Archive for the ‘federal law’ Category

Don’t Judge A Book By Its Cover: Professional Misconduct Edition

January 7, 2014

Over at The Canadian Privacy Law Blog, David T. S. Fraser writes a damning post of prosecutorial misconduct in the wake of the scathing decision of Justice Mosley of the Federal Court in IN THE MATTER OF an application by [xxxxx xxxxxx ] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, 2013 FC 1275 [PDF].

See also, Fraser’s earlier post: Canadian Privacy Law Blog: Canadian intelligence agencies lied to obtain warrants, Federal Court judge says).

Fraser’s posts mince no word and I commend them both,  but here is the key point:

Courts are generally hesitant to go so far as to say that an affiant or a legal advisor lied to the court. That the Court did so in this case highlights how significant and egregious it was. This sort of conduct brings the administration of justice into disrepute and casts a pall over every warrant ever issued by the Court.

The decision names five Department of Justice lawyers who made “appearances” at the hearing of this matter but does not specify on whose specific advice CSIS was acting.

The warrant system only works if CSIS and their lawyers are truthful to the Court. This duty of candour is greatly elevated when they are the only ones appearing before the Court, as there is nothing adversarial to ensure that the truth comes out.

This cannot go unnoticed. This is not a “no harm, no foul” situation. The Government needs to appoint a special prosecutor to investigate how this came to be and the law societies governing those five lawyers should investigate what really appears to be egregious professional misconduct. Only a special prosecutor can do the job, as all five of the lawyers were arguing their case on behalf of the Deputy Attorney General of Canada, the country’s top lawyer and prosecutor. Anything less would be sweeping this under the rug. [emphasis added]

It’s Fraser’s choice not to name and shame the five Department of Justice lawyers who, acting for CSIS, committed professional misconduct, or as Justice Mosley’s put it:

“…The failure to disclose that information was the result of a deliberate decision to keep the Court in the dark about the scope and extent of the foreign collection efforts that would flow from the Court’s issuance of a warrant.

[118] This was a breach of the duty of candour owed by the Service and their legal advisors to the Court. It has led to misstatements in the public record about the scope of the authority granted the Service by the issuance of the 30-08 warrants. [emphasis added by Fraser]

Given that the decision is public record, I have no qualms in identifying the lawyers who in Fraser’s own words “[t]he Court specifically found that agents of the Canadian Security Intelligence Service — on the advice of and with the concurrence of their Department of Justice lawyers — misled the Federal Court of Canada in order to obtain a warrant or warrants under the CSIS Act.”

….

APPEARANCES:

Mr. Robert Frater

Ms. Isabelle Chartier

Mr. Jacques-Michel Cyr

Mr. Rémi Chapadeau

William F. Pentney

I have not heard of any of the lawyers, except Mr. Robert Frater, who some may know as the author of the leading text entitled “Prosecutorial Misconduct” (Canada Law Book, 2009) [ORDER IT HERE!]

Frater’s Canada Law Book author bio reads:

Robert J. Frater, B.A., LL.B., is Senior General Counsel with the Federal Department of Justice in Ottawa. He is currently a member of the Ontario bar, and has, in the past, been members of both the Northwest Territories and Nunavut bars. Mr. Frater has appeared before the Supreme Court of Canada and other appellate courts on numerous occasions, and has been counsel on many significant cases raising prosecutorial misconduct issues, such as R. v. Regan and Krieger v. The Law Society of Alberta. He has written and lectured on a wide variety of criminal law topics, and was for many years the chief writer/editor of the federal Crown’s policy manual, the Federal Prosecution Deskbook, which has been described as “one of the best sources of ethical guidance [for prosecutors.]”. He is the author of Prosecutorial Misconduct and co-author of Drug Offences in Canada, Third Edition (Canada Law Book). [emphasis added]

Oh, and this gem from the Federal Prosecution Deskbook, Chap. 9:

9.3.1 The duty to ensure that the responsibilities of the office of the Attorney General are carried out with integrity and dignity

Counsel can fulfil this duty:

  • by complying with applicable rules of ethics established by their bar association;
  • by exercising careful judgment in presenting the case for the Crown, deciding what witnesses to call, and what evidence to tender;
  • by acting with moderation, fairness, and impartiality;
  • by not discriminating on any basis prohibited by s. 15 of the Charter;
  • by adequately preparing for each case;
  • by not becoming simply an extension of a client department or investigative agency;Footnote24 and
  • by conducting plea and sentence negotiations in a manner consistent with the policy set out in this deskbook.Footnote25

9.3.2 The duty to preserve judicial independence

Counsel can fulfil this duty:

  • by not discussing matters relating to a case with the presiding judge without the participation of defence counsel;
  • by not dealing with matters in chambers that should properly be dealt with in open court;
  • by avoiding personal or private discussions with a judge in chambers while presenting a case before that judge; and
  • by refraining from appearing before a judge on a contentious matter when a personal friendship exists between Crown counsel and the judge.

9.3.3 The duty to be fair and to appear to be fair

Counsel can fulfil this duty:

  • by making disclosure in accordance with the policy set out in this manual;Footnote26

  • by bringing all relevant cases and authorities known to counsel to the attention of the court, even if they may be contrary to the Crown’s position;

  • by not expressing personal opinions on the evidence, including the credibility of witnesses, in court or in public;

  • by being conscious of the factors that can lead to wrongful convictions, such as false confessions and mistaken eyewitness identification;

  • by zealously guarding against the possibility of being afflicted by “tunnel visionFootnote27, through close identification with the investigative agency and/or victim, or through pressure by the media and/or special interest groups;

  • by remaining open to alternative theories put forward by the defence;

  • by not expressing personal opinions on the guilt or innocence of the accused in court or in public;

  • by asking relevant and proper questions during the examination of a witness and by not asking questions designed solely to embarrass, insult, abuse, belittle, or demean the witness. Cross examination can be skilful and probing, yet still show respect for the witness;

  • by respecting the court, defence counsel, the accused, and the proceedings while vigorously asserting the Crown’s position; and

  • by never permitting personal interests or partisan political considerations to interfere with the proper exercise of prosecutorial discretion.

Awkward.

SCOTUS rejects extraterritorial application of ATS in Kiobel v. Royal Dutch Petroleum Co.

April 17, 2013

The U.S. Supreme Court today released a significant decision on personal jurisdiction in Kiobel v. Royal Dutch Petroleum Co. (No. 10–1491, slip opinion: link). (backgrounder here and here).

The Court unanimously denied the appeal. (more…)

Donald K. Anton, “Public International Law and International Civil Litigation: From Ecuador to the United States and Back (Twice) – Chevron v. Donzige”

November 29, 2011

Donald K. Anton (Australian National University (ANU) – College of Law) has posted “Public International Law and International Civil Litigation: From Ecuador to the United States and Back (Twice) – Chevron v. Donzige”, Precedent, forthcoming. Here is the abstract:

This brief note examines the public international law issues arising in the widely publicized case of Chevron v. Donziger. In 1993, Amazonian indigenous communities and remote farmers sued Texaco in the United States, its home jurisdiction, seeking redress for damages caused by Texaco’s operations. From 1993 to 2002 Texaco, and later Chevron when it acquired Texaco, fought to have the case dismissed and moved to Ecuador as the more appropriate forum to try the case. Ultimately, the US action was dismissed on forum non conveniens grounds. However, the dismissal was conditioned on promises by Chevron to accept jurisdiction in Ecuador and satisfy any judgment rendered by an Ecuadorian court. While the action in the US was ongoing, Chevron apparently removed its assets from Ecuador, ensuring that the Ecuadorian plaintiffs would be unable to enforce and collect any judgment in that country. The case was re-filed and tried in Ecuador and was hotly contested for approximately eight years. On 14 February 2011, the Provincial Court of Sucumbios awarded the Ecuadorian plaintiffs $8.6 billion in damages, with $5.6 billion going toward environmental remediation. Anticipating the worst, Chevron took pre-emptive action back in the US, and filed a complaint against the Ecuadorians and their lawyers alleging fraud and conspiracy and seeking injunction enjoining the enforcement of the judgment. On 7 March 2011, the US Federal District Court in the Southern District of New York granted the preliminary injunction, which purported to enjoin the Ecuadorians from seeking to have the Ecuadorian judgment recognised or enforced anywhere in the world outside of Ecuador.

A copy of the article may be downloaded at SSRN here.

Federal Court Strikes Third Party Flood Damage Claims Against North Dakota

November 28, 2011
Cavalier County, North Dakota

In Pembina County Water v. Government of Manitoba, 2011 FC 1118 (CanLII), Lafrenière, J. of the Federal Court of Canada considered separate motions brought by two groups of third parties, each seeking an order striking the Third Party Claim filed by the Defendants, the Rural Municipalities of Rhineland and Stanley (Municipal Defendants). The grounds were that the Federal Court lacked either personal jurisdiction or subject-matter jurisdiction in respect of the Third Party claims. Alternatively, the Third Parties requested that the Third Party Claim be stayed on the grounds that North Dakota was the most convenient forum or that they enjoyed state immunity. (more…)

Virgin Islands Lawyer Sues U.S. Government Over Right to Vote

October 7, 2011
Seal of the American Virgin Islands

Image via Wikipedia

I received the following email from St. Thomas, Virgin Islands lawyer, J. Russell Pate of the Pate Law Firm via the ABA International Litigation Committee Listerv:

Dear International Litigation Member,

For your information, please find attached a Complaint [ pdf copy of Second Amended Complaint] regarding the right to vote for Congressional representatives and U.S. President for the United States Virgin Islands.  The United Nations has noted that the islands are a non-self governing territory without the ability to participate in every level of government which has control over them.

www.un.org/en/events/nonselfgovernin/nonselfgoverning.shtml

The Complaint is a strait-forward historical expose of racial discrimination in the U.S. Congress which resulted in the denial of the Virgin Islands (a majority non-white jurisdiction) to be deprived of the right to participate in federal elections.

Sincerely,

Russell

J. Russell Pate, Esq.

The Pate Law FirmRoyal Dane Mall,

2nd Fl.P.O. Box 890St. Thomas , VI 00804

jrbpate@yahoo.com340.777-5270

Office 340.777-5266

Fax 340.227-5299 Cell

www.SunLawVI.com

“Without the jury, there is no justice.”

The pleading makes for very interesting and informative reading. I invite knowledgeable comments from those with experience in U.S. constitutional law on whether the action meets the plausibility standard under the Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)  and Ashcroft v. Iqbal 556 U.S. ___, 129 S.Ct. 1937 (2009).


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