Tag: law

Trying to make access equal

Dr. Cheryl Rockman-Greenberg (photo from Rockman-Greenberg)

In the 1970s, when Dr. Cheryl Rockman-Greenberg was eyeing the budding field of genetics as a career, she had to become a pediatric doctor first. Now, Rockman-Greenberg counts her clinical background as a blessing, one that, today, geneticists no longer require.

“Having a strong background in clinical medicine certainly always helped me in my career, because the kind of genetics I was always interested in was in rare metabolic diseases,” said Rockman-Greenberg. “These are diseases often caused by enzyme deficiencies that go by very elaborate names. Having a good foundation in clinical medicine through pediatrics certainly helped me.”

Rockman-Greenberg, who lives in Winnipeg, was invited to speak at the city’s Congregation Shaarey Zedek Sisterhood Interfaith Luncheon on April 30.

“I learned that the luncheon was spearheaded through the sisterhood in many ways to promote information sharing between the faiths,” she said, noting that a purpose of the event is education and “to look at how we can build bridges between people of different faiths and not build walls.”

“From a global perspective,” she said, “I think it fits the themes of the interfaith luncheon. And, from a Jewish perspective, I’ve certainly been involved over the years, particularly with the National Council of Jewish Women, of increasing awareness of the importance of genes for health, and bringing together some of the advocacy groups in rare genetic disorders.

“I helped the National Council put out a brochure on carrier testing on new genetic disorders in the Ashkenazi Jewish population that has been extremely well-received worldwide. This information is always evolving.”

At the luncheon, Rockman-Greenberg was planning to discuss, among other things, Bill S-201, also known as the Genetic Non-Discrimination Act, which passed into law in Canada in 2017, though it is still being challenged by insurance companies in Quebec.

“This is a remarkable act in the sense that it does protect Canadians from the use of genetic test results outside of medical care and medical research,” Rockman-Greenberg told the Independent. “In other words, genetic test results do not have to be disclosed to insurance companies or employers. We’re one of many countries who have such legislation in place, and many people here have worked for years and years lobbying for similar legislation for Canada.”

Methods of genetic testing continue to advance, said Rockman-Greenberg. Tests that were nonexistent or very complicated to administer as recently as two decades ago can now be done quickly and inexpensively.

“The evolution has dramatically changed over the past 10 years, particularly in the sense that the techniques we use to diagnose genetic disease have dramatically changed – from studying one gene at a time, to being able to sequence the entire genome of an individual,” she explained.

When Rockman-Greenberg refers to “new genetics,” she is referring to the ability to offer state-of-the-art, revolutionary genetic testing that was not possible just 10 years ago. It is this access that Rockman-Greenberg is lobbying for now.

“Everybody doesn’t have the same access to the testing in Canada,” she said. “It’s certainly not uniform from province to province or within provinces. So, many people are very committed to ensuring there are strategies in place to promote fairness.

“Notwithstanding that, the legislation is going to protect people against disclosing information that is already in place. I think we are ahead of the game because we have this in place. But, we are not ahead of the game in making sure people are going to have access to new diagnostic testing and new therapeutics in a way that’s going to be equal across the board.”

Rockman-Greenberg’s focus on rare metabolic diseases means that she has witnessed firsthand the struggles to get specialty drugs approved through a system focused on the big diseases, such as diabetes and cancer.

“You may get a new drug for diabetes that will be approved and available for patients very quickly, whereas some of the new drugs for other diseases I treat can take years and years before they go through the approval process,” she said.

Rockman-Greenberg thought that the topic was an appropriate one for an interfaith gathering, “as everybody having the same chance to be successful is very important to me. I work with families and patient support groups to help remove barriers and help people feel empowered.”

She said, “There are many challenges in dealing with rare diseases and I try to work both sides: the patient side, as well as advocate for changes at the government level, to make sure there is fairness in access to new therapies.”

Rebeca Kuropatwa is a Winnipeg freelance writer.

How RGB got her start in law

Marty Ginsburg (Armie Hammer) and Ruth Bader Ginsburg (Felicity Jones) arrive at court in On the Basis of Sex. (photo from Focus Features)

A news flash for members of the tribe who’ve been kvelling over a Jewish woman on the U.S. Supreme Court for fully a quarter of a century: Ruth Bader Ginsburg long ago matriculated beyond a symbol of ethnic achievement.

Last year’s hit documentary, RBG, noted that Justice Ginsburg is an enormously popular role model for women in their teens and 20s, and she has achieved pop culture celebrity to boot. The latest film – released recently in Canada and, as of press time, still playing in Metro Vancouver – is On the Basis of Sex, which applies the Hollywood treatment to Ginsburg’s beginnings as a smart but struggling lawyer and situates her smack in the mainstream. To coin a Lincolnesque testimonial, now she belongs to the masses.

Director Mimi Leder and screenwriter Daniel Stiepleman (who happens to be Ruth and Marty Ginsburg’s nephew) frame On the Basis of Sex as an underdog saga. And, like a lot of underdogs in Hollywood movies, our heroine has a superpower that she only discovers – and masters – on her journey.

The movie is effective, and ultimately inspiring, in a way that doesn’t remotely challenge viewers other than to ask them to follow clever legal strategies.

The film opens with Ginsburg’s first days at Harvard Law School, where her husband Marty is in his second year. Immediately and repeatedly, she (and the viewer) is reminded of her second-class status as a woman in a man’s world.

It takes awhile to reconcile the confident Justice Ginsburg of public record with the somewhat skittish character that British actress Felicity Jones creates. On the one hand, as a wife and a mother who – like every other aspiring woman professional of the time – never wears pants, Ginsburg is plainly a grownup. But she’s patronized by everyone from the law school’s WASPy dean (a villainous Sam Waterston) to her husband (a stalwart Armie Hammer), and she risks being seen as a rabble-rouser (it’s the late 1950s) simply by standing up for herself.

Although the film does not conceal or finesse the Ginsburgs’ Jewishness, it presents casual misogyny and the entrenched old boys’ network, not antisemitism, as the obstacles Ruth needs to navigate. Consequently, she has to devise ways – both direct and elliptical – to raise the consciousness of every ally, including her devoted husband, before she can even challenge potential adversaries. While Marty certainly recognizes his wife’s brilliance, he’s a product of his upbringing and the times.

On the Basis of Sex or, as it’s referred to at your favourite corned beef dispensary, “RBG: The Early Years,” devotes considerable screen time to the couple’s relationship and, for many viewers, that will serve as the emotional heart of the film. Others will derive more pleasure from Ginsburg finding her footing and her voice as a scholarly attorney.

As Stiepleman noted in an interview during a recent visit to San Francisco, “Coming out of law school, [Ginsburg] had three strikes against her: she was a woman, she was a mother and she was a Jew. Any one of those things alone, law firms had taken the risk. It was the three together that made her unhire-able in their eyes.”

Unable to find a job practising law, she takes a teaching position. Through a combination of determination, persistence and luck, she comes across a unique case that addresses the inequities of gender discrimination. The complainant, who looked after his mother but was denied the tax deduction for caregivers, is a man.

Earlier in the film, there’s a crucial chain of events when her husband is diagnosed with cancer. Ginsburg not only took care of him (and their small daughter), but got them both through law school. That experience as a caregiver gives her both the empathy and the understanding to identify with and persuade her would-be client, as well as to research and argue the case.

The lengthy courtroom scene that comprises the film’s last 20 minutes or so is genuinely effective and even emotional, despite the formulaic staging and the fact that we know Ginsburg will prevail. At the pivotal moment, we witness a character coming into her own, grasping her abilities and realizing her destiny. And with that, the underdog becomes a superhero.

On the Basis of Sex is rated PG-13 for some language and suggestive content.

Michael Fox is a writer and film critic living in San Francisco.

קרן קיימת קנדה הפסיקה לתמוך בפרוייקטים צבאיים בישראל לאור חקירה של רשות המס הקנדי

(jnf.ca)

קרן הקיימת בקנדה הפסיקה להעביר תרומות לפרוייקטים צבאיים בישראל לאור חקירה מתמשכת של רשות המיסוי הקנדית (סי.אר.איי). זאת עלי פי תחקיר של רשת השידור הטלוויזיה של קנדה (הסי.בי.סי).

רשות המיסוי הקנדית בודקת מזה מספר שנים את פעילותה של קרן קיימת קנדה, לאור מידע שהתקבל לידיה כי הארגון עבר על כללי המס הקנדי למתן תרומות מצד קרנות צדקה. קרן קיימת קנדה כך התברר תרמה כספים לפרוייקטים הקשורים לצה”ל בניגוד לכללי המס בקנדה. במקרה כזה קרן קיימת קנדה לא זכאית לפטור במס, וכן גם התורמים שלה עצמם לא זכאים לפטורים במס.

יש לציין כי קרן קייימת קנדה לא העבירה תרומות לרכישת ציוד צבאי לצה”ל, אלה תמכה בעיקר פרוייקטים ותשתיות צבאיות, לשיפור הביטחון וחיי הקהילה של החיילים במדים ובני משפחותיהם, אך לפי חוקי המיסוי בקנדה גם זה אסור. מנכ”ל קרן קיימת קנדה לאנס דיוויס לא ענה על בקשתי באמצעות אימייל, לקבל את תגובתו בנושא המדובר.

דיוויס כן הודיע לכתב חדשות של רשת השידור הקנדית כי קרן קיימת קנדה הודיעה לתורמיה, כי היא הפסיקה לתמוך בפרוייקטים צבאיים בישראל כבר לפני כשנתיים. זאת, לאחר שהתברר לארגון כי הוא נמצא תחת ביקורת של רשות המיסוי הקנדית.

לפי מסמכים ופרסומים רבים של קרן קיימת קנדה, הארגון תמך לאורך השנים בפרוייקטים רבים הקשורים בצה”ל וחייליו. ובהם: פיתוח של בסיס הדרכה בנגב. פיתוח של כיתות לימוד, אולם אירועים וחדר הקרנות בסיס של חיל הים בבת גלים. שיפוץ והרחבת אולם אירועים ומועדון לחיילים בבסיסי חיל האוויר בפלמחים ונבטים. הקמת מגרש משחקים עבור ילדים (שמתגוררים עם בני משפחותיהם) בבסיס חצרים של חיל האוויר. שידרוג מרכז מבקרים, שיפוץ הכיכר המרכזית והמרכז ארצי לאימונים בבסיס צאלים. הקמת מתקני נוחות לחיילים בשדה תל נוף של חיל האוויר. עזרה בהקמת כביש ביטחוני בקדש ברנע (ליד הגבול המצרי) לשיפור הנגישות לכוחות הביטחון של ישראל. עבודות לשיפור כבישים ביטחוניים של כוחות הביטחון באזורי הגבול בנגב המערבי. בניית נקודות מפגש ירוקות בבסיסים צבאיים לאפשר לחיילים לראות את בני משפחתם בנוחות. וכן עזרה ותמיכה בצעירים בבתי הספר התיכוניים במסגרת הכשרתם הקדם צבאית (פרוייקט גדנ”ע).

עוד מתברר שקרן קיימת קנדה תמכה אף בפרוייקטים ששנמצאים מעבר לקו הירוק. ממשלת קנדה מתנגדת לבנייה ישראלית של התנחלויות כשטחים הכבושים לדבריה, שהן הפרה של אמנת ג’נבה הרביעית. עוד קובעת ממשלת קנדה כי: “ההתנחלויות הישראליות בשטחים הן המכשלון חמור להשגת שלום כולל, צודק ובר קיימא”. בית המשפט בקנדה קבע כי ארגוני צדקה קנדיים לא יכולים לפעול בניגוד למדיניות הציבור.

בין פרוייקטים בשטחים שמעבר לקו הירוק שקרן קיימת קנדה תמכה בהם: פיתוח החפירות הארכיאולוגיות של האולם המרכזי במנהרות הכותל בירושלים, העברה של תרומות לפני כארבע שנים לרכישת כלים להכנת הקרקע לבניית מאחז בגבעת עוז, שהוגדר אפילו על ידי ממשלת ישראל כבלתי חוקי. ופיתוח הפרוייקט הגדול ביותר של הארגון הקנדי בישראל – פארק קנדה ליד לטרון. רופא קנדי (בפנסיה) שנולד באחד הכפרים הפלסטינים עליו נבנה פארק קנדה, התלוננן פני רשות המיסים הקנדית על תרומות של קרן קיימת קנדה לפרוייקט.

יצויין כי במאי לפני כשנתיים ביקרה בישראל משלחת של קרן קיימת קנדה, ברשות דיוויס. חברי המשלחת ביקרו בין היתר בבסיס צה”ל בצהלים ובבסיס משמר הגבול במכמש, שאליהם הועברו תרומות מהארגון.

How to avoid tax trap

(photo from pxhere.com)

One of the last problems you’d expect in creating a power of attorney is to find your company losing a bunch of tax advantages because the Canada Revenue Agency (CRA) decides you and the person you appointed in the power of attorney have related companies.

If your company is small and Canadian-controlled, it gets certain tax advantages; however, CRA doesn’t want you to break a large company into a bunch of small pieces to multiply those tax advantages. If you give each of those pieces to a different person, but maintain control through powers of attorney, CRA will still consider all those pieces to be one company.

Unfortunately, CRA doesn’t recognize the difference between a general power of attorney used to control a company and an enduring power of attorney used to help someone when they’re incapacitated. Here’s an example of the trap that can happen if you’re not careful with a power of attorney.

(Disclaimer: this is not tax advice; it is a simplified illustration of the small business tax rules and how they’re applied with respect to control and powers of attorney.)

I’ll give you two scenarios. The first one illustrates what CRA is trying to avoid, and the second one illustrates what it catches by accident.

First scenario: avoiding multiplication of the small business deduction

Patricia Hindenburg has three adult children: Roberta, Paulina and Bradley. She runs a clothing company, Whole Lotta Cashmere Fashions Inc., with stores in the Kitsilano, Yaletown, Commercial Drive and Marpole neighbourhoods.

Whole Lotta Cashmere Fashions is doing very well. Last year, it earned $2.4 million before tax. The company is a Canadian-controlled private corporation and is eligible for the small business deduction. The deduction means that, instead of paying about 35% income tax on $2.4 million, Whole Lotta Cashmere Fashions only pays that on $1.9 million. The first $500,000 is taxed at about 10%. (Again, these are not the real tax rates and I’m simplifying the calculations.)

Patricia realizes that, if she split the company into four companies, each owned by a different person, the companies would together pay 10% on $2 million and only $400,000 would be caught by the higher tax rate. So, she splits the company into four, giving one to each of her children and keeping one for herself. This way, each of the four companies will be eligible for the small business deduction – each will only pay 10% on its first $500,000 of earnings.

To make sure that the companies remain successful and operating just the way she likes, Patricia asks her kids each to grant her power of attorney over their voting shares in their companies.

She now has control over all four companies. Their combined income is still around $2.4 million, but she believes the collection of companies has a small business deduction of $2 million instead of $500,000. She expects to pay 10% on $2 million and 35% on $400,000.

CRA does not allow this, however. Because of the powers of attorney that give Patricia control over all of the companies, CRA taxes them as one big company the same way it did before the split.

This seems fair. If the companies are truly independent, they should each get the small business deduction but, if you split a big company into a bunch of smaller ones and you maintain control over them, you don’t get a bunch of small business deductions.

Second scenario: getting tax-trapped in incapacity planning

Stephanie Edwards has a metalworks shop, Icarus Metalworks Inc., that is doing very well. She has apprenticed each of her five children, Adriana, Murray, Nicole, Dickens and Jan, in the art and trade of blacksmithing.

A few years ago, Adriana and Dickens decided they prefer ceramics, and they opened their own company, Can I Play With Porcelain Ltd.

Last year, Icarus earned $700,000. Can I Play With Porcelain did pretty well too; it earned about $450,000.

Icarus should pay 10% on the first $500,000 and 35% on the remaining $200,000. Can I Play With Porcelain is under the limit for the small business deduction, and should only pay 10% on all $450,000 of its earnings.

Unfortunately, after all these years of literally bending iron and steel to her will, Stephanie has serious joint problems. She is finding it hard to write. This has her thinking about making sure her kids can take care of things for her if (and when) she’s unable.

Stephanie thinks carefully about her kids, and who would be in the best position to help her. She decides to grant an enduring power of attorney to her eldest, Adriana. The power of attorney is, as is the case with most enduring powers of attorney, unrestricted and it is effective from the moment it is signed. Stephanie wants to make sure that Adriana can help her even while she is still capable, because she doesn’t know for how much longer she’ll be able to sign cheques, etc., given her joint problems.

Here’s the trap: the CRA determines that the power of attorney allows Adriana to use Stephanie’s shares to control Icarus. This is true – Adriana can do anything on behalf of Stephanie that has to do with finances (including business, real estate and legal matters). Therefore, Icarus Metalworks Inc. and Can I Play With Porcelain Ltd. are now considered related companies. Can I Play With Porcelain Ltd. loses its small business deduction. Between the two companies, the first $500,000 is taxed at 10% and the remaining $650,000 is taxed at 35%.

Is there a way around this? Yes.

Two powers of attorney are prepared, both enduring, both restricted – in exactly opposite ways – and one is made “springing.”

In the first instance, Stephanie grants an enduring power of attorney to Adriana, effective immediately and without any limits or restrictions except that Adriana may not use it to vote or in any other way act on Stephanie’s shares of her company, Icarus Metalworks Inc.

This will probably cover about 95% of what Stephanie needs Adriana to do.

Eventually, Stephanie may lose capacity and need Adriana to take control of her company. At that point, the benefit of Adriana controlling Stephanie’s shares will outweigh the tax consequences. There’s also the slim hope that by then, the Income Tax Act will be amended so as not to catch enduring powers of attorney anymore.

Stephanie grants a second enduring power of attorney to Adriana, but this one has two limitations in it. It only applies to Stephanie’s shares of her company, to avoid any confusion regarding which power of attorney applies in any given situation. Also, it is not effective until Stephanie loses capacity – this is called a “springing” power of attorney. It springs into effect only when Stephanie is no longer capable of managing her affairs. This prevents CRA from considering the companies to be related until it’s absolutely necessary, and this is a recognized technique among lawyers who practise regularly in the areas of estate and incapacity planning.

Jeremy R. Costin, JD, is a business, estates and ecommerce lawyer at Costin Law. He can be reached at 604-742-0717 or jeremy@costinlaw.ca.

Impacts of nation-state

Canada’s identity has evolved dramatically since the Second World War. First, the country’s self-image changed from an Anglo orientation as a member of the British Empire-cum-Commonwealth to a concept of “two founding nations,” which included the recognition of bilingualism and biculturalism as pillars of our identity. No sooner had that change been digested than we broadened the definition of Canadianness to incorporate multiculturalism and then, very belatedly, we have recently come to recognize the important place of indigenous Canadians and to attempt to reconcile our peoples with the history of injustice and cultural genocide perpetrated against First Nations.

Not all countries are given to this sort of evolving self-identity. Israel, in very different ways but over the same period, has struggled to define itself in a manner that reflects both its founding premise and its demographic and cultural realities. For several decades, the country has debated the question “who is a Jew?”; a riddle that goes to the heart of the nation’s identity in part due to the Law of Return, which grants citizenship to any Jew. But the place of non-Jewish citizens – both in the state of Israel and, more problematically, in the territories occupied in 1967 – has confounded the country as it struggles to be both a democratic country and one particularly founded as the homeland of the Jewish people.

This matter was brought to a head (again) recently by a law passed by the Knesset dealing with the country’s Jewish identity.

In practical terms, the “nation-state law” has little impact. If an Israeli didn’t follow the news, they would probably not notice any change in their daily life. The law is mostly symbolic. It enshrines the Jewish calendar as official, declares Jerusalem the country’s capital, codifies what was already the practical reality in terms of Jewish iconography in Israeli national symbols, such as the Star of David on the flag and the menorah on the national shield. But, it also explicitly downgrades the Arabic language, mother tongue of 22% of the country’s population, from official language to one with a “special status.” That doesn’t mean that Arabic (or English) will be erased from street signs or other official places, but it is a calculated poke in the eye to the country’s largest minority population – people who have struggled for decades to adapt themselves to their status as non-Jewish citizens of the Jewish state.

Critics, particularly on the left, have condemned the law as the triumph of Jewishness over democracy in the continuing struggle over the country’s identity as a Jewish and democratic state. Some claim that the accusation of “apartheid” has now been proven and codified. Competing New York Times op-eds by Ronald Lauder, head of World Jewish Congress, and Naftali Bennett, Israel’s minister of Diaspora affairs, took diametrically opposing positions on the law.

The law’s enemies perhaps did themselves no favours during a mass rally in Tel Aviv nearly two weeks ago, when Palestinian flags were prevalent and some participants seemed to be promoting a one-state resolution.

The controversy is the culmination of several years of debate over the law, or variations on the theme. Prime Minister Binyamin Netanyahu defended the final bill, which passed the Knesset overwhelmingly.

“We enshrined in law the basic principle of our existence,” he said. “Israel is the nation state of the Jewish people, that respects the individual rights of all its citizens. This is our state – the Jewish state. In recent years, there have been some who have attempted to put this in doubt, to undercut the core of our being. Today we made it law: this is our nation, language and flag.”

The prime minister’s words are accurate enough. He acknowledges the fundamental and perhaps irreconcilable tug between “the nation state of the Jewish people” and one that “respects the individual rights of all its citizens.” And he is correct that the law enshrines what was already the de facto reality.

He is also not far off the mark in stating that some have tried to put in doubt Israel’s identity as a Jewish state – there are calls in the Middle East and elsewhere for a unitary state between the Mediterranean and the Jordan River, a concept that would effectively eliminate Jewish national self-determination. Yet, this is perhaps the most specious of Netanyahu’s arguments. Yes, there are those would see the Jewish state destroyed. But these voices are no more mainstream nor prevalent than they have been in recent years.

The law is red meat for Netanyahu’s core supporters and those to their right. It is a provocation – and an unnecessary one – that even the prime minister claims has no real, practical impact.

However, it does have an impact – and one that is perhaps not unintended. The law makes non-Jewish citizens of Israel feel isolated and demoralized and it strengthens the case of those inside and outside Israel who condemn the country for inequality and favouritism.

Taking abusers to court

In the third of a series of articles on sexual harassment and violence in the Jewish community, the Jewish Independent speaks with lawyer Megan Ellis, Q.C.

Megan Ellis is one of the first lawyers in Canada to have devoted a significant part of her practice to pursuing claims on behalf of adult survivors of sexual assault and childhood sexual abuse.

In 1976, Ellis began volunteering at a rape crisis centre in Vancouver. This led to jobs working at rape crisis centres in Vancouver and in London, England, from the late 1970s to early 1980s.

“I was interested in law,” she said. “I always have been. It was my intention to become a lawyer eventually.”

Ellis passed the bar in 1988 and went into civil claims. In 1992, she and her partner led a successful challenge to the time limitation in Canada. As a result, in 1993, the law was changed in British Columbia, and the province became the first jurisdiction in Canada to remove the time limit for survivors to bring claims against perpetrators and institutions regarding sexual abuse.

In that groundbreaking case, an uncle was charged with sexually abusing several girls in the family over several decades from the 1950s to 1970. The girls were toddlers – as young as 2 years old – when the abuse began, and it continued into their early teens.

Many more cases have since followed.

“I have children’s parents who call me and ask what to do when their kids have been sexually abused,” said Ellis. “I discuss with them what they want their outcome to look like. Often, they haven’t decided if they want to go through a criminal process or not. So, they have to make that decision initially. If they decide they want to go through a criminal process, I ask them to wait until that is concluded before commencing a civil process – unless there are unusual circumstances, like it looks like the perpetrator might die, move all their assets to a Swiss bank account, or something like that.”

Once a decision is made to proceed through the civil system, Ellis collects all the relevant documents, such as income records, counseling records, medical records and educational records – as much information as possible. She then reviews everything and starts the process of drafting the legal documents, filing them and serving them to the perpetrator or institution.

“One thing I always discuss is whether or not that should be preceded by a demand letter,” said Ellis. “Sometimes, I collect all the information and put together a settlement letter in hopes the person will settle and pay out the claim, rather than go through the more public civil system.”

The settlement letter states what the accused did, that these are the consequences and the accuser wants X amount of dollars paid within a given time frame. The letter also states that, if the accused does not pay, the accuser will sue.

If the perpetrator does not settle, one can expect the legal cost to run between $10,000 and $15,000. Ellis advises her clients to verify that the perpetrator has assets.

“There are many people I have to tell, ‘Look, I do not doubt what you’re telling me at all, but it might appear that the perpetrator doesn’t have assets,’” said Ellis. “And there’s no point suing someone who doesn’t have assets.”

Claimants also need to take into consideration that, to date, the damages awarded for sexual abuse have been very low; in some cases, similar to what someone would get for mild whiplash from an accident.

“They don’t actually recognize the long-term effects of one incident, depending on the circumstances,” said Ellis. “They’ve been getting better over the years, but there’s still quite a long stretch before judges understand the very serious long-term implications.… There are 25-year-olds who get raped and it has a profound impact on the rest of their lives. The social reaction to being raped and the effects that it has are long-term. They are permanent. I think it’s fair to say that anyone who’s been raped has been permanently changed by that experience.”

In British Columbia, a lawsuit can take two to three years from start to finish. As for privacy, one can expect a ban on publication, though that is not guaranteed. Both the court records and courtrooms are publicly accessible.

If one is determined to confront their perpetrator, they may have a hard time finding representation. Lawyers who take on such cases are overburdened.

“My instructions for my staff are that I am booked for no more than four consultations per week,” said Ellis. “That was two or three years ago. Now, I’ve cut off … I’m not able to take more. I have enough now to keep me going for quite some time and I can’t possibly take any new cases. So, it’s gone from four per week to zero. And I’m not keeping tabs on all the people I’m turning away. I give other names, but I’m not sure of who’s taking these cases at the moment.”

Ellis has been instrumental in changing the law that allowed perpetrators to claim bankruptcy to escape paying the judgment.

“What started to happen in the first few years I was doing this is that the perpetrators would fight the cases and then spend all their money defending themselves,” said Ellis. “And then, they’d end up going bankrupt and walk away from the judgment.

“I was involved in amendments to the bankruptcy and insolvency act, which meant that you didn’t get rid of a judgment for assault or sexual assault just by going into bankruptcy – the judgment survives the bankruptcy. So, they may have gotten rid of their assets, but they haven’t lost their capacity to earn income, their inheritances … there are ways to go after them. The perpetrator’s thinking before was that they’d rather pay lawyers than pay their accusers, thinking that, then, it’ll be gone and they won’t have to worry about it.

“Funnily enough, I haven’t had a case where the perpetrator has gone into bankruptcy since.”

Since the #MeToo movement, Ellis has noticed a change in how various companies and institutions deal with their responsibility, a shift to more appropriate responses to allegations of abuse. The movement also has helped instil in people’s minds is that, typically, when it comes to sexual abuse, there is not just one victim, there are many.

“This is because there are all kinds of efforts the perpetrator makes to silence their victims,” said Ellis. “Societal mores are such that it doesn’t take a whole lot, because there’s fear and disbelief … and then, the perpetrator adds to it by saying, ‘If you ever tell anyone, you won’t be believed,’ etc.

“One thing that is particularly problematic in institutions is that they generally turn a blind eye in order to protect themselves … unless somebody’s standing on their doorstep with a picket sign.

“Essentially, what’s happened is that someone is now standing on their doorstep with a picket sign. Many of the institutions I’ve sued, there were, I believe, people, who knew but didn’t come forward, partly due to consequences for workers, teachers, social workers … for coming forward and making an accusation. They don’t want to take it on.”

Institutions are learning the hard way that it’s more cost effective for them to educate their employees about what abuse is and to report it.

“One place where there is still a lot of abuse is in the workplace,” said Ellis, giving the example of sexual harassment. “But, that’s an employment law context and I personally have never dealt with those cases.”

Rebeca Kuropatwa is a Winnipeg freelance writer.

A law career with many firsts

Morton Minc is Concordia University’s first jurist-in-residence. (photo from Morton Minc)

During his long career in the field of law in Quebec, Morton Minc has made several firsts. His latest – becoming Concordia’s first jurist-in-residence.

Born in Lublin, Poland, Minc came from a very religious, but also academic, family. His father was studying medicine in Paris when the Second World War broke out. The family made their way to Montreal and started over again, with only $17, provided by the Jewish community.

After graduating from Sir George Williams University with an arts degree, Minc went onto law school at the Université de Montréal, where he won several awards. He then joined a large law firm and eventually opened his own practice, specializing in general commercial banking law. He married his wife, Linda, and they had one daughter, Samantha (who is a vascular surgeon in the United States).

“I then was the first Jewish judge in the history of the municipal court of Montreal,” said Minc of his 1993 appointment. “Then, I was nominated as chief justice of the municipal court of Montreal [in 2009], and I was the first Jewish anglophone judge appointed to the municipal court in their history.

“When I became chief judge, I used the court in a different manner,” he said. “One part of the court was streamlining toward social justice programs, social justice courts and problem-solving courts, and the other was traditional justice. The aim of the social justice court is not only to identify an individual’s problem, but also to assist, rehabilitate and help him/her to find his/her way back into society … once they’ve completed the program set by the court successfully, and even decriminalizes their record when possible. In other words, they were charged with a criminal matter or with statutes where they had to pay all these fines … [and] we had made arrangements with an execution department of the city for them to get amnesty.”

Minc was responsible for initiating the program, including working with judges who specialized in mental health.

“We had Crown prosecutors who specialized in the mental health program and a defence lawyer full-time to assist the offender who had the mental health issue when he/she committed a crime,” said Minc. “These people worked not in a combative way, but it’s what we call, ‘participating justice.’”

Most judicial systems are considered adversarial, where the parties are in opposition to one another. But, in these social justice and problem-solving courts, he explained, everyone is working together on the same “side” toward the good of the person on trial.

“I was responsible for establishing the court for the homeless,” said Minc. “We had judges dedicated to the issue of homelessness, so we’d find the person a place to live if s/he had a mental issue, alcohol issue and/or drug issue…. We’d work toward resolving these problems. It wasn’t necessarily a problem of homelessness.

“We dedicated a court only for these social issues, so that they wouldn’t be in the mainstream of the criminal system … so that they would not be embarrassed; the homeless, they wouldn’t feel ill-at-ease. And, the same thing for mental health and domestic violence court…. I can tell you, the success rate was over 85%. It was a win-win situation…. We had a minister of justice coming to our court every year to see what we were doing in our social programs.”

Minc attributed his own compassion for others to his Jewish heritage and its tradition of involvement with and assistance for those who are less fortunate.

When it came time for him to leave his position, Minc – who said he is not a believer in retirement – was asked to meet with Concordia University president Alan Shepard, provost Graham Carr and the dean of the faculty of arts and science, André Roy. The trio invited Minc to join the history department’s Law and Society Program, and he accepted, becoming the first jurist-in-residence.

“My role, or the goal, is to help students, mentor students, on what they could do in the future, about law school…. You don’t have to necessarily become a lawyer, but to get a law degree, or become a lawyer,” said Minc. “There are all kinds of different other institutions you could work at and use your law background for.”

In addition to introducing students to different aspects of law, Minc is helping students find ways to get involved in the legal system, using his vast knowledge and contacts.

“Perhaps Concordia will have its own law faculty one day,” said Minc. “My goal is to stimulate and excite students about the law – and it seems well-received.

“While Concordia doesn’t have a law school,” he added, “it offers students the option to minor in law and society, and to study issues like governance, crime, conflict and social justice from sociological, historical, anthropological and philosophical perspectives.”

Minc’s appointment as jurist-in-residence is for a two-year term and, while he hopes that his successor continues what he is starting, he is focused on doing what he can do now. So far, all of the events he has organized have sold out.

As example of the types of events he has put on, Minc hosted a fireside chat with now-Chief Justice Richard Wagner of the Supreme Court of Canada, on Nov 23. 2017. The talk covered Wagner’s journey to becoming a judge and what it’s really like to be part of the Supreme Court.

On Oct. 19 last year, Minc hosted an event on the legal and psychological implications of the maltreatment of children. A number of distinguished panelists took part, including Judge Patrick Healy (Quebec Court of Appeal) and Judge Martine Nolin (Court of Quebec, Youth Court Division).

Minc also mentored the Concordia Moot Law Society for a legal debate competition against other Canadian universities. He helped student delegates prepare legal arguments and taught them about legal jargon.

Rebeca Kuropatwa is a Winnipeg freelance writer.

Praise for whistleblowers

Alan Le Fevre, president of the Wallenberg-Sugihara Civil Courage Society, and Acting Mayor Raymond Louie, right, with the City of Vancouver’s proclamation of Raoul Wallenberg Day. (photo by Masumi Kikuchi)

“If we had a society that was free from embezzlement, free of theft, free of dishonesty, free of unethical conduct, we wouldn’t need whistleblowers. But, unfortunately, we are not a perfect society,” said Ujjal Dosanjh in his keynote address at the 13th annual Raoul Wallenberg Day event, which was held on Jan. 14 at the H.R. MacMillan Space Centre.

Dosanjh, a former federal cabinet minister, B.C. attorney general and the province’s 33rd premier, was, in 2015, the inaugural recipient of the Wallenberg-Sugihara Civil Courage Society’s Civil Courage Award. He was recognized for “his great courage in the face of escalating violence by extremists in the Indo-Canadian community that arose from conflicts that had erupted in India,” said WSCCS board member Ana Policzer in her remarks on Sunday.

The society hosts the annual Wallenberg Day event and, this year, they honoured Vancouver-based lawyer Alayne Fleischmann with the Civil Courage Award.

Fleischmann was born in Terrace, B.C. She got her bachelor’s degree in philosophy from the University of British Columbia, her master’s in international and comparative law from the Institute of International and Comparative Law, Cornell Law School and Université Paris (Sorbonne), and her juris doctor degree from Cornell. In 2006, she was working in quality control at JPMorgan Chase in New York. There, she discovered and tried to stop what she described as “massive criminal securities fraud” – mortgage operations similar to those of many other financial institutions, which led to the 2008 economic collapse. Her efforts resulted in a $9 billion fine being levied on JPMorgan Chase, but no one from the bank was ever prosecuted. She moved back to British Columbia in 2008.

In a 2014 Rolling Stone article, writer Matt Taibbi goes into great detail about Fleischmann’s experiences, the difficulties she faced in bringing the truth to light and the limited impact the truth played in whatever minor justice was carried out against all the banks guilty of mortgage-related wrongdoings. In effect, Taibbi argues, the U.S. department of justice “struck a series of historic settlement deals with Chase, Citigroup and Bank of America. The root bargain in these deals was cash for secrecy. The banks paid big fines, without trials or even judges – only secret negotiations that typically ended with the public shown nothing but vague, quasi-official papers called ‘statements of facts,’ which were conveniently devoid of anything like actual facts.”

The full Rolling Stone article can be accessed via wsccs.ca/wallenberg-days/2018. At the Wallenberg Day event, organizers screened a 2014 interview with Taibbi and Fleischmann by Democracy Now! WSCCS president Alan Le Fevre also spoke briefly about Fleischmann’s actions and why she was chosen to receive the Civil Courage Award. Unfortunately, Fleischmann could not accept the award in person because of the ongoing litigation.

In his remarks, Dosanjh saluted whistleblowers. “In Canada,” he said, “we don’t know too many of our own heroes…. But we have them. One that we have amongst us in Canada is the honouree tonight, Alayne Fleischmann.”

There are monetary costs to illegitimate or immoral actions, Dosanjh said, but such actions also “jeopardize the health, safety and well-being of the employees, the customers and the society of the institutions.”

Whistleblowers like Fleischmann set out to right a wrong, he said. They are morally compelled to the point where they take the “risk of losing their careers,” “being ostracized” and having rumours spread about them to “delegitimize the truth that they’re trying to tell.”

After such individuals come forward, he said, “life is never the same. You lose friends, you lose relationships, obviously you lose a job possibly, or you’re not promoted or you’re demoted…. And, sometimes, it can be dangerous physically. People have been known to be killed, at least across the border, for trying to expose the truth. Karen Silkwood comes to mind.”

Dosanjh warned that whistleblowers aren’t always correct, however, giving the example of eight B.C. health ministry workers who were found to have been wrongly dismissed in 2012, amid allegations of wrongdoing. “It’s a risky business,” he said. “You’re playing with your own life but you’re also playing with the lives of others you’re trying to expose.” So, you have to not only have the courage to speak up, he said, but the wisdom to know when to not do so, or when to investigate further before doing so.

Several audience members gave their take on corporate and government corruption in the question-and-answer period. Dosanjh said people need to get more vocal about these issues. “There is no silver bullet to deal with any particular issue,” he said. “It’s just a matter of becoming more active politically and raising your voices.”

To an audience member who decried greed as criminal, Dosanjh said, “If you say greed is the basic urge to make more money, that shouldn’t be a crime…. You want to make money, you want to work more … that’s what keeps the world going…. Illegal greed should be a crime – and it already is! The fact is we’re not prosecuting criminals, we’re not apprehending them, we’re not investigating them as much as we should, and we’re falling down in some respects.”

The afternoon event also included the reading by Acting Mayor Raymond Louie of the City of Vancouver proclamation of Jan. 14 as Raoul Wallenberg Day. He thanked event organizers and attendees for taking the time “to remember and to also recommit … with this ongoing effort to have a better world overall.”

The WSCCS is continually “seeking to identify people who, at significant personal risk, have helped to improve or save the lives of others by going against unjust laws or conventions.” For more information, visit wsccs.ca.

Milman now a judge

In Ottawa on June 14, the Hon. Jody Wilson-Raybould, minister of justice and attorney general of Canada, announced the following appointments under the new judicial application process announced on Oct. 20, 2016: Carla L. Forth, QC, partner at Guild Yule LLP, Michael Tammen, QC, a sole practitioner, Warren B. Milman, a partner at McCarthy Tétrault LLP, and Nitya Iyer, QC, a partner at Lovett Westmacott, were appointed judges of the Supreme Court of British Columbia.

The new judicial application process emphasizes transparency, merit and diversity, and will continue to ensure the appointment of jurists who meet the highest standards of excellence and integrity.

Milman, a member of the Jewish community, practised litigation with the Vancouver office of McCarthy Tétrault LLP for 24 years, with a focus on insolvency, commercial litigation, class actions defence and constitutional law. In the course of his practice, he also acted on many occasions for both for the Crown and for the defence in criminal and regulatory prosecutions.

Milman came to the law after earning a bachelor of arts from McGill University and pursuing graduate studies in classical archeology at the Hebrew University in Jerusalem from 1985 to 1988. He obtained his LLB and BCL from McGill in 1992. He was called to the British Columbia Bar in 1993 and admitted to the State Bar of California in that same year.

In addition to his private practice, Milman has devoted a substantial part of his career to promoting meaningful access to justice for ordinary Canadians. He has taken on numerous pro bono cases before courts and regulatory tribunals. In addition, he served as chair of Pro Bono Law of British Columbia, both prior to and during the organization’s merger with the Access Justice Society to form Access Pro Bono in 2010. He was appointed a governor of the Law Foundation of British Columbia in 2010 and served as chair of its board of governors in 2015 and 2016.

Who owns the past?

Left to right: Mitchell Gropper, QC; Prof. Guy Pessach, Hebrew University; Prof. Catherine Dauvergne, dean of the Peter A. Allard School of Law, University of British Columbia; and Randy Milner, Vancouver chapter president, Canadian Friends of the Hebrew University. (photo from Canadian Friends of the Hebrew University, Vancouver)

What happens to the archival materials of a Jewish community when that community no longer has the capacity to maintain itself can be complicated and messy. A 2013 Supreme Court decision in Israel provided a solution but also raised important questions about identity, collective memory and the relationship between Israel and the Diaspora.

On March 17, Prof. Guy Pessach of Hebrew University of Jerusalem presented a lecture as part of the Mitchell H. Gropper, QC, Law Faculty Exchange Program. An initiative of Hebrew U and University of British Columbia, the program’s UBC webpage notes that, since the program began in 2010, each law faculty “has hosted three visiting professors from the other university.”

Pessach’s topic was Who Owns the Past? – Law, the Politics of Memory and the Israeli Supreme Court. He discussed two cases but focused primarily on a lawsuit involving the Vienna Jewish community and the Central Archives for the History of the Jewish People, which is in Jerusalem. He said decisions made by the Israeli Supreme Court reflected a propensity for Israel to regard itself as the international arbiter of Jewish cultural property and collective memory.

According to Pessach, Vienna was the second-largest Jewish community in Europe in the early 20th century. The nearly 200,000 Jews in the 1930s were reduced to fewer than 9,000 after the Holocaust. In the early days of Israel’s statehood, the Central Archives actively collected materials from Jewish communities in Europe to safeguard the rich Jewish history of these disappeared communities.

Although the Viennese community continues to decline in population, he said, in the 21st century, it sufficiently reorganized to request the return of its archival materials from the Central Archives. When the archives refused, claiming that the material was given on “indefinite loan,” Vienna’s Jews launched a lawsuit.

According to a January 2013 article in Haaretz, “The collection includes thousands of papers stored in 200 containers, documenting 300 years of the Vienna community from the 17th century up to 1945. After the Holocaust, community leaders decided to transfer the archive to Jerusalem, fearing it would not be stored properly in Vienna, and they continued to add documents to the collection. Yet the Viennese community insists it sent the documents – in four shipments in 1952, 1966, 1971 and 1978 – with the explicit agreement, time after time, that the documents were only on loan and remained the property of the community.”

Vienna lost its case. At the time, Israeli state archivist Yaacov Lozowick, stated, according to Haaretz, that “the depositors felt they were strengthening the cultural importance of the young state of Israel as the centre of the Jewish people; they were proud about their contribution; and they had no intention of the collection ever returning.”

In the case, said Pessach, Israel asserted its place in the Jewish world as protector of Jewish identity and history. He explained the ins and outs of the court’s decision and discussed the issues of cultural property law and restitution. He said restitution is not just the physical return of culturally and historically significant items but also symbolic justice for a community. He noted that similar situations continue to play out in Jewish communities, in the form of art stolen by the Nazis, and that Canadian First Nations and many other groups are also currently seeking restitution for cultural property stolen during colonial times.

For more information on the Mitchell H. Gropper, QC, Law Faculty Exchange Program, call the Canadian Friends of the Hebrew University office at 604-257-5133 or email vanc@cfhu.org.