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Official Magazine of the Ontario Bar Association - A Branch of the Canadian Bar Association

February 2010 | Vol. 35 No. 1

EnBref

BRIEFLYspeaking

THE

ISSUE Canadians in Peril Abroad Bonjour, Paris! Practising Abroad: The Swiss Experience International Family and Child Law Out of Africa And More...

ALSO IN THIS ISSUE: On The Move with Attorney General Chris Bentley


INSTITUTE The 35th Annual OBA Institute of Continuing Legal Education

All programs will take place on Tuesday, February 16, 2010 at the Fairmont Royal York Hotel. The exception to this is Criminal Justice which will take place on Saturday, February 20, 2010 at the OBA Conference Centre. Complimentary SeSSion Welcome and Keynote Address 8:30 am - 9:30 am Dr. Samantha Nutt, Founder of War Child Canada Administrative Law - 10 am - 1 pm Second Guesses: Reconsiderations, Judicial Reviews and Appeals Business Law - 10 am - 1 pm Directors’ and Officers’ Liability in the Current Marketplace Charity and Not-for-Profit Law - 10 am - 1 pm Doing Good, While Avoiding Legal and Liability Problems: A Primer for Lawyers on Advising and Sitting on Non-Profit Boards and Charities

Labour and Employment - 2 pm - 5 pm The Changing Face of Labour and Employment Law Municipal Law - Current Municipal and Planning Law Issues Part I: Planning Law Issues - 10 am - 1 pm Part II: Municipal Law Issues - 2 pm - 5 pm Natural Resources - 10 am - 1 pm Mining Amendment Act: New Challenges, New Opportunities Pension and Benefits - 10 am - 1 pm Pension and Benefits: The Next Generation Privacy Law - 2 pm - 5 pm Sharing and Using Personal Information in a Digital Environment: Striking the Privacy Balance

Citizenship and Immigration / International Law 2 pm - 5 pm Navigating the International Assignment Maze: Immigration, Employment and Taxation Issues in Foreign Worker Transfers

Public Sector Lawyers - 10 am - 1 pm Self-represented Litigants: Practice Tips for Counsel and Adjudicators

Civil Litigation - 10 am - 5 pm Brave New World: New Rules and New Technology in Civil Litigation

Trusts and Estates - 10 am - 5 pm Grave Consequences: Traps and Pitfalls in Contemporary Estates Law

Corporate Counsel - 10 am - 1 pm Regulatory and Legal Changes on the Horizon: What Every Corporate Counsel Must Know Environmental Law - 2 pm - 5 pm Lifecycle of a Spill: From the Hot Call to Putting the Genie Back in the Bottle … and Everything in Between Family Law - 10 am - 5 pm The GPS of Family Law: Where to Start, Where to Go, What’s the Best Way to Get to Resolution Health Law - 2 pm - 5 pm How Legislative Changes Will Affect Your Litigation and Corporate Practices Insolvency Law - 2 pm - 5 pm Restructurings in Canada: What You Need to Know About BIA Proposals and CCAA Plan of Compromise or Arrangement Insurance Law - 10 am - 1 pm The Insured Professional

Real Property - 10 am - 5 pm Closing the Deal

Complimentary SeSSionS Déjeuner-causerie | Bilingual Breakfast 8h - 9h Le Comité des langues officielles de l’ABO vous présente un déjeuner-causerie des sujets actuels au cours de l’Institute annuel. The OBA’s Official Languages Committee presents a current issues bilingual breakfast during the Annual Institute. YLD Breakfast Event - 8:30 am - 10 am Top Ten Mistakes Made by Young Litigators and How to Avoid Them in the Courtroom Sole, Small Firm and General Practice Reception 5:00 pm - 6:30 pm SATuRDAY, FEBRuARY 20, 2010 (oBa Conference Centre) Criminal Justice - 9 am - 4 pm, Saturday, February 20, 2010 The Ultimate Guide to Running a Trial

For more information, please visit: www.oba.org/Institute2010


BRIEFLYspeaking OBA Officers/ Comité directeur de l’ABO Carole J. Brown President/Président Lee Akazaki Vice President/Vice-président Douglas R. Downey Secretary/Secrétaire Jonathan C. Yen Treasurer/Trésorier Roderic Ferguson, Q.C. Chair, Professional Development/ Président du développement professionnel Jamie K. Trimble Immediate Past President/Président sortante Steve Pengelly Executive Director/Directeur exécutif Editorial Board/Comité rédacteur James Morton Chair / Président Steinberg Morton Hope & Israel LLP Nancy Cooper Nancy E. Cooper Law Office Hilary Linton Riverdale Mediation Jeffrey S. Percival Ogilvy Renault LLP Maria Sagan Student Editor / Rédactrice étudiante J. Andrew Sprague Miller Thomson LLP Questions or Comments? / Questions ou commentaires? Editorial Team, Briefly Speaking/ Rédaction, En bref Julia Hanigsberg Ryerson University Chair, Public Affairs Committee Président, Comité des affaires publiques

20 28 33 42

Out of Africa

Bonjour, Paris!

Run For the Border

Canadians in Peril Abroad

FEATURES

Out of Africa | Abena Buahene | 20 Home Court Advantage / L’avantage de Jouer à Domicile | C. Thomas Dart | 22 In Memoriam: Rodney Hull | Suzana Popovic-Montag | 25 Behind the Bench | 26 Bonjour, Paris! | David Corbett | 28 Ontario Court Accessibility for People with Disabilities | Joy-Ann Cohen | 29 On The Move with Attorney General Chris Bentley | Louise Harris | 30 Run For the Border | Frances Jagtoo | 33 Making A World of Difference | 34 International Family and Child Law | Jeffery Wilson | 35

Louise Harris Director of Public Affairs/ Directrice des affaires publiques 416-869-1047 ext/poste 317 lharris@oba.org

Coming Soon: Mandatory Continuing Professional Development | David Sterns | 36

Cheryl Crocker Public Affairs Officer/ Responsable des affaires publiques 416-869-1047 ext/poste 309 ccrocker@oba.org

Canadians in Peril Abroad | H. Scott Fairley | 42

Rob Gilmour Advertising Sales Vente d’annonces 416-869-1047 ext/poste 406 Filippo Conte Bilingual Public Affairs Officer/ Responsable bilingue des affaires publiques 416-869-1047 ext/poste 346 Alex Pacheco Graphic Design/Graphisme 416-869-1047 ext/poste 363

PUBLICATIONS AGREEMENT NUMBER 40069139 RETURN UNDELIVERED CANADIAN ADDRESSES TO: OBA | 300-20 TORONTO ST TORONTO, ON | M5C 2B8

The Supreme Court of Canada’s Support of Journalism | Julian Porter | 38 Practising Abroad: The Swiss Experience | Francis I. Rojas | 40

Christopher Skinner Reward | Marshall Drukarsh | 46

COLUMNS Nota Bene | 2 President’s Message/ Message de la président | 4 Supreme Court of Canada Update | Eugene Meehan Q.C. | 6 Report From Council | Lee Akazaki | 9

CORRECTION December 2009 – Vol. 34, No.6

• CART has been used in Ontario courts Patricia Hughes | 10 for the past decade. Queen’s Park Update / Mise à jour de Queen’s Park | Peter Kormos, MPP Welland | 12 Lorin MacDonald was the first to use it in Advocacy In Action | 14 Hamilton. Accessibility and The Courts, p.27 Legal Aid Ontario Update | 16 Law Commission of Ontario Update / Commission de droit de l’Ontario |

Spotlight On Sections: International Law | John W. Boscariol | 19

The opinions expressed by the authors in Briefly Speaking are not necessarily the approved views of the OBA.

Briefly Speaking • En Bref | February 2010

• Shelley Timms authored The Diversity Program Welcomes Two New Members, p.33.

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NOTA BENE

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N ot a Bene bene nota bene nota bene nota bene nota bene nota bene nota

John A. Campion of Fasken Martineau DuMoulin LLP, has been elected 2009-2010 president of the Federation of Law Societies of Canada. ONTARIO COURT OF JUSTICE

Mr. Justice Steve Anthony Coroza was called to the Bar in 1997. He worked with the Ontario Legal Aid Plan as a staff duty counsel in criminal matters and as a federal Crown counsel since July 1998. As senior counsel to the Public Prosecution Service of Canada, he prosecuted offences and appeared at all levels of court in Ontario. He also supervised over 100 federal Crown agents throughout southern Ontario. He taught at Seneca College, Osgoode Hall Law School and the Advocates’ Society and has been a panellist and presenter at various law associations’ sessions. Justice Coroza served on the board of directors of the Alzheimer Society of Peel and as treasurer of the Mississauga Community Legal Services clinic. Chief Justice Annemarie E. Bonkalo has assigned Justice Coroza to preside in St. Catharines.

Madam Justice Joyce Susan Elder was called to the Bar in 1985 and became an associate at Vaughan, Willms in Toronto. In 1986, she became an associate at Cheadle, Bryan, Johnson, Shanks in Thunder Bay. In 1990, she co-founded the law firm Bode and Tom, and since 1996, has been a sole practitioner. In 1988 she became a panel member for the Office of the Children’s Lawyer representing children in dependents’ relief proceedings, custody and access disputes and child protection matters. She was also a settlement conference facilitator for Legal Aid Ontario and a panel member of Pro Bono Ontario’s Child Advocacy Project. Madam Justice Elder was a member of the Ontario Review Board and on the board of directors of the Children’s Centre in Thunder Bay. Chief Justice Annemarie E. Bonkalo has assigned Madam Justice Elder to preside in Thunder Bay.

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Madam Justice Leslie Chapin was called to the Bar in 1989. She practised civil litigation and family law at Enfield, Hemmerick, Adair and Wood in Toronto, before joining the Ministry of the Attorney General as an assistant Crown

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Attorney in 1990. Most recently, she was deputy director of Crown operations in the Toronto region, providing legal and strategic advice to Crown attorneys in four offices. She was counsel to the regional director of Crown operations and acting director of the Special Investigations Unit. Madam Justice Chapin was also a member of the Ontario Crown Attorneys’ Association and a board member of the East End Children’s Centre. She has lectured at Osgoode Hall to the community and police about criminal law matters. Chief Justice Annemarie E. Bonkalo has assigned Madam Justice Chapin to preside in Toronto.

Mr. Justice Neil Kozloff was called to the Bar in 1979. He was an assistant Crown attorney and has prosecuted criminal charges in North York, Toronto, York Region, Durham and Peel. Since 1988, he was a sole practitioner appearing in all levels of court and tribunals, representing clients in a variety of criminal and quasi-criminal cases. Since 2005, he has led a team of lawyers representing the Ontario Provincial Police at the Cornwall Public Inquiry. He was a member of the Criminal Lawyers’ Association and the Ontario Crown Attorneys’ Association. Justice Kozloff has also served on the North York Mayor’s Committee on Youth Violence and participated in several fund-raising activities for Gilda’s Club of Greater Toronto. Chief Justice Annemarie E. Bonkalo has assigned Justice Kozloff to preside in Toronto. Madam Justice Diane Oleskiw was called to the Bar in 1989 in Ontario and in 2004 in the Yukon. From 1989 to 1991 she practised with Borden & Elliot in the areas of constitutional, administrative and criminal litigation. In April 1991, she joined the Ministry of the Attorney General as a Crown counsel in the Crown Law Office-Criminal and regularly appeared before the Court of Appeal. Since December 1993, she was a sole practitioner in criminal law. She has given many presentations and participated in workshops on various legal topics at children’s centres, women’s centres, rape crisis centres and new immigration programs. Madam Justice Oleskiw has been a member of the Criminal Lawyers’ Association and the Advocates’ Society. Chief Justice Annemarie E. Bonkalo has assigned Madam Justice Oleskiw to preside in Toronto. SUPERIOR COURT OF JUSTICE

The Honourable Mr. Justice R. Dan Cornell, partner of the February 2010 | Briefly Speaking • En Bref


NOTA BENE firm Cornell Mortlock & Sillberg in Lindsay, Ontario, is appointed a Judge of the Superior Court of Justice of Ontario in Sudbury. He will replace the Honourable P. B. Kane, who was transferred to Ottawa to replace the Honourable Justice A. de L. Panet, who passed away on June 20, 2009.

Mr. Justice Cornell attended the University of Toronto from 1973 to 1975. He then completed a Bachelor of Laws (LLB) from Osgoode Hall Law School in 1978 and was called to the Ontario Bar in 1980. Mr. Justice Cornell was a sole practitioner from 1980 to 1984 and an associate with Mortlock & Sillberg from 1984 to 1990, and then partner with Cornell Mortlock & Sillberg from 1990 to 2009. He was also part-time Assistant Crown Attorney from 1985 to 1998. Mr. Justice Cornell worked with the Canadian Aviation Regulation Advisory Council to help develop and refine the aviation regulatory regime in Canada. His main areas of practice included family law, civil litigation, real estate, wills and estates, corporate, commercial and aviation law. Professionally, Mr. Justice Cornell was active in the Lindsay Law Association, Chair of the Osgoode Hall Law School, Legal Resource and Education Committee and part-time lecturer at the University of Western Ontario. His community involvement included the Red Cross, United Way, Rotary Club, Victoria County Historical Society, Lindsay Board of Parks Management and Economic Redevelopment Committee, as well as various local non-profit housing organizations.

The Honourable Madam Justice Cindy A.M. MacDonald, an associate with Girones Lawyers in Timmins, Ontario, is appointed a Judge of the Superior Court of Justice of Ontario in Cochrane. She replaces the Honourable Justice D. Nadeau, who was transferred to North Bay to replace the Honourable Justice G.T.S. Valin, who elected to become a supernumerary judge as of March 25, 2009. Madam Justice MacDonald obtained a civil law degree (LLL) in 1991 and Bachelor of Laws (LLB) in 1993 from the University of Ottawa. She was called to the Bar of Quebec in 1992 and the Ontario Bar in 1996. She practised with Dupont Landreville from 1992 to 1993. Since 1994, she has been an associate with Girones Lawyers in Timmins. She has practised in the area of family law and criminal law but more recently has focused on civil litigation including medical malpractice.

Madam Justice MacDonald is a member of the Advocates Society, Canadian Bar Association, Ontario Trial Lawyers’ Association and American Association of Justice, and involved in community organizations, including the Timmins Symphony Orchestra.

ted to the Ontario Bar in 1988. Mr. Justice Stratas was a Law Clerk to the Honourable Bertha Wilson at the Supreme Court of Canada from 1986 to 1987. He was an associate with Osler, Hoskin from 1988 to 1994 and partner from 1994 to 1998. From 1998 to 2001 he was a partner with Hicks Morley Hamilton Stewart Storrie, and from 2001 to the present, a partner with Heenan Blaikie LLP. His main practice areas are administrative law, constitutional law, aboriginal law, regulatory law, freedom of information, intellectual property, class actions and commercial law. Mr. Justice Stratas has been a frequent speaker, guest lecturer and instructor on various legal topics. He is a past member of the Ontario Bar Association’s Constitutional and Civil Liberties Section and Canada AIDS Russia Project. Over the course of his legal career, he has been an active participant in various pro bono activities and supporter of Horizons for Youth in Toronto and the Rose and Zai Breakfast Fund in Kingston, Ontario. AWARD ANNOUNCEMENTS

The Insurance Law Section of the OBA will present its 5th Annual Award for Excellence in Insurance Law at the Intercontinental Toronto Centre on Thursday, April 15th, 2010. Please mark your calendar and stay tuned to the website for registration information. The Family Law Section of the OBA will present its Award for Excellence in Family Law, in memory of James G. McLeod, in early June 2010. Check the website for more details. The Insolvency Law Section of the OBA will present its inaugural 2010 Murray Klein Award For Excellence In Insolvency Law in Spring 2010. CALL FOR NOMINATIONS

The following are currently accepting nominations for their Section’s Award for Excellence:

International Law Section - Nominations close Friday, February 26, 2010. Visit the website for more information: www.oba.org/2010InternationalAward Civil Litigation Section - Nominations close Friday, March 5, 2009. Visit the website for more information: www.oba.org/2010CivilLitigationAward

FEDERAL COURT OF APPEAL

The Honourable Mr. Justice David W. Stratas, a partner with Heenan Blaikie in Toronto, is appointed Judge of the Federal Court of Appeal to replace Mr. Justice P. Blais in Ottawa, who was appointed Chief Justice of the Federal Court of Appeal on September 10, 2009. Mr. Justice Stratas obtained a Bachelor of Laws (LLB) from Queen’s University in 1984 and obtained a Bachelor of Civil Law (BCL) from Oxford University in 1986. He was admitBriefly Speaking • En Bref | February 2010

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PRESIDENT’S MESSAGE

Professional Development: A Cornerstone of the OBA President Carole J. Brown

Competence and excellence are cornerstones of professionalism. A competent Bar fosters public confidence and ensures that clients are served with the requisite skill and knowledge. Providing Ontario lawyers with opportunities to enhance legal knowledge, keep abreast of current developments in the law and thereby ensure that clients receive the highest quality legal services, has always been the focus of the OBA’s Professional Development (PD) activities. As you know, the Law Society of Upper Canada (LSUC), at its October meeting of Convocation, approved the Professional Development and Competence and Paralegal Standing Committees’ Joint Report, recommending a consultation with lawyers and paralegals on a proposed Continuing Professional Development (CPD) requirement. As part of the consultation process, I am pleased to report that the OBA Council, at its December meeting, approved in principle mandatory CPD, and has formed a working group that provided an OBA response to the consultation paper on January 15, 2010. We are also working with our national partner, the Canadian Bar Association, on tools, resources and support services that would benefit our members’ interests in this area, should a requirement be mandated.

Professional Development has always been a cornerstone of the OBA and our members have been at the forefront when it comes to engaging in our PD activities. Through our 35 Practice Sections, and numerous PD committees, the OBA annually draws on the collective wisdom of over 1,500 speakers to provide more than 200 programs and associated materials. The choices are many, and, given the enthusiastic participation of thousands of OBA members each year who attend our programs, purchase a publication, audit an archived webcast, chair a CLE program, write an article for a Section newsletter or CLE program, speak at a Section dinner or provide mentorship to a young lawyer, the OBA is an unparalleled source for professional development. 4

This edition of Briefly Speaking highlights one of the most successful and respected continuing legal education events in the country, the OBA’s Annual Institute. Each year, more than a thousand leading practitioners from across the province attend the Institute, which is one of the largest annual professional development events in the country.

Institute 2010 will continue to build on its reputation of delivering relevant, quality programs and a forum for OBA members and non-member colleagues to renew acquaintances and network. This year, the Institute returns to the Royal York Hotel in Toronto on Tuesday, February 16, 2010. The Institute’s criminal justice program, with exhibitors, will be hosted on Saturday, February 20, at the OBA Conference Centre. Institute 2010 will offer best value yet, with registration fee for multiple program registrations, distance discounts and an online micro-site so that every registrant will have access to a complete set of all materials from all programs. Twenty full and half-day CLE programs will be available as well as a trade showcase of the latest in legal, financial, consumer and lifestyle products and services for lawyers.

One significant addition to this year’s Institute will be a plenary session in the morning, open to all registrants, featuring keynote speaker Dr. Samantha Nutt, founder and executive director of War Child Canada. Dr. Nutt was chosen by Maclean’s Magazine for their annual Honour Roll as one of “12 Canadians making a difference”.

Our members volunteer countless hours to the development and presentation of a wide range of high-quality professional development programs each year. This is a truly significant demonstration of dedication and commitment, and I want to take this opportunity, personally, and on behalf of the OBA Board of Directors, to thank all of you for your work in making the OBA a leading and respected source of legal knowledge, education and training in Ontario.

February 2010 | Briefly Speaking • En Bref


MESSAGE DE LA PRÉSIDENTE

Le Perfectionnement Personnel, l’une des Pierres Angulaires de l’ABO Carole J. Brown, Présidente

La compétence et l’excellence constituent les éléments essentiels du professionnalisme. Un Barreau compétent favorise la confiance du public et permet de s’assurer que les clients bénéficient des compétences et des connaissances requises. Les activités de perfectionnement professionnel (PP) de l’OBA se sont toujours attachées à fournir aux avocats de l’Ontario des occasions de mettre en valeur leurs connaissances juridiques, de se tenir au fait des actualités du domaine juridique, et d’ainsi assurer que les clients bénéficient des meilleurs services juridiques qui soient.

Comme vous le savez déjà, lors de sa réunion du mois d’octobre, le Conseil a approuvé le rapport conjoint du Comité permanent des parajuristes et du Comité sur le perfectionnement professionnel qui recommande une consultation sur la proposition d’une exigence liée au perfectionnement professionnel permanent (PPP) pour les avocats et les parajuristes. Dans le cadre de ce processus de consultation, j’ai le plaisir de signaler que le Conseil de l’ABO, lors de sa réunion du mois de décembre, a approuvé en principe un PPP obligatoire, et a établi un groupe de travail pour déterminer la réaction de l’ABO au document de consultation, le 15 janvier 2010. Nous collaborons également avec notre partenaire national, l’Association du Barreau canadien, pour mettre au point des outils, des ressources et des services de soutien en appui aux intérêts de nos membres dans ce domaine si jamais une exigence réglementaire devenait mandatée. Le perfectionnement professionnel a toujours constitué un fondement essentiel de l’ABO et nos membres sont à l’avantgarde lorsqu’il est question d’activités de PP. Par le truchement de nos 35 sections de pratique du droit et de nos nombreux comités de PP, l’ABO recourt annuellement à la sagesse collective de plus de 1500 conférenciers pour mettre au point plus de 200 programmes et documents afférents. Les choix abondent, et compte tenu de la participation enthousiaste de milliers de membres de l’ABO qui chaque année s’inscrivent à nos programmes, se procurent une publication, effectuent la vérification d’une webémission archivée, président un programme de formation juridique permanente (FJP), font une allocution à l’occasion d’un souper de section, ou offrent un mentorat à un jeune avocat, l’ABO constitue réellement une source unique de formation professionnelle. Briefly Speaking • En Bref | February 2010

La présente édition d’En Bref souligne l’un des événements de formation juridique permanente les plus réussis et respectés au pays, l’Institut annuel de l’OBA. Chaque année, plus de mille spécialistes de renom des quatre coins de la province prennent part à l’Institut, l’un des plus importants événements annuels de perfectionnement professionnel au pays.

L’Institut 2010 continuera à accroître sa réputation en proposant des programmes opportuns et de qualité, ainsi qu’une tribune permettant aux membres de l’ABO et à leurs collègues non-membres de renouer et d’établir de nouvelles relations. Cette année, l’Institut se tiendra à nouveau à l’hôtel Royal York de Toronto, le mardi 16 février 2010. Le programme de justice pénale de l’Institut, et son exposition, auront lieu le samedi 20 février, au Centre de conférences de l’ABO. L’édition 2010 de l’Institut sera encore meilleure que celle des années précédentes. Nous proposerons des droits d’inscription réduits pour les inscriptions à plusieurs programmes, des rabais en fonction de la distance, et un microsite en ligne, de manière à ce que chaque personne inscrite puisse avoir accès à la gamme complète des documents de tous les programmes. Vingt programmes de FJP d’une journée ou d’une demi-journée seront disponibles, en plus d’une vitrine professionnelle des plus récents produits et services juridiques, financiers, de consommation et de mode de vie conçus pour les avocats.

Ajout important à l’Institut cette année, l’assemblée plénière de la matinée, ouverte à toutes les personnes inscrites, avec la conférencière d’honneur, le Dr Samantha Nutt, fondatrice et directrice générale de War Child Canada. Le Dr Nutt a été choisi par le magazine Maclean’s dans le cadre de son tableau d’honneur des « 12 Canadiens qui font la différence ».

Chaque année, nos membres consacrent gracieusement d’innombrables heures au développement et à la présentation d’un vaste éventail de programmes de perfectionnement professionnel de qualité supérieure. Il s’agit là d’une démonstration réellement significative de dévouement et d’engagement, et je souhaite saisir cette occasion, au nom du conseil d’administration de l’ABO, pour vous remercier personnellement pour votre travail, grâce auquel l’OBA constitue une source respectée de connaissances, d’éducation et de formation en matière juridique.

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SUPREME COURT OF CANADA UPDATE

Summaries Eugene Meehan, Q.C.

H

ere’s a summary of all appeals and all leaves to appeal (ones granted – so you know what areas of law the S.C.C. will soon be dealing with). For leaves I’ve specifically added in both the date the S.C.C. granted leave and the date of the C.A. judgment below, in case you want to track and check out the C.A. judgment. This summary covers October 27, 2009 - December 22, 2009. If you’d like previous reports so you’re rightup-to-date, let me know, and I’ll e-mail them to you: emeehan@langmichener.ca.

tirely interprovincial (even though one branch picked up and consolidated freight within the originating province and another branch deconsolidated and delivered in the receiving province) falls within provincial, not federal jurisdiction.

BANKRUPTCY & INSOLVENCY: TAX PRIORITIES

R. v. Bird (Alta. C.A., February 10, 2009) (33054) Dec. 18, 09

APPEAL JUDGMENTS

Quebec (Revenue) v. Caisse populaire Dejardins de Montmagny (32486)(32489) (32492) Oct. 30, 09 The SCC held as follows:

• the GST and QST are similar types of taxes on consumption • t hey are considered to be direct taxes, and the ultimate recipient of taxable goods and services is responsible for paying them • t axes are collected, and credits apply, at each step of the manufacturing and marketing chains • in principle, the supplier acts only as a mandatary of the Crown in collecting and remitting these taxes • nothing in the legislation respecting the GST and the QST requires suppliers to keep the taxes they collect separate • until a bankruptcy occurs, only the deemed trusts established by statute gives tax authorities a right to equivalent amounts from the suppliers’ assets • Canadian tax authorities are bound by the choice of legislative policy now expressed in the federal Bankruptcy and Insolvency Act, which is also binding on the Quebec tax authorities.

CONSTITUTIONAL & LABOUR LAW: DIVISION OF POWERS & JURISDICTION OF BOARDS AND TRIBUNALS Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters (Alta C.A., July 27, 2007) (32290) Nov. 26, 09 6

A freight forwarding company whose operations were en-

CRIMINAL LAW: ABANDONMENT

In the context of a gang rape and homicide the S.C.C. agreed with the dissenting judge in the Court of Appeal that the evidence was incapable of supporting the defence of abandonment. CRIMINAL LAW: ‘HYBRID’ OFFENCES

R. v. Dudley (March 4, 2008) (32603) Dec 17, 2009 The S.C.C. held:

• where the Crown elects to proceed by way of summary conviction, the offence is treated in all respects as a summary conviction offence • t he proceedings must be instituted within six months unless the parties otherwise agree • where the trial has proceeded before a summary conviction court without an express election by the Crown, it will be presumed the Crown has elected to proceed summarily • where it is discovered before adjudication on the merits that the proceedings were instituted more than six months after the alleged offence, a mistrial should be declared unless the parties agree to waive the limitation period • where an appeal by the accused is allowed on the sole ground the proceedings were statute-barred and conducted without consent, a conviction at trial should be set aside • in either instance, the Crown may proceed afresh by indictment except where the court is satisfied that this February 2010 | Briefly Speaking • En Bref


SUPREME COURT OF CANADA UPDATE would amount to an abuse of process • an appeal by the Crown against an acquittal on the ground that the proceedings were statute barred will not lie, since it was the Crown’s responsibility to ensure that the proceedings were properly instituted.

CRIMINAL LAW: INFORMER PRIVILEGE

R. v. Basi (B.C.C.A., July 10, 2008) (32719) Nov. 19, 09

“Informer privilege” prohibits disclosure of the identity of a confidential informant, and in this regard the S.C.C held:

• whenever an informer privilege is claimed, or the court of its own motion considers that the privilege appears to arise, its existence must be determined by the court in camera at a “first stage” hearing. • even the existence of the claim cannot be publicly disclosed • ordinarily, only the putative informant and the Crown may appear before the judge • in determining whether the privilege exists, the judge must be satisfied, on a balance of probabilities, that the individual concerned is indeed a confidential informant • if the claim of privilege is established, the judge must give it full effect; trial judges have no discretion to do otherwise • t he informer privilege belongs jointly to the Crown and to the informant; neither can waive it without the consent of the other • where a hearing is required to resolve a Crown claim of privilege, the accused and defence are to be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected - but only to the necessary extent • t rial judges should adopt all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence, and they have broad discretion to craft appropriate procedures in this regard.

CRIMINAL LAW: SEXUAL LURING

R. v. Legare (Alta. C.A., April 10, 2008) (32829) Dec. 3, 09

The criminal law offence of sexual luring comprises three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence - that is, abduction or one of the sexual offences in s. 172.1(1)(c) - with respect to that person. In addition, intent of the accused is to be determined subjectively. CRIMINAL LAW: THE I-LOOK-LIKE-HIM BUT I’M-NOT-HIM DEFENCE TO DEALING CRACK R. v. Burke (Que. C.A., January 19, 2009) (33031) Dec. 4, 09

A police officer arrested an accused without a warrant and, following a search incidental to arrest, found a bag of crack in the accused’s pocket. The arresting officer did not investigate the accused’s claim that he was the brother of the person sought by the arrest warrant at the time of the arrest. At the police station, however, the accused was confirmed not to be the person sought by the warrant. The S.C.C. upheld the Courts below that the search was unreasonable and that the Briefly Speaking • En Bref | February 2010

evidence should have been excluded, such that the accused was acquitted. CRIMINAL LAW/TORTS: MALICIOUS PROSECUTION

Miazga v. Kvello Estate (Sask. C.A., May 30, 2007) (32208) Nov. 6, 2009

A Plaintiff must prove the following to succeed in an action for malicious prosecution: • initiated by the defendant • terminated in favour of the plaintiff • undertaken without reasonable and probable cause • motivated by malice or a primary purpose other than that of carrying the law into effect. Crown prosecutors are immune from judicial review under principles of public law, subject only to the strict application of the doctrine of abuse of process, being (quoting from the Nelles decision): “an improper purpose or motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve.” DEFAMATION: “RESPONSIBLE JOURNALISM” DEFENCE Quan v. Cusson (November 9, 2006) (32420) Dec. 22, 09

The S.C.C. held that there is a “responsible journalism” defence in Ontario law, including for bloggers, the Chief Justice writing “The judge decides whether the publication was on a matter of public interest. If so, the jury then decides whether the standard of responsibility has been met”. DEFAMATION: “RESPONSIBLE JOURNALISM” DEFENCE

Grant v. Torstar Corp. (November 28, 2008) (32932) Dec. 22, 09 See summary above.

INSURANCE: ACCIDENT & DISEASE BENEFIT Co-operators Life Insurance Co. v. Gibbens (B.C.C.A., April 15, 2008) (32677) Dec. 18, 09

A trade union member was employed as a high pressure water blaster, and became a member of the International Brotherhood of Painters and Allied Trades, whereby after a threshold number of hours were performed he was covered by Policy No. G.6639 issued by the Co-operators Life Insurance Company. A term of the policy stated in part that the Applicant pay a benefit for paraplegia or loss of use of both legs upon proof that the loss results “directly and independently of all other causes from bodily injuries occasioned solely through external, violent and accidental means”. The Respondent had unprotected sex with three women during January & February of 2003 and became infected with Herpes Simplex, initially causing “pelvic discomfort”, later transverse myelitis (inflammation of the spinal cord), resulting in paralysis mid-abdomen down. The B.C.S.C. ordered Co-operators to pay $200,000. The B.C.C.A. let his award stand. The S.C.C. had to decide between: getting paid for getting laid or the screwing you get for the screwing you got, and determined it should be the latter, overturning the award. INTERNATIONAL TRADE: COMPLAINTS IN CANADA

JURISDICTION

TO

BRING

Northrop Grumman Overseas Services Corp. v. Canada (Attorney General) (Fed C.A., May 22, 2008) (32752) Nov. 5, 09 7


SUPREME COURT OF CANADA UPDATE A potential supplier for a government procurement that is not a Canadian supplier does not have standing before the Canadian International Trade Tribunal to bring a complaint alleging an unfair bidding process based on the Agreement on Internal Trade. LABOUR LAW: BUSINESS CLOSURES

Plourde v. Wal-Mart Canada Corp. (Que. C.A., September 14, 2007) (32342) Nov. 27, 09

A complaint to the Quebec Commission des relations du travail requires “the existence of an ongoing workplace”, and there being none here (the store having been closed by Walmart) the necessary foundation of a complaint under s. 15 of the Quebec Labour Code was absent. LABOUR LAW: BUSINESS CLOSURES

Desbiens v. Wal-Mart Canada Corp. (Que. C.A., Feb. 6, 2008) (32527) Nov. 27, 09 Same summary as above.

LEAVES TO APPEAL GRANTED ABORIGINAL LAW: CONSULTATION What is the appropriate level of aboriginal consultation in water and related resources with regard to a hydro project?

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, British Columbia Utilities Commission (B.C.C.A., February 18, 2009) (33132) Nov. 5, 09 ACCESS TO INFORMATION

Can the Minister of Transport’s itinerary and/or meeting schedules be accessed? Information Commissioner of Canada v. Minister of Transport Canada (Fed. C.A., May 27, 2009) (33296) Dec. 17, 2009 ACCESS TO INFORMATION

Does the federal Crown have a priority for GST where a debtor assigns itself into bankruptcy?

Century Services Inc. v. Attorney General of Canada et al (B.C.C.A., May 7, 2009) (33239) Nov. 5, 09

CIVIL PROCEDURE: MAREVA INJUCTIONS; ANTON PILLER ORDERS; ROWBOTHAM APPLICATIONS In the context of the 1985 Air India bombing, should Mr. Malik be granted a Rowbotham funding order, and should the A.G.B.C. be granted a Mareva injunction and Anton Piller order? A.G. B.C. v. Ripudaman Singh Malik, Raminder Malik and Jaspreet S. Malik (B.C.C.A., May 7, 2009) (33266) Dec. 10, 09 CLASS ACTIONS: ARBITRATE OR LITIGATE

Is the arbitration clause in a cell phone contract enforceable?

Michelle Seidel v. Telus Communications Inc. (B.C.C.A., March 13, 2009) (33154) Nov. 5, 09 CLASS ACTIONS: SHARE PROSPECTUS DISCLOSURE

Should a class action on the basis of a fiduciary duty being owed to investors be permitted to proceed? Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. et al. (B.C.C.A., May 22, 2009) (33280) Dec. 17, 2009 COMMON LAW: ASSET DIVISION; SUPPORT; COMPENSATION FOR UNJUST ENRICHMENT

On the facts of this case (a common law relationship from 1994-2005 with two children) what is the appropriate asset division, child and spousal support, as well as compensation for unjust enrichment? Vanasse v. Seguin (Ont. C.A., July 29, 2009) (33358) Dec. 17, 09 CRIMINAL LAW: AIDING & ABETTING

Can the PM’s daily agenda be accessed?

There is a publication ban in this case where the main issue is the trial judge’s instructions to with regard aiding and abetting, and similar fact evidence.

ACCESS TO INFORMATION

CRIMINAL LAW: FRESH EVIDENCE

Information Commissioner of Canada v. Commissioner of the Royal Canadian Mounted Police (Fed C.A., May 29, 2009) (33297) Dec. 17, 2009 Same summary as above.

Information Commissioner of Canada v. Prime Minister of Canada (Fed. C.A., May 29, 2009) (33299) Dec. 17, 2009 ACCESS TO INFORMATION

Can minutes or documents produced for management meetings with the Minister of National Defence be accessed? Information Commissioner of Canada v. Minister of National Defence (Fed. C.A., May 27, 2009) (33300) Dec. 17, 2009 ADMINISTRATIVE LAW: ARBITRATIONS

In the context of a pipeline constructed on Alberta farmland, what can be dealt with (including costs) in an arbitration under the National Energy Board Act, and what cannot? R.W.P. v. Her Majesty the Queen (B.C.C.A., June 25, 2009) (33288) Nov. 26, 09 8

BANKRUPTCY & INSOLVENCY: CROWN PRIORITY FOR GST

R.W.P. v. Her Majesty the Queen (B.C.C.A., June 25, 2009) (33288) Nov. 26, 09

There is a publication ban in this case where the main issue is whether fresh evidence can be admitted in a sexual assault case where the accused was a residential counsellor at a centre for adults with developmental disabilities. J.R.W. v. Her Majesty the Queen (Ont. C.A., April 23, 1996) (33330) Dec. 3, 09 EXTRADITION

The main issue here is whether someone would be at risk of being mistreated after being extradited, and if so, should they be given refugee status in Canada.

Tiberiu Gavrila v. Minister of Justice of Canada (Quebec C.A., (Montréal), June 30, 2009) (33313) Nov. 27, 09 Eugene Meehan, Q.C. is the chair of the Supreme Court Practice Group with Lang Michener LLP.

February 2010 | Briefly Speaking • En Bref


REPORT FROM COUNCIL

Governance Renewal Highlights from the December OBA Council Meeting Lee Akazaki

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here’s a lot to be excited about in OBA governance. For those who might now turn the page, stop instead, and read on. How an organization runs itself is the lens into its culture. At its December 4, 2009, meeting, OBA Council proved the province’s leading legal association is committed to openness, regional diversity and executive accountability. It did so by ratifying two major initiatives of the Governance Committee: implementation of the OBA by-law revisions, and a new Code of Conduct for volunteers.

speak for and protect the interests of a wide spectrum of lawyers across the province. The full text of the Code can be found on the OBA website: http://www.oba.org/En/ about/main/CodeofConduct.aspx.

BY-LAW REVISIONS

Lee Akazaki is the chair of the OBA Governance Committee. He would like to thank the hard work and dedication of committee members Carole Brown, Jamie Trimble, Jonathan Speigel, Lynda Tanaka, Lillian Camilleri, Janice Vauthier, Christine Long, Steve Pengelly, Shem Singh and Valerie Dallas. Plus a very special thanks to Jonathan Speigel for being the OBA’s official statutory draftsperson.

The Governance Committee has been reviewing the OBA’s governance structure, following Council’s review of the Governance Structure Review, May 31, 2007, prepared by Garthson Leadership Centre. Council’s ratification of by-law amendments completed the current cycle of the committee’s work. What changes are in store for the OBA in 2010? Perhaps the most visible will be the changes to the composition of the Executive, now to be called the Board of Directors: • • •

BrieflySpeakingAd.ai 1/12/2010 7:53:05 AM

Canadian Bar Association Mid-Winter Meeting 2010

Replacement of the office of OBA Vice-President with First Vice-President and Second VicePresident, starting in 2010.

Regional representation of Members-at-Large of the OBA Board.

Chairs of Standing Committees drawn from the OBA Board (formerly the Executive), except for the chairs of the Audit and Professional Development Committees.

OBA CODE OF CONDUCT

Members and visitors to the OBA Conference Centre will observe a new document displayed in the main reception: the OBA Code of Conduct. Until now, the OBA did not have a code of conduct for volunteers. Council considered the importance of permanent, ongoing renewal within the organization to welcome new volunteers from all legal practice sectors and from all stages of legal careers. It accepted the Governance Committee’s recommendation for the adoption of a document containing a restatement of values with a clear and simple dispute resolution mechanism for persons affected by misconduct or disagreements to bring their grievances or concerns. The Code will signify to all members, staff and guests that the OBA is a welcoming institution where all can expect to be treated with dignity, respect, and accommodation. It will also remind all OBA volunteers that the OBA is a consensus organization which aims to Briefly Speaking • En Bref | February 2010

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A Capital Experience Awaits You

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Plan to attend the 2010 CBA Mid-Winter Meeting of Council* in Ottawa, Feb. 12-14, at Ottawa’s historic Fairmont Château Laurier. Business Resolutions, panel discussions and a report by the CBA Working Group negotiating a new Joint Policy Statement on Audit Enquiries with the Canadian Institute of Chartered Accountants Social Receptions, Winterlude Evening, President’s Dinner, and more! Indoor/Outdoor Activities World-class museums and galleries, skating, skiing, ice sculptures

Register now!

Details, Registration www.cba.org/midwinter

*If you are not a voting member of Council, please check with Executive Director Steve Pengelly (spengelly@oba.org) for accreditation.

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LAW COMMISSION OF ONTARIO UPDATE

What’s New at the LCO Patricia Hughes

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he LCO has been busy these last few months. Some of you already know that from LCO staff and OBA members meeting each other at various events and forums, but let me bring you all up to date on how our projects are proceeding. We are currently engaged in consultations in our Family Law Process Project and will be until February. Julie Lassonde, the project head, has kept in touch with the OBA working group and was allowed to attend the OBA-ADR Institute Summit. Obviously, we do not want to duplicate your work or that of the Attorney General; I intend to enrich the family law reform agenda with a different approach that addresses needs which other on-going reform efforts are not addressing. We hope that together our efforts will result in necessary changes to the family law system. We have also released our Consultation Paper on the Modernization of the Provincial Offences Act Project and are in the consultation phase. The deadline for submissions is the beginning of February. The Consultation Paper lists about 20 issues that we might tackle. We’d like to know: •

Are these the “right” issues?

What should we recommend in all or any of these issues?

Are there any missing issues we should address?

We have created an Advisory Group for this project to provide quick feedback, make suggestions and to provide a liaison with their own organizations and others interested in contributing to the project. We hope to release a final report by summer.

Last October we held a roundtable on our project on Joint and Several Liability under the Ontario Business Corporations Act. Those of you who work in this area know the strong feelings this issue engenders and that was evident at the Roundtable. We’ll be issuing a consultation paper shortly and encourage responses from the appropriate OBA Sections to help us get a full picture of this controversial issue.

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Osgoode Hall Law School seconds a faculty member to us every year; over the past two years, we have had the benefit

of two Scholars in Residence for six months each. Sometimes Scholars work on LCO projects, while other Scholars carry out their own projects “in association” with the LCO. We support their work. One of the “in association” projects is on the Intersection of Intellectual Property, Ethics and Privacy Issues in Electronic Medical Records. In December, we held a symposium with invited experts and representatives from affected organizations and groups to explore these issues. This is a particularly timely project and long overdue.

We will be very busy this year seeking renewal of our funding to continue after December 2011, the end of our – I hope – first mandate. We want to be sure to meet our funders’ earliest budgetary timetable and to know whether we’ll be renewed six to nine months before the end of the current mandate. We’re also having an evaluation carried out by a consulting firm; the results will help us begin our next mandate with a good understanding of what has worked for us to date and what we need to improve. And, of course, we’ll be using it in our renewal efforts. Let me take this opportunity to invite those of you who would like to share your thoughts about how the LCO should approach law reform in the future to send us a note.

Finally, have a look at our new website: http://www. lco-cdo.org – same address, very different site! Along with the usual, there’s a page for each project, plus a specific page on making proposals and contributing to ongoing projects. We’re always glad to have OBA submissions on our projects. With the number of OBA members, there will always be a Section interested in one or more of our projects. Patricia Hughes is the Executive Director of the Law Commission of Ontario.

February 2010 | Briefly Speaking • En Bref


LE POINT SUR LES ACTIVITÉS DE LA

COMMISSION DU DROIT DE L’ONTARIO

Quoi de neuf à la Commission de droit de l’Ontario Patricia Hughes

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a CDO a été très occupée au cours des derniers mois. Certains d’entre vous sont déjà au courant des discussions que des membres de la CDO et de l’Association du Barreau de l’Ontario (ABO) ont tenues à l’occasion de diverses activités et réunions auxquelles ils assistaient conjointement; laissez-moi toutefois vous faire part à tous de la façon dont nos projets progressent. Nous tenons présentement, et ce jusqu’en février prochain, des consultations dans le cadre du Projet sur les processus en droit de la famille. Julie Lassonde, la responsable du projet, est demeurée en contact avec le groupe de travail de l’ABO et a été autorisée à assister au sommet conjoint de l’ABO et de l’Institut d’arbitrage et de médiation du Canada. Nous ne voulons évidemment pas reproduire votre travail ni celui du procureur général. Nous désirons enrichir la réforme du droit de la famille grâce à une approche différente qui traite des besoins qui ne sont pas abordés dans le cadre des travaux actuels. Nous espérons que nos efforts combinés entraîneront des changements nécessaires dans le système de justice familiale. En outre, nous avons également rendu public notre document de consultation sur le projet de modernisation de la Loi sur les infractions provinciales et nous sommes actuellement à l’étape des consultations. La date limite pour les soumissions est le début de février. Le document de consultation dresse une liste d’environ 20 questions que nous pourrions étudier. Voici ce que nous aimerions savoir : Est-ce que ce sont les « bonnes » questions?

Y a-t-il des points non mentionnés que nous devrions aborder?

Quelles recommandations devrions-nous faire en ce qui concerne toutes ou une partie de ces questions?

Dans le cadre de ce projet, nous avons mis sur pied un groupe consultatif afin d’offrir rapidement des observations, formuler des suggestions et faire la liaison entre les organisations touchées par ce projet et d’autres groupes qui pourraient être intéressés à y contribuer. Nous espérons publier le rapport final d’ici l’été prochain.

En octobre, nous avons organisé une table ronde dans le cadre de notre projet sur la responsabilité individuelle et conjointe aux termes de la Loi sur les sociétés par actions de l’Ontario. Ceux d’entre vous qui travaillent dans ce domaine savent que cet enjeu touche des cordes sensibles, une réalité qu’on a d’ailleurs pu constater lors de la table ronde. Nous produirons incessamment un document de consultation et nous encourageons les diverses sections de l’ABO concernées à y répondre afin de nous aider à tracer un portrait complet de cette question controversée. La Faculté de droit Osgoode Hall nous prête chaque année un membre de son corps enseignant; au cours de chacune des Briefly Speaking • En Bref | February 2010

deux dernières années, nous avons bénéficié des services de deux chercheurs invités pendant une période de six mois chacun. Certains invités travaillent sur des projets de la CDO, alors que d’autres mènent leur propre projet « en association » avec la CDO. Nous soutenons leur travail. Un de ces projets « en association » porte sur l’intersectionnalité des questions de propriété intellectuelle, d’éthique et de protection de la vie privée relativement aux dossiers de santé électroniques. Plus tard ce mois-ci, nous tiendrons un symposium avec des spécialistes et des représentants d’organisations ou groupes touchés par ces questions afin de les explorer ensemble. Je crois qu’au moins un représentant de l’ABO y participera. Ce projet, attendu depuis longtemps, arrive tout particulièrement à point nommé.

Nous serons très occupés cette année; nous chercherons à renouveler notre financement pour poursuivre notre travail au-delà de décembre 2011, qui correspondra à la fin de ce qui sera – je l’espère – notre premier mandat. Nous ferons en sorte de formuler nos demandes de financement le plus tôt possible à l’intérieur du calendrier budgétaire de nos bailleurs de fonds en espérant avoir un préavis de six à neuf mois pour le renouvellement de notre mandat. Nous avons également chargé une firme de consultants d’effectuer une évaluation, dont les résultats nous aideront à entreprendre le prochain mandat munis d’une bonne compréhension de ce qui a bien fonctionné pour nous et de ce que nous devons améliorer. Bien évidemment, nous nous servirons de cette évaluation dans le cadre de notre demande de renouvellement. Je profite d’ailleurs de l’occasion pour inviter chacun d’entre vous qui désirerait nous faire part de ses réflexions à propos de l’approche que devrait adopter la LCO dans le futur en ce qui concerne la réforme du droit à nous en aviser en nous faisant parvenir une note. Enfin, visitez notre nouveau site Web à l’adresse http:// www.lco-cdo.org – même adresse, site passablement différent! Outre les informations habituelles, vous trouverez une page pour chacun des projets et une page uniquement consacrée aux propositions de projets et à la contribution aux projets en cours. Nous sommes toujours enchantés de recevoir les observations de l’ABO concernant nos projets. Considérant le grand nombre de membres que compte l’ABO, il y aura toujours une section de l’association intéressée à participer à l’un ou l’autre (ou plusieurs) de nos projets. Patricia Hughes est la Directrice exécutive de la Commission de droit de l’Ontario .

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QUEEN’S PARK UPDATE The Queen’s Park Update provides a forum, on a regular rotation, for the views of the Attorney General and the opposition Justice Critics.

Shining Light on the HST Peter Kormos, MPP - Welland

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uch has been said and written regarding the province’s proposed Harmonized Sales Tax (HST). The McGuinty government used all the tricks in its procedural playbook to ram HST legislation through the provincial legislature before the Winter break. If only the government had devoted half the energy to resolving the growing Legal Aid crisis . . . but I digress. The HST will affect each and every Ontarian. By this time next year, we will pay eight per cent more for everyday necessities – from gasoline to home heating and hydro to haircuts to magazines. Not even funerals are exempt!

To put it simply, the tax is unfair and it comes at precisely the wrong time. The province is still struggling to escape the clutches of an economic recession the likes of which we haven’t experienced since the dirty thirties. The unemployment rate is the highest it has been in 15 years. A consumption tax on just about everything will do nothing to fix this economic reality.

In fact, there are some who say the tax will cost Ontario even more jobs. The Ontario Chamber of Commerce issued a report – which it later tried to retract – that the HST would cost the province 40,000 jobs a year. The McGuinty government reacted quickly and commissioned its own report saying the tax would create jobs. Personally, I’m not buying the government’s report. My critique of the HST doesn’t mean I’m against taxes. Fair and progressive taxation is the cornerstone of a just society that provides quality public services for all. But the HST won’t add a single extra cent to the provincial treasury for improved healthcare or education. It simply shifts the tax burden from corporations – the beneficiaries of massive tax cuts – to individual Ontarians.

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The vast majority of Ontarians I’ve encountered are adamantly opposed to the HST. Over the summer, New Democrats launched an online petition at www.unfairtaxgrab.com. To date, more than 210,000 individuals have signed the petition.

And each day, I receive countless letters and e-mails from ordinary people telling me how opposed they are to the tax.

One eloquently expressed her views this way: “I am a personal injury lawyer practising in Vaughan. Currently, legal services are subject to GST but not PST. Our fees are paid on contingency. Many clients are subject to severe financial stresses after an accident. To have them pay an increased tax can be financially devastating particularly in light of the other numerous services now being subject to additional taxes because of the HST. This is to say nothing of the other goods and services on which they would now be paying additional taxes. The generic tax credit proposed does not begin to address the burden that falls on these most vulnerable of Ontario citizens.” The lawyer from Vaughan summed it up pretty well.

What’s most disconcerting about the manner in which the HST is being imposed, is that Ontarians were not given much of an opportunity to express their views. The government used its legislative majority to limit public hearings. It took an almost Herculean opposition effort to get one extra halfday of public hearings in Toronto. Hundreds, if not thousands, of Ontarians scattered across the province who had wanted to make deputations were denied.

With the dust settled and the bill passed through the Legislative Assembly, Ontarians can now look forward to an expensive new world of tax harmonization starting July 1, 2010. But there remains one glimmer of hope. The House of Commons must still approve $4.3-billion in transition funding to assist Ontario with HST implementation. It’s expected to be included in Federal budget legislation to be tabled sometime in February or March. In a minority Parliament, anything can happen as parties jostle for votes and positioning. My advice: If you’re among the three-quarters of Ontarians opposed to the HST, call or write your Member of Parliament. Ontario MPs may yet see the light and save us from an unfair tax most of us don’t want. Peter Kormos is the MPP for Welland and the Ontario NDP’s Critic for Justice and Community Safety.

February 2010 | Briefly Speaking • En Bref


MISE À JOUR DE QUEEN’S PARK La mise à jour de Queen’s Park fournit un forum, en rotation régulière, pour les opinions du procureur général et les porte-parole de justice de l’opposition.

Faire la Lumière sur la TVH Peter Kormos, Député - Welland

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on a beaucoup écrit et parlé au sujet de la Taxe de vente harmonisée (T VH) préconisée par la province. Le gouvernement de Dalton McGuinty a eu recours à tous les stratagèmes de nature procédurale possibles afin de faire adopter la loi mettant en œuvre la T VH avant la pause hivernale. Si le gouvernement avait consacré la moitié de ces efforts à résoudre la crise grandissante de l’aide juridique… mais revenons à nos moutons. La TVH va toucher chaque Ontarien et Ontarienne. À la même période l’année prochaine, nous paierons tous 8% de plus pour les biens dont nous avons besoin au quotidien, de l’essence au chauffage, en passant par l’électricité, les visites chez le coiffeur et les revue. Même les enterrements n’y échapperont pas! Pour le dire simplement, cette taxe est injuste et arrive au mauvais moment. La province peine à s’extirper d’une récession sans pareil depuis les années 30. Le taux de chômage est le plus élevé qu’il n’a été en quinze ans. Une taxe à la consommation sur presque tout ne fera rien pour corriger cette réalité économique. En effet, certaines personnes affirment que cette taxe fera perdre un grand nombre d’emplois à l’Ontario. La Ontario Chamber of Commerce a publié un rapport – qu’il a par la suite renié – qui démontre que la TVH occasionnera la perte de 40 000 emplois par année. Le gouvernement McGuinty a réagi rapidement en commandant son propre rapport, qui concluait que la taxe allait créer des emplois. Pour ma part, je n’accorde pas beaucoup de crédibilité au rapport du gouvernement.

Mes critiques à l’endroit de la TVH ne signifient en rien que je suis contre les taxes. Au contraire, une fiscalité équitable et progressive est à la base d’une société juste qui offre des services publics de qualité à tous. Or la TVH ne permettra pas au trésor de toucher un traître sous de plus pour améliorer la santé ou l’éducation. Elle transfert tout simplement aux particuliers de l’Ontario le fardeau fiscal des entreprises, qui profitent déjà de réductions massives de leur fiscalité.

La très grande majorité des Ontariens avec qui j’ai parlé se prononce catégoriquement contre la TVH. Au cours de l’été, nous les néo-démocrates avons lancé une pétition en ligne au www.unfairtaxgrab.com. Jusqu’ici, plus de 210 000 personnes l’ont signée. À chaque jour, je reçois d’innombrables lettres et courriels de gens ordinaires qui s’inscrivent en faux contre cette taxe. Une des ces personnes s’est ainsi exprimée avec éloquence : « Je suis avocate, me spécialisant en préjudices corporels, qui pratique à Vaughan. À l’heure actuelle, les services juridiques sont assujettis à la TPS mais pas à la TVP. Nos honoraires sont conditionnels. Bon nombre de clients subissent des pressions Briefly Speaking • En Bref | February 2010

aigues financières à la suite d’un accident. Les obliger à payer une taxe plus élevée peut s’avérer dévastateur sur le plan financier, surtout eu égard des taxes supplémentaires découlant de la TVH. Sans parler des autres biens et services qui seront assujettis à ces taxes. Le crédit d’impôt générique offert par le gouvernement ne s’attaque aucunement au fardeau que devront porter les Ontariens parmi les plus vulnérables. » L’avocate de Vaughan a bien résumé la chose.

Ce qui est le plus déconcertant dans la façon qu’on a imposé la TVH est le fait que les Ontariens n’ont pas eu l’occasion de s’exprimer. Le gouvernement s’est prévalu de sa majorité parlementaire afin de limiter l’étendue des audiences publiques. L’opposition a dû déployer des efforts herculéens pour arracher une demi-journée supplémentaire d’audiences publiques à Toronto. Des centaines, voire de milliers, d’Ontariens éparpillés à travers la province qui auraient voulu participer aux audiences se sont vus nier l’occasion de le faire. Alors que la poussière est retombée et que le projet de loi a été adopté à l’Assemblée législative, les Ontariens se préparent maintenant pour un coûteux monde nouveau d’harmonisation des taxes à compter du 1e juillet 2010. Or tout n’est pas joué. Il reste une lueur d’espoir.

La Chambre des communes n’a toujours pas donné le feu vert au versement de 4,3 milliard de dollars en fonds de transition pour aider l’Ontario à mettre en œuvre la TVH. Cette mesure devrait se trouver dans le budget fédéral qui sera déposé en février ou mars prochain. Tout est possible dans un parlement minoritaire où les partis se livrent à une joute de positions pour aller chercher la faveur de l’électorat. Mon conseil : si vous êtes parmi les trois quart des Ontariens qui sont contre la TVH, appelez votre député fédéral ou faites lui parvenir une lettre. Il se peut que les députés de l’Ontario entendent raison et nous épargnent une taxe injuste dont la plupart d’entre-nous ne voulons pas. Peter Kormos est le député provincial de Welland et le porte-parole du NPD en matière de Justice et de Sécurité communautaire.

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ADVOCACY IN ACTION

Moving Forward on Good Government and Legal Aid BILL 212, GOOD GOVERNMENT ACT, 2009 Over the course of 2008 and 2009 the OBA made several representations to the Attorney General for inclusion in a good government bill. When Bill 212, the Good Government Act, was introduced we were pleased to see that it included several recommendations from the Charity and Not-forProfit Section and Trusts and Estates Section. This legislation passed Third Reading on December 3, 2009 and received Royal Assent on December 15, 2009. We are hopeful that we will see additional OBA recommendations that have a stronger business focus in a future piece of legislation in the New Year. LEGAL AID ONTARIO ADVISORY REVIEW PANEL’S REPORT TO THE ATTORNEY GENERAL

On December 15th, Chair of Legal Aid Ontario, John McCamus, delivered the advice of the five legal aid advisory review panels to the Attorney General. The panels addressed the following areas: • • • • •

Major Criminal Cases

Standard Criminal Cases Poverty Law Family Law

Immigration and Refugee Law

The OBA was pleased to play a strong role with representatives on each of the panels. To view the letter that was sent to the Attorney General please go to http://www.oba.org/en/ pdf/transform-letter.pdf. The recommendations are listed on pages 16-17 of this issue. PROPOSED NATIONAL INSTRUMENT 52-107 – ACCEPTABLE ACCOUNTING PRINCIPLES AND AUDITING STANDARDS

On December 21, 2009, the OBA delivered a submission on Proposed National Instrument 52-107, which addresses acceptable accounting principles and auditing standards. The submission was prepared by the OBA Business Law Section. INTERIM REPORT – HOME COURT ADVANTAGE: CREATING A FAMILY LAW PROCESS THAT WORKS

On December 12, 2009, the interim report of the Home Court Advantage Conference was delivered to the Attorney General. Less than one week later, Minister Bentley announced a series of reforms for family law at the OBA Conference Centre. The reforms are intended to strengthen and improve access to justice by making the family courts easier to use, more focused and more affordable. These efforts will start with a pilot project at courts in Brampton and Milton.

To view these and other OBA submissions, please go to www.oba.org/submissions

Press Conference with the Attorney General on Family Law Reform

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February 2010 | Briefly Speaking • En Bref


THE CONFERENCE CENTRE AT THE OBA

Book your meeting with us. Our full-service facility is available year round.

Located in Toronto’s downtown core, the Ontario Bar Association’s Conference Centre hosts a variety of events, mediations, conferences, seminars and receptions year-round, seven days a week. Our facility can accommodate meetings from 3-300 people in various styles such as: banquet, theatre, classroom and open square. Our services include: video conferencing, full catering capabilities and we are licensed for liquor. Our building has 24 hour security, wheel chair accessibility and is steps to the King Street Subway station and only a 10 minute walk to GO. Our knowledgeable staff is here to service your needs, whether they are simple or out of the ordinary. Contact our Conference Centre manager, Annette Wing, at (416) 869-1047 ext. 321 or by e-mail at awing@oba.org. You can also visit our website at www.oba.org.

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Briefly Speaking • En Bref | February 2010

15


LEGAL AID ONTARIO UPDATE

L

egal Aid Chair, John McCamus, and Justice Sidney Linden provided the recommendations of the five Legal Aid Advisory Review Committees to Attorney General Chris Bentley on December 15, 2009. The OBA, as an active member of the Alliance For Sustainable Legal Aid, had representatives on each of the committees and they participated fully in the development of the recommendations, which are listed below.

5. L  AO should be muscular in removing panel lawyers who are abusing the system.

6. L  AO should provide more opportunities for junior counsel and co-counsel to work on cases with more experienced lawyers.

RECOMMENDATIONS FROM THE POVERT Y L AW ADVISORY COMMITTEE:

Interested readers may view all of the materials utilized by the committees on the LAO website (www.legalaid.on.ca). Click on the Legal Aid Advisory Groups link on the home page.

1. Increase compensation funding to the community clinic system, over and above normal pay equity and cost of living increases, by 20% over four years. This would be for salary increases for all clinic staff, not just lawyers.

RECOMMENDATIONS FROM THE MAJOR CRIMINAL CASES ADVISORY COMMITTEE:

(a) the expansion of interpretation and translation services (for clinics and for all LAO services); and

The following recommendations, taken from the meeting notes, received general support from each of the respective committees.

1. L AO should develop appropriate mechanisms for offering enhanced fees to competent counsel handling extremely serious cases. The more serious the case, the higher the fee ought to be. Criteria for this will have to be developed. 2. T he role of the Exceptions Committee should be strengthened, and in future should include ability to conduct post-case reviews.

3. T  o the extent possible, the defence should be placed on the same footing as the Crown in respect of retaining outside experts. 4. T here should be better access for junior counsel to work on major cases, with payment as co-counsel at the appropriate tier level.

RECOMMENDATIONS FROM THE STANDARD CRIMINAL CASES ADVISORY COMMITTEE:

1. If block fees are to be acceptable, they need to be accompanied by a substantial increase in remuneration for service providers. 2. A block fee system should include an experience increase, to attract experienced lawyers back to legal aid work. 3. LAO should begin by piloting block fees. 16

fences. Indictable and “super-summary” offences should not be included in the pilot at this time.

4. L AO’s block fee pilot should be limited to summary of-

2. T  arget enhancing access to justice for racialized and immigrant communities through:

(b) the creation of a fund of money available to all clinics who have an initiative for reaching out to racialized and immigrant communities.

3. E xpand clinics’ ability to serve rural and remote communities through a variety of means, including the use of technology and/or increased satellite office presence (including office space, travel and staffing resources), where appropriate. 4. Improve clinics’ ability to reach client communities and provide them with poverty law services, through the use of clinic-controlled and clinic-centred technology. 5. I mprove clinics’ ability to engage in knowledge sharing and transfer, including the personnel needed to support this initiative.

6. I mprove coordination and collaboration within the clinic system by funding a clinic-led, province-wide strategic planning process, with the necessary data and support to allow for meaningful planning. This strategic planning process would include community partners and stakeholders and would be an opportunity to play a coordinated role in furthering the reach of the government’s Poverty Reduction Strategy. Specialty clinics and SLASSs should be more coordinated with the rest of the clinic system. 7. T he committee would like to have an ongoing dialogue,

February 2010 | Briefly Speaking • En Bref


LEGAL AID ONTARIO UPDATE after December 15, 2009, to discuss the allocation of the new money. This dialogue should involve LAO, clinics, and the Minister.

8. A llocation of the new funding should follow historical proportional allocations. Clinics support the existing mixed system of service delivery.

R E CO M M E N DAT I O N S F R O M T H E FA M I LY L AW ADVISORY COMMITTEE:

1. T he historical amount of funding allocated to family law legal aid is insufficient and should be increased. There is a need for study in order to establish the amount by which funding for family law should be increased. 2. A n increase to the family law tariff should be part of the funding package.

3. Consideration should be given to devoting some of the new resources to raising the legal aid financial eligibility thresholds, with the ultimate target of reaching LICO levels. 4. L AO should pilot certificates for resolution of cases outside of the litigation process, through mediation or negotiation of separation agreements. 5. T here should be enhanced resources for duty counsel to provide more front-end family law information and triage, with referrals for certificates or alternative resolution service as appropriate. There needs to be a proper location for this service to be provided. 6. L AO should explore possibilities for enhancing recruitment and mentoring of practitioners in the field of child protection. 7. L AO should be funded to provide support to a new Crown wardship appeals pilot project that is being developed with the cooperation of all three levels of Court in Toronto. 8. L AO should play a vital role in the Ministry’s proposed reform process for family law.

RECOMMENDATIONS FROM THE IMMIGRATION AND REFUGEE LAW ADVISORY COMMITTEE: 1. T he new funding should be proportionally allocated to immigration and refugee law on the basis of historical funding allocations. Distribution among legal aid service providers should be equitable.

2. 75 per cent of the available funds should be allocated to increasing compensation. If an hourly rate increase is not contemplated, then an increase should be designated as support for lawyers’ overhead costs.

tation will suffer.

6. L  AO’s budgeting for discretionary payments should be improved. It has to be assumed that discretionary increases will be necessary. 7. Block fees were opposed by all service providers and not supported by the majority of committee members, who felt that block fees would act as an incentive to abuse and bad practice.

8. A  subsidy should be created for refugee lawyers who hire an articling student. The subsidy would contribute to the student’s salary and overhead costs. 9. L  AO should consider, going forward, developing ideas for encouraging better supervision and mentoring of junior lawyers. 10. L AO should explore possibilities for increasing access to Lexis Nexis/Quicklaw for panel members.

11. L AO should explore ideas for improving its audit process. The audit process should place more weight on substantive complaints or concerns about a lawyer’s work and not simply focus on random fee-based account reviews. 12. L AO should pursue ways to ameliorate the difficulties experienced by many service providers as a result of the strict requirement to meet billing deadlines. It may be possible to develop an option for making practical amendments to the Regulation.

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3. More hours should be added to existing services: the hours for preparation on a refugee certificate should be expanded from 16 to 20. 4. Coverage should also be made available for other services: preliminary forms on refugee cases, preparation and attendance at CSIS interviews; expanded coverage for H&C applications and PRRAs.

5. T he tariff hour limit of eight hours for expedited hearings should be eliminated. It acts as a disincentive to lawyers seeking an expedited hearing, and if the lawyer spends only eight hours on the case the client’s represen-

Briefly Speaking • En Bref | February 2010

17


OBA Professional Development | 2010 Spring CLE Programs SNEAK PREVIEW Technology in Bloom: New Developments in Technology Law – Monday, March 8 Construction Liens: Practical Tips and Winning Strategies – Tuesday, March 9 Your First Civil Trial (YLD) – Friday, March 12 (morning) Your First Small Claims Court Trial (YLD) – Friday, March 12 (afternoon) Riparian Rights and Real Property – Wednesday, March 24 Distressed Mergers & Acquisitions: Strategic Opportunities – Monday, March 29 Sharpening the Sword III: Tactics and Strategies for Lock n’ Load Litigation – Friday, April 9 The Ins-and-Outs of Infrastructure Development: Managing Environmental Risks and Harnessing Green Opportunities – Wednesday, April 14 Spousal Support Post Fisher – Friday, April 16 9th Annual Employment Law Issues: Developments in Supreme Court Doctrine – Thursday, April 29 Simplifying Simplified Procedure – Thursday, May 6 Criminal Law: Your Client from Start to Finish (YLD) – Saturday, May 8 8th Annual Pension and Benefits Hot Spots: Essential Updates on Key Legal Issues – Monday, May 10 Commercial Leasing: The “Must Know” Update – Wednesday, May 12 The Lawyer as Estate Trustee and/or Attorney for Property/Personal Care: Things You Need to Know – Thursday, May 20 7th Annual Current Issues in Workplace Safety and Insurance Law – Wednesday, May 26 Ontario’s Human Rights System: Keeping on Top of Key Developments – Friday, June 11

www.oba.org/pd for more information

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February 2010 | Briefly Speaking • En Bref


SPOTLIGHT ON SECTIONS

International Law John W. Boscariol

T

he International Law Section is the voice of the OBA on legal issues that have international

implications.

We

have

an active Section membership and a dedicated and enthusiastic executive who hail from many backgrounds and all walks of practice: in-house, academic, solo practitioners, small and midsize firms, large firms, government and NGOs. Our programs, policy initiatives, and publications cover all areas of legal practice that have a cross-border component – corporate/commercial, litigation, bankruptcy and insolvency, immigration, employment law, intellectual property, trade and competition law, environmental, and national security, to name a few. The treatment of Canadians abroad, climate change, border searches, Buy America, and the global financial crisis are among the many high profile issues our members tackle on a daily basis. RECENT PROGRAMS

In 2009, we held 10 events reflecting the diverse nature of our members’ interest in international law, including:

• Crossing the Canadian/U.S. Border: Are Your Electronic and Personal Data and Information at Risk? • U.S. Export Controls vs. Canadian Human Rights and Employment Laws – Conflict or Compatibility? • Contemporary Developments in Islamic Finance in Canada and Beyond • International Trade, Financial Crisis and the Role of the G-20: Do We Need Another Bretton Woods?

Section members also continue to publish articles and notes of interest in the Section’s newsletter, The Globetrotter, and in the Canadian International Lawyer and other OBA/CBA publications. ANNUAL AWARD OF EXCELLENCE

Every year, in what has become a highlight event for the Section, we honour a leading international law counsel. This year, the international law bar came together to celebrate the achievements of Jon R. Johnson, who was presented with the OBA Award for Excellence in International Law for his leadership, expertise, integrity and significant contribution to international law during his four decades of practice. INITIATIVES WITH OTHER INTERNATIONAL ORGANIZATIONS

Much of the Section’s activities also involve outreach and co-operation with other bar associations and organizations. We regularly engage in joint programs with the CBA’s International Law Section and its Trade and Investment Briefly Speaking • En Bref | February 2010

Committee, and have worked with them to establish a committee to address Canadian export controls, economic sanctions and the Controlled Goods Program.

The Section also held a number of events in conjunction with the American Bar Association’s Section of International Law Canada Committee and its Export Controls and Economic Sanctions Committee. Our Section’s joint activities with the ABA have enriched our programs and events and continue to help foster ongoing relationships with lawyers in other jurisdictions who have similar interests and concerns in areas of international law. We are planning initiatives with the New York State Bar Association’s International Law Section and the Erie County Bar Association’s International Law Committee with a particular focus on joint programs on cross-border issues impacting practitioners in our respective jurisdictions. A joint program with the Canada-United States Law Institute is also in the works for the New Year. WHAT’S IN STORE FOR 2010?

2010 promises to be another very busy year for the Section. A joint program with the ABA on anti-boycott laws and policies in the United States and Canada was held on January 13th. On February 16, we are presenting a program at the OBA Annual Institute in conjunction with the OBA Citizenship and Immigration Section and the ABA Canada Committee on the customs, immigration, employment and taxation issues involved in foreign executive transfers. In addition, we have many topical programs and events in the pipe, including the duty to protect Canadians abroad, trade and climate change, the Canadian Judge Advocate General in Afghanistan, aircraft and industrial subsidies, provincial trade deals, anti-bribery laws (the Corruption of Foreign Public Officials Act and the Foreign Corrupt Practices Act), the owner/entrepreneur six-minute lawyer, and the NAFTA Chapter 11 investor-state dispute mechanism. We strongly encourage any OBA member with an interest in international law and policy to get involved in the Section’s programming, policy and publication activities. John Boscariol is Chair of the OBA international Law Section and leads the International Trade and Investment Law Group at McCarthy Tétrault LLP.

19


Out of Africa Abena Buahene

C

hecking my office voice mail in late September, I listened with astonishment to a message from Andrea Redway, the program director with the CBA’s International Development Program for East Africa, inquiring whether I would be interested in participating in a CLE workshop

in Nairobi, Kenya.

It took me all of 10 seconds to call back and say yes. This began an amazing

professional journey toward designing and co-facilitating a workshop hosted by the Law Society of Kenya. My co-facilitator was Alan Treleaven, director, Education and Practice at the Law Society of British Columbia, someone who I worked with during my past CLE BC days. Our “on the ground point person” was Jennifer Khor, the CBA’s Regional Director for “Strengthening Access to Justice in Eastern Africa Program” and who is stationed in Dar es Salem, Tanzania. Trying to coordinate conference calls through three time zones was no small feat, and on occasion we were joined by Darrel Pink, the Executive Director of the Nova Scotia’s Barristers’ Society, who had just returned from another project in East Africa. Jennifer, Andrea and Darrel were our experts on local conditions and provided us with invaluable cultural insight and information on what our workshop participants were interested in learning over the course of three days.

On November 18th, Jennifer, Alan and I greeted 22 participants from the Law Societies of Kenya, Uganda, Tanganyika, Zanzibar as well as the Ethiopian Bar Association, to the CBA/ Eastern Africa Regional Bar Workshop Enhancing and Maintaining Lawyer Competence through Practical, Relevant and Timely CLE. Although their CLE experience varied, what they had in common was a keen desire to learn about the world of CLE across their borders. The participants were advocates who were CLE chairs or committee members, law society presidents, council members, executive directors or CLE directors/ managers. Their learning needs were wide ranging and traversed the entire gambit in CLE design and programming, 20

from an opportunity to share best practices and challenges in implementing CLE programs, understanding and applying adult learning principles, employing different teaching methodologies, skills and diversity/sensitivity training, integrating professional responsibility and practice management content in programming, recruiting high calibre presenters, evaluation mechanisms, enforcement of mandatory CLE requirements, to fostering a culture of volunteerism (not part of the professional/cultural make-up) marketing/ branding professional development and sustainability issues both as CLE providers and legal entities.

The smallest law society is Zanzibar with 62 practising lawyers (20 women) serving a population of 1.9 million, followed by Tanganyika with 900 members, to the Law Society of Kenya with ca. 8000 advocates, 30% of whom are women. When we explored the practice environment in each country we found the legal profession there is concentrated in the urban areas, not unlike what we have in Ontario. The difference is that many rural areas suffer a serious lack of access to lawyers (some regions do not have a single lawyer) and lack access to the justice system in general, as there are few magistrates. Justice in rural communities, we were told, is “highly compromised, as such courts usually handle criminal cases almost exclusively, unless the magistrate engages in judicial activism to protect the citizens”. Our East African colleagues also mentioned that compared to other countries, their judicial system is still highly adversarial and becoming more litigious; mediation and arbitra-

February 2010 | Briefly Speaking • En Bref


tion concepts have not yet taken root. The slow court process leaves the system vulnerable to corruption at all levels. Another challenge is providing legal services for a reasonable fee where the majority of citizens are poor. Add lengthy delays in the process, and many lawyers have to close a file before matters reach the desired outcome as their clients cannot afford to pay them. Most lawyers are general practitioners and the predominate areas of practice are commercial law, criminal law, accident insurance claims, land/ property disputes, probate and administration, and human rights, including rights as they relate to women and children. With economic growth taking hold, lawyers are starting to specialize in international banking, tax, mergers and acquisitions.

tion to Lake Naivasha which lies north-west of Nairobi, part of the Great Rift Valley. The spectacular scenery, the wild and bird life, the incredible and unusual flora and fauna, and the interesting conversations we had with our Maasai hosts were truly “out of Africa”, and I will be back! Abena Buahene is the OBA’s Associate Director of Continuing Legal Education.

I had the opportunity to share my professional experiences but was humbled by the enthusiasm and commitment to improving the competencies and the stature of the legal profession in these countries. The moment that left an indelible impression was when the President of the Ethiopian Bar Association (EBA) thanked his colleagues for the support they had shown him and would continue to provide as the Ethiopian government lay siege on EBA by setting up its own “bar association” in an effort to undermine the EBA’s activist and human rights endeavours. Finally, I cannot end this article without a note on what a great personal experience this was for me. My brother (a Canadian lawyer, working with the United Nations in Nairobi) planned a vaca-

9 Briefly Speaking (House)

11/6/08

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Abena leading a small group discussion on professional responsibility

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Briefly Speaking • En Bref | February 2010

21


Home Court Advantage: Creating a Family Process that Works C. Thomas Dart

F

or years, the OBA and many other organizations have sought changes to the Family Court process. In keeping with the strong commitment to the resolution of access to justice issues, the OBA, the ADR Institute of Ontario (ADRIO) and the Ontario Association for Family Mediation

(OAFM), presented a paper to the Attorney General in the spring of 2009 entitled Family Law Process Reform: Supporting Families to Support Their Children. Not wanting to let the vision expressed in that paper fade from view, the OBA, ADRIO and OAFM sponsored and conducted a two day brainstorming session held November 22-23, 2009 at the OBA Conference Centre. Over the two days, approximately 120 stakeholders including judges, lawyers, mediators, mental health professionals, staff from the Ministry of the Attorney General and the Federal Department of Justice and members of the public focused on the series of recommendations contained in the Family Law Process Reform paper. At the end of the program, the recommendations arising from the workshops were compiled into a further paper which was presented to the Attorney General by his deadline of December 12th, 2009.

The inspiration for the format of the program came from the OBA Justice Stakeholder Summit, conducted two years ago, which was spearheaded by former OBA President (now Justice) Heather Mcgee. 22

The program began with a thought-provoking address by

the Honorable Coulter Osborne who was delighted with the chance to contribute to family law process reform.

We then heard from Justice Perkins who, in addition to offering his own thoughts on process reform, introduced Justice Raymond Guerrette from New Brunswick. Justice Guerette shared his committees’ work with the reform of the New Brunswick Family Court. Justice Czutrin then gave his very constructive thoughts on what he hoped could be accomplished, and then introduced Justice Beaudoin, who spoke to us via video about the Ottawa experience with reform. By Sunday afternoon, the eight workshop groups were well underway working extremely hard discussing, analyzing and recommending numerous changes.

Each workshop was led by two volunteer facilitators who were instrumental in focusing the discussions and compiling the recommendations. Each workshop also had a scribe who made extensive live notes of the discussions, which were inFebruary 2010 | Briefly Speaking • En Bref


strumental in compiling the recommendations delivered to the Attorney General.

On Monday morning, Attorney General, the Honorable Chris Bentley, accepted the invitation to share his views on reform. He was introduced by Senior Family Court Justice Mary Jane Hatton. The Attorney General asked the group to consider four “pillars” upon which to base reform:

1. Providing early information for separating spouses and children; 2. A ssessing parties and directing them to appropriate and proportional services using a triage approach;

3. Facilitating greater access to legal information, advice and alternative dispute resolution processes; and

4. Developing a streamlined and focused family court process.

He promised to act on proposals that could be implemented quickly at low cost - given the realities surrounding the deficit. His promise to act was met with a standing ovation.

At Monday lunch, our Chief Justice, the Honorable Heather Smith, was introduced by our National Family Law Section Chair, Grant Gold. Justice Smith is also very supportive of reforms presenting the positive steps already taken by the Superior Court bench. She participated in workshops throughout the day.

Throughout the conference, Phil Epstein and Professor Nick Bala listened in on the recommendations of the workshops, actively participated where they saw the need and at the end, and in their usual inspiring manner, compiled the recommendations into an entirely feasible action plan. Both Nick and Phil sacrificed some scarce family time to be with us and so we wish to express particular gratitude to them for once again saying “yes”.

All of the stakeholders who attended went out of their way expressing gratitude for the chance to assist in change. Many thanks to co-chairs Dr. Barbara Landau and Heather Schwartz for their considerable work making this conference a success and for compiling the recommendations into the Report which is now in the hands of the Attorney General. C. Thomas Dart, Past Chair, Family Law Section Executive

L’avantage de Jouer à Domicile: établir des procédures efficaces en droit de la famille C. Thomas Dart

D

epuis des années l’ABO et bien d’autres organismes s’efforcent de modifier les procédures du tribunal de la famille. Conformément

à sa conviction de la nécessité de régler les questions d’accès à la justice, l’ABO, l’Institut d’arbitrage et de médiation de l’Ontario (IAMO) et l’Association ontarienne de médiation familiale (AOMF) ont présenté au printemps 2009 un document au procureur général intitulé Réforme des procédures du droit de la famille : aider les familles à soutenir leurs enfants (Family Law Process Reform: Supporting Families to Support Their Children).

Souhaitant que l’esprit de ce document se réalise, l’ABO, l’ADRIO ET L’AOMF ont commandité et organisé une séance de remue-méninges de deux jours les 22 et 23 novembre au Centre de conférences de l’ABO. Au cours de ces deux journées, environ 120 intervenants, dont des juges, des avocats, des médiateurs, des professionnels en santé mentale, des membres du personnel du ministère du Procureur général et du ministère fédéral de la Justice, ainsi que des membres du public, se sont concentrés sur une série de recommandations, contenues dans le document intitulé Family Law Process Reform. À la fin du programme, les recommandations tirées des ateliers ont été compilées pour constituer un second document, présenté au procureur général à la date d’échéance du 12 décembre 2009.

Le format du programme a été inspiré par le Sommet des intervenants en matière de justice (Justice Stakeholders Summit) de l’ABO, organisé il y a deux ans et dirigé par l’ancienne présidente de l’OBA, Heather Mcgee (qui est maintenant la juge Mcgee). Le programme a débuté par une allocution inspirante de l’honorable Coulter Osborne, qui était ravi de pouvoir contribuer à la réforme des procédures du droit de la famille.

Briefly Speaking • En Bref | February 2010

Le juge Perkins a ensuite pris le relais. En plus d’expliquer son point de vue sur la réforme des procédures, il a présenté

23


le juge Raymond Guérette du Nouveau-Brunswick. Le juge Guérette nous a fait part du travail de ses comités concernant la réforme du tribunal de la famille du Nouveau-Brunswick. Le juge Czutrin a par la suite formulé des propos très constructifs sur ce qui était réalisable à son avis, pour ensuite présenter le juge Beaudoin, qui nous a parlé par téléconférence de l’expérience de réforme, telle que vécue à Ottawa. Le dimanche après-midi, les huit groupes des ateliers étaient bien établis et travaillaient d’arrache-pied pour discuter, analyser et recommander divers changements. Chaque atelier était mené par deux animateurs bénévoles. Leur travail a été crucial au maintien de la pertinence des discussions et à la compilation des recommandations. Un scribe était également attitré à chaque atelier. Il prenait des notes sur les discussions, qui seront essentielles afin de compiler l’éventail détaillé des recommandations à transmettre au procureur général au cours des mois à venir. Lundi matin, le procureur général, l’honorable Chris Bentley, a accepté l’invitation de faire part de ses idées sur la réforme. Il a été présenté par la juge principale du tribunal de la famille, Mary Jane Hatton. Le procureur général a demandé au groupe de tenir compte de quatre « piliers » sur lesquels fonder la reforme : 1. Fournir des renseignements à un stade précoce pour les conjoints se séparant et leurs enfants;

2. Évaluer les parties en cause, et les orienter vers des services appropriés et proportionnels grâce à une approche de triage;

3. F  aciliter un meilleur accès aux renseignements et avis

24

juridiques, ainsi qu’à des méthodes alternatives de règlement des différends;

4. Élaborer des procédures rationalisées et pertinentes pour le tribunal de la famille.

Il s’est engagé à donner suite aux propositions pouvant être adoptées rapidement et à faible coût, compte tenu de la réalité du déficit. L’auditoire s’est levé pour applaudir lorsqu’il a fait sa promesse d’agir. À l’occasion du dîner du lundi, notre juge en chef, l’honorable Heather Smith, a été présentée par le président de notre section nationale du droit de la famille, Grant Gold. La juge Smith appuyait également la réforme en montrant les mesures positives déjà prises par les juges de la Cour supérieure.

Tout au long du congrès, Phil Epstein et le professeur Nick Bala ont écouté les recommandations découlant des ateliers, ils ont activement participé lorsqu’ils en ont senti le besoin et, à la fin, de manière inspirante comme toujours, ils ont compilé les recommandations afin de constituer un plan d’action entièrement réalisable. Tant Nick que Phil ont sacrifié un peu de leur temps en famille, déjà raréfié, pour être avec nous. Nous souhaitons donc leur exprimer toute notre gratitude pour, une fois de plus, ne pas avoir décliné l’invitation.

Tous les intervenants présents ont sincèrement exprimé leur gratitude pour cette occasion qui leur était fournie de contribuer aux changements. Mille mercis à Barb Landau et Heather Schwartz pour leur travail acharné envers la réussite de cette conférence, et pour avoir compilé les recommandations dans le rapport, qui est maintenant entre les mains du procureur général. C. Thomas Dart, ancien président de la section du droit de la famille

February 2010 | Briefly Speaking • En Bref


In Memoriam Rodney Hull Suzana Popovic-Montag

T

L

Rodney was a graduate of the Royal Military College of Canada and was called to the Ontario Bar in 1957. He was appointed Queen’s Counsel in 1971. Rodney was the founding partner of Hull & Hull LLP and one of the most well-known and respected estate lawyers in Canada. He will be remembered for his invaluable contributions, his wisdom and his generosity to the practice of law in Canada. He was a leading expert in his field.

Après avoir obtenu son diplôme du Collège militaire royal du Canada, Rodney a été admis au Barreau de l’Ontario en 1957. Il a été nommé conseil de la Reine en 1971. Rodney a été l’associé fondateur de Hull & Hull LLP, et l’un des avocats les plus respectés du domaine du droit successoral au Canada. On se souviendra de ses contributions inestimables et de sa générosité quant à la pratique du droit au Canada. Il était un grand spécialiste dans son domaine.

he Estates and Trusts Bar Mourns the Loss of Rodney Hull, Q.C., LSM

Rodney Hull passed away on December 5, 2009. He is survived by his wife and five children and will be greatly missed by all those that he touched in his special way.

Rodney was the author of the seminal reference works, Canadian Forms of Wills (4th ed.) and McDonnell, Sheard and Hull Probate Practice (4th ed.); and made extensive prolific contributions to academic and professional journals and publications in Canada relating to estates, trusts and fiduciary matters. Rodney was certified by the Law Society of Upper Canada as a specialist in civil litigation in 1988 and was the recipient of the Award of Excellence by the Ontario Bar Association, Wills and Trusts Section, in 2005. In 2007, he was awarded The Law Society Medal by The Law Society of Upper Canada. He was appointed a Deputy Judge of the Small Claims Court for the Central East Region in 2008. For over 50 years, Rodney’s reputation has been synonymous with outstanding excellence, dedicated professionalism and pure passion. He has set the standard for our profession, and we are all privileged to have had the opportunity to know, to learn from, to be taught by and to have worked alongside him over the years. We will honour Rodney’s legacy and his memory, and the leader, the mentor, the advisor, the advocate and the gentleman that he was. Suzana Popovic-Montag, partner of Hull & Hull LLP, Chair of the OBA Trusts and Estates Section Executive

Briefly Speaking • En Bref | February 2010

a section des successions et des fiducies déplore le décès de Rodney Hull, c.r., LSM

Rodney Hull nous a quittés le 5 décembre 2009. Il laisse dans le deuil son épouse et ses cinq enfants. Il manquera grandement à tous ceux qu’il a su toucher

Rodney était l’auteur des œuvres reconnues que sont Canadian Forms of Wills (4e éd.) et Probate Practice (4e éd.), de McDonnell, Sheard et Hull. Il a également contribué de manière prolifique à des revues et publications spécialisées et professionnelles au Canada, relativement aux questions de successions et de fiducies.

En 1988, Rodney a été certifié par le Barreau du Haut-Canada à titre de spécialiste en instances civiles, et en 2005 il s’est vu décerner le prix d’excellence de la section des fiducies et successions de l’Association du Barreau de l’Ontario. En 2007, il s’est vu décerner la médaille du Barreau, attribuée par le Barreau du Haut-Canada. En 2008, il a été nommé juge suppléant de la Cour des petites créances de la région du Centre-Est.

Pendant plus de 50 ans, la réputation de Rodney a été synonyme d’excellence, de professionnalisme attentionné et de passion inégalée. Il a établi la norme pour notre profession, et nous nous estimons tous privilégiés de l’avoir connu, d’avoir collaboré avec lui, d’avoir bénéficié de son enseignement et d’avoir appris de lui au cours des années. Nous méditerons longtemps encore l’exemple et la mémoire de Rodney, leader, mentor, conseiller, défenseur des droits et homme d’une grande noblesse. Suzana Popovic-Montag, associée de Hull & Hull LLP, et présidente du comité de direction de la section des fiducies et successions de l’ABO

25


BEHIND THE BENCH A new feature introducing you to Ontario’s Judiciary Justice Giovanna Toscano Roccamo Louise Harris “Hard work and service to her community have been, and remain, the driving forces in the life of Ottawa’s Justice Giovanna Toscano Roccamo. “

A child of humble beginnings, Giovanna acknowledges she built her dreams largely on those of her immigrant parents Domenico and Vittoria Toscano, who came to Canada, filled with hope for their family. She points proudly to her teenage years when, with her mother and sisters, she cleaned offices and waited tables which allowed her to “eavesdrop on a million conversations”. To this day, she remains an avowed “people watcher” and never allows her husband, Eugene Meehan, to enjoy the window seat in a restaurant.

Law wasn’t originally in the cards for Toscano Roccamo. Her love of acting was drawing her to Queen’s University where she was offered a scholarship in Dramatic Arts and Theatre to raise money for charity (the thespian in her has never died - she continues to act in community theatre with members of the Ottawa legal community, and attends singing lessons weekly – “cheaper than therapy” she says). Her parents had other ideas than theatre and she stayed at the University of Ottawa studying Political Science, Philosophy and English Literature. A university friend encouraged her to write the law school entrance exams at the University of Ottawa. Success there began a legal career in personal injury, medical malpractice, and insurance litigation, with Nelligan O’Brien Payne that she undertook with diligence and relish after her call to the Bar in 1985. Along the way she served as president of the County Carleton Law Association and has spoken and published extensively in the area of personal injury and insurance law, books as well as articles. On her annual “girls-golf-get-together” in the U.S. in 2003 she received a surprise call from a Cabinet Minister, who had had some difficulty tracking her down, to advise her of her appointment to the Superior Court of Justice.

“There is no case still that doesn’t teach,” says Justice Toscano Roccamo. “I am privileged to have the responsibility that I do. I enjoy working with our bench here in Ottawa. All of my colleagues are amazingly talented and dedicated people and we have a sizable female bench in Eastern Ontario. 26

The key to longevity in this career is to stay grounded. Keep your body healthy, be a keen observer, listen hard and keep your ability to laugh.”

A dedicated health and wellness enthusiast, Toscano Roccamo works out at least five days a week, usually at 6:00 am at a local gym. She does pilates, yoga, hiking, plays golf, cycles, does African dancing and revels in adventure vacations. She and Eugene Meehan, a familiar Ottawa sight on his bicycle, a Scot by birth who calls himself an IBM (Italian by marriage), have raised four children – her daughter Naomi and his three children Marc, Mélanie and Morgan. Meehan and Toscano Roccamo don’t have a TV, but are more than willing to talk to you about their travel experiences with their children in India or Moscow or more recently their roundthe-world adventure with National Geographic Expeditions. Seeing endless possibilities in every day, living the values she learned as a child, Toscano Roccamo is keeping it real on the Superior Court bench in Ottawa.

Justice Robert J. Sharpe Alastair Clarke

I recently had the chance to meet with Justice Sharpe (Ontario Court of Appeal) in his office at Osgoode Hall to get a sense of the man behind the bench. Public bios describe him as a: lawyer, author, academic and judge. For a more complete picture, add to that: former Dean, historian, constitutional ambassador, recreational tennis player, and opera buff. To see the support behind the man: a spouse of 41 years, three children and two grandchildren. Finally, on a purely subjective basis, I have to add time-management guru because there is no way to realize all his achievements (too numerous to list here) without extraordinary time-management skills. His response, “I just try to use all the small bits of time.” When I asked Justice Sharpe to pass along a tip for readers, he replied “we always need to re-examine our own thinking. Always ask, am I missing something?” This focus on examination and self-evaluation helps to explain some of the decisions he has made over his career. For example, he was initial-

February 2010 | Briefly Speaking • En Bref


BEHIND THE BENCH ly attracted to the study of law in the 1960s for its “academic investigation and practical application”. I imagine it was a similar blend of intellectual rigor with real-world application that attracted him to practice civil litigation with such great thinkers as Justice Ian Binnie, that led him to teaching and, ultimately, that has established his judicial acumen.

Justice Sharpe’s commitment to re-examination has fueled a keen interest in the historical underpinnings of our modern legal system. Prior to 2007, work regularly brought him to Ottawa and he would steal himself away to the National Archives to research the origins of “living tree principle” in constitutional law. This research led to The Persons Case: The Origins and Legacy of the Fight for Legal Personhood, a book he co-authored with Patricia I. McMahon. Other titles are included on his Author’s Page on amazon.com, including a recent reprinting of The Last Day, The Last Hour: The Currie Libel Trial with a new preface. Constantly on the search for legal topics of historical significance, Justice Sharpe is currently researching a book centred on two murders in Prince Edward County, potentially a miscarriage of justice.

Besides examination, the other personal characteristic that struck this writer regarding Justice Sharpe is balanced. Be it exercise or family time, Justice Sharpe seems to achieve that rare work-life balance while sitting on the busiest appellate court in Canada. Case in point: his daily routine. Save rainy mornings, Justice Sharpe starts off his morning with a regular 25 minute walk to work. Perhaps out of modesty or humility, he quickly dismissed my comparison with Immanuel Kant, the German philosopher who was famous for commuting on foot at a regular hour. At Osgoode Hall, his blocks for work are scheduled, he uses his lunch break to consult with fellow justices and meets with clerks to edit draft judgments in the afternoons. And his wife can attest that he is almost always home for dinner. In my conversation with Justice Sharpe, I didn’t ask him about his thoughts on Socrates’ views on an “unexamined life”. However, based on our short time together, I have a strong sense that Justice Sharpe’s life, thus far, has been thoroughly worth living. Alastair practises immigration law and poverty law at York Community Legal Services.

Justice Marc Bode Janice Vauthier

classroom setting.

Except for a brief time when his family moved to London, Ontario in the early 1960’s and his time away at university in the 1970’s, the Northwest has been Bode’s life-long home. Prior to his appointment to the Bench, he had a robust Thunder Bay practice, combining the position of Ontario Legal Aid Area Director for many years with a busy private labour and family practice. He was very active in the Thunder Bay Law Association for many years and took it upon himself to make many new lawyers to the area feel welcome.

He has always been a great lover of the outdoors, combining his skills as a canoeist, cyclist and trekker with his love of camping. He spent many summers camping along the North shore of Lake Superior with his wife Christine and two daughters, Rena and Leslie. This love of the outdoors certainly made its mark on his daughters as both skied competitively in their youth and Rena, his youngest, attained great success in cross-country skiing at a highly competitive level in Canada. The Bode household is much quieter these days with both daughters now married. His eldest, Leslie lives with her husband in Boston and Rena has remained in Thunder Bay. He and Christine, who is an artist, spend their now much quieter off hours enjoying their home and cottage. They also travel extensively and especially love travelling to Spain and France. Justice Bode was appointed the Regional Senior Justice in the Northwest district in 2009. He now oversees the Ontario Courts of Justice in Kenora, Fort Francis, Thunder Bay and all of the remote court settings along the North shore and in the fly-in communities further north. He is known to be an innovator and loves a challenge. Although he enjoyed his career as a private practice lawyer he’s now convinced the job of dispensing justice in the Northwest of the province is the best job in the world.

Marc is a great OBA supporter and represented the Northwest on the OBA’s Council for many years. He was passionate about the need for the OBA to bring education opportunities northward to members and to have the governance structure of the OBA represent the wide-spread membership throughout the province. Janice Vauthier, Vauthier, Paivalainen

Mr. Justice Marc Bode presides over the Ontario Court of Justice in the City of Thunder Bay and throughout the judicial district in the Northwest of the province. The district is very large, roughly the size of France and includes over 25 different Court room settings ranging from the traditional Courthouse courtroom to the remote community school Briefly Speaking • En Bref | February 2010

27


Bonjour, Paris! David Corbett

A do

t

Fasken

Martineau

we

have

developed a strategic plan tied to serving our clients where they

business.

providing

This

legal

increasingly

services

in

means multiple

jurisdictions. Today our six Canadian offices

are

complemented

by

our

thriving international offices in London, Johannesburg and now Paris. Part of what sets our firm apart is that we believe in building viable local offices, not merely representative or sales offices. Our latest office – Paris – came about through a merger and an expansion. Two teams of Paris lawyers approached us looking for new homes for their clients and their practices. One was a well established Paris firm looking to merge with an international firm that would value its clients. The other was a small team from an international firm looking for a solid platform for its specialty practice. The timing of the two overtures was fortuitous, so I asked them to meet and see if they might enjoy working together. Happily, they quickly agreed.

Why Paris? For us, the strategic importance of an office in Paris was obvious from the start. Paris is one of the world’s top cities for international business and arbitration. Our clients do business there and use it as a jumping off point for business on the Continent. It is also an entry point for business in Africa, particularly in the mining and energy sectors as well as project finance for telecommunications and other infrastructure projects. That makes Paris an important nexus for our firm as these areas are important to our clients and to our firm. An example of this is our mining practice which has been given the “Law Firm of the Year” award for Global Mining for the past five years by Who’s Who Legal. Paris is also a natural extension of two key elements of our firm’s practice: proficiency in both civil law and common law, and bilingual practice in French and English. Our London and Paris offices give us the largest footprint of any Canadian-based firm in Europe. As well, thanks to our office in Johannesburg, we are the only Canadian-based firm with an established presence in Africa. The unique combination of our teams across Canada, Europe and Johannesburg positions us to handle files throughout Africa. What about the grim global economy of the past year? Our expansion into Paris hinged on our belief in the continued strength of our practice. So far that assessment is proving correct. Surviving – even thriving in – economic cycles is easier with a balanced practice. We were fortunate that our firm’s global practice was positioned to withstand the precipitous drop in the markets. Our new team in Paris deliberately widens our geographic reach and at the same time deepens our African capabilities. Together, we think this is a recipe for success for our clients, our firm and our new Paris team.

Our decision to pursue a new Paris venture (as well as continuing to grow our offices in Canada, London and Johannesburg) was not based on naïve optimism. It was based on our strategy to better serve our clients and was supported by a strong business case. How can you position your firm to prosper even in economic hard times? Start with a clear strategic vision that has buy-in of the partners. Surround yourself with a team of great lawyers. And then, notwithstanding a challenging economic climate, ready yourself to analyze and seize on smart business opportunities that make sense for your firm. David Corbett is a managing Partner at Fasken Martineau.

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February 2010 | Briefly Speaking • En Bref


Ontario Court Accessibility for People with Disabilities Joy-Ann Cohen, M.A., LL.M., Barrister and Solicitor

A

lthough drivers of some wheelchairs compete in traffic with cars, once they get into a courtroom, they may not have space to turn. Should a large wheelchair stay in a parking lot and the person in it walk from there in crutches or instead get into another, smaller wheelchair?

The answer is that courts are serving individuals as they come. To do so courts are changing. Many of the improvements are recent, with a new courthouse opening in Durham and every full-time courthouse in Ontario recently acquiring an accessibility coordinator. Rules of civil procedure could be added. The value and goal involved are inclusiveness and functionality. FACILITIES

The accessibility standard every new facility must meet has been defined. In January to February, 2010, a courthouse designed specifically to that standard is opening in Durham. It has an entrance and parking that are accessible, although the Ministry of the Attorney General must already re-think some elements. The closest drop-off point for people to get out of their cars or buses is four hundred feet from the door. That is a long trek. There are numerous changes for the better. Counters are built so that people can reach and see over them. Signage is clearer. Washrooms are easy to find. Rooms have wide dimensions with ramps so wheelchairs can more easily maneuver. Sight-lines are different. Lecterns move up and down. Increasing the sound level to accommodate individual hearing is possible through equipment in each courtroom. Existing courthouses are under audit to evaluate where redesign is needed. For example, some judges have observed difficulties among prisoners when they are brought in from jails and enter the courthouse. Improvements are needed in holding areas, such as padded cells, and services for distraught and disabled prisoners. The government is now embarking on an assessment of how it can better meet the needs of people with development and mental disabilities.

SERVICES In the realm of services, the Ministry of the Attorney General announced that all full-time courthouses have acces-

Briefly Speaking • En Bref | February 2010

sibility coordinators. They received training and are in their new placements.

To put services in motion, people must fill out a form or phone the court house. Soon, they will be reachable through a centralized phone line and an internet link the Ministry of the Attorney General is posting. Meeting recurring needs for sign language interpretation and Braille translation is a challenge. The government looked at ways of making better use of limited resources, and getting more people to train in sign language interpretation. RULES OF COURT PROCEDURE

Rules of court procedure are now under the microscope to see if judges should be able to make orders based on accommodation as a priority. Naturally, this will lead to questions of whether applicants will make motions to a court, with or without the other party’s knowledge; the sort of proof that would be required; and how much information would remain confidential. Some Canadian provinces and American states have already changed their rules of procedure to answer these questions. Ontario’s Human Rights Tribunal has a procedure it now applies. OVERSEEING THE CHANGES

A volunteer group called the Courts Accessibility Committee for People with Disabilities oversees the strategy and practical results. Its members are staff at the Ministry of the Attorney General, responsible for court operations, judges, lawyers and educators. It was formally constituted by Roy McMurtry and arose out of recommendations in the Weiler Report. Joy-Ann Cohen is a Toronto lawyer practising in the areas of employment, immigration and human rights law. She is the OBA’s representative on the Courts Accessibility Committee for People with Disabilities.

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On the Move with Attorney General Chris Bentley Louise Harris

O

ntario’s Attorney General sat down for a “looking back – looking forward” conversation with Briefly Speaking in December. What quickly emerged was that two years in the portfolio hasn’t dulled his appetite for finding ways of doing things faster, better and at less cost.

On January 18th, Chris

Bentley was given additional responsibility as Minister of Aboriginal Affairs. “I am looking forward to a productive meeting, at the earliest opportunity, with the OBA’s Aboriginal Law Section executive.” There’s not a lot of profile or glory in retooling outdated and ailing machinery, but Ontario’s Attorney General is determined that his time in this portfolio will be a time of rebuilding and modernization.

“We have to modernize, and quickly”

“I graduated in 1979. We practise law in, many cases, in a similar way to the way we did in 1979,” says Bentley. “Good heavens, would anyone want their healthcare dealt with in the same way as it was in 1979? If your doctor told you he was going to use 1979 techniques and equipment, 1979 approaches to anaesthesia and pain management…well, I don’t care how sick you are, you’d be out of there pretty fast. We in the law grab on to those time honoured methods. Just look at the resistance to electronic disclosure in criminal cases. We have to modernize, and quickly.” 30

Bentley’s Justice on Target (“JOT”) initiative to reduce delays in Ontario’s criminal courts is underway at three sites and moving quickly into others. Local Leadership Teams at the initial action sites include judges, Justices of the Peace, Crown attorneys, defence counsel, police, corrections, victim services workers, LAO and court staff. It is, he says, about “unclogging the court system, cutting out unnecessary court appearances and moving resources from the cases that don’t really need them to the cases that are the serious ones, so that they will have more resources dedicated to them … and get on with it faster.” JOT began in three sites in June with full implementation in September, and is expanding into six more with plans for a significant number of smaller sites next year. George Thomson, former Deputy Attorney General in Ontario as well as a former member of the judiciary, is a recent addition to the JOT Expert Advisory Board. He said, “the measures being adopted in the initial areas are not, for the most part, new ideas in the field of criminal justice reform.

February 2010 | Briefly Speaking • En Bref


What is unique is the degree of cooperation between the different parts of the justice system and the shared decisionmaking.” It will be necessary, he says, to “stick with it for the time it usually takes to bring about real change in the criminal justice system.”

These reforms are, in Bentley’s words, coming from the front lines of the justice system. He is unshakable in his belief that those who work in the system can conceive and implement a different, better way when they have the opportunity to do so.

“With Justice on Target, we are going to hit those targets. But it’s also important to remember that we have one of the strongest systems in the world. People come from all over the world to meet with us. We can always do better, but I’ve never heard anyone say they would trade this system of justice for any other.” JOT is one key component in the massive overhaul Bentley has set in motion. Legal Aid funding reform, Justice Ontario, family law reform, and new civil rules are all part of a huge push by Bentley to see significant and meaningful reform. The system, he says, needs to work for the people it serves, not serve the people who work in the system. “We are in the information business,” says Bentley. “We cannot pretend that by not giving people information they’ll all be encouraged to go out and get lawyers. In fact, it’s when people receive a great deal of information that they realize, for certain things, they do need a lawyer.”

remembered that August, but being the AG who delivered on legal aid.”

Part of the announcement on legal aid was the development and implementation of a funding mechanism after year four. Recent meetings with legal organizations who make up the Alliance for Sustainable Legal Aid (ASLA) indicate that Bentley is still willing to keep the dialogue ongoing and productive.

“Don’t let perfection be the enemy of the good, let’s move”

“We need,” Bentley adds, “to ensure that it doesn’t ever lapse back to these difficult situations.”

The five Advisory Review Panels, which had an OBA representative on each, have provided their recommendations on allocation of the new funds to Bentley, who imposed a December 15th deadline to receive the recommendations. The recommendations are printed on pages 16-17 “The barrier to moving”, he says, “is ‘oh well, it’s not perfect yet, we don’t have the plan, the perfect plan, so we won’t change what we are doing’ and I say no, don’t let perfection be the enemy of the good, let’s move.”

Justice Ontario, a “one stop shopping” source on the Ministry of the Attorney General’s website (and a link on the OBA homepage) is, Bentley says, about explaining basic rights, in a very simple way, what you can and can’t accomplish. “We are in an era where it’s our obligation to make information available to people in a language they can understand.” “The system is clearly recognized as being too slow. It’s extremely complex and that hasn’t changed” he says. “And it’s become too expensive for huge numbers of Ontarians. We can’t talk about a justice system, which is the foundation of society, where half of that society can’t afford it.”

Legal Aid occupied much of the spring and summer for Bentley, dealing with a boycott by many in the criminal defence bar while simultaneously trying to push a funding package through Cabinet as the government was about to announce a $24.7 billion deficit. He announced a $150 million, four year funding increase in September, 2009. He relates a story, positing two significant dates. The first, he says, is August 1995 and contrast that with September 2009 when he was able, as the Attorney General, to announce the single largest funding increase in Legal Aid’s history. “On that date in August of 1995, I had been practicing for 15 years, and 95 percent of my work was criminal work, so a lot of legal aid. Those who had been taking legal aid hadn’t been paid, in many cases for up to ten months. They were having one of many funding crises and in August of 1995, I remember I went to the variety store and I saw the words ‘legal aid’ on the front page of one of Canada’s major newspapers. So, of course, that attracted my attention. The then AG was speculating that he might have to treat legal aid as though it was in a bankruptcy situation where we would be getting about 30 cents on the dollar. That was probably the low point of my legal aid career. So between that page and September of 2009 - it’s a nice contrast to have been the AG who not only Briefly Speaking • En Bref | February 2010

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“We are” says Bentley, “demonstrating in the new approach to civil justice, which begins January 1, as we are demonstrating through the new approach to major cases and we will be demonstrating through the new approach to family, bigger budgets doesn’t mean better.” In a recent press conference held at the OBA, Bentley announced substantial changes to family law, to be initially rolled out in Milton and Brampton on March 1, 2010. Changes include greater information up front about what is involved, early disclosure and community referrals, improved access to legal advice as well as mediation and collaborative law and streamlining the steps involved for those cases that must go to court. While roundly applauded, the call remains from members of the bar for a unified system across the province with specialized judges. Even big wins bring the request for more, as Bentley has learned. His goal of a modern system to serve the next generation is making progress … slowly in some cases, more quickly in others.

Save the date CBA Canadian Legal Conference in Niagara from August 15-17

“You can’t be swayed by observations that the effectiveness of the system is centred around the size of budgets,” he concludes. “If you spend more on ‘the system’, you’re going to get more of ‘the system’. Between 1992 and 2009 there have been major investments in new courthouses, courtrooms, more crowns, police, judges and now legal aid funding. But the system is slow and increasingly unaffordable. We need to move with the times and make sure that the system is renewed, reformed, fine tuned and changed to better serve. We should have a system of justice that provides people with the justice they need, not necessarily everything that they want. They are different things. We need a system that has less paper, fewer steps and gets to the decision faster.

Let’s move, and once we start moving, all those who are experts in this field, the judges, the members of the bar, the support groups, they will all make it as good as it needs to be, but we’ve got to move.”

Marquez vos calendriers ! Du 15 au 17 août 2010, la Conférence juridique canadienne de l’ABC aura lieu à Niagara!

CLC events will ensure you take in the full beauty and excitement of one of Canada’s premiere wine regions. The main conference sessions are taking place at the Sheraton on the Falls with receptions and events throughout the vineyards of Niagara. Opening Night Festivities at Table Rock Center are at the brink of the thundering falls while the closing evening will let you explore wine country.

Les activités entourant la CJC vous permettront d’apprécier pleinement la beauté et le dynamisme d’une des régions vinicoles les plus prestigieuses du Canada. Les séances principales de la CJC se dérouleront à l’hôtel Sheraton on the Falls, tandis que des réceptions et activités sont prévues dans l’ensemble de la région des vignobles. Les festivités de la soirée d’ouverture au Centre Table Rock auront lieu à proximité des chutes rugissantes, alors que la soirée de clôture vous permettra d’explorer les vignobles.

2010 – A very good year!

2010 – un grand cru!

Watch for registration details in early spring at www.cba.org/Niagara2010

Postcard.indd 1

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Les renseignements sur l’inscription seront diffusés au début du printemps prochain à www.cba.org/Niagara2010.

12/10/2009 10:14:03 AM

Postcard.indd 2

12/10/2009 10:14:17 AM

February 2010 | Briefly Speaking • En Bref


Run for the Border A Journey to Practising Law in Ontario Frances Jagtoo

T

wo countries, two law schools, two bar exams, three licenses, lots of tuition … and the rest is history!

After earning a Juris Doctor from Thomas M. Cooley Law School in Michigan, including a semester in a study abroad program with James Morton of Steinberg, Morton, Hope & Israel, LLP, I decided to become licensed to practise law in New York and Ontario.

The New York Bar was an important factor in gaining admission to U of T to complete courses required by the NCA in order to qualify to write the Ontario bar. While the New York bar was challenging and not a requirement, it proved to be an asset in transitioning to Ontario and perhaps having to write only five exams.

I wrote the New York bar exam first, which, I must confess, was a grueling experience. While admission to a US bar was not a requirement for licensing in Ontario, it definitely helped.

My experience at U of T led to inevitable comparisons, having completed my J.D. in the U.S. The US classroom was somewhat intimidating since the Socratic Method of teaching was alive and well. Needless to say, I kept up with voluminous readings to avoid looking like a fool by the Professor if asked to stand up in front of my peers to discuss, for instance, the dissent in Roe v. Wade.

After obtaining a J.D. and writing the New York Bar, I was not thrilled about taking further courses and exams. I, like other NCA students, had the option to either write NCA exams or apply to an Ontario law school to take the required courses (as determined by the NCA, after considering various factors).

The requirement of Articles is a major difference between the U.S. and Ontario - it is not mandatory for licensing in the US as it is here in Ontario. For NCA students it is sometimes more difficult to secure articling placements and associate positions, particularly in full service law firms; this, unfortunately, may result in delay in obtaining a license to practise or perhaps, not obtaining a license at all.

Next was the Ontario Bar. An application to the National Committee on Accreditation (NCA) was required to determine the number of courses I needed to complete in Ontario to qualify to write the Ontario Bar. After submitting an application, transcripts and fees, the NCA determined that I must take five courses and exams. I suppose I was lucky since, at that time, the norm for many was to take eight.

I took the road less travelled. Instead of undergoing an independent course of study and writing NCA exams, I applied to the University of Toronto (“U of T”) to complete the courses, most of which I took in law school. Admissions representatives at the U of T were interested in my application because I took the New York Bar and went to a U.S. law school. It was my understanding that admission to the New York Bar was well respected and brought diversity to the university’s student body. Briefly Speaking • En Bref | February 2010

To my pleasant surprise, the Socratic Method was not used at U of T (and I understand it is not generally the norm in other Ontario schools). For me, Ontario law school and bar exams were not as dreadful since most were open book – south of the border, substantially all of the law school and bar exams were closed book!

While the road to become licensed to practise law in Ontario after studying in the U.S. may have seemed long, it was well worth it. Given that many law firms and corporations are international, and that Canadians and Americans live and work cross-border, a wealth of opportunities exist for lawyers, like me, who studied abroad and are licensed to practise in the U.S. and Ontario. Frances Jagtoo, Jagtoo & Jagtoo, Member of the Ontario, New York & Washington D.C. Bars

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Making a World of Difference CBA’s Young Lawyer International Program

T

he CBA’s Young Lawyers International Program is funded by the Canadian International

Development

Past placements have included: •

Agency

(CIDA) as part of the Government of Canada’s

Youth Employment Strategy (YES). Through this

program, young lawyers are placed in internships

to work with human rights legal organizations on issues such as women’s rights, labour rights, constitutional indigenous

rights,

people’s

children’s rights.

rights

Internships

and are

located in Latin America and the Caribbean, Southern and Central Africa and South East Asia. This fantastic program provides organizations abroad with young lawyers who have the expertise to make a professional contribution to their work. It also provides young lawyers, at the threshold of their careers, with international experience to help them gain employment in the field of law and international human rights legal work.

34

The internship is eight months long which allows for preparation, follow-up and consolidation upon returning to Canada. Participants are required to produce six months of work for the host organization however; terms may be extended under special conditions. Some interns have found ongoing project work either with partner organizations or with a different association in the country of placement.

• • • • • •

Legal Resources Centre - Johannesburg, Durban, Cape Town and Grahamstown, South Africa

 awyers for Human Rights - Tshwane (Pretoria), L Johannesburg and Durban, South Africa Legal Assistance Centre - Windhoek, Namibia

 thiopia Women Lawyers Association - Addis Ababa, E Ethiopia  egal and Human Rights Centre - Dar es Salaam and L Arusha, Tanzania L ao Bar Association - Vientiane, Laos

Uganda Law Society - Kampala, Uganda

East Africa Law Society – Arusha, Tanzania L aw Society of Kenya – Nairobi, Kenya

Ethiopian Bar Association – Addis Ababa, Ethiopia

I ndependent Jamaican Council for Human Rights Kingston, Jamaica Guyana Legal Aid Clinic – Georgetown, Guyana

International volunteer opportunities also exist for more senior legal practitioners through the CBA’s International Program.

For more information and eligibility guidelines please visit the CBA website: www.cba.org

February 2010 | Briefly Speaking • En Bref


International Family and Child Law A Comment on the Workings of the Convention on the Civil Aspects of International Child Abduction Jeffery Wilson

S

ome ideas make a lot of sense in theory, like letting babies in

when the marriage collapses and one parent secretly or deceitfully, the crib cry rather than repeatedly running to calm them, but in or without the consent of the other, practice, parental instinct may dictate otherwise. steals the child and returns “home”. Why? According to the case law, these countries, from where the So it is with the Hague Convention on the Civil Aspects of children were taken and were clearly habitually resident, beInternational Child Abduction. In theory, let the Court where sides being non-Convention-member states, do not measure the child habitually resides decide the child’s best interests. up to Canada’s standard of gender equality. In more than one Otherwise, the paternalistic, outdated, if not colonial juriscase, our court has invoked its residual parens patriae jurisprudence will encourage expatriate parents living abroad diction to transcend the operation of Convention law. Such with a child to exercise self-help, grab first and ask later, and transcendental thought leads non-participating Convention arrive at the doorstep of the Court of their original home exstates and their legal experts and theorists to reject the prinpecting best interests justification for the abrupt removal or ciples of international comity with western nations. (Even abduction of the child from the other parent. (See, for examthough, if the situation were reversed, these nations would be ple, McKee [1951] A.C. 352, [1951] 1 All E.R. 942 (P.C.)). unlikely to return the children of their citizenry to Canada). Thus, cometh the Convention and a code for international (See See Johnson v. Athimootli [2007] O.J. No. 3788 (Ont. Sup.); comity that makes it clear that, barring the most exceptional Yasan v. Labanni [2006] B.C.J. No.2928, leave to appeal to the circumstances, jurists ask themselves where the child was SCC dismissed, [2007] S.C.C.A. No. 19). habitually resident, and once that is decided, return the child Added to this problem is the politics of international chilto that jurisdiction where there, the Court can apply best indren’s law. By politics, I refer to the fact that non-member terests thinking regarding the child’s welfare and custody. It convention states perceive the club of participating nations is an idea that makes a lot of sense. Here’s how parental into apply the rules unfairly. The participating nations represtinct gets in the way. sent the minority of worldwide states and certainly the world Reciprocating nation- member states that have ratified the population. Think of Japan; Korea; all of Africa, except South Convention give different meaning to the exceptional circumAfrica; China; India and all Muslim nations, and you have the stances that enable a departure from the habitual residence non-member states whose experts and theorists cry “racism” result. Recently, a judge in the Ontario trenches applied a deevery time a Canadian jurist invokes parental instinct to rescision from his Court of Appeal to conclude that the law and cue a child from her habitual residence because of standards authorities in California could not protect a mother and her disparity in gender equality or whatever else. child, even with an order in place from that jurisdiction givYes, international law as parental instinct. Yes, doing ing the mother custody, exclusive possession of the home and what’s best and, yes, in the child’s best interests. Tribal wara restraint of contact/protection order under the court’s sufare of a different sort for the sake of the child. pervision. (See Zemaryalai and Achakzad [2009] O.J. No. 2564 (OCJ) applying Pollastro [1999] O.J. No. 911 (C.A.), reversed on Jeffery Wilson is a Canadian lawyer, adjunct professor at the University of Toronto appeal [2009] O.J. No. 3933) Faculty of Law, Author of (Lexis Nexis) On Children and the Law; Editor, Ontario Family Reporter, and the creator of The Law and Youth[:]Taking Ownership of Then, there are recent decisions of Canadian jurists who Knowledge Workshop Series, www.lawandyouth.org decide, habitual residence notwithstanding, Canadian children living with their parents abroad should not be returned

Briefly Speaking • En Bref | February 2010

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Coming Soon Mandatory Continuing Professional Development David Sterns

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he Law Society of Upper Canada has unveiled a proposal for mandatory continuing professional development (CPD) applicable to all lawyers practising in Ontario. The current proposal brings Ontario into line with several other provinces which impose CPD requirements as well as 45 American states and numerous bars of the Commonwealth. The OBA has long advocated lifelong learning as an essential part of lawyers’ professional obligations and generally welcomes this initiative. At its meeting in December, the OBA’s Board of Directors passed a unanimous resolution supporting the proposal in principle, subject to recommendations to be put forth by its MCLE Working Group, chaired by OBA Vice President R. Lee Akazaki. The OBA Council endorsed this resolution by a strong majority. Under the current proposal, all practising lawyers who are in the 100% fee paying category will be required to perform a minimum of 12 hours of CPD annually. CPD is broader than merely continuing legal education. The concept encompasses the study of substantive law as well as professional ethics, mentoring, teaching and professional writing. The 12-hour requirement can be satisfied in a number of ways, including: •

• • • •

a ttending in person, online or by telephone at continuing education programs in settings that allow the lawyer to interact with others mentoring – both the mentor and the mentee may claim the hours spent related specifically to substantive law, practice management, professionalism and ethics, and skills development (to a maximum of 6 hours of the requirement) teaching law-related content (to a maximum of 6 hours of the annual requirement) completion of an online or self-study course (distance learning) w riting law-related books or articles (to a maximum of 6 hours of the annual requirement)

Each of these activities is subject to certain conditions set out in the proposed guidelines. In addition, a minimum of 25% of the annual 12 hour CPD requirement for lawyers must be taken in ethics, professionalism or practice management.

The hourly component in the current proposal is not overly onerous – indeed most OBA members already do far more

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than 12 hours of CPD annually. Nevertheless, certain professional activities would not qualify for the 12-hour minimum. These include: • • • • •

marketing-related activities pro-bono work acting as the chair or member of a tribunal or other institution or board attendance at the business portion of Annual General Meetings attendance at meetings of a legal association’s board or committees.

The MCLE Working Group is preparing a preliminary report back to the LSUC with several recommendations. Of particular concern to the Committee was ensuring substantive law components of professional association committee meetings, as distinct from the “business” portions of such meetings, qualify toward the 12 hour requirement. As those who participate in OBA section meetings know, much of the time at these meetings is devoted to issues of professionalism and competence. Another issue of concern to the Committee is ensuring that LSUC’s enforcement of the CPD requirement is fair and objective, and that any failure of a lawyer to comply with the requirement can be remedied without undue administrative hurdles. The comprehensive report of LSUC’s Professional Development and Competence committee listing all of the proposed qualifying and excluded activities is available at http:// www.lsuc.on.ca/media/convoct09_joint_report.pdf

The CPD requirement will assist in maintaining the high quality of service the public is entitled to receive from the legal profession. The OBA will continue to put forward the interests of the profession on this important initiative. View the OBA submission at www.oba.org/publicaffairs/ submission.

February 2010 | Briefly Speaking • En Bref


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Briefly Speaking • En Bref | February 2010

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The Supreme Court of Canada’s Support of Journalism Julian Porter

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wo recent decisions of the Supreme Court of Canada changed the law for magazines, newspapers, television, radio and bloggers. Before these cases the issue was, prior to publishing a critical piece, “Can we prove all this in Court with its strict rules of evidence?” Now the Court has shifted to emphasize that public exchange of information is vital to modern Canadian society. If a story is in the public interest and the press has every reason to believe it is true, then they are entitled to a defence if they have followed responsible rules of journalism.

A new defence has been developed in Canada called “responsible communication on matters of public interest”. It is called this because it does not just apply to journalists – it also applies to bloggers and anybody communicating to the public.

These cases represent an essential shift in the law away from the protection of individual reputation to supporting the concept of the ventilation of discussion over matters of public interest: Having considered the arguments on both sides of the debate from the perspective of principle, I conclude that the current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression. While the law must protect reputation, the level of protection currently accorded by the law – in effect a regime of strict liability – is not justifiable. The law of defamation currently accords no protection for statements on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true. But such communications advance both free expression rationales mentioned above – democratic discourse and truth finding – and therefore require some protection within the law of defamation. When proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts

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it is in the public’s interest to know. [Grant v. Torstar Corporation, para. 65] The matter must be of public interest which is one in which the public has some substantial concern because it affects the welfare of citizens or one to which considerable public notoriety or controversy has attached. Mere curiosity or prurient interest is not enough. The test in the lawsuit will be whether the editors and the reporters have acted responsibly in producing the story. However, the Court carefully emphasizes that it doesn’t wish to second guess editorial decisions provided that the publisher has acted responsibly in protecting the subjects of the article from false accusations and innuendo. The Court accepts the concept that some stories must be published quickly but the plaintiff’s side of the story must be sought and the response accurately reported.

The cases make clear it will be more difficult for the target of a story to duck reporters in order to kill the story. There will be fewer “no comment” responses. A lawyer will most probably advise the plaintiff to talk to the reporter. The law requires the journalist to seek the plaintiff’s side of the story and report it accurately. One result of this is that the target is obliged to talk – he/she can refuse but in that event a Court won’t be critical of the publication not setting out the target’s side of the story.

The Court also envisaged articles that are punchy and the following statement is a breath of fresh air: … While distortion or sensationalism in the manner of presentation will undercut the extent to which a defendant can plausibly claim to have been communicating responsibly in the public interest, the defence of responsible communication ought not to hold writers to a standard of stylistic blandness ... Neither should the law encourage the fiction that fairness and responsibil-

February 2010 | Briefly Speaking • En Bref


ity lies in disavowing or concealing one’s point of view. The best investigative reporting often takes a trenchant or adversarial position on pressing issues of the day. An otherwise responsible article should not be denied the protection of the defence simply because of its critical tone. [Grant v. Torstar Corporation, para. 123] Remember that the Court never goes as far as the American law which has nothing whatsoever to do with our situation – don’t think or talk about American law when you are speaking about Canadian obligations or liabilities. The odd wrinkle in these decisions is that they expressly apply to bloggers. It is not a defence for journalists alone. So if the matter is of public interest, the blogger gets the benefit of the defence. Yet the blogger is rarely part of a structured disciplined news organization. The picture of a blogger phoning the subject of a blog and identifying what is going to be said in the blog and then reporting the response fairly is an interesting concept. What do you say to the aggressive blogger who has been on your case for ages? I don’t know. We’ll see.

The Court in an aside has given the blogger the status of a journalist.

Julian Porter, Q.C. has practised litigation exclusively since 1964 and is recognized by the Law Society of Upper Canada as a specialist in civil litigation. He now practices as independent counsel. He has defended many of Canada’s leading writers, publishers and magazines in libel matters and has acted for a large number of plaintiffs suing newspapers and television stations.

Briefly Speaking • En Bref | February 2010

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Practising Abroad: The Swiss Experience Francis I Rojas

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ver the last year, just like this season’s tumultuous Formula 1 World Championship, Switzerland has seen its fair share of scandals. With the UBS saga in the US, the OECD/G20 attacks on so-called ‘tax havens’, the forced renegotiation of tax treaties, the UBS sub-prime losses, and more recently the

Lybian hostage affair and the anti-Minarets vote, Swiss politicians have had a busy year. Meanwhile, the Swiss economy has continued to attract both foreign capital and foreign workforce through a mixture of foreign investment incentives, a favourable (and predictable) tax regime, hard work, and plenty of attention to detail (which explains their renowned watch-making skills). Yet Switzerland seems an unlikely place for foreign lawyers - let alone a Canadian lawyer, like me. FOREIGN LAWYERS IN SWITZERLAND

As a tiny, landlocked state right smack in the middle of Europe, Switzerland is an important international finance centre. With its vast network of international organisations (both governmental and non-governmental), corporate headquarters, and its global finance and banking industry, Switzerland attracts a large contingent of lawyers from around the world. Whether practicing in the area of international arbitration, international tax and trust or corporate law, many foreign lawyers are able to practice from Switzerland with minimal procedural difficulties from the Cantonal bar associations. 40

Following the footsteps of much larger financial centres such as Hong Kong, London and New York, Switzerland has opened its borders to foreign practitioners. As a result, the entire country has gained in terms of its ability to handle complex international matters for truly international clients, handling conflict of laws issues – involving common law, civil law, sharia law, etc. For lawyers practicing in Switzerland, their client base is certainly international, not local. For Canadian lawyers practising in this country, the difference could not be more striking. Instead of seeking isolation on the world stage, and creating unnecessary barriers to foreign investment, this country has embraced the ability of foreign lawyers to practice law, and at the same time promote Switzerland as a financial capital. CANADIAN LAWYER IN SWITZERLAND

As a Canadian tax lawyer with a US tax degree, I have been exposed to many cross-border tax issues in my years of practice in Montreal (much like most Canadian lawyers for that matter). This background helped me understand the intricaFebruary 2010 | Briefly Speaking • En Bref


cies of dealing with different legal systems – often addressing issues going beyond common law and civil law. In the global context, as lawyers tend to specialise in high-end practice areas, clients increasingly expect lawyers to know a minimum about cross-border issues. Whether in the context of tax and succession planning for an international family with double citizenships and a few residences around the world, with siblings in South Africa dealing with exchange controls, business interests in Venezuela that are possible targets for expropriation, and the next generation having US passports and attending school in the UK, the practice of law is increasingly concerned with issues that can have disastrous consequences unless they are properly dealt with on a global basis. Absent a clear, overall understanding of the key investment protection treaties and interplay between the relevant legal and tax rules involved (and tax treaty opportunities), much time and efforts may be lost solving increasingly common puzzles. It is in this greater context that Switzerland has grown into a formidable centre for international expertise – working with local counsel for local advice. As clients (and capital) become ever more mobile, lawyers will consistently consider foreign issues before signing off on a piece of advice. EXCITING YEAR

Just as this season’s Formula 1 World Championship saw an unthinkable succession of dramatic events, Switzerland has also seen its share of scandals. It is true that the recent UBS saga in the US, and OECD pressures for Switzerland to drop its historical reservation to Article 26 of the OECD Model Convention (dealing with exchange of information in administrative matters), which led to the renegotiation of tax treaties, have had an impact on Swiss banks. There is no

doubt that the negative publicity will continue in the coming months as more and more voluntary disclosure cases are processed in Canada and elsewhere. In the global context however, the forward-looking approach that Switzerland has shown in many areas has ensured that the country can rely on a much bigger, proper banking industry. In fact, the erosion of Swiss secrecy will continue, but it is expected that the legal system will also run its course, setting the parameters for assistance. With its ability to provide a stable and predicable tax regime for corporations and individuals from all over the world, these scandals will quickly give way to significant benefits of using Switzerland as a favourable jurisdiction for international tax planning purposes. With no reliance on commodities or natural resources, Switzerland has been a pioneer at adapting its legal and tax environment to the demands of the world, setting the stage to attract foreign investments, while developing its big multinational businesses and corporate headquarters. If there is anything positive in the recent trend towards greater information exchange, it is the ability of the Swiss to redeploy their offerings in order to attract foreign expertise.

On the other hand, officials in other countries are prone to adopting rules which indirectly enhance Switzerland’s attraction as a destination for capital and workforce. In this sense, Alistair Darling’s announcement of a 50% tax rate in the UK has already benefited Switzerland without the need for Swiss politicians to do anything. Maybe this is what the world needs to enhance global tax competition and level the playing field. Francis I Rojas is a tax and trust partner at Withers in Geneva.

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Canadians in Peril Abroad Is There a Legal Duty on Government to Protect its Nationals? H. Scott Fairley

T

he title of this article encapsulates the principal question raised before the Supreme Court of Canada at its hearing of a comprehensive appeal by the Crown on Friday, 13 November 2009, in the matter of Prime Minister of Canada et al v. Omar Ahmed Khadr. The purpose of writing it now, prior

to the Supreme Court deciding this case, is not to provide a premature case comment, but to highlight how a comparatively narrow constitutional case was transformed into a provocative debate on a contentious concept in international law – the “Duty to Protect” – which may (or may not) bind the Government of Canada (“GOC”) as a matter of domestic law.

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The Federal Court of Canada, affirmed by the Federal Court of Appeal, had determined that, in the circumstances of Mr. Khadr’s case, the GOC had a “duty to protect” him to the extent of its available diplomatic and consular powers. (See: Khadr v. Prime Minister of Canada et al, 2009 FC 405 (23 April 2009); aff’d, sub. nom. Canada (Prime Minister) v. Khadr, 2009 FCA 246 (14 August 2009)). The lower court findings were predicated on a violation of the Canadian Charter of Rights and Freedoms by the GOC in its alleged complicity with U.S. authorities in its treatment of Mr. Khadr. In response to that violation, the Federal Court granted a “remedy” under Charter section 24(1) compelling the GOC to employ its powers of diplomatic protection and consular assistance to request the Government of the United States to repatriate Mr. Khadr from U.S. military prison facilities in Guantanamo, Cuba. While deeply involved in Mr. Khadr’s case since his capture by U.S. military forces in Afghanistan during an attack

on alleged Al Qaeda militants in the summer of 2002, the GOC has refused thus far to make such a request.

Mr. Khadr has consistently denied the charges against him, but has not been brought to trial by U.S. military or civil judicial authorities. However during the Supreme Court hearing, Mr. Khadr’s counsel advised the Court of a U.S. Government announcement that day, stating at long last its intention to bring Mr. Khadr to trial in the United States before a revamped U.S. Military Commission. Whether a GOC request for the repatriation of Mr. Khadr remains a viable option by the time the Supreme Court rules on the Federal Court decisions, and what the likely U.S. response will be if and when such a request is made, are very much open questions. But whatever outcomes eventually apply to the instant case, the impact and significance of the Court’s decision and reasons hold promise of far greater breadth of application to future February 2010 | Briefly Speaking • En Bref


cases. Much to the surprise of many counsel participating in the Supreme Court appeal, including this writer, the Supreme Court invited legal argument on the existence of a Duty to Protect on a much broader footing than that either submitted to or considered by the courts below. At the same time, however, questions from a significant number of the nine justices sitting en banc displayed considerable sensitivity to the Crown’s central argument that, while the GOC had certain powers, the exercise of which might assist Mr. Khadr, the decision of whether or not they should be exercised belonged to the GOC alone as an element of the Royal Prerogative in relation to the conduct of Canada’s foreign relations. GENESIS OF THE CASE

The case discussed here follows upon a substantial bundle of related but independent proceedings in the legal journey of Omar Khadr, in total: 15 decisions in the Federal Court; 3 in the Federal Court of Appeal; and two in the Supreme Court. Reliance on a Duty to Protect became a principal issue for legal decision in the wake of evidence disclosed pursuant to earlier court orders suggesting GOC complicity in certain forms of torture – specifically sleep deprivation – inflicted on Mr. Khadr by U.S. military prison authorities at Guantanamo. Following such treatment, GOC officials had questioned Mr. Khadr on two occasions in 2003 and again in 2004 when Mr. Khadr was respectively, only 16 and 17 years of age. Thus, Mr Khadr’s status as a “child”, and as an allegedly conscripted “child warrior” under international law informed the Charter arguments of Khadr’s lawyers. The Federal Court found that Mr. Khadr’s Charter section 7 rights, informed by judicial findings that Canada had breached its international obligations under various treaties to which it is a party – notably, the International Covenant on Civil and Political Rights (“ICCPR”), and the further U.N. Conventions Against Torture (“CAT”) and the Rights of the Child (“CRC”). Counsel for Mr. Khadr in the courts below and again before the Supreme Court eschewed any reliance upon an independent Duty to Protect as a necessary element of his defence to the Crown’s appeal. Indeed, absent the alleged complicity of the GOC, which Crown counsel disputed throughout, there would have been no foundation for the familiar turf of Charter litigation.

and Immigration), [1999] 2 S.C.R. 817). This is essentially a contemporary restatement of the well known rule from the Labour Conventions Case, ([1937] A.C. 326(P.C.)) requiring the transformation of treaty obligations into legislation – federal and/or provincial according to the federal division of powers, before they can have any domestic legal force.

Common Law norms derived from customary international law are a different matter, however, where legislatures are not required to speak first. In this regard, the Supreme Court’s recent decision in Hape assumes critical importance for arguments in support of a Duty to Protect in Khadr for its unambiguous recognition of an “adoptionist” view that prohibitive rules of customary international law are automatically incorporated into Canadian common law (Hape, supra, at para 39). Salient points from the foregoing that may be considered by the Court in its forthcoming decision in Khadr are first, the applicability of Hape to executive action pursuant to the Royal Prerogative, and the focus of the Court on “prohibitive rules” in relation to the adoption of customary international law norms. On the first point, as was noted in both written argument before the Court and by the Court itself during the hearing, executive acts under the Royal Prerogative are nevertheless reviewable governmental action on constitutional grounds (See e.g.: Operation Dismantle v. The Queen [1985] 1 S.C.R. 441). However, on the second point, it remains to be seen whether customary law in support of requiring positive action by the GOC will be treated in the same way as a “prohibitive rule” of international law as referenced in Hape. From a separation of powers perspective, for a court to compel governmental action in the nature of mandamus may be viewed as far more intrusive than a simple judicial declaration of a prohibitive rule. On the other hand, violation of a prohibitive rule of customary international law incorporated into the law of Canada -- that is not otherwise in conflict with the expressed will of Parliament -- may also provide a sufficient foundation for providing a positive remedy, consistent

THE NEW FOUND IMPORTANCE OF INTERNATIONAL LAW IN CANADIAN LEGAL ARGUMENT

International law figured prominently before the Federal Court at first instance in Khadr, based in part on previous recognition by the Supreme Court of Canada that Charter rights should be interpreted in light of the standards imposed by international human rights treaties to which Canada is a party. Some time ago (in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038), the Court laid down the general proposition that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.” This principle of interpretation has been reaffirmed by the Court more recently in R. v. Hape ([2007] 2 S.C.R. 292), providing a minimum standard for Charter interpretation which Canadian courts appear to apply regardless of whether the treaties referred to have been formally implemented. In recent times, however, the Supreme Court has also reaffirmed the potentially conflicting principle that “[i]nternational treaties and conventions are not part of Canadian law unless they have been implemented by statute.”(See: Baker v. Canada (Minister of Citizenship Briefly Speaking • En Bref | February 2010

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with basic principles of administrative law, since the latter have long been part of the common law. By inviting such argument, the Court has by no means disclosed its answer. We will have to wait and see. SOURCING A DUTY TO PROTECT IN INTERNATIONAL LAW

The Supreme Court in Khadr heard argument that, as originally framed in the courts below, the Duty to Protect was a “principle of fundamental justice” within the meaning of Charter section 7, triggered by a violation by the GOC of personal fundamental rights to “life, liberty and security of the person” recognized therein. As noted above, this was the principal focus of Khadr’s counsel responding to the Crown’s appeal and most of the interveners. However, the Court invited further argument on the parallel proposition that the case might also be disposed of under administrative law principles – informed by international law – that a Duty to Protect may exist under common law independent of a Charter violation by the GOC. The concept of an independent Duty to Protect based on positive obligations contained in international human rights law treaties and related customary law norms -- in particular, the universally recognized prohibition against torture, a peremptory norm of international law from which no derogation is permitted – was strenuously resisted by the Crown in Khadr. At the same time, it was tentatively embraced by the Respondent and a number of intervening parties. Such a positive duty to assist was not dependent on a violation of international law by the state of nationality, only on such a serious human rights violation having been inflicted on a state’s citizen abroad by the authorities of another state or in other circumstances condoned by a foreign state within its territory. Of course, the Court need not go that far. This reality is doubtless explanatory of both the Respondent’s and many of the interveners’ sensitivity to overshooting the mark. Nevertheless, the broader argument does resonate within the international law sources on point.

One can find extensive positive obligations of “due diligence” set out in the ICCPR, the CAT and the CRC, the three principal international instruments most relevant to the

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facts in Khadr. These instruments are themselves, in large part, codifications of customary law given the international consensus attaching to all of them. It bears emphasis, however, as forcefully advanced by the Crown in Khadr, that while Canada has ratified the referenced treaties, none of them have been formally implemented by Parliament. Thus, the Crown argued that the content of these treaties is simply that not opposable to the GOC as a matter of domestic law to be applied by a Canadian court. Following the rule in Labour Conventions, this point is compelling on its own, but also elicits potentially effective rejoinders. First, as previously noted, human rights treaties have been treated by the Supreme Court of Canada as significant sources for directly informing the laws of Canada in its most fundamental respects. Second, international customary law raises no such difficulty of transformation into “legislated” language. To the extent these treaty instruments are themselves indicative of or “codify” customary norms of international law, those norms are directly incorporated into Canadian law. CONCLUSION

The foregoing discussion conflates many complex issues. The extensive litigation surrounding Omar Khadr illuminates these issues in provocative ways and the Supreme Court of Canada has clearly risen to the challenge of addressing them by inviting consideration of a broader compass in which to give their answer. Central among them is the existence of the Duty to Protect within the four corners of the Charter and or beyond it within the precincts of the common law. Both contexts have been principally informed by international treaty and customary law binding Canada under the law of nations. What the Court must now decide is how, if at all, domestic law binding on the Crown should follow suit. Whatever the Supreme Court decides, it is highly likely to encourage Canadian lawyers to become better students of international law. Scott Fairley, Partner, Theall Group LLP, Toronto; of the Ontario Bar Association International Law Section Executive. The assistance of James Manson, Associate, Theall Group LLP, is gratefully acknowledged. This writer was external counsel to the National Council for the Protection of Canadians Abroad, one of nine interveners making submissions before the Supreme Court of Canada in Khadr.

February 2010 | Briefly Speaking • En Bref


Christopher Skinner Reward Police, Family and Legal Community Pledge $75K for Justice Les forces de l’ordre, la famille et la communauté juridique promettent 75 000 $ pour que justice soit faite Marshall Drukarsh

O

ctober 18, 2009 our community suffered a tragic loss in the murder of 27 year old Christopher Skinner, son of Newmarket

lawyer, Warren Skinner. The legal community is responding to the unique circumstances of this brutal death with contributions toward a fund established to create a private reward over and above that offered by the Toronto Police Services Board. Christopher was killed on Adelaide Street, about 2:30 am while walking home from the celebration of his sister’s birthday in a nightclub in Toronto’s Entertainment District.

Police are reported to believe that, walking around construction near Victoria Street, while attempting to hail a cab, Christopher may have inadvertently struck a passing black SUV with his hand. The occupants allegedly got out of the vehicle, beat Christopher severely, re-entered the vehicle, and, as he lay in the street, deliberately drove over him. The driver and occupants fled the scene. Christopher died in hospital. The Toronto Police Services Board has offered a reward of $50,000 for information leading to the arrest of those involved. On November 20th, 2009 Christopher’s father, in an effort to make progress and, as he put it, to bring some closure to the matter, joined fellow lawyer from Newmarket, and OBA member, Dan Monteith, to establish a fund to make an additional substantial reward available to anyone with information leading to the arrest of those responsible.

Along with the Canadian Bar Association, Ontario Trial Lawyers, CDLPA, OBA, the Advocates’ Society and the Criminal Lawyers Association are bringing this matter to the attention of their members. An invitation to contribute to the fund established by the Skinner family and friends, has been extended to all members of the profession, and is being met with broad support and numerous pledges to date. At last report the amount in the fund from contributions by the Skinner family and members of the Bar was $25,000.00. It is hoped that someone who was in the vehicle or someone they talked to, will be induced to come forward. Police believe there were at least three people in that black SUV that night in addition to the driver. OBA members interested in more information about making a contribution to the fund, “Warren Skinner in Trust” may contact Mr. Skinner’s office at 195 Main Street South, Newmarket, Ontario, L3Y 3Y9. Funds collected will be held in trust in a chartered bank and if the reward is not paid, all funds will be returned to the donors.

Briefly Speaking • En Bref | February 2010

L

e 18 octobre 2009, notre communauté a été éplorée par le meurtre de Christopher Skinner, le fils âgé de 27 ans de Warren

Skinner, un avocat de Newmarket. La communauté juridique réagit aux circonstances uniques de ce décès brutal au moyen de contributions à un fonds établi afin d’offrir une récompense émanant du secteur privé en sus de celle déjà offerte par le Conseil des services de police de Toronto (Toronto Police Services Board). Christopher a été assassiné en pleine rue Adelaide vers 2 h 30 du matin en rentrant chez lui après avoir célébré l’anniversaire de sa sœur dans une boîte de nuit du quartier « Entertainment District » de Toronto. On rapporte que la police croit qu’au moment de contourner un chantier de construction à proximité de la rue Victoria, Christopher pourrait avoir heurté un VUS noir par inadvertance en voulant héler un taxi. Les occupants seraient descendus du véhicule, l’auraient sauvagement battu avant de remonter dans le véhicule et de l’écraser en lui roulant dessus alors qu’il se trrouvait étendu sur la chaussée. Le conducteur et les passagers ont fui la scène. Christopher est décédé à l’hôpital. Le Conseil des services de police de Toronto a offert une récompense de 50 000 $ à quiconque fournit des renseignements permettant l’arrestation des suspects. Le 20 novembre, le père de Christopher, dans l’objectif de faire progresser l’enquête et, selon ses dires, d’y mettre un terme, s’est joint à son collègue avocat de Newmarket et membre de l’ABO, Dan Monteith, afin d’établir un fonds pour offrir une récompense supplémentaire considérable à quiconque fournit des renseignements permettant d’arrêter les responsables. En plus de l’ABO, les organismes The Advocates Society et Criminal Lawyers Association ont mis leurs membres au courant de cette affaire. L’invitation à contribuer au fonds établi par la famille Skinner et leurs amis a été transmise à tous les membres de la profession, et ceux-ci y ont répondu par plusieurs promesses de don jusqu’à présent. Selon les données les plus récentes, la portion du fonds provenant des contributions de la famille Skinner et des membres du Barreau s’élevait à 25 000 $. On espère que cette récompense incitera l’un des occupants du véhicule ou quelqu’un leur ayant parlé à se manifester. Les forces de l’ordre croient qu’en plus du conducteur, au moins trois personnes prenaient place dans le VUS noir ce soir-là. On demande aux membres de l’ABO qui souhaitent en savoir davantage sur la manière de contribuer au fonds, intitulé « Warren Skinner in Trust », de contacter le bureau de M. Skinner à l’adresse 195 Main Street South, Newmarket (Ontario) L3Y 3Y9. Les fonds recueillis seront détenus en fiducie par une banque à charte, et ils seront remboursés aux donateurs en cas de nonversement de la récompense. 45


February 2010  

Briefly Speaking is the Ontario Bar Association’s official magazine, reaching more than 17,000 lawyers, judges and law students. As the OBA’...