brice-Bennett. The event has raised more than $2 million during the last 15 years.

This year’s climb is also noteworthy for the presence of a couple in their 80s as part of the group. Martin Kafer, 85, will become the oldest person to climb Mount Kilimanjaro on successful completion of the climb. He’s making the trek with his 84-year-old wife Esther.

“I expect I’ll do it,” the avid climber told the Vancouver Sun recently. “I feel great. You gotta keep going, you know. You don’t stop halfway there. If you’re going to keep yourself alive, you have to do the things you like.”

After a long battle, Vancouver’s downtown eastside sex workers will finally get their day in court after the Supreme Court of Canada granted them public interest standing to pursue their claims.

(Photo: Reuters)

In Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society, former sex worker Sheryl Kiselbach and a group representing sex workers in Vancouver’s downtown eastside won the right to challenge sections of the Criminal Code that prohibit sex workers from soliciting sex in public, keeping a common bawdy house, and transporting someone to a common bawdy house.

They argued that these prohibitions violate several of their Charter rights, including freedom of association, freedom of expression, liberty and security of the person, and equality.

Kiselbach and the society initially launched their legal challenge in 2007. The B.C. Court of Appeal granted the group public interest standing in its 2010 decision. The Attorney General of Canada appealed this decision to the top court, arguing that only litigants charged under the laws could challenge them.

However, the SCC thought otherwise. In granting public interest standing, it considered three factors:
1) whether there is a serious justiciable issue raised;
2) whether the plaintiff has a real stake or a genuine interest in it; and
3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.

In regards to the first factor, Justice Thomas Cromwell, writing on behalf of the court, noted: “Indeed, the respondents argue that the impugned Criminal Code provisions, by criminalizing many of the activities surrounding prostitution, adversely affect a great number of women. These issues are also clearly justiciable ones, as they concern the constitutionality of the challenged provisions.”

Addressing the second factor, he wrote: “The society has a genuine interest in the current claim. It is fully engaged with the issues it seeks to raise.”

The third factor was a bit more complicated. “[B]eing a witness and a party are two very different things. In this case, the record shows that there were no sex workers in the Downtown Eastside neighbourhood of Vancouver willing to bring a comprehensive challenge forward,” wrote Cromwell.

“As I see it, the willingness of many of these same persons to swear affidavits or to appear to testify does not undercut their evidence to the effect that they would not be willing or able to bring a challenge of this nature in their own names. . . . Many difficulties might arise in the context of individual challenges given the evidence about the circumstances of many of the individuals most directly affected by the challenged provisions.”

Elin Sigurdson, co-counsel for the Downtown Eastside Sex Workers United Against Violence Society, says most importantly, these laws cause sex workers’ jobs to be very risky.

“Each of those laws on their own, but also together, have the effect of moving sex workers into the most dangerous possible circumstances in terms of conducting their work,” she says.

Because these laws prevent sex workers from communicating for the purpose of prostitution, working indoors, and working together, they become marginalized, says Sigurdson.

“All of these factors mean that sex workers who are actually doing something that’s not otherwise illegal — it’s not illegal to exchange sex for money — have to do it in a way that is extremely dangerous and marginalized,” she says.

Now that they’ve been given the go-ahead, Sigurdson says the plan is to go to trial but there are many decisions that lie ahead, including whether to co-ordinate their timing with the Canada (Attorney General) v. Bedford case from Ontario.

On March 26, the Ontario Court of Appeal struck down the ban on bawdy houses. The federal government has since filed an application for leave to appeal this ruling with the Supreme Court.

“I do hope there’s a trend [in Canada] towards recognizing that sex workers are human beings and deserve to have their dignity respected, deserve to be heard, and have their expertise understood,” says Sigurdson.