RSS FeedMy Slaw 8/24/08
Check out my posts on Slaw for this week:
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Guantanamero. Guajiro, Guantanamero.
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Commercial Pre-Law Courses Come to Canada
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Are Good Litigators Born?
How will Courtrooms Deal with Obesity Epidemic?
Section 11(b) of the Charter states,
11. Any person charged with an offence has the right…
(b) to be tried within a reasonable time;
The Supreme Court of Canada affirmed in R. v. Finta the principles outlined in R. v. Askov, indicating that 11(b) included the right to a speedy trial,
Two elements must be assessed under s. 11(b): the length of the delay, and its reasonableness. If the delay is prima facie excessive, it is necessary to go on to consider whether it is nonetheless reasonable. Reasonableness may depend on a variety of factors, including the prejudice caused by the delay. Absent waiver, a certain prejudice in a long‑delayed trial may be inferred if not rebutted by the Crown. Here, the delay was prima facie excessive and unreasonable and entitled the accused to the benefit of s. 11(b).
In June 2005, Ontario passed the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). That same year, Honourable R. Roy McMurtry, Chief Justice of Ontario, headed an advisory report on making courtrooms more accessible. The Attorney-General in this province then followed with an accessibilty plan launched last year.
But courtrooms may be facing a more significant problem [the obvious pun was deliberately avoided for sensitivity reasons].
Sheena Starky explained in a report for the Library of Parliament,
In 2004, approximately 6.8 million Canadian adults ages 20 to 64 were overweight, and an additional 4.5 million were obese.(1) Roughly speaking, an adult male is considered overweight when his body weight exceeds the maximum desirable weight for his height, and obese when his body weight is 20% or more over this desirable weight. A similar guideline holds true for women, but at a threshold of 25% rather than 20%. Dramatic increases in overweight and obesity among Canadians over the past 30 years have been deemed to constitute an “epidemic.”
A Texas court is facing this challenge today, as a woman charged with first-degree murder cannot even fit through the front door of her home,
She was allowed to remain in bed, on a personal recognizance bond, because she couldn’t be put in jail.
“Whatever the county and court system has to do in reference to the death of this child, we’ll do it,” Hidalgo County District Attorney Rene Guerra said at that time. “We can’t let someone’s physical disability stand in the way of justice.”
While he and Hidalgo County Sheriff Lupe Treviño promised yesterday that Rosales would be prosecuted, “they remained mute about the details of that process,” reports the Monitor in another article.
Rosales can’t be put in jail, even if she could fit through the doorway of her home, because she needs medical care…
If a similar case was brought in Canada, it’s unlikely that any buildings could be brought to code in a timely enough manner.
This might rise to teleconference options that have been discussed in other contexts, but such options would have to be examined by the courts first.
OHLJ’s Environment Law issue is out
The Summer 2008 issue of the Osgoode Hall Law Journal is out, and it’s completely dedicated to environmental law. Stepan Wood, an associate professor at Osgoode Hall Law School, is the guest editor.
Most in the 2010 class knew Professor Wood as an acting Assisant Dean, First Year but many of us also interacted with him as the Director of Osgoode’s Mooting Program. He is the Director of Osgoode’s LLB/MES program as well.
For more on the contents of this next issue in the OHLJ anniversary series, see the table of contents, download articles as pdfs or read Professor Wood’s foreword [pdf].
Legal Slump Ahead?
Martha Neil of the ABA Journal claims problems in the economy are affecting law firms.
Law firms saw average profit per equity partner drop some 9 percent in the first half of 2008, [Dan DiPietro] writes in the lengthy article. Meanwhile, expenses rose by about 10 percent, pushed up, in large part, by increases in associate pay.
The second half of 2008 won’t be any better than the first half, DiPietro predicts. And it could be worse—”the common wisdom is that this economic slump is more akin to the downturn of 1991.”
But there is a silver lining, he writes: Financial pressure will likely encourage partners to watch expenses more closely and winnow out unproductive attorneys. He also urges law firms to start focusing now on year-end collections.
[emphasis added]
Translation of the “silver lining:” those with the lowest billable hours are likely to get axed.
Keep an eye out readers.
Might be a good time to review projected areas better insulated from downturns and slumps.
Success Should not come at Expense of Social Justice
York University President Emeritus Harry Arthurs told graduands at Spring Convocation ceremonies last June,
…if you have abilities, if you have resources and opportunities, you also have an obligation to use them on behalf of people who don’t.
Arthurs, a renowned labour law scholar, graduated with his law degree from the University of Toronto in 1958.
A video of his speech is available here.
Lawyer Accused of Dealing Drugs
Or, when a cross-examination goes nuts.
Courtesy of ABA Journal,
A Michigan defense lawyer’s cross-examination of an informant went awry yesterday when the witness became angry and said the lawyer questioning him had sold drugs.
Informant David Maki’s outburst came after defense lawyer Tim Barkovic called him a liar and a snitch, the Detroit Free Press reports. Maki “got angry and said defiantly on the stand that Barkovic had sold drugs, after which the judge dismissed the jury,” the story reports.
Barkovic is representing a co-defendant accused of felony murder in a store robbery that left one clerk dead and another injured. Jurors were instructed to ignore the comments by Maki.
Judge Donald Miller of Macomb Circuit Court denied the co-defendant’s request for a new lawyer, the Detroit News reports.
Barkovic says the charge of selling drugs is ridiculous and sought a mistrial. Miller also denied that request, the Detroit Free Press reports in an updated account.
Water Bottle Ban on the Horizon
Bottled water must be the most brilliant marketing ploy ever conceived.
Some marketing reps decided to take regular tap water, run it through a filter, and then package it in attractive bottles designed to somehow set their product apart from basically identical competing brands. Through clever advertising about the dangers of tap water and the pure, delicious, refreshing nature of bottled water, these reps built a multi-billion dollar industry.
Specifically, according to Wikipedia, bottled water products poured 60.9 billion dollars into the coffers of mostly large bottlers like Coca Cola in 2006 alone, and that number is only expected to grow.
All the reps could do now was slap each other on the back, laugh, and watch the money flow — like, well, water from a tap.
That is, of course, until you consider the environmental impact.
Environmental Impact
Earlier this year, Phil Woolas, the UK’s Environment Minister stirred up headlines when he said that consumption of bottled water bordered on immorality.
The carbon footprint involved in producing a bottle of water and then transporting those bulky bottles to the consumer is a significant contributor to greenhouse gas emissions. According to The Times, “a Swedish study calculated that the environmental impact of bottled water was 90 to 1,000 times greater than tap water, and could be higher.”
The manufacturing process takes approximately 5 liters of water to produce a 1-liter finished product. In addition, once the water inside them is consumed, most of those plastic water bottles end up in landfills (or in gutters).
Peter Ainsworth, an MP and outspoken environment critic, backed up Woolas:
“Huge amounts are imported from other countries — some now ludicrously from the Far East. This is an ecological nightmare and it doesn’t make economic sense either. It certainly raises questions about the basis on which we have constructed our economic lives. By any rational standard it’s crazy to be importing water from countries far away when there’s perfectly good water in our taps.
“It looks like the epiphany [sic?] of any unsustainable human activity. I think as consumers we should consider the impact we have on the environment. If they think about it they might change their behaviour.”
Towards a Ban
The city council of London, Ontario this week voted overwhelmingly in favour of a ban on bottled water.
The move will make London one of the first major Canadian cities to institute such a ban, which is expected to go into effect on September 1.
The phased-in ban will begin by limiting the sale of bottled water at municipal buildings and city facilities. By the end of next year, the sale of those ubiquitous plastic water bottles will be prohibited at golf courses and city parks as well.
Only three councilors opposed the measure, on the basis that it undermines choice. The London Free Press quotes councilor Paul Van Meerbergen as saying:
“It’s one more brick in the construction of a nanny state.”
Nevertheless, the tide seems to be turning in favour of greater regulation.
According to the Canadian Press, Mayor David Miller of Toronto is now considering following London’s example. I’ve noticed advertisements against bottled water popping up on Toronto bus shelters, and the City of Toronto will be looking at a ban as part of a larger strategy to curb waste.
Other Canadian cities like Vancouver, Ottawa, St. John’s, Kitchener, and Windsor have all been considering municipal bottled water ban measures.
My View
In Southern Ontario, we are blessed with some of the cleanest and safest drinking water courtesy of the Great Lakes. Even though there are water fountains readily available, I see people spending $1.50 for a 591mL bottle of Dasani on my university campus. That’s double the price of gasoline. Personally, I’m not even sure how one can justify spending money on what is essentially free and abundant.
There’s something to be said for our municipal government taking small steps to show the public that it frowns on absurd consumer practices. Drinking a bottle of water might one day carry the same social stigma as smoking a cigarette. If it can help change consumer attitudes, I’m all for the bottled water ban.
Get a Head Start in Law School
Here’s an interesting new service.
LawPrepPro is offering a pre-law program in the Toronto area.
I plan on checking it out and will report back.
Conflict of Interests Taskforce Reports
The Canadian Bar Association (CBA) has adopted the recommendations of its Task Force on Conflicts of Interest. Background on the Task Force and their report can be found on the CBA website.
CBA President Bernard Amyot said,
Lawyers, law societies, judges and the Canadian public will benefit from the principled approach developed by the task force. The recommendations will contribute to the evolution of the conflicts regime to reflect changes in the practice of law.
Members of the Task Force, Scott Jolliffe, Simon Chester and Gordon Currie, can also be heard in a podcast interview moderated by Jordan Furlong.
Conflicts of interest have made headlines in Ontario recently, with some claiming that they are used as an aggressive tool to have opposing counsel removed from a case.
Tracey Tyler of The Star explains,
The payoff comes in putting an opponent to the expense and aggravation of fighting the claim and – if they lose – finding a new lawyer.
The Supreme Court of Canada weighed in on the issue this year in Strother v. 3464920 Canada Inc. Binnie J. stated for the majority,
34 When a lawyer is retained by a client, the scope of the retainer is governed by contract. It is for the parties to determine how many, or how few, services the lawyer is to perform, and other contractual terms of the engagement. The solicitor-client relationship thus created is, however, overlaid with certain fiduciary responsibilities, which are imposed as a matter of law. The Davis factum puts it well:
The source of the duty is not the retainer itself, but all the circumstances (including the retainer) creating a relationship of trust and confidence from which flow obligations of loyalty and transparency. [para. 95]
Not every breach of the contract of retainer is a breach of a fiduciary duty. On the other hand, fiduciary duties provide a framework within which the lawyer performs the work and may include obligations that go beyond what the parties expressly bargained for. The foundation of this branch of the law is the need to protect the integrity of the administration of justice: MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at pp. 1243 and 1265. “[I]t is of high public importance that public confidence in that integrity be maintained”: R. v. Neil, [2002] 3 S.C.R. 631, 2002 SCC 70, at para. 12.
35 Fiduciary responsibilities include the duty of loyalty, of which an element is the avoidance of conflicts of interest, as set out in the jurisprudence and reflected in the Rules of Practice of The Law Society of British Columbia. As the late Hon. Michel Proulx and David Layton state, “[t]he leitmotif of conflict of interest is the broader duty of loyalty”: Ethics and Canadian Criminal Law (2001), at p. 287.
The issue appears to be a particular problem in specialized areas of law such as intellectual property and Aboriginal law.
President of Pakistan Resigns
The NY Times reports,
Facing imminent impeachment charges, President Pervez Musharraf announced his resignation on Monday, after months of belated recognition by American officials that he had become a waning asset in the campaign against terrorism.
The Canadian Bar Association has been advocating on the erosion of the rule of law in that country.
Courtesy of LexMonitor:
- “The Law Minister, Farooq H Naek said that the resignation of President Musharraf would ensure the supremacy of the parliament and rule of law and democracy in the country. He said it is the materialization of the sacrifices of PPP leader Benazir Bhutto and others who struggled for democracy. About restoration of judiciary, Law Minister said the coalition parties would decide the modalities about the reinstatement of the deposed judges.” – from What Pakistani Politicians say about resignation, at the Pakistan Times
- “When Musharraf imposed martial law on November 3, 2007, he dismissed dozens of high court and Supreme Court judges and placed many of them under house arrest with their families. He also detained hundreds of lawyers and other activists, suspended fundamental rights protected in the Pakistani constitution, and placed restrictions on the media. He replaced the deposed judges with handpicked loyalists who agreed to swear an oath of office under the provisional orders imposing martial law.” – from Pakistan’s leaders must dismantle Musharraf’s legacy – political opinion, at Human Rights First via Net News Publisher
International courts look at the Georgia-Russia conflict
Two posts on the International Law Observer on proceedings initiated by Georgia against Russia:
Should e-Bay be Responsible for Trademark Policing?
David Canton’s editorial in The London Free Press outlines cases in the U.S. and Europe that have come to very different conclusions.
The controversy centers around who is responsible for policing a trademark. The U.S. says the company is, European cases indicate that e-Bay might be responsible.
Canton explains,
Therefore, in the U.S., EBay cannot be held “pre-emptively” responsible for trade-mark infringement just because some of its sellers are advertising and selling fake goods. Prevalent public policy in the U.S., now recognized by the courts, instead puts the responsibility onto the trade-mark owner, most often the giant manufacturers.
He also points out potential implications for the Google/Viacom suit.
