Law Times

November 16, 2009

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Subscribe to Law Times And receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE earlug.indd 1 $3.55 • Vol. 20, No. 36 11/10/09 11:20:32 AM Inside This Issue 2 Legal Health 7 Gun Battle 9 Focus On Labour and Employment Law Quote of the week "Increasingly, employers fi nd that provincial and federal safety offi cers request production of their internal investigation reports." — Jeremy Warning, senior associate at Heenan Blaikie LLP, See Regulators, page 10 Covering Ontario's Legal Scene November 16, 2009 tlePlus_LT_Jan26_09.indd 1 What is a spy? BY TIM NAUMETZ For Law Times OTTAWA – A Federal Court judge will soon be tasked with answering a question that most likely hasn't come up in a Canadian courtroom before: what is a spy? Th e question is key in the case of a 43-year-old law graduate from Ukraine who has been trying for nine years to get a visa to enter Canada as a permanent resident but has been refused because of his army service in the former Soviet Union. Military service alone wouldn't normally prevent Dmytro Afanasyev, his wife, and their two children from immigrating to Can- ada from Ukraine. But authorities have denied their entry be- cause a visa offi cer at the Canadian Embassy in Warsaw, Poland, ruled Afanasyev was in- admissible because he engaged in espionage while he was a soldier. But did he? Toronto immigration lawyer Gary Segal, Afa- nasyev's counsel in a Federal Court appeal of the visa offi cer's ruling, says the answer is no. Segal says the one-time conscript in the Soviet army who intercepted U.S. radio sig- nals as a private in East Germany was not a spy. He was doing his job gathering military intelligence and had to follow orders. In fact, Segal says, although Afanasyev could and still does speak English fl uently, he had no idea what the encrypted information he tran- scribed and passed up the ladder meant. Th e facts in the Federal Court fi le on the 1/20/09 12:14:52 PM TitlePLUS title insurance and you, together we have all the tools TitlePLUS title insurance and you, together we have all the tools. Gary Segal is representing Dmytro Afanasyev in his bid to prove he's not a spy so he can enter Canada. appeal appear straightforward. Th ere is no allegation Afanasyev falsifi ed information during his three visa application interviews. He freely told the Canadians, apparently in- cluding Canadian Security Intelligence Ser- vice offi cers who interviewed him, about his military service. Th e record is summed up in straightfor- ward fashion in an Oct. 2, 2008, letter to Afanasyev from K.L. Erickson, the Warsaw Embassy's fi rst secretary for immigration, who informed Afanasyev he was inadmis- sible on security grounds. Th e letter told Afanasyev he was a "mem- ber of the inadmissible class of persons" un- der the Immigration and Refugee Protection Act for "engaging in an act of espionage or an act of subversion against a democratic gov- ernment, institution or process as they are See A spy, page 3 Judges debate cultural bias in rulings BY ROBERT TODD Law Times tinct view of the world, a panel of judges maintained recently that it's their duty to keep cultural biases in check when deciding a case. "Judges who are tough Crown W hile it's impossible for them to come to the bench without a dis- their role depends on them as an individual and not on any group that they can be put into." Th e comments came as Ontario judges weighed in during a legal conference last week on contro- versial remarks by newly appoint- ed U.S. Supreme Court Justice Sonia Sotomayor in 2001 when she was on the appeals court. Th e panel was part of the Federation of and national origins may and will make a diff erence in our judging," Sotomayor, the U.S. top court's fi rst Hispanic judge, told an audi- ence at the University of Califor- nia Berkeley School of Law. Th e quote seemed to challenge the no- tion, famously claimed by former U.S. Supreme Court justice San- dra Day O'Connor, that a wise old man and wise old woman would Whether born from experience or inherent physiological or cultural differences . . . our gender and national origins may and will make a difference in our judging. attorneys become judges who are sympathetic to the defence," said Ontario Court of Appeal Justice Russell Juriansz. "Defence counsel become really tough law-and-order judges. How somebody exercises Asian Canadian Lawyers' third an- nual conference on Nov. 7 at the University of Toronto. "Whether born from experi- ence or inherent physiological or cultural diff erences . . . our gender reach the same decision when faced with an identical set of facts. Juriansz, who was born in India and in 2004 became the fi rst non- white judge appointed to the ap- peal court, said he doesn't consider Sotomayor's comment to be con- troversial at all. He said he made his thoughts on the topic clear when he was sworn in to the bench. "A court of appeal is not a repre- sentative assembly. My function on the court, like that of other judges, is to exercise my individual judg- ment on issues that come before the court," said Juriansz, restating that speech at last week's conference. "Having said that, I'm a prod- uct of my life experience, my per- sonal history, the fact I was born in India, came to Canada when I was eight, and my experiences growing up and living here since then cannot be separated from the professional qualities that I bring to the court. If I were not who I am, I would not have had the unplanned legal career that See Thomas, page 3 WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-7 1 Tel: 416-863-9543 Fax: 416-863-9757 5/29/08 1:05:49 PM Click here to subscribe today to LAW TIMES Includes a FREE digital edition! Go to: Photo: Paul Lawrence

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