30 March 2012

Yes, Even Law Blogs Can Have Contests!

Announcing the first ever Public Law Advocacy Blog contest! The one you've all been waiting for! I see other mostly non-law blogs have these great give aways, so I thought - why not my blog?

The rules are simple. Anytime prior to the 30th of April, 2012, you will automatically be entered if you both leave me a comment AND become a follower. Now, since I am a lawyer, let me point out the importance of the word "AND" here. Comment plus follower equals entry. For those who are already followers, you only need to leave me a comment.

And what, you are wildly speculating over, could be the sumptuous prize that a law blog could offer? Might it be original artwork? Jewelry? A puppy? (ok, the last one isn't p.c.). No, wait, it's way better than all that. It's a law book! In fact, not just one law book, but three law books! One book on international human rights, one on Canadian human rights, and one on Canadian criminal law. Excited yet?

You'll get the chance to win: No Distant Millennium - The International Law of Human Rights, written by John Humphrey (one of the Universal Declaration of Human Right's drafters and my prof at McGill) and published by UNESCO; The Charter of Rights and Freedoms - A Guide for Canadians (a surprisingly good booklet I acquired during one of my many government gigs); and Learning Canadian Criminal Procedure, by profs. Ron Delisle and Don Stuart at Queen's, two of the leading academics in the Canadian criminal law world. I will send them to you anywhere in the world you might happen to reside.

So don't delay. Enter today.


28 March 2012

The Newest Privacy Act with the 52 Word Title

Photo Credit: John Delorey; Creative Commons Licence
Ever heard of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act? No need to be ashamed if you haven't.

It was supposed to have a simple four word official short title - Fighting Internet Spam Act (FISA) - but politics got in the way back in the days of minority governments, way back last year. No short title could be agreed to, so we wound up with a 52 word official title. Quite a mouthful really. Not even prone to evolving into a catchy acronym. Certainly the longest statute title I've heard of, which doesn't have some shorter official alternative.

And why should you care? It has a significant impact on business practices that use e-mail or other electronic means of communicating with clients - other than broadcasting. It's already law, but regulations are slowly rolling out.

It generally prohibits the commercial sending of e-mail to people you don’t know. You especially can no longer use mass e-mail lists you have purchased from third parties if those on the list haven’t consented to your type of use of their contact information, thus greatly limiting e-mail marketing in comparison to bulk physical mail marketing.

You now need express consent (opt-in as opposed to U.S. opt-out method), except there can be implied consent: (1) where there is an existing business, personal or family relationship; or (2) if a personal or business address or phone number has been “conspicuously published or disclosed” and there’s no statement saying that the recipient doesn’t want unsolicited commercial messages, although the messages sent have to be relevant to the recipient.

All commercial electronic messages must now state: (1) who is real sender; (2) sender’s contact information; (3) method for recipient to stop future messages.

The Canadian Radio and Television Commission (CRTC) and Privacy Commissioner of Canada are receiving enforcement resources, so don't thing that this is just one of those paper exercises that will never be enforced. If you're a business that relies on e-mail marketing, you need to figure our whether your current practices could run afoul of FISA (yes, I just can't bear to repeat the 52 word official title again), and if even the consents you are currently obtaining from your customer need to be modified to take account of the new law. Because it is truly new and uncharted territory, you need legal advice.

The Act provides for hefty penalties: $1 million per violation for individuals, and $10 million per violation for organizations. Now you know.

26 March 2012

THY WILL BE DONE

Shakespeare's Last Will and Testament
Now I know this is a blog about "public law," but I can't help making a brief post on wills and powers of attorney. Although Mark Twain was of the opinion that (though may not have invented the much quoted phrase) "the only two certainties in life are death and taxes," tax lawyers know that taxes are definitely not certain. But death, however ....

Because it's something that truly affects all six billion plus of us on earth, perhaps more so and with greater common certainty than any other area of the law, the legal consequences of what happens to our property after our death, or after we are no longer capable of managing it, deserves a word. So even though I only do up wills as part of my legal practice by special request - I'm happy to help client's with them (and I currently have a lot of interest in them), I just don't advertise I do them - here's a brief plug for why you should put your legal affairs in order, regardless of how young you are or how little property you may current have, by creating a will and appropriate powers of attorney. Plus, here are a few factors to consider when doing so.

1. Do a Will - and seriously consider using a lawyer. Yes, you can do it yourself, but because it is so simple yet so important a document, the legal fees for using a lawyer are really low compared to the cost of messing it up by doing it yourself. Frankly, I'm more a fan of doing your own litigation in court if you absolutely have to - so long as the consequences to you of losing aren't too serious - because those types of legal expenses can mount quickly. With wills, most lawyers don't charge much for them, and in fact they are kind of loss leaders to bring in other business, or to win the much more lucrative estate administration business that comes when the will needs to be administered after death.

If you absolutely can't afford to use a lawyer, then by all means get a DIY wills book. Self-Counsel Press in Canada sells good books and kits that contain what you need.

Things to think of when doing as will include:

Who is best placed to be your executor? Remember this isn't an honour, it's a burden. Sometimes a very heavy burden. Pick someone not just whom you trust, but who has sufficient people skills to resolve some potentially nasty fights in the making, and who has sufficient asset management skills to adequately figure out how much property you have, what debts need to be dealt with and how the property is best managed until it is distributed. And get that person's permission first before naming him or her. Plus pick a backup executor, in case your primary executor can't do the job when required - even if s/he is younger than you, personal circumstances could get in the way. Consider naming a professional trust company; certainly more expensive than a family member, the professionals might be best placed to resolve disputes, protect your assets, and not burden those you leave behind.

In preparing to draft the will, focus first on a consideration of the people you may name as beneficiaries, rather than on the assets you may or may not have when you pass away. Strive especially to avoid later family disputes by being fair in what you leave to your closest relations. Sure you can attempt to disinherit certain people, but do you really want years of estate litigation among family members - a growing field in Canada as even average estates become larger due in part to great appreciation in real estate - to follow your death. There is a difference between being unequal in distribution of assets, compared to leaving someone close nothing at all.

Rather than leaving specific things to particular people, consider dividing up your estate by shares or percentages, because what you own when drafting the will may not be what you own when you die. Even though that cottage that has been in the family for three generations is the one thing you know you'll never sell, in twenty years you might decide to do exactly that - sell. And once you do, that favourite grandchild of yours to whom you decided to leave the cottage - and nothing else - could wind up with nothing out of your will.

If you do decide to do your will without a lawyer, be very, very, very careful about how you execute it. Although you might make a major drafting mistake, most wills survive most drafting mistakes at least to some degree - although they may no longer reflect all the wishes of the testator. But with execution mistakes, you often wind up with no will at all. I'm not even going to tell you here what proper execution amounts to, since it can vary a bit from place to place, just be very careful. You've been warned.

2. Do a Continuing Power of Attorney for Property - and be very careful with who you name as your attorney. This is a very powerful document. But also a necessary one in case you become incapacitated. It's continuing because it keeps working during incapacity, in contrast to a regular power of attorney which is usually set up for a limited time period and purpose (like executing house sale documents during a two week period when you will be on holidays), and usually gets automatically revoked upon any incapacity.

You can make your continuing power of attorney for property become effective as soon as it is singed - but the attorney named in it must in in possession of it in order to use it - or have it take effect upon incapacity; being effective immediately is the more common practice to avoid lengthy delays over medical examinations to determine whether you really are incapacitated. You can also stipulate any limitation you want in the document, like giving a power of attorney to manage bank accounts, investments or bills, but not to sell real estate.

3. Do a Power of Attorney for Personal Care - and think about being quite liberal in who you name, because whoever it is you want that person or persons to be quickly available onsite when required. You can name as many people as you wish as your attorneys for personal care. You can name them jointly (where they all have to decide), or jointly & severally (where any one of them can decide). I usually suggest joint and several naming in powers of attorney for personal care (but not in continuing powers of attorney for property), in order to maximize the chance you will have someone there to make decisions for you when and where you need someone. Plus, medical staff will always be somewhat of a check in providing advice and acting on wishes that are reasonable in the circumstances.

15 March 2012

Announcing the All New Law Firm of Gordon Scott Campbell Website


www.gscLawFirm.ca   
 
Yes, I too have heard how websites are so 2011! But then again, I also heard how Facebook was supposed to have faded away into MySpace oblivion by now. 
 
Oh, and I just got a Twitter account as well: @gscLawFirm - come and follow me! Please. Okay, that sounds a bit desperate. 
 
So back to wonderful new site, it has lots of substantive content - its not just a big ad for the firm - with tons of links to law and policy materials by areas of law (yes, I know we now all have Google, and don't need those tedious pages of thousands of links anymore, but these are carefully chosen links all containing substantive legal content themselves), plus Ten Things You Need to Know About __________ Law in Canada sections. 
 
For instance, check out the Environmental Law page (the Then Things and Links buttons are at the bottom of the page): http://www.gsclawfirm.ca/environmentalEXPERIENCE.html .
 
The new site covers criminal & regulatory defence law, tax law, customs & trade law, business dispute resolution law, immigration, refugee & citizenship law, environmental law, occupational health & safety law, privacy & information access law, as well as Aboriginal law. Happy browsing.























08 March 2012

Seven Reasons Why I Love Tax Law

Photo credit: John Bristowe
Let's face it, tax law is just plain unpopular. And unpopular not just among the taxpayers, but also somewhat unpopular among the lawyers. It's considered by some lawyers to be too dry, too esoteric, and too risky in the way it worms itself into other practice areas to take non-tax lawyers by surprise: "What do you mean I didn't take the tax consequences of my advice into account? I wasn't giving anyone advice on tax law! I'm a ____________ lawyer, not a tax lawyer."

For me, it was one of those surprise loves of law school. Like getting to know the quirky, quiet girl, who turns out to be really attractive and fascinating. So, why am I so into tax?

1. The rules are all written down in one well organized book (at least for federal income tax) crafted fairly recently by legislators, rather than being spread over dozens of statutes and thousands of cases stretching back over hundreds of years like some areas of the common law.

2. You can easily measure case success and legal value for client money: saving the client more money in taxes than the cost in legal fees will be a modest success, saving the client lots of money as compared to fees will be a great success.

3. Tax law applies to almost everyone, not just to a select few who choose to engage in a particular business or activity as with many other areas of law. In fact, it's now pretty much a set of global interacting laws which have spawned a host of treaties of necessity between states who have had to figure out who should get taxed where and for what.

4. You have lots of options open to you in resolving disputes of tax interpretation, from informal negotiations with tax authorities, to fairness appeals within a tax administrative organization, to full-blown litigation in courts external to an organization like the Tax Court of Canada. And contrary to popular opinion, you definitely can reason with tax authorities; trust me on this one, I've worked on both sides of the fence. The key is an appropriate level of engagement combining both negotiation and litigation, backed by well researched and reasoned arguments.

5. There is lots of room for creativity in resolving tax disputes. The circumstances behind every person's tax situation are unique, thus there is always scope for trying unique resolutions.

6. There are clear yes and no, right and wrong, black and white answers in tax law. Lots of them in fact, because the legislation is so detailed and has been tested so often leading to lots of judicial elaboration over how it should be interpreted. Don't get caught up in the growing number of "tax myths" quite properly debunked by the CRA, like that paying income tax is voluntary in Canada, or that only corporations and not "natural persons" need to pay tax. There are lots of legitimate ways to reduce or dispute your tax bill. Some other areas of law are far fuller of greys, because legislators or administrators haven't provided enough written guidance, or that guidance isn't tested often enough in court.

7. Tax law is a living, constantly evolving beast, changing with each passing year. Some areas of law rarely change, but one of the great challenges and benefits of tax law is its constant changes. While this poses challenges to lawyers and accountants, for taxpayers it means there are constantly new legal opportunities to explore.

So whether you've got income tax, HST/GST, excise, provincial or international tax problems, there are solutions - other than complete denial or total surrender - which your tax lawyer, tax accountant (who can't offer legal advice or go to court for you, but could still be quite helpful in giving you legal information or talking to the CRA), or you personally can pursue.

05 March 2012

Appeals Work, But Pick Your Grounds Carefully

The Supreme Court of Canada - The Highest Court of Appeal
Photo credit: Stephen Boisvert
Although we all hear about these cases that supposedly go on forever because of appeal after appeal, the reality is that very few people appeal any judgment against them. Or in fact have a right to appeal. But appeals work. And even where there are no appeal rights, there are other ways to effectively get the same result of bringing your case before a higher court.

I find I have my greatest legal successes conducting appeals on behalf of clients, because I can control most of the positive and negative factors affecting case success. Extreme appeal preparation - involving a painstaking review of the trial record, exhaustive research of the jurisprudential authorities and careful crafting of all the written materials to be presented before the appellate court - will always pay off in results for an appeal. While extreme preparation for a trial will always yield benefits, I find there are a lot more factors out of the control of legal counsel at a trial and a lot more surprises where successful counsel will adapt and roll with the trial punches, but it is experience rather than preparation that could be more important at trial.

There is appeal potential in just about any legal proceeding. But there are a few things you need to know about appeals.

1. Appeal periods can be very short. Meaning, because the time when a court decides against you and the latest time by which you are permitted to appeal to a higher court is often around 30 days from judgment (although it might be shorter or longer), you need to be thinking of appeal grounds before the judgment happens.

2. Appeals are largely based on errors of law, not fact. So don't expect to just rehash the trial facts before a higher court - it won't get you anywhere. Whether you can only appeal errors of law, mixed fact and law, or fact alone, will depend on the type of appeal and level of court, but generally your appeal should focus on the law rather than the facts.

3. Appeal procedure is based on the rules of court and complete legal documents. While some trial courts - especially criminal courts - don't have a whole lot of rules or a whole lot of use for written submissions, all appeal courts love rules and documents. Rules so precise they may tell you the font and type size you need to use in your factum, and which colour the covers of the factum need to be. If you ignore the rules, an appeal court usually won't even let you file your argument.

4. Occasionally you will have a right to appeal, sometimes you must apply for "leave to appeal," and on occasion there will be no appeal route. Although where there isn't an appeal, a judicial review or prerogative remedy application to a higher court always has potential. Appeals rights are generally based in statute, so you need to look in the legislation you are operating under to see if it provides for appeals, in which circumstances, and to which court.

5. Appeals usually require transcripts of the trial proceedings. So make sure you order these transcripts early, since they can take a while to prepare. And be prepared to pay lots for them if you were involved in a long trial. Transcripts are your best friend in an appeal - one can often find all sorts of wondrous errors lurking in their depths, but only after careful study.

6. Appeals can take quite a while to be heard. How long will depend on the court you are appealing to. But you should also be thinking about asking for bail pending appeal in a criminal matter, or possibly a stay of judgment pending appeal in a civil matter, since you don't want your appeal to be moot by the time it is heard through having served all of your sentence or already fulfilled the lower court's order which are seeking to have reviewed.

7. Successful appeals which get the attention of appeal judges require lots of creativity that is properly channeled into cogent, comprehensible legal arguments tied to both the evidence and the law. These arguments need to be properly framed in: (a) the notice of appeal which sets the stage for the argument, (b) the factum containing the written legal argument, and (c) the oral argument. One needs to be strong in all three areas to succeed in an appeal. A great written and oral argument will go nowhere if they don't have solid grounds of appeal set out in the notice of appeal to build on. A great oral argument may find a very unreceptive court if the lifeless written argument has already so underwhelmed the judges that they have already made up their mind to decide against you. A great written argument will not carry the day if counsel does the most boring thing imaginable and reads every word of it out loud to the appellate judges during the oral argument - I've actually seen this happen lots of times, and it always kills most chances of success.

8. You usually only have one good shot at an appeal, so make it count. True, some cases might have a second level of appeal to pursue, but if you were a disaster before the first court, things usually won't get any prettier before an even higher court with even more judges to scrutinize every part of your argument. For the most serious of cases trying to get before the Supreme Court of Canada is worth considering, but be aware that there are very few appeals "as of right" which get before the court, and the chances of success on a leave to appeal application are only about one in ten, generally requiring that you demonstrate the "national importance" of you issue of Canadians.

9. Even if you didn't use a lawyer at your trial, getting one for your appeal is a good idea. Because appeals are a lot more legalistic than trials, with appeal courts being intolerant of non-compliance with their rules, and impatient with grounds of appeals that come across as frivolous, appeals are harder than trial to represent yourself at. Yes, it's possible, but at an appeal you will no longer have advantages like a presumption of innocence working in your favour, or the prosecution being required to prove the case against you beyond a reasonable doubt. If you're the appellant, the burden rests entirely on your shoulders to convince the court of why it should allow your appeal. A lawyer is the one who can best make this happen.

03 March 2012

Trade-Not-Aid (and a Touch of Micro-Finance)

Just back from Oaxaca, Mexico. Witnessed some of the wonderful things being accomplished by micro-finance, courtesy of the good people with Fundación En Vía which is taking an innovative approach of combining interest-free micro-loans, educational programs (mainly in business skills and language), and sustainable tourism (which funds the micro-loans). None are new concepts by themselves, but funding the micro-loans through tours to the producers is a new take.


Business Partners Outside of Oaxaca Using Micro-Loans to Purchase Fibre and Dyes
to Produce Carpets Within Three Person Cooperative
Photo credit: Natalie Rowe
Among my areas of legal practice, I'm an international trade and customs lawyer. In fact, a lot of my legal career has touched on international legal issues - from criminal to immigration to privacy law - but law is at best a facilitating mechanism to help everyone agree on the rules of trade (or other areas of human activity). It doesn't generate the motivation to engage in trade - that can only be done by people who are willing to take risks, look beyond their own backyard, and deal with people whom they might never meet in person, and whom might speak different languages and come from different cultures.


Trade can mean different things to different people, but to me it has always meant an exchange of some sort - though not exclusively an economic exchange. I like to think that it's through trade - in goods, services, ideas and cultures - that the world becomes both a better and more interesting place. International and domestic development programs certainly have their place in the world of trade.


My work with the World Bank and Asia Pacific Economic Cooperation forum taught me the value of big international development and cooperation projects with big goals, but also demonstrated to me the weaknesses of government-driven programs where capacity building is somewhat top down. However, it's also an error to say that only grass roots, bottom-up or citizen-led programs work, since often funding needs to come from external sources which require a certain degree of accountability and oversight. 


Fortunately, programs like Fundación En Vía represent a happy medium - local village citizens create the business ideas based on local demand, form three person units to be mutually responsible for repayment (with 7 defaults out of almost 500 loans to date, it's an impressive repayment rate), and Mexican and foreign facilitators administer the program - including fund raising, teaching a few classes, and leading the tours.


Owner (and daughters) Using Micro-Loans to Purchase Additional Stock (pictured under counter)
to Generate Increased Business Revenue
Photo credit: Natalie Rowe
Programs like Fundación En Vía don't directly fit into the model of trade-not-aid, since the photos I have posted here from the three local businesses I was privileged to visit show that two of the three (pharmacy and tortilla production) serve an exclusively domestic market. Only the rug weaving seeks an export market (although most of their sales are currently domestic). Still, strong domestic economies fuel export-led growth, and strong exports sustain domestic societies.


The origins of the trade-not-aid slogan is a bit murky, but it's been around at least since the 1960's when the United Nations Conference on Trade and Development adopted it. Its most public face is likely the coffee fair trade movement, where producers receive slightly higher prices than is the norm, permitting them (at least in theory) to both expand their operations and raise the standard of living for their families. 


The trade-not-aid argument goes along the lines that aid fosters dependency, whereas trade promotes self-sufficiency. The challenge even within the fair trade movement is that producers may still only receive a fraction of the retail price of a good because of all the intermediaries who need to take a cut of the product's profits on its way to foreign markets.


A limited amount of aid might be a precondition to successful trade, particularly where countries are recovering from natural or human disasters. I've witnessed first-hand successful internationally and domestically funded development projects take all sorts of forms after being properly adapted to local conditions.


From land and fisheries rights legal registration reform in Fiji seeking to provide certainty over who has a right to what (and thus encourage investment and long term planning), to basic human rights development and land mine removal in Cambodia (so people simply can get back to work), to tsunamani recovery in Sri Lanka (so that people have a place to live while they produce things), to 4G Internet roll out in Lithuania a couple of years ahead of anyone else (showing even a relatively developed but small economy needs a competitive edge).


I've also seen the failures, like providing computer labs to rural villages which have no electricity or Internet connections. Unfortunately this wasn't just one village. What was known as the ICT4D movement got a bit carried away when funding actually exceeded need.


Proprietor Using Micro-Loans to Purchase Additional Supplies of Corn to Expand Tortilla Production
Photo credit: Natalie Rowe
To make trade-not-aid work, you need a product for which there is international demand, you need a means of marketing it to find buyers for the product, and you need a means of shipping the product at a reasonable cost to your buyers.


To take our rug cooperative example from the first photo above, there is definitely an international demand, the Internet would be far and away the best means of marketing (with direct sales commissions as low as a few percent of the selling price through sites like www.etsy.com, compared to 50% or much more through dealer networks), and shipping could certainly be affordable for a fibre product that can be rolled and packaged fairly easily. Best of all, the sales price to a buyer in a place like the U.S. or Canada could be several times higher than the price obtainable in Mexico, and still be a bargain to that buyer, leading to the best of all sales transactions: a very happy seller, and a very happy buyer.


The tectonic shift that makes this all possible is the Internet. Now I don't want to sound too much like a high school cheerleader for my favourite (and only) team, but speaking as someone who used to serve as Canada's Director of E-Business Development, the most shocking thing I discovered is that most people aren't all that forward looking at the Internet's potential. Now to be honest, I too don't have much of a clue as to where it's headed, but I'm certain it's going to be huge. Everyone connected to everything connected everywhere. Probably huger than the invention of the printing press! Really. Though I'll give you the invention of agriculture may have been a bigger deal.


Practically speaking, what the Internet means for international trade and development is the ability of producers and consumers to connect directly, without intermediaries. Before you shed too many tears over intermediaries being cut out of the picture, there will still be some doing technological mediation, and in any cases there have always been a whole lot more people acting as producers than intermediaries, so expanding producer ability to connect to buyers may in fact expand the overall sellable production pie instead of just slicing it up in different proportions.


To take an example from my Oaxaca trip, one of the weaving producers pictured at the top of this post had spent the past two weeks trying to sell her rugs in the local market without any success. That's a lot of time wasted attempting to peddle something where there's clearly too much product and not enough demand for the product. But post that right product in the right place online, with the right description at the right (in fact higher) price and you'll make a sale without any effort - technological mediation will do it for you.


Now to accomplish all this you'll need an Internet connection, but from what I've seen throughout the world Internet cafes have spread to the remotest villages and offer their services at prices that are totally affordable to the local populace. 


Next, you'll need to know where to sell things, and how to post pictures and descriptions of your product. This is a little trickier, but can certainly be taught to most people with basic literacy. 


To access lucrative northern hemisphere markets, you might also have to be able to describe you product in English. Google Translate and other similar online translation offerings have been making great strides, but are still lacking; likely the best bet is to see if a few word standard description could be developed for common items, without too many details, and hopefully let your pictures do the talking - not ideal, but worth a try, with most of the posting in the local majority language. More challenging is when the producer doesn't know any of the larger languages, such as for indigenous peoples. For instance, we heard of some producers in the Oaxaca area who only spoke one of the many dialects of Zapotec, rather than Spanish.


End of Day Customer at Tortilla Shop (Complete With Welcoming Roof Dog)
Photo credit: Natalie Rowe
And so where does trade and customs law fit into all of this? For the foreseeable future, there will still be trade barriers among countries. Even free trade agreements, like the North American Free Trade Agreement, hasn't eliminated exceptions to the "free" aspects of the agreements. 


So for instance, while "art" might be able to be imported duty free, most "crafts" - regardless of how artistic might be their execution - may not qualify as art and instead be classed as home furnishing subject to duty beyond a certain value. And that duty threshold might be a whole lot lower for fibre art because of a desire of certain countries to protect their domestic non-artistic textile businesses, thus essentially trapping art in a t-shirt sweat shop time-warp. 


The trick with knowing the law is being able to claim tariff classification for your product that is most favourable to its import, and in being able to negotiate with relevant parts of the government like the Canada Border Services Agency or bring an appeal before the Canadian International Trade Tribunal if you think that classification is not reasonable.