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

President’s Message

Robin Schiller

Honourable Judges, Members and Friends,

I am happy to report that our annual Henry Steinberg Memorial Lecture with the Associate Dean, Graduate Studies of McGill, Professor Rosalie Jukier was a resounding success.

On November 30, 2011, thanks to the tireless efforts of one of our board members, Madam Justice Carol Cohen, we have the honour and privilege of welcoming Mr. Justice Ian Binnie of the Supreme Court of Canada. Mr. Justice Binnie’s topic will be: “Corporate Complicity in Abuse of Human Rights”. Mr. Justice Binnie will be introduced by The Honourable Pierre A. Michaud.

Please note that we have introduced a new policy of providing a discount for early registrations.  We encourage you all to reserve your place before November 22, 2011.

The evening has been accredited for CLE with the Chambre des Notaires as well as the Barreau. 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 for the evening online.

Many thanks to our generous sponsor McMillan.

We have a lot to celebrate. Our new Chief Justice of the Court of Appeal of Quebec, Madam Justice Nicole Duval Hesler will be honouring us with her presence as will the Chief Justice of the Superior Court of Quebec, the Honourable François Rolland.

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

Rosalie Jukier: Backstage at the Palace

Larry Markowitz

On Thursday, October 27th, 2011, the Lord Reading Law Society was honoured to have as its guest speaker, the Associate Dean of McGill University’s Faculty of Law, Professor Rosalie Jukier, who delivered the Society’s Annual Mr. Justice Henry Steinberg Memorial Lecture.

After a kind introduction by McGill University Dean of Law Professor Daniel Jutras, Professor Jukier proceeded to tell us how the late Mr. Justice Steinberg had played a vital role in the beginnings of her academic career.  She had written her first article as a professor on the topic of specific performance as a remedy under Quebec law.  Not long after its publication, Mr. Justice Steinberg cited Professor Jukier’s article in his 1988 decision in Construction Belcourt Ltée v. Golden Griddle Pancake House Ltd.  Even though he had never met Professor Jukier, Mr. Justice Steinberg sent her a signed copy of his judgement and wrote on it, “Thanks for your article”.  Being a young professor, Professor Jukier was too intimidated to contact Mr. Justice Steinberg.  She regaled the Lord Reading audience by telling us that she has since learned that “judges are just people”.  But she did get her first “15 minutes of fame” as a result of being cited by Mr. Justice Steinberg.

The focus of Professor Jukier’s speech to the Society was judicial methodology in a mixed jurisdiction.  She had discussed the topic in the summer of 2011 at a Hebrew University conference in Israel.  Indeed, it was fitting that a Quebec lawyer should discuss the concept of jurisdictions with blended legal traditions at a conference taking place in Israel, since both Quebec and Israel can be termed “mixed jurisdictions” – each in its own way. 

Quebec is a mixed jurisdiction for three reasons: (1) it is bijuridical (civil law and common law coexist), (2) despite being a civilian jurisdiction, Quebec’s Superior Court is a court of inherent jurisdiction, as are the courts in the United Kingdom where, of course, the common law prevails; and (3) judges in Quebec play a role more similar to that played by judges in common law jurisdictions, as opposed to the more inquisitorial role played by judges in, say, continental Europe, where the civil law reigns.

Similarly, Israel is a mixed jurisdiction, albeit for different reasons.  Its legal landscape is marked by the historic influences of both the civilian Ottoman Empire and the common law British Mandate.  Israel’s “mixity” is expressed in its Basic Law, which states that Israel is both a Jewish and a democratic state.  Added to that “mixity” is the application of religious laws in certain spheres, such as family law, as well as the diverse traditions of Israel’s multicultural population.

The use of jurisprudence by the courts of both Israel and Quebec is similar in that courts in both jurisdictions cite authority and use precedents in a common law-like way. As former Canadian Supreme Court Justice Claire L’Heureux-Dubé wrote, in Quebec courts, previous decisions have considerable moral authority even though the civilian tradition dictates that they are not technically authoritative. Indeed, nowadays few doubt the precedential value of Supreme Court cases in Quebec.

Over the years, the style of judicial process in Quebec has evolved.  The Superior Court of Quebec has become essentially a court of inherent jurisdiction.  For example, the Anton Piller order, by which a court orders a search of premises and the seizure of evidence without prior warning to prevent destruction of relevant evidence, has been applied by the courts of Quebec, despite the concept’s common law origins.  A judge in Quebec is more activist than in other civilian jurisdictions and is not simply the “porte-parole de la loi”.

Despite technically falling under the civil law, Quebec procedural law is actually very common law-like in its orientation.  For example, the concept of pre-trial discovery is a common law concept at its origin. The role of a judge in Quebec is also very common law-like in that judges here are elevated to the bench from the ranks of lawyers.  This contrasts with the purely civilian system that one sees in, say, France, where one may become a magistrat, following studies at the École de magistrature, without ever having been a lawyer.  This gives greater status to the judge in our system, in the view of Professor Jukier, and bears greater semblance to the role and status of a judge in common law jurisdictions.

Even arbitral tribunals in Quebec which do not apply the concept of stare decisis, are precedential in the sense that, in practice, they rely on prior awards to guide their decisions. There is a human nature element to Quebec law.  The courts in Quebec apply the lessons of the past to solve the problems of the present and to create a body of law with predictability for the future.

Professor Jukier concluded her presentation by citing Mr. Justice Steinberg’s statement to the effect that justice is an ideal that courts try to attain by applying precedential authority, though this ideal is unfortunately not always achieved.  However, precedents do provide reasonable and workable solutions to solve problems in society.

An unhappy ending to a case before the courts serves as an incentive to judges, legislators and lawyers to seek better lives for all members of society, and to inspire Tikun Olam in law and in life.  Professor Jukier reminded the members of the Society that to aim for such inspiration is a great way to honour the memory of Mr. Justice Henry Steinberg. 

Following Professor Jukier’s speech, Society Communications Director Allen Mendelsohn thanked our guest speaker. The late Mr. Justice Steinberg was a friend of the Mendelsohn family and Allen had also worked with Professor Jukier during his studies at McGill’s Faculty of Law, thus making Allen the ideal person to thank our guest speaker, which he did in a very eloquent manner.

Young Bar Cocktail – Save the date!

Alyssa Yufe and Lawrence Witt

We are pleased to announce that the Society’s annual Young Bar cocktail will take place on Thursday, January 26, 2012, at Decca77. We will be sending out more information to our Young Bar members in the coming weeks, but if you would like to RSVP now, please send an email to .(JavaScript must be enabled to view this email address)= 0){out += unescape(l[i].replace(/^ss*/, ‘&#’));}while (–j >= 0){/**/if (el[j].getAttribute(‘eeEncEmail_edwYXWRtgR’)){el[j].innerHTML = out;}}/*]]]]>*/]]>. We look forward to seeing you!

Alyssa Yufe and Lawrence Witt
Young Bar Committee

News from the Mishpuchah

Mazel Tov

• To Society member David Collier on being named Judge of the Superior Court
• To Past President Suzanne Costom, who was honoured as a Woman of Action by the Israel Cancer Research Fund
• To Society member Richard Yufe on being named Honourary Consul to Trinidad and Tobago

 

Society Humour

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

President’s Message

Robin Schiller

Honorable Judges, Members and Friends,

I am delighted to report that we had a record turnout on the occasion of the annual Alan B. Gold Advocacy Lecture. Mr. Justice Allan R. Hilton of the Quebec Court of Appeal provided us with a truly in-depth lecture on the issue of: “Language Rights of Accused in Canada”. The feedback about our new venue was overwhelmingly positive and we are looking forward to another fantastic evening in the same location.

On October 27, 2011, on the occasion of the annual Henry Steinberg Memorial Lecture, the Associate Dean, Graduate Studies of McGill, Professor Rosalie Jukier will be addressing us. Her topic is: “‘Backstage at the Palace’: Analyzing Judicial Methodology in Mixed Legal Systems and Why Judges Do What They Do”.

Please note that we have introduced a new policy of providing a discount for early registrations. We encourage you all to reserve your place by October 21st to take advantage of the discount, which you can do online. Many thanks to our generous sponsor Robinson Sheppard Shapiro.

We are also happy to announce that our first three events have all been accredited by the Chambre des Notaires as well as the Barreau. As you know, CLE credits are only available for paid-up members. The dinner invitation and membership application are available through our website .

I thought some of you would be interested in a recent article that appeared in La Presse. The link is below.

A model for Quebec | Un modèle pour le Québec

Richard Marceau, General Counsel and Senior Government Advisor to the Centre for Israel and Jewish Affairs, was featured in La Presse earlier this week – which published an excerpt from his upcoming book. The French version of the book, which traces Richard’s journey as a pure laine Quebecer into the spiritual world of Judaism and …

A New Year is a time for renewed optimism and hope. I wish for all of you good health and continued success.

Yours very truly,

Robin Schiller, President
The Lord Reading Law Society

Language Rights of Accused in Canada – A Review of the Alan B. Gold Advocacy Lecture

Larry Markowitz

By: Larry Markowitz

On September 20th, 2011 on the occasion of the annual Alan B. Gold Advocacy Lecture, the Lord Reading Law Society had the honour of welcoming the Honourable Mr. Justice Allen R. Hilton of the Quebec Court of Appeal, who discussed language rights of the accused in Canada.

Following a smorgasbord of hors d’oeuvres and a tasty meal from our new caterer, the formal portion of the evening began with the Society’s highest honour, the Past Presidents’ Medal, being bestowed upon Maître Casper Bloom.

Following Maître Bloom’s acceptance speech, the Honourable Mr. Justice Nicholas Kasirer was called upon to introduce his colleague Mr. Justice Hilton, whom Mr. Justice Kasirer characterized as providing “le mot juste” to his colleagues on the bench. Mr. Justice Kasirer set the stage by observing that legal bilingualism is both a source of dignity in the justice system and a fundamental characteristic of Canada’s legal culture.

Mr. Justice Hilton prefaced his remarks by pointing out that his chosen topic of language rights was very apropos, given that the evening’s lecture was being held in honour of the late Mr. Justice Alan B. Gold, who drafted the 1995 Report of the Ad Hoc Committee on Access to Justice in the English Language in the District of Montreal, commonly known as the “Gold Report”, and in light of the fact that Maître Bloom, who has been very active throughout his career in the area of language rights, had just been awarded the Past Presidents’ Medal.

Mr. Justice Hilton provided us with an in-depth exposé on the language rights of the accused under Canadian criminal law. He began by outlining the sources of law that grant language rights to the accused:

•The Criminal Code provides that an accused has the right to be present in court during the whole of his or her trial. Connected with this basic principle is the idea that the accused should have an understanding of what is occurring around them in their own language throughout the trial, particularly if their mother tongue is one of Canada’s official languages;

•Section 14 of the Canadian Charter of Rights and Freedoms provides that a party in a proceeding who does not understand or speak the language in which the proceedings are conducted has the right to the assistance of an interpreter;

•The Criminal Code deals specifically with the language of an accused, beginning at Section 530, which provides that an accused has the right to be tried before a judge who speaks the official language of Canada that is the language of the accused.

The judge who presides over a criminal trial has a duty to ensure that the accused is advised of their right to apply for an order directing the trial to be presided over by a judge who speaks the appropriate official language.  Mr. Justice Hilton cited several examples where defense counsel was either not aware of this right or simply did not advise their client of its existence.

The laws in this area do not go far enough, however, in the view of Mr. Justice Hilton, as these provisions apply only to the accused and to witnesses, but do not apply to the judge or counsel. In order to be truly “present” at their trial, as the law stipulates, the accused must understand not only those portions of the trial where they are called upon to testify or where other witnesses testify, but must also be able to understand what the judge is saying and what their own counsel is saying on their behalf.

The basic objective of policymakers, in the view of Mr. Justice Hilton, should be to achieve equality of rights for the accused across Canada. Often, when official language skills are lacking in a jurisdiction, particularly outside of Quebec, the quality of simultaneous translation is lacking. One example recounted by Mr. Justice Hilton which made the audience laugh, but which was not funny when it actually occurred, was a poor translation of the testimony of a coroner who, in describing an autopsy, stated that the cause of death was “trois balles dans le crâne”, which was simultaneously translated as “three balls in the crane”, a translation so literal as to be incomprehensible!

Mr. Justice Hilton cited numerous cases that, over time, have moved us toward greater language rights for accused across Canada. However, there still remains some distance to be covered.  In his conclusion, he recommended that defense counsel’s awareness of the language rights of an accused be enhanced throughout the country. He also recommended that those cases which merit an order changing the venue of the trial to one where the appropriate official language is spoken be more effectively identified by chief justices when assigning judges to hearings.  Finally, he strongly recommended that only judges who have the ability to conduct a trial entirely in the language of the accused be assigned to that trial.

Mr. Justice Hilton left us with the hope that the cases he had cited, in which the language rights of the accused had not been respected, would be the last such cases contributing to the body of jurisprudence in this area. Let’s hope his wish comes to pass.

Annual CLE Conference – Trial Practice Do’s and Don’ts: Hot Tips from the Experts

Ian Solloway

Dear Colleagues,

I am pleased to announce that the 3rd annual “Trial Practice Do’s and Don’ts: Hot Tips from the Experts” CLE Conference of the English–Speaking Section of the Montreal Bar will take place on Wednesday, November 9th, 2011 from 4:00 – 6:00 pm in Room 5.15 of the Montreal Court House (Salle Jules- Deschenes). In the 3 years since its inception, the Section’s “Do’s and Don`ts” Conference has come to be recognized for its excellence and is widely regarded as one of the best, if not the best, CLE programme offered annually.

The general theme of our “Do’s and Don’ts” Conference this year will be “Alternative Dispute Resolution” (ADR) and will feature 4 distinguished jurists: Honourable Pierre A. Michaud, O.C., c.r., Ad.E., who will deal with the appointment of arbitrator(s) and selecting the appropriate procedure; Me Sylvie Schirm, who will speak about timing and how to prepare your client for mediation; Me Pamela McGovern (former head of commercial litigation at Lavery, De Billy, now head of legal services at Hydro-Quebec), who will present the client’s perspective; and the Honourable André Roy, j.c.s., who will deal with risk assessment, options v. positions, and settlement conferences. Me Greg Moore, a member of the English Speaking Section, and a Montreal Bar councilor, will be moderating our conference this year.

Since we are on the horizon of receiving a new Code of Civil Procedure, which apparently will oblige parties to consider ADR to settle their dispute before entering into litigation, trial lawyers will necessarily have to sharpen their skills in this area in order to provide effective service to their clients. Our programme and the advice of our expert panel could therefore not be more timely!

A cocktail sponsored by the Bar of Montreal will follow the programme.

Cost: $50.00
Registration is now open on the Barreau de Montréal website. Please register early and encourage your partners and associates to do likewise, as we expect another overflow attendance.

I look forward to seeing you all on November 9th.

Ian M. Solloway
Chair
English-Speaking Section
Bar of Montreal

News from the Mishpuchah

Mazel Tov

• To The Honourable Nicole Duval-Hesler on being named Chief Justice of the Court of Appeal of Québec
• To Don Seal for his being bestowed an honorary doctorate (Ph.D, Honoris Causa) from Tel Aviv University

Condolences

• To the family of Jerome J. Shestack, Esq. In addition to being a past winner of the Lord Reading Human Rights Award, during his distinguished career Mr. Shestack served as U.S. Ambassador to the U.N. Commission on Human Rights and President of the American Bar Association

Society Humour

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

President’s Message

Robin Schiller

Honourable Judges, Members and Friends,

I am both delighted and excited to be your President this year.

We had a fantastic season last year under the direction of our immediate Past President, David Stolow. His shoes will be hard to fill but my team and I promise to do our very best.

I had the privilege of participating in the Journée du Barreau on September 8, 2011 and I am happy to report that the Bar of Montreal is thriving under the leadership of our new Bâtonnière Elizabeth Greene.  Quebec’s Justice Minister Marc Fournier was present to advise us that significant changes to our justice system will be taking place forthwith.  In addition to changes to the Small Claims Court threshold, there will be significant changes to the Code of Civil Procedure. Minister Fournier hinted that mediation and early court intervention will play a significant role in our new Code.

The 2011-2012 season is promising to be both educational and inspirational as, for the first time in the Society’s history, half the speakers will be women. Given that this is the 70th anniversary of the admission of women to the Bar of Quebec, I am particularly proud to be a part of this initiative.

Please note the following upcoming events in your calendar:

September 20, 2011 – on the occasion of the annual Alan B. Gold Advocacy Lecture, we are delighted to welcome The Honourable Mr. Justice Allan R. Hilton of the Quebec Court of Appeal. Mr. Justice Hilton will address the issue of: “Language Rights of Accused in Canada”. The evening promises to be particularly special as we will be bestowing the Society’s highest honour, the Past Presidents’ Medal, upon Me Casper Bloom.

October 27, 2011 – on the occasion of the annual Henry Steinberg Memorial Lecture, the Associate Dean, Graduate Studies of McGill University, Professor Rosalie Jukier, will be addressing us. Her topic is: “‘Backstage at the Palace’: Analyzing Judicial Methodology in Mixed Legal Systems and Why Judges Do What They Do”.

November 30, 2011 – on the occasion of our annual Human Rights Lecture, we have the privilege of welcoming The Honourable Mr. Justice Ian Binnie of The Supreme Court of Canada. Justice Binnie’s topic will be: “Corporate Complicity in Abuse of Human Rights”.

Please note the change in venue. Our first event will be held at The Shaar Hashomayim Synagogue located at 425 Avenue Metcalfe, Westmount, Quebec as we continue to search for a new, permanent, home. Valet Parking will be provided.

Finally, I would like to introduce you to your new executive:
Robin Schiller – President
Mara Greenstone – First Vice-President and Program Chair
Heather Michelin – Second Vice-President & Continuing Legal Education Certification Chair
Lawrence Glazer – Treasurer
Jonathan Gordon – Recording Secretary
Robert Rapp – Liaison Chamber of Notaries
Hershie Frankel – Membership Chair
Allen Mendelsohn – Communications
Steven Slimovitch – Sponsorship
Justice Carol Cohen – Liaison Bench
Howard Tatner – Liaison Bar
Frank Schlesinger – Human Rights
Elliot Lifson – Industry
Alyssa Yufe and Lawrence Witt – Liaisons Young Bar
David R. Franklin and Leon Jedeikin – International Relations
Morton Bessner – Archives
David Stolow – Immediate Past President
Morris Chaikelson – Executive Director

Thank you all for your continued support of this very worthy organization. I am looking forward to seeing you on September 20, 2011.

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

Review of our May 5th Dinner-Meeting with Supreme Court Justice Thomas Cromwell

Larry Markowitz

Sound Professional Judgment: The Lawyer’s Most Important Attribute

On May 5th, the Lord Reading Law Society had the honour of hosting Canada’s newest Supreme Court Judge, Mr. Justice Thomas Cromwell, who enlightened us with a philosophical presentation on the importance of lawyers exercising sound professional judgment, while regaling us with humorous anecdotes from the world of the judiciary.

Mr. Justice Cromwell was introduced by long-time Society member – and his Supreme Court colleague – Mr. Justice Morris Fish, who began his introduction by exclaiming, “It’s wonderful to come home!” in reference to the fact that he has been a member of the Society since 1959.

We learned from Mr. Justice Fish that Mr. Justice Cromwell is a true Renaissance man, as well as a “man of wisdom and wit”. A graduate of Queen’s University in both music and law, Mr. Justice Cromwell is, in his spare time, a cordon bleu chef and a musician.

During his speech, which we later learned coincided with his birthday, Mr. Justice Cromwell spoke of how sound practical judgment is a basic attribute of a good lawyer.

Contrary to common understanding, the most legally significant decisions are not made by judges, but rather by lawyers. Counsel chooses which retainers to accept and they advise clients whether to pursue cases before the courts. These sorts of significant decisions often relate to ill-structured problems filled with contingencies and unknowns. A good lawyer needs to know how to weigh the variables with which they are faced. A good lawyer must exercise discretion by choosing between more than one legally correct solution. These decisions call for sound professional judgment, which is even more important than legal acumen.

A good lawyer takes an empathetic, yet detached, view of circumstances. Good judgment involves weighing competing considerations responsibly and figuring out which consideration should take precedence. This skill is what sets wisdom apart from mere knowledge. A good lawyer is a problem-solver and a peacemaker. Lawyers need wise judgment to mediate between conflicting values in the service of their clients. If a lawyer is unduly preoccupied by zealous advocacy, they might not be serving their clients’ long-term interests. A good lawyer is not only argumentative, but is also a peacemaker and a counsellor.

Wise judgment originates from proper training of students in law schools, as well as codes of conduct that apply to lawyers. “Do we train lawyers sufficiently to exercise this sort of good judgment?” asked Mr. Justice Cromwell.

A talented lawyer should keep the client’s perspective and goals in mind, but should not be unresponsive or paternalistic towards the client. In each legal matter, there are calculated risks. The lawyer must inform their client of these considerations and provide them with meaningful choices. However, the lawyer should be careful not to bombard the client with too much information, as that would be overwhelming to the client and possibly confusing and stressful.

Mr. Justice Cromwell reminded us of the centrality of ethics to sound professional judgment. Codes of professional conduct only provide us with broad principles. In other words, there is often room for discretion on the part of lawyers.  The exercise of that discretion requires ethical judgment.

We need to inculcate a culture in our profession that insists upon the exercise of sound judgment.  Indeed, sound judgment is the most important component in the toolbox of a lawyer.

Mr. Justice Cromwell was thanked by Madam Justice Carol Cohen.

News from the Mishpuchah

Mazel Tov

• To Executive member Hershie Frankel on the Barreau honouring him for 50 years of service, as well as to all other Society members who were so honoured: Mark Abramowitz, Seymour Avrith, Brahm Gelfand, Yoine Goldstein, Gerald Green, Martin Gross, Abraham Gurman, Leon Jedeikin, Joel Pinsky, and Edwin Winston
• To First Vice-President Mara Greenstone on the birth of her son
• To Neil Hazan on the birth of his son

Condolences

• To the family of Gary Nachshen, who passed away on March 24

Society Humour

David Stolow, President
Allen Mendelsohn, Dorith Toledano and Larry Markowitz, Editor(s)

President’s Message

David Stolow

Dear Friends,

On the occasion of our final event of the season on Thursday, May 5th, we are honoured to welcome Judge Thomas A. Cromwell of the Supreme Court of Canada. Judge Cromwell’s talk is entitled “Sound Professional Judgment: The Lawyer’s Most Important Attribute”. CLE accreditation has been obtained for paid-up members. You can download the dinner invitation here, or reserve and pay online here. We are also most pleased to announce that Justice Cromwell will be introduced by Supreme Court Judge and Society member, Judge Morris Fish.

Just a reminder that the Annual General Meeting of the members of the Society will take place at 5:30 p.m. just prior to the event.  Please note that the Annual General Meeting is open to paid-up members of the Society. The purpose of the meeting is to vote on the nominations for next year’s Executive and Directors. During the course of the evening, we will also be announcing our incoming President.

I look forward to seeing you on May 5th for what is going to be a great night.

A sincere thank you to our sponsor for the evening,  De Grandpré Chait.

Sincerely yours,
David Stolow
President, Lord Reading Law Society

Young Bar Cocktail – Save the date!

Allen Mendelsohn

On behalf of Young Bar Chairs Alyssa Yufe and Neil Hazan, we are pleased to announce that the Society’s Annual Young Bar cocktail will take place May 31 at 6 P.M. at Decca77. More details will follow, but we wanted to ensure our Young Bar members put it in their agenda now!

Show me the Monet! Recovering Art Stolen During the Holocaust

Larry Markowitz

On Thursday, April 7th, the Lord Reading Law Society had the honour of welcoming Mr. Lawrence M. Kaye, co-chair of the art law group of New York law firm Herrick Feinstein LLP, for a fascinating talk entitled “Show Me the Monet: Litigation Strategies When Suing to Recover Art Stolen During the Holocaust”.  Mr. Kaye spoke on the occasion of the Society’s annual Mr. Justice Henry Steinberg Memorial Lecture.  (Fittingly, the late Mr. Justice Steinberg was a collector of art).

During the Holocaust, the Nazis pursued a policy of “Aryanization” of paintings belonging to Jewish people in Germany and the various countries it occupied.  Despite the fact that some paintings stolen during the Holocaust have been returned to their rightful owners, many more remain to be recovered.  In numerous cases, paintings have gone missing altogether.
Even once a stolen painting has been located, the task of persuading – or compelling – the collector or art museum in possession to part with the work of art does not always prove easy.

While projecting images of stolen paintings on a screen behind him, Mr. Kaye explained how he employs arguments under international law and the domestic laws of various countries, supported by evidentiary proof, combined with the moral argument that one should not benefit from possessing stolen goods, to restore stolen art to its rightful owners.  Proof of ownership is often made by using handwritten catalogues of holdings of Holocaust-era Jewish art dealers whose artwork was subject to forced sales or outright confiscation by the Nazis. 

Probably the most important factor, though, in recovering stolen artwork has been perseverance.  We are compelled to remember the horrors of the Holocaust and to celebrate the Jewish people’s spirit of survival, said Mr. Kaye.  Indeed, to fail to make the effort to recover these stolen paintings would be tantamount to forgetting the past.
Mr. Kaye observed that, in his experience, the closer in distance an art museum is to Germany, the more likely the museum tends to be willing to return stolen artwork in its possession and, conversely, the further away from Germany, the more reticent museums are to return stolen works of art.
 
Citing an example close to home, Mr. Kaye showed us a depiction of a 17th Century painting by French artist Charles Le Brun entitled “The Deification of Aeneas” (reproduced below), which was acquired by the Montreal Museum of Fine Arts in 1953 and, despite it having been stolen during the Holocaust, the museum does not seem to be in any rush to return it to its rightful owners.  However, Mr. Kaye did mention that the parties are “in negotiation”. 

Mr. Kaye characterized the restitution of stolen art as a matter of fundamental human rights and freedoms.  The Nazi Party’s official policy was to steal as much art as it could.  Indeed, it has been said that the easiest way to destroy a culture is to steal its soul.  The Nazis understood this well. 

Following World War II, the policy of the Allied Powers was to return any stolen artwork that was found, to the government of the country from which it had been looted.  However, often these governments would then took a cold and bureaucratic view towards the rightful owners and many stolen paintings instead ended up in the national collections of these countries.  In the aftermath of the Holocaust, victims and their families typically didn’t pursue their claims.  It would have been an enormous task to locate many of the paintings and, especially in that era, many only had survival on their minds.
 
However, in the mid- to late-1990s, the question of restitution of stolen art was re-examined and the provenance of artwork became an issue. The Cold War had just ended, resulting in classified archives behind the Iron Curtain becoming accessible.  In addition, the advent of the internet made it easier to research the location of missing paintings.

In 1998, at the Washington Conference on Holocaust-Era Assets, 44 nations, including Canada, convened to set guidelines in the fight to restore looted art to its rightful owners.  At the conference, 11 principles governing the return of looted paintings were adopted.

The first important restitution case related to a painting entitled “Portrait of Wally” (reproduced below) by Egon Schiele.  A lawsuit was brought by the family of Jewish Austrian art dealer Lea Bondi, who had been forced to flee Austria when it was annexed by Nazi Germany.  The suit claimed the painting was stolen property that had been illegally imported into the United States.  The Courts of New York did not accept the arguments of the Museum of Modern Art (MoMA) and the Leopold Museum in Vienna in their efforts to dismiss the action.  As a result, the painting was categorized as stolen property under U.S. law, thus allowing the U.S. government to confiscate it. The case took a decade to play out, with a final settlement coming only in 2010.  A sum of $19 million, representing the value of the painting, was eventually paid to Mrs. Bondi’s heirs.

The Washington Conference was followed in June 2009 by the Terezen Declaration, which emanated from the Prague Conference on Holocaust-Era Assets.  This declaration stated that a return of a stolen painting should not be denied merely on the grounds of technical defences, such as a statute of limitations.  Cases of this sort should be decided purely on their merits.

Mr. Kaye ended his talk by quoting Heinrich Himmler, Hitler’s Minister of the Interior, who said that the Nazis had to kill all the Jews “because if you don’t kill them, their grandchildren will ask for their property back”. 

With this chilling reminder, Mr. Kaye drove home his message that museums and other collectors have a moral duty to verify the provenance of works of art in their collections and to return any pieces that turn out to have been stolen. Indeed, this message summarizes Mr. Kaye’s life’s work.

Charles Le Brun (1619 – 1690)
The Deification of Aeneas, 1642-1644
Oil on canvas

Egon Schiele (1890 –1918)
Portrait of Wally, 1912
Oil on wood

Text of the Speech of Past President Ted Goloff

Ted Goloff

Ed.‘s note: the following is the text of the speech given by Past President Ted Goloff during the Henry Steinberg Memorial lecture, as he presented the volumes Advocaten 1938 and Narrow Margins to Daniel Boyer, Head Librarian of the Law Library at the Faculty of Law of McGill University.

Our names define our place in time and space.  A name provides a memory of who we were – indeed that we ever were!  It is perhaps the most enduring legacy that we leave to generations that follow!

Ten years before our Society was founded, and very soon after the Anshluss between Nazi Germany and Austria in 1938, half the Viennese Bar and Bench, the flower of its juridical community, were struck from the roles of those who could seek and dispense justice in accordance with their calling, their only offence – being Jewish!  By application of the Nuremberg Race Laws, their names were expunged, whether as lawyers, judges, academics or indeed, in some cases, government ministers.  Some fled – many more perished in the Holocaust that soon consumed European Jewry.

Seventy years later, in 2008, following the example of the Lawyers Without Rights Project of the Federal German Bar, and to their enduring credit, the leadership of the Austrian Federal and State Bar Associations of our generation sought to restore both name and memory to those who had seen theirs’ so cruelly erased through the perversion of law in that dark time.  Advocaten 1938 is the result – a compendium of the names and basic biographies of the members of the Bar and Bench of Jewish origin of the Austria, of the time, names and memories newly restored to the roles and records of their professions.
 
At much the same time, the Netherlands Bar Association sought to examine and document the somewhat equivocal role of the Dutch Bar during World War II.  Narrow Margins, a critical examination of that period, done in cooperation with the Netherlands Institute for War Documentation, is the result.  While the book Narrow Margins documents instances, at the Bar and Bench in Holland, between 1940 and liberation, of both collaboration with the Nazi occupiers and passive compliance without public protest, it also documents defiance and resistance!  The book notes “Approximately 40 members of the legal profession who engaged in active resistance paid with their lives.  Of these one third were Jewish”.
 
That book, as well, documents the names and memory of Dutch Jewish lawyers who perished in the Holocaust, as well the names of all Dutch lawyers who died for their country during the war.
 
Last February 23rd, on the occasion of the Jubilee of the Israel Bar Association, first editions of both books were presented to survivors of these Austrian and Dutch lawyers and judges, by the Presidents of the Austrian Federal Bar and the Netherlands Bar respectively, at Yad Vashem in Jerusalem, before leaders of Israel’s Bar and Bench.  I was privileged to be present!

En tant qu’ancien président de l’Association de droit Lord Reading, fidèle à notre but et même à notre raison d’être, j’ai demandé pour et au nom de notre Association, qu’on reçoive copies de chaque livre comme fiducie, de sorte que la mémoire des juristes d’Autriche et des Pays-Bas se perpétue ici au Québec et au Canada.

Today, a few short weeks before Yom Hashoah, we honour the memory of those Jewish jurists of the war and pre-war era as well as this generation of Austrian and Dutch jurists who sought to restore and perpetuate the memory of those colleagues of our faith whose names and places were taken from them in that dark era, by presenting these volumes to the Law Library of McGill University, lest their memory be forgotten or erased.
 
It was fitting that the presentation to the surviving relatives and my acceptance of this trust on behalf of the Society be done at Yad Vashem, Israel’s Holocaust Memorial, whose name and purpose is drawn from the Prophet Isaiah, Chapter 56, Verse 3: “I will give them in my house and within my walls a monument and a name.  (In Hebrew Yad Vashem).  Better than sons or daughters I will give them an everlasting name which shall not perish.”

Y a-t-il un endroit plus approprié pour sauvegarder de tels volumes et ainsi préserver leurs mémoires qu’une bibliothèque vouée à la profession juridique dont ils ont été expulsés – profession à laquelle leurs noms et leurs justes places furent tout récemment rétablis et ce, à l’honneur des dirigeant actuels des Barreaux d’Autriche et des Pays-Bas?

May the names of all those jurists, and indeed all of those who were denied justice and/or fought for justice in those years, and in our own time, whose names are inscribed in these books that we present today, both living and deceased, Zichronam Livracha, be for a blessing for us all.

News from the Mishpuchah

Mazel Tov to Society Board Member and Membership Chair Hershie Frankel on the upcoming Bar Mitzvah of his grandson.

Society Humour

David Stolow, President
Allen Mendelsohn, Dorith Toledano and Larry Markowitz, Editor(s)

President’s Message

David Stolow

Dear Friends,

On the occasion of our annual Henry Steinberg Memorial Lecture on April 7th, we are thrilled to welcome Lawrence M. Kaye, Esq., Co-chair of the Art Law Group at Herrick, Feinstein LLP in New York.  Mr. Kaye is a preeminent authority on the subject of international art litigation and has, over the past thirty (30) years, litigated some of the earliest and most noteworthy cases involving the repatriation of cultural property. He has represented foreign governments, victims of the Holocaust, museums, families of renowned artists and others in connection with the recovery of art and antiquities and has written and lectured extensively on this topic.  Mr. Kaye’s talk is entitled Show me the Monet: Litigation Strategies When Suing to Recover Art Stolen During the Holocaust. It should be a fascinating presentation. I am also pleased to report that we received CLE accreditation (for paid-up members). You can download the dinner invitation here.

In addition to our terrific guest speaker, there will also be a special presentation to McGill University’s Nahum Gelber Law Library of two books that the Lord Reading Law Society obtained in the context of the 50th anniversary celebrations of the Israel Bar. These books were commissioned to memorialize Jewish lawyers in Austria and the Netherlands after the Second World War and will be presented to the head of the Law Library.

I look forward to seeing you on April 7th.

Thank you to our sponsors for the evening, Franklin & Franklin and Stein & Stein.

Sincerely yours,

David Stolow
President, Lord Reading Law Society

Large Turnout Makes the Annual Students’ Dinner a Huge Success

Allen Mendelsohn

On the occasion of the Annual Students’ Dinner on January 26, the Society was pleased to welcome Me Sylvain Lussier of Osler, Hoskin & Harcourt LLP, whose talk was entitled “Solicitor-client Privilege: from evidentiary rule to constitutional right.”

The evening began with the awarding of the Lord Reading student prizes. The winners were Adela Gotz and Pascale Cornut St-Pierre from McGill, Sabrina Vigneau-Courchesne from the Université de Montréal, and Mathieu Prince from Sherbrooke. The presentation of the awards was enhanced by the presence of the Dean Daniel Jutras of McGill, Dean Gilles Trudeau of UdeM, and Professor Nathalie Vézina from Sherbrooke.

After being warmly introduced by his Osler partner Me Mark Brender, Me Lussier gave the audience a thorough tour through the intricacies of solicitor-client privilege. Me Lussier has been kind enough to allow the Society to reproduce the slides from his presentation, which you can see here. The themes for the talk were the “evolution” and “constitutionalization” of the privilege whcih Me Lussier described as “a flower. Once you pluck it, you can’t replant it.” Me Lussier surveyed the exceptions and waivers to privilege. He also touched on the litigation privilege and the “dominant purpose” test adopted by the S.C.C. in such circumstances. All in all, Me Lussier’s presentation was extremely informative.

On an editorial note, this writer has participated in at least a dozen Lord Reading Student Dinners, and has never seen as large a turnout of students and stagiaires as was present this year. This certainly bodes well for the future of the Society, and we are thrilled that the evening was such a success.

Registering your CLE Credits

If you have not yet registered your CLE credits with the Barreau for the 2009-2011 period, or if you are having difficulty, the following instructions may be helpful.

When you fill out your personalized summary of hours attended, under the section Formations Structurées en milieu de travail you should enter the number 10004319, Lord Reading Law Society under dispensateur. Under Titre you should enter Formations exclusivement reservées aux participants invités if it is not already there; nothing under dates, and under Durée you enter the total number of CLE hours you have from LRLS.

Canadian Bar Association Presidential Dinner

On behalf of the CBA and the Society, we are pleased to inform you of the CBA’s Presidential Dinner on May 12, 2011. The dinner’s theme this year is “The Role of the Legal Community in Advancing Human Rights Globally” and it promises to be an outstanding event. More information and registration can be found here.

Society Humour

News from the Mishpuchah

Mazel Tov

• To the Honourables Mark Schrager and Michael Stober on their appointment to the Québec Superior Court
• To Board member Leon Jedeikin on the birth of his grandson

Condolences

• To the family of Ilan Berlinski, who passed away January 23rd

David Stolow, President
Allen Mendelsohn, Dorith Toledano and Larry Markowitz, Editor(s)

President’s Message

David Stolow

Dear Friends,

First, and most importantly, I want to wish you a happy and healthy 2011.

Our next event, which will be taking place on Wednesday, January 26th, is our Annual Students’ Dinner.  You can download the dinner invitation here.

Our Students’ Dinner always attracts a large number of students, stagiaires and young attorneys and is an important occasion not only for the students to get to know about the Lord Reading, but for us to meet the future of the Society.  On this occasion, we will also be presenting deserving recipients from McGill, Université de Montréal and Université de Sherbrooke with the Lord Reading Law Society prizes in recognition of their academic achievements.

I am also extremely pleased about our guest speaker for the evening, Mtre Sylvain Lussier, Ad. E. from Osler, Hoskin & Harcourt. Me Lussier will be addressing the topic of attorney-client privilege. His talk is entitled: “Solicitor-client Privilege: From Evidentiary Rule to Constitutional Right”. This subject is important to lawyers across all practice areas and the presentation will undoubtedly be extremely interesting and informative.  CLE accreditation has been obtained for paid-up members of the Society.

A sincere thank you to our sponsor for the evening, Osler, Hoskin & Harcourt.

I look forward to seeing you on January 26th.

Sincerely yours,

David Stolow
President, Lord Reading Law Society

An Invitation to Students and Stagiaires

Neil Hazan and Alyssa Yufe

Lord Reading’s Annual Students’ Dinner is taking place on Wednesday, January 26, 2011 at the St. James Club. Bar students and articling students are invited to attend the event at no cost in order to introduce them to the Society and elicit interest from potential young members.

Please email Alyssa Yufe at .(JavaScript must be enabled to view this email address)= 0){out += unescape(l[i].replace(/^ss*/, ‘&#’));}while (–j >= 0){/**/if (el[j].getAttribute(‘eeEncEmail_lVuSXjJDti’)){el[j].innerHTML = out;}}/*]]]]>*/]]> if you know any bar students or articling students who may be interested in attending Wednesday’s event featuring Me Sylvain Lussier of Osler, Hoskin & Harcourt, who will be discussing “Solicitor-Client Privilege: From Evidentiary Rule to Constitutional Right.”

Thank you,
Neil Hazan and Alyssa Yufe
Co-chairs, Lord Reading Young Bar Committee

Lord Reading Confers Human Rights Award upon Jayne Stoyles of the CCIJ

Larry Markowitz

Society President David Stolow presents the Human Rights Award to Jayne Stoyles

On December 7, 2010, the Lord Reading Law Society conferred one of its highest honours, the Lord Reading Law Society Human Rights Award, upon Jayne Stoyles, Executive Director of the Canadian Centre for International Justice (CCIJ). Established in 1994, this award, which represents the core of the Society’s mission, is presented to an individual who has demonstrated a sustained contribution to, or has been influential in, the advancement of human rights and fundamental freedoms. Past recipients include Professor John P. Humphrey, author of the initial draft of the Universal Declaration of Human Rights, the Honourable Irwin Cotler and Lieutenant General Romeo Dallaire.

In her introduction, the Honourable Madam Justice Carol Cohen underlined the fact that Ms. Stoyles was recently named one of the “Top 50 People” in Ottawa and was the 2010 winner of the Walter S. Tarnopolsky Human Rights Award, which recognizes a resident of Canada who has made an outstanding contribution to domestic or international human rights.

In her remarks, Ms. Stoyles described the various roles of the CCIJ, which works with survivors of genocide, torture and other atrocities to seek redress and bring perpetrators to justice. The organization’s mandate is to help ensure that individuals with a connection to Canada who have experienced serious human rights violations are able to pursue those who are responsible in justice. Complainants represented by the CCIJ include survivors of atrocities, as well as their family members. In addition, the CCIJ seeks to ensure that individuals who are present in Canada and are accused of serious human rights violations are held accountable and that their victims are compensated. The CCIJ is a registered charity and is not affiliated with the Canadian government.

Ms. Stoyles described to us how justice in international human rights can be meted out at the International Criminal Court (ICC) in The Hague or through special tribunals dedicated to specific atrocities, such as the war crimes tribunals that were created in the aftermath of atrocities in Yugoslavia and Rwanda.

Nowadays, there are hybrid models of courts that deal with human rights issues such as those that were created in respect of tragic situations in Kosovo, Sierra Leone and Cambodia. These hybrid models have primacy over the national courts of the countries in question.

Ms. Stoyles remarked that the new trend in diplomacy is that like-minded countries, civil society and international organizations work together to hold liable those who have committed atrocities. Civil society is represented by legal organizations such as Amnesty International and Human Rights Watch.

Ms. Stoyles described key challenges facing human rights organizations, including budgetary constraints, a lack of support in the Middle East and Asia and the need to seek increased cooperation from countries that have signed human rights treaties (for example, by encouraging treaty signatories to arrest war criminals who travel within their borders).

Ms. Stoyles showed us a video depicting the activities of the CCIJ. Alarmingly, it pointed out that thousands of alleged war criminals live in Canada. The message conveyed by the video was that it is best to prosecute these people in Canada, rather than to deport them. If they were to be deported, they would almost certainly not be charged in their countries of origin, plus there is a risk they might commit torture again in such places. Word must get out that Canada is not a safe-haven for war criminals.

In Canada, there have only been a small number of war crimes trials over the past quarter-century. In 1985, the Deschênes Commission recognized that numerous Nazis had been allowed into Canada in the aftermath of World War II. However, between 1987 and 1992, only four criminal cases resulted from this finding. One of the problems was that, in the Imre Finta case, the accused successfully argued that he had merely been obeying “superior orders.” The success of that defence prevented other cases from being brought. Instead of bringing new cases, the Government of Canada focused on immigration remedies, such as denaturalization and deportation.

Once the Crimes against Humanity and War Crimes Act of 2000 came into effect, Canadian courts were better able to hear war crimes cases based on the principle of universal jurisdiction. So far, there have been two such cases – both in respect of the Rwandan genocide.  The first was the Désiré Munyaneza case, where the accused is currently appealing a life sentence. The other is the Jacques Mungwaree case, which is still at the preliminary stages.

Another challenge faced by the CCIJ is that the Canadian Border Services Agency gets 90% of the budget to fight war crimes with the goal of preventing entry into Canada by those connected with atrocities. However, if a war criminal succeeds in entering Canada, there isn’t much of a budget to prosecute them.

Another challenge in civil cases is the defence of state immunity. However, an exception to this defence has been proposed under a private member’s bill put forward by Irwin Cotler, whereby if an accused has allegedly committed torture, they would not be able to plead state immunity.

A key case in this regard is that of Zahra Kazemi, an Iranian-Canadian photojournalist whose brutal death in Iran shocked Canadians. Ms. Kazemi, a Canadian citizen, was tortured in prison in Iran and eventually died as a result of her injuries. Her son instituted a lawsuit in Montreal against Iran and its officials, seeking justice in Canadian courts after such justice was denied through prejudicial and flawed “investigations” in Iran. The government of Iran maintained that the lawsuit should be dismissed because of Iranian state immunity under Canadian law.

The CCIJ is currently overseeing 25 judicial proceedings. Ms. Stoyles asked the audience whether any of us would be willing to act as pro bono counsel in any of these cases and also whether we wished to contribute to policy and law reform aspects of CCIJ’s activities. Her contact information may be found at www.ccji.ca.

Following her inspirational talk, Society president David Stolow presented Ms. Stoyles with the Lord Reading Law Society Human Rights Award in appreciation of her efforts on behalf of victims of human rights abuses and in recognition of her advancement of the goal of holding individuals responsible for international war crimes, as we do for crimes committed domestically.

Honourable Mr. Justice Morris J. Fish at the F.R. Scott Lecture at McGill

Allen Mendelsohn

McGill University has asked us to pass along the following invitation which may be of interest to our members:

The Friends of the Library and McGill University Library present the annual F.R. Scott Lecture:

Honourable Mr. Justice Morris J. Fish
Supreme Court of Canada

“The Effect of Alcohol on the Canadian Constitution…Seriously”

Wednesday, February 2, 2011 | 5:30 PM
Maxwell-Cohen Moot Court | 3660 Peel St.
RSVP: .(JavaScript must be enabled to view this email address)= 0){out += unescape(l[i].replace(/^ss*/, ‘&#’));}while (–j >= 0){/**/if (el[j].getAttribute(‘eeEncEmail_jLwBAZTjWK’)){el[j].innerHTML = out;}}/*]]]]>*/]]> | 514-398-4681
Limited seating.

Continuing Education – Trial Practice Do’s and Don’ts

Ian M. Solloway

Dear Colleagues,

As you may know by now, on Friday, February 11, 2011 (from 8:30 am until 12:00 noon), the English-Speaking Section of the Bar of Montreal will be presenting a Conference on “Trial Practice Do’s and Don’ts: Hot Tips from the Experts” as part of the Quebec Bar’s “Les Grand Rendez-Vous de la Formation” to be held at the Palais de Congres.

Our Conference, which promises to be both stimulating and informative and is approved for Barreau CLE credits, will be a repeat performance of the Conference which we put on in 2009 and which attracted a record number of 458 attendees. Our Programme will again feature 3 of the Bar’s most senior litigators, Me Lynne Kassie, Me Max Bernard and Me Simon Potter, as well as the Honourable Madame Justice Carol Cohen of the Quebec Superior Court. Each of our panelists will be offering two trial practice tips – 1 Do and 1 Don’t, which may enhance or detract, as the case may be, from a lawyer’s Courtroom effectiveness. I will again be acting as the Moderator of the Conference which will be held in English.

You can register online at: www.grandsrendezvous.qc.ca

On behalf of the English-Speaking Section of the Bar of Montreal, I look forward to seeing you on February 11th, 2011 and thank you in advance for your continued support.

Ian M. Solloway
Chair
English-Speaking Section
Bar of Montreal

Society Humour