Peter MacKay, the former federal attorney general and minister of Defence, will be joining global law firm Baker & McKenzie LLP's Toronto office, ending media speculation around potential leadership by MacKay of the Conservative party.
|Kevin Coon, managing partner of Baker and McKenzie’s Toronto office, welcomes Peter MacKay.|
There had been media speculation about MacKay returning to politics in light of the leadership race for the Conservative party, but MacKay says he wants to focus on practicing law.
“What I can tell you is that I have made a very clear decision to resume the practice of law, and so that’s where my focus is,” says MacKay.
“I made that decision some time ago, when I exited politics to spend more time with my family, to be more available to them, but also, just to return to the private sector was always my intention, as a career, to practice law.”
MacKay says it will be the first time he’s made his home in Toronto, where he will be settling with his family, including two young children.
He says he is hopeful about having a healthy work-life balance.
“That was part of the calculus, I think it’s a good fit here. It’s a very family friendly environment, among other qualities attributable to Baker & McKenzie,” says MacKay.
Baker & McKenzie currently has about 80 lawyers in Toronto, and about 4,400 lawyers worldwide.
“All law firms react to what’s happening with their clients, and what their clients’ needs are,” says Kevin Coon, managing partner of the Toronto office. Coon says the firm has focused on “a pretty slow and steady strategic build.”
“If you look at the Fortune 500 list, there’s about 87 Canadian-headquartered companies, and many of those doing business globally now, and looking at how to do that in a compliant manner,” says Coon. “We’ve been focusing on their needs as they go global.”
Coon says the firm also focuses on global companies coming into Canada.
“Compliance is certainly one of those areas that we have built rapidly in North America, and globally. In Canada, we’ve been building it as well,” says Coon.
MacKay isn’t the only high-profile former politician to go back into practice. Former Ontario premier Bob Rae is with Olthuis Kleer Townshend LLP, and former Ontario premier David Peterson is with Cassels Brock & Blackwell LLP.
Update Jan 26 to correct formatting and style.
There’s little chance an escalating dispute between Ottawa and the federal courts of this country — about IT procurement, of all things — will ever find its way into a courtroom, despite the Supreme Court of Canada’s threat to directly challenge the constitutionality of the policy if it isn’t reversed.
|Mark Freiman says, 'It’s highly unlikely that this will go any further.'|
Exemptions were created for watchdogs like the auditor general, privacy commissioner, and information commissioner. The highest courts in the land, however, were not afforded such an exemption — an omission some legal observers (who declined comment) are calling an intentional snub by the judicially combative former government.
Now, according to documents uncovered via access-to-information laws and reported yesterday by the Canadian Press, a number of federal courts — including the Federal Court, the Federal Court of Appeal, and the SCC — are presenting a united front against a policy they say undermines judicial independence.
On Thursday afternoon, the Supreme Court released the following statement. "The application of Order in Council PC 2015-1071 to the Supreme Court of Canada became a matter of concern to the Court before its entry into force in September 2015. The Registrar of the Supreme Court of Canada and other Court officials met with Department of Justice officials and others to explain the concern and emphasize the need to preserve the Court’s administrative independence from government. The Court was encouraged by the federal government’s response and is expecting a satisfactory resolution of the issue shortly."
Mark Freiman is a litigator at Lerners LLP who, as a former deputy attorney general in Ontario, has direct experience with judicial brinksmanship. Despite all the bluster, Freiman says we’re unlikely to see a constitutional challenge. What will probably happen, he says, is the new Liberal government will simply reverse the policy.
“It’s highly unlikely that this will go any further,” says Freiman. “At first instance, all of this is conducted on an administrative level, with administrators talking to administrators. And then the judges get wind of it, and they become concerned, and they talk to the administrators. I think by the time this gets up to a decision at the political level — I would be surprised, but I’ve been surprised before.”
Whether a challenge is forthcoming or not, Freiman says the courts are appropriately defending their judicial independence, given the importance of information technology in the judiciary. The sensitive nature of information handled by the courts, he says, requires a custom approach to IT procurement — not the generalized approach of a bulk purchaser — and that’s both for the sake of functionality and security.
Perhaps more to the point, a policy that gives government the authority to make financial and administrative decisions on behalf of the courts could, in theory, give the Crown an advantage in litigation, or create a perceived conflict of interest where a judge’s decision may be influenced by procurement interests.
“Now, that’s hardly likely to happen, but the appearance that the government has a hold over judges is an important component of judicial independence,” says Freiman.
“The government is a litigant . . . and as a litigant, it is subject to the rule of law, which means that it has to be equal before the court both in fact and in appearance. If it appears that the government has an advantage over an ordinary litigant or that it is holding something over the judiciary, that undermines the appearance of judicial independence.”
If a constitutional challenge did proceed, Freiman says the optics could be “undesirable.” The motion would be initially brought by a court administrator or a judges’ association, with federal judges named as plaintiffs, but any appeal would end up at the Supreme Court of Canada, where the high court would be forced to invoke the “doctrine of necessity” to rule on an issue in which it is has a direct stake.
“The court has [in the past] invoked the doctrine of necessity, saying we don’t like to do this but there’s no one else who can do it, so we have to sit in judgment, even though we are affected by it,” says Freiman. “It would be highly undesirable as an optical matter for that to happen, but I don’t know how it can be avoided.”
Update 5:20 pm: Statement from the SCC added.
Former Conservative cabinet minister and MP Helena Guergis’ lawsuit against Cassels Brock & Blackwell LLP is a step closer to trial after a judge dismissed an appeal to strike two of Guergis’ claims against the firm and its lawyer Arthur Hamilton.
|Guergis’ claim that a Conservative Party lawyer caused former PM Stephen Harper to fire her in 2010 will go to trial. (File photo: Chris Wattie/Reuters)|
The lawyers for Cassels Brock and Hamilton had argued the court should strike out this claim at the pleadings stage because Crown privilege prevents the court from inquiring into any aspect of Harper’s decisions, including any contribution to them by the Hamilton and Cassels Brock.
“As with the prior ruling, the threshold on a pleadings motion is low and much discretion is given to the judge hearing such a motion,” wrote Warkentin.
Warkentin also declined to reverse a motion judge’s decision not to strike out Guergis’ claim that she was in a solicitor-client relationship with Hamilton and he breached his duties to her through a testimony before a Parliamentary committee, which is protected by parliamentary privilege.
Guergis’ action against Harper and his ministers for conspiracy, defamation, misfeasance in public office, intentional infliction of mental suffering, and negligence was dismissed on the basis that the former prime minister’s decisions were protected by the exercise of Crown privilege and parliamentary prerogative.
But while Parliamentary privilege may protect Harper and his ministers’ actions, Guergis argues “those privileges could not be used by Hamilton to shield himself” and “there is no policy basis to excuse Hamilton’s behaviour on the same basis that shields a political decision by a Prime Minister.”
Cassels Brock and Hamilton argued the claim should be struck from the pleading because parliamentary privilege is absolute and there is no requirement to balance it against solicitor-client privilege.
Warkentin wrote: “It was open to the Motion Judge to find that the issue of parliamentary privilege versus solicitor and client confidentiality was an issue best determined by the trial judge rather than on a pleadings motion.”
Paul Le Vay, counsel to Cassels Brock, declined to comment on the ruling.
In 2010, Harper fired Guergis as a minister of for status of women and threw her out of his cabinet after allegations linked her and her husband, former MP Rahim Jaffer, to illicit drug use, prostitution, and fraud. The RCMP has since cleared Guergis of any wrongdoing.
The new Liberal government asked the Supreme Court of Canada today for a six-month delay in applying its decision on physician-assisted suicide because of the recent federal election.
In Carter v. Canada (Attorney General), the top court had on Feb. 6 struck down a ban on doctor-assisted death and given the government 12 months to come up with replacement legislation if it chose to do so.
The government told the court that deliberations stopped during the campaign for the Oct. 19 election, in which the Liberals took power from the Conservatives. It said a parliamentary committee would study the issue but there would not be enough time before Feb. 6 to come up with a federal response.
Thursday was the first day of the newly elected Parliament.
The court's decision in February was that mentally competent, consenting adults who have intolerable physical or psychological suffering from a severe and incurable medical condition had the right to a doctor's help to die.
Crafted largely in secrecy, the massive Trans-Pacific Partnership agreement text was released publicly yesterday.
|The Canadian government ‘did cave on auto, vehicles, and parts,’ says Mark Sills.|
After a cursory read of the hefty documents, Sills points to concessions made by Canada regarding the automotive industry that he says could have a significant impact on the economy, particularly for southern Ontario.
“Like any trade negotiation, there obviously has to be gives, but it looks as though the Canadian government did cave on autos, vehicles, and parts,” he says.
He notes, for example, that the agreement would have Canada phase out the tariff on Japanese vehicles over six years while the U.S. has a 30-year timeline. A major concern, he says, is that in six years, Japanese-assembled vehicles will enter the country duty free, but because of the rules of origin, they’ll be able to incorporate significant amounts of parts from outside the trade bloc.
“There will be a lower level of processing required to turn non-TPP originating parts into TPP originating parts, so that’s a big concern, particularly for Ontario,” says Sills.
Foreign Affairs, Trade, and Development Canada’s web site calls the agreement the largest and “most ambitious trade initiative in history” that it says will increase Canada’s foothold in the Asia-Pacific region. Despite the criticisms, other lawyers see the deal as being positive for Canada.
“The federal government has set out what I see as laudable and praiseworthy objectives,” says business lawyer and civil litigation specialist Marvin Huberman.
Huberman says that despite some opposition to the deal, he believes it will improve trading relationships, reduce technical barriers to trade, revamp intellectual property laws, and bolster trade and environmental policies with unified enforcement.
“I think all of this is wonderful and much needed,” he says.
While opponents say the deal will radically affect everything from copyright laws to Internet privacy and even grocery bills, Huberman thinks otherwise. “I’m not so sure that is the case. What I think is really happening is that this particular international agreement is challenging how our government is going to handle these issues.”
He also downplays the prospect the agreement infringes the Charter of Rights and Freedoms and says the courts would protect people’s rights if it did. “But even if that possibility, or some would argue that probability, will occur, that’s why we have the judicial branch [of the federal government],” he says. “Then we achieve the balance people want.”
Former B.C Crown Jody Wilson-Raybould will serve as Canada’s first aboriginal justice minister and attorney general in the new Liberal government.
Wilson-Raybould, a former regional chief of the Assembly of First Nations in British Columbia, is from the Musgamagw Tsawataineuk and Laich-Kwil-Tach peoples and previously served as a treaty commissioner.
|New Prime Minister Justin Trudeau poses with his cabinet after a swearing-in ceremony at Rideau Hall in Ottawa today. The new ministers include lawyer Jody Wilson-Raybould in the justice portfolio. (Chris Wattie/Reuters)|
Toronto defence lawyer Bill Trudell says Wilson-Raybould is “an inspirational choice.”
“This is a real breath of fresh and experienced air in the ministry,” says Trudell. “This is a very distinguished woman.”
By appointing her, Prime Minister Justin Trudeau is “clearly sending a signal” that aboriginal issues in the justice system are going to be important to the new government, says James Morton, a litigator at Morton Karrass LLP.
“If you recall, the last government cut back on the application of [R. v.] Gladue principles to a degree, and I suspect we’ll see perhaps a greater sensitivity to First Nations issues,” he says.
A former prosecutor in Vancouver’s downtown eastside, Wilson-Raybould also brings to the portfolio a “considerable experience in poverty law and some of the real issues like drug abuse, prostitution, and predatory actions,” says Morton, calling it “a dramatically different life experience, to say the least,” from the one former justice minister Peter MacKay brought to the position.
“It’s certainly a big shift. You’ve got a younger person, a First Nations woman with a lot of experience in the criminal justice system as a prosecutor,” he adds.
Isadore Day, Ontario regional chief of the Assembly of First Nations, also lauded Wilson-Raybould’s appointment.
“Minister Wilson-Raybold is a strong choice for justice minister. Her appointment shows that this government cares about proper representation of indigenous perspectives and women,” said Day.
“In First Nations traditional governance models, women are integral to the connection and healing in the community. Mr. Trudeau could not have chosen better.”
Wilson-Raybould has a wealth of knowledge about drugs, mental health, poverty, and the impact those issues have on crime, says Trudell.
“If anybody suggested this is tokenism, there is no tokenism here,” he adds.
Criminal lawyers had chided the previous government for its mandatory minimum sentences and victim surcharge. Morton says his sense is there will be greater discretion for the courts and sensitivity to poverty issues under the new government.
“I think there are so many people in this country, in this profession who today would like to call up the minister of justice and say, ‘Boy, would I ever like to help to work to make the system better,’” says Trudell, noting he’s confident Wilson-Raybould will work collaboratively with all participants in the justice system.
Having met Wilson-Raybould, Morton describes her as “gregarious and engaging.”
“I think the bar will find her to be really quite refreshing,” he adds.
The swearing in ceremony of prime minister-designate Justin Trudeau and his cabinet on Wednesday will mark the beginning of a lawyer-heavy Liberal majority government reign for the next four years.
|Ralph Lean predicts lawyers Catherine McKenna and Dominic LeBlanc will be among those chosen for the federal cabinet this week.|
The 184-member government caucus includes 43 MPs with law degrees, according to the Liberal Party of Canada.
According to Lean, Catherine McKenna of Ottawa Centre is one of the most notable lawyers elected to the House of Commons last month with a strong shot at a cabinet position. She’s one of eight women lawyers in the Liberal caucus.
Her background includes serving as executive director of Canadian Lawyers Abroad and practising at leading firms in both Canada and Indonesia with a focus on international trade, competition, investment, and constitutional matters. She comes to Parliament after defeating NDP veteran Paul Dewar last month.
“I’ve heard very good things about her from the Liberals I know,” says Lean.
Other lawyers in the Liberal caucus include Prof. David Lametti of the McGill University Faculty of Law; Will Amos who has a background in environmental law and natural resources; and Nicola Di Iorio, whose practice focuses on labour and employment law.
Veteran MP Dominic LeBlanc is another lawyer Lean believes will be in cabinet. “He’s been around for a very long time, he is very close to Trudeau. I think he probably will go in,” says Lean.
Despite the heavy presence of lawyers, he’s not sure it’s particularly important to have so many of them in the government caucus.
“Other than the attorney general and minister of justice, you don’t necessarily need a bunch of lawyers,” he says.
Nevertheless, the lawyer-heavy governing caucus is a change from more recent federal elections and is definitely a difference from the situation at the provincial level in Ontario where just seven lawyers won seats at Queen’s Park in 2014.
Among the considerations this week, Lean notes, is Trudeau’s commitment to gender parity in cabinet. “I am always hopeful that the prime minister of whatever party chooses the best candidate,” says Lean, a well-known Conservative.
A week after winning the NDP nomination for Ottawa-Vanier, former federal prosecutor Emilie Taman was in Federal Court Tuesday, asking for a judicial review of the Public Service Commission of Canada’s decision not to grant permission for her to seek nomination as a candidate in the federal election.
|Emilie Taman says many consituents in the Ottawa-area riding she is running in reached out to her.|
In early July, Taman vacated her office, beginning what she called “an unauthorized leave of absence” to enter the contest for Ottawa-Vanier’s NDP nomination.
She had applied for a leave of absence last year, but the Public Prosecution Service of Canada refused, arguing her ability to return to work after the political race would be “impaired or perceived to be impaired.” After receiving a series of warning letters, Taman was fired weeks after leaving her office.
“I received I think it was three warning letters which basically indicated that I was to return to work immediately or face termination for abandonment of position,” she says. “I followed up by saying I don’t have an intention to abandon my position, and could you please just wait until my judicial review hearing.”
But the PSC, she says, replied that “despite my representations it had been determined that I had abandoned my position.”
Even if the judicial review is successful, it won’t result in her being reinstated, says Taman. Although she hopes a favourable ruling would help her termination grievance.
Above all she’s hoping it results in clearer guidelines for politically minded federal prosecutors in the future.
The PSC is declining to comment on the case, given that it is currently before the court. In addition, “The Public Prosecution Service will not comment on personnel, past or present,” a spokesperson told Legal Feeds.
The nomination battle appears to have been tightly contested. Although the party doesn’t release the number of votes each candidate received, the vote, which involved four candidates, went down to the wire with three ballots.
“It was a long night,” she says.
The media attention around her fight with the PSC likely helped her, she says.
“The riding obviously has a lot of public servants living in it, so a very large number of people reached out to me directly to express their unhappiness with how I’d been treated,” she says.
Party members may also have liked her family background. She is the daughter of Louise Arbour, the former Supreme Court of Canada justice and UN High Commissioner for Human Rights.
Now Taman finds herself up against someone she concedes is a formidable opponent: Liberal incumbent Mauril Bélanger, who has held the seat for 20 years. The riding has a solid history of Liberal dominance, both federally and provincially.
Nevertheless, Taman says she’s excited and hopeful about taking on Bélanger.
“The party has a huge amount of momentum right now,” she says. “I feel that I have momentum as a candidate, and based on how things went [on nomination night], I feel really confident, and I look forward to engaging with him and seeing where that goes.
“I appreciate it’s an uphill battle and I’m facing an adversary who’s experienced, but I’m attracted to what the NDP’s trying to do and I think I’m going to do a good job in pitching it to constituents.”
Update Sept. 18: To clarify Taman's judicial review is regarding the Public Service Commission's refusal to allow her to run for office and that she was terminated by her employer, the Public Prosecution Service of Canada.
|‘There is a tilting of the balance of evidentiary proof, very much in favour of the government,’ says CBA president Michele Hollins.|
Many of the concerns raised in the report involve the greater state powers outlined in bill C- 51, without a similar increase in oversight, as well as the broad and often vague language used in the proposed legislation.
“Not only are we creating offences to broaden the scope, there is a tilting of the balance of evidentiary proof, very much in favour of the government,” says Michele Hollins, president of the CBA.
The recommendations in the report are “presented in a helpful and non-partisan way,” says Hollins, who is hopeful the federal government will recognize the expertise of the CBA in this area.
“The safety of Canadians is paramount,” says Hollins. “I don’t think anyone takes issue with the objective. This is really about the mechanics,” of Bill C-51 and whether its contents will help achieve that goal in a way that also conforms with the Charter of Rights.
Three of the areas of concern highlighted in the report are the increased powers proposed for the Canadian Security Intelligence Service, increased information sharing powers for government agencies, and several of the amendments to the Criminal Code.
The changes to the CSIS Act would allow its agents to seek a warrant to do anything that is “reasonably necessary” to “reduce” a “threat to the security of Canada.” These warrants would not be subject to the Charter.
The proposed changes are “unprecedented” says the CBA in its report.
“It is untenable that the infringement of Charter rights is open to debate, in secret proceedings where only the government is represented. Parliament should not empower CSIS or judges to disregard the constitutional foundations of our legal system.”
Bill C-51 would establish new legislation that permits government institutions to share personal information about “activities that undermine the security of Canada,” which would include “interference” with “critical infrastructure” or “the global information infrastructure.”
These provisions “cast the net very broadly” says Hollins and could be used against Aboriginal or environmental activists.
Many of the proposed changes to the Criminal Code are “already captured” by existing sections, says Hollins. As well, the concern over the amendments is the “very broad or vague language,” that is used.
The CBA report notes the proposed change to the existing “advocating or promoting terrorism” offence, refers to advocating “terrorism offences in general.” It would apply to all “statements,” which may include private e-mails and text messages.
“If widely construed, it will be subject to significant challenges, at great cost to taxpayers and may include activity more political in nature than dangerous,” says the CBA.
|‘These things that used to be better benefits in the public sector are no longer there,’ says Len MacKay.|
“Historically, they’ve always told us through the years that they don’t use the time keeping to keep an eye on us,” says Len MacKay, president of the association that represents federal government lawyers.
According to a recent letter to MacKay from Deputy Justice Minister William Pentney, the department is increasing the “average time spent on the delivery of legal services” to 1,400 hours per year, up from 1,300. While MacKay notes the department has long had the targets for what it said were budgeting purposes, the move to incorporate them into performance reviews is new.
The goal, according to Pentney’s letter, is to reduce the time spent on non-legal activities.
“While the participation of counsel to non-legal services work remains important, the department will examine the extent of counsel involvement in corporate and non-legal activities to ensure that their time is used most efficiently,” he wrote, adding the department also uses the numbers when it comes to collecting revenues from other ministries and agencies.
MacKay has a couple of concerns about the change. First, lawyers can only bill for work on behalf of clients.
“But many lawyers don’t work necessarily for clients, so in many ways the target is artificial,” he says.
Also, he notes the targets won’t include administrative duties, something lawyers have had to take on more of as the government has cut staff in recent years.
“Lawyers are having to work more administrative duties, which can’t go towards billable targets, for example,” he says.
While Pentney’s letter hints at the need to move lawyers away from such tasks, MacKay doubts that’ll mean more support staff to do them.
“In this current climate, in this current government, we’re not optimistic that’s going to happen,” he says.
More generally, MacKay says the move highlights the government’s efforts over the years to have the department reflect a more private-sector approach. He notes part of the implicit deal in taking a government job with the attendant lower salary was a better work-life balance and benefits. But with changes to things like severance and pensions and now the increased focus on billable hours, those advantages are eroding.
“These things that used to be better benefits in the public sector are no longer there,” he says, noting the new approach may prompt the association to push harder on the salary issue (which he acknowledges lawyers made major gains on in the last round of bargaining).
The 1,400-hour target is in line with the median reported by Canadian Lawyer in its recent compensation survey. That survey put the median at 1,470 hours, although the targets are often higher at large national and global firms. When it comes to federal lawyers, MacKay says the target is generally doable but not necessarily for all lawyers. “I think they’re putting the hours in,” he says.
“I think it’s realistic for some folks because they do a job where it’s almost entirely billable work,” he adds. “But for others, it’s not going to be realistic.”
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