Monday, 05 March 2012 08:04

Eyes to the soul of justice

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When a California jury acquitted O.J. Simpson of two counts of murder in 1995, the verdict delivered a where-were-you-when moment to people around the world. But the trial also gave Canadian advocates for cameras in the courtroom their biggest and longest-lasting headache. The case has become a textbook argument against putting cameras in the courts, with grandstanding lawyers on both sides, an allegedly star-struck judge, and an orgy of commentary stoking a media frenzy around the televised trial.
That same year, the Supreme Court of Canada allowed CBC Newsworld to broadcast live a tax case concerning spousal support payments, Thibaudeau v. Canada, and shortly thereafter began broadcasting its proceedings regularly on the Canadian Public Affairs Channel. But rather than setting a precedent for televising proceedings, progress outside the country’s top court has largely stalled, with the spectre of O.J. raising its head in every province that tackles the issue.
“I think the O.J. Simpson trial and some other sensational cases in the U.S. are responsible for the visceral reaction you find by many people against it,” says Dan Burnett, a media lawyer at Owen Bird Law Corp. in Vancouver. Burnett, who has been a key player in the campaign for cameras in the courtroom in B.C., sees the Simpson case as an anomalous one. “They have been televising trials for a long time in the U.S. and for the most part, it works fine,” he says. “They may have a problem there with celebrity trials, but I don’t see us having that same problem in Canada, and of course if we did, the ongoing discretion of the judge to just turn off the cameras would kick in.”
In 2001, Burnett argued unsuccessfully on behalf of broadcasters seeking to televise the criminal trial of former B.C. premier Glen Clark, who was charged with breach of trust in relation to home renovations performed by a neighbour who had also applied for a casino licence from the province. The broadcasters, vigorously opposed by the province’s attorney general, appealed to the Supreme Court of Canada, but Clark was acquitted before it could be heard, rendering the appeal moot.
In late 2010, then-attorney general Mike de Jong softened the stance of his office, launching a pilot to video record sentencing proceedings at three provincial court locations. Then in early 2011, Burnett convinced B.C. Supreme Court Chief Justice Robert Bauman to allow cameras in to record the closing arguments in a hearing over the constitutional validity of Canada’s anti-polygamy laws. The CBC streamed the arguments online with a 10-minute delay. “Most Canadians haven’t actually sat down and watched our courts in action. It might not be the most sensational thing around, but it is very impressive. You realize that this is a fair process, that these are serious people who are trying to treat witnesses and parties fairly, and it’s a shame that citizens can’t see that more for themselves,” says Burnett.
He says he was surprised last year when the provincial government completed its turnaround, announcing that it, rather than media organizations, would initiate applications to televise trials for alleged Vancouver rioters following the Canucks’ 2011 Stanley Cup loss. “In a way it’s been coming. Obviously, attitudes have changed, and probably for the better in terms of openness of the courts,” says Burnett. “It’s just an opportunity, as I see it, to use technology to expand the courtroom gallery. We start with this principle that the courtrooms are open, but that principle loses a lot of its reality when you take into account that the massive majority of citizens really can’t come and attend court in person. They work during the day, or they live out of town. Even if they could come, there’s very limited seating, so only a tiny fraction of the public can actually see the court firsthand. Having the open door and the gallery seats there is, in many cases, nothing more than symbolic openness.”
The B.C. government’s push for cameras met with an unenthusiastic response from the Crown attorneys who were forced to make the applications to televise. Six prosecutors are working on the riot file, recommending charges against about 80 individuals. “They have concerns around their personal security. Their position is that they’re not going to consent to their own images being televised, which is something the court needs to consider,” says Jamie Chaffe, president of the Canadian Association of Crown Counsel.
And while the attorney general may be able to impose her will on the Crown’s office, the ultimate decision-makers, the judiciary, are another matter altogether. De Jong’s successor in the office, Barry Penner, was forced to shelve his sentencing pilot after running into stiff resistance from provincial court judges, while the Canadian Judicial Council’s official position on televised trials is that it “is not in the best interests of the administration of justice.”
In mid-February, however, B.C. Attorney General Shirley Bond was forced to scale back her plans after Provincial Court Justice Malcolm MacLean denied the first application to televise, in the sentencing of a rioter who had pleaded guilty. MacLean rejected an argument that the application was politically motivated, but said there were too many unanswered questions around the safety of court personnel and the re-broadcast of footage, instead suggesting the appointment of an amicus curiae to study his concerns in greater detail.
That prompted Bond to rescind her direction to Crown counsel, citing the delays MacLean’s approach would cause, but reaffirmed her commitment to cameras in court. “In the meantime, we will carefully consider Judge MacLean’s decision, and we will continue to look for opportunities to make the justice system more transparent to all British Columbians,” Bond said in a statement.
But some had already dismissed the government’s move as a gimmick, and some advocates fear that what may have been seen as a leap forward, may in fact have set back the campaign for televised court proceedings. Robert Holmes, president of the B.C. Civil Liberties Association, has suspicions about the provincial government’s long-term commitment to the idea. “If this is meant to be a test run, as a precursor towards a broader use of cameras in the courtroom, then all power to it,” says Holmes. “On the other hand, if the government is solely doing this to add an extra degree of stigmatization to a particular group, and they plan on never letting cameras in again, then I’m not sure I want them on my side, because their motives are suspect.”
Paul Burstein, the former president of Ontario’s Criminal Lawyers’ Association, concedes that the time may have come for cameras in the courtroom, but is unimpressed by the intial approach of the B.C. government. “It should be for the right reasons, and this is clearly for the wrong reasons. It promotes public shaming and potential vigilantism, which is just wrong,” he said prior to MacLean’s ruling. “I think it’s appalling. Not only is the intention to shame, but the subtext seems to be that the government wants people to know the faces of those responsible, so that if the courts don’t mete out enough punishment, the public can sit in judgment as to what else should appropriately be administered to these individuals by way of public ridicule, spitting on the street, and so on. I’m exaggerating to some extent, but what else is the purpose?”
Donna Turko, a Vancouver criminal lawyer and former television journalist, earned her MA in sociology and anthropology a decade ago with a thesis that examined the deep-seated division between legal and media professionals over cameras in the courts. She says it was never likely judges would grant applications to televise riot trials, especially over the objections of defence counsel. “In general, the legal profession doesn’t trust the media, because there’s an innate sense that for the media, it’s about making money, and not protecting rights,” she says.
According to Burnett, the more judges see cameras in action, the more comfortable they will become with the idea. He says judges who have led commissions of inquiry, which are often televised, rarely come away opposed to the idea. “Generally what they see is that it all works in a pretty civilized way, and it’s not such a big deal. The fear of the bogeyman disappears.”
Chaffe says he’s keen to see courts retain the final say on whether or not to allow cameras, and says that view is backed up by the January 2011 Supreme Court decision Canadian Broadcasting Corp. v. Canada (Attorney General). In that case, the top court upheld the constitutionality of a Quebec Superior Court directive that limited journalists’ use of cameras and recording equipment to certain areas of the courthouse.
But it’s another critical courtroom player that is central to his organization’s opposition to cameras in court — the witness. “One of the real challenges, particularly with serious criminal offences, is whether or not we can actually get witnesses to come forward and testify. It’s a challenge that gets much more difficult when witnesses feel that not only will they be in open court facing the accused, and possibly media in the courtroom, but that their image could be projected on a daily basis across the country contemporaneous with the trial,” says Chaffe. “Television may actually inhibit access to justice and access to the court if witnesses or victims don’t want to speak out.”
But Holmes says judges can easily work around sensitive witnesses by obscuring images or distorting voices where they deem it appropriate. “That’s fair because there are valid excuses and reasons for limiting it in some contexts,” he says. Burnett agrees that the judge should have control over what can be broadcast, and says concerns about witnesses are “overblown.” “It isn’t as if you turn on the camera and there’s no turning back,” he says. “The reality is high-profile cases attract lot of attention, and you’re going to have a packed gallery, sketch artists, camera crews outside doing reports, the judge sitting up at an imposing-looking desk, and people being cross-examined aggressively. The idea that this one little camera sitting on a tripod at the back of the room is going to be the thing that suddenly makes a witness unable to testify properly is a bit of a stretch as far as
I’m concerned.”
Chaffe doesn’t object as strongly to the potential broadcast of appeal court proceedings. Live witnesses there are not an issue, which may help account for the Supreme Court’s pioneering position on this area.
Its decision in the 1981 Patriation Reference case was the first in the country to be televised live. From 1993 to 1995, the court allowed cameras in three times to cover cases involving the tax deductibility of nanny expenses, the right to assisted suicide, and the tax deductibility of spousal support payments, before CPAC began regularly broadcasting from the court. Since 2009, the court has branched out even further, launching live webcasts and archiving video footage of hearings.
Ironically, that puts the Canadian Supreme Court at odds with its American counterpart, which has traditionally eschewed television cameras, despite their widespread use in state-run courts. All 50 states allow cameras in their courtrooms. The U.K.’s experience broadly mirrors Canada’s, where the only court that allows cameras is the Supreme Court.
Appeal courts have also been at the heart of provincial experiments with cameras in court. Nova Scotia invited applications to broadcast hearings from its appeal court for two years from 1996 to 1998. Meanwhile, in Ontario, the province’s 2006 Panel on Justice and the Media, including luminaries from the legal and media spheres, recommended an amendment to the province’s ban on cameras in the Courts of Justice Act, to allow them for proceedings in the Court of Appeal and the Divisional Court, as well as motions and applications in Superior Court that involved no witness examination. “In such cases, televising should be broadly permitted. The court should always have discretion to exclude television, but only after giving due consideration to the value of openness,” the panel wrote. “Some may see this as a small step. We do not think so. . . . The people of this province will have an opportunity to be eyewitnesses to important aspects of the justice system in action. Whether they watch for inspiration, education, or even entertainment, they will be observers of a historic process, which is a critical element of our democratic system.”
A three-month pilot followed in late 2007, when one courtroom at the province’s Court of Appeal was outfitted with cameras and microphones. The $365,000-project saw 21 cases streamed online across 20 court sessions. Only one of the cases, an appeal by a man wrongly convicted of killing his young niece, garnered much media coverage, but the court’s web site logged 18,000 visits, and 95 per cent of those interviewed for an evaluation report said the pilot enhanced openness, while 85 per cent called for an expansion to other courts.
The 2008 report on the pilot was only released in March last year after a freedom-of-information request, and then-attorney general Chris Bentley said he was open to revisiting the issue. Brendan Crawley, a spokesman for the Ministry of the Attorney General, tells Canadian Lawyer that privacy issues remain a concern, but that consultations are underway with chief justices of all three of the province’s courts. “We need to ensure that we approach this in a thoughtful and comprehensive manner. These are informal consultations, and we have not placed any firm timelines for them to be completed,” says Crawley. In the meantime, there are no cameras in Ontario’s courts.
John Honderich, the former editor and publisher of the Toronto Star, was a member of the 2006 panel on justice and the media. He says he was advocating to have cameras present at all levels of court, but has been disappointed at the lack of action even on the panel’s watered-down recommendations. “This was a compromise that everyone was supposed to be able to live with, but I think they just weren’t prepared to take on the legal establishment,” says Honderich. “The establishment in this province has been very strongly imbued, and I guess the government just didn’t see this as a battle they wanted to fight.
For Turko, the problem with the focus on appeal proceedings is that they are the ones of least interest to the public at large. “It’s like watching paint dry,” she says. “From an academic point of view, there are certainly things to be learned, but the exercise doesn’t really go anywhere if nobody watches it. It comes down to the quantum of what you’re going to get for costs that could be put elsewhere in the system.”
In the B.C. context, Chaffe says he would rather see the money and court time being spent on applications to televise instead being used towards dealing with inadequacies in the court system there. “They’ve got 2,500 cases over 18 months waiting for trial, and they’re 20 judges short of full complement at the provincial court level. This is going to hamper the ability of the justice system to react to other cases that the public may very well regard as a higher priority, like sexual assaults and homicides, which we think is harmful,” he says.
Illustration: Carl Wiens
Illustration: Carl Wiens
When a California jury acquitted O.J. Simpson of two counts of murder in 1995, the verdict delivered a where-were-you-when moment to people around the world. But the trial also gave Canadian advocates for cameras in the courtroom their biggest and longest-lasting headache. The case has become a textbook argument against putting cameras in the courts, with grandstanding lawyers on both sides, an allegedly star-struck judge, and an orgy of commentary stoking a media frenzy around the televised trial.
Monday, 06 February 2012 08:07

The offshore banking nightmare

Written by
Cover: Mick Coulas
Cover: Mick Coulas
It was a strategy born of sheer frustration, a chess move that failed. On Nov. 28, 2006, Michael Morris, a Canadian who runs a small offshore bank in the Bahamas, arrived at a bustling Starbucks in downtown Toronto expecting to meet a woman called Ginette Brown. The previous month, a woman by this name had called Morris at his offices in Nassau, where he runs Barrington Bank International Ltd., and told him she had a client seeking financing and would Morris agree to meet with her when he was next in Toronto? Weeks later, they arranged to rendezvous at the Starbucks while he was in town visiting family.
Monday, 06 February 2012 08:05

Judging the judges

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Illustration: Tara Hardy
Illustration: Tara Hardy
In almost two decades of practice, criminal lawyer Paul Slansky had never complained about a judge. But one day in July 2004, he resolved to change that. Ontario Superior Court Justice Robert Thompson had just ordered him confined to the courthouse in Owen Sound, Ont., while jurors deliberated on the fate of his client, Vytautas Baltrusaitis, who was charged with murder. Toronto-based Slansky, who was staying at a hotel just a couple of minutes’ walk from the courthouse, viewed the move as malicious and petty. “However this conduct was merely the straw that broke the camel’s back,” Slansky wrote in an affidavit following the trial he called “the most difficult of my career.”
Tuesday, 03 January 2012 11:40

The death of collective bargaining?

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Air Canada has had two strikes. The one in 1998 involved pilots; it lasted 13 days and was settled through bargaining during what were profitable times. The other, last June, involved front-counter staff; it was settled after three days — mere hours after the federal government tabled back-to-work legislation. The first strike occurred while the Liberals were enjoying a majority in the House of Commons with Jean Chrétien as prime minister. Today, Stephen Harper’s Conservatives run the country, also with a majority. But while Chrétien stayed out of Air Canada’s contract squabble in 1998, Harper has not.
In light of labour disputes in recent months by both Canada Post and Air Canada, academics and labour lawyers across the country are now discussing Harper’s apparent war with the labour movement in Canada. Some unions are preparing to enter the trenches to fight that battle while others already have done so.
Harper has carte blanche because of his majority, but the hockey enthusiast has the equivalent of a breakaway on an empty net. There’s the loss of resistance with the collapse of the Liberal party, and the uncertainty left at the top of the new opposition New Democrats due to the death of leader Jack Layton. “Harper’s government has more respect for the right to bear arms,” says Toronto labour lawyer Paul Cavalluzzo, who represents the Canadian Union of Postal Workers, referring to the Conservatives’ recent move to do away with the long-gun registry. “Obviously they are not very friendly to the labour movement and they don’t pretend to be.”
In 2011, Minister of Labour Lisa Raitt interceded to stop a strike by Canada Post and prevent one by Air Canada’s flight attendants. Meanwhile, the Canadian Union of Public Employees is preparing proposals for new deals for the carrier’s pilots as of November; the two sides there are already fastening their seatbelts in anticipation of severe turbulence. A contract with Air Canada mechanics is also up for renegotiation.
This new policy of stepping into disputes is setting the stage for a new style of labour negotiations, experts say, where companies hold back and wait for government help. If the government’s propensity to involve itself in labour disputes continues, says Cavalluzzo, employers will feel safe under the umbrella of back-to-work legislation and will no longer be serious about negotiating. That’s exactly what happened in Air Canada’s dispute with the flight attendants, says another Toronto employment and labour lawyer, Howard Levitt of Levitt LLP. “I blame it on Air Canada,” he says. “They didn’t fight. You’ve got to be prepared to fight.”
The airline’s communications department did not respond to interview requests for its representatives.
The government’s increased involvement in labour matters is dangerous, says McGill University’s Bob Hebdon, an expert on government intervention in disputes. “[Parties] hold back knowing if the government intervenes they’ll have padding,” he told The Canadian Employer. “So, the union doesn’t really get the last best offer. The behaviour has changed.”
Twice CUPE took an offer from Air Canada back to the flight attendants. On the first attempt in August, 87 per cent of them rejected the proposal; on the second in October, that number was down to 65. Union leaders said they managed to get 80 per cent of what membership was seeking. “The fact that the members twice rejected offers that they were presented by the union is a pretty clear signal that there is conflict within the union,” offers Ken Thornicroft, a law and labour studies professor at the University of Victoria.
The Canada Industrial Relations Board hadn’t been used in more than a year when it was asked by the union representing Canwest employees to establish successor rights when a number of the broadcaster’s television stations were sold. By going to the CIRB, the government took away the union’s only strength — the membership’s willingness to withdraw their labour, says Julie Guard, an associate professor of labour studies at the University of Manitoba. “For the Harper government to take away the only power that the union really had undermines the entire premise of the labour relations system that has governed relations between workers and their employers since the 1940s,” says Guard.
She says that by intervening twice now — with the postal workers and the flight attendants — one might surmise that the goal is to prevent all strikes by intimidating workers into accepting bad agreements, on the grounds prolonged agreements will not improve the employees’ position. Also, the employer can offer as little as it wants, knowing it will not have to face a strike.
She says the Air Canada and Canada Post negotiations suggest the Harper government has a secret policy of undermining collective bargaining and weakening the labour movement. “The Conservatives did not mention collective bargaining or an intention to undermine unions when it campaigned in the last election and has not acknowledged that goal now,” she says. “But it appears that is nonetheless its agenda.”
Levitt believes Air Canada would have been better served training new flight attendants in what he says is an unskilled job — forcing a strike that wouldn’t matter to the public, given that the airline would still be in the air and would still have people on the plane pouring coffee. The unionized flight attendants would then watch as the company proceeded without them and be frightened back to work.
That seems to be the plan of the City of Toronto, which by all accounts is bracing for an extended work stoppage with its two largest unions in January. Toronto is moving ahead with plans to train managers to perform unionized employees’ tasks as it tries to negotiate rollbacks on benefits and the end to the “job-for-life” clause in its previous contract.
Levitt says the danger in having the Ministry of Labour continue to get involved in forcing arbitration is that it “will kill the collective bargaining process.” In an opinion piece for Postmedia News in July, Levitt cited the example of the City of Windsor asking Dalton McGuinty’s Liberal government in Ontario to stay out of its dispute with its union and not order them back to work. “[Asking for intervention] is an admission of failure, because ordering the workers back means an arbitrator will decide their remuneration and the history of arbitrators’ decisions has created the very wage boondoggle the public is decrying,” Levitt wrote.
When dealing with labour disputes that reach a stalemate, Levitt recommends firing the lawyers and advisers who brought negotiations to a standstill. Then, if the union strikes, tell the union the cost of the strike will be taken out of their future salaries and benefits when a settlement is reached. “With one not-for-profit client I negotiated for, we told the Teamsters every time our offer was rejected, the next would be less. On the third offer, they believed us and accepted the reduced offer. The next time they didn’t strike,” wrote Levitt.
The postal workers began rotating strikes on June 14, and on June 15 Raitt informed them she would be tabling back-to-work legislation. She did so on June 20. The postal union filed a constitutional challenge in Ontario Superior Court on Oct. 11, arguing that the Conservatives violated the Charter of Rights and Freedoms by imposing back-to-work legislation.
Raitt sent Air Canada’s flight attendants to the CIRB to arbitrate their dispute. The 6,800 flight attendants cancelled a strike scheduled for Oct. 13 after the CIRB told them to stay on the job while the contract offer was reviewed. On Nov. 7, the CIRB ruled in favour of Air Canada on a new four-year deal that expires March 31, 2015. “The government robbed [the flight attendants] of what was a democratic opportunity,” says Anne Gregory, acting director of CUPE’s legal branch. “This is a company that declared bankruptcy twice and after agreeing to wage rollbacks and concessions to help the company, they didn’t get to bargain.”
The pilots were met by a notice of dispute filed with the government in October, prior to a second round of talks, which appears to be following the same path as that of the flight attendants.
That Harper has begun a war with the labour movement in Canada is clear to the Professional Institute of the Public Service of Canada, which has 60,000 white-collar professionals, including federal government lawyers. Traditionally keeping an arms-length distance from labour matters, PIPSC voted in November to join the Canadian Labour Congress in anticipation of layoffs, rumoured to be extensive in the coming months. In the late 1990s, PIPSC had voted against joining the CLC. But, back in the late 1990s, money wasn’t as tight. Air Canada’s pilots won nine-per-cent salary increases over two years in 1998. The airline made a profit of $427 million in 1997. A few short years later in 2003, the company filed for bankruptcy protection and most recently reported a loss of $46 million for the second quarter of 2011, considerably less than the $318 shortfall for the same quarter a year earlier.
Formed in 1920, PIPSC’s almost 100 years of political neutrality ended when 400 delegates rallied at Parliament Hill on Nov. 4. That same day, a private member’s bill tabled by Conservative MP Russ Hiebert calling for greater financial disclosures from Canadian unions crashed in the House of Commons in large part because of procedural strategies developed by PIPSC, and slipped into the hands of the New Democrats. “In today’s difficult economic times, our members are facing an increasingly complex labour environment, as well as a sustained attack on the part of government and its supporters in the business community,” PIPSC president Gary Corbett said after the Nov. 7 vote.
Finance Minister Jim Flaherty is attempting to balance the budget by 2015, but among the roadblocks he faces is a reported increase in pay for public servants of $1.2 billion for 2012 as established through collective bargaining. Job cuts have already been publicized. Close to 800 positions were eliminated in August at Environment Canada, whose employees belong to PIPSC, along with 52 from the National Research Council. In October, Veterans Affairs Canada confirmed that 500 jobs would disappear in the next few years.
On the flipside, what hasn’t been reported, according to the Canadian Taxpayers Federation, is an increase in public sector jobs of 35,000 since Harper took office in 2006 — to 420,000 from 386,000. “It is simply not correct to say that the Harper government is cutting the size of the federal public sector, or cutting spending. The opposite is true,” says Gregory Thomas, the CTF’s federal and Ontario director. “We welcome the cost-cutting the government has carried out so far. We urge them to cut more aggressively.”
The federal government is using the Air Canada dispute to publicize its desire to make changes to the Canada Labour Code, which is more than 100 years old.
“There’s something wrong in this case and does that mean there’s something wrong in the code?” Raitt said in an interview with the CBC in October. “If we do have a problem and maybe it is a flaw in the system, we should discover it now, and if we need to make changes we can make changes.”
Harper has made some major moves in the first months of his majority, including scrapping the long-gun registry, eliminating the Canadian Wheat Board, and beginning the process of cutting $4 billion from the country’s budget, which is what prompted PIPSC to hold its vote.
The labour movement in Canada faces a challenge not only from the government, but also from the new global economy. As the generation of baby boomers leaves the workforce, it is replaced by a younger workforce that views unions as being less important — having grown up in a country where most labour rights have long been established.
According to a paper written by compensation and industrial relations director Karla Thorpe for the Conference Board of Canada, organized labour has seen a 1.7-per-cent decline in the past few years, to 29.2 in 2011 from 30.9 per cent of the workforce in 1997. Seventy per cent of the public sector is unionized, while 15.9 per cent of the private sector is — an all-time low, down from about 35 per cent just a decade ago. “Labour’s ability to exert pressure on behalf of workers will undoubtedly be impacted by a declining base of members and the resulting loss of union dues,” writes Thorpe. “Even though union density is on the wane, organized labour can continue to have a positive impact on government policy — particularly if they focus on issues that have broader public appeal.”
Thornicroft suggests that unions are here to stay, and will remain especially relevant in the public sector. “In terms of public, unions remain strong and powerful and well funded and I don’t see any change there. They will continue to have considerable bargaining leverage. In the private sector, that’s a different story. In the private sector unions have no significant bargaining leverage these days.”
Most of the concerns, according to Thornicroft — safety, health care, and wages, for example — are no longer issues in Canada, so workers in the private sector are now opting to skip unionizing. “For private sector unions the glory days are gone,” he says. “They may be back but I don’t see it happening any time soon.”
It would appear Air Canada’s flight attendants are dealing with that reality right now.
Cover photo: Liam Sharp
Cover photo: Liam Sharp
Air Canada has had two strikes. The one in 1998 involved pilots; it lasted 13 days and was settled through bargaining during what were profitable times. The other, last June, involved front-counter staff; it was settled after three days — mere hours after the federal government tabled back-to-work legislation. The first strike occurred while the Liberals were enjoying a majority in the House of Commons with Jean Chrétien as prime minister. Today, Stephen Harper’s Conservatives run the country, also with a majority. But while Chrétien stayed out of Air Canada’s contract squabble in 1998, Harper has not.
Monday, 14 November 2011 08:00

The loan arrangers

Written by
Cover: Dominic Bugatto
Cover: Dominic Bugatto
Third-party litigation loans have a rather nasty reputation. The funding of legal cases by complete strangers causes many intelligent people, some of them lawyers, to declare these kinds of loans abusive, predatory, and a black mark on the justice system. And yet there are others, some of them also lawyers, MBAs, and financial advisers, who believe when administered to the right people, by the right people, these “lawsuit loans” help those in need when no one else will. Stephen Pauwels is one such person. Yes, Pauwels is in the loan business. Yes, he profits from plaintiff-victims. But his point of view will surprise you. Pauwels believes his own industry is dangerous, similar to both the Wild West and the American subprime catastrophe.
Monday, 14 November 2011 08:00

Preparing for uncertainty

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_2011_November-December_uncertainty.jpgAs Canada fights to stay out of a looming global recession, it seems corporate counsel are preparing for the worst with plans to bring more work in-house even as they expect to see an increase in the amount they will be challenged to do in the coming year, according to the annual Canadian Lawyer corporate counsel survey.
Monday, 03 October 2011 09:00

Doing business in Africa

Written by
Cover: Jacqui Oakley
Cover: Jacqui Oakley
As the world’s second-most populous continent and blessed with abundant mineral riches, Africa holds great promise and economic opportunity. But those opportunities must also be mentioned and measured along with Africa’s many challenges: its division into 50 often fractious nations, frequent wars and civil strife, a stubborn history of corruption and inefficiency, and the deepest poverty anywhere on the planet. It’s fair to say Africa is the toughest place in the world to do business.
Monday, 05 September 2011 10:00

A decade on

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_2011_September_cl_sep_11-lr-1.jpgKent Roach thinks of it as the age of innocence, those emotional early months following the Sept. 11, 2001 attacks in New York and Washington, D.C., when Canadians were vigorously debating new anti-terrorism laws. Parliament, the legal community, and other stakeholders were consumed with how to craft legislation that would properly balance national security, privacy, and human rights. That was long before most Canadians had ever heard of Maher Arar or Omar Khadr. No-fly lists, security certificates, and electronic surveillance were barely on the national radar. The federal public safety department, now one of the most high-profile federal ministries, didn’t exist. Canada had not yet deployed the 37,000 soldiers who would serve in Afghanistan over the following decade, 157 of whom lost their lives.
Monday, 05 September 2011 09:00


Written by
Illustration: Mick Coulas
Illustration: Mick Coulas
Computer systems at law firms, governments, companies, courts, and high-profile organizations have been targets of increasing numbers of cyber attacks as perpetrators become more sophisticated in their ability to steal information. As recently as July, the North Atlantic Treaty Organization and the United States’ Central Intelligence Agency were targeted. The CIA’s web site was shut down for several days as a result, while the hackers who attacked NATO claimed they had infiltrated the organizations’ computers and obtained classified documents; the United Nations, law firms in Canada and the United States, and Ontario’s courts have been hacked over the last several months.
Monday, 01 August 2011 11:50

To article or not to article?

Written by
Illustration: Alexi Vella
Illustration: Alexi Vella
It’s a capstone to legal training in Canada, a (mandatory) rite of passage that allows law students to prove they not only have the academic chops to become full-fledged lawyers, but also the nimbleness to effectively serve their clients in the real world. Unfortunately, for many budding lawyers in Canada, articling — the “bridge” between law school and full-blown legal practice — has now become a barrier to reaching their professional aspirations.
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