Press Monitoring October 14 to 20, 2014

Press Clippings for the period of October 14 to October 20, 2014
Revue de presse pour la période du 14 au 20 octobre, 2014
Here are a few articles and opinion pieces that might be of interest to AJC members
Voici quelques articles et chroniques d’opinion qui pourraient intéresser les membres de
l’AJJ
Taxation union refuses to give up
severance, sick leave
Kathryn May, The Ottawa Citizen, October19, 2014
The Conservative government is facing a showdown with employees at Canada’s tax
agency over two hot-button issues for public servants: giving up severance pay, and
banked sick leave.
The Union of Taxation Employees stands out as the only federal union that has yet to
give up severance benefits for public servants who quit voluntarily. And it’s the only
large union that isn’t at the table in the current round of collective bargaining to negotiate
the government’s demand to replace the existing sick leave regime with a new short-term
disability plan.
The union, which represents nearly 29,000 employees at the Canada Revenue Agency,
recently made its case for keeping severance pay to a three-member Public Interest
Commission that was struck after the agency and union hit an impasse after two years of
trying to negotiate a new contract.
The government has negotiated deals with all other federal unions to surrender the
accumulation of severance pay, which public servants used to receive in lump-sum
payments when they voluntarily retired or resigned. It’s now paying public servants
millions to cash out what they accumulated before the Conservatives halted the perk.
The taxation employees’ union also argued for a three-year contract rather than the twoyear deal demanded by the government. A retroactive two-year deal would expire almost
immediately and throw the union into the contentious round of negotiations over sick
leave that the other unions are grappling with.
By law, the government cannot propose changes to sick leave for CRA employees until
this contract is settled. That’s why the government wants the two-year deal: its quick
expiry would allow the government to include CRA in negotiations for the same sick
leave proposal on offer to all other unions.
The proposal would reduce sick leave to five days a year — compared to the 15 days
public servants now get — and abolish the outstanding $5.2 billion worth of unused sick
leave that employees have banked over the years.
“I think it’s fair to say they want us in this round ASAP,” said taxation union head Robert
Campbell. “That means we would walk out of one round of negotiations … to walk into
another round of negotiations with demands for more concessions (on sick leave.) That
doesn’t make a lot of sense.”
Treasury Board Minister Tony Clement declined to comment because the two parties are
still negotiating.
The other big issue is wages, with the union demanding a three-per-cent-a-year increase
along with a one-per-cent economic adjustment effective the first day of the contract. The
government has countered with a two-year offer of 1.75 per cent in the first year and two
per cent in the second year — with the surrender of severance pay for voluntary
departures.
The Public Interest Commission must issue a report within 30 days of the hearings held
on Oct. 8 and 9. Its recommendations are not binding but are aimed at helping the parties
get back to table to negotiate. Even so, the union expects talks wouldn’t resume before
December or January.
The CRA is the largest agency in the federal government, employing about 40,000
people. The government has long said it wanted to roll out its new sick leave and
disability regime to all employees at the same time and, by 2016, not have employees on
different systems.
Because the union and CRA have been locked in negotiations for about two years, their
negotiations are still under older rules in place before the Conservatives made sweeping
changes last year to the Public Service Labour Relations Act. Those changes dramatically
reduced unions’ bargaining power and right to strike.
This means UTE still has the right to strike, which could have a significant impact on
processing tax returns if the dispute drags into 2015. It’s unclear what would happen to
the timing of the rollout of the new short-term disability plan if CRA, the largest agency
in government, is not part of current negotiations on revamping sick leave.
Treasury Board has insisted from the start of these talks that it wants a negotiated
settlement on sick leave with unions. It has the power, however, to legislate.
Campbell said the labour relations with the agency have been good over the years, with
the parties settling new contracts even before the old ones expired.
The tax agency has negotiated independently with its various unions since it was created
in 1999 as a quasi-independent agency, but Campbell said that changed when the
Conservatives passed legislation several years ago allowing Treasury Board to set the
negotiating mandate for all federal agencies and Crown corporations.
“We would love to sit down and negotiate a deal we can live with but it’s hard when
Treasury Board has a knife to your throat and says, ‘This is what you are going to get.’ I
don’t think anyone could say that is negotiations,” said Campbell.
--------------------------------------
Lecture casts shadow on Peninsula
MP's 'transparency' bill
Alex Browne - Peace Arch News, Surrey B.C., October 14, 2014
MP Russ Hiebert’s controversial private members’ bill calling for full public disclosure
of union financial affairs has come in for a detailed and scathing analysis from two
professors in the faculty of business administration at the University of Regina.
In a public lecture delivered on campus last Wednesday, Sean Tucker and Andrew
Stevens presented evidence they say shows the South Surrey-White Rock-Cloverdale
MP’s bill – while touted as wishing to promote greater transparency – seems to be part of
a less-than-transparent “anti-union policy agenda” on the part of the federal government.
In the presentation, Working in the Shadows for Transparency: Russ Hiebert,
LabourWatch, Nanos Research and the Making of Bill C-377, Tucker and Stevens argue
that Hiebert’s amendment to the Income Tax Act shows a clear relationship “between the
anti-union business lobby… and federal policy makers.”
And they charge that a flawed poll claiming 83 per cent public support for full disclosure
of union finances – and lax regulation in the polling industry itself – call into question the
practice of polling to promote public policy.
“We find that the actions of groups and individuals associated with creating,
disseminating and reviewing the influential 2011 Nanos Research-LabourWatch poll and
promoting C-377, show contempt for the principle of transparency,” Tucker and Stevens
write.
Hiebert, first elected in 2004, was not available for comment by Peace Arch News’ press
deadline on Friday. Last February, he announced he would not seek a fifth term.
After receiving a rough ride in the Senate last year, including flak from Conservative
senators who broke ranks with the government to claim the legislation is
“unconstitutional,” Hiebert’s bill was returned to the House of Commons this year – a
result of Prime Minister Stephen Harper’s prorogation (postponement) of Parliament
deliberations in September 2013.
It has since passed in the House and is currently at second reading before the Senate.
Tucker maintained Thursday his focus on C-377 has not been politically motivated. It has
been a “rabbit hole,” he said, that first opened when he was asked to contribute to a CBC
open-line radio program on the bill three years ago.
But Tucker said his examination of the 2011 Nanos poll, sponsored by LabourWatch,
found that some questions had been “primed” to produce responses, and that answers to
one question – which would have contradicted the poll findings – had been left out.
“I did bring this to Mr. Hiebert’s attention in 2011, but he never acknowledged my
letter,” he said.
This is not the first time the academics’ work has raised questions about the poll; their
research was cited last year by the Canadian Labour Congress in a complaint to the
Marketing Research and Intelligence Association. The complaint was subsequently
dismissed by an MRIA review panel that found the poll did not violate association
standards, though noting it had released “potentially biased information” on public
attitudes toward unions’ disclosure of financial affairs.
Tucker said changes to the poll report urged by the panel were not adopted by
LabourWatch.
In their lecture, Tucker and Stevens cited an opinion on the poll questions from UBC
professor Richard Johnson, Canada Research Chair in Public Opinion, Elections and
Representation.
"You're asking people to endorse openness," he told them. "Well who's against that?…I
suspect that if you asked exactly the same question about corporations, it may not be 83
per cent, but I bet you it would be pretty one-sided."
Tucker said he finds it particularly significant that the Nanos poll appeared just before
Hiebert presented the first version of his bill.
“It’s unclear why Mr. Hiebert should be the author of C-377,” he said, adding he finds it
“hard to believe” that the drafting of the bill was solely an initiative of the MP.
“Evidence suggests that C-377 is the product of two ideological anti-union organizations:
LabourWatch and Merit Canada,” he said.
“LabourWatch is an organization that polls Canadians on a regular basis, aiming at
putting labour unions in a bad light – it’s a shotgun approach in which they ask a whole
bunch of questions to build up a case, and that political pressure has to go somewhere.
“The question is, do we want public policy shaped by ideological lobby groups?”
He also questioned why Hiebert would refer to LabourWatch as a “non-partisan”
organization – in a news release on the poll quoted in a 2013 PAN article – when the
organization’s own website suggests otherwise.
Tucker pointed to an email from LabourWatch president John Mortimer to Labour
Minister Lisa Raitt on the eve of a 2012 vote on C-377 in the House of Commons.
“I am in Ottawa for this important day for the conservative movement and for Canadian
taxpayers,” Mortimer writes, in an email obtained in a freedom-of-information request.
------------------------------------------------------------------
Back to the future: assisted suicide and
the Charter of Rights
The Supreme Court should support the right to assisted suicide, argues
law professor Carissima Mathen
By Carissima Mathen, contribution to the Toronto Star, October 12, 2014
Abortion. Prostitution. Safe injection sites. For three decades, the Charter of Rights has
governed some of the most divisive issues in Canada. It is a touchstone, prompting us to
consider complex public policy questions informed by the values of individual liberty,
equality, concern for the vulnerable and respect for human dignity.
No Charter issue has aroused greater public interest than the 1993 case of Sue Rodriguez,
the woman who unsuccessfully challenged the Criminal Code provision that prohibits
assisted suicide. Rodriguez, who suffered from ALS, argued that the law condemned her
to an inhumane choice: either commit suicide while she was still physically able to do so
herself — but not yet ready — or suffer until death arrived on its own.
The Supreme Court of Canada agreed that the law deprived Rodriguez of the autonomy
and security of the person guaranteed to her by section 7 of the Charter. But a narrow
majority found that the law furthered a legitimate state goal: promoting the sanctity of
life. Against that abstract interest, the harm done to Sue Rodriguez was tolerable
collateral damage. The Court also dismissed the argument that, since attempted suicide is
not criminalized, the law discriminates against persons with disabilities who are unable to
exercise such a choice without the aid of others.
Now, a new group of plaintiffs led by the British Columbia Civil Liberties Association
have prepared a fresh challenge to the assisted suicide law. Buttressed by thousands of
pages of evidence, they had convinced a trial judge of their cause, but that decision was
overturned. Now, 21 years after it decided Rodriguez, the Supreme Court will once again
consider whether individuals have the right to make end of life decisions with the aid of
those willing to assist them.
One defence of the current law is it prevents persons from being killed against their
wishes. That fear, though, is not borne out by evidence from other countries, such as the
Netherlands. The trial judge had concluded that, as with other complex medical
decisions, proper training and oversight mechanisms can mitigate the risk. The concern,
essentially, is that people could be murdered, a crime which is well established in
Canadian law and entirely amenable to investigation, prosecution and punishment.
Another argument the Court will hear is that the gravely ill are inherently vulnerable and,
essentially, less capable of making an informed choice. This argument may be wellmeaning, but it grossly devalues the right of every person to decide how to respond to
extreme life challenges. The plaintiffs correctly reject the notion that, simply because of
their medical condition, they are unable to rationally choose when their suffering should
end.
The most difficult argument to assess is that decriminalizing assisted suicide sends a
dangerous message to society. Some disability rights organizations argue that permitting
someone to seek assisted suicide because of physical limitations is difficult to reconcile
with the daily experience of many persons with disabilities. All persons deserve respect,
and no life should ever be considered less worthy than another. But it does the plaintiffs a
disservice to describe them simply as seeking to avoid physical dependency and pain.
Rather, they seek recognition of their basic personhood through removal of the criminal
penalty which renders them entirely at the mercy of their condition.
The law has for centuries recognized that all competent persons have the right to refuse
medical treatment, even where death is the inevitable result and even where the choice is
informed by personal or religious beliefs that society would never willingly endorse. The
distinction between that choice and assisted suicide is arbitrary. Unless we are prepared
to say that no person can ever choose death, unless we are prepared to impose our own
moral dictates upon others at the most extreme moment of their lives, everyone deserves
the right to make that decision unconstrained by the spectre of criminal prosecution.
One former Supreme Court justice, who joined the majority decision in Rodriguez, has
described the case as the most difficult of his career. Some argue that the Supreme Court
should stay out of the issue altogether. That view is misguided. The Court is never more
necessary than when the law compromises the Charter’s essential promise: that everyone
may choose the path of their own life, even if we strongly disagree with it. That is the
essence of a free society. It would be a powerful step forward for the Court to endorse it.
Better late than never.
Carissima Mathen is a professor of constitutional and criminal law at the University of
Ottawa, and head of its Public Law Group.
-----------------------------------
Parliamentary delinquency on assisted
suicide
ROBERT LECKEY, Contribution to The Globe and Mail, October 16, 2014
Robert Leckey is director of the Paul-André Crépeau Centre for Private and
Comparative Law at McGill University.
On Wednesday, the Supreme Court of Canada heard arguments in a Charter challenge to
our ban on assisted suicide. Kay Carter and Gloria Taylor, the women afflicted with
degenerative diseases at the case’s origin, have ended their suffering. Some groups press
on in their names, while others defend the law. Whatever the outcome, the case testifies
that the House of Commons has ceased to be the place where Canadians debate what
matters most to them.
This wasn’t the Supreme Court’s first time considering the right to end one’s life or to
receive help in doing so. In 1993, a bare majority of five judges rejected Sue Rodriguez’s
claim and upheld the ban on assisted suicide. The only judge from that time still serving
is Beverley McLachlin. Then a young judge, she was one of the dissenters.
Court watchers expect Chief Justice McLachlin to rally a majority around her view of
autonomy and reverse the earlier decision. The case law under the Charter has evolved.
Public opinion around assisted suicide has shifted. Legislative innovation in other
jurisdictions offers examples of loosening the ban while establishing safeguards to
protect the vulnerable.
But is this the kind of decision best left to the courts? By any standard, it’s an
extraordinarily complex, delicate question.
Determining policy on assisted suicide involves our fundamental commitments to the
autonomy of the individual and the sanctity of life and entails interpreting those
commitments in a secular, multicultural society. It calls for weighing the right to
assistance ending one’s life against the risk of abusing that right and exploiting the
vulnerable. In our federation, it requires distinguishing the Parliament of Canada’s
exclusive power to define the criminal law from the provinces’ power to regulate health.
Judges elsewhere agree that this matter is primarily one for elected lawmakers. In June,
the Supreme Court of the United Kingdom declined to declare a ban on assisted suicide
incompatible with fundamental rights. The judges said that the proper next step was for
Parliament to examine the question in the light of human rights. If Parliament failed to do
so, the judges would hear further claims.
To be sure, our country’s deliberative bodies haven’t fully ignored the issue. In the mid1990s, a special Senate committee examined euthanasia and assisted suicide. In 2011, the
Royal Society of Canada’s Expert Panel on End-of-Life Decision Making issued a report.
Several times in the past 20 years, individual members of Parliament have tried to put the
question before the House of Commons for serious debate. In June, after extensive study,
consultation, and debate, the Quebec legislature passed its act respecting end-of-life care.
Polls show that more than 80 per cent of Canadians support assisted dying. Of course, we
don’t legislate by polls. Polling may oversimplify a multifactored question. Still, it’s fair
to say that on this issue, our representatives in the House of Commons are out of touch.
By doing so little, they have essentially delegated a critical question of social and legal
policy to the courts.
During Wednesday’s hearing, the federal government’s lawyers argued that assisted
suicide raises matters of policy that only Parliament can decide. But justices took a dim
view of the idea that interpreting fundamental Charter rights lay outside their remit.
They will give their answer, as they must. Case law confirms that they should not decline
to decide a Charter case simply because it raises political issues. Still, that doesn’t make
it right for our elected representatives to have allowed the matter to reach them.
-------------------------------------
Le droit de mourir, le goût de vivre
Yves Boisvert, chroniqueur à La Presse, le 14 octobre 2014
«Robert Corbeil? Il a quitté le CHSLD en 2004, monsieur, on ne sait pas où il est», m'a
dit la réceptionniste.
Cette fois, il devait être mort. Déjà, en 1992, deux ans après cet accident qui lui a cassé le
cou, il suppliait qu'on le laisse mourir de faim. Le centre est allé devant le juge, qui a
reconnu le droit du patient de ne pas être gavé.
En 2003, pourtant, donc 11 ans plus tard, à ma grande surprise, j'ai retrouvé Robert
Corbeil dans un CHSLD. Il avait obtenu le droit de mourir. Mais il avait décidé de vivre.
Depuis, 11 autres années se sont écoulées. Où était-il «parti», en quittant son CHSLD il y
a 10 ans?
J'ai pensé à lui et à cette rencontre de 2003, la semaine dernière, en lisant l'histoire de
Pierre Mayence. L'homme, devenu quadriplégique après un accident de parachute, a
obtenu la même autorisation de la Cour, l'été dernier, en s'appuyant précisément sur le
jugement Corbeil. M. Mayence est mort au bout de 61 jours de jeûne et de souffrance.
Après quelques coups de fil, j'ai retrouvé Robert Corbeil. Il est... très en vie. S'il a quitté
le CHSLD, c'est pour aller vivre chez lui. Ce menuisier qui était entrepreneur en
construction habite Sainte-Adèle, dans une maison que ses fils ont bâtie pour lui avec ses
frères.
Il vit avec sa blonde. Oui, il a une blonde. «Si on m'avait dit un jour que je serais en
amour avec un homme quadriplégique, j'aurais dit: ça va pas? Mais c'est arrivé», dit
Martine Allès. (Oui, puisque vous le demandez, ils ont une vie sexuelle aussi.)
Martine allait rendre visite chaque semaine à sa mère, qui était voisine de palier de
Robert au CHSLD. Ils se sont liés d'amitié. Elle lui allumait une cigarette. Ils jasaient. Sa
mère est morte en 1999. Elle a continué à aller voir Robert. Elle venait de divorcer, avait
deux jeunes enfants, n'est ni infirmière ni missionnaire, je veux dire que rien n'annonçait
qu'au mitan de la vie, elle choisirait cette vie de couple pas ordinaire du tout.
Déjà, en 2003, Robert m'avait dit qu'il avait une amie qui venait le chercher les weekends. Il avait obtenu une camionnette adaptée. Il ne peut pas conduire: seule sa tête
bouge. Son fauteuil roulant obéit aux mouvements de sa tête qui touche des capteurs.
Grâce à cette camionnette, un ami pouvait venir le chercher pour aller au cinéma. Et
Martine venait le chercher et l'emmenait chez elle tous les vendredis. Il pouvait ouvrir
une fenêtre et respirer un autre air.
Le dimanche, il retournait au CHSLD comme un détenu retourne en prison après une
permission.
«Un jour, on va vivre ensemble», m'avait-il dit. On peut rêver, Robert, mais franchement,
comment serait-ce possible? Il a besoin de quelqu'un pour le lever, le laver, le faire
manger, enfin bref, qui peut assumer autant de soins permanents? Martine pouvait...
«Les gens me disaient: vous ne durerez pas six mois, tu vas t'épuiser... Mais on a une aide
de quatre heures chaque matin payée par le CLSC. Si les gens avaient de l'aide, il y en a
beaucoup qui feraient comme nous», dit-elle.
Un pensionnaire de CHSLD coûte de 50 000 à 70 000$ par année. Contre environ 12
000$ pour l'aide à temps partiel à domicile.
***
Pendant les six mois qui ont suivi son jugement, en 1992, Robert jeûnait plus ou moins. Il
se laissait mourir... mais pas tout à fait. Il n'y a pas eu de grande illumination.
Simplement des petites choses, des gens qui l'ont raccroché à la vie.
«Je ne le connais pas, ce gars [Pierre Mayence], et il a dû souffrir, mais je suis content
pour lui et de la société qui lui a laissé le droit de le faire. Content qu'on m'ait laissé
choisir en 1992 sans m'écoeurer. Nous, on est pognés avec ce handicap, qu'au moins on
nous laisse tranquilles.
«Si on décide de mourir, qu'on nous foute la paix. Et si on décide de vivre, qu'on nous
aide.»
D'un côté, le système pousse au désespoir dans cet enfermement, mais de l'autre, il laisse
mourir le désespéré sans abréger ses souffrances.
«Ils l'ont poussé à faire ça, s'il avait pu vivre ailleurs que dans une prison où on décide à
quelle heure tu te couches et ce que tu manges, il ne l'aurait peut-être pas fait. Mais même
une fois qu'il a décidé de mourir, on refuse de l'aider.»
***
Robert avait deux enfants de 10 et 11 ans en 1992; est-ce que ça l'a retenu?
«J'ai pensé à mes enfants, mais je me disais qu'ils auraient plus de peine de continuer à
me voir emprisonné que de me savoir mort. Je voulais pas leur faire subir ça. Ils ont 8, 9
ans, ils te voient dans ta chaise, y a pas de jouets, tu peux pas les prendre, les caresser,
aller chercher une crème glacée... Papa, qu'est-ce que t'as fait hier? Comme avant-hier.
Comme avant-avant-hier...»
Il repense à «l'accident» souvent. À ce quatre-roues sur lequel ses enfants
l'accompagnaient. Une balade toute simple. Un trou. Le véhicule bascule. Il se précipite
pour protéger ses fils. Il prend le poids sur la colonne. «Pourquoi? Y a tant de gens qui
font les fous et à qui il n'arrive rien...»
La nuit, il refait souvent le même rêve. Il est avec ses enfants. Ils ont toujours 8 et 9 ans.
Ils sont à la pêche. En camping. Ils bricolent. Sa vie d'avant, quoi.
«Dans mes rêves, j'ai toujours mes jambes... Tu viens la larme à l'oeil en te réveillant...
Avec mes journées, y en a pas beaucoup qui prendraient ma place.
«Mais maintenant, c'est moi qui décide ce que je fais, qui je rencontre, à quelle heure, ce
que je mange. Toutes les choses banales de la vie.»
***
C'est sûr, quand il voit un chantier de construction sur la route ou des gars en train de
refaire une toiture, il tourne la tête, il a un pincement.
Il y a eu le chantier de sa maison. Ses fils sont menuisiers comme lui. C'est une fierté
d'habiter dans «leur» maison, même si c'est une peine de ne pas l'avoir faite avec eux.
Il a montré aux enfants de Martine à peinturer, le pinceau de haut en bas, de droite à
gauche, attention, reprends ici, prends ton temps... Il leur a dit quoi planter sur le terrain.
Le pin qui lui allait au coude 10 ans plus tard est haut comme la maison. Il y a un mélèze.
Une clôture en perche, faite selon ses instructions...
Avec une paille dans laquelle il aspire pour «cliquer», et un réflecteur sur la monture de
ses lunettes, il peut utiliser son ordinateur, lire, écrire au monde...
À 59 ans, le voici grand-père. Il aide d'autres handicapés à obtenir de l'aide. Il faut se
battre pour chaque équipement - des portes automatiques au lit au collecteur d'urine, etc.
Il fait partie d'un comité «Planetree» qui tente d'humaniser les soins hospitaliers.
Notamment la nourriture. «Où j'étais, ils servaient des toasts réchauffées faites la veille!»
Il n'y a que sa tête qui bouge, mais elle en fait bouger d'autres.
Hier, quand je l'ai appelé, il partait pour aller voir les couleurs.
«Quand tu veux mourir, c'est pour arrêter la douleur. Mais quand on a de l'aide, on
reprend goût à la vie.»
----------------------------
The Supreme Court confronts
assisted suicide, again
Why is the court taking a second look? And where’s Parliament?
Emmett Macfarlane, MacLean’s, October 14, 2014
The Supreme Court will hear a new Charter of Rights challenge to the prohibition against
assisted suicide on Wednesday, roughly 21 years after its justices upheld the law in a
similar case by a narrow 5-4 vote.
The new case raises a number of interesting issues in addition to the central question of
assisted suicide: Can/should the Court effectively overrule itself? Or, more specifically, if
the Court determined in 1993 that a ban on physician-assisted suicide was a “reasonable
limitation” of Charter rights, why is it deciding the issue again? And should the Court
even be the institution to have the final say about such a values-laden, morality-based
question?
Why is the Court considering assisted suicide again?
A number of important developments explain why the Court can easily distinguish this
new case from the one in 1993. First, a wealth of comparative evidence from countries
with regulated, legalized assisted suicide now exists and it answers a lot of questions that
worried the Court two decades ago. Many of the arguments against ending the ban rely
on slippery-slope reasoning, suggesting that permitting physician-assisted dying will
invariably lead to the involuntary euthanasia of the ill by their families or of those lacking
the mental capacity to consent. The Court’s majority at that time expressed concern about
the “uncertainty” of lifting the ban, suggested Canada would be unique among Western
countries if it did so, and asserted there were not adequate safeguards to prevent abuse.
It will be much more difficult to make the same assertions today. After a very thorough
examination of expert-witness testimony and studies in other jurisdictions, including the
Netherlands, Oregon and Belgium, the British Columbia trial court judge found that
while existing safeguards are unlikely to be 100 per cent effective, there is little evidence
to support the contention that vulnerable persons have been placed at risk where assisted
suicide has been legalized. It’s important to note that the Supreme Court normally gives
significant deference to such findings of fact at the trial level.
Second, the Court’s approach to Section 7 of the Charter—the right to life, liberty and
security of the person—has evolved considerably since 1993. The Court has recognized
and articulated new “principles of fundamental justice” against which violations of
Section 7 are judged, specifically, laws that are overly broad or that create harms that are
grossly disproportionate to the objectives of the law. The Court has applied these
principles in numerous decisions, including those striking down Criminal Code
provisions on prostitution last year, and overturning the federal minister of health’s
attempt to shut down Vancouver’s supervised drug-injection facility in 2011. On
Wednesday, the Court will deal for the first time with arguments invoking these
principles as they relate to the assisted-suicide ban.
The hearing will also involve novel arguments that the Court did not consider in 1993.
One of these pertains specifically to the right to life: the argument that the current law
risks shortening the lives of terminally ill patients, because some may choose to end their
lives earlier than they otherwise would, knowing they will be unable to obtain assistance
to do so later when they are unable to do it themselves.
In short, the Court has accepted leave to hear this case on the basis of a new evidentiary
record, major developments in its approach to the Charter since 1993, and new legal
arguments. Further, the Court is no stranger to overturning its own decisions. One notable
example is a 2007 decision recognizing that collective bargaining is protected under
freedom of association, overturning its own 1987 decision where a majority of justices
held the opposite view.
It is also worth noting that Chief Justice Beverley McLachlin, the only judge there in
1993 who is still on the Court, was in the minority at the time.
Is the Supreme Court the right place to settle this question?
While there are a lot of reasons to think the Supreme Court will strike down the ban on
assisted suicide, another question is whether it should. Grant Huscroft, a professor of law
at Western University, has argued the Court should leave the issue to Parliament.
Assisted suicide involves questions of medical ethics, health policy-making and its
associated uncertainty, personal morals and societal values. There are good reasons to
prefer that a representative body such as Parliament have the final say on such questions.
Indeed, in interviews conducted for my book, Governing from the Bench, many of the
justices who took part in the 1993 case essentially agreed with Huscroft. In addition to
uniformly describing the case as one of the most difficult they faced (a couple describing
personal anguish on their part), one of the justices, interviewed anonymously, stated, “I
believe you’re stressing the limits of the judicial function in that case to, in effect, say
that a prohibition against assisted suicide was unconstitutional . . . Is this just a legal
question? What’s the input coming [from] philosophers, medical science, care-givers,
social workers?” As I further note in the book, former Justice Claire L’Heureux-Dubé,
who was part of the minority voting to strike down the law in 1993, has publicly stated
she was relieved that the majority won and the matter was left to Parliament.
And yet, Parliament, whether under the control of Liberal or Conservative governments,
has been unwilling to properly engage the issue, even in spite of public opinion that
overwhelmingly opposes an absolute ban. This is not to suggest that public opinion
should be the primary factor in making such decisions, but if Parliament will not act to
protect and promote rights, at what point should the Court step in?
As Huscroft correctly points out, the Charter is comprised of vaguely worded, ambiguous
provisions over which reasonable people can reasonably be expected to disagree. And
yet, it is difficult to conceive of an issue more central to “life, liberty and security of the
person” than the capacity to exercise one’s own bodily autonomy free of government
interference, including government interference in the guise of imposing criminal
sanctions on those who might aid someone who has made the choice to end her own
suffering.
When the government violates rights, it has an opportunity to advance an argument about
why its actions are reasonable. On Wednesday, the government will have to justify why it
effectively compels terminally ill individuals to die deaths in which the suffering exceeds
the threshold at which they find life worth living, and it will need to do better than
slippery-slope arguments disproven by the comparative evidence or invoking red herrings
such as involuntary euthanasia, which can and should remain illegal.
We should be extremely cautious about the constant appeal to the judiciary to solve our
most pressing and controversial social and political problems. The Court’s role is
particularly troubling in contexts where the justices are expected to balance competing
rights, or to delve into complex policy matters, such as those relating to the design of the
health care system or determining the distribution of scarce resources. In such cases, even
when the Court reaches a decision whose policy outcome we might agree with, we should
perhaps not be quite as comfortable as we are with the prospect of judges—whose
expertise lies in the law and not public policy—making the decision.
But the exercise of judicial power becomes more palatable in cases where the state
imposes significant harm on people, where the rights issues at stake strike at the core of
the Charter’s values, where an obstinate Parliament refuses to deal with an issue (let
alone have a full-fledged debate about it), and where the state acts not to balance different
rights among different groups of people but instead acts, in former Chief Justice Brian
Dickson’s words, as “the singular antagonist of the individual.”
Emmett Macfarlane (@EmmMacfarlane) is an assistant professor of political science at
the University of Waterloo. His book, Governing from the Bench: The Supreme Court of
Canada and the Judicial Role, is published by UBC Press.
---------------------------
Les fonctionnaires se font dire non plus
souvent
Paul Gaboury, Le Droit, le 15 octobre
Les fonctionnaires fédéraux rencontrent de plus en plus d'obstacles lorsqu'ils font des
demandes de prestations d'invalidité liées à la santé mentale et se butent souvent à de
nombreuses tracasseries administratives lorsqu'ils souhaitent retourner au travail.
Cette situation serait liée à une stratégie pour améliorer «comme par magie» les
statistiques gouvernementales sur les congés de maladie et permettre au président du
Conseil du Trésor, Tony Clement, de prétendre qu'il a réglé le problème en prévision des
élections fédérales l'année prochaine, dénonce l'Institut professionnel de la fonction
publique du Canada.
Au cours des derniers mois, l'Institut soutient avoir été «inondé» d'appels de membres
dont la demande de prestations a été rejetée par la compagnie d'assurance qui administre
le régime d'invalidité pour l'ensemble des 220000 participants employés de la fonction
publique fédérale. La même situation aurait été constatée par les autres syndicats du
secteur public fédéral, soutient Shannon Bittman, vice-présidente de l'Institut
professionnel qui compte 55000 membres.
«Ces derniers mois, l'Institut et d'autres agents négociateurs de la fonction publique ont
été inondés d'appels de membres dont la demande de prestations a été rejetée par la Sun
Life, qui exige une quantité considérable de renseignements avant de réexaminer leur
demande. Pourtant, dans de nombreux cas, les demandeurs avaient déjà envoyé plusieurs
notes de médecin indiquant explicitement qu'ils avaient besoin de prendre un congé de
maladie en raison d'un trouble de santé mentale», explique Mme Bittman.
Dans son rapport annuel de 2013, le Conseil de gestion du régime d'assurance invalidité
révélait que près de 45% des demandes d'invalidité présentées étaient liées à des
problèmes de santé mentale, en baisse par rapport à 2012, alors que ces cas représentaient
47%. On y constate que le nombre de refus pour des prestations a plus que doublé au
cours des trois dernières années. Le nombre de demandes rejetées est passé de 426 (sur
3790 demandes reçues en 2011) à plus de 1084 (sur 3777 demandes) en 2013.
Mesures d'adaptation
Par ailleurs, l'Institut professionnel soutient que les fonctionnaires qui ont eu droit à des
prestations lors d'un congé attribuable à des troubles de santé mentale doivent faire face
«à de nombreuses tracasseries administratives» lorsqu'ils désirent retourner au travail. De
plus, de nombreux employeurs fédéraux négligent d'offrir des mesures d'adaptation
spéciales dont pourraient avoir besoin les employés qui retournent au travail.
Dans ces cas, souligne la vice-présidente Bittman, les employés ne sont plus protégés par
leur régime d'invalidité, et se trouvent en congé sans solde même s'ils souhaitent
reprendre leur travail.
-----------------------------------
Le musellement des scientifiques est
«pire que jamais»
Paul Gaboury, Le Droit, le 15 octobre 2014
Le musellement des scientifiques est largement répandu dans l'appareil fédéral, alors que
le gouvernement Harper les empêche de parler librement de leurs recherches et
découvertes, révèle une nouvelle étude sur leurs communications avec les médias.
L'exercice réalisé par l'Université Simon Fraser de Colombie-Britannique et le groupe
Evidence for Democracy a évalué la performance de ministères et organismes fédéraux à
partir de divers critères, dont l'accessibilité, la transparence, les politiques contre
l'ingérence politique, le droit à la libre expression, la résolution de conflits et la protection
des divulgateurs.
La majorité des ministères obtiennent des notes de F ou C, les ministères à vocation
scientifique obtenant une note moyenne de C-. Les institutions qui ont obtenu la note de F
sont l'Agence spatiale canadienne, Travaux publics et services gouvernementaux Canada,
Industrie Canada et Ressources naturelles Canada. Dans le milieu du peloton de ce
palmarès, on retrouve notamment le Conseil national de recherche (C+), Pêches et
Océans (C), ainsi que Santé Canada et l'Agence de santé publique du Canada (C-). Le
ministère de la Défense nationale obtient la meilleure note des 16 ministères évalués, soit
un B.
Le Nouveau Parti démocratique estime que l'«ingérence» du gouvernement Harper est
maintenant «pire que jamais» au sein des institutions fédérales. Les néo-démocrates ont
d'ailleurs déposé une motion pour mettre fin à cette tendance du gouvernement à vouloir
contrôler tout message. «L'ingérence politique dans la diffusion des travaux scientifiques
mine la recherche et la démocratie», a affirmé le porte-parole du NPD en matière de
science et technologie, Kennedy Stewart.
--------------------------------
Jobs end for almost 1,000 public service
pay advisers
KATHRYN MAY, Ottawa Citizen, October 16, 2014
Nearly 1,000 compensation advisers who manage the payroll of thousands of public
servants across Canada have received long-anticipated notices that their jobs will
disappear as their work is consolidated at a new $300-million pay centre in Miramichi,
N.B.
The 2,000 pay or compensation advisers who worked in 110 departments across the
country have been braced for the final round of “affected notices” – which were issued
last week – since Prime Minister Stephen Harper announced in 2010 that the new
centralized self-service pay system would move to Miramichi. The announcement was a
political tradeoff for the government’s plan to shut down the long-gun registry based
there.
The 989 pay advisers who received notices work in 22 departments that are part of the
last two waves of pay accounts being transferred to Miramichi over the next 14 months.
The National Capital Region was the hardest hit, with 362 advisers here receiving
notices.
The Public Service Alliance of Canada said employees who received affected notices can
still opt to move to Miramichi but most will be looking for new jobs in the public service
or an “alternation” process which would allow them to trade positions with other public
servants who may be willing to give up their jobs.
“The government’s political decision to locate the pay centre in Miramichi has deeply
impacted our members and is making the job of finding alternate employment a lot harder
than it would otherwise be,” said PSAC vice-president Chris Aylward.
“We are working to ensure that as many of our members as possible remain employed in
the public service. “
Public Works and Government Services is the government’s paymaster and has been
gradually moving pay services from 57 departments and agencies to the new Miramichi
pay centre since 2012. The centre will employ about 550 employees when fully
operational in 2015. So far, fewer than 100 compensation advisers have pulled up stakes
to move to Miramichi.
The consolidation of pay services is expected to provide better service, save $78 million a
year and resolve the high turnover and attrition rates of compensation advisers that often
caused delays in getting out payments.
The government’s plans to modernize its 40-year-old pay system was divided into two
major projects. The first was to consolidate all pay services in Miramichi and transfer pay
accounts. The transfer of 184,000 accounts should be completed by December 2015,
giving affected employees time to find new jobs in the public service.
The next project is to roll out a new IT system that is expected to transform and
streamline how cheques are processed and people are paid. The government bought a
new off-the-shelf system – known as Phoenix – that will be installed in departments that
use PeopleSoft software to manage human resources.
The government has the largest payroll in the country. The pay system handles about nine
billion transactions – worth about $17 billion a year – for 300,000 employees in 110
departments. The old system was also bogged down by so many complicated pay rules
that public servants complained they waited months, even years, for raises or overtime
payments and sometimes for regular pay.
The Conservative government often singles out the modernization of its pay system, as
well as a similar project in Shediac N.B. to overhaul pensions, as evidence of its drive to
make the public services cheaper, better and more efficient. Harper even gave the Public
Works senior bureaucrat who led the two overhauls – “on time and on budget” – the
government’s top award.
“Affected” notices sent to compensation advisers across Canada







Territories and North: 9
British Columbia: 57
Prairies: 189
Ontario (outside national capital): 110
National Capital Region: 362
Quebec: 154 (outside national capital)
Atlantic: 112
– Source: Public Service Alliance of Canada
-----------------------------------
Cartel de l'essence: oui à l'écoute
électronique, dit la Cour suprême
La Presse Canadienne, La Presse, le 17 octobre 2014
Les avocats du recours collectif intenté contre les pétrolières et les détaillants auront
accès à des centaines de milliers d'enregistrements de conversations privées.
La Cour suprême du Canada, dans un jugement à six contre un, publié vendredi matin,
permet à la poursuite civile d'utiliser les enregistrements d'écoute électronique faits dans
le cadre d'une enquête du Bureau de la concurrence du Canada.
Cette enquête, baptisée «Octane», sur les allégations de complot en vue de fixer les prix
de l'essence à la pompe s'est déroulée en 2004. Elle a intercepté 220 000 communications
privées.
Ces enregistrements ont servi dans des procédures pénales.
L'Association pour la protection automobile (APA), Simon Jacques et Marcel Lafontaine
réclamaient de les utiliser dans la préparation de leur recours collectif, recours autorisé en
2009.
Le président de l'APA, Georges Iny, se félicite de ce pas en avant même s'il estime que
son affaire est loin de se régler et qu'il en a encore pour plusieurs années devant les
tribunaux.
«Le plus souvent, dans les pratiques de cartel par les grandes entreprises, la preuve
essentielle est obtenue par le biais des écoutes électroniques», de l'avis de M. Iny. «Alors
cette cause-là a une influence (...) sur toute cause future canadienne où (l'écoute)
électronique aurait servi pour assembler des preuves contre les parties», a-t-il déclaré au
cours d'une entrevue téléphonique.
Les intimés dans la poursuite civile, dont la Pétrolière Impériale et Alimentation CoucheTard, avaient cherché à empêcher l'utilisation de ces enregistrements dans le recours
collectif, prétextant que ce qui est amassé par une enquête criminelle ne peut servir dans
une procédure civile.
La Cour suprême a plutôt donné raison à M. Jacques et ses compagnons. «Il n'existe
aucun obstacle factuel ou légal à la communication de documents», peut-on lire dans le
résumé du jugement.
Toutefois, les juges de la Cour suprême ont tenu à rappeler que le juge de première
instance devra tenir compte du droit à la vie privée en ordonnant la divulgation de ces
conversations.
-------------------------------------
Courts hindering CSIS's ability to track
terror suspects, agency says
COLIN FREEZE, The Globe and Mail, October 16, 2014
Canada’s spy service says judicial rulings are causing it to lose track of terrorism suspects
and new surveillance powers are urgently needed.
On Thursday, Public Safety Minister Steven Blaney announced that the federal
government will amend the Canadian Security Intelligence Service Act to restore
surveillance powers to the agency and broaden its ability to share information with allies.
The proposed amendments would be the first substantial legislative changes since
Parliament created the spy agency in 1984.
The changes are aimed at addressing the tensions that have grown as the security force,
formed as a domestic-intelligence agency, adjusts to the borderless threat of home-grown
terrorist-suspects who travel abroad to fight with extremists and return to Canada.
Part of the problem, officials say, is that judges have constrained the agency’s powers in
the name of preserving civil liberties.
“Courts in Canada had some findings recently … that forced us to reconsider the way we
undertook some of our operations,” Andy Ellis, CSIS’s assistant director of operations,
said in a news conference with Mr. Blaney in Banff, Alta.
He said a ruling last year caused CSIS to stop using a method of intercepting some
Canadian suspects’ telecommunications while they are abroad and that, as a result, the
spy service has lost track of an untold number of terrorism suspects from Canada.
“We had a black hole,” Mr. Ellis said. “We were unable to track where these people
were, where they were moving, how they were moving …”
This started happening around the time Islamic State terrorists began gaining ground in
Syria and Iraq and urging extremists across the West to join them. Since then, a Canadian
has starred posthumously in an IS video. Another is said to have perpetrated an IS suicide
bombing in Iraq that killed more than 40 people.
“Events in recent months in Iraq and Syria show us we cannot be complacent,” Mr.
Blaney said.
Last week, a CSIS official told Parliament that about 130 people from Canada are
suspected to have joined extremist causes abroad, and about 80 have returned home –
although, he added, no one knows the precise numbers.
The text of the legislative amendments has not been released, but Mr. Blaney said they
are less an overhaul of the CSIS Act than a clarification. The proposals would prevent
judges and lawyers from learning the identities of informants in cases that come before
the courts, and enhance CSIS’s ability to exchange information with the intelligencesharing alliance known as The Five Eyes (Canada, the United States, the United
Kingdom, Australia, and New Zealand).
Observers say amendments will have to be carefully crafted given that Parliament’s
authority goes only as far as the borders. Most countries pass laws to cover their domestic
spy agencies, but few related to foreign-focused espionage.
Yet the explosion of Internet and spying technologies now allows intelligence operatives
in Ottawa to monitor international communications, a practice that blurs the lines
between foreign and domestic surveillance.
Just as police need warrants to conduct searches, CSIS must get permission from judges
to spy on people in Canada. In 2009, Federal Judge Richard Mosley granted the first
warrant for the agency to track Canadian terrorism suspects abroad.
In applying for the warrant, CSIS lawyers said the traditional surveillance-in-Canada
warrant could be augmented to allow the agency to tap into the powers of Canada’s
foreign-intelligence eavesdropping service.
Dozens of similar warrants followed. Judge Mosley reversed his original ruling late last
year, saying he had new information that led him to conclude CSIS had breached its
“duty of candour” to his court, and potentially put Canadian suspects in harm’s way.
He did not go into details, but ruled CSIS consciously omitted to tell judges that it was
also seeking the help of the Five Eyes in tracking down Canadian terrorism suspects. The
judge said his court never authorized this, and the United States, the U.K. or the other
partners could “act independently on CSIS-originated information,” and this would
increase “the risk of detention or other harm to a Canadian person.”
--------------------------------
Judge refuses to delay hearing set
during lawyer’s maternity leave, then
scolds her for bringing baby to court
Kate Brumback, Associated Press, National Post, October 17, 2014
An immigration judge in Atlanta denied an attorney’s request to delay a hearing that fell
during her six-week maternity leave and then scolded her in front of a packed courtroom
when she showed up with her 4-week-old strapped to her chest and the infant began to
cry, the attorney said.
When Stacy Ehrisman-Mickle took on two young brothers as clients in early September,
she immediately filed a request to postpone their next hearing, which was set for a month
later, she said. In an order denying her request, Immigration Judge J. Dan Pelletier Sr.
wrote, “No good cause. Hearing date set prior to counsel accepting representation.”
Reached by phone Thursday, Pelletier said immigration judges can’t make public
comment and referred questions to the public affairs office of the Executive Office for
Immigration Review, the branch of the Department of Justice that oversees immigration
courts. That office said in an email it couldn’t comment on the judge’s action and that a
complaint had been filed and was being processed.
Ehrisman-Mickle’s clients came to her in early July for a consultation, but they couldn’t
afford to hire her right away, she said. They went to their first immigration court hearing
on Sept. 2 without a lawyer and then came to Ehrisman-Mickle’s office with their mother
four days later, on a Saturday, to hire her.
Ehrisman-Mickle told them she would take their case but that their next hearing on Oct. 7
fell during her maternity leave. She told them she’d have to file a motion to delay the
hearing but that it shouldn’t be a problem because two other immigration judges had
already granted similar motions based on letters from her doctor, she said.
She filed the motion Sept. 8 and it was received by the court the following day, she said.
Pelletier ruled on the motion Oct. 2 and Ehrisman-Mickle’s office received the decision
the following day, the Friday before the Tuesday hearing, she said.
At home in bed, Ehrisman-Mickle was shocked when her secretary called to tell her the
motion had been denied. Her truck driver husband was out of state, her 4-week-old
daughter was too young for day care and she has no family in the area, she said.
“I was in a state of panic. I didn’t know what to do with my baby,” she told The
Associated Press on Thursday.
She called her daughter’s pediatrician to ask if it would be safe to bring the baby with her
to court. The doctor told her it would be OK as long as she kept the infant in a carrier on
her chest facing her body and didn’t let anyone touch the baby.
Another lawyer who was present in the courtroom confirmed the details of EhrismanMickle’s story. He asked that his name not be used because he doesn’t want the judge to
retaliate against his clients.
Pelletier finally agreed to delay the hearing until after Ehrisman-Mickle is cleared by her
doctor to return to work, she said.
Ehrisman-Mickle said she filed a formal complaint against Pelletier the same day as the
hearing. An investigating judge called to get her side of the story after the complaint was
filed but she hasn’t heard anything further, she said.
Georgia State University College of Law associate professor Tanya Washington said it
was reasonable of Ehrisman-Mickle to believe the judge would delay the hearing to
accommodate her maternity leave. Furthermore, Ehrisman-Mickle demonstrated a real
commitment to her clients by showing up with her baby, Washington said.
“I think the judge yelling at her for being unprofessional by appearing with her child is
unreasonable, insensitive and unprofessional,” Washington said.
-----------------------------------
Offensive du fisc contre les «citoyens
souverains»
Vincent Larouche, La Presse, le 17 octobre 2014
Le fisc fédéral et la Sûreté du Québec ont frappé hier les adeptes québécois d'une
idéologie extrémiste antigouvernement, qui fait de plus en plus d'adeptes au Canada et
qui aurait incité ceux-ci à se lancer dans la fraude systématique des institutions
commerciales ou gouvernementales.
Selon ce qu'a appris La Presse, les neuf perquisitions menées hier par l'Agence du revenu
du Canada (ARC) font partie du projet national Éléphant, une offensive lancée d'un océan
à l'autre contre ceux qui s'autoproclament freemen on the land ou sovereign citizens
(citoyens souverains).
Ce mouvement vaguement ésotérique, déjà bien connu des autorités de plusieurs
communautés anglophones nord-américaines, rejette vigoureusement les services publics,
la loi, l'État, qu'ils assimilent à une vaste conspiration dont ils pourraient s'extraire grâce à
leurs prétendues connaissances juridiques et constitutionnelles. Des adeptes cessent de
payer leurs factures, roulent en voiture sans plaque d'immatriculation et résistent
vigoureusement aux autorités policières et fiscales.
«Ce n'est pas un groupe organisé en tant que tel, tout le monde peut décider de s'en
réclamer. Mais on en voit de plus en plus au Québec, on voit des plaques
d'immatriculation qu'ils se fabriquent», confirme une source policière.
Le succès des «citoyens souverains» vient notamment du fait que plusieurs personnes
jurent dur comme fer qu'elles ont réussi à obtenir une «immunité» face au gouvernement
en utilisant d'obscures formules judiciaires enseignées aux initiés. Cette légende urbaine
circule toujours, même si l'ARC a obtenu 35 condamnations, de lourdes amendes et des
peines de prison contre ceux qui s'y sont essayé depuis 2007.
Deux dirigeants, 18 «leaders»
Le groupe visé par la SQ et l'ARC hier avait récupéré cette philosophie pour monter une
organisation structurée dont les têtes dirigeantes, Pierre Cardin, 59 ans, de Terrebonne, et
Jean-Marc Paquin, 44 ans, de Laval, ont été arrêtées. Les deux hommes sont demeurés
détenus en attendant leur comparution aujourd'hui pour fraude à l'endroit d'environ 25
victimes qui auraient payé des milliers de dollars chacune pour obtenir leurs
enseignements et leurs services.
L'ARC n'a encore accusé personne de fraude fiscale dans cette affaire, mais selon des
documents judiciaires rédigés au soutien de ses perquisitions, Cardin et Paquin avaient
créé l'organisation Les créditeurs, qui organisait la fraude fiscale à grande échelle. À
travers le Québec, ils avaient formé 18 «leaders» qui recrutaient des adhérents pour eux.
Ils auraient aidé à frauder l'État pour plus de 10 millions.
Les créditeurs auraient incité leurs adeptes à se créer des numéros d'entreprises pour faire
passer leurs dépenses personnelles comme des dépenses d'entreprises et demander des
remboursements d'impôts frauduleux.
Ils leur auraient aussi enseigné comment se créer un compte aux États-Unis dans l'espoir
de réaliser une fraude similaire.
Toujours selon l'ARC, Paquin et Cardin justifiaient leurs actes par une histoire nébuleuse
selon laquelle le Canada aurait fait faillite en 1933 et serait maintenant une entreprise
appartenant aux États-Unis, qui auraient créé une «entité» économique pour chaque
individu né sur leur territoire.
Les enquêteurs croient qu'à eux seuls, Cardin et Paquin auraient propagé leur stratagème
auprès d'une bonne centaine de personnes, lors de conférences payantes dans des hôtels
d'Ottawa, Toronto, Laval et Québec.
Ils offraient aussi de produire les déclarations d'impôt de leurs adeptes pour un montant
oscillant entre 1000 et 3200$. Leur comptable a avoué qu'elle pouvait en produire 10 par
heure. Elle dit avoir aussi constaté un malaise chez les adhérents, car cette simple fraude
fiscale à l'aide de fausses entreprises ne correspondait pas à ce qui avait été proposé lors
des conférences.
L'ARC prétend finalement que Paquin et Cardin auraient ainsi amassé beaucoup d'argent
qui n'a pas été déclaré au fisc. Par le passé, ils ont retourné à l'expéditeur les
correspondances reçues du fédéral, en inscrivant sur les documents: «Refusé pour fraude
et tentative d'extorsion». Ils auraient prétendument fait envoyer des lettres recommandées
à des ministres, en signe de protestation.
«L'ARC trouve très préoccupant de voir que des contribuables continuent de participer au
mouvement de contestation de l'impôt, qui affirme à tort que l'on peut refuser de produire
sa déclaration de revenus et de prestations et de payer des impôts», a précisé l'organisme
dans un communiqué hier.
Du côté de la Sûreté du Québec, c'est le Service des enquêtes sur la menace extrémiste
qui a déclenché une enquête parallèle à celle de l'ARC, sur la fraude à l'endroit des gens
qui participaient aux conférences.
Les patrouilleurs de la SQ ont été sensibilisés depuis quelques années à la possibilité que
des «citoyens souverains» résistent violemment lors d'interventions policières, comme ce
fut le cas aux États-Unis. L'an dernier, La Presse révélait aussi que le juge en chef de la
Cour supérieure, François Rolland, avait demandé à la police d'enquêter sur ce
mouvement, après que des adeptes eurent tenté à dix reprises d'inscrire une hypothèque
mobilière sur les biens de juges québécois.
Vendre du rêve
Francesco Ruscito, un Montréalais identifié dans les actes d'accusation comme l'une des
victimes de la fraude de Cardin et Paquin, a expliqué à La Presse qu'il était tombé dans le
piège parce qu'il avait du mal à joindre les deux bouts et que les deux beaux parleurs
semblaient avoir trouvé une solution magique à ses problèmes financiers.
«C'est comme s'ils étaient en train de vendre... un rêve. Quand tu es pogné, qu'il ne te
reste plus rien, tu veux essayer d'autres choses», explique-t-il timidement.
«Tout le monde cherche une façon d'alléger les paiements qu'on fait au gouvernement.
Les riches ont un certain système que personne ne connaît, comme les paradis fiscaux et
tout ça. Seulement quelqu'un qui cherche beaucoup va trouver les façons de faire. Eux
disaient avoir trouvé la méthode. On prenait des cours qui expliquaient ces choses. Je
voulais comprendre ce que c'était exactement. Mais ça ne marchait pas pantoute! Des
gens ont perdu leur maison, d'autres ont perdu un tas de choses», dit-il.
-------------------------------------
No deal on legal aid funding at federalprovincial justice ministers meeting in
Banff
By Bill Graveland, The Canadian Press, Global News, October 17, 2014
BANFF, Alta. – Federal, provincial and territorial justice ministers were unable to reach a
deal in meetings this week on increased funding from Ottawa for legal aid.
The issue was at the top of the agenda at a two-day meeting in Banff, Alta., that wrapped
up Friday.
Ottawa used to split the cost of the program 50-50, but now only chips in about 16 per
cent. Since 2003, there has been no new federal funding to the program, leaving it to
provinces to make up the difference.
“Legal aid remains a key concern in Alberta as well as other jurisdictions. We took this
opportunity to explore again how legal aid, a joint federal-provincial program, can be
funded appropriately through cost-sharing with our federal counterpart,” said Alberta
Justice Minister Jonathan Denis, who shared the podium with federal Justice Minister
Peter MacKay.
“Although I’m disappointed we could not reach a funding arrangement with the federal
government at this meeting, we appreciate the chance to outline our concerns on behalf of
all of our constituents.”
MacKay didn’t reveal what the key stumbling block was in increasing federal funding,
but did say federal transfer payments to the province had increased substantially since the
Conservative government took office.
“This is an ongoing issue and discussion with respect to the amount and the support and
the distribution of federal funding for legal aid,” said MacKay, who called the
discussions constructive and “very frank.”
“I can assure you there have been no doors closed but we’re very encouraged by
innovations, by efficiencies that have been identified, these are discussions that are very
important and will continue.”
Denis told reporters afterward that the federal government has fallen well short of what
would even be called “adequate” support when it comes to legal aid funding.
“We are contributing roughly $48 million for legal aid in Alberta. That has more than
doubled since 2005. The federal government’s contribution has remained flat at $10
million,” said Denis.
“We also asked the federal government move up to 25 per cent of the actual cost of legal
aid.
“There is universal agreement that the federal government needs to be an adequate
partner in legal aid and access to justice. We’re not seeing that right now,” he added.
------------------------
Prière au Saguenay: la Cour suprême
prend la cause en délibéré
Hugo de Granpré, La Presse, le 14 octobre 2014
(Ottawa) Le fait de réciter une prière au conseil municipal de Saguenay est parfaitement
conforme aux valeurs et traditions canadiennes et c'est aux non-croyants de s'y adapter, a
plaidé l'avocat de la ville à la Cour suprême du Canada mardi.
Après avoir entendu les arguments des partis en matinée, le plus haut tribunal du pays a
pris en délibéré cette cause qui pourrait avoir une incidence importante sur les pratiques
religieuses dans des institutions politiques à travers le pays.
Le Mouvement laïque québécois affirme que la prière récitée avant les délibérations du
conseil, de même que la présence d'un crucifix et d'une statue du Sacré-Coeur,
contreviennent à la liberté de conscience et de religion d'un ancien résident de la ville,
Alain Simoneau.
M. Simoneau « ne s'objecte pas à ce que le maire, dans son bureau privé, ait le crucifix. Il
ne s'objecte pas à ça. Ça regarde la personne du maire et il a certainement le droit de
pratiquer sa religion comme il l'entend. Mais il n'a certainement pas le droit de l'imposer
à d'autres par ce genre d'exercice de culte public qu'il fait à l'ouverture des séances du
conseil municipal », a plaidé l'avocat du Mouvement laïque, Me Luc Alarie.
L'avocat de la Ville de Saguenay a affirmé qu'au contraire, le lien entre la suprématie
divine et les institutions politiques est bien réel au Canada et les pratiques du conseil
municipal, officialisées dans un règlement en 2008, s'inscrivent dans cette tendance.
« L'État canadien n'est pas athée. L'État canadien, dans le préambule de la Constitution,
indique qu'il est fondé sur la suprématie de Dieu et la primauté du droit », a fait valoir Me
Richard Bergeron.
Il revient donc à « chaque non-croyant canadien » de « tolérer cet état de fait », a ajouté
Me Bergeron dans son mémoire.
La décision de la Cour suprême, qui devrait être rendue d'ici quelques mois, pourrait
avoir des conséquences importantes à travers le pays. En Ontario par exemple, plusieurs
conseils municipaux font déjà face à des recours judiciaires en raison de la prière qu'ils
récitent. Les recours ont été suspendus en attendant l'issue du dossier québécois.
Même à la Chambre des communes, les députés fédéraux récitent une prière, de laquelle
se sont d'ailleurs inspirés les politiciens saguenéens en adoptant un nouveau texte en
2008.
« Mon client n'est pas confortable avec la prière du Parlement. Ça envoie un message à
ceux qui ne croient pas en une divinité qu'ils sont extérieurs au cercle des croyants au
Parlement », a d'ailleurs reconnu l'avocat de l'organisme Canadian Secular Alliance en
Cour mardi.
D'autres groupes sont intervenus devant les juges, incluant le Evangelical Fellowship of
Canada qui a indiqué qu'interdire la prière dans un conseil municipal contreviendrait au
principe de la neutralité de l'État, puisque la Cour favoriserait l'option laïque plutôt que
l'option religieuse.
Le maire de Saguenay, Jean Tremblay, qui est poursuivi conjointement avec sa ville, a
assisté aux audiences et s'est dit confiant d'avoir gain de cause. « C'est très lourd de
conséquences, mais les juges le savent aussi bien que moi. Alors je me fie à leur bon
jugement. »
M. Tremblay s'est dit surpris que l'affaire ait pris une telle ampleur. Il affirme que près de
400 000 $ ont été investis dans la défense, dont plus des trois quarts proviennent d'une
cueillette de fonds.
------------------------------------
Court asked to banish prayer, Christian
symbols from council meetings
SEAN FINE, The Globe and Mail, le 14 octobre 2014
The Supreme Court of Canada is being asked to banish public prayer and Christian
religious symbols from municipal council meetings in a case that prompted one judge to
ask whether the notion of “live and let live” has a place in modern Canada.
Alain Simoneau and the Quebec Secular Movement on Tuesday challenged Saguenay
city council’s right to say a short, non-sectarian prayer at the beginning of its meetings
that includes the word “God,” and to display Christian symbols such as a crucifix or
statue of the Sacred Heart of Jesus.
The issue is the flip side of the one that roiled Quebec last year, when the Parti Québécois
government vowed to ban the wearing of religious clothing and head coverings in the
public sector. Rather than an attempt by the state to curtail religious expression, the
Saguenay prayer case is about when the state may be seen to associate itself with a
religious observance and the symbols of a particular group, in this case, Roman
Catholics.
Justice Michael Moldaver asked whether, accepting that some people believe in God and
some do not, “a certain element of live and let live” should be part of the legal analysis.
“When can we look at the interference [with the religious freedom of non-believers or
non-Christians] as trivial or insubstantial?”
Kristian Brabander, a lawyer representing the Canadian Civil Liberties Association,
replied that a prayer and Christian symbols have the effect of excluding non-believers
and non-Christians from the values of city leaders.
Judges repeatedly asked whether the mention of “the supremacy of God” in the preamble
to the Charter of Rights and Freedoms means something for the practice of religion in the
public sphere.
“If God is referenced in the Charter, how can God be offensive in municipal council
meetings?” Justice Marshall Rothstein asked.
Mr. Brabander replied: “The existence of God in the Charter has never been used to
tolerate any form of discrimination.”
Richard Bergeron, a lawyer for the City of Saguenay, which is 200 kilometres north of
Quebec City, had a different view of the preamble’s reference to “the supremacy of God
and the rule of law.”
“The Canadian state recognizes the Divine as a moral value and an inclusive one,” he
said, adding that a ban on public prayer would denude the Canadian identity in favour of
a bland multiculturalism.
“If the result is to strip ourselves of everything we are, … it’s pure multiculturalism.
There is no Canadian identity. It’s just a patchwork.
“The question is in Canada, whether we have to remove the word ‘God’ from everything.
Even for the members of this court – there are oaths that end with an invocation of God.”
But some judges, such as Justice Rosalie Abella, appeared to find it inescapable that the
mention of God in a prayer, the use of Catholic symbols and Mayor Jean Tremblay’s
habit of crossing himself after the prayer linked the state to a religious observance.
When Mr. Bergeron said that making the sign of the cross is unremarkable, and that
many baseball players do it at home plate, Justice Richard Wagner of Quebec broke in to
say, “A baseball player is not a municipal leader who has public functions.”
Justice Wagner asked Mr. Bergeron if his attitude would be the same toward a Muslim
prayer. He replied that it would, “if the text were inclusive,” something to the effect of
“God, please enlighten me.”
Justice Wagner asked Mr. Simoneau’s lawyer, Luc Alarie, how to draw the line between
religious symbols and symbols of Quebec’s cultural heritage, drawn in many ways from
Catholicism.
Mr. Alarie replied that it would depend on the context; the Quebec flag contains a cross,
he said, but “I don’t think anyone crosses themselves in front of the Quebec flag.”
He added, “Mr. Simoneau is not out to eliminate all religious symbols from the Quebec
landscape. He does not want to have to go through religious worship in order to exercise
his rights as a citizen.”
A ruling is not expected for several months. A human rights tribunal ruled against
Saguenay, but the Quebec Court of Appeal overturned the decision, prompting Mr.
Simoneau to take the case to the Supreme Court.
Dozens of Canadian municipalities begin meetings with a prayer, the Canadian Secular
Alliance says.
-------------------------------------
An abiding belief in the system
Dale Smith, Canadian Lawyer Magazine,
Thre are many words to describe Donald Bayne, a member of the defence bar for some
43 years, but one of his associates has a choice few. “You would expect him to be
incredibly intimidating but he’s not so at all,” says Meaghan Thomas, one of Bayne’s
colleagues at Bayne Sellar Boxall LLP in Ottawa. “He’s a wonderful guy, incredibly
approachable, and probably one of the happiest lawyers around. He’s got so much
energy.”
Bayne, a former quarterback during his days at Queens University, prefers triathlons
these days, but it’s his passion and enthusiasm for law that is tireless. “He has a love for
criminal law that few people have,” says partner Rod Sellar. “He still loves doing it, even
at the age that he is. He loves the challenge, he loves the court work, and when he’s in,
he’s in. He has an unbelievable commitment to the case once he’s involved, and he may
not have the same number of files that other people have, and when he has one, there’s no
one that can spend more time on it.”
Bayne himself says he’s committed to criminal law because he really believes in it “I
believe in legal, human, civil rights, and it’s where you get to have an impact on that
daily,” he says. “Let’s be realistic — it’s where the action is. A lot of people become
lawyers and never see the inside of a courtroom. It’s really where the advocacy action
takes place.”
It is also his particular sense of the importance of the system, and ensuring a person gets
the best defence possible, no matter how unpopular the accused may be. It’s why he’s
defended the RCMP before the Arar inquiry, accused war criminals, and most recently,
disgraced ex-senator Mike Duffy. “It’s not only for the popular,” Bayne says of the
criminal law procedures and the presumption of innocence. “Otherwise, you’re back into
a privileged, elitist system where only the powerful and popular have rights.”
Beyond his passion for the law, one thing Bayne is particularly known for among his
colleagues is his desire to teach and mentor, particularly the associates and articling
students at the firm. “He takes the time to get to know each person individually and wants
to know what you’re genuinely interested in and what you’re working on,” says Thomas.
“No matter how trivial the matter is, as compared to what he’s doing, he’s sincerely
interested in what I’m doing, why I’m doing it that way, and what my thinking is. That’s
always been his perspective on it — that it’s as much about teaching as it is about having
the associates there to assist, and that is permeated throughout Bayne Sellar Boxall’s
history.”
Sellar notes Bayne takes a great satisfaction in explaining at length — stressing the at
length — how to do it right and properly. “Sometimes you’ve heard the same lecture
three times, and perhaps don’t want to hear it again, but years later you always remember
what he’s told people,” says Sellar, who articled under Bayne 38 years ago. “He’s a great
teacher.”
Bayne says his passion for teaching comes from his appreciation of young people, and
notes he’s now a grandfather of seven. “The reality is you want to do what you do well,
and you want to help other people be as good as they can be if they want to become
criminal lawyers,” says Bayne. “It’s an honour to do it well, and the reality is too that a
lot of younger people start out now, and there isn’t quite the amount of accessible
mentoring there used to be in the profession. We’ve always had articling students, even
though a lot of firms have dropped them. It’s something everybody in our firm believes
in.”
Many of those articling students go on to prestigious careers. One such student was
Dalton McGuinty, who later became Ontario premier. Others, like both Rod Sellar and
Norm Boxall, became partners. In fact, only one member of the firm didn’t article there.
“We’ve built the firm from within,” says Bayne. “That’s what I mean about having very
good articling students. We’ve worked very hard at that too. We go through an interview
process, we try to select the right people, we try to provide a good, healthy work
environment. It’s a demanding profession. I think the actuaries say the trial lawyer has
one of the shortest life spans, but we believe in a much more rounded life, and try to
show that to people too.”
The people at the firm have described the atmosphere as familial, stemming from that
shared history. “We are very good friends,” says Bayne. “We’ve never had a partnership
agreement; we’ve never needed one. We get along extremely well, we’re close friends as
well as respectful partners. My partners are much better lawyers than I am, and have
talents that I just don’t have, so there’s much to respect in the other people.”
Within the firm, Bayne is notorious for his meticulous preparation for cases. “You can
still find some of the old books around the library here at the office, with his original
hand notes in the margins from the cases he’s read,” says Thomas. “He’s just so
incredibly thorough and puts so much preparation into everything, I definitely wouldn’t
want to ever go up against him.”
What do his opponents have to say about him? When asked, the Ottawa Crown’s office
respectfully declined comment.
Looking forward, Bayne has no plans to slow down anytime soon. “You should know
when it’s time to go — you should go out at the top of your game, but I’m not even
thinking about that at this point,” says Bayne, noting his physical powers are not yet
waning, and that life remains wonderful and varied. “I like the people with whom I work,
and the other lawyers and judges in the profession. It’s a very noble profession.”
----------------------------------
Focus: Compliance efforts helping boost business
There’s seemingly no end to the
demand’ for tax law assistance
By Arshy Mann, Law Times, October 13, 2014
Nothing is certain in this world except death and taxes, which is good news for funeral
directors and tax lawyers. And that certainty has meant tax boutiques are often
conducting a brisk business even when other parts of the legal profession are struggling.
“We as a firm have not suffered significant dents in our business I don’t think ever,” says
James Murdoch, managing partner of Thorsteinssons LLP, one of the largest tax
boutiques in the country.
And some tax boutiques have been experiencing a boost in business thanks to more
aggressive compliance efforts by government departments such as the Canada Revenue
Agency.
Jack Millar, a partner at Toronto-based tax boutique Millar Kreklewetz LLP, says that
since the province introduced the harmonized sales tax, commodity tax work has
increased significantly.
“At the CRA, they have realized the significance of the GST and HST for government
revenues,” he says.
Millar says that after the CRA formed a separate audit division just for the GST and HST,
taxpayers have begun encountering more sophisticated audits from the federal
department.
“There are more issues that are arising now whereas 10 years ago it might have been an
issue that was overlooked,” he says. “And we see this having a direct bearing on business
in terms of corporate business and therefore needing sophisticated counsel to assist with
that.”
But even without increased audit activity, individuals and businesses have placed a
greater emphasis on commodity tax.
“Whereas before businesses may have viewed the five-per-cent GST as a cost of doing
business if they got it wrong, when it’s a 13-per-cent HST, obviously it has a very
significant effect on your bottom-line profitability,” he says.
Murdoch says he has also noticed an increase in the number of clients coming through
the door following an audit.
And according to Murdoch, the audit process has become more complex, making life
more difficult for some taxpayers and leading to more work for tax lawyers.
“There is no question that the way audits are being carried out on the income tax side is
leading to a lot of work,” he says. “They are asking for reams of information, they’re
asking for a lot of co-operation by taxpayers, and they are creating a lot of work for
people like myself.”
Whereas in the past people who had decided to appeal the finding of an auditor would be
able to deal with the tax services office nearest to them, administrative appeals now end
up at the location that has the least amount of work on its plate.
“And that drags out the resolutions,” says Murdoch. “Those changes that they’ve made to
appeals — eliminating face-to-face meetings, moving files all over the country — have
not been helpful from a taxpayer’s perspective.”
On the customs side, Millar says he has seen an increase in the number of compliance
issues on the part of the Canada Border Services Agency as well.
“After 9/11, governments took more of their trade budget and put it into security,” says
Millar. “But the pendulum has swung again and the trade compliance directorate of the
CBSA has got more resources now.”
He notes some of the trends in the law have also worried some clients.
“The CBSA had lost a string of cases dealing with customs valuations, which meant that
areas where they traditionally thought they could get additional duty were no longer
available,” says Millar.
“But very recently, they’ve actually won a couple of very significant cases and now we
see the CBSA compliance officials out there focusing on these new areas that are raising
challenges.”
According to Millar, that has led to importers wanting to make sure they’ve got the right
legal counsel dealing with customs issues.
“The volume of files has increased and has put even more of a premium on finding the
right type of lawyers to help,” he says.
Millar is expecting new customs work to start coming in once the free-trade agreements
Canada has recently signed with the European Union and South Korea come into force.
“There is going to be significant legal work once these free-trade agreements come into
force,” says Millar, who notes he has already been hearing from European clients that are
considering importing goods to Canada.
Murdoch says some of the biggest growth his firm has seen has been from personal
planning tax work despite the fact that several big banks have been trying to get a piece
of the pie.
“That’s been a very good business, and there’s seemingly no end to the demand,” he says.
Overall, Murdoch expects this type of work will continue to increase, partly because he
expects governments to raise taxes.
“After an era of rates going down, we are now in an era of rates going back up,” he says.
“And that will lead taxpayers to try to save taxes and that generates tax planning work.”
--------------------------------------
Lakehead’s Faculty of Law named in
honour of former chief justice Bora Laskin
Written by Mallory Hendry, 4Students Canadian Lawyer, October 12, 2014
What’s in a name? For Lakehead University’s Bora Laskin Faculty of Law, it represents
quite a legacy.
When naming the law school, founding dean Lee Stuesser, along with university
president and vice chancellor Brian Stevenson, Ross Murray, who Stuesser describes as a
“life bencher” in Thunder Bay, and a “series of community flag bearers” — settled on the
Bora Laskin Faculty of Law.
Laskin had a long and prosperous career in the legal community. In a press release,
Stevenson called him a “profound, visionary lawyer and judge who left a lasting
influence on Canadian law.” Not a bad legacy to bestow on a law school.
“He’s a great Canadian — he’s probably one of the great legal minds of Canada,”
Stuesser says.
“So quite frankly from our point of view it’s almost a no-brainer.”
A donor reception at Lakehead on Sept. 30 officially announced the chosen name for the
Faculty of Law. Members of Laskin’s family — daughter Barbara Laskin and nephew
John Laskin — attended the celebration.
The event was held to thank supporters and donors, including those from Thunder Bay’s
legal community and from across Northern Ontario who raised $3 million to date.
The donated funds have gone towards transforming the former Port Arthur Collegiate
Institute into Ontario’s newest law school.
As a finishing touch, a portrait of Laskin was unveiled in the faculty’s main entrance.
Laskin, who passed away in 1984, was born and raised in Thunder Bay, growing into an
exceptional student and eventually moving along with his family to Toronto to further his
education.
Laskin’s story resonates with many people in smaller centres, Stuesser says. He calls his
upbringing a “classic Canadian story.”
The son of Russian immigrants, Stuesser says Laskin’s parents worked hard to see their
family members well-educated. In 1930, at just 17 years old, Laskin was accepted into
second year of the honour law undergraduate program at the University of Toronto.
After receiving his B.A. in 1933 and an MA in 1935, he earned his LLP from Osgoode
Hall Law School the following year, while articling and preparing for entrance to the bar.
The next year, in 1937, he obtained an LLM from Harvard University in Cambridge,
Mass., and returned to Canada to teach at U of T and Osgoode before his career launched
him into the realm of judge.
Laskin — a lawyer, academic, and judge — was key in writing numerous important
pieces of Canadian law. He served on the Supreme Court of Canada for 14 years,
including a decade as chief justice of Canada.
A few years before his appointment to chief justice, Laskin was named chancellor of
Lakehead University — a role he held from 1971-80.
In a speech given at the unveiling of the new Bora Laskin Faculty of Law, Stevenson
called the University of Toronto Laskin’s “intellectual home.”
Laskin was impressive because he “taught at all levels of legal education, he made the
time to publish numerous articles and books, edit law reports, sit on various university
committees, and frequently act as placement coordinator for students, having kept in
close touch with the practicing profession,” Stevenson’s speech went on to say.
He also left his mark on legal education, a theme that resonates with legal professionals
and students today. Stuesser says his law school, with its innovative approach to legal
education, recognizes a kindred spirit.
“Bora Laskin was instrumental in changing legal education and we’re not being
presumptuous and saying we are changing legal education throughout Canada but we are
certainly doing things differently,” Stuesser says.
“Incorporating theory and practice — we are almost taking a step further than what
professor Laskin would have been contemplating in the late 50s.”
Also in honour of Laskin, the school is launching a fundraising campaign. It will be
built around the following pillars:
•
Transform a student’s future;
•
Inspire a generation;
•
Create an architectural legacy endowment; and,
•
Name the law school library.
Linking Laskin’s legacy with Lakehead is simply the right thing to do, Stuesser says. The
school is thrilled to have the support of the Laskin family, both by their appearance at the
unveiling and by agreeing to allow the school to use the Laskin name.
As for Lakehead law students, honouring a “local boy who became a great Canadian” has
created more pride in themselves and their school, Stuesser says.
“They’re a wonderful group to begin with but I think there’s a little more pride now,” he
says.
-----------------------------------
Liberalization and access to justice
By Yves Faguy, National Magazine, October 14, 2014
Yves Faguy is the senior editor of National Magazine.
Following this summer’s release of the CBA’s final report on the future of the legal
profession and the Law society of Ontario’s release of a discussion paper, we’re
gathering opinions about the introduction of alternative business structures. On of the big
questions being debated now is whether liberalizing the legal industry and enabling nonlawyer ownership will likely improve access to justice by making legal services more
affordable. Below is a roundup of opinion on the issue, but first a couple of quick
caveats: First, nobody is suggesting that liberalization and innovation will magically
remedy the access to justice crisis that we are experiencing in Canada. The second is that,
so far, I have come across very little opinion, one way or the other, that is based on
empirical evidence – most of it is still based on inference. But we’re hoping to change
that. If any readers out there have seen any evidence that ABS is having a measurable
impact on access to justice, please write to us.
We’ll start with Nick Robinson who, remarking on the emergence of ABS in different
countries, explores how non-lawyer ownership is likely to take shape around the world:
The impact of non-lawyer ownership will likely vary by jurisdiction. Countries with
larger capital and legal services’ markets will tend to see more and a greater variety of
types of non-lawyer ownership, while jurisdictions with smaller markets may see little
such actual ownership. Jurisdictions with regulation that makes the adoption of nonlawyer ownership more bureaucratic will deter such ownership, while a jurisdiction’s
other professional rules, such as restrictions on advertising or referral fee bans, may also
encourage or discourage it. Within a jurisdiction, the legal sector and the type of
ownership at issue can be expected to have a significant effect on the scale and impact of
non-lawyer ownership. Some sectors of the legal services market, like personal injury,
will likely be much more attractive to non-lawyer owners than others because of their
perceived profitability or ability to be standardized or scaled. Finally, a legal services
firm owned by consumer owners or worker owners is likely to respond to a different set
of incentives and have a different set of potential conflicts of interest than a firm owned
by investor owners or owners that also offer other services in the market.
This taxonomy of variables can help observers predict whether additional regulatory
attention might be needed or how likely access benefits may be in a given context. For
example, non-lawyer ownership may have little impact in the immigration sector in a
relatively small jurisdiction where it is highly regulated, but it may have a transformative
impact in the personal injury sector in a large jurisdiction where it is lightly regulated and
major commercial conglomerates enter the market.
Though Robinson expects legal innovation to result from ABS, he expresses doubts about
its potential to improve access to justice:
Persons with civil legal needs frequently have few resources and complicated legal
problems, meaning that even if prices did marginally fall this is unlikely to provide these
persons with significant new legal options. Non-lawyer owners are also likely to be
attracted to legal sectors, like personal injury, where expected returns are high and that
are relatively easy to commoditize, but where there may not be as much of an access need
because of long-standing practices like conditional or contingency fees. Meanwhile,
many other areas of legal work may not be as easy to commoditize, meaning non-lawyer
ownership will be less likely to occur in these areas or be less likely to bring clear access
benefits. Finally, some persons may be resistant to purchasing legal services from which
they could benefit because of entrenched cultural or psychological barriers that are
unlikely to change with the adoption of non-lawyer ownership.
Ken Chasse hits on a similar theme
The legal profession is very right to be cautious and suspicious about inviting in nonlawyer investors to own law firms. The increased “profits duty” they will impose will
conflict with a lawyers’ fiduciary duty to every client. The great danger is that such
increased profits pressures will not make a distinction between routine legal services and
legal advice services. Both will be subjected to “volume practice strategies”—
maximizing the number of clients advised per unit time. And that pressure will be there
whether the investor owns one law firm or a string of law firms controlled as franchises.
The owner of a franchised outlet must follow the procedures laid down by the
franchisor—“fast food legal services.” In the daily lives of the lawyers in those owned
law firms, law society powers to regulate and discipline the legal profession will be
effectively diminished by that added “profit duty.”
David Wiseman takes a nuanced perspective. He describes an ABS world that does
improve access to justice, but not for everyone:
To the extent that ABSs can improve access to justice, they will only do so for those who
can afford to pay for legal services. Hopefully, in an ABS-world, many people will find
themselves newly able to take advantage of legal services, but still, payment will be
required – and it is in this sense that ABS-led access to justice is about, mostly, the
middle class. For people living on low income, ABSs may have little to offer, both
because lack of money will still be a barrier and because there is more to taking
advantage of legal services than just money (a point recognized by the CBA’s
Envisioning Equal Justice project and report).
I also thought I’d flag this February 2014 report – prior to the release of the CBA Futures
report – in which Roger Smith and Professor Alan Paterson make the case that there is, in
fact some, evidence of the emergence of what Richard Susskind calls a “latent legal
market”:
The extension of low cost services possible through telephone and internet provides
potential access to this latent market. Certainly, at least for some cases and some clients,
digital technology could reduce the cost to something like the level of contributions once
payable for means-tested legal aid or to such a low level that even those once eligible for
free legal aid would pay for them. High volume, low cost, fixed fee providers like
Cooperative Legal Services are clearly exploring this market.
It is worth noting that much has been said, across the pond, over the recent announcement
by Co-operative Legal Services, the first major UK consumer brand to receive approval
to become an ABS, that it was running an operating loss of £5.1m in the first half of
2014. An indication that low-cost legal services are not making hoped for inroads into the
latent legal market? Perhaps that's too quick a conclusion: Managing director Matt
Howells has been careful to distinguish between the loss generated by CLS's personal
injury work and the gains made in family law (hat tip: Jordan Furlong for pointing this
out to me):
In response to a 64% decline in revenue over the past year, CLS has revealed that it is
now restricting its personal injury services to Co-op insurance clients and those with
serious injuries.
Mr Howells told Legal Futures that revenue from both wills and family law services had
doubled in the course of the past year.
He said that probate work, which with wills accounts for around half of CLS’s income,
had performed “exceptionally” well in achieving a 5% growth in revenue despite the
declining death rate in the UK.
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Freedom of Association and Collective
Bargaining Rights Face a Legislative
Challenge in British Columbia Teachers’
Federation v British Columbia
Mary Thibodeau, Osgoode Law School, October 17, 2014
The government of British Columbia (BC) recently filed an appeal challenging the
decision by the Supreme Court of British Columbia (“BCSC”) in British Columbia
Teachers’ Federation v British Columbia, 2014 BCSC 121 (“BCTF”) which found in
favour of the provincial teachers’ union. The leader of the governing BC Liberal Party,
Christy Clarke, has signalled the province’s readiness to fight the teachers up to the
Supreme Court of Canada (“SCC”), so this appeal will likely not resolve the legal and
political issues in question between the teachers and the government anytime soon. BC
governments have historically had a conflictual relationship with BC teachers, resulting
in several instances of failed legislation, court cases, and teacher strikes—sometimes, at
the same time. In addition, the neoliberal economic context has presented the opportunity
for governments to pass legislation challenging the collective bargaining regime in
regions across Canada.
These were some of the issues in BCTF, where the constitutionality of Bill 22—
legislation passed by the BC Liberals—was challenged on the basis that it violated the
section 2(d) Charter right of freedom of association for the teachers. The legislation
prohibited collective bargaining on certain working conditions, including class sizes and
supports for special needs students. It also deleted certain terms from the teachers’
collective agreement. The legislation was nearly identical to previous legislation that was
also struck down by the BCSC in British Columbia Teachers’ Federation v British
Columbia, 2011 BCSC 469. The BC government did not appeal the 2011 decision; rather,
it responded to the judgment with nearly identical legislation that was then challenged by
the BC teachers’ union in BCTF.
A Cure for Unconstitutional Legislation?
Although the Court identified 10 issues in the judgment, the main issue in this case was
whether there was anything different about the new legislation that would allow it to pass
constitutional muster where the old legislation did not. The BC government argued that
the new legislation only “temporally” limited collective bargaining over working
conditions since the limiting legislation was due to expire in June 2013. In addition, the
government argued that the unconstitutionality of the legislation struck down in the
previous case (“Bill 28”) was “cured” by the fact that the government had consulted with
the union. However, BCSC Justice Griffin concluded that the consultation had not met
the “meaningful” standard for consultations that was set out in Health Services and
Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27
(“Health Services”) and Ontario (Attorney General) v Fraser, 2011 SCC 20 (“Fraser”).
Justice Griffin was not persuaded in the least by the government’s argument that it had
“cured” the unconstitutional aspect of the legislation by consulting with the union. She
explained the government’s reasoning as being suspect for the reasons that,
[91] Just as it is hard to imagine a law that is otherwise an interference with a Charter
right being found not to interfere because of pre-legislative consultation, it is even harder
to imagine a situation where legislation is found to be unconstitutional as amounting to
substantial interference with s. 2(d) rights, but then this unconstitutionality could be
“cured” by the government “consulting” with the union after the fact of the legislation.
This is essentially the unusual position the government takes in this case.
It is in this sense that Justice Griffin criticized the absurdity of the government’s position
in consideration of the actual legislation, which had not changed save for the
government’s claim that it had consulted the union. Justice Griffin also noted the
legislation was similar to that enacted in the health sector at the time and ultimately
declared unconstitutional by the Supreme Court of Canada in Health Services, as that
legislation also voided terms in the collective agreement and prohibited future collective
bargaining. Justice Griffin then considered the meaning of the term “consultation” and
the relevance of consulting before passing legislation that limits collective bargaining
rights.
It was the union’s position that consultation cannot save otherwise unconstitutional
legislation, however, consultation could be relevant to the section 1 Charter analysis as to
whether the legislation minimally impairs freedom of association. However, the union
submitted that the section 1 analysis was irrelevant in a context in which the previous
legislation was already found to have gone beyond the minimal impairment of freedom of
association. The issue between the union and the government could be said to hinge on
the definition of “a process of consultation and good faith negotiation” as was noted to be
necessary by the Court in Health Services. That is, what constitutes “negotiating in good
faith”? Is good faith merely a duty to consult before pressing forward with legislation or,
is it something more substantial? In this case, Justice Griffin noted the consultation had to
be meaningful. She also went on to note, following Health Services, that the legislation
must be considered in terms of how it actually affects the process of bargaining and
consultation, not just processes prior to legislation.
(Neo) BC Liberal Strategies Undermine Collective Bargaining
Thus, Justice Griffin found that the government did not negotiate in good faith with the
union, but rather acted to provoke a strike and gain political support for the legislation:
[368] From the start of its post-Bill 28 Decision negotiation with the BCTF, the
government had a strategy in mind that it would be to its benefit if negotiations failed and
if collective bargaining resulted in a strike and impasse. This would give it the
opportunity to pass legislation which would address the repercussions of the Bill 28
Decision, and at the same time, pass legislation imposing a new collective agreement
with net zero compensation.
Justice Griffin noted the motives behind the government’s approach to “negotiation” with
the unions, in its institution of a ‘net zero’ compensation policy. The net-zero policy
meant that if gains were to be obtained by the unions for their members, they would have
to trade away previously won benefits. One example given was that if senior-level
workers sought wage increases, they could concede a decrease in wages for entry-level
workers. It is in this sense that net-zero could be seen to be a strategy of divide-andconquer through pitting groups of workers against each other to create greater conflict.
Justice Griffin also noted the economic context of the emergence of this policy following
the global economic crisis (para 34). Thus, the neoliberal economic context is apparent in
terms of the limitations for collective bargaining as a result of the restrictions placed on
labour in the consolidation of capital during times of economic crises.
This labour squeeze provided the opportunity for the government to negotiate with the
goal of failure, as the government sought to provoke a strike in the hopes of turning
public opinion against the teachers. As Justice Griffin explained, the evidence from the
internal notes of the employer’s association showed that the government sought to put
terms on the negotiation that they could foresee would be unacceptable to the BCTF (para
380). These circumstances lead Justice Griffin to conclude, “the government thus
expected from even before collective bargaining began in March 2011 that it would lead
to the BCTF calling a strike” (para 381). Initially, the teachers avoided a strike by
responding with other forms of labour action such as the withdrawal of non-essential
services like report cards. In response, the government increased the pressure on the
teachers to strike by reducing funding to school districts. An application was also brought
to the Labour Relations Board to reduce teachers’ pay. The application, however, was
denied. Eventually these government strategies succeeded in provoking a strike–the
longest teacher strike in BC’s history.
Given the context of efforts by the government and the employer’s association to
undermine the collective bargaining process, Justice Griffin concluded that there could be
no equality of bargaining power and that the government representatives did not meet the
requirements of consulting in good faith.
In reaching her decision, Justice Griffin discussed the meaning of the section 2(d) Charter
right of freedom of association and the scope of that right. Justice Griffin noted that
section 2(d) does not require the state to uphold the traditional “Wagner Act” model of
collective bargaining rights as defined in Mounted Police Association of Ontario v
Canada (Attorney General), 2012 ONCA 363 (at paras 23-29). While there are many
features of the Wagner Act model, it can briefly be described as a regime of collective
bargaining established through legislation which provides for majoritarian exclusivity (an
association will have the exclusive right to bargain on behalf of employees if selected by
a majority of the employees) and the requirement of employers to bargain in good faith
with the bargaining agent of the employees.
Although Justice Griffin reasons that freedom of association does not necessarily signify
the Wagner Act model, she grapples with the meaning of freedom of association in
relation to collective bargaining rights in the jurisprudence. In dealing with the meaning
of freedom of association and the specific activities included under the scope of that
right, Justice Griffin followed the decision in Fraser, and noted that Fraser, “slightly
changed the nomenclature regarding the s. 2(d) right from a collective bargaining right,
as sometimes described in Health Services, to a right more generally described as the
protection of “associational collective activity in furtherance of workplace goals” (para
26).
Thus, it appeared that Justice Griffin had adopted a somewhat more benign definition
which expresses collective bargaining as a ‘derivative right’ of freedom of association.
However, she went on to note that the facts of the instant case and the associational
activity between the BC teachers’ union and the employers was that of a “traditional
collective bargaining model,” perhaps suggesting elements of Wagnerism. Nevertheless,
the traditional model seems to remain undefined in the case.
The Remedy for “Curing” Unconstitutional Legislation
In any event, the Court concluded that the actions of the government constituted a
substantial interference with the section 2(d) right of teachers. As a result, the
unconstitutional aspects of Bill 28—and the subsequent near identical legislation of Bill
22—were voided by Justice Griffin, restoring the deleted terms from the collective
agreement and reinstating the collective bargaining provisions. The court also awarded
the union $2 million in damages from the government under section 24 (1) of the Charter.
Justice Griffin also noted that while the normal remedy for unconstitutional legislation by
the government is the striking down of legislation, section 24(1) also provides for
remedies against other unconstitutional conduct by government outside of legislation.
However, it is in only rare circumstances that both remedies will be applied, as was noted
in Schachter v. Canada, [1992] 2 SCR 679 at 720; Mackin v New Brunswick (Minister of
Finance); Rice v New Brunswick, 2002 SCC 13 at paras 78, 81.
Conclusion
This case represents a strong criticism of the government’s attempt to undermine the
collective bargaining process and the freedom of association right of the teachers’ union.
Given the recent appeal by the BC government, it will certainly be an important case to
follow to gain a greater understanding of the scope of freedom of association in relation
to collective bargaining and strikes. As noted by Peter Spiro in a previous post, the
Supreme Court jurisprudence has been evolving with respect to labour rights and the
constitution. The Supreme Court may be ready to give a more clear definition of the
scope of freedom of association and whether it includes collective rights to strike under
the Charter—in the mean time, the political-economic erosion of labour rights continues.
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