NEWSLETTER – March 2012

Robin Schiller, President
Allen Mendelsohn, Dorith Toledano and Larry Markowitz, Editor(s)

President’s Message

Robin Schiller

Honourable Judges, Members and Friends,

I hope you enjoyed your holidays and that the year 2012 brings you much happiness and success.

We ended the first half of our season with the highly entertaining and informative presentation of Mr. Justice Ian Binnie of the Supreme Court of Canada.

In January, more than 75 of us got together on the occasion of the annual Young Bar Cocktail. I strongly believe that our Society is moving in the right direction.

On March 22, 2012, we have the unprecedented honour of welcoming three judges from the Court of Quebec. At that time, Chief Justice Élizabeth Corte and Judges Suzanne Handman and Lori Weitzman will be addressing us. Their topic will be: “What you don’t know about the Court of Quebec.”

We shall continue our policy of providing a discount for early registrations.  We encourage you all to reserve your place before March 14, 2012.

The evening has been accredited for 1.5 hours of CLE credit with the Barreau. CLE certification from the Chambre des Notaires is currently pending. As you know, CLE credits are only available for paid-up members. The dinner invitation and membership application are available through our website, and we encourage you to pay and reserve online.

Many thanks to our generous sponsors McCarthy Tétrault and Stein & Stein Inc.

We look forward to seeing you at what promises to be an extraordinary evening.

Yours very truly,
Robin Schiller, President
The Lord Reading Law Society

Corporate Complicity in Abuse of Human Rights – A Review of the Annual Human Rights Lecture

Larry Markowitz

On the occasion of its annual Human Rights Lecture on November 30, 2011, The Lord Reading Law Society had the privilege of welcoming as its guest speaker The Honourable Mr. Justice Ian Binnie of the Supreme Court of Canada, who spoke of “Corporate Complicity in Abuse of Human Rights”.

Mr. Justice Binnie was preceded at the Lord Reading podium by former Chief Justice of Québec, The Honourable Pierre A. Michaud, who commended the Society on its spirit of inclusiveness – both between junior and senior lawyers, and between members of the Bench and members of the Bar – as well as for the congenial setting of its dinners.

In an introduction that Mr. Justice Binnie subsequently termed as “being worthy of André Arthur”, Mr. Justice Michaud complimented our guest speaker extensively for his skills on the Bench, in a warm and jovial manner.

During his time at the Supreme Court, Mr. Justice Binnie heard a total 964 cases and wrote 169 opinions. Adopting a more serious tone, Mr. Justice Michaud pointed out that, in all of those cases, Mr. Justice Binnie never failed to show an appreciation for human dignity.

* * *

Mr. Justice Binnie began his remarks by contrasting The Lord Reading Law Society – and its respect for human rights – with the actual Lord Reading, Rufus Isaacs, who served as Viceroy of India between 1921 and 1926.  Indeed, His Excellency, The Right Honourable The Earl of Reading was known to be quite imperialistic in his views and would probably have considered the Universal Declaration of Human Rights as a restraint on the ability of imperialists to exercise their power.

The focus of Mr. Justice Binnie’s remarks was corporate complicity in human rights violations. Multinational corporations operate across jurisdictions.  Some are so large and powerful that it could be said that they have more power than the local authorities in some of the places in which they operate.

While it is important to have societal norms, the question remains as to how such norms should be enforced, given that multinational defendants are operating in multiple jurisdictions, making it tough to obtain a judgment and even tougher to enforce that judgment.

Mr. Justice Binnie cited several examples where multinational corporations have been pursued for alleged human rights abuses. In citing these examples, Mr. Justice Binnie underlined the specific problem of abuses by “extractive companies” that operate in locations based solely on where oil and gas, and mineral deposits are found. Nobody chooses where these deposits are located.

“So what is a plaintiff to do?” asked Mr. Justice Binnie.  These are cases where people clearly suffered, so why do these people not have recourse to international tribunals?  The problem is that international tribunals, in their current form, are not set up to deal with these sorts of situations. Indeed, the International Criminal Court specifically excludes corporations from its purview.

One notable approach that has been pursued in the face of this challenge is to apply the U.S. Alien Tort Claims Act of 1789, which was originally passed to deal with piracy. This Act authorizes American courts to apply international customary law, as opposed to U.S. domestic law, in weighing these cases. Thus, U.S. courts have ended up exercising universal jurisdiction by applying universal customary law.

Such court actions are often met with arguments based on “originalism”. In other words, defendants argue that the problem must be examined in the way the world was seen in 1789 when the Alien Tort Claims Act was originally passed.  It goes without saying that norms in contemporary society differ from those of 1789!

In the Nuremberg trials that followed World War II, it was determined that corporations cannot be liable; only individuals. This precedent also makes the plaintiff’s side more difficult to prove in cases of human rights abuses perpetrated by corporations.

There is also an inconsistency in the approach taken by courts of different jurisdictions, even within the United States. For instance, in Rio Tinto, a California court decided that an act perpetrated by Rio Tinto constituted genocide, since war crimes are crimes committed on a civilian population and can include torture. In contrast, in another similar case, a New York court concluded just the opposite; that the courts of the United States do not have jurisdiction.

Thus, the route to enforcing human rights laws against multinational corporations is far from clear.

“It is ironic,” stated Mr. Justice Binnie, “that in matters of trade, finance and labour law, countries find ways to fill the gap between the laws of different jurisdictions.”  Why is it that the same logic does not apply in matters of human rights?  Why is there not the same push or a constant and consistent set of human rights norms across jurisdictions?

“There should be a forum to resolve such issues”, said Mr. Justice Binnie.  “Are villagers simply ‘road kill’ on the way to progress?” he pleaded.

Mr. Justice Binnie concluded his presentation by stating that the Canadian legal profession is being delinquent by letting this issue pass in silence.  Our guest speaker ended his speech on a hopeful note, though. It seems that the International Commission of Jurists, an international human rights non-governmental organization, is addressing this issue.

Although the original Lord Reading might not have been supportive of international human rights law, the modern Society named for him certainly is. On that positive note, our guest speaker was thanked by Society board member The Honourable Madam Justice Carol Cohen.

Lord Reading Website Changes on the Horizon

Allen Mendelsohn

As Communications Director for the Society, one of my principal responsibilities is the Lord Reading website. I am proud of the Society’s efforts to develop a website that many people (both members and the public) have told me is quite useful. To that end, I am pleased to announce that over the coming months we will be integrating a number of changes to the site that will make it even more useful, and more user-friendly.

Many people have complimented us on the new ability to pay and reserve for dinner-meetings online. However, the system we have now is less than perfect, especially for people who want to reserve for multiple attendees. The first of the website updates will feature an all-new reservation and payment system which will be considerably more user-friendly. It also includes several changes that you won’t see on the site, but that will make administration of these reservations much easier for members of the Society’s Executive as they prepare for each dinner-meeting.

This summer you can expect the other major functional change, when we implement a system for entry of membership information and payment of membership fees online. This has been a feature that many members have asked me for, and I am excited that it will be coming to pass. Again, there will be some changes you won’t see, but will make it much easier for the hard-working members of the Membership Committee to administer our growing membership.

We’ll also be making some changes to the content of the site, notably updating the big “Celebrating 60 Years” banner that is obviously out of date. We are also working on ensuring that all of the site’s content is in French, so that we can have a truly bilingual website. I am grateful to Board member Tatiana Lewin for her work in this regard.

I am looking forward to seeing these changes roll out, and having a website that will help the Society continue to grow for years to come. If you have any questions or comments about the upcoming changes, or anything else you’d like to see on the website, please email me.

Society Humour

 

News from the Mishpuchah

Thank you

  • The Society wishes to thank the firm of Collins Barrow (Montreal) for their diligent work preparing the Society’s tax returns

Mazel Tov

Condolences to

  • Past President Ted Goloff on the loss of his brother Sidney
  • Past President Allan Adel on the loss of his mother, Leah Farber
  • Donald Devine on the loss of his mother
  • Robert Pancer on the loss of his mother
  • Stella Flader on the loss of her husband Kalman Samuels QC
  • Steve Schenke on the loss of his mother-in-law
  • Martin Green on the loss of his mother
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