Appeal Watch: SCC Tackles the Anti-terrorism Act, Are Full Service Law Firms and Fiduciary Duty Compatible? And Will Obamacare Be ‘No’bamacare?

Supreme Court Hears Appeal from First Man Convicted under the Anti-Terrorism Law

This week, the Supreme Court of Canada is hearing an appeal from Momin Khawaja, the first man to be convicted under the country’s anti-terror law (Anti-terrorism Act, SC 2011, c 41). This case has drawn much attention from media in Canada as well as around the world. Khawaja, a former Ottawa-area software developer, was first convicted in 2008. Prosecutors argued that he was training in a terrorist camp in Pakistan, plotting to wage a wider jihad against the West; furthermore, he allegedly helped finance a group of British extremists and tried to build a remote-control detonator.

Khawaja’s appeal will centre on the question of what constitutes an act of terrorism under the new law. His lawyer, Lawrence Greenspon, argues that the provisions of the Anti-terrorism Act infringe on his client’s political, religious and other constitutional freedoms, as they require authorities to prove that an individual’s alleged terrorist actions were motivated by religious, ideological or political beliefs.

As commentators point out, this appeal will signal a new chapter in the history of the Anti-terrorism Act. Like many children, the Act had an awkward period in its early years. Originally called Bill C-36, it was introduced into law shortly after 9/11; it did not contain a motivation definition at the time. It was only added after opposition politicians criticized that the Act would be too broad and go too far. The motivation definition was quickly struck down in this case, though. It was deemed unconstitutional at Khawaja’s first trial in Ontario. Justice Rutherford for the Ontario Superior Court argued that the provision would “promote fear and suspicion of targeted political or religious groups, and will result in racial or ethnic profiling by government authorities at many levels” (R v Khawaja, 2006 CanLII 64685 (ONSC) at para. 73).

Because the Ontario Superior Court did not throw out Khawaja’s charges, he and his lawyer appealed — spectacularly unsuccessfully. The Ontario Court of Appeal revived the motive clause and lengthened Khawaja’s prison sentence from a 15-year prison sentence to a life term, plus 24 recurrent years.

At the same time as the Supreme Court is hearing the Khawaja case, it will also be hearing two cases involving US nationals, Suresh Sriskandarajah and Piratheepan Nadarajah, who are wanted in the US on charges relating to the Tamil Tigers. Sriskandarajah and Nadarajah are fighting their extradition orders.

Are Full Service Law Firms and Fiduciary Duty Really Compatible?

The international presence of Canadian law firms has declined considerably in the last thirty years. National law firms are forming alliances with international firms, and consolidating in order to compete in today’s market. With larger firms and, consequently, more files, the duty of loyalty that a firm owes to its clients may be weakened. The Supreme Court of Canada (SCC) will have the opportunity to state the law on a firm’s fiduciary duty, as it has granted leave to the case of Canadian National Railway v McKercher LLP et al. The tentative date for the appeal hearing is January 24, 2013.

In 2008, McKercher LLP, one of the largest law firms in Saskatchewan,  launched a class action suit on behalf of the representative plaintiff, Gordon Wallace, against several defendants. One of the defendants was the Canadian National  Railway (CNR). Wallace claimed that the railways had overcharged farmers in the region for 25 years, claiming punitive and aggravated damages. Interestingly, McKercher LLP was at the same time acting as legal counsel for CNR in completely unrelated matters. Upon learning of opposing counsel, CNR applied to disqualify McKercher LLP from acting on the class action.

The Court of the Queen’s Bench of Saskatchewan disqualified McKercher LLP. The Saskatchewan Court of Appeal in Wallace v Canadian Pacific Railway 2011 SKCA 108, however, found that McKercher LLP did not gain any confidential information during its work with CNR to prejudice its client. The court did find that the firm breached its duty of loyalty in respect of its commitment to advocate on behalf of CNR. Yet, the firm’s conduct did not warrant being disqualified to represent Wallace in the class action.

When firms were small and more specialized, it was fairly simple for lawyers to act as zealous advocates for their clients. Clients today have the freedom to go to multiple firms to service varying legal needs. (In today’s economy, they also have the power to pit one firm against another in terms of the payment structure.) Likewise, larger firms have more diverse clients, spanning industries and even countries. So, today, it is inevitable that some matters and some clients will come into conflict. The SCC will hopefully provide guidance as to what conduct is required in such circumstances.

Will Obamacare Be ‘No’bamacare? Upcoming U.S. Supreme Court Decision is Eagerly Anticipated

Aside from President Obama’s recent statement lending support to same sex marriage, his administration’s other primary talking point has been the drafting, lobbying and passage of a universal healthcare law in the United States. Signed into law on March 23, 2010, the Patient Protection and Affordable Care Act (PPACA), which is nicknamed “Obamacare,” is currently under review at the Supreme Court of the United States. The decision is expected to be released sometime this month, and much hoopla is being made about whether it will pass judicial scrutiny.

It seems like every U.S. media outlet is offering predictions as to the outcome of the case. Supporters state that the bill’s entrenchment in the U.S. constitution makes it unlikely that it will be struck down in its entirety. But, If it is struck down, the Obama administration would lose more than the case. It would harm his presidential campaign. Already, political parties are gearing up to spin the issue in their advantage. The people for whom this law was initially drafted – the lower-income households – could end up being forgotten in the process. Some of the bill’s provisions include preventing insurance companies from denying coverage to children with pre-existing conditions and allowing states to design opt-out provisions for abortion and contraceptives, which are not required offerings. The most controversial mandate is the individual mandate, which casts a wide net for mandatory insurance to be purchased. So the Supreme Court has a tall task before itself this summer.

Join the conversation

Loading Facebook Comments ...