Evening News Wrap

By Keith Edmund White, Editor-in-Chief

So, yes, this is a gross simplification of a BIG BIG week in news.  But we got news at the belly-aches in both nations' legal professions, tax-carping, election-updates, trade, top Canadian fiction, and more!

Canada-U.S. News

Life, death, and taxes…and Extraterritorial Application of U.S. Law in Canada.  Canada and the United States are in tax treaty talks, and it seems like Canadian banks are going to have to deal with the administrative burden of checking if their clients are dual citizens.  The lurking issue: dual citizens in Canada avoiding U.S. taxes.

Canada’s Late Entry to the TPP…Not a Huge Worry, But There’s Still Reason to Worry.  While slamming subsidies U.S. states use to lure companies, and how they hurt Canadian merchants, Peter Clark—in this detailed review of the Trans-Pacific Partnership trade talks, it’s impact on Canada, and the global economy—says (1) Canada doesn’t have much to fear with it’s late arrival to the TPP and (2) concludes:

“It’s far too early to either dismiss TPP as a useless exercise or embrace it as a cure for what ails the global economy. While we see problems now, they can be fixed, with flexibility and compromise. If the TPP is a wine, it clearly needs some ageing before we can properly pass verdict on it quality.”

Canada News

Bye, Bye By-Elections!  Mark Abley, at The Gazette, talks on Monday’s by-elections in Canada, arguing that while Canada’s Conservative lost ground, a united Left is the only way to see a change in Ottawa.  Monday’s by-election results in brief: Conservatives held on to seats in Calgary-Centre and Durham, with a NDP-Green battle in Victoria going the NDP’s ways.

CETA Imbalance?  So What?  Paul Wells, taking note of imbalance concerns regarding Canada-EU trade talks, defends progress on the deal.  And at the National Post, Andrew Coyne gives his thoughts on the “logic of trade negotiations” in general:  “The whole situation is an absurdity.  It’s like a hostage negotiation in which both sides have guns to their own head.”

Moving Out:  Financial Post on the rough road ahead for Bank of Canada governor Mark Carney’s coming move to England; and the Globe and Mail on the importance of vetting cabinet officials and the resignation of Quebec’s environmental minister Daniel Breton. Added-Bonus:  Stephen Gordon at Macleans  on how much credit Carney should get from Canada’s robust post-financial crisis economic performance:

“What I take away from this is that we could have done much worse, but I don’t think we could have done much better. Stephen Harper and Mark Carney were dealt good hands and they played them well.”

Must-Read List.  The Globe and Mail picks the top 23 Canadian fiction books of the year.

Legal News

Going to (U.S.) Law School Worth It!  Lawrence E. Mitchell, Dean at the Case Western University School of Law, defends going to law school in the NYTimes:  

"We could do things better, and every law school with which I’m familiar is looking to address its problems. In the meantime, the one-sided analysis is inflicting significant damage, not only on law schools but also on a society that may well soon find itself bereft of its best and brightest lawyers."

Canada’s Lawyers in Crisis?  The Globe and Mail reports on the state of Ontario’s legal profession: “…it was clear that some of the country’s top legal minds believe their profession is, in effect broken.”

Canada, Divorce, and Anonymity: The Toronto Star Reports on the Privacy Divorce Debate

By Keith Edmund White, Editor-in-Chief

 

Is the Scarlet Letter alive and well when it comes to divorce?  The Toronto Star reports on whether Ontario should follow Quebec’s practice of only using initials when referring to parties in divorce proceedings.  Is this sensible privacy protection, or a lamentable proposal to erode judicial transparency?  With help from Fareen Jamal, CUSLI-Nexus explores Canada’s legal pluralism when it comes to a balancing privacy and transparency in divorce proceedings.  

In Sunday’s Toronto Star (and CBC.com), Allison Jones reports on whether “the rest of [Canada] should follow Quebec’s model of only referring to parties in family law decisions by their initials.”

A pillar of open court systems is that court records are public.  Why is this so important?  Well, first, it ensures that developments in the law can be followed by the public.  Second, it keeps the courts accountable.  While a thoroughly undemocratic institution, court records do keep the judicial system from running amok:  since any wrong move will be seen by the general public, and—perhaps more importantly—by the legislators who have the power to reshape the court system.

But, as any first-year law student can tell you (or avid ‘Law and Order’ watcher), there are times where privacy trumps transparency.  Two obvious examples:  sexual assault and crimes perpetrated by minors.  But how should privacy and judicial transparency be weighed when it comes to the sensitive and, perhaps, special case of divorce proceedings?

Using the initials of parties, instead of full names, can protect individuals from having their neighbors going on search engines and reading the sultry—and perhaps embarrassing and baseless—accusations and admissions that sometimes come about during divorce proceedings.  And privacy protection may be more at play since these proceedings may have a special impact on the litigants’ children, who might be suffering the collateral damage of divorce litigation.

Right now, in Ontario, the decision of whether to grant anonymity to parties in divorce litigation is up to the judge.  And even if the judge grants anonymity, the order can—according to Jones’ report—include “a recitation of the allegations each side has made against the other.”  Two natural outcomes appear to flow from this approach to divorce proceeding anonymity:  (1) a lack of institutionalized consistency when it comes to what parties are given anonymity, and (2) a privacy shield that likely doesn’t go far enough for some divorce litigants.

Fareen Jamal, a family law attorney in Ontario, adds some substance to this topic in a 2011 Ontario bar association article.  Boiled down—with some interwoven thoughts of my own—the article adds three issues to the mix:

(1)     Why keep a 21^st century ‘Scarlet Letter’?  Jamal argues that the naming process in divorce, historically, was used to shame the ignominious party.  Or, as he puts it, is “a vestige of the fault-era that should be eliminated.”  (OK...but is this really a factor's in 21st century divorces?)

(2)    Due process/fair trials concerns are fundamentally different in divorce cases.  Jamal argues that divorce cases are a ‘special’ category of litigation not needing the due process protections that judicial transparency ordinarily is relied on to give litigants.  Result:  if publishing the names of divorce litigants in court records does not help litigants in any way, why keep it?  So, how is divorce  ‘special’?  Jamal has three reasons:  

a.       divorce is not a crime anymore—so why identify parties like courts do for crimes?;

b.      lives aren’t on the line—divorce cases don’t result in people going to jail; result:  the need to protect parties from not receiving due process and keeping the vigilant eye of the public on crazy courts seem less needed here than, say, a murder case or multi-million civil case; and

c.       there’s no impact on costs to the judicial system—in law review speak, there’s no need to fret over ‘conservation over limited judicial resources’ because there’s no cost to changing the parties names to initials.  (To be fair, Jamal doesn’t give a fair shake to this argument.  Why?  In contentious divorces, dueling spouses don’t have to go to court, there’s always arbitration.  Interesting thought question:  If the publicity aspect of divorce litigation is removed, would that incentivize more or less cases to shift from judicial to arbitral settings?)  

(3)    Identity theft concerns.  Ontario divorce litigation forces parties to publicly release financial information—through mandatory financial disclosure forms—that is ordinary private—and can be the first tool used by savvy financial swindlers.  (This is a concern that has been seen in the United States as well—but is this more actual concern of identity theft, or simply an aspect of making it harder for neighbors to see your financials?)

So will Ontario and the rest of Canada follow Quebec’s lead?  There doesn’t yet seem to be a groundswell of support for a change.  But in the age of online court records, I wouldn’t be surprised if this gets more attention in the near future.  Though, in the era of overexposure (read:  iPad, Google, and Facebook) is privacy, not the purported shaming aspect of divorce, the true relic of the 21^st century?  

Like this post?  Be sure to check out Justin McNeil's related post on Ontario's new privacy tort.

Week's End News Round-Up

Canada's Dutch Disease:  Fact or Fiction?  Today Bank of Canada Governor Mark Carney defends Canada's growing economic reliance on energy, increasing commodity prices be damned.  If you want to see his take on the energy sector vs. manufacturing sector debate, check out Maclean's Stephen Gordon's "annotation" to Gordon's speech--you'll feel like your an economist for a day!  And you'll see evidence that Canada and America's trading relationship may be changing in the coming decade:

So what treatment does [Carney] suggest? A good summary of his recommendations is “eat your vegetables.” Firstly, Canadians should get past the notion that the path to prosperity lies in being the low-cost exporter of manufactured goods to the United States... 

Carney's answer:  Dutch disease worries are a "caricature" which would limit the positive growth of Alberta's oil sands.  Naturally, the Organization for Economic Co-operation and Development (OECD) disagrees.

Reforming Canada's Healthcare.  The Hill Times' opinion page offers a strong argument to allow a mixed-healthcare system in Canada (i.e. allow Canadians to pay for private care).  Some interesting parts from the piece: 

If all of this bureaucratese sounds familiar, you’re right. This is the 19th major examination of the Canadian health-care system in the past 15 years. Yet, once again, the “nail” each study has continued to hammer is stuck in the paradigm that Canada’s health-care system must remain a government run monopoly.

That paradigm was starkly enunciated by Health Council of Canada member and former Vancouver General Hospital president Charles Wright who stated: “Administrators maintain waiting lists the way airlines overbook. As for urgent cases, the public system will decide when their pain requires care. The individual cannot decide rationally.”

...

If so, they should take heed of a recent Ipsos Reid survey that shows 76 per cent of Canadians support a “mixed model” of health care giving them the option of spending their own money for private care.

Job Growth Pushes The Canadian Dollar Up Against the Dollar.  Canada added 30K+ jobs last month, pushing up the Canadian dollar.  But Canada's 7.3% unemployment rate hasn't changed; though, British Columbia's unemployment has gone down.  America's job-outlook:  not so great.  

The Mega-Rich America's New Successionists?  Mike Lofgren, a longtime U.S. Congressional budget committee Republican staffer, writes in The American Conservative:

If a morally acceptable American conservatism is ever to extricate itself from a pseudo-scientific inverted Marxist economic theory, it must grasp that order, tradition, and and stability are not coterminous with an uncritical worship of the Almightly Dollar, nor with obesisance to the demands of the wealthy.  Conservatives need to think about the world they want:  do they really desire a social Darwinist dystopia?

...

Now, almost two decades later, the super-rich have achieved escape velocity from the gravitational pull of the very society they rule over. They have seceded from America.

Agree or not, Lofgren's new book, The Party Is Over:  How Republicans Went Crazy, Democrats Became Useless, and the Middle Class Got Shafted is worth checking out, as is the rest of his article Revolt of the Rich.

Canada Gets Out of Iran.   Canada today severed diplomatic ties with Iran, closing up their embassy and giving Iranian diplomats 5 days to get out.

Ontario Gets a Minority Liberal Government (Again).  After two by-elections in Ontario, the Conservatives lost a seat they held for 22 years, and the NDP won a seat the Liberals held since 2001.  The result?  The Liberals fell one-seat short (again) of a majority government.  As for the Conservatives' shutout, Progressive Conservative Ontario leader Tim Hudak is keeping his job.  Interesting note:  the byelection was engineered by the Liberals to win a majority.