Katie Sykes, a law faculty member of Thompson Rivers University, has written a paper that outlines international support for the formation of global animal protectionism. It argues law rather than science played a main role in arriving at two landmark decisions.
|‘Science can only inform, and cannot ultimately decide, the legal questions’ around issues such as whaling. (File photo: Issei Kato/Reuters)|
It has been accepted for publication in the European Journal of International Law and looks at two significant 2014 international legal decisions that make major strides in the protection of species. They are the World the World Trade Organization’s ruling upholding the EU law banning seal products, and the decision of the International Court of Justice that Japan’s Antarctic whale hunt is not exempt from the international moratorium on commercial whaling because it does not qualify for the scientific research exemption under international whaling law.
Science plays an important role in both decisions but the paper finds that the decisions are based more on legal arguments with science as a foundation of the arguments.
“Both cases, as well as the broader international controversies over whaling and sealing in the context of which they arose, illustrate the persuasive power of the ‘appeal to science’: enlisting scientific objectivity and rigour to underpin the credibility of legal arguments and legal norms,” says the abstract.
“But the role of science in both cases, while important, is only auxiliary. The questions that the WTO and the ICJ had to resolve were fundamentally legal ones concerning the interpretation of the relevant treaties. The cases also implicated more profound questions of policy and ethics at stake in international conflicts over the protection and the exploitation of marine mammals.”
The abstract and paper can be found at on the Social Science Research Network.
A Quebec judge rejected Canadian Pacific Railway Ltd.’s challenge to a settlement for victims of the Lac-Mégantic crude-by-rail disaster on Monday, clearing the way for compensation payments
|An emergency worker stands on the site of the train wreck in Lac Megantic, July 16, 2013. (Photo: Reuters)|
Forty-seven people were killed and the downtown core of the town was destroyed following the derailment of a train carrying Bakken crude oil.
CP transported the tank cars of oil involved in the accident to Montreal before handing them over to the now insolvent Montreal Maine & Atlantic railway, which was operating the train at the time of the crash. CP has argued that it should not be held responsible for the tragedy.
Unlike other companies targeted by a Lac-Mégantic-related class action lawsuit, CP did not agree to the settlement and challenged the provincial court’s jurisdiction in approving the deal. CP also asked the Quebec court to shield it from future litigation.
In his judgment, Quebec Superior Court Justice Gaetan Dumas dismissed CP’s motion as a “not so subtle attempt” to disrupt a settlement that called for $430 million in compensation for victims of the rail tragedy.
Although CP is not part of the fund and thus would not be on the hook for any of the promised funds, it is being threatened by a separate lawsuit.
A spokesman for CP said the company is currently reviewing the judge’s decision and has no further comment at this time.
|Distracted driving in B.C. (ICBC)|
ICBC figures record 88 fatalities on average per year from distracted driving (most are attributed to use of electronic device use) with the figure surpassing drunk drivers (86) and only second to speeding in roadway fatalities (105).
Anton called for a month of public consultation with feedback on electronic device use while driving and penalties either directed through the justice ministry’s website, by e-mail, or snail mail from June 16 to July 16.
Police report that in 2014, 55,100 tickets were issued to drivers for mainly electronic device use, up from 2013 when 53,000 were issued. B.C. introduced legislation prohibited the use of electrical devices while driving in 2010. In the fall of 2014, it increased the penalty and fines to $167 (the second lowest in Canada) and three demerit points. (Ontario recently passed legislation enabling the maximum fines to rise from $500 to $1,000).
As B.C. wrestles with the issue of how to get drivers adhere to s. 214.2 of the B.C. Motor Vehicle Act, ICBC has struggled with rising insurance claim costs with distracted driving adding $500 million to claims since B.C. first introduced the cell phone law in 2010.
“We don’t seem to want to give up our phones,” says Kyla Lee of Vancouver’s Acumen Law Corp., who represents an average of two individuals with such violations a week in traffic court.
She’s not surprised as distracted drivers have a higher fatality rate than drunk drivers.
“We are on our cell phone 24-7, while most impaired driving offences take place between midnight and 3 a.m.,” says Lee.
Most people, she says, pay the fine and accept the demerit points, but when it turns into a situation that impinges their driving ability, they walk through her door. The penalty for receiving more than one distracted driving ticket in a year is at least $634, the equivalent of two fines and a $300 penalty premium for accumulating six points.
Despite the potential to stack up points, B.C. drivers seem glued to their devices. “People are not getting the message,” Lee says, adding that she has had and heard of cases where individuals have gotten four and five tickets and “still won’t stop using their phone”
Vancouver criminal lawyer Cathryn Waker, with Mickelson and Whysall Law Corp., agrees. She is familiar with cases where the tickets have climbed to 10 or more.
Waker says she’s also seen many new drivers, who aren’t allowed to use a device even if it’s hands-free or voice activated, who are running afoul of the law. Those still under the 24-month probationary period of the graduated licences can also face licence suspensions in addition to regular fines and demerits.
Lee says the courts are tough on offenders. “The justices of the peace are giving that person a stern lecture as well as the fine,” she says.
She adds there isn’t much wiggle room in the way the law is written, even though clients argue that police can’t prove it was a cell phone being used. She says the excuses such as the driver claiming he or she had a bar of soap or a wallet in their hand is not flying in the courts. “Who holds their wallet to their face?” she says. “The courts seem to be quite tired of those excuses.”
As B.C. moves to be bring forward more punitive measures for drivers fixated on their devices, fighting such tickets are also expected to become more difficult. B.C. is in the process of taking traffic violations out of the courts with a two-step process with the first phase a move to e-ticketing, now being implemented.
With e-ticketing, once the police officer uploads it in his vehicle and gives the driver a ticket, the offences is immediately in the judicial system. Tickets are payable online.
For those who want to contest a ticket, it’s an appearance before Driving Notice Review Board. But before the hearing, the person must supply their own evidence. The police officer, or another officer, does not have to supply evidence beyond the ticket, says Lee.
The decision of the board is final with no recourse to an appeal or taking the issue into court, says Lee, who has been an outspoken critic of the new system. She claims it as strips motorists of their basic constitutional rights when charged with an offence.
No dates have been set for start-up of the new system.
Penticton lawyer Charles Albas has been ordered to pay a fine of $7,000 and hearing costs of $1,736.25 to the LSBC for professional misconduct resulting from a conflict of interest when he failed to advise a client, who wanted Albas and his wife to share in her estate, to seek independent legal advice.
“There is no evidence that he exerted pressure on his client or that the proposed gift to himself was anything other than her true testamentary wishes,” the disciplinary hearing ruling said.
Albas had dealings with the client “FC” over a number of years. He had known her common-law husband, who before he died in 2003, asked Albas to “look in” on FC from time-to-time. FC remarried GZ in 2006 and Albas acted for them in numerous matters including drafting a will that gave half of FC’s estate to GZ or alternatively his son and one-half to the Shriners’ Temple. The will was never executed as GZ died in 2007 and Albas handled the estate. After the death, Albas was in contact with FC about once a month.
In 2008, FC advised she wanted a new will, which still gave half to the Shriners’ Temple but the other half to Albas. It was never signed. A year later, she advised she wanted further estate changes. Albas had noted on the file that the client “wants to give me the residue and would like to sign the Will today but no Power of Attorney.” He prepared the will under those terms; it was executed by FC and witnessed.
In 2013, it came to Albas’ attention that the new Code of Professional Conduct for British Columbia prohibited a lawyer from preparing a will where he or she was a beneficiary or received a gift. Rule 3.4-38 states: “Unless the client is a family member of the lawyer or the lawyer’s partner or associate, a lawyer must not prepare or cause to be prepared an instrument giving the lawyer or an associate a gift or benefit from the client, including a testamentary gift.”
Albas then advised his client she would have to do another will and FC indicated that if naming Albas in the will was a problem, she would leave it to his wife. Albas drafted a new will and left it with a lawyer with whom he shared office space to prepare. Albas picked up the will and dropped it off to FC who never signed it. FC was committed under the Mental Health Act in July 2013 and Albas wrote a letter, which had her released. FC retained a new lawyer in September 2013 who wrote Albas asking him not to contact FC further.
The discipline committee found that in the preparation of both wills Albas stood to gain and he had not advised FC to seek independent advice. The situation placed Albas in a conflict of interest with his client contrary to Rule 3.4-26.1.
“There is value in reminding the profession that although a client might wish to provide a lawyer with a gift, the lawyer cannot accept a gift unless that client is independently represented,” said the LSBC disciplinary committee ruling.
The situation where individuals want to leave something to their lawyer is not common, say lawyers, but not unheard of. Mike Beishuizen, principal of Westcoast Wills and Estates in North Vancouver, has come across it several times, once personally, and once hearing of a will where a lawyer was mentioned. It’s a situation that makes him wary. His advice, even to family members mentioning him in the will, is to seek independent legal advice.
“I have always played it safe and told them to get independent legal advice — go to another lawyer for independent advice. That should be done in all cases,” he said.
Such a “best practice” prevents any conflict of interest charges later arising. Beishuizen said lawyers can save friends or family members some costs by drafting a will, which outlines what they want, but the final document should be drawn up by an independent source outside the firm when the individual has received independent legal advice.
Beishuizen said even if the rules are followed “a perception of conflict” can arise.
Estate lawyer Frank Baily has never had anyone leave him part of their estate but if the situation arose, “I would tell them to get another lawyer to do the will.”
He also favours independent relationships in drafting wills for family members. He compares it to being in a business venture with a client where the lawyer receives a percentage of the venture and documents need to be drawn up.
“It is embarrassing if you are on the witness stand with your hand on the Bible and as they examine you and you can’t say you told them to get their own advice and you were not a party to it,” he said.
|Visual proof Ian Holloway was actually in Runnymede earlier this week.|
After all, while bits of it continue to have the force of law, the majority of Magna Carta’s provisions reflect little more than an incoherent jumble of individual grievances from King John’s nobles. Moreover, John himself showed his disdain by reneging on the deal a mere nine weeks later. And the Pope formally nullified it as soon as he became aware of its terms.
Oliver Cromwell — someone not normally known for his sense of humour — called it “Magna Farta.”
So why were a thousand of us assembled in an English country meadow this morning?
It’s because Magna Carta has come to stand for much more than it actually was. Magna Carta the reality was simply one more tawdry nail in the coffin of the disastrous reign of the man who was perhaps the worst king in English history. Magna Carta the illusion is one of the most important events in the evolution of our constitutional system.
What gave Magna Carta its enduring life was not the events of 1215, but rather the constitutional tumult that beset England 400 years later, during the jockeying between the King, Parliament, and the courts for power in the aftermath of the end of the Tudors and the ascension to the English throne of the Scottish house of Stuart.
The Tudors — chiefly Henry VIII and Elizabeth I — had overseen a significant decentralization of state power. When the Scottish King James assumed the English throne and tried to assert absolute authority, the institutions of government pushed back. And the tool they chose to justify their resistance was Magna Carta.
The hero of the story — assuming that one likes our current vision of the rule of law — was the jurist Sir Edward Coke, who served as chief justice between 1606-16. During that time, he almost single-handedly brought Magna Carta back to life.
Magna Carta’s language was feudal. Coke translated it for a post-feudal world. It was he who declared that Magna Carta “hath no fellow,” and it was he who held conclusively that because of Magna Carta, the king himself was under the law. It was Coke who gave legal meaning to the hapless John’s capitulation to the barons.
Coke rewrote history in a way that suited his political ends, and in so doing, he made Magna Carta seem relevant to a society that by now had developed a concept of constitutionalism.
Magna Carta is an icon. Few can fail to be stirred by clause 40, for example, which provided that: “To no one will we sell, to no one will we deny right or justice.” Or by clause 39, which talked about judgment by one’s equals.
But the fact is in the 300 years following John’s reign, Magna Carta was not considered particularly important. Measured against its own text in its own time, Magna Carta was a failure. But what it became in the Stuart period was a tool; a tool to legitimize judicial review of royal action. And a very successful tool it proved to be.
In law as in comedy, timing is everything. And Coke’s time on the bench had the good fortune to coincide with the beginning of British colonization of the New World. As the first colonists left England in search of greater freedom, and as they later nurtured a full slate of grievances against the Crown, Coke’s formulation that the king was under the law proved to be a useful justification both for declaring independence and for enshrining a Bill of Rights a few years afterwards.
That’s why Americans today revere Magna Carta more even than the English. Indeed, the monument to Magna Carta at Runnymede was actually paid for and dedicated by the American Bar Association.
Typically for Canada, our history with Magna Carta has been more subdued. Americans like to wear their iconography on their sleeves. We generally don’t. But even unacknowledged, Magna Carta was — and is — an important tool in Canada, too. For without the tradition of judicial assertiveness it gave rise to in the United States, it is difficult to imagine that our own Charter of Rights and Freedoms would have taken on the life it has.
That’s why we should be conscious of Magna Carta. When we adopted our own Charter in 1982, we enshrined Coke’s picture of Magna Carta. How can we not make sure that we actually understand it?
|Lawyers see updates to Manitoba’s family laws as very positive. (Photo: Shutterstock).|
“The best interests of a child must always be the most important and often the only consideration in the area of family law. This is clearly entrenched within the proposed legislation, which would also include strong, new tools to collect child support from parents following separation or divorce,” Justice Minister Gord Mackintosh said in a statement.
Among the proposed changes and additions to the law:
• Online posting of the names and photos of delinquent parents with outstanding arrest warrants to determine their whereabouts.
• Withholding of recreational hunting and fishing licences.
• Increasing the maximum compensatory amount for late or missed support payments to $5,000 from $500.
• Allowing a child to apply for child support.
• Withholding of the Manitoba enhanced identification card for entrance to the U.S.
“I think that most family lawyers in Manitoba see the legislation as very positive . . . it gives more clarity to certain areas, especially around relocation and mobility,” says Robynne Kazina, a family lawyer at Taylor McCaffrey LLP in Winnipeg. “Traditionally these are really difficult cases because there’s no middle ground — [one parent] is going to either be allowed to move or not.”
She it was difficult to advise clients because of lack of clarity in existing legislation but now it is better codified. For instance, one parent has to give notice within a certain time frame, there are rules if one parent wants to contest the move.
“When you look at the legislation, the biggest piece of the legislation that will have an impact on our work will be around mobility.”
For lawyers it’s not about toughening up on deadbeat parents. They way the government sells it in its news release doesn’t really “reflect how big of a change that is to our practice — it’s huge, says Kazina. “If you talk to any family lawyer this week, that’s all they’re talking about. It’s a big, big deal, this relocation and mobility stuff.
One very innovative part of the new law, sh says, deals with declaration of parentage and updating the law around assisted reproductive technology.
“The other stuff is great, it’s basically adding more tools to the toolkit.”
She notes the “shaming” aspect of the proposed law hasn’t been controversial because it’s really aimed at extreme cases.
“[E]specially with the posting online — that has to be for someone who has an outstanding arrest warrant. These measures are probably not going to be used every day, they’re for the exceptional circumstances. They’re still good to have in place.”
Mackintosh said there’s been a 205-per-cent improvement in child-support compliance since 2000, but that 40 per cent of parents still fail to meet their full obligations.
A 2014 CBC investigation found that Manitoba parents owe a collective $58 million in support arrears, while the nationwide total is a staggering $3.7 billion.
Manitoba’s online initiative matches an Ontario site called Good Parents Pay, which shows photos, last known location, and other information on a rogues’ gallery of deadbeat dads.
|Aboriginal school children outside the Fort Providence Indian Residential School circa 1920. (Photo: F.H. Kitto / Library and Archives Canada / PA-101547)|
The commission was launched as part of a settlement with survivors.
Prime Minister Stephen Harper apologized to the survivors of the schools in 2008.
In prepared remarks unveiling the report, Justice Murray Sinclair, who headed the panel, acknowledged “that what took place in residential schools amounts to nothing short of cultural genocide — a systematic and concerted attempt to extinguish the spirit of Aboriginal peoples.”
The report documented horrific physical abuse, rape, malnutrition, and other atrocities suffered by many of the 150,000 children who attended the schools, typically run by Christian churches on behalf of Ottawa from the 1840s to the 1990s.
“They were torn from their parents, who often surrendered them only under threat of prosecution,” said the commission.
“Then, they were hurled into a strange and frightening place, one in which their parents and culture would be demeaned and oppressed.”
Children as young as five years old were removed from their families and ancestral lands and sent to schools far away.
Regarded as heathens and savages by the system’s architects, they were beaten for speaking their native language and often forced to accept the Christian faith.
The legacy of the residential school system persists as many Canadian aboriginals, including Indians, Inuit, and Métis, struggle to recover from generations of family separation and state-backed abuse. Aboriginal people make up about four per cent of Canada’s population, according to 2011 census data.
Canada’s 1.4 million aboriginals have higher levels of poverty and a lower life expectancy than other Canadians, and are more often victims of violent crime, addiction, and incarceration.
Aboriginal children make up nearly half of all Canadian children aged 14 and under who live in foster care, according to Statistics Canada.
The panel’s 370-page summary of the final report identified more than 45 convictions of former residential school staff members who sexually or physically abused students, and condemned government and church leaders for working to hide the truth.
“It was cowardly behaviour,” said the commission.
The group made 94 reconciliatory recommendations, including special human rights and anti-racism training for public servants, and for the history of aboriginal people and legacy of residential schools to be taught in Canadian schools.
It also urged the Pope to apologize to survivors and their families for the Catholic Church’s role in the schools, as the church had done in 2010 for Irish victims of abuse.
Read the TRC’s 388-page executive summary of its work here.
|Peter MacKay in the House of Commons in February. (Photo: Chris Wattie/Reuters)|
The departure of MacKay, 49, is the latest setback for Harper, who is in a tight three-way race with opposition parties in the runup to October's election. Foreign Affairs minister John Baird resigned unexpectedly in February.
MacKay, an MP from Nova Scotia, was previously defence minister and foreign affairs minister, and was the face of the tough new security law Harper introduced this year. The Conservatives have touted their security credentials as a key campaign platform ahead of October's election.
Harper and MacKay were both hawks on the war in Afghanistan and on the current Canadian engagement in the fight against Islamic State. They also moved in lockstep to ratchet up the power of intelligence agencies in the wake of two attacks on Canadian soil last year, including an attack on Parliament in Ottawa.
Polls show a tough-on-security stand and Harper's economic leadership are strong points for the Conservatives, who have been in power since 2006. But their popular support has waned as voter fatigue has set in, and victory in October is far from assured.
In May, the long-dominant Conservative government in oil-rich Alberta, Harper's home province, was thrown from office by a surge of support for the left-wing New Democratic Party, which also threatens federally.
"They have been weakened, that's the main reason these guys are leaving," said University of Toronto political science professor Nelson Wiseman.
While no reason for his resignation has yet emerged, analysts said the combination of MacKay's young family and the unlikelihood that Harper will step aside to make room for a new leader was likely behind the move.
"It has been clear for a while that Harper is not stepping down, it could be [MacKay and Baird] each had a thought they had a crack at becoming leader," Wiseman said.
Harper, 56, is considered more right wing than MacKay and has maintained strict control over his government, leaving cabinet ministers little room to assert themselves independently.
A former senior Conservative official said MacKay may be quitting now to focus on his young family, and then return to politics later when the Conservative Party is ready to move closer to the center of the political spectrum.
"He is going to get out and make money and six or seven years down the road, when people want more of a progressive Conservative government, he'll be there," said the official, who declined to be named.
While MacKay's departure removes a potential rival to Harper from the scene, it also deprives the party of one of its most popular figures. MacKay's cheerful easy-going nature, always happy to plunge into a crowd and shake hands, has contrasted with Harper's more reserved demeanor.
A member of a powerful political family in Nova Scotia, MacKay was elected to federal office at age 31 and is one of the founders, with Harper, of the modern Conservative Party. The two men led the 2003 merger of two right-wing parties that had split the conservative vote. The united party went on to election victory in 2006 and has governed since.
MacKay's office could not be reached immediately for comment.
In February, MacKay told Reuters he was working hard to balance the needs of his young family and a demanding political career.
"I'm trying to strike that balance," he said. "I can assure you it's a challenge."
He and his wife are expecting a second child in the fall.
Updates 1:55 pm: More details, analysis added.
The Canadian Incident Database was unveiled a week after the Conservative government approved Bill C-51, anti-terror legislation that expands the powers of the country’s police and intelligence agencies in the wake of two attacks in 2014 that brought an international war on terrorism to Canadian soil.
“What is important about the database is that it puts terrorism violence in perspective,” said James Ellis, who oversaw the project developed through the Canadian Network for Research on Terrorism, Security, and Society.
“Over the past 55 years, we’ve seen terrorism come from a variety of sectors. It hasn’t been monopolized by just one group,” he said.
Canadian Muslims have said they have been unfairly tarnished by the media and by the government following the attacks last year on two Canadian soldiers in Ottawa and Montreal by Islamic extremists who had converted to the faith.
The database, which was put together with five university partners, compiled 1,815 incidents of terrorism and extremism between 1960 and 2014 that occurred either on Canadian soil or had a Canadian connection abroad.
Quebec was the province with the highest number of terrorist attacks, according to the data. The majority of the 1,170 attacks that occurred in Canada didn’t involve fatalities.
While there has been a recent rise in religious ideology as motivation for such attacks, terrorism has been carried out for a variety of reasons, including politics, Ellis said in a phone interview with Reuters.
“It’s important that we realize this isn’t something that came from nowhere.”
Judges on the U.S. Bankruptcy Court in Wilmington, Del. and Ontario Superior Court of Justice held an unprecedented joint cross-border trial on the dispute, with the courtrooms linked by video. The legal battle has raged for years through numerous courts, chewing up more than $1 billion in fees for lawyers and other advisors.
Nortel filed for bankruptcy in 2009 and sold its global operations and patents, raising the cash in dispute. In the years that corporate entities in Canada, the United States and Europe have fought over the funds, retirees and bond investors have awaited repayment.
U.S. Bankruptcy Judge Kevin Gross and Justice Frank Newbould said in separate opinions that each regional business would receive cash to pay its creditors based on their claims against it as a percentage of the overall claims worldwide.
The judges said in their simultaneous opinions that a pro rata division was the most fair and satisfactory way to split the money.
Gross wrote in his 130-page opinion that the various regional business “have lost sight of the irrationality of their respective positions” and left “no virtually no middle ground.”
The Canadian unit had argued it should receive about 83 per cent of the money, because it was the legal owner of many of the assets sold. The European businesses wanted the money divided based on each region’s contribution toward creating the value of the assets that were sold. As the U.S. unit saw things, it deserved 73 percent of the cash based on its beneficial ownership model.
Lawyers for the U.S., Canadian and European units of Nortel did not immediately respond to a request for comment.
“It would not be going out on a limb to say that the rulings get appealed regardless of what they contain,” wrote Kevin Starke, an analyst with CRT Capital in a note published before the opinions.
He said a “middle ground” ruling was best in terms of wrapping up the cases without dragging them out for more than another year.
Nortel was once among the world’s largest tech companies. Its stock market valuation swelled to $260 billion and Nortel employed nearly 100,000 at its peak, before the bursting of the telecom bubble and accounting problems.
In his decision, Newbould gave kudos to the court reporters, technical staff and lawyers who all worked on the complex cross-border case. As well he had praise for his U.S. counterpart.
“I want to thank Judge Gross for his courtesies and good humour. It has been a pleasure to work with him. Without such a good relationship and the trust that we developed for each other, this trial and its conclusion would not have been possible.”
Read more on the nuts and bolts of how the case was conducted in next week’s Law Times.
Subscribe to Legal Feeds
- Jennifer Brown
- Glenn Kauth
- Tali Folkins
- David Dias
- Yamri Taddese
- Gail J. Cohen
- Karen Lorimer