Law Times

Page 2 November 10, 2014 • Law Times www.lawtimesnews.com Lawyers caution against rush to new terror laws BY YAMRI TADDESE Law Times he Canadian Civil Liberties Association is appealing for re- straint in drafting new laws in response to the recent killings of two Canadian soldiers in Ottawa and Quebec. The CCLA recently wrote to mem- bers of Parliament cautioning against a rush to enact legislation in the wake of the attacks after the prime minister spoke of "strengthening" laws around surveillance, detention, and arrest and Public Safety Minister Steven Blaney talked about adjusting the thresholds for preventive arrest. "Our concern is that any laws that might be drafted in response, which of course was immediately part of the dia- logue, we felt should be done in a manner that is measured and demonstrated to be necessary," says Sukanya Pillay, the execu- tive director of the CCLA who penned the letter to parliamentarians. "We already have quite robust existing powers and it would be relevant for us to know what went wrong. Was it that exist- ing powers were not used or is it that some other power is needed?" she asks. "What- ever the answer is, it needs to be explained clearly to Canadians and debated in Par- liament, not rushed through." When it comes to Canada's response, Canadians have to be mindful of the "hard lessons" learned through previous actions, says Pillay, noting any expansion of surveillance powers must come with oversight and accountability. "Once we chip away at our democratic rights, it's difficult to get them back. It's hard to reconstruct them." The CCLA is urging Parliament to act on the recommendations made by three federal inquires that have looked into counterterrorism efforts, includ- ing the effectiveness of Canada's intel- ligence agencies. "That effectiveness was inextricably linked with the need for oversight and accountability, and in our view, those reviews have not been properly imple- mented yet," says Pillay. "We think that if there's a push for new legislation, and we've already got new legislation intro- duced, it must be reconciled with these recommendations." Bill Trudell, chairman of the Canadian Council of Criminal Defence Lawyers, says politicians often seek "immediate gratification," in response to attacks such as the recent ones in Ottawa and Saint- Jean-sur-Richelieu, Que. "What happens is the bills get passed and oftentimes we see the courts striking them down. And oftentimes courts strike them down because that's their job, not because they're politically motivated but because it's the law," says Trudell. The government should consult ex- perts at the front end before a bill goes to a committee, he adds. "Look at what kind of legislation is needed, what kind of legislation will survive, and what kind legislation is needed down the line, how it will impact the criminal justice system down the line, how it will interfere with people's rights down the line." To some experts such as University of Toronto Faculty of Law Prof. Kent Roach, the issue isn't about the lack of laws but rather how authorities are applying the existing ones. "The Quebec case raises questions about why the terrorist's pass- port could be suspended but why he was not prosecuted for the new . . . offence of leaving Canada with the intent to engage in terrorism activities," says Roach. "Rather than new laws, this may be a question of law enforcement and, in par- ticular, the difficulties of conve rting se- cret intelligence into public evidence." Roach also says a new bill that would shield Canadian Security Intelligence Service sources from disclosure may have adverse effects. "The new bill may actually make ter- rorism prosecutions more difficult by giving CSIS and its human sources an absolute veto over whether they can be compelled to be witnesses in a prosecu- tion," he says. LT NEWS T LIVE EVENTS DESIGNED FOR CORPORATIONS AND LAW FIRMS Thomson Reuters Legal Executive Institute is the leading provider of CLE events for the legal industry. Below you'll find upcoming live conferences that might be of interest to you and your team. You can register for yourself and any members of your department. Registration can be applied to anyone in your company – a different person could attend each event. Drafting Clearer Contracts December 11 – San Francisco, CA $895 Northeast M&A/Private Equity Forum December 3 - Boston, MA $595 DISCOUNTS AVAILABLE Individual Discount – Receive 15% off any individual program. Use promo code 15CORPORATE at checkout. Group Discounts – We have great group discounts available for you and your colleagues. 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Connie Crosby, vice president of the Canadian Association of Law Libraries and a consultant in li- brary management, says the upcoming review should consider incorporating practice management sup- port for sole practitioners and smaller firms. Another growing area in which law librarians are providing assistance is competitive intelligence, ac- cording to Crosby. That involves monitoring com- petitors and industries to help law firms see what's changing and where opportunities lie, she notes. Law libraries could also do more to help firms with information management as well as make sure lawyers are aware of all of the services they offer, she adds. "Everybody is struggling with in- formation overload. We have lots of files every- where, we have a lot of e-mail, and a lot of key information is locked into individuals' e-mail, so how can information professionals help with that situation?" LT Information overload Continued from page 1 'Ruling read like a respondent's factum' Canada.'" • "I am equally concerned by the statement of the Ap- pellant in paragraph 88 of the Factum that '[t]his is so notwithstanding the Trial Judge's contention, at para- graph 132 of his Reasons, that 'in this case, I do not need to [consider notional continued corporate control] in order to fully dispose of the appeal with respect to the proper transfer pricing adjustment.'" After querying whether "a reasonable person reading the factum, my reasons, and the rel- evant portions of the transcript would believe that the trial judge so strongly complained of by McKesson Canada might not be able to remain impartial in his consideration," Boyle, on his own motion, issued a 45-page ruling recusing himself from the case in early September on the basis that McKesson had "wrongly accused me" of "untruthful, dishonest and deceitful" conduct. "The ruling read like a respon- dent's factum," said MacKenzie, who told Law Times at the time he found "nothing inappropriate" in McKesson's factum. MacKenzie believes the Court of Appeal would "take a dim view of the trial judge inter- fering in the appeal process" in the way Boyle did. "Realistically, I believe that the Court of Appeal will view it com- pletely inappropriate for a trial judge to advance arguments re- garding the appeal process wheth- er those comments are made in or out of court," says MacKenzie. Still, MacKenzie suggests there's "significant doubt" as to whether Boyle's conduct would in and of itself give rise to an or- der for a new trial. "I have the confidence to be- lieve that the Court of Appeal wouldn't be inf luenced by the trial judge's recusal and reasons for recusal," he says. "I feel that they can rightly put it out of their minds and that it may well not inf luence their decision on the merits of the ap- peal itself." LT Continued from page 1

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