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.”
|The ICJ urged Harper and MacKay to withdraw or apologize for their comments and review the law and practice for the appointment of judges.|
“Nothing in international standards would render such contact inappropriate,” wrote commission secretary general Wilder Tayler in a letter to Heckman last week.
“While the eligibility of a particular candidate appointed could have potentially come before the Supreme Court (which indeed in the end it did), simply reminding officials of the requirements of applicable law would not in the ICJ’s view constitute ‘a comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process’ (as expressed in Principle 2.4 of the Bangalore Principles,” he added, referring to the Bangalore principles of judicial conduct.
In May, federal officials publicly suggested McLachlin had inappropriately contacted the Prime Minister’s Office the looming appointment of a Quebec judge to the Supreme Court. The allegations suggested McLachlin had lobbied against Nadon’s appointment, which the government was suggesting was before the courts. McLachlin clarified her actions in a statement at the time. “At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts,” the statement noted.
On July 29, 2013, according to her statement in May, McLachlin provided the parliamentary committee dealing with the appointment of the next Supreme Court judge with her view on the court’s needs. Two days later, her office called the minister of justice and Harper’s chief of staff to “flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court,” according to the statement.
The same day, she spoke with MacKay to flag the potential issue. While her office made preliminary inquiries to have a discussion with Harper, she ultimately decided not to pursue a call or a meeting, according to the press release.
“Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue,” said McLachlin.
“At no time did I express any opinion as to the merits of the eligibility issue.”
In its letter last week, the commission, an organization comprised of up to 60 international judges and lawyers concerned about the respect for international human rights standards through the law, essentially accepted that version of the events.
“The ICJ has been provided with no evidence that the Chief Justice had any intention in contacting the Minister of Justice and the Prime Minister’s Office other than to alert them to the possibility that a legal issue could arise with the nomination of a Justice of the Federal Court in relation to the eligibility requirements of the Supreme Court Act,” wrote Tayler.
“The ICJ has not been provided with evidence that suggests that the Chief Justice either intended to or expressed a view on the merits of that legal issue or the merits of any individual.”
Tayler said McLachlin’s statements to the media after the issue arose “were consistent with international standards and within the scope and role of her office in defending the public confidence in the judiciary in light of the allegations she had been informed were then being made public, i.e. alleging that she had lobbied against a particular nominee.”
Tayler went on find a problem in Harper’s statement on May 1 about McLachlin in which he said neither he nor MacKay would ever call a judge about a matter that was or could be before the court.
“This was unfairly conflating the issue of the executive seeking to influence a court on the merits of a matter in litigation, with the Chief Justice reportedly seeking to alert the nominating authorities to the content of and the potential existence of an issue under the law, in the course of a nomination process in which consultation already takes place between different branches of government, and before the executive had made a three-person short list or nominated a candidate.”
Tayler urged Harper and MacKay to withdraw or apologize for their comments and review the law and practice for the appointment of judges. In particular, he referred to international standards that call “for the establishment of bodies that are independent of the executive, plural and composed (even if not solely) of judges and members of the legal profession.”
He also raised concerns about judicial independence.
“The ICJ considers that the criticism was not well-founded and amounted to an encroachment upon the independence of the judiciary and integrity of the Chief Justice,” he wrote.
It’s a comment University of Ottawa Faculty of Law professor Carissima Mathen found to be fair given the concerns about judicial independence.
“I think that the concern that’s raised by the whole interaction . . . is that they appeared to be drawing the court into a political battle and painting the court as a political adversary in a way that would encroach on the independence of the judiciary were the court to be seen in that particular light,” she says.
Mathen also agrees the government has other avenues to address the issue rather than making public comments about it. They include making a complaint to the Canadian Judicial Council, seeking McLachlin’s recusal from the Nadon matter before the Supreme Court, and, in the most extreme and unlikely of cases, trying to have a judge removed from office.
“I thought it was a very sober, measured letter,” she says of the commission’s response. Mathen also believes the letter carries significant weight. “It just gives another indication of the notoriety of this incident,” she says.
“This isn’t the kind of attention you want to have focused on Canada,” she adds.
Update 5pm: Comments from Mathen added
|Trillium Power Wind Corp. is suing the Ontario government for cancelling offshore wind projects. (Photo: Shutterstock)|
Trillium claims “Ontario unlawfully deprived it of a lucrative offshore wind-powered electric generation project, for an improper political purpose, specifically an electoral purpose,” according to the appeal court’s Nov. 12 ruling in Trillium Power Wind Corp. v. Ontario (Natural Resources).
Trillium also argues the province intended to cripple the company financially so that it wouldn’t be able to fight its actions.
As a result, Trillium is seeking $2.25 billion in damages and more than $5 million in out-of-pocket expenses that it spent in preparing its first wind farm off Prince Edward County, Ont.
Justice Robert Goldstein of the Ontario Superior Court of Justice dismissed Trillium’s claim last October. However, the appeal court disagreed with part of his decision and narrowly allowed the appeal, finding that the government intended to hurt Trillium.
“We agree with the motion judge that it was plain and obvious, and beyond all reasonable doubt, that the appellant could not succeed in its claims for breach of contract, unjust enrichment, taking without compensation, negligent misrepresentation and negligence, and intentional infliction of economic harm. These causes of action were therefore properly dismissed by him, for the reasons he gives,” wrote Court of Appeal Justice Robert Blair.
“We do not reach the same conclusion, however, with respect to the claim for misfeasance in public office. We would allow the appeal on that cause of action alone and let the claim proceed, but only on the narrower basis that Ontario’s conduct was specifically targeted to injury Trillium.”
In allowing the appeal only on the claim of misfeasance in public office, the court said: “It follows that Trillium should be entitled to proceed based on the allegations that the Government’s actions were specifically meant to injure the appellant. The appellant asserts that the Government’s actions were targeted to stop Trillium’s offshore wind project before Trillium’s financing was in place in order to deprive Trillium of the resources to contest the Government’s decision to cancel the wind projects in Ontario.”
|Heenan Blaikie LLP's Pierre Belllavance has joined the Quebec Superior Court bench.|
In Saskatchewan, the government has elevated Court of Queen’s Bench family law division Justice Jacelyn Ryan-Froslie to the appeal court. She replaces Justice G.A. Smith following her retirement last year.
In Ontario, the new Court of Appeal judges are justice Gladys Pardu and Mary Lou Benotto. Pardu replaces Justice Robert Sharpe, who moved to supernumerary status in June. She has been a judge since 1991. Benotto replaces Justice Robert Blair, who also became a supernumerary judge earlier this year. She has been on the bench since 1996.
And in Quebec, the government has named Superior Court Justice Claude Gagnon to the Court of Appeal. He replaces Justice F. Thibault, who became a supernumerary judge in April.
Other judges taking on new positions include Saskatchewan Provincial Court Justice Darin Chow. He joins the Court of Queen’s Bench family law division after Justice D.L. Wilson transferred to Saskatoon. The government has also named Prince Albert, Sask., lawyer Lyle Zuk to the Court of Queen’s Bench to replace Justice R.D. Maher. Maher became a supernumerary judge in August.
In Quebec, Heenan Blaikie LLP lawyer Pierre Bellavance becomes a Superior Court judge. He replaces Justice Y. Alain, who became a supernumerary judge last year. Bellavance had been a partner with Heenan Blaikie since 1998 who practised in a number of areas including civil litigation as well as real estate, construction, municipal, and administrative law.
In Alberta, the government has named four lawyers to the bench. Calgary Alberta Securities Commission lawyer Glenda Campbell joins the Court of Queen’s Bench. She replaces Justice C.S. Phillips, who became a supernumerary judge in July.
Also joining the Court of Queen’s Bench are Edmonton lawyers Dawn Pentelechuk and Frederica Schutz. Pentelechuk replaces Justice A.B. Moen, who became a supernumerary judge this fall, while Schutz fills the vacancy left by Justice L.D. Acton. Acton becomes a supernumerary judge on Dec. 1, and Schutz’ appointment is effective that day.
Finally, the government has named Corina Dario, a lawyer with Smart Technologies ULC in Calgary, to replace Court of Queen’s Bench Justice S.M. Bensler. Bensler became supernumerary judge in August.
|Immigration lawyer Michael Niren says he doesn't understand why the government plans to admit more live-in caregivers when there is already a backlog.|
Canada will admit 17,500 permanent residents through the live-in caregiver program in 2014, the government announced. That’s an all-time high since the program began in 1993.
In the same announcement, the government acknowledged that delays in the program had reached “unacceptable” levels.
“I’m not understanding the logic behind what the government is doing,” Niren says. “If the concern is backlog, why open the floodgates so that more applicants are going to be applying?
“Are they going to add more resources to embassies to process these cases? It remains to be seen.”
Previously, when applications clogged up the parental sponsorship program, the government shut it down and replaced it with a 10-year super visa for parents and grandparents. Although it was “painful,” the strategy had logic to it, says Niren.
Niren adds there’s no denying the great need for live-in caregivers in Canada, especially in major cities. But he says a lot of his clients are frustrated over having to wait years before caregivers arrive.
“Nannies are needed. There’s no doubt about it,” he says, adding he’s all for increasing the number of caregivers coming to Canada.
“I’m just afraid that it will cause greater backlog and [longer] processing times.”
In a press release, Citizenship and Immigration Minister Chris Alexander said the government acknowledges the backlog issue but didn’t say how it plans to reduce it.
“Wait times in the live-in caregiver program have grown to levels that are unacceptable to caregivers,” he said. “Our government has already slashed application backlogs for skilled workers and parents and grandparents. Now, we turn our attention to the [live-in caregiver program].”
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