The Lawyers Weekly

Are immigration security certificates dead?

Following a spate of court defeats since last fall, the government has been quietly re-examining whether security certificates are still viable in terrorism-related cases which raise the prospect of indefinitely detaining the named person, or deporting them back to countries where they may be tortured.

Special advocates and other experts on national security law told The Lawyers Weekly the Harper government may be poised to abandon security certificates in favour of an administrative model for ejecting permanent residents and foreign nationals it deems to be a danger to Canada.

The feeling I get, and nothing has been said to me [by officials],is that the government has found the security certificate cases too complicated, too long, and expensive, and will attempt to achieve whatever objective they have concerning permanent residents or foreign nationals by some other procedure  which could be before the immigration division of the Immigration and Refugee Board, or some other kind of administrative body or person, says Paul Cavalluzzo of Toronto's Cavalluzzo Hayes.

Paul Copeland of Toronto's Copeland Duncan notes the general opinion among all of the special advocates who have worked on the [five al-Qaeda-related security certificate] cases is that [the government] won't do another.

However Cavalluzzo, who with Copeland is special advocate (SA) for security certificate detainee Mohamed Harkat, says he doubts that the government can come up with an acceptable, in camera administrative procedure for handling immigration cases that involve national security claims and secret evidence, particularly if the cases are to be presided over by a non-lawyer decision-maker.

I think its constitutionality would be in serious question if you take it out of court, because there are many serious and constitutional questions that arise during the course of one of these proceedings, Cavalluzzo says.

Last September, then-Public Safety Minister Peter Van Loan said he feared for Canada's ability to fight terrorism given the increasingly complex legal environment in which the Federal Court is steadily holding the government's feet to the constitutional fire.

He promised that the government's internal review of security certificates will determine what we would do in the future and whether that is an appropriate instrument.

But in the intervening 10 months the government has disclosed nothing publicly, although some security law experts were consulted. I was interviewed for some sort of review, acknowledges University of Ottawa law professor Craig Forcese. I don't know what came of it.

Forcese agrees it's unlikely that security certificates will be issued in future terror-related cases. We may still see them on other cases where there is no [deportation to] torture issue, such as espionage, organized crime, he predicts.

David Charbonneau, spokesperson for Vic Toews, the present public safety minister, declined to set up an interview with his boss. Charbonneau also declined to disclose when the security certificate review will be completed or what is under consideration.

The objective of this government is to keep Canadians safe from security threats, in this case non-citizens, Charbonneau told The Lawyers Weekly. Our review is focused on the challenge of how to protect Canadians' security while recognizing the obstacles emerging under the existing security certificate regime. The results will be made public once the review requested by the minister has been completed.

Forcese said there are signs the government is turning to bringing national-security-related cases under s. 86 of the Immigration and Refugee Protection Act. In such cases the government contends in front of an immigration adjudicator that a person is inadmissible to Canada on national security grounds. Because the government relies on sensitive secret evidence, SAs must be appointed by the court.

Toronto immigration lawyer Lorne Waldman, who is an SA in a s. 86 case, and is also public counsel for a security certificate detainee, sees no significant difference between the two processes.

All the shortcomings of the security certificates are the same problems that exist in the s. 86 process, Waldman says.

Like the other special advocates who spoke to The Lawyers Weekly, Waldman says he accepts that the government must at times keep information secret on national security grounds in immigration cases.

But in those cases we have to ensure that the fullest possible disclosure is made [to the person affected], while protecting national security, and ensure that the person who represents the interests of the [affected] person at the closed hearing is as fully armed as possible, he advises.

The constitutional crux of the matter is giving the person affected enough disclosure of the government's case to defend himself, Waldman says.

He argues the government's best chance of Charter-proofing its anti-terror immigration measures is to adopt the approach successfully used for many years by the Security Intelligence Review Committee (SIRC), which reviews denials of security clearances by the Canadian Security Intelligence Service (CSIS). Security-cleared SIRC lawyers  who are sworn not to disclose privileged information to the person who has been denied a security clearance  are otherwise permitted to communicate freely with that person in order to be able to adequately represent the person's interests at the closed-door hearing where the government's secret evidence is tendered. By contrast SAs are permitted, at most, court-authorized and courtsupervised, restricted communication with the security certificate detainee's legal team. It's not enough, experienced SAs say.

I think the special advocate model has very serious limitations because of the bars on communication that make the work of the SA very challenging, Waldman says. I can certainly envision situations where, even with the SAs present, there may well be cases where the process would not be fair.

Ottawa's Leonard Shore, an SA with years of experience in national security-related matters, says he believes the security certificate regime revamped in 2008 remains unconstitutional because it ties the hands of SAs.

I think the future is in doubt, Shore says. But I don't know whether this government has the knowledge or information to know what to do next.

Security certificates were originally envisioned as a speedy and streamlined way to get dangerous foreigners out of the country, but they have turned out to be anything but, Shore said. The Supreme Court said you can't do it that way. You have got to give them due process.

Judges' constitutional vigilance has caused the Harper government to criticize the courts for dragging out matters in security certificate cases. But SAs say the government has to shoulder much of the blame.

First of all they over-claim their national security [privilege], which raises all kinds of challenges by the SAs, notes Cavalluzzo. We're constantly battling them on that,which prolongs the event.

Secondly the legislative gag imposed on SAs' communication with the named persons' defence teams is unworkable, he says. We are constantly fighting over that because we want to discuss the situation with the individual.

Cases have also been unnecessarily prolonged because the Federal Court has discovered, with the assistance of the SAs, that CSIS has not been totally candid about the veracity of its sources and in disclosing evidence, Cavalluzzo notes. If the government shaped up, these proceedings would not take nearly as long.

Copeland also says the government and CSIS don't seem to have a sophisticated understanding of the history or other political realities of the foreign countries involved in security certificate cases.

Harkat's public co-counsel, Norm Boxall of Ottawa's Bayne Sellar Boxall, says there remains a huge constitutional question mark hanging over the security certificate regime which was struck down by the Supreme Court in 2007, and then revised with the addition of the SA regime in 2008. The Federal Court is expected to address constitutional issues about the new scheme when it renders its decision next fall on reasonableness of Harkat's security certificate.

The fact that SAs are successful in some cases doesn't prove the security certificate system is fair or viable in all, or even most, cases, Boxall remarks. I think there is good reason to believe that the government will be reluctant to use it [in the future]. Security certificates are on life support.

While politically controversial, when B.C. and Ontario eliminated their provincial sales taxes and harmonized with the federal GST/HST on July 1, they sent a clear message to the world that Canada is open for business.

It also represented one of the last significant steps in the federal Department of Finance's plan that has converted Canada from an economic basket case into a powerhouse.

To understand why, it is important to put the switch from PST to HST in historical context.
Fiscally speaking, Canada was a mess from the mid-1970s to the early 1990s. The government was running annual deficits that, by the mid-1980s, were totalling more than eight per cent of the country's annual GDP; in 1985, Canada recorded a record annual deficit of $37 billion (the equivalent of $69 billion today).

As a consequence, the cost of servicing that debt  paying the interest charges  only augmented the problem. By the mid-1990s, the federal government's debt-to-GDP ratio reached its all-time high of 68.4 per cent.

With The Economist printing headlines such as Bankrupt Canada!, finance officials knew deliberate steps were needed to rein in the country's deficit and debt.

They took a multipronged approach, which included everything from reining in government spending, modernizing Canada's infrastructure, opening up foreign markets to Canadian exports through free trade agreements such as NAFTA, nationalizing the Canadian federal debt by replacing government debt held by foreigners with debt held by Canadians and focusing on innovation and skills training.
One additional key component was tax reform.

With Canada being a small, open, export-based economy of only 30 million people, what the Canadian government understood was that in order to be relevant in the global economy, Canada had to create a tax system that did not discourage, but rather encouraged, business and innovation.

It was the maturation of the Canadian tax system.

What Canada and Canadians realized is that the historic debate as to whether it was better to tax individuals or tax corporations was really no debate at all. Corporations are merely conduits through which individuals  employees and shareholders alike  come together to carry on business.

Furthermore, we realized that countries are not made up of corporations, only individuals. After all, the largest shareholders in the country are our public pension plans like the Canada Pension Plan Investment Board and the Ontario Teachers' Pension Plan.) We realized that imposing an excessive tax burden on corporations merely drove business and investment from Canada and the jobs, wages, salaries, dividends and income that went along with them.

From a tax policy perspective, the plan was simple:

-reduce, and where possible, eliminate taxes on capital and business inputs (including provincial sales taxes);

-tax consumer consumption, not business consumption; and

-reduce corporate income taxes.

The changes were gradual, but deliberate. And the changes took place regardless of the fact that political parties on both the left and the right have governed the country over the past two decades. Fundamentally, political rhetoric and dogma gave way to pragmatism and statesmanship, with long-term public policy taking precedent (generally) over short-term political gain.

So what have we achieved over the past two decades?

-In 1991, the Canadian federal government replaced its 13.5 per cent manufacturers' sales tax with the federal value-added tax  the GST  at a rate of 7 per cent. Concurrently, the province of Quebec began replacing its PST with a value-added tax similar to the GST.

-In 1997, Nova Scotia, New Brunswick, and Newfoundland went one step further, eliminating their PST regimes and replacing them with a fully harmonized value-added sales tax (HST) administered by the federal government.

-By 1998, after three decades of deficits, Canada posted its first annual budget surplus. We then continued posting annual surpluses for the next decade and only dropped back into deficit in 2009, following the global economic meltdown in October 2008.

-In 2003, the federal government began reducing corporate capital tax, and completely eliminated it by 2007. Canada's provinces have also been following suit, such that by 2011, provincial capital taxes on non-financial institutions will have been eliminated in virtually all Canadian provinces.

-Possibly the most dramatic change has been the drop in Canadian corporate income tax rates. In 1999, Canada's average combined federal/provincial corporate income tax rate was 44.6 per cent, compared with a combined federal/states corporate income tax rate of 38 per cent in the U.S. Over the next decade, Canada's corporate income taxes steadily declined. Currently, the combined federal/provincial corporate tax rate ranges between 28 and 32 per cent (depending upon the province), and by 2012, it will be between 25 and 29 per cent. It will give Canada the lowest corporate tax rate among the G7, and between 11 and 15 per cent below the U.S.

The impact of this fiscal discipline on the part of the Canadian federal and provincial governments is clear. Recall that in the mid-1990s, Canada's debt-to-GDP ratio had reached an all-time high of 68.4 per cent. By 2007, that figure had been reduced to 32.3 per cent  its lowest level in 25 years. And remember, we achieved this success while at the same time reducing corporate income tax rates, eliminating capital taxes, and eliminating taxes on business inputs by replacing PST with a national HST.

With the introduction of HST in B.C. and Ontario, this progress and maturation of the Canadian tax system continues. Not only does sales tax harmonization eliminate the tax administration and compliance burden on businesses operating in these provinces, but it gives these provinces and Canada a significant competitive advantage over the U.S.

The U.S. (along with Saskatchewan, Manitoba, and P.E.I.) are the last jurisdictions among OECD member states that still impose antiquated sales and use taxes (i.e. PST).

The world is watching. Canada is unique in that our HST permits multiple tax rates in different regions of the country, is a single tax collected for both the national and provincial governments, and has a single tax administration (the Canada Revenue Agency). As a consequence, countries like the U.S., India, the United Arab Emirates, and even the European Union, are looking to Canada's HST as a model.

So while it may seem strange to say it  Canada's GST/HST should not be a source of protest, but rather a source of pride for Canadians.

David Robertson is a sales and indirect tax specialist and partner with Fasken Martineau in Vancouver.

The G20 Summit in Toronto has wrapped up and, apart from a continuing pledge to resist protectionism, no progress was made on trade issues. And while not surprising, it is disappointing that the World Trade Organization (WTO) still has not improved access to essential medicines in the developing world.

The WTO's so-called Doha Development Round continues to be an unobtainable goal. It commenced in the shadow of 9/11 and was intended to give the developing world a better deal than it did when the WTO was formed in 1995. Nine years later, there is an absence of political will to forge a new trade deal giving the developing world better market access in agricultural and manufacturing goods, even at the tail end of the current recession.

The Doha Declaration on Public Health promised to fix a barrier in the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Pharmaceutical drugs are a special case under the TRIPS regime. Pharmaceutical companies strongly supported the Uruguay Round Agreements to obtain intellectual property laws protecting their interests. Such protection has been one of the most contentious issues since the formation of the WTO. It was recognized that the conditions imposed on compulsory licensing prevented any member that did not have a domestic generic drug industry to effectively respond to a health emergency.

The most significant problem is the restriction that the goods produced must be predominantly for the supply of the domestic market. This means that Thailand could only license the production of drugs for use within its borders. As a result, a country without a generic drug manufacturing capacity might be barred from issuing any compulsory license under any circumstances, even during a health emergency.

Countries such as India, Brazil and China are noted as having substantial domestic generic industries and thus can maintain manufacturing capacity notwithstanding the restriction. In fact, India has established itself as the most important supplier of generic pharmaceuticals to the developing world. The problem is that as a result of the restrictions on compulsory licensing in the TRIPS Agreement, the generic industries in China, Brazil, or India could not supply any country experiencing a health emergency that does not have a generic drug manufacturing capacity.

In effect, what the system established under para. 6 of the Doha Declaration on Public Health was a waiver of the predominantly-for-the-domestic-market limitation. A developing country can determine a health emergency and issue a compulsory license to a foreign generic drug manufacturer which, in turn, can ask its own government for a compulsory license to manufacture and export the drugs. A series of notifications and production requirements are imposed under the system, including that only the product needed to meet the country's emergency can be produced, no re-export is permitted and all of the drugs must be in specially marked packaging. The restrictions are designed to prevent these drugs from entering into commercial channels.

The problem is that the notification requirements and production restrictions are such that the scheme created by the Doha Declaration on Public Health has been used only once in seven years. It was a shipment of drugs to Rwanda by Apotex Inc., a Canadian generic manufacturer. This is a failure by any measure.

The Doha Declaration, however, is not the full story on access to essential medicines. Thailand has been at the forefront of this debate. In 2007 and 2008, the government of Thailand issued compulsory licenses for six essential medicines. This ignited a firestorm of criticism and debate on the compulsory licensing regime in the context of government use. The Thai Ministry of Health had tried to negotiate voluntary licenses, but found that to do so simply delayed the delivery of effective medicines where needed. Remarkably, the benefit of Thailand's compulsory licensing of these drugs was the reduction in price of at least one of them to close to the generic price. 

The Ministry of Health points out the compulsory licensing scheme in Thailand does not threaten the global system of pharmaceutical patents. First, Thailand only represents 0.5 per cent of the world demand for pharmaceutical drugs. Second, compulsory licensing is only possible in less than 15 per cent of all patented drugs. Most of the drugs remain monopolized because of the complexities of production.

Unfortunately, the Thai experience cannot be generalized. Once again, the problem is that a developing country without a generic drug capacity can issue a compulsory license to a foreign drug manufacturer only in accordance with the scheme established by the Doha Declaration on Public Health.

It may be that a comprehensive trade deal is impossible for the foreseeable future. The WTO should take action to fix the problems that exist with the current scheme designed to provide access to essential medicines.

Chuck Gastle is a principal of Bennett Gastle P.C., a litigation and international trade boutique in Toronto. Murdoch Martyn is an international trade lawyer and in 2009-2010, taught a course on NAFTA at Osgoode Hall Law School.

Given the seemingly inescapable buzz surrounding Apple Inc.'s iPad, you probably don't need it explained to you. It's a tablet/slate computing device, it has a touch screen, no keyboard, and Apple CEO Steve Jobs calls it magical.

But what magic does it bring to a law practice?

Early adopters in the legal profession explain that magic in several ways.

It doesn't change the way I work, says Toronto real estate attorney David Feld, but it adds flexibility. It allows me to leave the office without really leaving.

I don't think it will replace a laptop, but it can do many things a lot faster, adds David Stuckel, a Peoria, Ill.-based workers compensation and labour relations lawyer.

Here's how Feld explains the physical layout of this slate and its effect on the computing experience: I call an iPhone a small iPad. The iPad takes all the apps that I wouldn't bother with on the iPhone and makes them fun and usable.

You don't have to be tied down to a computer, claims Memphis, Tenn.-based bankruptcy lawyer Arthur Ray. It's easier than working on a computer. I've had laptops, and this is exponentially easier.

Ray's assertion may surprise those who wonder how you use a computing device that does not have a physical keyboard. Instead, the iPad displays a large version of the virtual onscreen keyboard which first gained notoriety on Apple's iPhone.

The virtual keyboard is an acquired taste (note: this article was drafted using said keyboard) that not everybody wants to acquire. Stuckel falls into this camp, but it hasn't stopped him from finding workarounds. He relies on an app called Penultimate, one of several that permit iPadders to write notes directly on the screen using their fingers. The app saves notes as images for later reference.
Feld's getting used to the keyboard, though he finds it awkward to tap a screen instead of clicking a mouse. I also use dictation software with it to reduce my typing when searching for things on the Internet and when sending e-mail, he says of his preferred workaround.

(When using Google Voice Search) I can just say 'BP oil spill' while I'm holding my baby and I get all the news on it, Feld continues, then sighs: Sometimes when you're changing a baby, all you can think about are oil spills.

Stuckel, who finds himself on the road much of the time, calls it a communication tool. I need something I can access quickly when I'm on the road, he says. I don't want to wait three minutes for a computer to boot up.

I can get into my e-mail in 20 seconds.

The iPad also compares favourably with the reigning champ of mobile technology among lawyers in several ways. I don't have to charge it but every two to three days, Stuckel says. I have to charge my Blackberry every 36 hours or it's dead.

Don't expect lawyers to abandon Research in Motion in droves at this news, but the Blackberry's much vaunted e-mail handling may be facing its most serious challenge yet.

It's a real problem if you have to look at attachments on the Blackberry, Stuckel notes. The iPad is certainly easier to use than Blackberries when you have real email with real attachments. There's no 'page too large to load' stuff.

Feld feeds his paperless bent by routing all faxes and voicemail into the Mail app. I don't miss any information that way, he says. It allows me to go from room to room and office to office without really carrying anything. I can be anywhere in the office (yes, even the washroom) and still see my entire law firm's activities.

Feld also reviews agreements of purchase and sale and faxes on the iPad. The screen is the perfect size to see a whole page at a time and zoom into the important areas (or unclear areas as many of our agreements are faxed to us), he explains. You can get one page on the screen at a time. I can pinch and zoom in on spotty faxes.

The iPad's pinch zoom doesn't always help, though. When you try to zoom in on small handwriting, it can get pixelated, notes Stuckel.

Apple designed the iPad to compete in several technology niches, not the least of which is e-readers, and legal and business publishers have taken note.

Ray's reading list includes books he downloads from Amazon that help him market his law practice. I had a Kindle before this, but that's like comparing a Model T Ford to a Ferrari, he says. Going through a petition took forever on the Kindle.

It's big! That's what's great about it  you can see a whole page.

Third-party PDF readers like GoodReader win raves among all three lawyers, and Apple will soon update its iBooks application so that it, too, handles PDFs.

Indeed, while Apple did plenty right on the iPad  it's fast, the battery lasts a reported 10 hours, and so forth  the real magic comes to the device thanks to third parties that develop custom-made iPad apps. Those apps include Google tools, Penultimate, dictation recorders, word processors, RSS readers, even legal resources. Its flexibility leads to use in research, client meetings and trials, as well as the office.

As big a fan as Feld happens to be  he bought the first of his three iPads before it was available in Canada  he is looking for an app that lets him search files on his server.

Stuckel concedes another shortcoming. I can't print from my iPad, he says, but that isn't a big deal. I can just look at it.

Feld, Stuckel and Ray plead guilty when asked whether they sometimes use the iPad just for fun. Faced with the question of whether he finds himself trying to justify it for business use, Feld quips Just to my wife.

It's a toy, Stuckel admits, but it's a useful toy.

The debate over whether law firms and lawyers should give political donations no matter how small the amount is heating up in the wake of two recent cases.

When a prominent Quebec lawyer angrily resigned from a provincial inquiry in June, it was the second time in two months that a maelstrom over political donations swept a special prosecutor out of a job. In both instances, the media and opposition political parties strongly suggested that the counsel's past political donations impugned his impartiality. Others argue that such suggestions are utter nonsense.

How large a hair shirt must we wear, says Bob Rae, a lawyer, former Ontario premier and now Liberal MP. We're living in an age of hypersensitivity  it's nutsy.

In May, Vancouver lawyer Terry Robertson resigned as a special prosecutor investigating alleged election improprieties by then Solicitor General Kash Heed after it became widely known that Robertson's firm had contributed $1,000 to Heed's 2009 successful rookie election campaign. Soon after B.C. Liberal premier Gordon Campbell brought the former West Vancouver police chief into his cabinet, Heed became embroiled in controversy. Earlier this year, the government asked Robertson to investigate the alleged election campaign dirty tricks.

At the time, Robertson, a Harper Grey LLP partner, knew this his firm had made the $1,000 donation, but felt that the transaction did not impinge on his neutrality. Robertson, who does not belong to a political party, had been conducting special prosecutions since 1994, including a 2001 investigation that led to charges against a Liberal MLA.

In the event, Robertson cleared Heed, but approved charges against two of his senior campaign workers. The next day, a senior provincial justice official, upon learning of the donation, telephoned Robertson to express concerns about how the public might view the relationship between the financial contribution and the special prosecutor's decision not to proceed against Heed. Robertson immediately stepped down.

Meanwhile, one month later, chief prosecutor Pierre Cimon felt forced to resign from a Quebec inquiry into alleged Liberal party political interference in the nomination of judges. Cimon, over a five-year period, had made five separate donations to the Liberal party, ranging in amounts of $250 to $750. Cimon had told the inquiry chair, former Supreme Court of Canada Justice Michel Bastarache, about the contributions, and neither man considered them an impediment.

But the opposition had a contrary view, and Cimon came under public attack within a week of his appointment. Declaring himself non-partisan, the Quebec City lawyer with four decades experience decided that he could not continue as chief prosecutor. The climate was unbearable, he said. It was impossible, given everything that was said, to work in peace and conduct a major investigation. We cannot do an inquiry like this while always being suspected of partisanship.

While Cimon felt wronged, Robertson felt the need to apologize. The Vancouver lawyer said that he agreed that his firm's donation presented a serious public perception issue. It is clear now that I should not have accepted this assignment, Robertson said afterwards. For that, I am truly sorry.

Harper Grey went one step further, halting all political donations as a result of the imbroglio. It also returned Robertson's fees. Harper Grey recognizes the public concern and seriousness of thematter, the firm said in a statement. We regret that the action of one of our firm's partners has initiated concerns regarding the special prosecution process. It added, The work should not have been taken on.

Such a view is gaining some traction. In a recent column on legal weblog Slaw, Doug Jasinski questions whether law firms should continue with political donations. From a marketing perspective, the former lawyer, now ad agency principal, says the answer is probably no, given the increased public scrutiny of  and lack of trust in  the legal profession.

The risk/reward ratio for law firm political donations is frequently too high to make it a prudent marketing strategy, Jasinski argues. Firms interested in pursuing government-related work of any kind need to be both completely transparent and utterly pristine in their dealings with public bodies and political organizations.

Campaign contributions muddy the waters, and where mud exists, mud-slinging is sure to follow.

University of Ottawa law professor Stephane Émard-Chabot also urges caution when law firms dip their toes in political waters. Given the close nexus between lawyers and politicians, he says both groups must exercise special caution in their relationships. Lawyers are highly represented in the political class, says Émard-Chabot, a former Ottawa city councillor and a former practising lawyer. The links are always there; adding a financial aspect makes it even more complicated.

As a result, he says law firms, as business entities closely associated with the administration of justice and political parties, should abstain from making political donations, even though they are largely a matter of public record. However, Émard-Chabot adds that individual lawyers should be free to make political contributions as long as they are transparent.

Maintaining integrity is the most important thing, both for the legal profession and the politicians, Émard-Chabot says.
Right now, there is close to a crisis of confidence in both groups. It hurts every time that a law firm is seen to be influencing and joining the network of power. And there is a compounding effect. People say, 'Oh, there they go again.'

He adds: Projecting a clean image is more important than the ability to raise funds from law firms. Everything that can be done to lower raised eyebrows is well worth it.

Nevertheless, he acknowledges that the amounts of money involved, by legislation, are so small that political donations are unable to achieve any influence. Because of these legal limits, the gain to politicians is small while the loss to lawyers  and politicians  is large.

Not necessarily, says Dean of Osgoode Hall Law School of York University Lorne Sossin. For him, the key is transparency, not the donation itself. Referring to the B.C. situation, Sossin says: Nobody would believe that a $1,000 contribution by the firm would jeopardize the special prosecutor's impartiality. But there is an appearance of impartiality.

He faults law firms for generally not having in place better procedures to let their members know about gifts, whether to a charity, a politician or a political party, so that individual lawyers can be aware of potential conflicts of interest. The current situation of little internal disclosure is not sustainable, says Sossin, who is also  director of the law school's Centre for the Legal Profession, established in part to examine ethical and professional issues. The law firms have to get out of donations or become more transparent.
Clearly, he favours the latter approach. We should not begin with the premise that all donations are evil, Sossin says. If donations stopped, the political system would cease to function.

Instead, in the case of a special prosecution appointment, he suggests that both the government and the lawyer should be aware of any donation. Explains Sossin:

The key to disclosure is that both sides at the outset can consider whether the relationship is proper. It should be discussed and perhaps even given to a third party to assess. Then, if the assignment goes ahead, the parties can say the potential conflict was known and investigated before proceeding. That's impossible after the fact.

Joining Sossin on the pro-law-firm donation side is Tim Murphy, a partner at Macmillan LLP in Toronto and chief of staff to former prime minister Paul Martin. There is virtue and value in making political donations, Murphy says. Firms and individual lawyers have a responsibility to participate and contribute to the political process, especially in the legal context where we, as lawyers, are the interpreters and arbiters of rules as they apply to the public.

Noting that lawyers and their firms are also members of the community, Murphy says they should demonstrate their commitment to society by participating in community events, including those that involve donations such as political fundraisers.

As for ethical and conflict-of-interest concerns, Murphy says the public has overreacted. If I am asked to be an independent prosecutor and I had made a personal contribution, that suggests a connection, he says. But if one of my partners individually or the firm gives money, then reality has nothing to do with perception.

He adds, emphatically, Because people have a gross misconception about how the system works, it's an astounding thesis that others should base their behaviour on that gross misconception.

Rae agrees. The pendulum has swung too far. The amounts are so trivial that they can't buy influence, yet you can't run an election campaign without money.

Meanwhile, the British Columbia government has appointed a new special prosecutor to investigate Heed, and questions are being raised about seven other special prosecutors who either made personal donations to the Liberal party or work at firms who gave. Everyone seems to be examining their donation practices. Says Doug Buchanan, a partner at Davis LLP in Vancouver, one of the province's leading firms: We are alert to the issue and are considering it.