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The government introduced two bills in the House on Thursday that raised some serious allegations in the media this week. The bills concern, among other things, police access to data collected by Canadian internet service providers. The story appeared on Slashdot.
Ottawa promises to comply on Abdelrazik
Big news: Justice Minister Rob Nicholson announced today that the government will let Abdelrazik return to Canada. It is not clear what exactly Ottawa will do to comply with a court order to make “travel arrangements” for Abdelrazik by this Friday. One thing seems certain now: the government will not fight anymore.
At least not until Abdelrazik comes back to Montreal and demands an explanation of why so much effort has been expended to keep him in Sudan.
The Cozy Bank-Law Firm Relationship May Not Be So Cozy After All…These days Anyway, Part II.
First posted on Commercial Law International on June 17, 2009.
This is case that has the potential to redefine the very cozy relationship law firms have with their banker clients. No longer will bankers be given blanket coverage under conflict of interest rules to prevent law firms from being representatives in claims brought against them.
The operative word here being potential, as you shall will see.
The relevant facts of the case in brief are as follows: the defendants in the case included the underwriting syndicate of Gammon Gold´s public share offering. Two member of the syndicate included BMO Nesbitt Burns Inc. and TD Securities Inc., both subsidiaries of BMO and TD respectively. It just so happens that Siskinds, who represented the representative plaintiff, McKenna, in the class action, was concurrently retained by BMO and TD to undertake debt enforcement and personal bankruptcy matters. As a result the defendants raised the issue of conflict of interest, seeking to get Siskinds removed from the case.
The judge in the case, Madame Justice Lax, was having none of it; holding that there was no conflict. In her ruling Justice Lax made it clear that ¨the underwriters and banks are separate and sophisticated business and legal entities that are individually governed and autonomous. She went on to say further that ¨the banks had no reasonable expectation that their subsidiaries would be treated as clients.¨
And rightly so. While I fully agree with the judgment, it still remains unclear how it will be received by banks but more importantly, law firms. This is why I said it has the potential to redefine the bank-law firm relationship. It will all depends on how it is read. If the case is read very narrowly and confined to the particular facts of the case, that is where there is a parent and subsidiary relationship and they are separate, sophisticated business and legal entities, individually governed and autonomous, then there is no conflict. This is the extreme and I don’t believe that it will be this narrowly read. However, I do believe that there is the strong potential for it to be read narrowly enough as to preserve largely if not totally the existing regime. It will all depend on the mood (i.e. economic conditions) of the law firms I guess.
On the other hand, if the decision is read more globally, it could usher in a new era of freedom to act o the part of law firms. I hope it is the latter; however, I would not be surprised if it is some form of the former.
In a passing note in Part I of this post I referred to lawyers as attack dogs, this was meant as no offence – I even referred to myself as an attack dog in training. However it was said to provoke some self examination and self evaluation on the part of myself and those more senior in the profession. All too often clients see us in that role and we sometimes do little or nothing to disprove this perception. While I know that I have a long way to go in the profession, I am after all only an articling student, for me; a lawyer is an advocate, a professional that aggressively safeguards the interest s of their clients, however, this dusty must be balance against other professional and personal considerations.
Am I wrong or just being naive?
Who is to blame?
What is it about criminal cases that attracts so much attention of the public? Is it their thou-shall-not nature that many people associate with law in general? Or is it our fear of crime and the desire for retribution? Then violent crime, which involves some of the biggest taboos and most terrifying acts, should be the most riveting. And it is, especially when the perpetrator seems to get away with it.
Take the case reported in today’s Globe. A man had sex with a woman without her consent. At trial, the judge acquitted him of sexual assault because the man was found to be asleep during the act. The scientific term is sexsomnia. He was sleeping and doing it at the same time. The woman was actually passed out too. It was some wild party. Without judging recreational choices of these two, did the man rape the woman?
Here is another one. A man beheads his seat neighbour on a bus. A judge found the killer not criminally responsible because he was mentally ill and didn’t know what he was doing. He heard voices that told him to dispatch the other guy. I even heard some law students quietly condemn our justice system for absolving the accused in this case. And I am not even talking about comments some people posted on major Canadian newspapers’ websites. Why do some consider the man in question a murderer?
Our most basic criminal law doctrine teaches that there is no criminal responsibility without fault. We can blame someone for a crime only if the accused knew what he was doing or should have known. For most serious crimes such as murder, we must prove that the accused knew what he was doing. For less serious crimes, it’s enough to show that an average Joe would have known had he been in the shoes of the accused. That’s why the sleepsex man and the beheader were off the hook.
Why do then some law students and members of the public condemn our criminal justice system? Let’s skip the ignorance explanation. Those who disagree with the verdict in the beheading case speak from the heart, out of deep conviction. Knowledge of the ethical theory of fault and criminal law principles derived from it and enshrined in the Charter will not likely affect their position. There are two explanations for their stance, really. One, they reject the philosophy requiring fault for punishment. Second, they don’t trust the modern science of the mind enough to risk releasing absolved killers and rapists into the community.
In the first case, it’s tough luck, sorry. I just don’t see Canada or similar countries calling accidental or unconscious homicide murder. In fact, I am not sure there is any country with a half-decent legal system that does that. And if what you did to cause the fatal accident was nothing illegal, it’s not manslaughter, it’s not even a crime, and will never be in Canada. You drive a car at a speed limit; a man sits on a tree above your line of sight; he jumps in front of your car; you roll over him; you are not a criminal.
The second case is harder. Everyone understands evidence about a tree above the line of sight. Not everybody understands evidence about psychiatric science. And even when everyone accepts that an ill, delusional man is not criminally responsible, some are still afraid. With a criminal, you kind of know for how long he is going away. Even if a murderer is released decades later, the stigma is always there as well as probably the police interest. With a blameless man who was simply ill, he is locked only as long as he is sick, in theory.
I guess what grumpy law students or outraged members of the public are unhappy about is placing the decision to release in the hands of doctors. Some people just don’t trust a psychiatric diagnosis as much as evidence about the line of sight. Psychiatry is certainly not mechanical engineering or math. How do we know, the thinking goes, that he is really not sick anymore? (Assuming the doubters overcame their fear that the accused tricked the psychiatrists in the first place.)
I am not a psychiatrist. I don’t know how to answer to these concerns. Neither can I dismiss them from my layman’s perspective. All I know is what our criminal law professor said once: don’t assume everyone goes for the insanity defence—if you are convicted of murder, you may have a chance to get out eventually; if you are acquitted on the grounds of insanity, you are probably going away for good.
The Cozy Bank-Law Firm Relationship May Not Be So Cozy After All…These Days Anyway, Part I
First posted on Commercial Law International on Jun 5, 2009.
In Canada an Ontario Superior Court of Justice ruling (McKenna v. Gammon Gold Inc.) has the potential to go viral like the latest YouTube sensation and challenge what can only be called one of the most incestuous relationships in the commercial world.
What am I talking about?
Well I am referring to the relationship, the very close relationship, between banks and law firms.
Ever wonder why, if and when, a bank or other financial institution is being sued it is very rare to find a big name law firm representing the plaintiff but they are very much present to represent the defendant bank? This my friends is no coincidence, it is a deliberate strategy on the part of the banks and other financial institutions. They set out to exploit the conflict of interest rules that lawyers are bound by – a lawyer may not generally represent two clients on opposite sides on the same matter – and they do a very good job of it. This is evidenced by the fact that banks and other financial instructions will spread the legal work they have around to as many international, national, regional and local based (powerhouse) law firms as they can in any market they operate.
The strategy is simple but effective: tie up the biggest, the brightest, the best and if need be the most belligerent legal talent out there. The benefits of this strategy accrue to banks in two significant and interconnect ways. The first is that they have the best legal talent working for them on ordinary transactions while at the same time having them in reserve ready to be unleashed like a pack of attack dogs. The second, which flows from the first, is that having such well trained and impressive attack dogs – oh sorry, I mean lawyers – at the ready will and does inspire fear in not only prospective claimants but other lawyers as well (though most would not admit it).
The law firms are not entirely innocent here, in fact not at all. They are willing subjects or is that objects of the strategy to exploit the conflict of interest rules. They enter this relationship; in fact they actively seek to forge these links, with their eyes, arms and billable hour’s dockets´ all wide open. Law firms know that the work from the banks is not only constant but very lucrative as well, so they are more than happy to be attack dogs for hire.
However, we now live in different times, as this once cozy relationship is being undone or at least it has hit a rocky patch called the current global recession. Whoever first said: it´s all about the money was so right. It is indeed all about the money for both banks and law firms. The former having less work to spread around now is also lacking a commercial rational that would satisfy shareholder costs´ accountability of having such high paid attack dogs in reserve. Consequently, the banks are now looking to cut costs and have aggressively gone after external legal costs reducing the number of attack dogs – sorry, I mean lawyers – it holds in reserve and how much it pays them.
The law firms for their part, seeing the writing on the wall have, have begun to seek out other clients. In fact this has resulted in the once impossible, law firms, well at least in this case, have begun to represent claimants against the banks.
The conflict of interest rules once untested and applied broadly, I would say too broadly, to the bank-law firm relationship is now set for realignment. No longer will law firms simply refuse or not actively seek out work, simply because a suit might be brought against one of their clients. I know I am only an attack dog in training- pardon me, I should say student at law – but my reading of the conflicts section of the Ontario Rules of Professional Conduct does not support such a broad application. Provided the issues are not related, the clients’ information in possession of the lawyer bares no relevance to each other and the lawyers that handle each client´s matter are different, it is difficult to see where a conflict of interest would be created.
Thankfully I don’t have to stand alone in my opinion. I now have Justice Lax in McKenna v. Gammon Gold Inc. to back me up when she ruled that Siskinds should not be disqualified for a conflict of interest from prosecuting a class action against an underwriting subsidiary of a client bank that it acts for in separate matters.
And how so? Well you are just going to have to stay tuned for part two.
Everything You Need to Know about Canada
A. We import all plants fully grown and then just sit around and watch them die.
A. Depends on how much you’ve been drinking.
A. Sure, it’s only four thousand miles; take lots of water
A. So it’s true what they say about Swedes.
A. Let’s not touch this one.
A. What did your last slave die of?
A. A-fri-ca is the big triangle shaped continent south of Europe. Ca-na-da is that big country to your North . oh forget it. Sure, the hippo racing is every Tuesday night in Calgary. Come naked.
A. Face south and then turn 180 degrees. Contact us when you get here and we’ll send the rest of the directions.
A. Aus-tri-a is that quaint little country bordering Ger-man-y, which is, oh forget it. Sure, the Vienna Boys Choir plays every Tuesday night in Vancouver and in Calgary, straight after the hippo races. Come naked.
A. No, we don’t stink.
A. No, we are a peaceful civilization of vegan hunter and gatherers. Milk is illegal.
Did protectionist fears water down celebration of Canadian-U.S. cooperation?
This past weekend Canada & the U.S. celebrated the 100th anniversary of the signing of the Canada-U.S. Boundary Waters Treaty, where U.S. Secretary of State Hillary Clinton announced with Canadian Minister of Foreign Affairs Lawrence Cannon that the countries would be “updating” the Great Lakes Water Quality Agreement. While this was fairly good news for fresh water enthusiasts, the announcement was overshadowed by recent trade and border concerns.
“The friendship between Canada and the United States is a model for the world,” said Cannon.
In actuality, the Great Lakes Water Quality Agreement has little to do with “Buying American”. Although the Treaty was intended to prevent and help resolve border disputes between Canada and the U.S., the Agreement is primarily aimed at issues of water quality. Originally signed in 1972, the Agreement has already been amended in 1978, 1983, and 1987 in order to address emerging environmental concerns such as municipal sewage, toxic discharges, and phosphorous runoff.
New amendments to the Agreement have long been anticipated, and are likely to draw on reviews from two Canadian-U.S. international institutions: the International Joint Commission (a dispute resolution body created by the Boundary Water Treaty) report, completed in 2006; and the Binational Executive Committee (an executive committee composed of federal, state, provincial and tribal agencies created by the 1987 Protocol) report, completed in 2007.
Both reports recommend revising the Agreement to reflect more recent environmental concerns in the Great Lakes. For example, both reports recommend joint recognition and provision for action against aquatic invasive species (AIS).
Michigan (currently promoting AIS Awareness Week), and recently New York, have both enacted strict regulation on the discharge of ballast water in the Great Lakes that has been fought by industry but upheld in U.S. courts. In both states, ballast discharge permits for commercial cargo vessels require mandatory technology to treat and prevent AIS spread.
Transport Canada Ballast Water Control and Management regulations however are less stringent:
Obviously, from an ecological perspective it makes sense for policy against AIS in the Great Lakes to be the same. Now that some Great Lakes states have adopted strict technology regulations, it also makes sense from the perspective of cargo operators to have homogeneous regulations rather than a patchwork which may be confusing and/or contradictory.
If the sentiment to continue to improve the Great Lakes Water Quality Agreement in accordance with ongoing scientific and technological development, regulations by Canada and by the U.S. Great Lake States regarding ballast discharges – among other things – may soon become more uniform.
The law of apology
Letterman apologizes to Palin, Raitt to cancer-affected people, Baird to Toronto. It seems sorry doesn’t seem to be the hardest word lately. Just search Google News for “sorry“, “apologizes“, or “regrets.”
But what are the legal consequences of contrition? For one example, check out the Apology Act assented to in Ontario on April 23 this year.
More on Abdelrazik
I wrote previously that this Friday would be a turning point in the
Abdelrazik case. His lawyers agree and predict contempt of court charges for the government if it fails to act. Another possibility is a motion for stay pending an appeal. We’ll know this week.
Law is Cool – Internationally
Here are some of the newest additions to our team.
Daisy McCabe-Lokos is entering her second year at Windsor, and has a strong interest in international law.
Navraj Pannu is also a Canadian entering his third year at Thomas M Cooley Law school in Michigan. He completed a political science degree prior to this at McMaster University.
We also have a veteran Canadian blogger joining us.
Justin Teterault is going into his third year of law school at UofT. He has an extensive background in political blogging prior to law school, including the now-defunct Northern Ontario Liberal.
Data centres instead of car plants
Michael Geist proposed a digital strategy for Canada in Toronto Star on Saturday. It’s a big topic that we should definitely write more about here on Law is Cool. But let me just say one thing for now: Canada could be a fantastic global data centre haven. Here are two reasons: cold climate and privacy laws. And there are no border wait times for digital goods!
Law is Cool Named Top 25 Political Blogs in Canada
The A dime a dozen political blog just announced the Top 25 Political Blogs in Canada.
Somehow we got ranked, despite our main focus of law. But who said there was a difference between politics and law anyways?
Here are the rankings:
1. Michael Geist.ca – pr7 – 226086
2. The Hook - pr6 – 141889
3. Small Dead Animals.com – pr6 – 179209
4. Western Standard Shotgun Blog – pr6 – 318564
5. Eaves.ca – pr6 – 416174
6. SteynOnLine – pr5 – 125051
7. GhostofaFlea.com – pr5 – 238884
8. Ezra Levant.com – pr5 – 269320
9. Five Feet of Fury – pr5 – 309254
10. Marginalized Action Dinosaur – pr5 – 318601
11. Calgary Grit – pr5 – 337609
12. Warren Kinsella.com – pr5 – 350603
13. GenXat40 – pr5 – 464021
14. Mitchieville – pr5 – 465699
15. Slap Upside the Head – pr5 – 479510
16. Quebec Politique.com – pr5 – 601125
17. Abandoned Stuff.com – pr5 – 616313
18. David Akin’s On The Hill – pr5 – 619074
19. Stephen Taylor.com – pr5 – 760713
20. Law is Cool – pr5 – 903533
21. Jay Currie – pr5 – 910380
22. Bene Diction Blogs On – pr5 – 915627
23. Vive Le Canada – pr5 – 980962
24. Blazing Cat Fur – pr5 – 996009
25. Chinese in Vancouver – pr4 – 524005
Awards
Partners
sLaw- The Court
- British Columbia (Ministry of Education) v. Moore: Comparing Approaches to Comparator Groups in the Context of Anti-Discrimination Legislation
- So You Got Punched By a Cop: Disciplinary Action or Civil Suit? Issue Estoppel in Penner v. Niagara (Police Services Board), 2010 ONCA 616
- The ‘Return to Unanimity’ in Insite and Division of Powers Jurisprudence: Chief Justice McLachlin’s ‘Oversight’
- UofT
- UofC
- UofA
- LexMonitor
- blawg