University of Calgary law professor Alice Woolley has been appointed Calgary’s first ethics adviser. Woolley takes the role alongside Allen Sulatycky, a former associate chief justice of the Court of Queen’s Bench of Alberta, who has been appointed as the city’s independent integrity commissioner.
|Alice Woolley says her new job is to help city councillors navigate the ethical boundaries of their roles.|
Woolley, an outspoken academic who writes about legal ethics and professionalism, also has a background in administrative law. Her new role will be helping city councillors navigate the legality and ethics of their individual actions, she says.
“City council discharges a statutory function. They have a specific role that they occupy and there are things they should do in that role and things they shouldn’t do in that role,” says Woolley. “My job is just to help them navigate that boundary to the extent there are issues that they’re worried about.
“It’s not about helping them be good, upstanding citizens of the city of Calgary; they’re more than capable of doing that on their own. It’s just a question of in this role, there are things you ought to do and things you ought not do, and sometimes, like in all roles, the difference between those is not always obvious,” Woolley adds.
If complaints about members of city council can be resolved by an apology or via mediation, it would fall into Woolley’s role. Sulatycky would handle more complex complaints requiring full investigations and hearings.
Woolley will remain a full-time professor of law at the University of Calgary.
“I’m not leaving; I’m still going to be at the university and I’m still going to be writing things that get under the skin of people,” she says with a chuckle.
“It will be complicated to make it work time-wise but it’s not taking away my university job and I’d never have taken it if it was,” she adds.
According to Nenshi’s office, Sulatycky will be the first city integrity commissioner in western Canada. A former MP for Rocky Mountains, he previously served on various House of Commons committees and as parliamentary secretary to both the ministers of Energy, Mines and Resources and Indian Affairs and Northern Development.
Sulatycky was appointed to the Court’s Queen’s Bench of Alberta in 1982. He later became a judge of the appeal courts in Alberta and Nunavut before his appointment as associate chief justice of the Court of Queen’s Bench of Alberta. Sulatycky retired as a judge in 2013.
By June, Sulatycky and Woolley are to provide city council with a report with enhanced definition and scope of their roles. They’re also to present a plan to transition responsibility for the city’s whistle-blower program (as it relates to council members) from the city auditor’s office to the newly created integrity and ethics office.
Following news of the impending retirement of Supreme Court of Canada Justice Thomas Cromwell, former Liberal minister of justice and attorney general Irwin Cotler is calling for change in the way SCC justices are appointed.
|Irwin Cotler suggests a four-phase SCC justice appoinment process based on his experience as attorney general. (Photo: GMax Photography)|
“Regretfully, the judicial appointments process for the Supreme Court of Canada has been effectively dismantled,” says Cotler, the former MP for Mount Royal and attorney general from 2003 to 2006. Cotler was in Toronto for an event for the Pearson Centre for Progressive Policy last week.
“What we need to do . . . is to return to what I once enunciated as the four stages for a comprehensive, and representative and inclusive judicial appointments process for the Supreme Court of Canada, that will be anchored in merit, that will reflect our diversity, and will end up in having not only the best people appointed but achieving the best process for that purpose,” said Cotler.
Based on his experiences, Cotler recommends a first stage where a protocol would be established, spelling out the people the minister of justice would consult in her search for a new justice, and the personal and professional qualities the new justice would hold.
In stage two, a nine-person advisory group would look at the list, and report back on their top three picks. Depending on the region the retired justice hailed from, this group would include a representative of the corresponding law society, a representative from the Canadian Judicial Council, a representative of the Canadian Bar Association, and parliamentarians, as well as two “eminent” public citizens.
“They would engage in their own independent consultation process, and take that group of five to eight that they got, and winnow it down to three,” said Cotler. “They were also able to suggest somebody that might not have been part of the initial five to eight, if there were compelling reasons that a person was overlooked or should be considered.”
In the third stage, Cotler says the minister would “re-enter the consultative process” after receiving the short list and discuss the results.
In the fourth stage, a parliamentary hearing would take place to discuss the choice.
Cotler didn’t mince words, stating Prime Minister Justin Trudeau should take a look at making what’s old new again.
“I’m saying that [Trudeau] bring back the four-staged process, as I outlined it. I think each stage can be refined and improved, and that we have a process that is open, transparent, comprehensive, inclusive and accountable,” said Cotler. “The public is part of that transparency and accountability process.”
Cotler’s calls for change aren’t new. In 2014, he suggested the Conservative government then in power “adopt a more representative and inclusive approach similar to that which I employed as minister of justice, in consultation with Parliament
“That approach could include a more broadly representative and inclusive judicial advisory selection panel, where no political party has a majority (as the government now gives itself), parliamentarians as a whole are in the minority, and the provincial attorney general and provincial bar are represented, along with the Canadian Bar Association and the Canadian Judicial Conference; a protocol of consultation published by the minister of justice, setting out whom the minister intends to consult and with whom the advisory panel will meet; a public announcement by the minister of the criteria by which each candidate will be evaluated; and a final hearing at which the minister of justice – and not only the nominee – answers questions from parliamentarians, notably regarding how the nominee meets the established criteria,” he wrote then.
But with a new government, perhaps Cotler’s calls for change have newly empowered listeners. Last week’s event to honour Cotler was attended by Liberal supporters like Minister of Indigenous Affairs and Northern Development Carolyn Bennett, Minister of Natural Resources Jim Carr, and Minister of Environment and Climate Change Catherine McKenna. Ontario Attorney General Madeleine Meilleur was also in attendance.
The province of Ontario has formally opened up the call for lawyers to apply to provide paid, free advice to sexual assault survivors.
|The province of Ontario is looking for lawyers to apply to provide paid, free advice to sexual assault survivors.|
“The scope of legal advice will be based on each survivor’s individual needs, in order to help him or her make an informed decision about what their next steps will be,” says the Burke.
“Lawyers will give advice on the options that are available to survivors. In some cases, a survivor may seek legal advice on whether or not to press charges. The details of those conversations would be protected by solicitor-client privilege,” she says.
Lawyers who wish to take part must be licensed to practise law in Ontario, as well as have experience dealing with survivors of sexual assault.
They will be expected to provide their advice to sexual assault survivors either by phone or in person, and to attend training in advance of participating in the program.
“It will not include legal representation in court,” says Burke.
Lawyers will be paid $136/hour for a maximum of four hours per client, she says.
The province anticipates the program will be for victims who are at least 16 years old, and live in one of the pilot communities. The program will likely focus on sexual assaults that happened with Ontario, she says.
Professionals in the legal community are supportive of the program.
“I think it’s helpful to provide legal advice to all persons in the criminal justice system,” says Anthony Moustacalis, president of the Criminal Lawyers’ Association of Ontario.
Moustacalis says the program “simplifies and broadens” the availability of legal advice.
Toronto criminal lawyer David Butt says he is “pleased to see Ontario taking this small but important step to improve access to justice for sexual assault survivors.”
“I hope this is one of many more changes to come that will enable us as a society to fully and fairly integrate survivors into our justice processes,” says Butt.
More details will be available after the program fully launches this spring.
A former senior Justice Department lawyer who is challenging Ottawa’s constitutional review process says the rise of the Trudeau Liberals will not influence his decision on whether or not to seek an appeal after the Federal Court yesterday dismissed his case.
|‘[I]f your standard is an argument, it’s virtually no standard, in my view,’ says Edgar Schmidt.|
“If the minister were to say, ‘We are going to amend these examination provisions to ensure that in the future more rigorous examinations are conducted’ . . . that would make an appeal sort of unnecessary,” Schmidt tells Legal Feeds.
Schmidt, who is now retired, was suspended without pay in 2012 after launching a court challenge in which he alleged that the government had been ignoring its statutory obligation to report potential constitutional inconsistencies to Parliament when tabling legislation.
Though the current government decided last week to launch a study of how constitutional issues are flagged in Parliament, Justice Minister Jody Wilson-Raybould has yet to commit to a higher standard of review.
Under the Conservative regime, Ottawa was accused of playing politics by passing tough-on-crime legislation that, according to civil servants like Schmidt, had virtually no chance of passing muster with the judiciary. Many of these laws were ultimately struck down by the Supreme Court of Canada.
This exercise in political brinksmanship — daring the judiciary to strike down popular laws — led to years of growing animosity between the executive and judicial branches of government, and it’s one of the key reasons why, according to Schmidt, the constitutional review process should be more meaningful.
“If this truly is the law, that ministers and government are free to act in ways that they themselves believe is unconstitutional, I think that creates a context for unnecessary tension between the branches of the state.”
Schmidt’s arguments, however, were dismissed yesterday at the Federal Court by Justice Simon Noël, who issued a 146-page decision that reaffirmed a low standard for constitutional review and left it to the minister of justice alone to decide whether any “credible argument” can be made in favour of constitutional consistency.
Noël’s decision, moreover, suggests that Parliament intended for a weak standard for constitutional review, and that the minister of justice should not be constrained by the reports of civil servants.
“The Minister of Justice is not Atlas, carrying the world of guaranteed rights on her shoulders,” the decision states. “The legislator aimed to promote consistency with guaranteed rights but did not impose on the Minister of Justice the onerous and most likely impossible responsibility of guaranteeing inconsistency-free legislation.”
Schmidt says he believes the decision is flawed and that Parliament would not have created a review process that could be so easily circumvented by concocting an argument in favour.
“I find it very hard to imagine any law for which you can’t come up with some argument,” he says. “So if your standard is an argument, it’s virtually no standard, in my view.”
In his submissions to the court, Schmidt says he and his counsel drew a parallel with fiduciary duties held by corporate directors and officers — where directors and officers are compelled to serve the interests of the entire organization, regardless of the stake held by any shareholder.
Similarly, he says, public servants must not be forced to serve the interests of government at the expense of the state.
“When I was suspended without pay upon filing this claim, the allegation of the department was that I was acting disloyally. Well, you have to know to whom you were supposed to be loyal before you can conclude whether there is disloyalty, right? And my view is that public servants are state employees.
“Citizens have a right to expect that their government and their Parliament will comply with the most fundamental decision of the Canadian state — that’s the Constitution. They have the right to expect that Parliament and government and ministers will act in ways that they honestly and reasonably believe are consistent with the Constitution.”
Despite the initial impression that Noël’s decision is wrong, Schmidt says he hasn’t decided whether to pursue an appeal.
“I’ll have to consider with counsel whether an appeal is warranted, and whether or not we can stay with that initial impression.”
New provisions under the EU-Canada Comprehensive Economic and Trade Agreement will bring “crucially important” changes to arbitration involving states and foreign investors, a lawyer says.
|Greg Tereposky says the changes will improve the quality of decisions and eliminate bias some arbitrators show to party that appointed them.|
Gregory Tereposky, an international trade and investment lawyer at Borden Ladner Gervais LLP, says this will create much-needed consistency of tribunal decisions in investor dispute cases, an area now plagued by discrepancies. It will also improve the quality of decisions and eliminate the bias some arbitrators show towards the party that’s appointed them, he says.
Traditionally, the investor and the respondent government would appoint one arbitrator each, and a third party would select the third arbitrator.
“You think it shouldn’t happen, but you do have situations where . . . arbitrators can be very biased towards the party that appointed them. And this works both for governments and investors,” he says.
According to Tereposky, it’s also not uncommon to see arbitrators, selected from a global pool, get the law flat out wrong.
“Not all arbitrators are versed to the same level in the law and not all take a similar approach to the law,” he says. “As legal counsel on these cases, it’s very frustrating when arbitrators clearly get the law wrong but you can’t challenge them. The only time you can challenge them is . . . when there is a manifest misuse of power.”
Thanks to additional changes to CETA, lawyers can now challenge the decision of arbitrators through a newly formed appellate body.
“It will create a much more detailed and consistent body of law,” says Tereposky. “When you look at it from a systemic perspective, it’s a very positive thing.”
The changes will make the dispute resolution system work like an international court, according to EU Trade Commissioner Cecilia Malmström.
“I’m delighted with this result,” Malmström said in a press release. “CETA takes on board our new approach on investment and its dispute settlement. By making the system work like an international court, these changes will ensure that citizens can trust it to deliver fair and objective judgments. We can confidently say that we’ve met the expectations of both the member states and the European Parliament.”
Tereposky says a preamble in the updated agreement may be used to provide governments with what he calls “regulatory space.” It says the provisions will protect investors and their investments “without undermining the right of the parties [EU and Canada] to regulate in the public interest within their territories.”
This seemingly innocuous language will have “a very big effect,” says Tereposky.
“These types of provisions have already been interpreted in the [World Trade Organization] context to provide regulatory space for governments to regulate in a way which isn’t sanctioned by agreements,” he adds.
The ongoing haze around shifting pot legislation in Canada got a little less cloudy last week with a ruling by Federal Court Justice Michael Phelan.
|Despite how long medical marijuna has been available, there is not much evidence on its use and effects, wrote the judge. (Photo: Steve Dipaola/Reuters)|
Phelan sided with four medical marijuana users who argued their Charter rights were violated, and gave the federal government six months to get its legislative house in order in response to the decision.
But for close-reading legal eagles interested in ongoing litigation regarding pot, Phelan had some strong words on expert testimony presented during the trial. The issue has been percolating on the public policy agenda for years, and Phelan minced no words, particularly towards the government.
“A clear theme running through the evidence of this trial is that despite the lengthy period for which marihuana for medical purposes has been available, there is a paucity of evidence, particularly from government, in respect of its use and effects,” said the ruling.
“Marihuana is not treated as a ‘medicine’ by statute, regulation or policy, and the information gap posed a significant problem. In addition to methods of consumption, the evidence adduced during the course of the litigation focused on the Plaintiff’s access to marihuana considering dosages, strains, cultivation, cost economics and the administration of the drug in other jurisdictions.”
Phelan lists eight lay and 13 expert witnesses for the plaintiffs. They included an experts on botany and pharmacology, cultivation, horticulture, affordability and access, and on medical evidence including strain and dosage.
It also lists four lay and 14 expert witnesses for the government. They included experts on cost economics, cannabis use in Israel, mould, fire risk, and property value.
In his ruling, Phelan said he had to approach some expert testimony with caution.
“The Defendant canvassed the risks of cultivation through ‘expert’ witnesses. By way of overview, it is necessary for the Court to provide some context for its consideration of social science and other ‘non-hard’ science expert witnesses. Many ‘expert’ witnesses were so imbued with a belief for or against marijuana — almost a religious fervor — that the Court had to approach such evidence with a significant degree of caution and scepticism.”
Phelan also said in his ruling, “the evidence of some of the ‘experts’ on both sides will be given little or no weight.” These are strong words from a judge.
“Some had their evidence shredded in cross-examination; this was particularly true of some of the Defendant’s non-technical ‘experts,’” he noted.
Phelan’s criticisms didn’t stop there.
“With respect to health and safety risks, the Defendant submits that the witnesses provided cogent evidence to illustrate the risks associated with cannabis growing operations,” he said. “I find that the evidence was insufficient and largely did not distinguish between legal cannabis growing operation under the (Marihuana Medical Access Regulations) and illegal growing operations. Additionally, there was limited, if any expert evidence that convincingly asserted that these risks exist across the country and to a magnitude that mandates state interference.”
It’s unclear how Phelan’s ruling will affect the next (inevitable) challenge regarding pot, and expert testimony. However, lawyers welcomed the ruling.
A lawyer who works for a company in the late stage of applying to become a licensed producer of marijuana, said, “at least for some, uninsured commercially produced medical marijuana is not a practical means of access.”
“I have always believed that access to medical marijuana is the number one priority of any access program,” says John Fowler, a lawyer and president of Supreme Pharmaceuticals.
“While the MMPR represents a huge step forward for many patients, [like] more secure supply, less risk of shortages, better quality assurance and eventually insurance coverage, for some, the costs are prohibitive,” says Fowler. “Therefore, while we have always believed that there needs to be improved access for a certain small class of patients, I was surprised that the plaintiffs were able to meet the burden of proof with the evidence presented.”
Fowler said “for the entire industry, this is a huge step forward.”
“For marginalized patients, this represents a confirmation that access must be actual and not illusory,” he says.
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.
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