Yves Faguy

The Charter at 30: Chrétien looks back

on March 15, 2012 in Charter of rights

Illustration by Robert Johannson

The Canadian Charter turns 30 next month and as senior editor at National Magazine, I had the opportunity to invite a number of contributors from around the country to discuss its impact. As Rainer Knopff points out, these are still early days for a constitutional document of its importance. And yet the Charter has kept Canadian courts plenty busy for the last three decades. I wrote in the intro to this special Charter issue for National magazine that constitutions are built to last. That they are expected to withstand the test of time is quite a daunting idea when we remind ourselves that the world in which we live in today bears little resemblance to the one that inspired a generation of national leaders to give us a bill of rights. I had a chance to ask our former PM Jean Chrétien whether he feels the Charter is robust enough to deal with the more pressing issues of today, many which could not be anticipated in the early 1980s: online privacy, workers’ rights in a globalized world, the conflict of rights among Canadians of different stripes. He was, let’s say, characteristically dismissive of inquiries on this front. As he sees it, the Charter was Trudeau’s dream and Chrétien was tasked with the job of getting everyone on board to sign it. The Charter may not be perfect, as he says, but we have to live by it and Canadians are better off because of it. Say this about Jean Chrétien: Regret is certainly not his motivation for discussing to past. Quite the contrary.

Dave Joe on next steps for First Nations

on August 14, 2011 in Land claims

First Nations have made great strides in Canada by using the courts to effect positive law reform. They have also relied on some very talented lawyers to negotiate land claims. I recently interviewed this year’s winner of the CBA President’s award, former chief negotiator Dave Joe for the Council of Yukon First Nations. The first Aboriginal lawyer North of 60 in the 1970s, Joe played an instrumental role in putting together the Yukon Umbrella Final Agreement and Self-Government Agreements. Here he discusses next steps for First Nations:

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When the press crosses the line

on July 8, 2011 in Media

The closing of News of the World is quite an extraordinary story where media, morals and law intersect. You know things are bad when journalism’s eminent publications are calling for a full judicial inquiry to clean up the industry.

But the fallout from this episode may have some serious unintended consequences for the future of journalistic independence. The Guardian’s Nick Davies gives an excellent rundown of what’s immediately at stake:

This thing’s burning out of control. And there is nobody who has been involved with New of the World who is safe. And that is because, primarily, of the police operation which is just tearing through this. The police have got hold of all of the material that the private investigator, Glenn Mulcaire, was keeping in his house. They’ve got hold of most of the email archive of News of the World, all of those message taht have been sent and received. Every time they arrest somebody, they take things from their desk and from their home — masses of evidence. Nobody knows quite what evidence the police have now got. Everybody knows they’ve got an enormous amount of evidence. Therefore nobody at News International is safe potentially form what that evidence may show. All of them, all of them, from the most junior reporter to the most senior executive will be extremely worried about the genuine prospect that somebody is going to knock on their door, and arrest them and question and charge them with a criminal offense. It’s got that bad.

He even hints around the 10 minute mark that the scandal raises issues about self-regulation of the press. Then goes on to say:

To me it isn’t a story about journalists behaving badly. It’s about the power of the elites. It’s about the most powerful news organization in the world. it’s about the most powerful police force in the country. It’s about the most powerful political party in the country. And for good measure it’s about the Press Complaints Commission. And about how they all spontaneously colluded together to make everybody’s life easier. About the way in which they casually assumed that the law didn’t apply to them and in which they equally casually assumed that it was perfectly alright to lie to the rest of us because we are little people.

British media is taking a bruising from this incident, which could have longer term consequences for media elsewhere in the world and the cause of press freedom.

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Q&A with Andrew Ross Sorkin

on June 9, 2011 in Financial reform

I caught up with the NYT columnist before the HBO movie Too Big to Fail came out. Reading his book it was clear he has quite a bit of admiration for JPMorgan Chase’s CEO Jamie Dimon. But in my interview with him, Sorkin also expressed a great deal of disappointment in how quickly Wall Street’s leaders emerged from the crisis imagining themselves as survivors as opposed to “arsonists who somehow also just happened to make it through the fire.” I’d be curious to hear his thoughts on Jamie Dimon’s “dressing down” of Fed Chairman Ben Bernanke this past week.

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Rule of law misconduct

on May 8, 2011 in Human rights

Buried under the post-election analysis is the ruling in United States of America v. Khadr by the Ontario Court of Appeal. The Court upheld a decision to refuse an extradition request by the Attorney General of Canada on behalf of the U.S. for Abdullah Khadr, a suspected arms dealer for Al Qaeda, and the older brother of Omar, still detained at Guantanamo Bay.

Granting the request, the Court wrote, would amount to “abuse of the judicial process” since Abdullah Khadr had likely given information under torture at the hands of Pakistani intelligence services who were doing the bidding of the U.S:

“Because of the requesting state’s misconduct, proceeding with the extradition committal hearing threatened the court’s integrity.”

The Court of Appeal then goes on to list famous statements on the need to maintain respect for the rule of law despite threat of subversion in time of national peril.

Most interestingly, the decision refers to a Supreme Court of the United States decision, Hamdi v. Rumsfeld, in which O’Connor J. held, that “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker” and that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Commenting on the Ontario Court of Appeal decision, Andrew Sullivan remarks about the U.S.:

“We are no longer trustworthy when it comes to prisoner treatment.”

It is indeed a strong indictment by one of the U.S.’ strongest allies, albeit by a court of law, not our elected government. I expect the Harper government will try to appeal to the Supreme Court of Canada, which until now has refused to order it to try to repatriate Abdullah’s brother, Omar Khadr, from Guantanamo Bay — probably fearing that in doing so it would be undermining the authority of our executive branch of government. And in fairness it’s hard to see how, in practice, the top court could have ordered the Harper government to actively secure the repatriation of Omar. It’s probably why, in Canada (Prime Minister) v. Khadr, it limited itself to stating that it considered that Canadian officials had violated Khadr’s human rights by refusing to act on his behalf.

Now, if the federal government decides to appeal the Ontario Court of Appeal’s ruling in United States of America v. Khadr, expect the SCC to show less judicial restraint this time around given that it is much easier to stop an extradition — which requires it to simply say “no” — than to force a repatriation, which requires it to say “how.”

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How to get ahead in advertizing… without breaking the law

on April 19, 2011 in Advertizing

That’s the subject of my latest article — this month’s cover story in Marketing Qc. It’s a good read for anyone who wants a free primer from lawyers on false claims in advertizing. It’s in French, however. So for the anglos, I’ll just leave you with a couple of scenes from this classic Brit flic:

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The NYT’s groundbreaking business model

on March 29, 2011 in Media

Photo: Wally Gobetz

Real reporting from the Onion on the NYT’s new paywall:

“In a move that media executives, economic forecasters, and business analysts alike are calling “extremely bold,” NYTimes.com put into place a groundbreaking new business model today in which the news website will charge people money to consume the goods and services it provides. “The whole idea of an American business trying to make a profit off of a product its hired professionals create on a daily basis is a truly brave and intrepid strategy,” said media analyst Steve Messner, adding that NYTimes.com’s extremely risky new approach to commerce—wherein legal tender must be exchanged in order to receive a desired service—could drastically reduce the publication’s readership. “

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Canada’s dysfunctional pension reform

on March 15, 2011 in Pension reform

Photo: Chovee

I have a new article online, this time about pension law reform in Canada. As in many other areas of law in this country, our antiquated constitutional order makes meaningful reform practically impossible. Instead of striving for a truly national solution — and with the notable exception of BC and Alberta — the provinces continue to legislate and implement reform on their own. The result: a typically Canadian patchwork of laws and regulations that favours massive duplication of rules across the country, instead of efficiency. Pan-canadian businesses that otherwise might be interested in sponsoring innovative pension plans are dissuaded from doing so because of high administrative costs and fear of multi-jurisdictional litigation. So we end up with Flaherty’s PRPP plan, which really is something more akin to an RRSP regime. In other words it will take personal discipline for pensioners to save for their golden years. I have nothing against that in principle, but we don’t exactly have the greatest savings rate in this country.

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The changing business of law

on February 16, 2011 in Law profession, LPO

Some more material here on some of the major changes that have hit the legal profession in the last few months.

At the top of the list is the unprecedented growth of the LPO market, a trend that is being driven principally by corporate legal departments, not traditional law firms, especially here in Canada. And it it isn’t just cost savings that they like. It’s the 24/7 service and low-cost quality control made possible by hiring well-trained lawyers on the other side of the world.

Forrester Research estimates that by 2015 the global LPO market will be a $4-billion affair. That would be up from under a billion in 2010. And when Leah Cooper, formerly Rio Tinto’s top lawyer, leaves the mining giant to join CPA Global, that’s an indication that there are some attractive career opportunities on the LPO side of the business.

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Stimulating clean-tech innovation

on February 4, 2011 in Intellectual property

It’s becoming pretty clear now that, to win the future, countries will have to develop new home-grown industries in clean-tech. And for that we need innovative entrepreneurs with access to cash to launch innovative technologies and bring them to market. My latest couple of articles discuss one promising development for Canadian inventors and one promising idea to help them fund their projects: the Canadian Intellectual Property Office (CIPO) has finally agreed to fast-track clean-tech patent applications. And a Toronto lawyer proposes to mimic the flow-through share program that worked so well in stimulating investment in the oil sands.

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