The Power of Perspectives

The Canadian Bar Association

Yves Faguy


The Supreme Court ruling on unmarried couples

By Yves Faguy January 28, 2013 28 January 2013

Admittedly, the Supreme Court’s ruling last week on spousal support for unmarried couples affects Quebecers for the most part. That said, Canadians from other provinces are impacted by the questions surrounding the division of property rights. So here’s a round-up of commentary on the decision.

Yves Boisvert, notes that the ruling is a divided one in which the Chief Justice found herself in the middle but leaning on the side of validating the provisions of the Civil Code of Quebec.

It would seem, at first blush, that the judges were were split along gender lines: the women came down on one side, the men on the other.

In truth, what was really at stake in the Lola case was the very notion of what the role of judges should be. And the majority concluded that it is up to the National Assembly – not judges – to redefine or not [Quebec’s] conjugal regime for unmarried couples. It was the right decision. You simply do not marry one million people without asking them first. It is neither polite nor, from a legal standpoint, promising. [Our translation]

Angela Campbell writes that the decision might be better for women than some might think (more after the jump):

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Copyright and "I'm right to nuke you" ethics

By Yves Faguy January 21, 2013 21 January 2013

Plenty has been written in the last week about the death of Aaron Swartz. Predictably, opinions tend to diverge sharply among supporters of content consumers vs. supporters of content owners (was Swartz hero or thief?)

But the more nuanced commentators are asking some rather pertinent questions about how our governments go about targeting alleged criminals and how they are prosecuting crimes. Food for thought for legal minds. Here’s Clive Crook in one of his last posts at the Atlantic:

By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.

The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.

Stephen Carter at Bloomberg calls the prosecution of Swartz ridiculous, but argues that the overly zealous lawmakers are the real problem. Drawing inspiration from Douglas Husak, author of the book Overcriminalization, he writes (more after the jump):

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Non-status Indians: The impact of Daniels

By Yves Faguy January 18, 2013 18 January 2013

The recent Federal Court decision in Daniels v. Canada will no doubt have a major impact on a number of financial, legislative and political considerations of the federal government in dealing with non-status Indians. And yes, the ruling might yet be appealed before the Supreme Court. But for now it concludes that Métis and non-status Indians are “Indians” within the meaning of Section 91(24). It is worth noting though that the Federal Court did dismiss two other requests by the plaintiffs in Daniels – a declaration that Ottawa owes a fiduciary duty to MNSI as Aboriginal people; and that the feds have a duty to consult and negotiate with MNSI.

National contributor Brad Mackay had a chance to catch up with Joe Magnet (still recovering from a bout of laryngitis), who was the lead counsel representing the Congress of Aboriginal Peoples. Brad asked him to explain what was at stake, to tie the ruling to the Idle No More movement and to share his thoughts on what Canada needs to do to fix the legal relationship between Ottawa and Aboriginal people.

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Intervention in Mali: a legal concern?

By Yves Faguy January 15, 2013 15 January 2013

So Canada has decided to provide logistical support to France’s military intervention in Mali (false starts notwithstanding), and play host to talks in Ottawa. All of this a week after Harper ruled out sending troops to the country – an announcement that followed recent statements made by Robert Fowler (interviewed in the above video in August at the Canadian legal Conference in Vancouver) criticizing the Harper government for saying that it had not been asked to contribute to the international military mission to Mali. At least one paper admits to being confused.

Part of the reason might have something to do with a whole lotta disagreement (between France and the U.S.) over which strategy to pursue: a frontal attack on the country or a quieter campaign against jihadi groups – like the one tried in Somalia maybe?

Perhaps most telling, the U.S. is now citing legal concerns in delaying decisions about supporting France's military campaign in Mali. The main obstacle, it seems, is that direct military aid to Mali is forbidden under U.S. law because the current government seized power in a military coup. But more pertinent could be the fact that Obama's recently named national security team is, by all accounts more favourable to testing the light footprint strategy in military matters. 

But Daveed Gartenstein-Ross worries in a recent G&M piece, with the U.S. primarily in mind, that supporters of a light footprint strategy in Mali ought to be more careful when talking up the merits of the quiet campaign against jihadi groups in Somalia as the successful model of intervention that should be followed:

It is unclear precisely what the administration and commentators have in mind when they speak about drawing lessons from Somalia, though a few threads of thought are clear. One principle is that there should be no Western “boots on the ground” – although drones, special forces, and the ubiquitous “military trainers” may play a role. Other principles include local forces taking the lead in combat operations, and working multilaterally with other countries. The aforementioned UN Security Council resolution on Mali laid the groundwork for multilateral efforts there. But the $64,000 question is how well will things turn out in Somalia? While al-Shabaab has experienced legitimately large setbacks, there are reasons for concern that the Somalia model is being oversold.

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Should ISPs defend the privacy of their clients?

By Yves Faguy January 15, 2013 15 January 2013

Credit: Creative Commons/Deyan Sedlarski (

TekSavvy Solutions Inc., the internet service provider that – in its own words – “believes in doing the right thing” has come under pretty heavy fire recently for not sufficiently protecting its customers’ privacy.

It all started late last year when L.A.-based Voltage Pictures filed a motion in the Federal Court of Canada aimed at forcing TekSavvy to disclose the names and addresses of subscribers tied to some 2,000 IP addresses. Why? Because Voltage is seeking compensation for alleged copyright violations by Canadian file-sharers using peer-to-peer networks. So when TekSavvy announced that it would not oppose Voltage’s motion, many admirers of the company were angered that it didn’t mount a more vigorous defense of subscriber privacy.

Howard Knopf, who represented CIPPIC in a similar case back in 2005 against subscribers of the larger telecoms (Shaw, Rogers, Bell, Telus and Videotron), is one of them:

Generally speaking, the real issue now is under what circumstances, if any, an ISP is expected or maybe even required to take reasonable steps to safeguard its customers' privacy. If an ISP can successfully and inexpensively oppose an inadequately documented attempt to breach its customers’ privacy, then why should it be able to walk away and leave its customers on their own and just tell them they can hire their own lawyers? It’s the ISP’s duty under the PIPEDA federal privacy legislation to protect its customers’ privacy. That presumably does not mean simply telling them that their privacy is about to breached, that they are on their own and are free to get a second mortgage and hire their own lawyer. ISPs are paid a lot for their services, and one part of their job is to live up to their PIPEDA obligations. ISPs customers pay $25, $50, $60, $80 or more a month and part of their expectation, beyond fast and reliable service, is an expectation of privacy and an expectation that their privacy will be safeguarded – especially if an ISP promotes this aspect to get and retain customers.

In a later post, Knopf lists three reasons why TekSavvy ought to have taken an active role in opposing the motion:

1. First, since it is the only entity that can resolve the link between IP addresses and subscriber identities, it is in the best place to challenge the technical evidence that Voltage and its forensics contractor, Canipre, have put forward;

2. Second, in the BMG case, Telus and Shaw actively stood in opposition to the record labels’ bid to obtain subscribers’ identities on just this ground and TekSavvy should do no less in the present case, especially given that it holds itself out as being more attuned to its subscribers’ interests than its corporate cousins – a point that Koblovsky also relies on heavily;

3. Third, it is too much to ask of CIPPIC, an organization with a skeletal staff and limited resources, to take the lead in the case.

But following yesterday’s decision by the Federal Court to grant an adjournment to allow CIPPIC to make its motion to intervene in the proceedings, David Ellis pushes back on the cost issue and defends TekSavvy’s actions:

First, “if” an ISP can find a cheap way to oppose, etc is worth nothing as a statement of empirical value. If I could fly, I’d spend a lot more time hiking in southern California. Second, let’s update the “inexpensive” part of this with real numbers: [TekSavvy lawyer] Nick McHaffie revealed in court today that TS will be seeking $190,000 in costs from Voltage. [TekSavvy CEO] Marc Gaudrault assures me this figure represents a very conservative accounting of his legal and technical costs to date – and this case is far from over. Third, there’s no way in our system you can oppose a motion for disclosure purely on privacy grounds.

Several factors led critics to reach wrong-headed conclusions about what TS was or was not doing for its customers. Many took to heart Marc’s statement that TS was not going to “oppose” the Voltage motion. In retrospect, he probably regrets emphasizing this position when TS was in fact working against Voltage on several fronts. Moreover, because that assertion was only the tip of a much larger iceberg, many of these same folks also assumed they knew what TekSavvy’s legal strategy was: cave in and wait for the court order to arrive, then drop all that personal customer info into Voltage’s lap.

[…] For reasons I still don’t get, the critics chose to ignore one obvious way in which TS stuck its neck out to help its customers. They provided notice to everyone who appeared on the charge list – something they were under absolutely no obligation to do. That took a lot of work at a time when TS and its lawyers were hard pressed preparing for the December 17 hearing. This notice provided a service in particular to customers who did not download any of Voltage’s property, giving them a heads-up they might be dragged into a proceeding despite their putative innocence.

Finally Ellis questions whether TekSavvy really ought to play the role of privacy advocate:

One of the most frustrating themes in the recent debate has been the insistence that TS must somehow not merely stand up for its customers, but go on the offence as a privacy advocate. Whose privacy are we talking about anyway? Naturally, everyone wants to see the putatively innocent protected from any unjust disclosures. As for those who might turn out to be guilty, who says their privacy wouldn’t be respected as far as public disclosure is concerned?

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