Law Times

Page 4 September 8, 2015 • Law timeS www.lawtimesnews.com notes the Liberals have pledged to increase parlia- mentary oversight on security issues and strengthen the Security Intelligence Review Committee. The Liberal pledge to amend Bill C-51 includes eliminating a provision allowing the Canadian Se- curity Intelligence Service to apply for court war- rants to break Canadian laws. The Liberals have also called for an inquiry into murdered and miss- ing aboriginal women. Among Liberals, according to Rae, there's also "a recognition that our drug laws, particularly with respect to marijuana, are proving to be coun- terproductive." The Liberals have promised to le- galize the sale of marijuana. An NDP government, meanwhile, would decriminalize certain offences. Garry Wise, founder of the Wise Law Office in Toronto and a legal and political commentator via his blog, agrees that the future of the relationship between the prime minister's office and the courts is likely to depend to a great extent on what hap- pens next month. "We have seen a disturbing record of confronta- tion and contempt by the Harper government for the judiciary and the Supreme Court of Canada in particular," says Wise. "One can only hope, with a change of govern- ment, for the restoration of a modicum of respect and decorum by the [prime minister's office] and government for the judicial branch." But Geoff Pollock, a sole practitioner who ran for the Conservatives in the 2013 byelection to replace Rae as an MP, says he believes the alleged conf lict be- tween Harper and the courts has been "overblown." "There's a conversation between the executive, the legislative, and the judiciary, but there's always been a conversation between them," he says. The Conservative agenda, he says, emphasiz- es making Canadian families more secure both physically in their homes and in their wallets. A key plank in the party's platform, he says, is its legisla- tion aimed at ensuring that the most violent crimi- nals go to jail for life with no chance of parole. Hugh Scher, an employment, human rights, and disability lawyer who has taken part in a number of federal and provincial government consultations, says the Conservatives' priority on protecting victims of crime, punishing criminals, and making them accountable contrasts starkly with the approach of the other two main parties. He cites, for example, a recently announced NDP plan to increase the number of shelters for victims of domestic abuse that would allow them to safely es- cape their abusers and Liberal tax proposals aimed at reducing income disparities and "improving the situ- ation of middle-class Canadians in a way that will ul- timately create greater equity and equality in society." Pollock, however, says Conservatives have always agreed that it's important to get at the root causes of crime by targeting poverty. That's one of the reasons why the party places so much emphasis on growing the economy and reducing the tax burden, she says. There's also a difference among the three par- ties, according to Scher, in their approach to the question of assisted suicide in the wake of the Su- preme Court of Canada's ruling to lift the ban on it last February. The Conservatives, he says, seem intent on examining the recommendations of a panel they've recently formed "to try to review and implement the terms of the Supreme Court of Canada [ruling] in what they consider to be a re- sponsible way that looks at the issue out of concern for the abuse of vulnerable Canadians," he says. The NDP position, he says, seems to be in line with the Quebec approach of legalizing assisted suicide under strict conditions. The Liberals voted last winter to allow assisted suicide, but their exact position seems uncertain, he notes. "It's not clear what particular safeguards they will be looking at putting in place." LT NEWS Continued from page 1 Parties differ on approach to assisted suicide A month later, the ministers released a revised draft of the cap- ital markets act with draft initial regulations and other materials. Finance ministers of the federal government and participating ju- risdictions are inviting comment on the draft act and regulations until Dec. 23, 2015. Drawing up the draft regula- tions was a "mammoth exercise," says Zordel. "There's a myriad of differences amongst how things are done in different provinces, and so what we're seeing is an ef- fort to pull them together." There's very little that's sub- stantially new in the draft regu- lations, securities lawyers say, because a priority for planners has been to make the transition to the common regulator as seamless as possible for partici- pating jurisdictions. "There's no question that the parties wanted to try and mini- mize the number of changes that would affect market par- ticipants, and to the extent that there are changes, they're re- ally with a view to harmonizing amongst the participating juris- dictions," says Ritchie. David Surat, senior legal counsel with securities law firm AUM Law PC, says the release of the draft regulations provoked a sigh of relief among some in the securities industry who feared it would mean a raft of new rules. "With the last version of the act that went for comment, peo- ple were a little concerned that a lot of the substance seemed to be deferred to the regulations and they hadn't been published yet," he says. "I think there was some concern that there were going to be sweeping changes to the sta- tus quo and I think this version that's been published will make it very clear to people that it's very much the status quo for the large majority of existing rules. So I think that will get some positive reaction from the street. . . . They haven't used it as an ex- cuse to make new policy." The draft legislation, says Surat, is "platform legislation," meaning much of its substance is in the regulations rather than the act itself. That means that, once enacted, all of the legisla- tures of the participating juris- dictions won't have to approve changes because the regulating body will have the authority to amend the regulations. An obvious advantage of hav- ing a single regulator to replace those in each of the participating jurisdictions is the simplicity and uniformity it will mean for issu- ers of securities, says Surat. "To the extent that you can minimize all these local differ- ences and have a single rule, it makes it a lot easier for market participants," he says. "It'll be essentially one-stop shopping. . . . I do think it will be a much more streamlined result and it will be easier for issuers and marketers, including securi- ties lawyers, to do what they do." The new regulator will also "present a more unified face to the world," says Zordel. "It creates a body that is federal in nature. So when you have the prime minister and finance min- ister travelling around the world . . . the minister of finance speaks for Canada. And yes, we have some other jurisdictions that he's going to work with. But we need to be able to go into international meetings dealing with financial issues with somebody who's go- ing to be respected globally as representing the country. And so that's a very important thing." One of the biggest hurdles in the process, says Zordel, was ad- dressing the fears of some prov- inces that the creation of a na- tional regulator could be the thin edge of the wedge in terms of in- trusion by Ottawa on traditional provincial areas of jurisdiction. "The Supreme Court decision was helpful in putting a limit on it," she says. "They said the fed- eral government doesn't have the authority to just step into this space and they have to negotiate. . . . And once we decided that it was a negotiation, then everybody can say, 'What is it that we want to achieve?' and 'Let's negotiate,' and that's what they've done." There was also some fear that Continued from page 1 New securities regulator to 'present a more unified face' the creation of a single regulator would amount to "an Ontario takeover," she says. Having a single regulator will also likely better protect investors by improving the enforcement of securities rules, she says. "Hav- ing different protection based on where you live in the country is not ideal. [The creation of the new regulator] also means that we will be able to more effectively use our resources nationwide to maximize the bang for the buck, so to speak, as far as what we're doing in enforcement." Whether other Canadian jurisdictions will join the six that are now participating, accord- ing to Ritchie and Zordel, is un- certain. "There's hope now that Nova Scotia is getting close," says Zordel, adding she also hopes the recently elected NDP government in Alberta will be willing to take a fresh look at whether to join. On the other hand, she says, the absence of those parties at the table hasn't been a problem. "It makes it easier to try and get some degree of agreement on some- thing like regulations when you've got fewer parties at the table," she says. "So it actually works fine." On July 24, finance ministers of the participating jurisdictions announced that the first chair- man of the capital markets regula- tory authority would be William Black. A former president and chief executive officer of insur- ance company Maritime Life and a member of the Order of Canada, Black has experience serving on the boards of numerous organiza- tions, according to a news release jointly issued by the ministers. He also ran unsuccessfully for the leadership of the Nova Scotia Progressive Conservative party in 2006. LT Prominent appeal judge remembered BY TALI FOLKINS Law Times t won't be just Marc Rosenberg's bril- liance that former Ontario chief justice Warren Winkler will remember about his former colleague. "He always had a big ready smile," says Winkler. "And he'd be working away at some- thing and I'd go in his office and sit down and put my feet up and he'd turn away from his computer and a big grin would come across his face. You know, I was interrupting his work, but it never mattered. It was a big smile, and he'd turn around and the conversa- tion would start like it had never ended from the last time you saw him." Winkler is one of many members of the legal profes- sion mourning Rosenberg's death last month. Rosenberg, a former judge of the Court of Appeal for Ontario and one of the country's foremost experts in criminal law, died on Aug. 27 after a battle with brain cancer. To many of those who worked with him, Rosenberg wasn't just a colleague but a dear friend. "He was just one of those people who had an impact on many, many people in differ- ent areas and he wasn't one-dimensional by any stretch of the imagination," says Winkler. "People he came in contact with, he made a mark on them. He just had that way about him because he was a person with a huge amount of depth but he also wasn't reclusive. He was a warm person." Born in 1950 to Ethel and Morris Rosenberg, he was called to the bar in 1976 after graduating from Osgoode Hall Law School. He practised criminal law at Greenspan Rosenberg and Buhr for nearly two decades until 1995 and then served as a Court of Appeal judge for almost two decades before retiring earlier this year. Rosenberg's accomplishments were many. During his career, he served as editor of Martin's Annual Criminal Code and wrote many articles on criminal law and the Charter of Rights and Freedoms. "Justice Rosenberg had a decades-long association with Canada Law Book, and later with Carswell, as author/contributor to numerous prominent publications, including the highly regarded Martin's Annual Criminal Code and Martin's Ontario Criminal Practice. It was both a pleasure and a privilege to work with him. He will be missed," said Rachel Francis, vice president of legal and regulatory at Carswell. Anthony Moustacalis, president of the Criminal Law- yers' Association, knew Rosenberg when he worked in private practice alongside Edward Greenspan. "He was at the time, I would say, the leading criminal appeal lawyer in Canada," says Moustacalis. LT I Justice Marc Rosenberg

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