The Power of Perspectives

The Canadian Bar Association

Yves Faguy

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Taking back the keys to City Hall

By Yves Faguy June 3, 2013 3 June 2013

Quebec’s government has placed the City of Laval under trusteeship following mounting allegations of corruption involving much of the city administration, including the new mayor who succeeded Gilles Vaillancourt. Meanwhile, Queen’s Park is struggling with what to do with Toronto’s city council, also reeling from allegations, but of a different nature. The decision to take control of the city’s affairs isn’t likely to raise much controversy in Québec (Laval’s appointed mayor actually made the request himself, though he probably saw the writing on the wall). On the other hand, Kathleen Wynne, lacking a broad mandate from the Ontario electorate, faces a popularly elected mayor who has made it clear he won’t go down without a fight. And no one is suggesting that there has been sprawling corruption among city councillors in Toronto, as is the case in Laval.

Complicating matters further, Ontario’s premier has few legal options available to her. In Canada, cities owe their existence to statutes passed by provincial legislatures. These statutes contain the rules governing the removal of councillors and, in the case of Quebec’s law, placing municipalities under trusteeship.

(More after the jump)

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The meaning of secularism in law?

By Yves Faguy May 29, 2013 29 May 2013

Quebec’s ongoing debate about the meaning of secularism resurfaced this week following the ruling by the province’s Court of Appeal reversing the decision by a human-rights tribunal banning prayer during municipal council meetings in Saguenay.

La Presse's Yves Boisvert writes that the ruling is flawed:

“All in all a surprising decision. And disappointing. But the ruling will be popular because what it really does is express a sort of generalised discontent. Discontent with the accumulation of religious rights that benefit minorities; and discontent with the growing pressure to erase Christian symbols from public institutions.” (Our translation)

Boisvert goes on to detail some of the inconsistencies in the judgment, namely the court of appeal’s sermoning the mayor of Saguenay for inappropriately using his office to promote his religious beliefs. And yet we are expected to believe that a mayor's prayer prior to council meetings doesn’t compromise the municipality's neutrality?

“In short, it’s a judgment that displays a lack of legal rigour. All this will make its way to the Supreme Court, with a challenge following a path either through Quebec or Ontario.”

Perhaps the Quebec government will have better luck in clearing things up if and when it delivers on its plan to introduce in the fall secular Charter of Quebec Values.

A final note: André Pratte point out in his editorial that, according to a recent poll, 57 per cent of respondents in Quebec agreed with the statement that “All religious signs must be banned from public institutions.”

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Technology and modern law

By Yves Faguy May 28, 2013 28 May 2013

In our recent interview, Omar Ha Redeye shared his views on the role technology can play in modernizing the legal profession and improving access to justice:

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Using counsel's submissions without attribution, continued

By Yves Faguy May 27, 2013 27 May 2013

On Friday, in Cojocaru v. BC Women's Hospital et al., the SCC dismissed the notion that a trial judge’s decision should be set aside because it copied large portions of the plaintiffs’ submissions:

To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge’s task and the time-honoured traditions of judgment-writing. The conventions surrounding many kinds of writing forbid plagiarism and copying without acknowledgement. Term papers, novels, essays, newspaper articles, biographical and historical tomes provide ready examples. In academic and journalistic writing, the writer is faced with the task of presenting original ideas for evaluation by an instructor or by peers, or of engaging in principled debate in the press. The task of judgment-writing is much different. As Simon Stern puts it:

Judges are not selected, and are only rarely valued, because of their gift for original expression. Just as most lawyers would rather present their arguments as merely routine applications of settled doctrine, yielding the same legal results that other courts have delivered repeatedly, judges usually prefer to couch their innovations in familiar forms, borrowing well-worn phrases to help the new modifications go down smoothly. The bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law…. [T]he effort to demonstrate that similar cases are being treated alike often finds its rhetorical manifestation in a penchant for analyses that have a déja lu quality — usually because the words have been read before. This tendency, though visible throughout the legal system, is most pronounced at the trial level. [Emphasis in original; p.1.]

(“Copyright Originality and Judicial Originality” (2013), 63 U.T.L.J. 1)

As an interesting side note ((hat tip @LeeAkazaki), the SCC’s decision in Cojocarcu references similar reasoning in decisions rendered by British tribunals. And yet on the very day the SCC released its decision in Cojocaru, Judge Simon Brown, QC, the designated mercantile judge for the Midlands sitting at the Birmingham Civil Justice Centre, got into trouble for having “copied and pasted” large parts of one of his recent judgments:

Underlining that 'appearances matter', the Court of Appeal laid into Judge Brown's plagiarism and warned that such 'thoroughly bad practice' must never happen again.

[...]By adopting IG Markets' arguments wholesale, Judge Brown had given the impression that he had not considered the case independently and even-handedly. Although there was 'nothing inherently wrong' in making use of such documents, Lord Justice Underhill said: 'I have never before seen a case where the entirety of the judgment has been based on one side's submissions in the way that occurred here'.

Mahmud Jamal and Raphael Eghan represented the Canadian Bar Association as intervener in Cojocarcu. More about the CBA’s position in a previous post here.

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Struggling with privacy law

By Yves Faguy May 24, 2013 24 May 2013


Shannon Karl explains why courts in Canada and the U.S. have been so clumsy about clarifying privacy rights as they relate to the use of rapidly-changing technology:

At a time when the use of portable communication devices is ubiquitous and the consumer is looking ahead to “reality glasses,” courts are still faced with arguments comparing smart phones to containers and a statutory scheme drawn up when phones needed to be dialled. The disconnect between the courts, the legal profession, and technology in the everyday world may also be a function of age. As recently as three years ago, the United States Supreme Court referred to pagers as a new technology and some of the judges had difficulty understanding the role of service providers in transmitting texts and similar forms of communication.

[...]

The lack of technological savvy and a reluctance among appellate courts to interpret how to apply the existing schemes in the face of rapidly changing technologies has led to conflicting decisions at the trial level in both countries.

Above is a video of Ron Deibert of Citizen Lab reminding the legal profession to be mindful of dangerous policy responses in fighting crime and their impact on the rule of law.

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