Legal news roundup – Oct. 20, 2017

Canada

Nova Scotia outlines support for inquiry into abuses at Halifax orphanage, Canadian Press

Owner of medical marijuana dispensaries challenges constitutionality of law, Canadian Press

Final submissions expected at sentencing hearing for La Loche school shooter, Canadian Press


United States


Prosecutors seek pharmacist’s conviction over U.S. meningitis outbreak, Reuters

Fate of New Hampshire Indonesians goes before U.S. judge in Boston, Reuters

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LSUC to consider statement of principles exemption

LSUC to consider statement of principles exemption
Joe Groia says the law society can continue to promote goals of diversity while respecting the freedom of lawyers by exempting those who will not sign a statement as a matter of their faith or conscience.

Bencher Joe Groia has asked the governing body of the Law Society of Upper Canada to reconsider a controversial requirement that lawyers adopt and abide by a statement of principles.

Groia filed a motion requesting conscientious objectors be exempt from the requirement, which obliges every lawyer and paralegal in Ontario to adopt a statement acknowledging their obligation to promote equality, diversity and inclusion. The statement of principles has faced vocal opposition from some legal scholars and lawyers since it was introduced by the law society this fall as part of an initiative to combat the barriers faced by racialized licensees.

Opponents have argued that the requirement imposes beliefs on lawyers and is contrary to the Charter.

Groia says the law society can continue to promote goals of diversity while respecting the freedom of lawyers by exempting those who will not sign a statement as a matter of their faith or conscience.

“The Supreme Court of Canada has said that compelled speech is undemocratic and the hallmark of a totalitarian state,” says Groia.

“No matter how much I personally support the goal of greater diversity, and I believe it is extremely laudable indeed, we cannot and should not ask any lawyer to be compelled to say something unless they choose to do so of their own free will.”

Starting this year, the law society will require lawyers to adopt such a statement and check a box on their annual reports to show they have done so. They will not have to submit the statement to the law society.

Some lawyers have already said they will refuse to comply.

LSUC Treasurer Paul Schabas has said the law society will send letters out to those who do not follow the requirement, but will not penalize non-compliance this year.

Convocation approved the statement of principles in December 2016 as part of a package of 13 recommendations seeking to battle systemic racism in the legal profession. 

In that meeting, Bencher Sidney Troister brought forward a motion asking the recommendations be considered separately, as he felt some of them — such as the statement of principles — were problematic, but still supported others. His motion was defeated by a vote of 31-19 with two abstentions.

The entire package was unanimously passed with three abstentions.

Troister applauded Groia’s new motion.

“This motion is very important,” Troister says. “It recognizes that diversity includes a diversity of opinion and a diversity of personal beliefs.”

Supporters of the statement of principles say the requirement is a necessary step in promoting a cultural shift and that it is simply an affirmation of what lawyers are already meant to abide by.

Bencher Raj Anand says the words in the requirement reflect existing obligations under the Human rights Code and the law society’s Rules of Professional Conduct, which hold lawyers have a “special responsibility” to advance equality.

“I am not surprised that we have heard from a small but vocal segment of the legal profession and other commentators about the words I am proud to have drafted and insisted upon, and which passed after a healthy debate at Convocation,” says Anand, who is a co-chairman of the law society’s Challenges Faced by Racialized Licensees Working Group. 

Anand says the law society is concerned with lawyers’ actions and not their beliefs.

Quinn Ross, the president of the Ontario Bar Association, says the comments of some opponents have obfuscated the real issue, which is that equality, diversity and inclusion are fundamental to the future of the profession.

“If we lose site of that, we have let down ourselves and the public we serve,” he says.

“We can’t let that happen. I cannot find fault in confirming that the profession charged with the defence and advancement of equality, diversity and inclusion in society, has the obligation to do so in their own practices. We need to get on with this.”

A spokesman for the law society confirmed receipt of the motion, which will be brought before Convocation in December. 

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Queen’s prof receives grant to study shareholder democracy

Queen's prof receives grant to study shareholder democracy
Professor Mohamed F. Khimji is the David Allgood Professor of Business Law at Queen’s University,

A Queen’s University business law professor aims to shed light on the process and effectiveness of shareholder engagement with the help of a federal government grant announced earlier this week.

Professor Mohamed F. Khimji, the David Allgood Professor of Business Law at Queen’s University, has won a Social Sciences and Humanities Research Council Insight Grant as principal investigator for the project Shareholder Democracy in Public Corporations — An Empirical and Economic Analysis.

The grant will provide funding of $155,305 over five years. Prof. Khimji’s co-investigator under the grant is Prof. Christopher C. Nicholls, the W. Geoff Beattie chair in Corporate Law at Western University.

Shareholder democracy is “very much a key issue right now, in terms of regulation and corporate governance,” Prof. Khimji told Legal Feeds. The findings of his research, he says, “will have an impact on the extent to which we should be encouraging shareholder engagement, and what kind of engagement should we be encouraging?”

Law reform initiatives over the past couple of decades have “been about trying to enhance and incentivize more shareholder engagement,” Khimji says. “But not everyone agrees that that’s ultimately good for the governance of public corporations.”

The study will test different views about shareholder democracy, or engagement, by collecting data. The first two years will be spent collecting and analyzing interview data.

“We’ll interview key stakeholders in shareholder voting systems,” Khimji says, such as managers of targets that have been subject to shareholder engagement, shareholders who engage with corporate governance, proxy advisors, and regulators. The project’s aim is to understand the infrastructure of the shareholder voting system, and also the process of the shareholder engagement.

“Many people in Canada will say that the culture in Canada is for shareholders to engage behind the scenes, and not do anything in public,” he notes. Given that, the only way to learn how shareholder engagement works is to interview the key participants in any given instance, he says, and to that end he and his co-investigator will be interviewing shareholders, managers and regulators as well as third-party service providers such as proxy advisory firms.

The second two years will involve collecting and analyzing the quantitative data.

There are various legal mechanisms that shareholders can use to engage in corporate governance, and there would be publicly available information about that, he says.

“The idea is to collect that information and try and understand the extent, the types, and the effectiveness of shareholder engagement using these legal mechanisms. We want the data on the types, the number, and also the effectiveness: whether they have an impact on corporate decision- and policy-making.

The difficulty at the present juncture, says Khimji, is that “we make a lot of law reform and policy decisions based on intuition and anecdotal evidence. The idea is to try and gather more evidence in a scientific way so that law enforcement and policy making going forward is more informed.”

Khimji notes the plurality of corporate constituencies in Canada, including company managers, shareholders, employees, creditors, and society in general. Managers of corporations should be accountable, of course; “but at the same time, one of the key advantages of centralized management is that they function to aggregate different preferences.

“What we don’t want is a corporate governance regime that because of shareholder engagement only favours certain preferences over others, at the expense of others,” he stresses.

“The findings will give us a sense of the process of shareholder engagement — we know very little about the process — and we also know very little about the effects of shareholder engagement. So, the empirical evidence will shed light on both those things.”

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Legal news roundup – Oct. 18, 2017

Canada

Ottawa man facing charges in child porn investigation, Canadian Press

Blind woman robbed of $800 by newfound ‘friend’ she was trying to help, CTV News

Marijuana rules will be ‘a work in progress’: Vancouver councillor, Canadian Press

United States


Second federal judge blocks Trump’s curbs on travel to U.S., Reuters

Ford to recall about 1.3 million vehicles in North America, Reuters

Trump slams NFL for not making players stand for anthem, Reuters

International

Vote may have put independence out of reach for Iraqi Kurds, Reuters

Khamenei says Iran will ‘shred’ nuclear deal if U.S. quits it, Reuters

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Proposed legal limits for drug-using drivers likely to be challenged: criminal lawyer

Proposed legal limits for drug-using drivers likely to be challenged: criminal lawyer
Kyla Lee, a Vancouver criminal lawyer, says a law governing legal limits for drug-using drivers won’t look anything like it’s currently drafted, once courts have ‘whittled it away.’

The federal government released a draft of its planned legal limits for drivers under the influence of drugs, but criminal lawyer Kyla Lee has doubts about how well the legislation will hold up against constitutional challenges.

“I don’t think this law as it’s currently drafted is going to look anything like what it looks like when the courts have whittled it away,” says Lee, who practises at Acumen Law Corp. in Vancouver.

“There’s going to be so many challenges to this; it’s going to tie up the courts, it’s going to be expensive.”

The Blood Drug Concentration Regulations, posted Oct. 14, come as part of the federal government’s attempt to strengthen the laws against drug-impaired driving before the legalization and regulation of marijuana.

The regulations include a regulatory impact analysis statement where the government admitted it was unable to set general limits for marijuana use while driving, noting, “THC is a more complex molecule than alcohol.” The science used to set the limits is “unable to provide general guidance to drivers about how much cannabis can be consumed before it is unsafe to drive or before the proposed levels would be exceeded. It is equally challenging to provide general advice as to how long a driver should wait to drive after consuming cannabis.”

Bill C-46: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts proposes three new criminal driving offences for being at or over the described BDC levels of certain impairing drugs within two hours of driving. 

“The proposed BDC offence level for tetrahydrocannabinol (THC, the primary psychoactive component of cannabis) under the summary conviction offence is not directly linked to impairment, but is, rather, based on a precautionary or a crime prevention approach,” reads the draft.

It goes on to say that the objective is to make it easier to prosecute drug-impaired drivers and “send a clear message” to the public on the dangers of driving while under the influence of drugs.

Lee says though the justice minister tries to justify the limits in the statement, what stood out to her the most was how senseless a lot of the limits they’re imposing are.

She says her firm will be covering these cases acting for defendants when the time comes. She predicts a “significant increase, particularly at the front end, while all of the unanswered constitutional questions in this legislation are being sorted out.”

“You’re going to see a lot of challenges taking place very quickly with the way blood samples are collected, the science behind this, whether the legislation actually creates a proper criminal law,” Lee says.

For example, with the amounts they picked for marijuana for the summary offence, “it’s not even criminal in their view, but they’re going to make it criminal to prevent a crime from happening.

“That’s so far removed from what the legal authorities say you can do in enacting criminal law,” she says.

But even with the limits on which they were able to decide — for drugs such as cocaine, GHB, methamphetamine, LSD, magic mushrooms, PCP, 6-MAM and ketamine — “the numbers that they picked don’t make sense when you actually look at the science — how they are metabolized by the body, how long the effect lasts and how long the metabolites of those drugs are detectable in blood and urine,” says Lee.

“Issues that we generally see in drug cases are now going to be the everyday issues in impaired driving cases, which is going to be an incredible problem,” Lee says. “You’re taking a prosecution that would otherwise take a day, maybe two days, and you’re going to turn it into a 14-day trial. If we’re trying to reduce delays in our legal system, setting these arbitrary limits and then making people have to challenge them by introducing evidence to the contrary and challenging the practice of the analytical process employed in the particular case is only going to cause more significant delays.”

Bill C-46 has passed first and second readings, and it was sent to a Standing Committee on Justice and Human Rights. The committee presented a report with suggested amendments to the House on Oct. 16.

The draft regulatory text is laid out in Annex A of the proposed regulations “in order to seek public input on the development of offence levels for drug-impaired driving,” but Lee calls it a formality and doubts any substantive changes will come from it. Despite vocal opposition, this government is “so resistant from backing down from its position.”

If the bill becomes law, it would also “permit a peace officer to demand a blood sample from a driver if they had reasonable grounds to believe that a driver was committing a drug-impaired driving offence.”

Lee says this is incredibly invasive and has the potential to be mishandled and abused by police.

“It’s ripe for a constitutional challenge not only on the personal privacy but also the personal safety,” she says.

She points to officers in the United States who are the ones that engage in the blood collection and says there have been “some very shocking cases — even in the last two years when it should be considered unacceptable — where people are forcibly held down” and their blood is extracted.

She predicts complaints against police, justified and unjustified, by people who think their blood was taken from them in wrong circumstances, not to mention sample reliability issues and safety concerns for all involved.

“How many times are you going to prick a person in the back of a police car with a needle to try and get their blood before you actually find the vein? It’s hard enough in the lab . . . and now you’re going to have people with no medical training doing this in the back of a police car in the dark with somebody who is arguably impaired.”

What if an officer is pricked with a used needle during an altercation?

“We could end up with the spread of IV drug-related diseases to police,” she says. “I don’t think anybody thought this through from a practical policing perspective.”

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Legal news roundup – Oct. 17, 2017

Canada

Two Hamilton men arrested in alleged human trafficking case, Canadian Press

Police arrest man convicted of sex crimes involving kids after alleged parole breach, Canadian Press

NAFTA trade ministers to square off over hard-line U.S. demands, Reuters

United States

Trial of Islamic State beheading plot in Massachusetts nears end, Reuters

NFL weighs protesting players’ passion against Trump rebukes, Reuters

International

Maltese journalist’s son says she was murdered for exposing corruption, Reuters

Taliban attacks kill at least 61 across Afghanistan, Reuters

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Blockchain will disrupt the world of in-house counsel

Blockchain will disrupt the world of in-house counsel
Canadian technology and business expert Don Tapscott said blockchain will change transactional work for lawyers over the next decade.

WASHINGTON, D.C. — A leading authority on technology’s impact on business and society says blockchain will be the biggest driver of change for in-house counsel in the coming decade.

“I think this is probably the biggest thing if you’re a corporate counsel, for the next decade or so, that you need to understand,” said Tapscott during the opening keynote to the Association of Corporate Counsel annual meeting in Washington Monday.

Tapscott, who is co-author with his son Alex Tapscott of Blockchain Revolution: How the Technology Behind Bitcoin is Changing Money, Business, and the World, said there is an opportunity with blockchain to fix many problems faced by organizations today, especially the financial industry.

“I think this is the biggest innovation in computer science in a generation. For the first time in history, people everywhere can trust each other and transact peer-to-peer,” he said. “And trust is not achieved by counterparties and middlemen — trust is achieved by cryptography, by collaboration and by some very clever code.”

The big banks, for example, will potentially see the biggest challenge as Tapscott noted that the banks exclude two billion people from the global economy, mostly because they may not have an identity. It can also take days or weeks for digital assets to move through computer systems on Wall Street.

He noted that the biggest flow of money from the developed world to the developing world is remittances between people who send money home to families living in ancestral countries — about $1 trillion annually. That kind of cash transfer represents about 15 per cent of the GDP in the Philippines.

The problem is many intermediary service providers charge up to 10 per cent for funds transfers and can take four to seven days, whereas a blockchain-based remittance app called Abra delivers funds in minutes via mobile “tellers” like Uber drivers, with the transaction costing significantly less.

While not “unhackable,” Tapscott described blockchain as a “highly processed” and an “infinitely more secure” computing platform than the ones that exist in most companies today.

He referenced Ethereum, a blockchain application platform for building all kinds of apps, invented by a 19-year-old Toronto student, which is now worth $30 billion. Ethereum has a tool for building smart contracts that “self polices itself and self executes.”

“The first killer app of the internet was email and then you had the rise of the web that enabled all sorts of apps to be developed. The first killer app of blockchain was Bitcoin, but now we have platforms like Ethereum emerging that are general-purpose applications,” said Tapscott.

Smart contracts are made out of software, police themselves and self execute, and if it has a bank account and certain contractual conditions are met, payments flow.

“I think of it as a contract that has a bank, government and a lawyer inside,” he said.

“It doesn’t mean lawyers will be replaced — I generally think it’s the biggest opportunity for lawyers,” he said. “It’s a huge opportunity for law firms, but for corporate counsel this is pure opportunity — this is not going to disintermediate you, this is an opportunity to build a more secure and stable organization and speed up the metabolism of a company.” 

For accounting and auditing functions, blockchain moves beyond double-entry accounting of debit and credit and also allows for a third entry automatically — the balance — meaning you can have real-time auditing 24 hours a day.

“If you talk to the smart public accounting companies like Deloitte or KPMG, the CEOs will tell you that business is going to, if not disappear, change very radically and they are working hard to figure out what auditing looks like in a triple-entry accounting world,” he said.

The same will apply for governments.

“If we had triple-entry accounting in our governments, it would be an extraordinary thing — it could bring great transparency and sunlight is the best disinfectant and we sure need a lot of sunlight on our governments these days,” he said.

Venture capital has also been radically changed by blockchain. In October, more money has been raised on blockchain crowdfunding or “initial client offerings” than on all venture capital in the world — $2.8 billion.

“This is the bread and butter of what the investment banks do,” Tapscott said.

Tapscott advised the audience of mostly in-house counsel to educate themselves and pilot a blockchain experiment and seek out those in their organizations who are experimenting.

“Talk to your CTO, CFO and CIO and see if they are working on this,” he said.

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Issue around penalty for Toronto doctor headed back to court

Issue around penalty for Toronto doctor headed back to court
Gary Srebrolow says the way the public views discipline of doctors who sexually abuse patients is changing.

A prominent case of a doctor disciplined for improperly sexually touching his patients has been granted leave to the Ontario Court of Appeal to be heard Nov. 27.

The move comes after the province introduced changes to penalties doctors face if they are found to be sexually abusing patients, after public outcry about the circumstances of the case.  

In College of Physicians and Surgeons of Ontario v. Peirovy, the regulatory body for medical doctors appealed the penalty imposed on a walk-in clinic doctor, Javad Peirovy, after six female patients complained of inappropriate sexual touching during medical examinations in 2009 and 2010.

In 2015, a discipline committee for the college found that that Peirovy had sexually abused four patients and suspended his licence for six months, as well ordered him to take additional training, pay $64,000 toward therapy for the victims and $35,000 toward costs. However, the college disagreed, saying Peirovy’s licence should have been revoked.

Miles Obradovich, owner of Obradovich Law, said via email that the issue at the centre of the appeal “is whether the paramount principle of protection of the public in the context of reduced tolerance for sexual interaction by doctors with their patients warrants a departure from the range of penalty previously given for this type of behaviour.”

“The recent passage of the Protecting Patients Act, 2017, S.O. 2017, c.11 which increases penalties for this type of behaviour signals a change in what may be considered an appropriate penalty,” he said.  

According to the 2017 ruling, the committee “dismissed the inference that the pattern of behaviour indicated predatory intent or uncontrollable deviant urges, and therefore a serious aggravating factor.”

However, Justice James Ramsay with the Ontario Superior Court of Justice Divisional Court disagreed and pointed out problems with the committee’s findings.

“First, the number of offences was itself aggravating, without predatory intent and deviant sexual urges. Second, in view of the finding on the liability phase that the Respondent deliberately touched the four complainants in a way that an objective observer would find to be sexual and in accepting the complainants’ evidence that the touching was, to them, ‘blatantly sexual’ there is no line of analysis that could reasonably lead the tribunal to conclude that the Respondent’s awkward, unskilled and non-empathic manner was a factor in understanding his abusive behaviour or that it could reasonably infer that he was genuinely and completely unaware of the ways in which his behaviour in relation to his patients was in fact abusive,” said the ruling.

Ramsay then allowed the college’s appeal, nixed the penalty imposed by the committee and sent it back to the committee again regarding a revised penalty.

“Public confidence in the profession is not a ‘shifting standard.’ Rather I think that community tolerance for sexual abuse by doctors has lessened, said the decision.

“The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest. In the case of sexual touching of breasts of multiple female patients under pretense of a medical exam, I would expect the Committee to be debating whether to revoke the member’s registration or impose a suspension measured in years, as opposed to months.”

A spokeswoman for the College confirmed that the matter is scheduled to be heard at the Court of Appeal for Ontario on Nov. 27.

“While the Divisional Court commented that it would expect the Discipline Committee to be debating a suspension measured in years as opposed to months, legislative change has overtaken the Court’s comments,” said a factum filed on Sept. 15.

“On May 30, 2017, the Protecting Patients Act, 2017, was enacted. Revocation is now statutorily mandated for any physician who engages in touching of a sexual nature of a patient’s breasts, as the Appellant did to four of his patients.”

The factum states that the decision does not reflect a zero-tolerance approach for sexual abuse by doctors and hurts public confidence in the profession.

Gary Srebrolow, partner at Blaney McMurtry LLP and chairman of the health law group at the firm, says the way cases like Peirovy’s are being treated is changing, pursuant to Bill 87.

“I think [the courts are] going, ‘You know what? That’s a change that’s coming . . . just because this case happened before the law came into effect, we’re not waiting for the law.’” 

Srebrolow says Peirovy’s case is unique. 

“Usually, it’s an uphill battle because you have this discipline panel, they’re independent but they’re aligned with the college and usually, if anything, these panels are more difficult on members,” he says.

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