Law Times

Page 6 June 2, 2014 • Law Times www.lawtimesnews.com COMMENT Moore's confusion shows omnibus pitfalls he federal government may have good reason to move forward with its controversial amendments to the Trademarks Act, but it's fairly clear the minister in charge should probably avoid talking about patents when it comes to defending the changes. In response to opposition questions last week about the changes be- fore the standing committee on industry, science, and technology, In- dustry Minister James Moore accused his colleagues of "being a mega- phone" for groups raising concerns about the changes and alluded to the self-interest of those opposing them, including intellectual prop- erty lawyers. As part of his response, he turned to the subject of patents. "If you fi le a patent in Canada, we want it to be protected around the world. So patent lawyers who can charge you $3,500 to register a patent in every single country in the world, yes, they're going to be upset, but guess who benefi ts? Small businesses would benefi t." In defending the changes to Canada's trademark rules, the govern- ment has repeatedly referenced the need to align itself with various in- tellectual property treaties. at may be a valid argument, but referring to patents isn't, of course, given that it's not a trademark issue. e controversy centres on changes to trademark law contained within the government's omnibus budget bill. Among other things, the bill would alter the rules to emphasize registration rather than use in dealing with trademarks. For example, an applicant would no longer have to provide a declaration of use of a mark in Canada as part of the registration process. e government has suggested the changes would streamline the Fear an indispensable tool in Ontario politics e hear a lot in elections, but even more telling is what they're not talking about. Less than a year ago, Conservative MPPs wrote a dissenting opinion after the standing committee on government agencies released a glowing review of the LCBO that glossed over just about every industry criticism. Control of booze is the LCBO's prime directive, followed closely by generat- ing $1.6 billion annually for the cash- strapped treasury, and the report noted challenges to underage or inebriated would-be purchasers had tripled since 2006. It was evidence, it suggested, that the ever-vigilant LCBO staff are all that stands between civil society and wanton debauchery on the streets. The report ignored criticisms that the salaries of its executives and bloated bureaucracy had soared while Ontario wineries and craft breweries complained about the high cost of doing business with the provincial monopoly. The Conservative MPPs disagreed with the report. "The LCBO is also plan- ning to add 70 new stores over the next two years at a cost of $100 million. We believe this government money would be better spent on MRI scans and life-saving m edications than new shelf space for vodka bottles." They called for more choic- es for Ontario consumers and an end to the Beer Store mo- nopoly by allowing sales in corner stores. So why aren't we talking about this? Neither the NDP nor Liberals will support any of these schemes because they would threaten their union support. And what about Conser- vative Leader Tim Hudak? Out of fear, his party is no longer pushing the issue. The Liberals are touting Hudak as Mike Harris and a common-sense revolution- ary reincarnate with hidden plans to close hospitals, cut nurses, fire the entire public service, and drag the province into a double-dip recession. They'd accuse him of kicking pup- pies and slapping babies if they could. Hudak doesn't need to open up a war on a new front. This is the most negative provincial campaign by the Liberals I've seen with their focus on the fear card. Alcohol is just one example of how fear drives politics. The history of the LCBO's legacy of fear holds some irony since it was Conservative premier Howard Ferguson who cam- paigned in 1926 on a plat- form to liberate the provin- cial liquor laws. As the book Punched D runk: Alcohol, Surveillance and the LCBO 1927-1975 noted, the province had four plebiscites from 1900 to 1924 and all narrowly fa- voured prohibition. Ferguson, however, sensed a shift in sen- timent and took a risk. The resulting 1927 Liquor Control Act was a compromise to keep the tem- perance supporters happy and allow Ontarians access to alcohol, albeit un- der tight control. People needed permits and stores were more like pharmacies. It was all part of an elaborate quasi-judi- cial process in which surveillance, com- bined with the good judgment of LCBO clerks, sought to ensure thirsty tipplers didn't buy or later imbibe more than they should. Does that sound familiar? By today's standards, the provisions were shocking. Permits listed how much the holder had been purchasing and clerks could refuse service if they sus- pected abuse. Known drunkards or even su spected heavy drinkers, the book not- ed, would end up on an interdiction list and investigations by the LCBO's secret police would follow. Those of certain profiles, especially members of First Na- tions, were more likely to be on the list. In all, the book notes, the interdiction list included some 79,000 people named as drunks between 1927 and 1975 when the government loosened the laws. Even today, however, the overarching premise of the Liquor Control Act plays on fear that unregulated access to alcohol will be a disaster. It's the same button the Beer Store callously pushed when it launched a series of ads to protect its cartel status that suggested suds in corner stores would lead to teenage drinking binges. It seems 1927 still casts a long shadow. For 87 years, we've been subjected to regu- lation, intimidation, and legislation that play on the fear factor. Why? Because it works. Fear, whether applied in the con- text of booze or change, remains an indis- pensible political tool. LT Ian Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ian- harvey@rogers.com. ©2014 Thomson Reuters Canada Ltd. 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Cohen Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . . . . Arshy Mann Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Law Times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • LT.Editor@thomsonreuters.com • @lawtimes • LT.Editor@thomsonreuters.com • @lawtimes u Editorial obitEr By Glenn Kauth process for small businesses by making it simpler and cheaper for them to register trademarks. Crit- ics, meanwhile, have suggested they'll encourage trademark trolls and make enforcement much more expensive and complex. ey include several cham- ber of commerce groups, some large businesses, and, yes, intellectual property lawyers. Whatever the merits of aligning ourselves with international treaties might be, the issue is another example of the downsides of having major changes to areas unrelated to the budget quietly shuffl ed into omnibus bills. e trademark changes are signifi cant and require meaningful consultation and debate. With Moore defending the trademark changes on the basis of patent issues, it's clear he doesn't have a great handle on the legislation. As such, critics are right to call on the government to slow down and listen carefully. Once again, we see why omnibus bills generally aren't a good idea. — Glenn Kauth W Queen's Park Ian Harvey T

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