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Foreign Affairs: A Delicate Balancing Act

Ed Morgan
Wednesday, April 18, 2012

This article by Prof. Ed Morgan was originally published in The Lawyers Weekly, April 13, 2012.

When it comes to conducting foreign affairs, it is well established that the constitution puts the weight of responsibility on the federal government. But in recent years, the courts have deviated from that rule as often as they have invoked it.

In the Afghan prisoners case, the Federal Court of Canada explained that the government owes no constitutional duty when, after questioning, the military turns detainees over to a foreign government. The judgment presumed that Canadian forces require flexibility, and enjoy the discretion to deviate from domestic rules when they deal with an allied state and prisoners of war.

The Best Possible Outcome for Universities, Really?

Ariel Katz
Tuesday, April 17, 2012

This post was posted originally on Prof. Katz's blog.

Access Copyright and the Association of Universities and Colleges of Canada (AUCC) announced yesterday that they had negotiated a Model Licence that would allow universities to reproduce copyright protected materials in both print and digital formats. In a joint media release issued by Access Copyright and the AUCC, Paul Davidson, president of the AUCC, was quoted as saying "We believe that this negotiated agreement provides the best possible outcome for universities, their students and faculty." Really, Mr. Davidson, Really?

Ottawa’s Bogus Refugee Bill

Audrey Macklin
Friday, February 24, 2012

This commentary by Prof. Audrey Macklin and Lorne Waldman was first published on the Toronto Star website on Feb. 22, 2012.

Jason Kenney, the minister of Citizenship and Immigration, knows who the real refugees are. Or at least he knows which ones are “bogus”: refugee claimants from Mexico or Sri Lanka or Hungary are bogus. Bogus refugees include those who use smugglers to overcome the barriers to lawfully reaching countries like Canada which, by signing the refugee convention, have promised not to send back persons fleeing persecution.

Kenney’s system-abusing bogus refugees include those fleeing discrimination, oppression and hardship not quite horrific enough to satisfy the standards required by the jurisprudence defining and applying the refugee definition. Kenney does not mention that close to 40 per cent of the claimants were recognized as genuine refugees last year. Like falling crime statistics, that is an inconvenient truth for this government. Kenney manages to convert the fact that the system does not confer refugee protection on all who seek it into evidence of system failure.

Minister Kenney’s Ban on Face Coverings is Ultra Vires

Audrey Macklin
Friday, February 17, 2012

Not only is Minister Kenney’s ban on face coverings a gratuitous insult to Muslim women, it’s ultra vires.

In the wake of all the publicity about the Minister of Immigration’s decree that no one shall be allowed to go through the citizenship ceremony with her face covered, I thought I'd find out how the ban on face coverings was authorized in law. It appears that the ban is buried in the Operations Manual on citizenship ceremonies.  The Operations Manual provides guidance to citizenship bureaucrats (including Citizenship Judges) about how to interpret and apply the law -- the Citizenship Act and the Citizenship Regulations.  Since they are only guidelines, they do not have the force of law, and are invalid to the extent that they contradict the statute or the regulations.

You can find the citizenship manual here (PDF) (see s. 6.5). The manual contains an elaborate set of instructions about how citizenship officials shall respond if a woman is both uppity and oppressed enough to show up with her face covered.

Don’t Throw in the Towel: Systemic Risk in Securities Markets Must be Federally Regulated

Anita Anand
Friday, February 17, 2012

An edited version of this editorial appeared in the Financial Post on February 10, 2012.

In its recent decision, the Supreme Court nixed the federal proposal for a national securities regulator, finding that its proposed scheme was unconstitutional.  Admittedly, the federal government’s proposal largely (and intentionally) uploaded the current provincial regime to a federal statute. The Court held that, while aspects of the proposed legislation were within the federal wheelhouse, these could not justify a “wholesale takeover” of securities regulation in Canada. 

Nonetheless, the Court’s decision should not be read as foreclosing on a federal role in securities regulation.  The judgment specifically observes that provinces would be incapable of enacting legislation to effectively address systemic risk and comprehensive data collection.  Indeed, the Court expressly stated that “[t]he need to prevent and respond to systemic risk may support federal legislation pertaining to the national problem raised by this phenomenon”.

Governance Issues: The UofT-Access Copyright Agreement

Ariel Katz
Wednesday, February 15, 2012

First posted on Prof. Katz's blog.

In addition to serious copyright, privacy, and academic freedom problems arising from the Agreement signed last week between UofT and Access Copyright, the way it has been handled so far raises some questions about whether it is consistent with UofT’s governance procedures.

No serious consultation or discussion has taken place before the Agreement was signed, although, interestingly, s. 22 of the Agreement does contemplate it being conditional upon “applicable Governance approval”. It seems only natural that an agreement with wide, deep, and long-term implication such as this one would be subject to governance approval, yet it is less clear that UofT's Administration is going to seek the appropriate approval. The Administration has not done it yet, and in fact, there are worrying signs that the Agreement will not get the scrutiny that it deserves. I hope I'm misinterpreting these signs.

Aggression v. Atrocity in the History of International Law

Angela Fernandez
Tuesday, February 7, 2012

Columbia University history professor Samuel Moyn (visiting at Yale Law School in the spring term of 2012) has recently posted his paper From Antiwar Politics to Antitorture Politics on SSRN, a paper I heard him present at a November session of the Critical Analysis of Law workshop at my law school, the Faculty of Law, University of Toronto.  I have written about it on JOTWELL because it is an excellent paper, which law professors might not otherwise hear about, offering an extremely thoughtful intervention on the recent history of international law.

Universities and Copyright: Contrast and Compare

Ariel Katz
Sunday, February 5, 2012

Originally posted on Prof. Katz's blog on Feb. 1, 2012.

On Monday evening, Access Copyright and the Universities of Western Ontario and Toronto announced that they have entered into a new licensing deal.  The UofT agreement is available below, and I was told that the terms of the agreement with Western are identical.

Although the joint media release announcing the deal was gleeful, as a UofT Faculty member I am disappointed and concerned.  The agreement is one big step backwards for UofT, and one giant leap for Access Copyright.  Access Copyright could not have hoped for more, and UofT lost an opportunity to stand up, show leadership, and ensure that copyright law will be used for the encouragement of learning and not for suppressing it.

Copthorne Holdings and the Future of the GAAR: January 6, 2012

Benjamin Alarie
Wednesday, December 21, 2011

On December 16, 2011, the Supreme Court of Canada released its much-anticipated decision in Copthorne Holdings Ltd. v. Canada, in which the Court considered the General Anti-Avoidance Rule (GAAR) for the fourth time.

In contrast to its previous GAAR decision in Lipson, the Court arrived at a unanimous decision in Copthorne, applying the GAAR to a number of transactions designed to preserve paid-up capital and redeem shares on a tax-free basis. In order to review the decision and its implications, the University of British Columbia’s National Centre for Business Law and the University of Toronto Faculty of Law are co-sponsoring a symposium on Copthorne Holdings Ltd. and the Future of the GAAR, which will be held at the University of Toronto Faculty of Law on the afternoon of Friday, January 6, 2012. 

The Canadian Corruption of Foreign Public Officials Act: Mandatory Risk Assessment

Kenneth Jull
Tuesday, December 20, 2011

Kenneth Jull is an adjunct professor at the University of Toronto Faculty of Law, teaching the course "Financial Crimes and Corporate Compliance".

The Canadian Corruption of Foreign Public Officials Act ("CFPOA") has been in force since 1999.  In June of 2011 the CFPOA  streaked across the radar screens of compliance officers when Niko Resources Ltd. ("Niko"), a Canadian energy company, plead guilty and paid a fine of almost $10 million  as a result of bribes paid to a Bangladeshi official.  The bribes included a luxury SUV [Toyota Land Cruiser] and a trip to New York and Calgary. 

The large fine is only half of the story. Niko Canada and its subsidiaries were placed on probation requiring that the companies develop compliance procedures based on risk assessment.   The concepts in the prior sentence bear repeating as they are novel in Canada.  The Order pierces the corporate veil to include subsidiaries, places a corporation on probation (as now authorized by the Criminal Code sentencing provisions dealing with organizations) and requires a system of risk assessment. The following paragraph from the probation Order demonstrates the extent to which risk assessment is now a mandatory element of compliance in the anti-corruption arena:

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