The geek with a cynical view

A medication commonly prescribed to treat enlarged prostates may have an even more important use: slowing the growth of early stage prostate cancer.

2012-01-24T03:38:00.000-05:00

A medication commonly prescribed to treat enlarged prostates may have an even more important use: slowing the growth of early stage prostate cancer.

In a study published Monday in the journal The Lancet, Canadian researchers have found that dutasteride (often sold as Avodart) may eliminate the need for aggressive treatment in men with low-risk prostate cancer.

That's good news for those men whose cancer is growing so slowly, it's not expected to shorten their lives. These men are often told to take a "watch and wait" approach. But many have said they don't feel comfortable doing nothing about their cancer.

Now, Canadian researchers say dutasteride can help make watchful waiting more bearable.

The study followed 300 men, aged 48 to 82 years old, with low risk prostate cancer that was being actively watched by their doctors. Half the men were given a daily placebo, while the other half took 0.5 mg of dutasteride a day for three years.

The men then underwent biopsies at 18 months and three years later to measure their disease progression. The researchers found:

•48 per cent given the placebo experienced disease progression

•38 per cent of the men receiving dutasteride experienced disease progression

Additionally, men treated with dutasteride were more likely to have no cancer detected in their final biopsy. In 50 of the men on the dutasteride group, doctors could find no cancer, compared to 31 men in the placebo group.

It's not clear whether the drug helped to save any lives, since there were no prostate cancer-related deaths during the study, nor were there any instances of disease spread.

But the men taking the medication did report less anxiety in questionnaires throughout the study, compared with those given placebo.

The study's lead investigator, Dr. Neil Fleshner of Princess Margaret Hospital in Toronto, says the drug could allow more men to avoid surgery, which carries the risk of side effects such as impotence and incontinence.

"This drug may not save a life, but it will prevent men whose cancer will pose no long-term risk, stave off surgery or radiation or treatment with side effects," he told CTV News.

There were more drug-related side effects in the men in the dutasteride group compared to those given placebo. Those side effects included adverse sexual events or breast enlargement or tenderness.

And the authors note that they have no reason to believe the drug can help slow the progression of high-grade prostate cancer.

The study was sponsored by Avodart's maker, GlaxoSmithKline. Fleschner reports the company will not be seeking a formal approval for use of the drug in low-grade prostate cancer management.

Goodman Cancer Research Centre. at .mcgill university

2012-01-22T04:02:00.001-05:00

highlight some of the critical work being done at the Goodman Cancer Research Centre, we gathered some of our top scientists, students, lab techs and dedicated volunteers, who turned on the music - and danced!

Thanks to our proud sponsor, Medicom, a donation will be made for each hit to support advances in cancer research at the Goodman Cancer Research Centre.

Visit:

http://cancercentre.mcgill.ca/

To make a direct gift, click under the photo.

Thank you for your tremendous interest and support!

Support Princess Margaret Hospital Canada .

2012-01-20T00:00:00.000-05:00

Princess Margaret Hospital is located in downtown Toronto, Ontario, Canada on University Avenue at College Street. It is part of the University Health Network. Located in the city's Discovery District, Princess Margaret is a cancer research hospital fully affiliated with the University of Toronto, and is under royal patronage of Anne, Princess Royal, as a member of the Canadian Royal Family. The hospital was named after the late Princess Margaret, sister of Queen Elizabeth II.

The hospital specializes in the treatment of cancer, and offers the majority of its services to residents of the Greater Toronto Area. It frequently hosts patients from other parts of Canada for access to a high calibre of treatment.[citation needed]. In particular, the hospital offers expertise in the fields of surgical oncology, medical oncology including bone marrow transplantation, radiation oncology, psychosocial oncology, medical imaging, and radiation therapy.

The hospital houses one of the largest radiation therapy departments in the world. It has 17 radiation treatment machines, all of which are equipped with the latest technologies, a superficial ortho-voltage X-Ray machine, and operates a Gamma Knife stereotactic radiosurgery machine in collaboration with Toronto Western Hospital.

[edit] EducationAs a teaching hospital of the University of Toronto, the hospital provides world class training to various medical professions. Most notable are clinical programs for medical doctors and radiation therapists.

[edit] ResearchIts related research arm, the Ontario Cancer Institute (OCI), has made world-renowned contributions[citation needed], and works in conjunction with the hospital in a mutually beneficial relationship. Many researchers at the OCI hold appointments at the University of Toronto, often within the Department of Medical Biophysics.

[edit] HistoryThe hospital was founded as the Ontario Cancer Institute in 1952 by an Act of the Ontario legislature. Designed by the architect Henry Sproatt, it was originally located at 500 Sherbourne Street, beside the now demolished Wellesley Hospital, on Sherbourne Street north of Wellesley Avenue. The hospital at 500 Sherbourne was completed in 1958 and named the Princess Margaret Hospital after Princess Margaret of the United Kingdom. In 1995, the hospital relocated to 610 University Avenue (the short building once was head office for Hydro Electric Power Commission of Ontario).

During health restructuring legislated by the Harris Government in the late 1990s, Princess Margaret Hospital merged with The Toronto Hospital which was the entity formed by the merger of the Toronto General Hospital and the Toronto Western Hospital. The new entity was named University Health Network and the three hospital sites retain their original names within the new entity. Like many hospitals, Princess Margaret Hospital is served by a charitable foundation, the Princess Margaret Hospital Foundation, which holds numerous events and a lottery to raise philanthropic funds to support research, education, and patient care.

Additional imagesPrincess Margaret Hospital seen from the southwest at sunset.

Princess Margaret Hospital seen from the northeast. Mount Sinai Hospital is to the south.

See alsoList of Canadian organizations with royal patronage

The Ride to Conquer Cancer

References[edit] External linksOntario Cancer Institute

Canadian Cancer Society

Princess Margaret Hospital

Department of Medical Biophysics, University of Toronto

University of Alberta DCA Research

2012-01-18T00:00:00.000-05:00

DCA is an odourless, colourless, inexpensive, relatively non-toxic, small molecule. And researchers at the University of Alberta believe it may soon be used as an effective treatment for many forms of cancer.

Dr. Evangelos Michelakis, a professor at the U of A Department of Medicine, has shown that dichloroacetate (DCA) causes regression in several cancers, including lung, breast, and brain tumors.

Michelakis and his colleagues, including post-doctoral fellow Dr. Sebastien Bonnet, have published the results of their research in the journal Cancer Cell.

Scientists and doctors have used DCA for decades to treat children with inborn errors of metabolism due to mitochondrial diseases. Mitochondria, the energy producing units in cells, have been connected with cancer since the 1930s, when researchers first noticed that these organelles dysfunction when cancer is present.

Until recently, researchers believed that cancer-affected mitochondria are permanently damaged and that this damage is the result, not the cause, of the cancer. But Michelakis, a cardiologist, questioned this belief and began testing DCA, which activates a critical mitochondrial enzyme, as a way to "revive" cancer-affected mitochondria.

The results astounded him.

Michelakis and his colleagues found that DCA normalized the mitochondrial function in many cancers, showing that their function was actively suppressed by the cancer but was not permanently damaged by it.

More importantly, they found that the normalization of mitochondrial function resulted in a significant decrease in tumor growth both in test tubes and in animal models. Also, they noted that DCA, unlike most currently used chemotherapies, did not have any effects on normal, non-cancerous tissues.

"I think DCA can be selective for cancer because it attacks a fundamental process in cancer development that is unique to cancer cells," Michelakis said. "One of the really exciting things about this compound is that it might be able to treat many different forms of cancer".

Another encouraging thing about DCA is that, being so small, it is easily absorbed in the body, and, after oral intake, it can reach areas in the body that other drugs cannot, making it possible to treat brain cancers, for example.

Also, because DCA has been used in both healthy people and sick patients with mitochondrial diseases, researchers already know that it is a relatively non-toxic molecule that can be immediately tested patients with cancer.

"The results are intriguing because they point to the critical role that mitochondria play: they impart a unique trait to cancer cells that can be exploited for cancer therapy"

Dario Alteri

Director University of Massachusetts Cancer Center

Investing in Research

The DCA compound is not patented and not owned by any pharmaceutical company, and, therefore, would likely be an inexpensive drug to administer, says Michelakis, the Canada Research Chair in Pulmonary Hypertension and Director of the Pulmonary Hypertension Program with Capital Health, one of Canada's largest health authorities.

However, as DCA is not patented, Michelakis is concerned that it may be difficult to find funding from private investors to test DCA in clinical trials. He is grateful for the support he has already received from publicly funded agencies, such as the Canadian Institutes for Health Research (CIHR), and he is hopeful such support will continue and allow him to conduct clinical trials of DCA on cancer patients.

Michelakis' research is currently funded by the CIHR, the Canada Foundation for Innovation, the Canada Research Chairs program, and the Alberta Heritage Foundation for Medical Research.

"This preliminary research is encouraging and offers hope to thousands of Canadians and all others around the world who are afflicted by cancer, as it accelerates our understanding of and action around targeted cancer treatments," said Dr. Philip Branton, Scientific Director of the CIHR Institute of Cancer.

DCA and Cancer Patients

The University of Alberta's DCA Research Team is set to launch clinical trials on humans in the spring of 2007 pending government approval. Knowing that thousands of cancer patients die weekly while waiting for a cure, Dr. Michelakis and his team are working at accelerated speed, condensing research that usually takes years into months. Fundraisers at the University of Alberta are determined to raise the money to allow this next phase of research to begin. Once Health Canada grants formal approval, the University of Alberta's Research Team will begin testing DCA on patients living with cancer. Results with regards to the safety and efficacy of treatment should be known late this year.

"If there were a magic bullet, though, it might be something like dichloroacetate, or DCA..."

Newsweek, January 23, 2007

National Non-Smoking Week (NNSW) Canadian Council for Tobacco Control

2012-01-17T00:30:00.000-05:00

National Non-Smoking Week (NNSW) has been observed for more than 30 years. It is one of the longest running and most important events in Canada’s ongoing public health education efforts. Established in 1977 by the Canadian Council for Tobacco Control (CCTC), its goals are:

to educate Canadians about the dangers of smoking;

to prevent people who do not smoke from beginning to smoke and becoming addicted to tobacco;

to help people quit smoking;

to promote the right of individuals to breathe air unpolluted by tobacco smoke;

to denormalize the tobacco industry, tobacco industry marketing practices, tobacco products, and tobacco use; and

to assist in the attainment of a smoke-free society in Canada.

Want to help support NNSW? Consider a charitable donation to the CCTC.

Your leader wants you to butt out.

2012-01-16T04:26:00.000-05:00

Your leader wants you to butt out.

National Non-Smoking Week began Sunday, and Prime Minister Stephen Harper issued a statement encouraging smokers to make a resolution "to quit the habit both for themselves and for their loved ones.

"Every year smoking adversely impacts the health of millions of Canadians - including those affected by second-hand smoke - heightening their risk of cancer, heart disease, emphysema and a number of other conditions. It also costs our healthcare system - and therefore taxpayers - a substantial amount of money" Harper said in the statement released Sunday.

The Ontario Pharmacists' Association (OPA) also took the opportunity to remind Ontarians that eligible patients who want to stop smoking can receive free counselling at many of the province's pharmacies.

According to Health Canada, our government invests $15.8 million annually to help people stop smoking, prevent youth from starting to smoke, and protect Canadians from exposure to second-hand smoke. It says Canada has one of the lowest smoking rates in the world, but that tobacco use is still the most significant cause of preventable disease, disability, and premature death in Canada, and is responsible for more than 37,000 deaths every year.

Canada's justice minister says all same-sex marriages performed in Canada are legally recognized and the government is working to ensure foreign couples married here can divorce if they chose to.

2012-01-13T16:48:00.000-05:00

Canada's justice minister says all same-sex marriages performed in Canada are legally recognized and the government is working to ensure foreign couples married here can divorce if they chose to.

"Marriages performed in Canada that aren't recognized in couple's home jurisdiction will be recognized in Canada," Justice Minister Rob Nicholson said Friday in Toronto.

"I want to be very clear that our government has no intention of reopening the debate on the definition of marriage," he added.

The statement comes one day after it was learned Justice Department lawyers were arguing a foreign lesbian couple that married in Canada could not apply for divorce here because their marriage wasn't valid.

Nicholson said the Divorce Act will be updated so those couples can apply for divorce in Canada if they feel the need to.

"I want to make it clear that in our government's view, these marriages are valid," Nicholson said.

The justice minister blamed the former Liberal government that legalized gay marriage for the "legislative gap" that resulted in the confusion.

He also said the Civil Marriage Act will be changed so that all marriages performed in Canada that aren't recognized by the couple's own jurisdiction will still be recognized in Canada.

Political opponents of the Harper government jumped on the opportunity to suggest the Conservatives were reopening the gay marriage debate.

One Canadian legal expert on same-sex marriage said she's quite concerned that the Conservatives have decided to tinker with the Civil Marriage Act.

"With a majority government in place, I think that's a risk that Canadian society cannot afford to take," Queen's University law professor Kathleen Lahey said in a telephone interview from Kinsgton, Ont.

She argues that re-opening the act in Parliament is a back-door way to introduce other changes to the act.

"The real problem with fixing an alleged legislative gap in the Civil Marriage Act is that there is no legislative gap in that act, and therefore, there is nothing to fix in that act," Lahey said. "If opening that act up is supposed to introduce a fix, then presumably someone might want to do something else with it while it is open and in front of Parliament."

She said the government could just simply withdraw its legal case before the courts to resolve the issue.

Critics have questioned why a government lawyer was arguing a marriage was not legal in Canada because the couple's home jurisdiction did not recognize gay marriage. It's unclear where the lawyer's direction was coming from.

Lahey said in her experience, it's unlikely that this specific legal case didn't draw the attention of senior officials.

"Lawyers who are willing to be aggressive in seeking out virtually any argument to defeat equality claims are allowed to do so," she said. "I don't know what level of scrutiny was put in this case, but the fact that both levels of government are in a simple divorce case is an indicator to me that somewhere higher up, someone was watching this.

"I'm not convinced that this is just a fluke or an accident that this argument was raised in this way."

Egale Canada, a lesbian, gay, bisexual,

and transgender (LGBT) human rights group, said it was pleased with the government's quick action.

"We see this as a good first step toward opening dialogue between this government and the LGBT community in Canada. We are open and eager to meet with this majority government to build a credible relationship that is not based on fear," the group's executive director, Helen Kennedy, said in a statement.

The Harper government went into damage control Thursday and has denied that they were looking into reopening any debate on same-sex marriage.

"We're not going to reopen that particular issue," Prime Minister Stephen Harper told reporters Thursday.

Read more: http://www.ctv.ca/CTVNews/TopStories/20120113/gay-marriage-legal-nicholson-120113/#ixzz1jNQhxfKO

Eight former CWB directors are asking the Federal Court of Canada to quash the Conservative government's appeal of Justice Douglas Campbell's declaration.

2012-01-12T00:00:00.000-05:00

The battle over the Canadian Wheat Board isn't over just yet.

Eight former CWB directors are asking the Federal Court of Canada to quash the Conservative government's appeal of Justice Douglas Campbell's declaration.

Early last month Campbell said federal Agriculture Minister Gerry Ritz had not followed Section 47.1 of the Canadian Wheat Board Act, by having the required farmer plebiscite on major changes to the CWB.

"The Harper government broke the law and insulted farmers when they took away the farmers' right to vote on changes to the CWB," former CWB chair Allen Oberg said in a prepared statement. "The government's action was not legal, fair or constructive, and the government continues to create a huge amount of uncertainty for the western grain trade."

Last year the Conservatives introduced in the House of Commons Bill C-18 to end the CWB's single desk selling of Western Canadian wheat and barley.

Ritz said the federal election results, in which the Tories won a majority, was enough of a mandate to press ahead with the government's agenda for the CWB.

The Conservative government said that a specific plebiscite was not needed.

However opposition to Bill C-18 gave rise to a court challenge by the Friends of the CWB and supported by other pro-CWB groups including eight of the monopoly marketers' 15 directors.

Campbell's declaration stated Ritz did not act democratically, but the judge's findings didn't have any direct affect on the passage of C-18, which was proclaimed by the end of the year.

UPSETS FORMER ELECTED DIRECTOR FROM KANE

Nevertheless the Harper government launched an appeal all the while proceeding with its changes to the CWB.

That's something that rankles one former farmer-elected director from Kane.

"We believe that the Harper government should have to choose - either the government moves ahead to dismantle the CWB without a vote of farmers, or they continue with their efforts to reverse the decision at appeal - but they should not be able to do both at the same time," former District 9 director Bill Toews said.

Once Ritz's legislation came into effect the farmer-elected CWB directors were unilaterally dismissed by the Harper government.

That action put into question who would foot the bill for further legal action.

"We and some other farmers are taking responsibility for that," Toews said.

The Ontario Court of Appeal has sounded a warning to insurers who deny benefits under a policy despite the medical evidence by awarding damages for the loss of the policyholder’s peace of mind.

2012-01-11T04:11:00.000-05:00

The Ontario Court of Appeal has sounded a warning to insurers who deny benefits under a policy despite the medical evidence by awarding damages for the loss of the policyholder’s peace of mind.

Laura Hillyer hopes the decision will change the use of the minor injury guidelines.

Defence lawyers hope the decision may bring some balance to what they say is the current arbitrary treatment of minor injury claims.

In its judgment in McQueen v. Echelon General Insurance Co. on Nov. 16, the Court of Appeal refused to overturn an award of $25,000 for mental distress caused by the denial of benefits.

The case involved a plaintiff who had been in a motor vehicle accident in which she sustained injuries. Prior to the accident, she was already suffering from bipolar disorder and upper back pain.

After the incident, the defendant insurer refused to pay for some of the benefits applied for and limited the plaintiff’s access to medical assessments. In fact, there were 21 denials of 16 separate benefits over a period of three years.

As well as the benefits, the plaintiff claimed extra contractual damages, bad faith, mental distress, aggravated damages, and punitive damages.

In supporting the trial court’s finding that the mental distress warranted compensation, the Court of Appeal declared: “People purchase motor vehicle liability policies to protect themselves from financial and emotional stress and insecurity.

An object of such contracts is to secure a psychological benefit that brought the prospect of mental distress upon breach within the reasonable contemplation of the parties at the time the contract was made.

As an insured person entitled to call on the policy, Ms. McQueen was entitled to that peace of mind and to damages when she suffered mental distress on breach.”

Lou Ferro of Ferro and Co. in Hamilton, Ont., notes that it has been easier to get damages for mental distress since Fidler v. Sun Life Assurance Co. of Canada. Ferro represented the plaintiff at trial, while lawyer Jane Poproski of his firm acted on the appeal.

As well, he says there are five or six other Court of Appeal and Supreme Court cases that laid the foundation for this judgment. “It takes advantage of what’s gone before,” he says.

Ferro argues that although the insurance industry is slow to change, it would be foolhardy not to take notice of the decision. “This case points out that the claims process is now under scrutiny.

The fairness component applies to the adjuster, and individual decisions made by the adjuster are subject to review.”

Ferro believes the case also confirms that insurance companies can’t be adversarial to the policyholder. “Some insurers just throw their cases into litigation as a standard response.

They use the courts as a profit centre. That’s not wise. You can’t dispute that you should treat the policyholder fairly. It’s like motherhood and apple pie. They go together.

If the adjuster makes an arbitrary or unsupported decision or is derisive or adversarial, it’s difficult to defend it. There will be lots more cases like this to come.”

Laura Hillyer of Martin & Hillyer Associates sees a lot to like in this decision as well. “The Court of Appeal affirmed the messages that insurers use to sell insurance: slogans like, ‘We’ve got you covered’ and ‘You’re in good hands.’ They use peace of mind to sell the product.

This decision confirms that that is what they do. I think of that as obvious, but it’s nice to hear the Court of Appeal saying it.”

Hillyer is happy to see the court holding the insurer to the standard it advertises and not just with the person it contracts with. “Echelon’s contract was not with Mrs. McQueen,” she says.

“It was her husband’s policy. The court chose not to draw a line between people who actually entered into the policy and people covered by the policy. It’s inclusive.”

The judgment criticizes a number of insurance industry practices, such as giving a denial without a reason. “Since Sept. 1, 2010, we are seeing a lot more of that,” says Hillyer.

“The insurer says it is not reasonable or necessary with no explanation. This decision calls on insurers to give more details if the decision is contrary to medical recommendations, which is what the treatment plan really is.”

Another insurance industry practice that the judgment criticizes is choosing to rely on a particular report that supports a denial of benefits. “If there are two reports and one says you should pay and one says you shouldn’t, they will need to think twice before denying it,” says Hillyer.

“That’s very, very helpful, especially if they are relying on what they should know is a short, perfunctory insurer examination. Often, the client says they sat in the waiting room for an hour, they saw the doctor for 10 minutes, and he hadn’t read the file yet.”

Hillyer also likes the fact that the Court of Appeal is sending those messages in relation to a modest claim. “Often, the denials aren’t for a large amount and you wonder if it’s cost-effective to proceed.

This decision makes it cost-effective, assuming you have a true link between the insurer’s behaviour and the claimant’s mental state.”

Hillyer notes that while people who have family and savings are less likely to suffer from mental distress, there are others who aren’t as fortunate and don’t have those fallbacks.

“If insurers engage in these behaviours with them and it detrimentally affects them, they are on the hook,” she says.

Ferro attributes some of the success in the action to the fact that the application didn’t go too far. “We asked the judge for $25,000. That’s not a great deal, but it represents the beginning of a process that has set the floor on damages.”

Hillyer also hopes the decision will change the use of the minor injury guidelines. “The [guideline] is very challenging. It’s very difficult to get someone out of [it] once they are in.

It shouldn’t be, but it is and our remedy is so far away. It’s very frustrating. If you take notice of some of these comments, I’d say keep sending information to the insurer. Indicate that the medical background is there. If they persist with a blanket refusal, they may be in hot water.”

For his part, Ferro is astounded by the practices of insurers who tell their adjusters to throw everything into the minor injury guidelines and then hunker down. Ferro personally knows an adjuster who has resigned upon receiving that instruction.

“He thought it was crazy,” says Ferro. “Eventually, adjusters will have to defend their decisions.”

SUPREME COURT OF CANADA Citation: Reference re Securities Act, 2011 SCC 66 Date: 20111222 Docket: 33718

2012-01-09T04:14:00.000-05:00

Source: http://scc.lexum.org/en/2011/2011scc66/2011scc66.html

SUPREME COURT OF CANADA

Citation: Reference re Securities Act, 2011 SCC 66

Date: 20111222

Docket: 33718

IN THE MATTER OF a Reference by the Governor in Council

concerning the proposed Canadian Securities Act, as set out in

Order in Council P.C. 2010-667, dated May 26, 2010

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons:

(paras. 1 to 134)

The Court

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

reference re securities act

IN THE MATTER OF a Reference by the Governor in Council pursuant to section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26, as set out in Order in Council P.C. 2010‑667, dated May 26, 2010, concerning the Proposed Canadian Securities Act

Indexed as: Reference re Securities Act

2011 SCC 66

File No.: 33718.

2011: April 13, 14; 2011: December 22.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

reference by governor in council

Constitutional law — Division of powers — Trade and commerce — Securities — Whether proposed legislation valid under general branch of federal power to regulate trade and commerce — Constitution Act, 1867, s. 91(2).

Pursuant to s. 53 of the Supreme Court Act, the Governor in Council has sought an advisory opinion from the Court as to whether the proposed Securities Act set out in Order in Council P.C. 2010‑667 falls within the legislative authority of the Parliament of Canada.

The preamble of the proposed Act states that its purpose is to create a single Canadian securities regulator. More broadly, s. 9 states that the purposes of the Act are to provide investor protection, to foster fair, efficient and competitive capital markets and to contribute to the integrity and stability of Canada’s financial system. The Act includes registration requirements for securities dealers, prospectus filing requirements, disclosure requirements, specific duties for market participants, a framework for the regulation of derivatives, civil remedies and regulatory and criminal offences pertaining to securities. The Act does not unilaterally impose a unified system, but permits provinces and territories to opt in, with the hope of creating an effective unified national securities regulation system.

Canada, joined by Ontario and several interveners, argues that the Act, viewed in its entirety, falls within the general branch of Parliament’s power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867. Alberta, Quebec, Manitoba, New Brunswick and other interveners argue that the scheme falls under the provincial power over property and civil rights under s. 92(13) of the Constitution Act, 1867 and trenches on provincial legislative jurisdiction over matters of a merely local or private nature (s. 92(16)), namely the regulation of contracts, property and professions.

Held: The Securities Act as presently drafted is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867.

To determine the constitutional validity of legislation from a division of powers perspective, the pith and substance analysis requires the courts to look at the purpose and effects of the law. The inquiry then turns to whether the legislation falls under the head of power said to support it. If the pith and substance of the legislation is classified as falling under a head of power assigned to the adopting level of government, the legislation is valid. When a matter possesses both federal and provincial aspects, the double aspect doctrine may allow for the concurrent application of both federal and provincial legislation.

Parliament’s power over the regulation of trade and commerce under s. 91(2) of the Constitution Act, 1867 has two branches — the power over interprovincial commerce and the general trade and commerce power. Only the general trade and commerce power is invoked by Canada in this reference. This power, while on its face broad, is necessarily circumscribed. It cannot be used in a way that denies the provincial legislatures the power to regulate local matters and industries within their boundaries. Nor can the power of the provinces to regulate property and civil rights within the provinces deprive the federal Parliament of its powers under s. 91(2) to legislate on matters of genuine national importance and scope — matters that transcend the local and concern Canada as a whole.

As held in General Motors, to fall under the general branch of s. 91(2), legislation must engage the national interest in a manner that is qualitatively different from provincial concerns. Whether a law is validly adopted under the general trade and commerce power may be ascertained asking (1) whether the law is part of a general regulatory scheme; (2) whether the scheme is under the oversight of a regulatory agency; (3) whether the legislation is concerned with trade as a whole rather than with a particular industry; (4) whether it is of such a nature that provinces, acting alone or in concert, would be constitutionally incapable of enacting it; and (5) whether the legislative scheme is such that the failure to include one or more provinces or localities in the scheme would jeopardize its successful operation in other parts of the country. These indicia of validity are not exhaustive, nor is it necessary that they be present in every case.

Here, the main thrust of the Act is to regulate, on an exclusive basis, all aspects of securities trading in Canada, including the trades and occupations related to securities in each of the provinces. The purpose of the Act is to implement a comprehensive Canadian regime to regulate securities with a view to protect investors, to promote fair, efficient and competitive capital markets and to ensure the integrity and stability of the financial system. Its effects would be to duplicate and displace the existing provincial and territorial securities regimes.

Applying the settled case law, the Act, viewed in its entirety, cannot be classified as falling within the general trade and commerce power. Its main thrust does not address a matter of genuine national importance and scope going to trade as a whole in a way that is distinct and different from provincial concerns. Canada has not established that the area of securities has been so transformed that it now falls to be regulated under the federal head of power. The preservation of capital markets to fuel Canada’s economy and maintain Canada’s financial stability is a matter that goes beyond a specific industry and engages trade as a whole. However, the Act is chiefly concerned with the day‑to‑day regulation of all aspects of contracts for securities within the provinces, including all aspects of public protection and professional competences. These matters remain essentially provincial concerns falling within property and civil rights in the provinces and are not related to trade as a whole. Specific aspects of the Act aimed at addressing matters of genuine national importance and scope going to trade as a whole in a way that is distinct from provincial concerns, including management of systemic risk and national data collection, appear to be related to the general trade and commerce power. With respect to these aspects of the Act, the provinces, acting alone or in concert, lack the constitutional capacity to sustain a viable national scheme. Viewed as a whole, however, the Act is not chiefly aimed at genuine federal concerns. It is principally directed at the day‑to‑day regulation of all aspects of securities and, in this respect, it would not founder if a particular province failed to participate in the federal scheme.

In sum, the proposed Act overreaches genuine national concerns. While the economic importance and pervasive character of the securities market may, in principle, support federal intervention that is qualitatively different from what the provinces can do, they do not justify a wholesale takeover of the regulation of the securities industry which is the ultimate consequence of the proposed federal legislation. A cooperative approach that permits a scheme recognizing the essentially provincial nature of securities regulation while allowing Parliament to deal with genuinely national concerns remains available and is supported by Canadian constitutional principles and by the practice adopted by the federal and provincial governments in other fields of activities.

Cases Cited

Applied: General Motors of Canada v. City National Leasing, [1989] 1 S.C.R. 641; referred to: Reference re Securities Act (Canada), 2011 ABCA 77, 41 Alta. L.R. (5th) 145; Québec (Procureure générale) v. Canada (Procureure générale), 2011 QCCA 591 (CanLII); Lymburn v. Mayland, [1932] A.C. 318; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; R. v. W. McKenzie Securities Ltd. (1966), 56 D.L.R. (2d) 56, leave to appeal refused, [1966] S.C.R. ix (sub nom. West & Dubros v. The Queen); Gregory & Co. v. Quebec Securities Commission, [1961] S.C.R. 584; Québec (Sa Majesté du Chef) v. Ontario Securities Commission (1992), 10 O.R. (3d) 577, leave to appeal refused, [1993] 2 S.C.R. x (sub nom. R. du chef du Québec v. Ontario Securities Commission); Bennett v. British Columbia (Securities Commission) (1992), 94 D.L.R. (4th) 339; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Smith v. The Queen, [1960] S.C.R. 776; Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96; Re Wakim; Ex parte McNally, [1999] HCA 27, 198 C.L.R. 511; R. v. Hughes, [2000] HCA 22, 202 C.L.R. 535; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; Attorney‑General for Canada v. Attorney‑General for Ontario, [1937] A.C. 326; Hodge v. The Queen (1883), 9 App. Cas. 117; Edwards v. Attorney‑General for Canada, [1930] A.C. 124; Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; P.E.I. Potato Marketing Board v. H. B. Willis Inc., [1952] 2 S.C.R. 392; Lord’s Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497; Coughlin v. Ontario Highway Transport Board, [1968] S.C.R. 569; Fédération des producteurs de volailles du Québec v. Pelland, 2005 SCC 20, [2005] 1 S.C.R. 292; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; Re the Initiative and Referendum Act, [1919] A.C. 935; Lawson v. Interior Tree Fruit and Vegetable Committee of Direction, [1931] S.C.R. 357; Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134; John Deer Plow Co. v. Wharton, [1915] A.C. 330; Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302; Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327; Duplain v. Cameron, [1961] S.C.R. 693.

Statutes and Regulations Cited

Bank Act, S.C. 1991, c. 46.

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3, Part XII.

Basic Law (Federal Republic of Germany), art. 72(2).

Budget Implementation Act, 2009, S.C. 2009, c. 2.

Canada Business Corporations Act, R.S.C. 1985, c. C‑44.

Constitution Act, 1867, ss. 91, 91(2), (15), (17), (18), (21), (27), 92, 92(1)(a), (13), (16), 95.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 380(2), 382, 382.1, 383, 384, 400.

Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.).

National Securities Markets Improvement Act of 1996, Pub. L. 104‑290, 110 Stat. 3416 (1996).

Payment Clearing and Settlement Act, S.C. 1996, c. 6, Sch.

Proposed Canadian Securities Act, Order in Council P.C. 2010‑667, preamble, ss. 9, Part 3, 64, 66, Part 4, 73, 74, Part 5, 76, 89, 90, Part 10, 109 to 113, 114, 116, 117(1), (2), 126(1), Part 11, 224, 228(4)(c).

Securities Act of 1933, 15 U.S.C. §77a, s. 18.

Supreme Court Act, R.S.C. 1985, c. S‑26, s. 53.

Telecommunications Act, S.C. 1993, c. 38.

United States Constitution, art. I, § 8, cl. 3, VI, cl. 2.

Authors Cited

Canada. Consumer and Corporate Affairs. Proposals for a Securities Market Law for Canada, vol. 2 — Commentary. Ottawa: Minister of Supply and Services Canada, 1979.

Canada. Expert Panel on Securities Regulation. Creating an Advantage in Global Capital Markets — Final Report and Recommendations, January 2009. Online: www.expertpanel.ca/eng/reports/index.html.

Canada. Memorandum of Understanding Regarding the Regulation of Securities in Canada (draft), reproduced at (1994), 17 OSCB 4401.

Canada. Royal Commission on Banking and Finance. Report of the Royal Commission on Banking and Finance. Ottawa: Queen’s Printer, 1964.

Canada. Royal Commission on Price Spreads. Report of the Royal Commission on Price Spreads. Ottawa: King’s Printer, 1935.

Canada. Royal Commission on the Economic Union and Development Prospects for Canada — Report, vol. 3. Ottawa: Minister of Supply of Services Canada, 1985.

Crawford Panel on a Single Canadian Securities Regulator. Blueprint for a Canadian Securities Commission — Final Paper, June 7, 2006. Online: http://www.cba.ca/contents/files/misc/msc_crawfordreport_en.pdf.

Gillen, Mark R. Securities Regulation in Canada, 3rd ed. Toronto: Thomson Carswell, 2007.

Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 1. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2010, release 1).

Howard, John L. “Securities Regulation: Structure and Process”, in Proposals for a Securities Market in Canada, vol. 3. Ottawa: Minister of Supply and Services Canada, 1979.

Macey, Jonathan. An Analysis of the Canadian Federal Government’s Initiative to Create a National Securities Regulator, June 23, 2010.

Milne, Frank. The Impact of Innovation and Evolution on the Regulation of Capital Markets, May 19, 2010.

Ontario Securities Commission. “CANSEC: Legal and Administrative Concepts” (November 1967), OSCB 61.

Suret, Jean‑Marc, and Cécile Carpentier. Securities Regulation in Canada. Working paper undertakern for the Commission des valeurs mobilières du Québec, July 2003.

Trebilcock, Michael J. National Securities Regulator Report, May 20, 2010.

Wise Persons’ Committee — Committee to Review the Structure of Securities Regulation in Canada. It’s Time. Ottawa: The Committee, 2003.

REFERENCE by the Governor in Council, pursuant to s. 53 of the Supreme Court Act, concerning the constitutional validity of the proposed Securities Act. The question referred to was answered as follows: The Securities Act as presently drafted is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867.

Robert J. Frater, Peter W. Hogg, Q.C., Claude Joyal and Alexander Pless, for the Attorney General of Canada.

Janet E. Minor, Jennifer A. August and S. Zachary Green, for the intervener the Attorney General of Ontario.

Jean‑Yves Bernard, France Bonsaint and Hugo Jean, for the intervener the Attorney General of Quebec.

Gaétan Migneault, for the intervener the Attorney General of New Brunswick.

Eugene B. Szach and Nathaniel Carnegie, for the intervener the Attorney General of Manitoba.

George H. Copley, Q.C., Nancy E. Brown and Donald Sutherland, for the intervener the Attorney General of British Columbia.

Graeme G. Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan.

E. David D. Tavender, Q.C., D. Brian Foster, Q.C., L. Christine Enns and Jordan C. Milne, for the intervener the Attorney General of Alberta.

Andrew K. Lokan, Massimo C. Starnino and Michael Fenrick, for the intervener the Canadian Foundation for Advancement of Investor Rights.

Luis Sarabia, Matthew Milne-Smith and David Stolow, for the intervener the Canadian Coalition for Good Governance.

John B. Laskin and Darryl C. Patterson, for the intervener the Investment Industry Association of Canada.

Mahmud Jamal, Éric Préfontaine and Raphael T. Eghan, for the intervener the Canadian Bankers Association.

Kelley M. McKinnon and Brent J. Arnold, for the intervener the Ontario Teachers’ Pension Plan Board.

Guy Paquette and Vanessa O’Connell-Chrétien, for the intervener Mouvement d’éducation et de défense des actionnaires.

Raymond Doray and Mathieu Quenneville, for the intervener Barreau du Québec.

Sébastien Grammond and Luc Giroux, for the intervener the Institute for Governance of Private and Public Organizations.

The following is the opinion delivered by

The Court —

I. Overview of the Court’s Opinion

[1] This reference under s. 53 of the Supreme Court Act, R.S.C. 1985, c. S‑26, requires the Court to determine whether the proposed Securities Act set out in Order in Council P.C. 2010-667 falls within the legislative authority of the Parliament of Canada.

[2] The proposed Securities Act represents a comprehensive foray by Parliament into the realm of securities regulation. If validly adopted, it will create a single scheme governing the trade of securities throughout Canada subject to the oversight of a single national securities regulator.

[3] The government of Canada (“Canada”), supported by the Attorney General of Ontario (“Ontario”) and other interveners, argues that the entirety of the Act can be sustained as a proper exercise of the general branch of Parliament’s legislative power to regulate trade and commerce, grounded in s. 91(2) of the Constitution Act, 1867. The Attorney General of Alberta (“Alberta”), the Attorney General of Quebec (“Quebec”) and other provincial Attorneys General and interveners oppose the Act, arguing that securities regulation is a matter falling within s. 92(13) of the Constitution Act, 1867, which gives the provinces legislative jurisdiction over property and civil rights within their borders. Certain opponents of the Act also submit that securities regulation relates to provincial jurisdiction over matters of a merely local or private nature, under s. 92(16) of the Constitution Act, 1867.

[4] Canada does not challenge the proposition that certain aspects of securities regulation fall within provincial authority in relation to property and civil rights in the provinces. Nor does Canada argue that any provisions of the Act fall within federal legislative authority because they are necessarily incidental to the exercise of federal powers. Canada’s contention is simply that the securities market has evolved from a provincial matter to a national matter affecting the country as a whole and that, as a consequence, the federal general trade and commerce power gives Parliament legislative authority over all aspects of securities regulation. This authority, Canada argues, is concurrent with that of the provincial legislatures over all aspects of securities presently regulated by the provinces.

[5] The propriety of such a constitutional realignment cannot simply be assumed. The shift in regulatory authority that the proposed Act seeks to achieve requires justification. Canada asserts that this justification is found under the “general” branch of the trade and commerce power. However, it has failed to show that this power, interpreted as required by the case law, supports the proposed Act.

[6] Canada has shown that aspects of the securities market are national in scope and affect the country as a whole. However, considered in its entirety, the proposed Act is chiefly directed at protecting investors and ensuring the fairness of capital markets through the day-to-day regulation of issuers and other participants in the securities market. These matters have long been considered local concerns subject to provincial legislative competence over property and civil rights within the province. Canada has not shown that the securities market has so changed that the regulation of all aspects of securities now falls within the general branch of Parliament’s power over trade and commerce under s. 91(2). Applying the settled test, we conclude that the proposed Act does not fall within the general trade and commerce power.

[7] It is a fundamental principle of federalism that both federal and provincial powers must be respected, and one power may not be used in a manner that effectively eviscerates another. Rather, federalism demands that a balance be struck, a balance that allows both the federal Parliament and the provincial legislatures to act effectively in their respective spheres. Accepting Canada’s interpretation of the general trade and commerce power would disrupt rather than maintain that balance. Parliament cannot regulate the whole of the securities system simply because aspects of it have a national dimension.

[8] We therefore answer the reference question in the negative.

[9] It is open to the federal government and the provinces to exercise their respective powers over securities harmoniously, in the spirit of cooperative federalism. The experience of other federations in the field of securities regulation, while a function of their own constitutional requirements, suggests that a cooperative approach might usefully be explored, should our legislators so choose, to ensure that each level of government properly discharges its responsibility to the public in a coordinated fashion.

[10] At this juncture, it is important to stress that this advisory opinion does not address the question of what constitutes the optimal model for regulating the securities market. While the parties presented evidence and arguments on the relative merits of federal and provincial regulation of securities, the policy question of whether a single national securities scheme is preferable to multiple provincial regimes is not one for the courts to decide. Accordingly, our answer to the reference question is dictated solely by the text of the Constitution, fundamental constitutional principles and the relevant case law.

II. The Proposed Act and the Parties’ Positions

A. National Securities Proposals in Canada

[11] Recommendations for national securities regulation in Canada are not new. Over the years, many proposals have been put forward, but none implemented. The various proposals, in different ways, attempted to come to grips with the problem underlying this reference — how to achieve national securities regulation within the constitutional division of powers between Parliament and the provincial legislatures. Not surprisingly, the proposals generally envisaged cooperation between the provinces and the federal government as the route to achieving national standards and regulation.

[12] The first proposal dates to 1935, when the Royal Commission on Price Spreads recommended the formation of an investment securities board to oversee the issuance of securities by companies incorporated under federal legislation (Report of the Royal Commission on Price Spreads, at pp. 41-42).

[13] In the 1960s, various recommendations and proposals were mooted. The 1964 Royal Commission on Banking and Finance (the “Porter Commission”) accepted the desirability of uniform legislation and administration of the Canadian securities industry and recommended the creation of an additional regulatory body, based on cooperation between the federal and provincial governments (Report of the Royal Commission on Banking and Finance). The body, to be headed by a federal regulator, would have set uniform standards for securities distributed interprovincially and internationally, while permitting existing provincial regulators to continue to govern “local matters such as the licensing of security dealers and their salesmen and the registration of issues to be offered only within their own province” (p. 348).

[14] The Porter Commission hoped that the establishment of a federal agency would lead to greater agreement and cooperation, eliminating the duplication that the Commission saw as hampering effective securities regulation. In particular, the Commission hoped that the introduction of uniform federal standards would foster the adoption of similar standards in the provinces and free the provinces to focus on purely local matters by automatically clearing federally regulated issues. In its view, a single federal agency would improve cooperation with the United States Securities and Exchange Commission and “would be responsible for and interested in the growth, development and efficiency of the whole Canadian securities industry” (p. 348).

[15] In 1967, just three years after the release of the Porter Commission’s report, the Ontario Securities Commission (“OSC”) circulated a very different proposal for a single, highly decentralized, national securities regulator. CANSEC — the “Canada Securities Commission” — was to be a three-tiered structure (a council of ministers, CANSEC and administrative staff) designed to achieve uniformity in Canadian securities regulation through cooperation by the federal and provincial governments, rather than by forcing each province to surrender its regulatory activity in the field to a federal body. CANSEC would operate on an opt-in basis: no province would be required to join or remain in CANSEC. Moreover, participation by provinces would not involve a permanent surrender of power: “A government which has passed an amendment in order to bring themselves into the scheme can repeal that amendment” (“CANSEC: Legal and Administrative Concepts” (November 1967), OSCB 61, at p. 66). Provinces would have been able to join CANSEC, then withdraw and regulate independently as before.

[16] The OSC anticipated that CANSEC would be brought into existence through the passage of an organizational statute by the federal government and the subsequent commitment by participating jurisdictions to have the new commission administer their own securities acts. In bringing CANSEC into existence, the OSC did not consider it necessary that the provincial laws themselves be substantively uniform; rather, similar schemes of administration and “some modest degree of uniformity” in securities legislation would suffice (p. 66). The provinces would retain jurisdiction over “nearly all substantive issues”, delegating to the commission authority only to deal with federal corporate, international and criminal matters not clearly within provincial jurisdiction (John L. Howard, “Securities Regulation: Structure and Process”, in Proposals for a Securities Market in Canada (1979), vol. 3, 1607, at p. 1693).

[17] The discussion over securities regulation continued in the 1970s and 1980s. In 1979, the federal Department of Consumer and Corporate Affairs produced a three-volume study entitled Proposals for a Securities Market Law for Canada, which contemplated a national securities commission working in cooperation with the provinces. The study recommended the creation of a federal securities commission and the enactment of federal securities legislation and envisioned a “nationally coordinated system of regulation that involves cooperation between a federal commission with federal jurisdiction and provincial and foreign commissions” (vol. 2, at p. 5). It contemplated administration either by a federal commission, by a cooperative body developed through negotiations among the federal and provincial governments, or a body lying on the spectrum between that and a single federal agency.

[18] In 1985, the Royal Commission on the Economic Union and Development Prospects for Canada concluded that there was no reason to tamper with the existing system of provincial regulation of stock markets, but noted that “[t]echnological change, the increasing international integration of capital markets, and the desire of provinces, especially Quebec, to regulate markets in pursuit of provincial development goals are all likely to place greater strains on the existing system in the near future” (Report, vol. 3, at p. 167).

[19] In 1994, the Premiers of the Atlantic Provinces asked the federal government to establish a national securities regulator. The proposal ultimately took the form of a draft memorandum of understanding (“MOU”) between the federal government and participating provinces, which was circulated among the provinces ((1994), 17 OSCB 4401). The MOU proposed the creation of a “Canadian Securities Commission” and envisioned a “uniform securities regulatory structure which [would] apply comprehensively within and across all participating provinces” (preamble).

[20] Like the proposal to establish CANSEC, the MOU was premised on opting-in by the provinces and explicitly stated that no government would give up any jurisdiction by joining. Participating provinces were to have the ability to adopt regulations exempting certain securities from provisions of the federal legislation. The jurisdiction of provincial securities regulatory authorities in provinces which elected not to participate in the uniform securities regulatory structure would not be affected. Canada, however, committed to “developing consultation and coordination mechanisms between the Canadian Securities Commission and the securities commission or equivalent office of any province which is not a Party to [the] agreement to maintain the benefits of harmonization of securities regulation in Canada and to promote further such harmonization in the future” (MOU, at s. 29).

[21] In the past decade, calls for a national securities regulator have intensified.

[22] The Wise Persons’ Committee (“WPC”) of 2003 recommended the adoption of a comprehensive scheme of capital markets regulation for Canada, to be accomplished by the passage of comprehensive federal securities legislation, followed by provincial legislation incorporating the federal law by reference and delegating administrative powers to a newly established “Canadian Securities Commission”.

[23] The WPC rejected the “dual structure” of securities market regulation recommended by the OSC proposal to establish CANSEC, the 1979 study by the Department of Consumer and Corporate Affairs and the 1994 MOU. In its view, “a dual structure, in which securities matters limited to a single province would be regulated provincially, while interprovincial and international matters would be regulated by a national body”, was not appropriate “[g]iven the nationally integrated nature of Canada’s capital markets and the history of provincial regulation of securities matters with incidental effect on matters outside the regulating province” (It’s Time (2003), at p. 59). In the WPC’s view, “efficient capital markets require that the federal legislation extend to all matters related to securities regulation” (p. 60).

[24] The WPC therefore recommended the enactment of a single, comprehensive code for the regulation of Canadian capital markets by the federal government. The single set of rules would cover “all securities regulatory matters in Canada” (p. 59). Provincial participation would be achieved through an obligation on the federal government to consult with the provinces before amending the legislation.

[25] The 2006 Crawford Panel on a Single Canadian Securities Regulator, established by the government of Ontario, endorsed the adoption of Canadian securities legislation (Blueprint for a Canadian Securities Commission – Final Paper). The Panel proposed that uniform regulation would be achieved by all jurisdictions incorporating, by reference, legislation enacted by one province as the Canadian Securities Act and establishing a “Canadian Securities Commission”. A common body of securities law would then apply across the country. However, like the WPC, the Crawford Panel viewed the participation of all provinces and territories and the federal government as “ideal” but not necessary for the Commission to be established. The key was “that there be an initial core group of Participating Jurisdictions that agrees to enact, or to enact through incorporation by reference, common legislation that establishes the [Commission] and delegates to it authority over capital markets regulation” (p. 16).

[26] Three years after the Crawford Panel presented its “Blueprint”, the Expert Panel on Securities Regulation (the “Hockin Panel”) released a report that informed the Securities Act proposed by Canada in this reference (Creating an Advantage in Global Capital Markets – Final Report and Recommendations (2009)). Like the Crawford Panel, the Hockin Panel recommended the establishment of a “Canadian Securities Commission” to oversee a single “Securities Act” for Canada.

[27] The Hockin Panel envisioned the establishment of a “comprehensive national regime” of securities regulation (p. 60), to be brought into force in participating jurisdictions through the repeal of local legislation. However, the Panel acknowledged that not all provinces (at least initially) might be willing to participate. It therefore recommended that “[i]n the absence of unanimity on the part of the provinces, the Act should provide for voluntary provincial participation, limiting its application to participating jurisdictions during the transition to a comprehensive national regime” (p. 60). The Panel foresaw that, faced with such circumstances, the federal government might consider a “market participant opt-in feature” (p. 61), and proposed that the Commission consider negotiating memoranda of understanding with non-participating jurisdictions to coordinate securities regulation.

[28] In response to the Hockin Report, the federal government established the Canadian Securities Regulation Regime Transition Office in the Budget Implementation Act, 2009, S.C. 2009, c. 2, and prepared a draft Act implementing the Report’s proposals. On May 26, 2010, the Governor General in Council referred this draft legislation to the Court for an advisory opinion as to its constitutional validity.

B. The Proposed Act

[29] The preamble of the proposed Act states that its immediate purpose is to create a single Canadian securities regulator. More broadly, s. 9 states that the underlying purposes of the Act are to provide investor protection, to foster fair, efficient and competitive capital markets and to contribute to the integrity and stability of Canada’s financial system.

[30] The Act includes registration requirements for securities dealers, prospectus filing requirements, disclosure requirements, specific duties for market participants, a framework for the regulation of derivatives, civil remedies and regulatory and criminal offences pertaining to securities. It provides for the comprehensive regulation of securities in Canada, under the oversight of a single national regulator. It also provides for a single set of laws and rules designed to permit uniform regulation and enforcement on a national basis, thus fostering the integrity and stability of Canada’s capital markets at a national level. While various parties emphasize different facets of the scheme, advancing interesting arguments on the implication of words such as “national”, “capital markets”, “securities industry” and “securities trading”, it seems uncontrovertible that what the Act seeks is comprehensive national securities regulation, with the aim of fostering fair and efficient capital markets and contributing to the stability of Canada’s financial system.

[31] The Act, as proposed, does not seek to unilaterally impose a unified system of securities regulation for the whole of Canada. Rather, it permits provinces to opt in, if and when they choose to do so. The hope is that, eventually, all or most provinces will opt in, creating an effective unified national securities regulation system for Canada. If this were to occur, it would represent a dramatic realignment in the manner in which securities have been regulated in this country.

C. The Parties’ Positions

[32] Canada, joined by Ontario and several interveners, argues that the proposed Act, viewed in its entirety, is a constitutional exercise of Parliament’s general power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867. It does not invoke other federal heads of power, such as legislative authority in relation to interprovincial and international trade and commerce (a separate branch of Parliament’s s. 91(2) authority), the incorporation of federal companies or the criminal law power (s. 91(27) — except with respect to some offence provisions the constitutionality of which is not contested). Nor does Canada contend that provisions of the Act that might be viewed as falling within provincial legislative powers are valid because they are ancillary to the exercise of federal powers.

[33] Canada and those who support its position acknowledge the oft-affirmed power of the provinces to regulate securities within their borders. However, they argue that securities markets have undergone significant transformation in recent decades, evolving from local markets to markets that are increasingly national, indeed international. This has given rise to systemic risks and other concerns that can only be dealt with on the national level. The evolving national character of securities markets, Canada says, brings those markets within the general trade and commerce power, as defined by existing jurisprudence. In short, Canada contends that securities have evolved in a way that now brings all aspects of securities regulation under the general branch of the trade and commerce power, including those aspects which would also fall under provincial competence in relation to property and civil rights within the province.

[34] The Attorneys General of Alberta, Quebec, Manitoba and New Brunswick and other interveners oppose the Act. They argue that the scheme the Act sets up falls under the provincial power over property and civil rights under s. 92(13) of the Constitution Act, 1867 and trenches on provincial legislative jurisdiction over matters of a merely local or private nature (s. 92(16)), namely the regulation of contracts, property and professions. They reject the contention that securities markets have evolved to become a matter of genuine national concern under the general federal trade and commerce power. Rather, they contend, the Act is a thinly disguised attempt to regulate a particular industry — the securities industry.

[35] The Attorney General of British Columbia and the Attorney General of Saskatchewan oppose the Act, but adopt a more nuanced approach to Parliament’s ability to regulate securities. Neither province opposes the idea of a national securities regulator, so long as it is achieved in a manner that respects the division of powers. However, these provinces contend that Parliament’s participation in securities regulation is best achieved through an exercise in federal-provincial cooperation, similar to the cooperation existing in the agricultural products marketing context.

III. The Provincial References

[36] In provincial references, both the Alberta Court of Appeal (2011 ABCA 77, 41 Alta. L.R. (5th) 145) and the Quebec Court of Appeal (2011 QCCA 591(CanLII)) concluded that the proposed Act is unconstitutional.

[37] The Alberta Court of Appeal (per Slatter J.A., Côté, Conrad, Ritter and O’Brien JJ.A., concurring) emphasized at para. 6 that the proposed Act “mirrors” provincial securities regimes by licensing and regulating the conduct of participants in the same fashion as the existing provincial legislation. While recognizing that securities products have changed over time, it held that securities regulation remains a matter of property and civil rights under s. 92(13) of the Constitution Act, 1867. As a result, the Act did not fall within Parliament’s general trade and commerce power, as defined by the jurisprudence.

[38] A majority of the Quebec Court of Appeal, in two sets of reasons (per Robert C.J. and per Forget, Bich and Bouchard JJ.A.), also concluded that the proposed Act is unconstitutional. The majority held that the federal proposal would create a comprehensive regulatory scheme that pursued the same objectives through the same means as existing provincial securities laws and fell under provincial jurisdiction over property and civil rights. Like the Alberta Court of Appeal, they held that the jurisprudence on the general trade and commerce power did not support the conclusion that the Act was a valid exercise of federal power.

[39] Dalphond J.A., dissenting, argued that the Canadian securities market, as a single, integrated, pan-Canadian market, fell within the general branch of Parliament’s trade and commerce power.

IV. The Regulation of Securities

A. Overview

[40] The term “securities” designates a class of assets that conventionally includes shares in corporations, interests in partnerships, debt instruments such as bonds and financial derivatives (F. Milne, The Impact of Innovation and Evolution on the Regulation of Capital Markets (2010), at para. 2.1; M. R. Gillen, Securities Regulation in Canada (3rd ed. 2007), at p. 1). The securities market channels savings in two basic ways: it allows demanders of investment capital (“issuers”) to receive investment capital from suppliers of capital (“investors”) in exchange for a security; and it allows investors to trade securities with one another. The first type of transaction occurs through the “primary” market, where issuers trade directly or indirectly with investors, while the second type of transaction is referred to as “secondary” market trading (Gillen, at pp. 32-33; Milne, at paras. 2.2-2.4).

[41] Every province and territory has its own securities laws and regulatory agency. These agencies exercise a variety of responsibilities, including: prospectus review and clearance; oversight of disclosure requirements; takeover bids and insider trading; registration and regulation of market intermediaries; enforcement of compliance with the regime; recognition and supervision of exchanges and other self-regulated organizations; and public education.

[42] Since the beginning of the 21st century, efforts to increase interprovincial cooperation and to harmonize provincial and territorial securities laws have intensified. For example, the supervision and regulation of securities firms are presently carried out by the Investment Industry Regulatory Organization of Canada (“IIROC”) working under the authority of the Canadian Securities Administrators, a creature of the various provincial and territorial securities commissions. The provincially organized Canadian Investor Protection Fund insures investors’ funds in the event of the bankruptcy of an investment firm (in an analogous fashion to the federal Canada Deposit Insurance Corporation for bank depositors). IIROC standards are national and directed at ensuring that investment firms are both liquid and solvent. Since 2008, all provincial and territorial jurisdictions except Ontario participate in a “passport regime” based on harmonized rules that allow issuers and market intermediaries to engage in activities in multiple jurisdictions while dealing with a single principal regulator. Nevertheless, distinctions remain between provincial securities regimes.

B. Legislative Competence over Securities: A Shared Field

[43] Provinces have jurisdiction to regulate securities within their boundaries (intra-provincial jurisdiction) as a matter of property and civil rights, pursuant to s. 92(13) of the Constitution Act, 1867. As Lord Atkin stated in Lymburn v. Mayland, [1932] A.C. 318 (P.C.), “If [a company] is formed to trade in securities there appears no reason why it should not be subject to the competent laws of the Province as to the business of all persons who trade in securities” (p. 324).

[44] More recently, this Court, in Multiple Access v. McCutcheon, [1982] 2 S.C.R. 161, per Dickson J. (as he then was), confirmed:

It is well established that the provinces have the power, as a matter of property and civil rights, to regulate the trade in corporate securities in the province, provided the statute does not single out federal companies for special treatment or discriminate against them in any way. ... Since the decision of the Privy Council in Lymburn v. Mayland, [1932] A.C. 318 the provisions of provincial securities acts have been given a wide constitutional recognition. [p. 183]

(See also Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at par. 40.)

[45] The provincial power over securities extends to impacts on market intermediaries or investors outside a particular province (Global Securities, at para. 41; R. v. W. McKenzie Securities Ltd. (1966), 56 D.L.R. (2d) 56 (Man. C.A.), leave to appeal refused [1966] S.C.R. ix (sub nom. West & Dubros v. The Queen); Gregory & Co. v. Quebec Securities Commission, [1961] S.C.R. 584). The case law also recognizes provincial jurisdiction where the province’s capital markets are engaged (Québec (Sa Majesté du Chef) v. Ontario Securities Commission (1992), 10 O.R. (3d) 577 (C.A.), leave to appeal refused [1993] 2 S.C.R. x (sub nom. R. du chef du Québec v. Ontario Securities Commission); Bennett v. British Columbia (Securities Commission) (1992), 94 D.L.R. (4th) 339 (B.C.C.A.)).

[46] The Constitution gives Parliament powers that enable it to pass laws that affect aspects of securities regulation and, more broadly, to promote the integrity and stability of the Canadian financial system. These include Parliament’s power to enact laws relating to criminal law (s. 91(27)), banks (s. 91(15)), bankruptcy (s. 91(21)), telecommunications (ss. 91 and 92(1)(a)), and peace, order and good government (s. 91) (Multiple Access; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, at pp. 765-66; Smith v. The Queen, [1960] S.C.R. 776, at p. 781). Parliament has exercised its powers by enacting, for example, the following statutes and provisions: the Canada Business Corporations Act, R.S.C. 1985, c. C-44; the Criminal Code, R.S.C. 1985, c. C-46, ss. 380(2), 382, 382.1, 383, 384 and 400; the Bank Act, S.C. 1991, c. 46; the Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.); the Payment Clearing and Settlement Act, S.C. 1996, c. 6, Sch.; the Telecommunications Act, S.C. 1993, c. 38; the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Part XII. Finally, s. 91(2) of the Constitution Act, 1867 gives Parliament power over the regulation of trade and commerce. This power has two branches: the power over interprovincial and international commerce (Citizens’ Insurance of Canada v. Parsons (1881), 7 App. Cas. 96 (P.C.) (“Parsons”)) and the general trade and commerce power that authorizes laws where the national interest is engaged in a manner that is qualitatively different from provincial concerns, as discussed more fully later in these reasons.

[47] Canada bases its argument that the proposed Act is constitutional entirely on the s. 91(2) general trade and commerce power. It does not rely on the s. 91(2) power over interprovincial trade which gives Parliament the power to legislate on interprovincial and international aspects of securities. Nor does it invoke other heads of powers under the Constitution. The only question before us therefore is whether the Act can be supported under the general trade and commerce power.

C. Securities Regulation in other Federal States

[48] Canada is not the only federation where the issue of the balance between local and national regulation of securities has arisen. While the solution arrived at in each country is a product of its own constitutional arrangements and imperatives, experience in other federal states suggests that power-sharing between the central and local levels of government in this area can succeed.

[49] The German constitution provides that the Länder may enact securities laws, but that the Federation may exercise its legislative power, “if and only to the extent that ... the maintenance of legal or economic unity renders federal regulation necessary in the national interest” (Basic Law, art. 72(1)-(2)). This division of responsibility has led to a three-tiered supervisory system. The federally empowered regulatory agency dominates the first tier of regulation. The Länder have a consultative role in the selection of the agency president, maintain control offices for securities trading and establish stock exchange regulatory agencies which exercise control over the registration or dissolution of a stock exchange located within their territory. Each stock exchange has a Trading Surveillance Office, whose task is to independently monitor the trading and settlement of trades at the exchange.

[50] In Australia, a period of discussion between the Commonwealth and the states culminated, in the early 1990s, in a cooperative scheme for corporate and securities law characterized by cross-vesting of jurisdiction. This national scheme faced constitutional setbacks following judgments of the High Court (Re Wakim; Ex parte McNally, [1999] HCA 27, 198 C.L.R. 511; R. v. Hughes, [2000] HCA 22, 202 C.L.R. 535). In the wake of the constitutional uncertainty that followed, all states agreed to refer sufficient powers to the Commonwealth to enact corporate and securities law, a process authorized by the Australian Constitution. Since 2001, the national scheme of securities regulation that presently exists in Australia is premised on powers referred by the states to the Commonwealth.

[51] The Commerce Clause in the United States Constitution gives the federal government the power to “regulate commerce ... among the several states” (art. I, §8, cl. 3). Owing to this language, while states may regulate all aspects of securities trading within their jurisdiction, the federal government may choose to regulate virtually all aspects of interstate securities trading. In the event of conflict, U.S. constitutional law has long recognized that state laws are of no effect and are “pre-empted” by federal law, owing to the Supremacy Clause in art. VI, cl. 2 of the Constitution.

[52] In 1996, the U.S. Congress passed the National Securities Markets Improvement Act of 1996, Pub. L. 104-290, 110 Stat. 3416 (1996), which amended s. 18 of the Securities Act of 1933, 15 U.S.C. §77a, and effectively pre-empted state securities law as it applied to the great majority of United States issuers. However, this pre-emption did not exclude state participation in securities regulation. Securities are typically subject to “local regulation in the state where the issuer is headquartered, the state from which any offering materials are dispatched or where any oral offers are made, the state where the offerees have their domicile, and the state to which the offering materials are sent” (J. Macey, An Analysis of the Canadian Federal Government’s Initiative to Create a National Securities Regulator (2010), at pp. 48-49). Local regulation manifests itself most prominently in the areas of local enforcement and policy.

V. Constitutional Principles

[53] Before answering the question at hand — whether the Act falls within the federal general trade and commerce power under s. 91(2) — it is necessary to canvas the main constitutional principles engaged in this case.

A. The Federalism Principle: An Historic View

[54] Sections 91 and 92 of the Constitution Act, 1867 divide legislative powers between Parliament and the provincial legislatures. This division remains the “primary textual expression of the principle of federalism in our Constitution, agreed upon at Confederation” (Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (“Secession Reference”), at para. 47).

[55] Inherent in a federal system is the need for an impartial arbiter of jurisdictional disputes over the boundaries of federal and provincial powers (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 124). That impartial arbiter is the judiciary, charged with “control[ling] the limits of the respective sovereignties” (Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733, at p. 741). Courts are guided in this task by foundational constitutional principles, which assist in the delineation of spheres of jurisdiction. Among these, the principle of federalism “has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution” (Secession Reference, at para. 57).

[56] The Judicial Committee of the Privy Council, which was the final arbiter of Canada’s constitution until 1949, tended to favour an exclusive powers approach. Thus Lord Atkin in 1937 famously described the respective powers of Parliament and the provincial legislatures as “watertight compartments” (Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C. 326, at p. 354). However, the Judicial Committee recognized that particular matters might have both federal and provincial aspects and overlap (Hodge v. The Queen (1883), 9 App. Cas. 117). Privy Council jurisprudence also recognized that the Constitution must be viewed as a “living tree capable of growth and expansion within its natural limits” (Edwards v. Attorney-General for Canada, [1930] A.C. 124, at p. 136, per Lord Sankey). This metaphor has endured as the preferred approach in constitutional interpretation, ensuring “that Confederation can be adapted to new social realities” (Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669, at para. 9, per Deschamps J.).

[57] The Supreme Court of Canada, as final arbiter of constitutional disputes since 1949, moved toward a more flexible view of federalism that accommodates overlapping jurisdiction and encourages intergovernmental cooperation — an approach that can be described as the “dominant tide” of modern federalism (OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 18). See also: P.E.I. Potato Marketing Board v. H. B. Willis Inc., [1952] 2 S.C.R. 392; Lord’s Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497; Coughlin v. Ontario Highway Transport Board, [1968] S.C.R. 569.

[58] If there was any doubt that this Court had rejected rigid formalism in favour of accommodating cooperative intergovernmental efforts, it has been dispelled by several decisions of this Court over the past decade. For instance, in Fédération des producteurs de volailles du Québec v. Pelland, 2005 SCC 20, [2005] 1 S.C.R. 292, the Court considered a comprehensive and “seamless” scheme for chicken production and marketing created by agreement between the federal and provincial governments. Abella J., writing for the Court, upheld the provincial legislative component of the federal-provincial scheme, which could operate to limit the production of chicken destined for the interprovincial market, and observed:

In my view, the 1978 Federal-Provincial Agreement, like the scheme in the Egg Reference, both reflects and reifies Canadian federalism’s constitutional creativity and cooperative flexibility. [para. 15]

[59] Dickson C.J., in concurring reasons in OPSEU, summarized the situation aptly:

The history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers. It is true that doctrines like interjurisdictional and Crown immunity and concepts like “watertight compartments” qualify the extent of that interplay. But it must be recognized that these doctrines and concepts have not been the dominant tide of constitutional doctrines; rather they have been an undertow against the strong pull of pith and substance, the aspect doctrine and, in recent years, a very restrained approach to concurrency and paramountcy issues. [p. 18]

[60] As Dickson C.J. pointed out, a restrained approach to doctrines like federal paramountcy is warranted. This point was reiterated by Binnie and LeBel JJ. in Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, where the Court said:

The [constitutional] doctrines [developed by the courts] must also be designed to reconcile the legitimate diversity of regional experimentation with the need for national unity [and] they must include a recognition that the task of maintaining the balance of powers in practice falls primarily to governments, and constitutional doctrine must facilitate, not undermine what this Court has called “co‑operative federalism” (Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R. 453, at para. 162; Reference re Employment Insurance Act (Can.), ss. 22 and 23, [2005] 2 S.C.R. 669, 2005 SCC 56, at para. 10). [para. 24]

[61] While flexibility and cooperation are important to federalism, they cannot override or modify the separation of powers. The Secession Reference affirmed federalism as an underlying constitutional principle that demands respect for the constitutional division of powers and the maintenance of a constitutional balance between federal and provincial powers.

[62] In summary, notwithstanding the Court’s promotion of cooperative and flexible federalism, the constitutional boundaries that underlie the division of powers must be respected. The “dominant tide” of flexible federalism, however strong its pull may be, cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state.

B. Pith and Substance and Double Aspect

[63] The “pith and substance” analysis is used by Canadian courts to determine the constitutional validity of legislation from a division of powers perspective. The analysis looks at the purpose and effects of the law to identify its “main thrust” as a first step in determining whether a law falls within a particular head of power (in this case the s. 91(2) general trade and commerce power) (RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 29; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453, at para. 20; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at para. 53). Incidental effects may be discounted; the search is for the main thrust of the law (Canadian Western Bank, at para. 28).

[64] Intrinsic evidence, such as purpose clauses and the general structure of the statute, may reveal the purpose of a law. Extrinsic evidence, such as Hansard or other accounts of the legislative process, may also assist in determining a law’s purpose. The effects of a law include the legal effect of the text as well as practical consequences of the application of the statute (Lacombe, at para. 20; Kitkatla, at para. 54).

[65] After analyzing the legislation’s purpose and its effects to determine its main thrust, the inquiry turns to whether the legislation so characterized falls under the head of power said to support it — the classification stage (Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 15). This may require interpretation of the scope of the power. If the main thrust of the legislation is properly classified as falling under a head of power assigned to the adopting level of government, the legislation is intra vires and valid.

[66] Canadian constitutional law has long recognized that the same subject or “matter” may possess both federal and provincial aspects. This means that a federal law may govern a matter from one perspective and a provincial law from another. The federal law pursues an objective that in pith and substance falls within Parliament’s jurisdiction, while the provincial law pursues a different objective that falls within provincial jurisdiction (Canadian Western Bank, at para. 30). This concept, known as the double aspect doctrine, allows for the concurrent application of both federal and provincial legislation, but it does not create concurrent jurisdiction over a matter (in the way for example s. 95 of the Constitution Act, 1867 does for agriculture and immigration).

[67] Canada argues that the main thrust of the proposed Act brings it within the general branch of Parliament’s jurisdiction over trade and commerce. It is to this head of power that we now turn.

VI. Section 91(2): The Federal Trade and Commerce Power

[68] Canada contends that securities have evolved in a way that brings the entire field of securities regulation under the general branch of the s. 91(2) trade and commerce power, even if some aspects also fall under provincial competence in relation to property and civil rights in the province. To support this contention, Canada seeks to establish that the main thrust of the Act falls under the s. 91(2) general trade and commerce power. As noted earlier, Canada grounds its submission in support of the Act’s constitutionality entirely on this power.

[69] As discussed in the preceding section, as a general rule, determining the validity of a statute proceeds in two steps: (1) identifying the main thrust of the legislation having regard to its purpose and effects; and (2) asking whether the main thrust falls under the head of power said to support it. In this case, the validity of the Act ultimately comes down to the breadth of the general branch of the federal trade and commerce power under s. 91(2) of the Constitution Act, 1867. We therefore turn next to the jurisprudence on s. 91(2).

[70] On its face, the general trade and commerce power (as distinguished from the more specific federal power to regulate interprovincial and international trade and commerce) is broad — so broad that it has the potential to permit federal duplication (and, in cases of conflict, evisceration) of the provincial powers over large aspects of property and civil rights and local matters. This would upset the constitutional balance envisaged by ss. 91 and 92 and undermine the federalism principle. To avoid this result, the trade and commerce power has been confined to matters that are genuinely national in scope and qualitatively distinct from those falling under provincial heads of power relating to local matters and property and civil rights. The essence of the general trade and commerce power is its national focus.

[71] In the delineation of the scope of the general trade and commerce power, courts have been guided by fundamental underlying constitutional principles. The Canadian federation rests on the organizing principle that the orders of government are coordinate and not subordinate one to the other. As a consequence, a federal head of power cannot be given a scope that would eviscerate a provincial legislative competence. This is one of the principles that underlies the Constitution (Secession Reference, at para. 58, citing Re the Initiative and Referendum Act, [1919] A.C. 935 (P.C.), at p. 942).

[72] The jurisprudence on the general trade and commerce power reflects this fundamental principle. An overly expansive interpretation of the federal trade and commerce power under s. 91(2) not only would subsume many more specific federal heads of power (e.g., federal power over banking (s. 91(15)), weights and measures (s. 91(17)), bills of exchange and promissory notes (s. 91(18)), etc.), but, more importantly, would have the potential to duplicate and perhaps displace, through the paramountcy doctrine, the clear provincial powers over local matters and property and civil rights which embrace trade and commerce in the province. Duff J. (as he then was) expressed this concern in the following manner in Lawson v. Interior Tree Fruit and Vegetable Committee of Direction, [1931] S.C.R. 357:

The scope which might be ascribed to head 2, s. 91 (if the natural meaning of the words, divorced from their context, were alone to be considered), has necessarily been limited, in order to preserve from serious curtailment, if not from virtual extinction, the degree of autonomy which ... the provinces were intended to possess. [p. 366]

[73] The circumscribed scope of the general trade and commerce power can also be linked to another facet of federalism — the recognition of the diversity and autonomy of provincial governments in developing their societies within their respective spheres of jurisdiction. As stated in the Secession Reference, “[t]he federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity” (para. 58).

[74] Thus, the starting point is that the general trade and commerce power under s. 91(2) does not encompass all trade and commerce; the power is necessarily circumscribed. At the same time, failure to give meaningful scope to the general trade and commerce power would violate the notion of balance between the federal and provincial orders of government inherent in the division of powers and impermissibly amend the Constitution.

[75] It is unnecessary to trace all the cases that have considered s. 91(2) since 1867. The first and still a leading statement of the scope of the trade and commerce power is found in Parsons. In that case, the Judicial Committee of the Privy Council established that a literal interpretation of the words “the Regulation of Trade and Commerce” in s. 91(2) was inappropriate given the balance of powers established in the Constitution Act, 1867. Parsons also established the twin branches of the s. 91(2) power: (1) interprovincial and international trade and commerce; and (2) general trade and commerce (“general regulation of trade affecting the whole dominion” (p. 113)). The Judicial Committee further held that s. 91(2) does not include the power to regulate the contracts of a particular business or trade (p. 113).

[76] In the late 1970s and early 1980s, this Court revisited the general trade and commerce power. The “modern” trade and commerce cases have affirmed Parsons and taken up the task of developing indicia for matters that would properly fall within the general branch of s. 91(2) — an effort that culminated with the five indicia proposed in General Motors of Canada v. City National Leasing, [1989] 1 S.C.R. 641. The test set forth in General Motors, to which we will shortly return, finds it origin in Attorney General of Canada v. Canadian National Transportation Ltd., [1983] 2 S.C.R. 206. In that case, Dickson J. (as he then was) emphasized the balance that Parsons sought to maintain, and built on indicia relied on by Laskin C.J. in MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134.

[77] The issue in Canadian National Transportation was whether the Attorney General of Canada, as distinguished from provincial attorneys general, could prosecute offences under the criminal law provisions of the Combines Investigation Act, R.S.C. 1970, c. C-23. The Court held that the Attorney General of Canada could do so, the majority relying on the federal criminal law power. Dickson J., while agreeing that the criminal law power could in principle validate the legislation, relied on s. 91(2) to support the federal power to prosecute combines offences.

[78] Emphasizing the need to maintain constitutional balance, Dickson J. suggested that s. 91(2) applied to matters of “general interest throughout the Dominion” (p. 261, citing John Deere Plow Co. v. Wharton, [1915] A.C. 330 (P.C.), at p. 340). The general interest test, he said, should be read with a view to the fact that an “overly literal conception of ‘general interest’ will endanger the very idea of the local” (p. 266). At the same time, Dickson J. warned, “there are equal dangers in swinging the telescope the other way around. The forest is no less a forest for being made up of individual trees” (p. 266).

[79] In the end, Dickson J. opined that to fall under s. 91(2), legislation must be “qualitatively different from anything that could practically or constitutionally be enacted by the individual provinces either separately or in combination” (p. 267, (emphasis added)). The focus of the legislation must be general, although its effects may have local impact. He contrasted laws directed at “general regulation of the national economy” with laws “merely aimed at centralized control over a large number of local economic entities”, indicating that only the former fit within the purview of s. 91(2) (p. 267).

[80] In General Motors, the issue was the constitutionality of a civil right of action conferred by a provision of the federal Combines Investigation Act. Dickson C.J. delivered the opinion of the Court, upholding the right to a civil action and the statute generally under s. 91(2). Adopting his analysis in Canadian National Transportation, he emphasized the need to strike a balance between ss. 91(2) and 92(13). He went on to suggest five indicia of federal competence: (1) whether the impugned law is part of a general regulatory scheme; (2) whether the scheme is under the oversight of a regulatory agency; (3) whether the legislation is concerned with trade as a whole rather than with a particular industry; (4) whether it is of such a nature that provinces, acting alone or in concert, would be constitutionally incapable of enacting it; and (5) whether the legislative scheme is such that the failure to include one or more provinces or localities in the scheme would jeopardize its successful operation in other parts of the country (pp. 661-62).

[81] Dickson C.J. explained that where the general trade and commerce power is advanced as a ground of constitutional validity, a “careful case by case analysis remains appropriate” (General Motors, at p. 663). He further cautioned that the indicia of validity are not exhaustive, nor is it necessary that they be present in every case (pp. 662-63). He noted that the final three share a common theme — namely “that the scheme of regulation [must be] national in scope and that local regulation would be inadequate” (p. 678). He held that the regulation of competition met the test because it was not an issue of purely local concern but “one of crucial importance for the national economy” (p. 678). If the federal government were not able to legislate, there would be a gap, in practical effect, in the distribution of legislative powers.

[82] This Court confirmed this approach in Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302, holding, per LeBel J., that the federal Trade-marks Act, R.S.C. 1995, c. T-13, was concerned with trade as a whole rather than trade within a particular industry, since trademarks “apply across and between industries in different provinces” (para. 29).

[83] When Canadian National Transportation, General Motors and Kirkbi AG are read together, a common theme emerges. Provided the law is part of a general regulatory scheme aimed at trade and commerce under oversight of a regulatory agency, it will fall under the general federal trade and commerce power if the matter regulated is genuinely national in importance and scope. To be genuinely national in importance and scope, it is not enough that the matter be replicated in all jurisdictions throughout the country. It must, to use the phrase in General Motors, be something that the provinces, acting either individually or in concert, could not effectively achieve. To put it another way, the situation must be such that if the federal government were not able to legislate, there would be a constitutional gap. Such a gap is constitutional anathema in a federation.

[84] The General Motors indicia continue to offer an appropriate analytical framework for addressing the question of whether a law is validly adopted under the general trade and commerce power. These indicia are not cast in stone and are interrelated and overlapping. The first two indicia may be viewed as directed at identifying the required formal structure: a federal regulatory scheme under the oversight of a regulator. The final three indicia go to whether federal regulation is constitutionally appropriate. They direct our attention to whether the matter is one of genuine national importance and scope that goes to trade as a whole in a way that is distinct from provincial concerns, thus invoking Parliament’s unique ability to effectively deal with economic issues of this category.

[85] The result is a balanced approach that preserves a meaningful role for federal regulation under s. 91(2), without endangering “the very idea of the local” in provincial commercial regulation. The General Motors test asks whether the subject of a federal law presents a distinct federal aspect falling within the general branch of the trade and commerce power. Under the double aspect doctrine, federal legislation adopted from this distinct perspective will be constitutional even if the matter, considered from another perspective, also falls within a provincial head of power. In the end, the General Motors test is aimed at preserving the balance that lies at the heart of the principle of federalism, which demands that a federal head of power not be given such scope that it would eviscerate a provincial legislative competence.

[86] Before turning to whether the Act falls within s. 91(2), it may be useful to illustrate what it means to be a matter of genuine national importance and scope within the General Motors test, by looking at a matter that has been held to fall within the federal trade and commerce power — competition law.

[87] Competition, as Dickson C.J. observed in General Motors, “is not an issue of purely local concern but one of crucial importance for the national economy” (p. 678). It is a “genre of legislation that could not practically or constitutionally be enacted by a provincial government” (p. 683, citing Canadian National Transportation, at p. 278 (emphasis in original)). Competition law is not confined to a set group of participants in an organized trade, nor is it limited to a specific location in Canada. Rather, it is a diffuse matter that permeates the economy as a whole, as “[t]he deleterious effects of anti-competitive practices transcend provincial boundaries” (p. 678). Anti-competitive behaviour subjected to weak standards in one province could distort the fairness of the entire Canadian market. This national dimension, as the Court observed, must be regulated federally, or not at all (p. 683, citing Canadian National Transportation, at p. 278). Failure by one province to legislate or the absence of a uniform set of rules applicable throughout the country would render the market vulnerable.

[88] The federal power to regulate competition in Canada does not deprive the provinces of the ability to deal with competition in the exercise of their legislative powers in fields such as consumer protection, labour relations and marketing (General Motors, at p. 682). Competition law is in pith and substance federal because in purpose and effect its concerns are of national importance and scope. While it deals with contracts and conduct within the province, it touches only their federal aspect and does so in a manner and from a perspective that is distinct from provincial regulation. Thus its main thrust remains federal.

[89] In sum, competition law illustrates how the indicia set out in General Motors function to identify a matter that properly falls under s. 91(2). The general trade and commerce power cannot be used in a way that denies the provincial legislatures the power to regulate local matters and industries within their boundaries. Nor, by the same token, can the power of the provinces to regulate property and civil rights within the province deprive the federal Parliament of its powers under s. 91(2) to legislate on matters of genuine national importance and scope — matters that transcend the local and concern Canada as a whole.

[90] We would add that, in applying the General Motors test, one should not confuse what is optimum as a matter of policy and what is constitutionally permissible. The fifth General Motors criterion, it is true, asks whether failure of one or more provinces to participate in the regulatory scheme would “jeopardize the successful operation of the scheme in other parts of the country”. However, the reference to “successful operation” should not be read as introducing an inquiry into what would be the best resolution in terms of policy. Efficaciousness is not a relevant consideration in a division of powers analysis (see Reference re Firearms Act (Can.), at par. 18). Similarly, references in past cases to promoting fair and effective commerce should be understood as referring to constitutional powers that, because they are essential in the national interest, transcend provincial interests and are truly national in importance and scope. Canada must identify a federal aspect distinct from that on which the provincial legislation is grounded. The courts do not have the power to declare legislation constitutional simply because they conclude that it may be the best option from the point of view of policy. The test is not which jurisdiction — federal or provincial — is thought to be best placed to legislate regarding the matter in question. The inquiry into constitutional powers under ss. 91 and 92 of the Constitution Act, 1867 focuses on legislative competence, not policy.

VII. Application: Does The Proposed Act Fall Within Section 91(2)?

[91] Where particular provisions of a statute are challenged, the proper approach is to focus on the constitutionality of those provisions, read in the context of the statute as a whole: General Motors, Kitkatla and Kirkbi AG. Here the issue, as framed by the reference question, is the constitutionality of a single, integrated regulatory scheme. It stands or falls as a whole. The question is whether the sum of its particular provisions, read together, falls within the general trade and commerce power, on the test set out above.

[92] To answer this question, we must identify the main thrust of the proposed legislation having regard to its purpose and effects, and then ask whether the scheme, thus characterized, meets the indicia set out in General Motors.

A. The Purpose and Effects of the Act

[93] The first step in the pith and substance analysis is to ascertain the purpose and effects of the Act, viewed as a single, comprehensive scheme.

[94] The task at this stage is not to determine conclusively whether the legislation is provincial or federal in nature — that is the ultimate question of the division of powers analysis — but only to ascertain its main thrust. In some cases, determining the main thrust of a law will be pivotal in terms of its ultimate constitutional validity. In others, validity may depend on close analysis of the constitutional power that is said to support it. As we will see, this case is of the latter sort. While we must ascertain what the Act seeks to do and does, saying at the outset that it is in pith and substance “national” or “federal” simply begs the final question.

[95] Turning first to purpose, the Act’s preamble states that Canada intends to create a single Canadian securities regulator. This is consistent with previous proposals for such a body. As discussed earlier, the idea of a single Canadian securities regulator has been percolating for more than 50 years. The Act represents the culmination of sustained efforts towards unification of the provincial securities regulatory regimes. Section 9 of the proposed Act reveals the legislation’s broader, underlying purposes: to provide investor protection, to foster fair, efficient and competitive capital markets and to contribute to the integrity and stability of Canada’s financial system.

[96] The immediate object of the Act — to create a national securities regulator — does not shed much light on whether the subject matter of the Act is federal or provincial. It is equally consistent with the federal government’s contention and with the contention of the opposing provinces that the Act is simply a provincial securities act writ large.

[97] The broader purposes set forth in s. 9 send a mixed message. One goal is investor protection, which, without more, has historically been a provincial responsibility under s. 92(13). Another goal is to foster fair, efficient and competitive capital markets. Opponents of the Act argue that these are properly provincial responsibilities. The federal government, on the other hand, argues that fostering fair, efficient and competitive capital markets, viewed from a pan-Canadian perspective, also falls under the general trade and commerce power. The third stated goal — to contribute to the integrity and stability of Canada’s financial system — also has a federal aspect.

[98] This brings us to the effects of the proposed federal scheme. We must look not only at the direct effects of the legislation, but also at the follow-through effects the legislation may be expected to produce: Kitkatla.

[99] The direct effect of the proposed Act is to establish a federal securities regulation scheme. If implemented as contemplated, all provinces and territories will eventually join the scheme. This will produce follow-through effects. Once a sufficient number of jurisdictions opt in, the current provincial and territorial securities regulation schemes will be effectively displaced. Indeed, in order to be included in the comprehensive regulatory scheme created by the Act, provinces and territories must suspend their own securities laws. The follow-through effects of the proposed Act will therefore be to subsume the existing provincial and territorial legislative schemes governing securities under the federal regulation scheme.

[100] A detailed look at the provisions of the Act confirms that once in place, it will regulate many matters which Canada concedes also fall within the provincial power over property and civil rights under s. 92(13). Parts 1 and 2 establish regulatory oversight mechanisms. These are followed by a number of provisions broadly pertaining to the registration of persons. To this end, Part 3 of the Act gives the Chief Regulator the power to recognize a person as a self-regulatory organization, an exchange, a clearing agency and an auditor oversight organization (s. 64). These bodies must in turn regulate standards of practice and business conduct of participants in the securities industry (s. 66). Part 4, in similar vein, provides the Chief Regulator with the authority to designate a person as a credit rating organization, an investor compensation fund, a dispute resolution service, an information processor, a trade repository or another entity that provides a market participant with prescribed services (s. 73). Designation engages information sharing duties (s. 74). Part 5 requires registration of dealers, advisers and investment fund managers (s. 76). Parts 6, 7, 8 and 9 deal with the registration of securities, public information on securities and the monitoring of securities and issuers. Other provisions of the Act set standards for trading. For instance, Part 10 prohibits misrepresentations (s. 114), market manipulation (s. 116), insider trading (s. 117(1)), tipping (s. 117(2)) and other unfair practices. It also contains certain standards of conduct and obligations to avoid conflicts of interest that pertain to registered persons (see, e.g., ss. 109 to 113). Finally, Part 11 locks these routine regulatory provisions in place by establishing a scheme for the administration and enforcement of the Act.

[101] The effect of these provisions is in essence to duplicate legislative schemes enacted by provincial legislators exercising their jurisdiction over property and civil rights under s. 92(13) of the Constitution Act, 1867.

[102] Against this, Canada argues that what appears, on superficial inspection, to be duplication of provincial legislation is in fact directed at distinct federal concerns — preserving fair, efficient and competitive capital markets throughout Canada and ensuring the integrity and stability of Canada’s financial system. Duplication of provincial provisions, Canada correctly points out, does not mean that there is no federal aspect that can support the Act. Moreover, Canada argues that the Act is not merely duplicative. It includes provisions that go beyond provincial powers. For example, it contains provisions for the control of systemic risk and for data collection on a nationwide basis, something Canada argues cannot be accomplished at the provincial level.

[103] Systemic risks have been defined as “risks that occasion a ‘domino effect’ whereby the risk of default by one market participant will impact the ability of others to fulfill their legal obligations, setting off a chain of negative economic consequences that pervade an entire financial system” (M. J. Trebilcock, National Securities Regulator Report (2010), at para. 26). By definition, such risks can be evasive of provincial boundaries and usual methods of control. The proposed legislation is aimed in part at responding to systemic risks threatening the Canadian market viewed as a whole. Without attempting an exhaustive enumeration, the following provisions of the proposed Act would appear to address or authorize the adoption of regulations directed at systemic risk: ss. 89 and 90 relating to derivatives, s. 126(1) on short-selling, s. 73 on credit rating, s. 228(4)(c) relating to urgent regulations and ss. 109 and 224 on data collection and sharing.

[104] The expert evidence adduced by Canada provides support for the view that systemic risk is an emerging reality, ill-suited to local legislation. Prevention of systemic risk may trigger the need for a national regulator empowered to issue orders that are valid throughout Canada and impose common standards, under which provincial governments can work to ensure that their market will not transmit any disturbance across Canada or elsewhere.

[105] The emphasis in the proposed Act on nationwide data collection may similarly be seen as aimed at anticipating and identifying risks that may transcend the boundaries of a specific province. By analogy with Statistics Canada, it might be argued that broad national data-collecting powers may serve the national interest in a way that finds no counterpart on the provincial plane.

[106] Against this background, we return to the question at hand: what is the main thrust of the proposed Securities Act? The purpose of the proposed Act, we have seen, is to implement a comprehensive Canadian regime for the regulation of securities with a view to investor protection, the promotion of fair, efficient and competitive capital markets and ensuring the integrity and stability of the financial system. The effects of the proposed Act would be to duplicate and displace the existing provincial and territorial securities regimes, replacing them with a new federal regulatory scheme. Thus the main thrust of the Act is to regulate, on an exclusive basis, all aspects of securities trading in Canada, including the trades and occupations related to securities in each of the provinces.

[107] These conclusions do not, however, permit us to connect the Act to a particular head of power, federal or provincial. To do that, we must ask whether, applying the General Motors factors, the legislation, viewed as a whole, addresses a matter that is truly national in importance and scope and that transcends provincial competence.

B. Classification: Does the Act Fall Within the General Trade and Commerce Power?

[108] To recap, the General Motors test frames the inquiry into whether a legislative scheme falls within the general trade and commerce power in terms of the following non-exclusive indicia: (1) Is the law part of a general regulatory scheme?; (2) Is the scheme under the oversight of a regulatory agency?; (3) Is the law concerned with trade as a whole rather than with a particular industry?; (4) Is the scheme of such a nature that the provinces, acting alone or in concert, would be constitutionally incapable of enacting it?; (5) Would failure to include one or more provinces or localities in the scheme jeopardize its successful operation in other parts of the country?

[109] The General Motors indicia invite the Court to examine the legislative scheme through the lens of five interrelated inquiries to determine whether, viewed in its entirety, it addresses a matter of genuine national importance and scope that goes to trade as a whole in a way that is distinct from provincial concerns. The inquiry focuses on the nature of the proposed scheme and its purpose and effects, intended and actual. It is contextual, grounded in the record and the legislative facts. With this in mind, we turn to the General Motors indicia.

[110] The first two General Motors indicia need not detain us. Clearly they are met. The Act would institute a national regulatory regime for securities across Canada. The new national regulatory scheme for securities would feature: a Council of Ministers; the Canadian Securities Regulatory Authority (composed of a regulatory division headed by the Chief Regulator and an independent Canadian Securities Tribunal headed by a Chief Adjudicator); a Regulatory Policy Forum; and an Investor Advisory Panel. Indeed, all parties agree that the Act would create a federal regulatory scheme under the oversight of a regulator.

[111] This leaves the third, fourth and fifth General Motors inquiries. These questions take us to the concern that lies at the heart of this case — whether Canada has shown that the proposed Act, viewed as a whole, addresses a matter of national importance and scope, distinct from provincial concerns. Is the proposed Act concerned with trade as a whole rather than with a particular industry? Do the provinces possess the constitutional capacity, acting alone or in concert, to achieve the objectives of the scheme? Finally, would the failure to include one or more provinces frustrate the success of the scheme? If the answers to these questions support the conclusion that the proposed Act falls within the general branch of the trade and commerce power, the double aspect doctrine applies, the balance between the federal and provincial powers required by the federalism principle is satisfied and the proposed law may be validly enacted by Parliament. We now turn to the final three General Motors inquiries.

[112] The third question is whether the proposed Act is directed at trade as a whole rather than at a particular industry. This requires us to look at both the purpose and the effects of the Act. Opponents of the Act argue that it is aimed at a particular industry — the securities industry. From their perspective, economic activity consisting of the trading in securities represents a specific industry. They are correct to state that, on their face, the provisions of the proposed Act aimed at government registration and the day-to-day conduct of brokers or investment advisers are not obviously related to trade as a whole.

[113] Canada argues, however, that the proposed Act goes beyond these matters. It sees the Act as fostering a fair, efficient and competitive national capital market and contributing to the integrity and stability of Canada’s financial system. Moreover, Canada points out that the securities market is a mechanism for channelling capital from suppliers to consumers and that the capital transferred is applied throughout the Canadian economy in innumerable areas of activity. The securities market thus has a pervasive and significant impact throughout the national economy. It is a pillar of the economy of immense importance to the country as a whole. Regulating this market, Canada argues, relates to trade as a whole and is not an industry-specific matter.

[114] We accept that preservation of capital markets to fuel Canada’s economy and maintain Canada’s financial stability is a matter that goes beyond a particular “industry” and engages “trade as a whole” within the general trade and commerce power as contemplated by the General Motors test. Legislation aimed at imposing minimum standards applicable throughout the country and preserving the stability and integrity of Canada’s financial markets might well relate to trade as a whole. However, the proposed Act reaches beyond such matters and descends into the detailed regulation of all aspects of trading in securities, a matter that has long been viewed as provincial. In justifying the reach of the Act, Canada argues that while securities trading may once have been mainly a local matter, it has evolved to become a matter of transcendant national concern that brings it within the s. 91(2) general trade and commerce power.

[115] No doubt, much of Canada’s capital market is interprovincial and indeed international. Trade in securities is not confined to 13 provincial and territorial enclaves. Equally, however, capital markets also exist within provinces that meet the needs of local businesses and investors. While it is obvious that the securities market is of great importance to modern economic activity, we cannot ignore that the provinces have been deeply engaged in the regulation of this market over the course of many years. To make its case, Canada must present the Court with a factual matrix that supports its assertion of a constitutionally significant transformation such that regulating every aspect of securities trading is no longer an industry-specific matter, but now relates, in its entirety, to trade as a whole.

[116] A long-standing exercise of power does not confer constitutional authority to legislate, nor does the historic presence of the provinces in securities regulation preclude a federal claim to regulatory jurisdiction (see Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327, at p. 357, per Lamer C.J.). Nevertheless, the fact remains that Canada must establish that the Act, read as a whole, addresses concerns that transcend local, provincial interests. Canada’s argument is that this area of economic activity has been so transformed that it now falls to be regulated under a different head of power. This argument requires not mere conjecture, but evidentiary support. The legislative facts adduced by Canada in this reference do not establish the asserted transformation. On the contrary, the fact that the structure and terms of the proposed Act largely replicate the existing provincial schemes belies the suggestion that the securities market has been wholly transformed over the years. On the basis of the record presented to us, we conclude, as discussed below, that the day-to-day regulation of securities within the provinces, which represents the main thrust of the Act, remains essentially a matter of property and civil rights within the provinces and therefore subject to provincial power.

[117] Aspects of the Act, for example those aimed at management of systemic risk and at national data collection, appear to be directly related to the larger national goals which the Act proclaims are its raison d’être. However, important as these elements are, they do not, on the record before us, justify a complete takeover of provincial regulation. Individuals engaged in the securities business are still, for the most part, exercising a trade or occupation within the province. On the record before us, we are unable to accept Canada’s assertion that the securities market has been so transformed as to make the day-to-day regulation of all aspects of trading in securities a matter of national concern. For example, the record does not support a necessary link between the national interest in fair, efficient and competitive capital markets and the registration requirements applicable to a securities dealer in Saskatchewan or Quebec. Viewing the Act as a whole, we conclude that it overreaches the proper scope of the general branch of the trade and commerce power descending well into industry-specific regulation. The wholesale displacement of provincial regulation it would effect is not justified by the national concerns that Canada raises.

[118] The fourth General Motors consideration addresses the constitutional capacity of the provinces and territories to enact a similar scheme acting in concert. The provinces opposing the Act argue that if there is a national interest in both fair, efficient and competitive capital markets and the need to provide an effective national response to systemic risk, they can meet it by legislating in concert. No doubt the provinces possess constitutional capacity to enact uniform legislation on most of the administrative matters covered by the federal Act, like registration requirements and the regulation of participants’ conduct. By way of administrative delegation, they could delegate provincial regulatory powers to a single pan-Canadian regulator.

[119] The difficulty with the provinces’ argument, however, is that, as a matter of constitutional principle, neither Parliament nor the legislatures can, by ordinary legislation, fetter themselves against some future legislative action (P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 1, at pp. 12-8 ff.). Inherently sovereign, the provinces will always retain the ability to resile from an interprovincial scheme and withdraw an initial delegation to a single regulator. This may not be problematic in many areas. Indeed, it is in the nature of a federation that different provinces adopt their own unique approaches consistent with their unique priorities when addressing social or economic issues.

[120] The provinces’ inherent prerogative to resile from an interprovincial scheme aimed for example at managing systemic risk limits their constitutional capacity to achieve the truly national goals of the proposed federal Act. The point is not that the provinces are constitutionally or practically unable to adopt legislation aimed at systemic risk within the provinces. Indeed, some provincial securities schemes contain provisions analogous to the ones aimed at systemic risk found in the proposed Act. The point is simply that because provinces could always withdraw from an interprovincial scheme there is no assurance that they could effectively address issues of national systemic risk and competitive national capital markets on a sustained basis.

[121] It follows that the fourth General Motors question must be answered, at least partially, in the negative. The provinces, acting in concert, lack the constitutional capacity to sustain a viable national scheme aimed at genuine national goals such as management of systemic risk or Canada-wide data collection. This supports the view that a federal scheme aimed at such matters might well be qualitatively different from what the provinces, acting alone or in concert, could achieve.

[122] However, this only takes Canada so far. Canada’s problem is that the proposed Act reflects an attempt that goes well beyond these matters of undoubted national interest and concern and reaches down into the detailed regulation of all aspects of securities. In this respect, the proposed Act is unlike federal competition legislation, which has been held to fall under s. 91(2) of the Constitution Act, 1867. It would regulate all aspects of contracts for securities within the provinces, including all aspects of public protection and professional competence within the provinces. Competition law, by contrast, regulates only anti-competitive contracts and conduct — a particular aspect of economic activity that falls squarely within the federal domain. In short, the proposed federal Act overreaches the legislative interest of the federal government.

[123] The fifth and final General Motors inquiry is whether the absence of a province from the scheme would prevent its effective operation. On lesser regulatory matters the answer might well be no. However, when it comes to genuine national goals, related to fair, efficient and competitive markets and the integrity and stability of Canada’s financial system, including national data collection and prevention of and response to systemic risks, the answer must be yes — much for the reasons discussed under the fourth question. On these matters a federal regime would be qualitatively different from a voluntary interprovincial scheme. Viewed as a whole, however, because the main thrust of the proposed Act is concerned with the day-to-day regulation of securities, the proposed Act would not founder if a particular province declined to participate in the federal scheme. Incidentally, we note that the opt-in feature of the scheme, on its face, contemplates the possibility that not all provinces will participate. This weighs against Canada’s argument that the success of its proposed legislation requires the participation of all the provinces.

[124] Against the backdrop of these considerations, we come to the ultimate question — whether the Act, viewed in its entirety, addresses a matter of genuine national importance and scope going to trade as a whole in a way that is distinct and different from provincial concerns.

[125] The provisions of the proposed Act, viewed as a whole, compel a negative response. The Act chiefly regulates contracts and property matters within each of the provinces and territories, overlain by some measures directed at the control of the Canadian securities market as a whole that may transcend intra-provincial regulation of property and civil rights. A federal scheme adopted from the latter, distinctly federal, perspective would fall within the circumscribed scope of the general trade and commerce power. But the provisions of the Act that relate to these concerns, although perhaps valid on their own, cannot lend constitutional validity to the full extent of the proposed Act. Based on the record before us, the day-to-day regulation of all aspects of trading in securities and the conduct of those engaged in this field of activity that the Act would sweep into the federal sphere simply cannot be described as a matter that is truly national in importance and scope making it qualitatively different from provincial concerns.

[126] The conclusion that the Act’s attempt to take over regulation of the entirety of the securities trade in Canada exceeds the general branch of the trade and commerce power is also supported by the tenor of the case law. While the jurisprudence acknowledges that securities regulation may possess federal aspects, it has generally viewed basic securities regulation within the provinces as a local matter of property and civil rights (Lymburn; Multiple Access; Duplain v. Cameron, [1961] S.C.R. 693; Smith v. The Queen; Ontario Securities Commission; Global Securities).

[127] A review of the expert evidence does not lead to a different conclusion. We do not find it necessary or helpful to set out a detailed analysis of the many reports filed on both sides of the issue. For reasons already discussed, arguments in the reports as to whether securities should be regulated federally or provincially as a matter of policy are irrelevant to the constitutional validity of the legislation. A reasonable reading of the reports suggests that routine securities regulation is mainly concerned with the regulation of securities as an industry. It also confirms the local nature of much of Canada’s securities industry. J. M. Suret and C. Carpentier, for example, point to different focuses and specializations from province to province (Securities Regulation in Canada (2003)). Mining listings compose approximately two thirds of the securities market in British Columbia. About half of Ontario’s securities market is attributable to large financial services companies. Alberta is the dominant national market for oil and gas and roughly a quarter of technology listings emanate from Quebec.

[128] To summarize, we accept that the economic importance and pervasive character of the securities market may, in principle, support federal intervention that is qualitatively different from what the provinces can do. However, as important as the preservation of capital markets and the maintenance of Canada’s financial stability are, they do not justify a wholesale takeover of the regulation of the securities industry which is the ultimate consequence of the proposed federal legislation. The need to prevent and respond to systemic risk may support federal legislation pertaining to the national problem raised by this phenomenon, but it does not alter the basic nature of securities regulation which, as shown, remains primarily focused on local concerns of protecting investors and ensuring the fairness of the markets through regulation of participants. Viewing the Act as a whole, as we must, these local concerns remain the main thrust of the legislation — its pith and substance.

[129] This is not a case of a valid federal scheme that incidentally intrudes on provincial powers. It is not the incidental effects of the scheme that are constitutionally suspect; it is rather the main thrust of the legislation that goes beyond the federal power. The federal government properly did not invoke the ancillary powers doctrine. To apply that doctrine, the proposed statute considered as a whole must be valid — which it is not. We further note that we have not been asked for our opinion on the extent of Parliament’s legislative authority over securities regulation under other heads of federal power or indeed the interprovincial or international trade branch of s. 91(2).

[130] While the proposed Act must be found ultra vires Parliament’s general trade and commerce power, a cooperative approach that permits a scheme that recognizes the essentially provincial nature of securities regulation while allowing Parliament to deal with genuinely national concerns remains available.

[131] The various proposals advanced over the years to develop a new model for regulating securities in Canada suggest that this matter possesses both central and local aspects. The same insight can be gleaned from the experience of other federations, even if each country has its own constitutional history and imperatives. The common ground that emerges is that each level of government has jurisdiction over some aspects of the regulation of securities and each can work in collaboration with the other to carry out its responsibilities.

[132] It is not for the Court to suggest to the governments of Canada and the provinces the way forward by, in effect, conferring in advance an opinion on the constitutionality on this or that alternative scheme. Yet we may appropriately note the growing practice of resolving the complex governance problems that arise in federations, not by the bare logic of either/or, but by seeking cooperative solutions that meet the needs of the country as a whole as well as its constituent parts.

[133] Such an approach is supported by the Canadian constitutional principles and by the practice adopted by the federal and provincial governments in other fields of activities. The backbone of these schemes is the respect that each level of government has for each other’s own sphere of jurisdiction. Cooperation is the animating force. The federalism principle upon which Canada’s constitutional framework rests demands nothing less.

VIII. Conclusion

[134] The Securities Act as presently drafted is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867.

The question referred to was answered as follows: The Securities Act as presently drafted is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867.

Solicitor for the Attorney General of Canada: Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitors for the intervener the Attorney General of Quebec: Bernard, Roy & Associés, Montréal.

Solicitor for the intervener the Attorney General of New Brunswick: Attorney General of New Brunswick, Fredericton.

Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.

Solicitor for the intervener the Attorney General for Saskatchewan: Attorney General for Saskatchewan, Regina.

Solicitors for the intervener the Attorney General of Alberta: Fraser Milner Casgrain, Calgary, and Attorney General of Alberta, Edmonton.

Solicitors for the intervener the Canadian Foundation for Advancement of Investor Rights: Paliare, Roland, Rosenberg, Rothstein, Toronto.

Solicitors for the intervener the Canadian Coalition for Good Governance: Davies Ward Phillips & Vineberg, Toronto.

Solicitors for the intervener the Investment Industry Association of Canada: Torys, Toronto.

Solicitors for the intervener the Canadian Bankers Association: Osler, Hoskin & Harcourt, Toronto.

Solicitors for the intervener Ontario Teachers’ Pension Plan Board: Gowling Lafleur Henderson, Toronto.

Solicitors for the intervener Mouvement d’éducation et de défense des actionnaires: Paquette Gadler Inc., Montréal.

Solicitors for the intervener Barreau du Québec: Lavery, de Billy, Montréal.

Solicitors for the intervener the Institute for Governance of Private and Public Organizations: Fraser Milner Casgrain, Montréal.

Tobacco companies at the centre of a $50-billion lawsuit by the Ontario government had their hopes dashed on Friday when a judge dismissed their bid to have the case dropped.

2012-01-07T00:00:00.000-05:00

Tobacco companies at the centre of a $50-billion lawsuit by the Ontario government had their hopes dashed on Friday when a judge dismissed their bid to have the case dropped.

The Superior Court of Justice rejected the application made by a group of seven foreign tobacco companies. The companies had argued that the court had no jurisdiction over them.

The court decision means the Ontario lawsuit will proceed. The province's statement of claim alleges that the defendant tobacco companies knew about the addictiveness of cigarettes and the health damage they caused but deceived the public by misrepresenting the risks.

The lawsuit also alleges that the companies failed to warn the public about the dangers of smoking and promoted cigarettes to children and teens.

"We are pleased with the Court's decision which paves the way for Ontario's lawsuit to continue," Attorney General John Gerretsen said in a statement

Read more: http://www.ctv.ca/CTVNews/Health/20120106/ontario-court-lawsuit-tobacco-cancer-120106/#ixzz1ihr6WOIV

Toothbrush lawsuit ends

2012-01-06T00:00:00.000-05:00

Minutes before her trial resumed Wednesday, alleged toothbrush victim Saliha Alnoor and her brother, Abe, sat before a computer in the B.C. Supreme Courts building law library. They were looking for evidence that Colgate-Palmolive Canada Inc. manufactured and sold harmful dental products, just as the pair claimed. Lethal ones, too.

They found stories on the Internet about "exploding" toothbrushes and "poisonous" toothpastes. Tales of oral hygiene gone horribly wrong. Armed with printouts - and a 20-page technical report they commissioned, prepared by a professional engineer and titled Analysis of Toothbrush Failure - they walked into a courtroom upstairs, ready to do battle.

Ms. Alnoor had decided to sue Colgate. Five years ago, she was in her Surrey, B.C., home, cleaning her teeth with an Active Angle brush made by the large multinational. "The toothbrush handle broke during brushing and it tore my gums," she said in her statement of claim. "My gums started bleeding and I experienced excruciating pain." Ms. Alnoor passed out from the pain, she claimed. She was lucky to have family members around, she said, to make sure she "did not swallow and choke and drown in my blood while I was unconscious."

She was in pain "for weeks" and experienced swelling in her mouth. She could not eat solid food, nor floss or brush properly, she says. She required special medical treatment and dental implants. "As a result of this ordeal, I lost a lot of weight and I felt really sick and weak," reads her statement of claim.

Colgate's Active Angle is nothing less than a "killer toothbrush," Ms. Alnoor alleged in another document that she prepared and brought with her to court on Wednesday. The product didn't kill her, but no matter. "The Active Angle toothbrush suffered from serious mechanical design flaws which were known or ought to have been known by the defendant at all times material to this claim."

In a statement of defence, Colgate denied any wrongdoing and said if Ms. Alnoor suffered any injuries, they were her own fault.

Ms. Alnoor's trial began Tuesday. No evidence was heard. Proceedings kept bogging down with arguments and rulings, with adjournments, with polite reprimands and instructions to the plaintiff from the presiding judge, Madame Justice Catherine Wedge, whose patience was frequently tested.

Ms. Alnoor was not represented by counsel. She was getting a hard lesson in the law. She had only Abe, a local contractor, to help her. He sat with her in the courtroom and poked her in the ribs with an index finger, prodding her to at least try to persuade Madame Justice Wedge of one thing or another. Ms. Alnoor stood and tried, again and again, always in vain.

Outside the courtroom during breaks, Abe did most of the talking. A reporter asked why his sister was without proper counsel. Because the first lawyer she had hired "began acting strange." She found another one, "but he suggested we drop the claim," said Abe. The Alnoors dropped him, instead.

They had a problem with the judge, as well. "She is proColgate," Abe complained. "She is pro-business. Our supporters warned us this would happen, but we were naive."

Or plain foolish. Ms. Alnoor kept insisting that Colgate Canada president Scott Jeffery travel to Vancouver and appear as a witness. The Alnoors offered him $1,200 for travel expenses: an economy seat flight from Toronto, one night in a suburban motel and a return red-eye flight. "Why should he get special treatment?" Ms. Alnoor said outside the courtroom, during yet another adjournment. "He could take a Greyhound."

Ms. Alnoor tried to present the court with her Internet chronicles, the stories about purportedly dire Colgate product failures. The judge would have none of them. Consider all your options carefully, she told the plaintiff. Colgate had once offered Ms. Alnoor $500 as compensation for her troubles, and while that offer was no longer on the table, there was now an alternative: terminate the lawsuit. Walk away, and quit badmouthing Colgate.

Ms. Alnoor and her brother went to lunch and thought about it. They returned, and told Judge Wedge they would accept Colgate's proposal, that she drop her suit and pay none of the company's legal costs, about $30,000. The judge looked relieved. Everyone did. The nonsense was over.

"We spent $21,000 on lawyers and experts, but we have no regrets," said Abe, leaving the courtroom for the last time. "Now we know how justice works. Now we are much wiser."

Ms. Alnoor nodded. "I had to do it," she said. "I couldn't live with myself if I hadn't." And she flashed a lovely, pearly-white smile.

Saliha Alnoor, V Colgate-Palmolive. B.C.

2012-01-05T00:00:00.000-05:00

VANCOUVER — The trial of a B.C. woman claiming she was injured by a defective toothbrush began Tuesday in B.C. Supreme Court.

Saliha Alnoor, of Surrey, says that an Active Angle toothbrush manufactured by Colgate-Palmolive fractured when she was brushing her teeth in November 2006.

In her opening statement, Alnoor said that her gums bled profusely and she lost consciousness.

Alnoor claimed that the Colgate toothbrush was defective and said that she has suffered permanent injuries and has paid more than $6,000 in dental costs to repair the damage, with another $94,000 in treatments.

She told the judge that the failure of the company to produce Colgate-Canada president Scott Jeffery as an "adverse" witness should result in a favourable judgment.

The company has filed a statement of defence in which it denies all allegations.

Colgate said if any injuries were suffered, they were caused by the negligence of the plaintiff.

Read more: http://www.theprovince.com/court+begins+hearing+defective+toothbrush+case/5941786/story.html#ixzz1iX3qFU79

The Harper government spent hundreds of thousands of dollars in its unsuccessful legal battle against Insite, Vancouver's supervised injection site, according to newly released documents.

2012-01-04T04:08:00.001-05:00

VANCOUVER — The Harper government spent hundreds of thousands of dollars in its unsuccessful legal battle against Insite, Vancouver's supervised injection site, according to newly released documents.

Between 2006 and 2011, the Conservatives spent $637,158 in a bid to shut down the Downtown Eastside clinic — funds that represented more than 20 per cent of Insite's annual $3-million operating budget.

The clinic, opened in 2003, has long been a burr under the saddle of a federal government that has fiercely resisted embracing the harm-reduction philosophy which underpins the clinic's operations.

The federal legal bill comes courtesy of a Justice Department reply to an access to information request, submitted last October by the Vancouver Sun. The request followed a landmark ruling by the Supreme Court in favour of keeping the clinic open.

In a unanimous decision, the judges ruled that not allowing the clinic to operate under an exemption from drug laws would violate the Charter of Rights and Freedoms.

The Harper regime between 2006 and 2008 reluctantly had granted the facility an exemption from drug laws, allowing it to operate. But between 2008 and last autumn's court ruling, it waged legal action to close down the clinic.

This, despite the fact Insite has had the long-standing support of both the Vancouver and B.C. governments. Polls show the clinic also has the support of about 70 per cent of Vancouverites.

And it has shown itself to be effective in reducing harm. In 2009, nearly 500 overdoses occurred at the clinic but no deaths. In 2010, 221 overdoses occurred with no deaths.

A 2011 study in the British medical journal The Lancet found overdose deaths have dropped 35 per cent in the area of the clinic since it opened.

However, Health Minister Leona Aglukkaq has explained that her government prefers to focus its efforts on prevention and treatment.

Insite's main goal is neither of these. With 12 injection booths and a staff that includes nurses, counsellors and mental health and social workers, the clinic attempts to reduce harm that users do to themselves, particularly by way of overdosing.

The clinic does not supply any drugs; rather, it provides a safe, medically supervised location and clean needles for addicts to administer their drugs. Importantly, it also provides counselling for those wishing to get off drugs.

Last year, the clinic was responsible for 5,268 referrals to various social and health agencies and 458 drug users were admitted to detox programs. Surely, this is the most worthwhile part of what the clinic does.

As the clinic's website states: "Through Insite, clients develop trusting relationships with our health care and social workers, making them more likely to pursue withdrawal management, addiction counselling and other addiction treatment services."

The government's vigorous legal battle against the clinic — even in the face of community acceptance and research showing the centre's effectiveness in reducing fatalities — shows an unproductive stubborn streak. The same bull-headed approach was in evidence in the Conservatives' determination in 2010 to get rid of the long-form census, against widespread advice, and their refusal last fall to reconsider an expensive, punitive omnibus crime bill at a time when crime rates have been falling in Canada.

The Harper government certainly allowed its ideological leanings to get in the way of rational decision-making in the case of Insite. The result was an unnecessary expenditure of a bucket full of public cash at a time when Ottawa is working hard to reduce spending in order to balance the federal budget.

Read more: http://www.vancouversun.com/health/Yaffe+600K+spent+close+injection+site+underscores+Tory+stubbornness/5941238/story.html#ixzz1iTjfJFks

More extreme weather heading toward Sweden: Share3 A new low pressure area with strong winds and precipitation is on the way toward Sweden. It will pass over central Sweden

2012-01-03T03:42:00.003-05:00

More extreme weather heading toward Sweden

Online: http://www.thelocal.se/38294/20120102/

A new low pressure area with strong winds and precipitation is on the way toward Sweden. It will pass over central Sweden on Wednesday and will bring rain and snow over most of the country, as well as a risk of gale force winds in the south and along the coast.

"There will be a complete storm on the North Sea and then, the night to Wednesday, we will see gale force winds in all of Götaland. There is a risk of more trees falling," said Åsa Rasmussen, meteorologist for Sveriges Television (SVT) on Monday.

The Swedish Meteorological and Hydrological Institute, SMHI, is preparing to issue warnings for the coming storm.

"There'll be warnings, but we don't issue these until 24 hours before something is expected to happen, so they are yet to come," said Lisa Frost, forecaster at SMHI to news agency TT on Monday afternoon.

She is expecting warnings to be issued during Monday evening or during the night to Tuesday.

"My guess is that there will be a Class 1 warning for Götaland, but for parts of the west coast and down towards Skåne, I think it will be a Class 2 warning," said Frost to TT.

But Danish forecasters are more worried about the readings.

"It is a very strong low pressure area, which can be best described as an 'atmospheric bomb' as the pressure drops so suddenly. We're talking of gale force winds up to 35-40 metres per second," said Danish meteorologist Andreas Nyholm to Danish paper Ekstrabladet.

However, Nyholm doesn't think that the storm will hit Scandinavia with the same force that Dagmar did. He is joined in that opinion by Frost at SMHI.

Sweden has not had winds as strong as those recorded during recent weeks for years.

"Some of our stations measured the strongest winds in at least 15 years," said Andersson to DN.

Between Christmas and New Year the weather calmed down slightly in the wake of storm Dagmar but by then northern parts of the country had suffered extensive forest damage caused by the strong winds.

The National Board of Forestry (Skogsstyrelsen) has been taking stock of damages done to Swedish woods over the Christmas period and while work continues it has to do so with more bad weather en route for Sweden.

“We hope to have some preliminary figures ready this week,” Johanna From, regional director at the agency told TT.

The Swedish National Railway (Statens Järnvägar, SJ) is also still working at establishing the extent of the damages done to its network in the aftermath of the storms.

happy new year!

2012-01-01T00:00:00.000-05:00

happy new year!

Happy holidays!

2011-12-25T14:19:00.000-05:00

Happy holidays!

HIV/AIDS Vaccine Developed at The University of Western Ontario Proceeding to Human Clinical Trials Sumagen Canada, the vaccine (SAV001)

2011-12-21T03:38:00.000-05:00

HIV/AIDS Vaccine Developed at The University of Western Ontario Proceeding to Human Clinical Trials

London, ON – The first and only preventative HIV vaccine based on a genetically modified killed whole virus has received approval by the United States Food and Drug Administration (FDA) to start human clinical trials.

Developed by Dr. Chil-Yong Kang and his team at The University of Western Ontario, with the support of Sumagen Canada, the vaccine (SAV001) holds tremendous promise, having already proven to stimulate strong immune responses in preliminary toxicology tests with no adverse effects or safety risks. It is the only HIV vaccine currently under development in Canada, and one of only a few in the world.

“FDA approval for human clinical trials is an extremely significant milestone for our vaccine, which has the potential to save the lives of millions of people around the world by preventing HIV infection," says Kang, a researcher and professor at Western's Schulich School of Medicine & Dentistry.

Western President Amit Chakma says, "This joint venture between Sumagen and Western is a prime example of what collaboration between private industry and university researchers can achieve. Dr. Kang and his team are to be commended for their exceptional talent and remarkable persistence in developing a vaccine that addresses a tragic health crisis affecting millions of people around the globe."

Dr. Dong Joon Kim, a representative of Sumagen Co. Ltd. says, “Our company has committed substantial resources to this project since 2005 and we are very pleased to reach this milestone. It is our desire to continue growing our business in Canada and being a part of the business community in London.”

HIV/AIDS has killed more than 28 million people worldwide, and more than 35 million people currently live with the virus infection. Since the virus was characterized in 1983, there have been numerous trials through pharmaceutical companies and academic institutions around the world to develop vaccines; however, no commercialized vaccine has been developed to date. Other HIV vaccines evaluated through human clinical trials have focused on either one specific component of HIV as an antigen, genetic vaccine using recombinant DNA, or recombinant viruses carrying the HIV genes. Kang’s vaccine is unique in that it uses a killed whole HIV-1, much like the killed whole virus vaccines for polio, influenza, rabies and hepatitis A. The HIV-1 is genetically engineered so it is non-pathogenic and can be produced in large quantities.

Before it can be commercialized, the SAV001 vaccine must go through three phases of human clinical trials:

•Phase I, set to begin in January 2012, will double check the safety of the vaccine in humans, involving only 40 HIV-positive volunteers.

•Phase II will measure immune responses in humans, involving approximately 600 HIV-negative volunteers who are in the high-risk category for HIV infection.

•Phase III will measure the efficacy of the vaccine, involving approximately 6,000 HIV-negative volunteers who are also in the high-risk category for HIV infection.

Through WORLDiscoveries, Western’s technology transfer office, Sumagen Canada has secured patents for the SAV001 vaccine in more than 70 countries, including the U.S., the European Union, China, India and South Korea. The vaccine has been manufactured at a bio-safety level 3 (BSL3) good manufacturing practice (GMP) facility in the U.S.

Download high resolution photos

About Sumagen Canada

Located in The Stiller Centre for Technology Commercialization in Western’s Research Park in London, Ontario, Sumagen Canada was established in 2008 specifically to manage and support clinical development of Kang’s vaccine. Sumagen Canada is a subsidiary of Sumagen Co. Ltd., a Korean-based pharmaceutical venture company.

About The University of Western Ontario

Located in London, Ontario, The University of Western Ontario is one of Canada’s leading research-intensive universities, committed to producing generations of talented leaders and innovations of national benefit and global value and significance.

National securities regulator decision coming: Supreme Court ruling will not please all provinces.

2011-12-20T03:55:00.000-05:00

The Supreme Court is ready to pronounce judgment on whether Ottawa's controversial attempt to create a national securities regulator — without the consent of some provinces — is legal.

The country's top court said Monday it will rule on the constitutionality of Ottawa regulating in an area that had previously been thought to be provincial territory.

The single regulator concept was championed by Finance Minister Jim Flaherty almost from the moment he took office in 2006, with Ontario initially the only ally. Following a lengthy study process, the minister was able win over a number of provinces.

Federal Finance Minister Jim Flaherty backs the idea of a national securities regulator.(Canadian Press file photo)But with Quebec, Alberta and Manitoba still firmly in the no camp, and British Columbia and Saskatchewan vacillating, Flaherty decided to seek a clear legal green light.

The minister maintains a single regulator would be more effective in catching and prosecuting fraudsters.

"Those who commit securities fraud will face a tougher, more comprehensive regime. No more falling through the cracks," Flaherty said in the spring of 2010 when he announced plans to go to the court.

Ottawa's position has the backing of most national business groups as well as international bodies such as the Organization for Economic Co-operation and Development and the International Monetary Fund.

Opponents have noted that the presence of a single regulator in the United States did nothing to head off the subprime mortgage disaster that triggered a global recession in 2008.

Appeal courts in Quebec and Alberta have already ruled that Ottawa is treading on provincial jurisdiction with its proposed legislation.

But in a recent interview with The Canadian Press, Alberta Finance Minister Ron Liepert said his province would be willing to co-operate with Ottawa if the top court rules against the provincial position.

"At the end of the day, we've fought the battle, the court will rule and we live with it and move on," he said.

That does not mean every province will fall in line, however, and Quebec in particular has not softened its stance.

The current legislation does not require every province to join. The intention is to establish a national regulator and have as many provinces as possible "opt in," leaving the door open for others to follow.

Securities regulation in Canada is currently a fiefdom of the 10 provinces and three territories, although under the "passport" arrangement company documentation approved by one province is recognized by the others.

In arguments to the court in April, federal lawyers said securities trading is critical to the country's overall economy and hence is a national concern. Aside from the jurisdictional issue, opposing provinces argue that the current system of co-operation functions well and that Ottawa is trying to fix a problem that doesn't exist.

Liberal Leader Bob Rae is accusing Stephen Harper of showing a "lack of respect" toward the troubled First Nations community of Attawapiskat.

2011-12-19T03:53:00.001-05:00

ATTAWAPISKAT, Ont. — Liberal Leader Bob Rae is accusing the Conservatives and Prime Minister Stephen Harper of showing a "lack of respect" toward the troubled First Nations community of Attawapiskat.

On Saturday, as he wrapped up a visit to see the community's housing crisis first-hand, Rae chided Harper -- who has long claimed to have a soft spot for northern Canada -- for not travelling to the region himself.

"Where there are real people living, and living in really difficult conditions, the prime minister has nothing to say -- he's not there," Rae said in a telephone interview.

"There's a great concern about the lack of respect that's been shown to people here. You show respect by coming, not by insisting that people come to see you."

Harper's regular forays to remote northern communities since he took office have carried a strong emphasis on issues like defence and sovereignty, but rarely any evidence that the prime minister or the government has forged much of a relationship with the people who live there, Rae said.

"I don't think he has a great deal of credibility with the people who are living here, or the people who are living in a great many other northern communities, because this is not about planes flying by or about defending the north from the Russians," he said.

"This is about defending the north from poverty, from terrible conditions in terms of housing and poor substandard education."

Rae's visit is the second for an opposition leader in as many weeks. NDP Leader Nycole Turmel visited Attawapiskat last month and promptly urged Harper to do the same.

A spokesman for the prime minister said in an email on Sunday that Harper will not being going to Attawapiskat and the top priority is to get help to the community.

The government infuriated local leaders by appointing a third-party manager to take over the band's financial affairs. Chief Theresa Spence has appealed to the courts for an injunction to oust the third party, who is being paid $1,300 a day from band funds. A ruling is expected Monday or Tuesday.

Emergency supplies continue to pour in -- including washing machines, detergent and blankets. However, large families remain crammed into cold, mould-stained shacks with no bathroom or running water. In one case, 20 people are living together in a two-room house.

The federal government has promised 22 new houses and a retrofit of a local healing centre to help ease the crisis.

The government's attempt to "turn the political tables" by trying to put the spotlight on how the band has managed its funds is "disgraceful," said Rae. He blamed the prime minister for cancelling the Kelowna accord, a Liberal initiative designed to improve living conditions for First Nations communities, and for abandoning various investments to aboriginal communities.

"He (Harper) has to wear this thing, he has to take personal responsibility for what's happened," Rae said.

"I certainly don't intend to let him off the hook."

New public health campus coming to downtown Montreal : will soon be the site of the largest public health school in North America.

2011-12-17T03:39:00.001-05:00

A portion of the site that houses Montreal’s new downtown bus terminal will soon be the site of the largest public health school in North America.

The centre, which will be called the Norman-Bethune Public Health Campus, will be built at the corner of Berri Street and de Maisonneuve Boulevard, the current site of the Îlot Voyageur.

It will be affiliated with the University of Montreal.

More than 600 students

When it’s finished, 225 professors and researchers will work at the campus and more than 600 students will study there.

A spokesperson for the University of Montreal said the new facility would bring all of the school’s medical facilities into one place. Right now, they’re scattered across different buildings.

The project will cost $160 million, the majority of that coming from the provincial government.

The government of Quebec bought the Îlot Voyageur site for $200 million after another Montreal university, the University of Quebec at Montreal, bought the building with plans to turn it into student housing.

That project was one of two that almost brought the university to the brink of bankruptcy.

The government will sell off a large portion on the north end of the site for $100 million. It will not be used for the campus.

Michelle Courchesne, head of the treasury board, admitted that deal will amount to a loss, but said it’s worth it, given the prestige the campus will bring to the new health district.

Officials hope to see phase one of the public health campus open within the next four years.

Public Safety Minister Vic Toews acted unreasonably when he refused to allow two Canadians imprisoned in the United States to serve out their sentences in Canada, a Federal Court judge has ruled.

2011-12-16T14:18:00.000-05:00

OTTAWA — Public Safety Minister Vic Toews acted unreasonably when he refused to allow two Canadians imprisoned in the United States to serve out their sentences in Canada, a Federal Court judge has ruled.

In two decisions posted to the Federal Court website Thursday, Justice James O’Reilly overturned Toews’ rejection of applications under the International Transfer of Offenders Act filed by Montreal native Franco Tangorra and Tomaso Villano, of Richmond Hill, Ont. Both men were arrested by American authorities for trying to traffic in or import large quantities of the drug Ecstasy.

Tangorra mailed 30,000 units of Ecstasy, concealed in motorcycle helmets, to an undercover agent. He was arrested in 2007 when he tried to collect payment and is now serving a sentence of seven years and three months in a U.S. prison. He is due for release in 2014.

Villano and an accomplice were caught in a New York State parking lot in 2006 with two garbage bags containing more than 100,000 Ecstasy pills. His sentence runs until October, 2012.

Tangorra had no previous criminal record, and Villano’s only other conviction was for failing to stop at the scene of an accident. Tangorra’s file included a supportive letter from his MP and a declaration from his wife that he was a good husband and father.

In rejecting the two applications, Toews disregarded evidence presented by the Correctional Service of Canada (CSC) that neither Tangorra nor Villano was likely to re-offend and that their transfers would pose no threat to Canada’s security.

According to O’Reilly’s written decisions, CSC said both men have social and family ties in Canada. If not transferred, CSC told Toews, they’d be deported to Canada at the end of their sentences and would not be subject to any supervision or control.

The rationale for transferring offenders is that it will aid in their rehabilitation and reintegration to society. “Our argument is that public safety is better served by the transfer,” said John Conroy, the Abbotsford, B.C. lawyer who represents both Tangorra and Villano.

“If a person isn’t transferred, then they’ll be deported free and clear, without any restriction,” Conroy said. “A gradual release we know is far more in the public interest in terms of public safety than having someone go to warrant expiry, then unlocking the door and kicking them out.”

O”Reilly’s intervention doesn’t clear the way for Tangorra and Villano to return to Canada, however. Instead, their cases will go back to Toews for reconsideration. Conroy said re-hearings — which typically occur within 60 days — are usually successful, but not always.

When Liberal governments were in power, they routinely approved transfer applications. But in a policy shift that has created a diplomatic flap with the United States, Conservative ministers have begun to reject a majority of them.

According to CSC data, the minister of public safety approved just 27 per cent of 89 transfer applications he considered in 2009-10, the latest year for which figures are publicly available. Nearly two-thirds of denials over the past decade involve people convicted of drug offences.

After judicial review, the Federal Court has been overturning a significant number of more recent ministerial denials. But the government’s omnibus crime bill, which received third reading in the House of Commons earlier this month, broadens the grounds under which the minister can deny transfer requests in future.

Until now, he could only reject applications on the basis of national security or if offenders were affiliated with organized crime. But the amended law says transfers can be denied if the minister believes offenders would endanger public safety or the safety of a child, or would continue to engage in criminal activity.

The Canadian Civil Liberties Association has argued that the amendments give the minister “an unconstitutional level of discretion” over whether Canadian citizens incarcerated abroad can return to Canada.

Irwin Cotler, the Liberal justice critic, said the changes raise the possibility of “untrammelled discretion” for the minister in approving or rejecting transfer requests. “It takes an objective assessment and makes it not only subjective, but he can actually, in an open-ended way, make a determination on any consideration whatsoever.”

Lisa Filipps, a spokeswoman for Public Safety Canada, said in an email that the government is “taking action to emphasize the protection of society as the paramount principle of our federal corrections system.”

It’s acting, she said, to ensure that Canadians “are safe and secure in their communities and, at the same time, that offenders are held accountable for their actions in Canada and abroad.”

In his review of Tangorra’s case, O’Reilly noted that Toews alluded to information that identified him as being linked to organized crime. According to CSC, those links were as a courier. Given the “unique facts and circumstances” of his case, Toews concluded, “a transfer would not achieve the purposes of the Act.”

But O’Reilly pointed out that the law requires him to intervene “where the decision does not include a conclusion that would justify the denial. A decision should also be quashed when it is based on information to which the applicant had no opportunity to respond. Both grounds apply here.”

In the case of Villano, Toews also cited the “unique facts and circumstances.” He noted that Villano’s offence involved a large quantity of drugs. Because he had an accomplice, Toews said others were probably involved who would have benefited financially had Villano been successful.

However, said O’Reilly, the minister didn’t actually conclude that Villano would commit an organized crime offence if transferred to Canada. “In fact, there was no evidence before him of any connection to organized crime.”

A spokesman for Toews said it would “not be appropriate” for the minister to comment on the cases.

Read more: http://www.ottawacitizen.com/news/Federal+judge+overturns+minister+attempt+convicts+jailed+from+serving+sentences+Canada/5867864/story.html#ixzz1gj6wcCD2

A class-action lawsuit by travellers who paid extra for seats on Air Canada flights because they were obese or disabled has received permission to take off from a Quebec judge.

2011-12-14T00:00:00.000-05:00

A class-action lawsuit by travellers who paid extra for seats on Air Canada flights because they were obese or disabled has received permission to take off from a Quebec judge.

The lawsuit has been authorized by Quebec Superior Court Judge Catherine La Rosa, the Quebec-based law firm handling the case said Monday.

David Bourgoin, lead lawyer for the class-action suit, said 10 to 20 people have come forward with an interest to join to class, adding there has been "a lot of interest" from organizations and groups that represent people with medical conditions that may make them eligible for inclusion.

He said the intention is for those groups to encourage people they work with to come forward.

"We've asked for punitive damages and moral damages, too," said Bourgoin, of BGA Barristers and Solicitors, which has offices in Montreal and Quebec City.

"It's a violation of fundamental rights to discriminate against people with (medical) deficiencies."

The suit seeks $1,000 for "damages for pain, suffering or inconvenience with interest" and an additional $500 for "punitive and exemplary damages with interest" for all people involved.

Read more: http://www.montrealgazette.com/news/Canada+class+action+suit+gets/5849679/story.html#ixzz1gT8W20wz

Evidence admitted despite Charter violations: G20 Geek,”

2011-12-13T03:11:00.000-05:00

Evidence admitted despite Charter violations

This frame grab shows Byron Sonne being interviewed by Toronto police Det. Tam Bui on June 23, 2010. Sonne was jailed for 330 days in pre-trial custody before he was granted bail in May.

At times it was hard for Byron Sonne’s father to keep his exasperation to himself.

During the first day of his son’s trial, Bue Sonne shook his head so animatedly while the Crown reviewed photos of the various chemicals in his son’s garage and workshop that Bue’s wife, Valerie, had to shush him.

“I have this stuff in my garage,” he whispered.

Byron Sonne, a 39-year-old computer hacker dubbed the “G20 Geek,” is charged with possessing explosive materials and “counselling the commission of mischief not committed” in the lead-up to the G20 Summit in Toronto.

He was arrested on June 22, 2010, and accused of plotting to bomb the meeting of world leaders while allegedly using social media to encourage others to disrupt the security apparatus. Sonne, who has no criminal record, spent 11 months in pre-trial custody before he was released on bail in May.

The first month of his highly anticipated trial, before judge alone, was spent arguing legal motions regarding the admissibility of evidence.

While conceding that police violated Sonne’s Charter rights — at least in part — at various points in their investigation, Justice Nancy Spies ruled Monday to allow the bulk of the Crown’s evidence, setting the stage for a long and protracted trial that won’t conclude until the spring.

After this week’s hearings, the trial will adjourn to March 17, due to scheduling conflicts.

Spies did not provide the full reasons for her ruling, but she said despite some individual breaches of rights, including the evidence would not bring the “administration of justice into disrepute,” as Sonne’s lawyers had argued.

They had sought the exclusion of most of the evidence against their client, arguing that police showed a general disregard for Sonne’s rights and a pattern of Charter violations, ranging from how they unlawfully obtained his identification by threatening to charge him with jaywalking, to using search warrant applications — parts of which were later disproved — riddled with conjecture.

Spies dismissed the argument that the search warrant applications were deliberately misleading, instead favouring the Crown’s position that although there were flaws, taken as a whole there was sufficient evidence and reasonable grounds to obtain a warrant.

Sonne’s lawyers declined to comment on Spies’ ruling since she did not release the reasons for her decision.

Sonne, a hobby chemist and hyperactive tinkerer, admitted to police in recorded interviews — available on YouTube here and here — that he did in fact possess materials that could be combined to make explosives, but he had not combined them.

What police originally thought was a homemade detonator turned out to be an electric thermometer.

On Wednesday, an explosives expert will begin testimony about the materials found in Sonne’s house.

Former Parti Québécois cabinet minister Daniel Paille has been elected the new leader of the Bloc Québécois.

2011-12-12T03:42:00.001-05:00

Former Parti Québécois cabinet minister Daniel Paille has been elected the new leader of the Bloc Québécois.

"We have work to do," he said in his victory speech in French. "But that work is exceptional. Imagine, we have a unique chance, as a people, to build our country. I believe this."

Paille won on a second ballot against Maria Mourani. His total vote was 7,868 or 61.2 per cent. Mourani placed second, scoring 4,972 votes or 38.7 per cent of the vote. Jean-Francois Fortin was third.

Paille, 61, won the leadership but the election was hardly impressive. A sign of how moribund the Bloc has become, of the 36,341 paid-up members eligible to vote, only 14,039 bothered to mail in their ballots. That represents a participation rate of 38.7 per cent.

At the time of the May 2 federal election where the New Democrats crushed them, the Bloc had 50,000 members. That means a quarter of the members did not bother to renew their cards.

Sweden was one of four European Union member states to scupper hopes of a 27-country agreement to help strengthen the euro, but nevertheless plans to participate in the creation of a European bailout fund.

2011-12-11T03:12:00.001-05:00

Sweden was one of four European Union member states to scupper hopes of a 27-country agreement to help strengthen the euro, but nevertheless plans to participate in the creation of a European bailout fund.

Speaking with the TT news agency on Friday morning, Swedish prime minister Fredrik Reinfeldt also expressed doubts about the likelihood of Sweden agreeing to abide by the pact, which was forged by the 17 eurozone countries, and which six other EU member states had at that time elected to support.

“It's not that Sweden, which isn't a member of the euro, wants to tie itself to rules which are completely tailored for the eurozone,” he said.

“The whole text is written to make eurozone members submit to certain restrictions and do certain things. A non-eurozone country can't reasonably sign up to that.”

Following an intense night of negotiations, Sweden, the UK, Hungary, and the Czech Republic refused signal their support for a deal requiring tighter fiscal discipline among the eurozone countries through changes to the current EU treaty.

Hopes for a deal stumbled in part over the UK's desire to include protections from future financial regulations that would have accompanied the treaty changes proposed by Germany and France.

While Britain and Hungary at first refused to sign on to the deal, Sweden and the Czech Republic had requested time to consult with their respective parliaments before agreeing to the new pact.

As a result, the 23 remaining EU members states agreed to forge an agreement for rules that would penalize fiscal profligacy and to increase resources available to bailout troubled EU economies through additional pledges to the International Monetary Fund (IMF) and the establishment of a new European bailout fund.

Later on Friday morning, however, Reinfeldt received clearance from the Riksdag's EU committee to approve the protocol changes agreed to by the eurozone countries, meaning Sweden has no plans to stand in the way of the deal.

Specifically, the committee approved Sweden's participation in a loan from the International Monetary Fund (IMF) that will help support a European bailout fund.

The committee also agreed to having Sweden support changes to the EU treaty that allow for countries that mismanage their economies to be punished, but stopped short of having Sweden abide by the new rules.

The question of the size of Sweden's contribution remains up for negotiation, according to the Europaportalen.se, a Swedish news website focusing on EU politics.

“We're not saying no. We think it's good that the eurozone countries have come up with something in all this chaos and we're not going to close the door on the eurozone countries as they try to put their economies in order,” EU committee vice chair Marie Granlund of the Social Democrats, told TT.

Liberal Party (Folkpartiet) MP Carl B.Hamilton, chair of the EU committee, was highly critical of the UK, which has refused to support the pact.

“They're splitting Europe. Great Britain has acted in an nonconstructive way. 'Unhelpful' as they say in English,” Hamilton told Europaportalen.se.

While there is no indication that Sweden plans to join the 23 other countries which have so far agreed to abide by the new budget rules, the possibility remains open that Sweden could join at a later date.

“We'll have to see what is actually meant by joining voluntary. We can't have any overoptimistic hopes that we can affect politics for the whole of Europe. But if we join, we can protect ourselves against having other countries make decisions that could injure us,” said Hamilton.

While Hamilton indicated his Liberal Party was open to Sweden eventually joining the pact, Granlund said the Social Democrats remain opposed.

“It would conflict with what the Swedish people have said in the referendum. It would mean an all to large involvement in the Swedish economy,” she told Europaportalen.se.

Exact details of the deal remain to be worked out in the coming months and will be enshrined in an international agreement parallel to the EU's current treaty.

However, the goal remains to eventually have the changes included in the EU treaty.

Federal Court of Canada Docket: T-1057-11 & Docket: T-1735-11 Citation : 2011 FC 1432

2011-12-10T03:24:00.001-05:00

Federal Court

Cour fédérale

Date: 20111207

Docket: T-1057-11

Docket: T-1735-11

Citation : 2011 FC 1432

Winnipeg, Manitoba, December 7, 2011

PRESENT: The Honourable Mr. Justice Campbell

Docket: T-1057-11

BETWEEN:

FRIENDS OF THE CANADIAN WHEAT

BOARD, HAROLD BELL, DANIEL

GAUTHIER, KEN ESHPETER, TERRY

BOEHM, LYLE SIMONSON, LYNN

JACOBSON, ROBERT HORNE, WILF

HARDER, LAURENCE NICHOLSON,

LARRY BOHDANOVICH, KEITH RYAN,

ANDY BAKER, NORBERT VAN DEYNZE,

WILLIAM ACHESON, LUC LABOSSIERE,

WILLIAM NICHOLSON AND RENE SAQUET

Applicants

and

ATTORNEY-GENERAL OF CANADA,

THE MINISTER OF AGRICULTURE AND

AGRIFOOD IN HIS CAPACITY AS MINISTER

RESPONSIBLE FOR THE CANADIAN

WHEAT BOARD AND THE CANADIAN

WHEAT BOARD

and

COUNCIL OF CANADIANS, ETC GROUP

(ACTION GROUP ON EROSION,

TECHNOLOGY AND CONCENTRATION),

PUBLIC SERVICE ALLIANCE OF CANADA

AND FOOD SECURE CANADA

Respondents

Interveners

Page: 2

Docket: T-1735-11

AND BETWEEN:

THE CANADIAN WHEAT BOARD, ALLEN

OBERG, ROD FLAMAN, CAM GOFF, KYLE

KORNEYCHUK, JOHN SANDBORN, BILL

TOEWS, STEWART WELLS

AND BILLWOODS

Applicants

and

THE MINISTER OF AGRICULTURE AND

AGRIFOOD IN HIS CAPACITY AS MINISTER

RESPONSIBLE FOR THE CANADIAN

WHEAT BOARD

Respondent

and

PCSC – PRODUCER CAR SHIPPERS OF

CANADA INC., LOGAN CONNOR, LEONARD

GLUSKA, BILL WOODS, MYRON FINLAY,

HOWARD VINCENT, GLEN HARRIS,

AND TIM COULTER

Interveners

REASONS FOR ORDERS

[1] The present Applications concern the rule of law and the disregard for it by the

Respondent Minister of Agriculture (the Minister).

[2] The law concerned is s. 47.1 of the Canadian Wheat Board Act, RSC 1985, c C-24 (the

Act) which requires the Minister to engage in a consultative process with the Canadian Wheat Board

(CWB) and to gain the consent of Western Canadian wheat and barley producers with respect to

Page: 3

proposed changes to the currently well-established process of marketing the grains in Canada. At

the present time, contrary to the requirements of s. 47.1, the Minister is unilaterally proceeding to

revolutionize the process by securing the imminent passage of legislation.

[3] A most recent reminder of the rule of law as a fundamental constitutional imperative is

expressed by Chief Justice Fraser in Reece v Edmonton (City), 2011 ABCA 238 at paragraphs 159

and 160:

The starting point is this. The greatest achievement through the

centuries in the evolution of democratic governance has been

constitutionalism and the rule of law. The rule of law is not the rule

by laws where citizens are bound to comply with the laws but

government is not. Or where one level of government chooses not to

enforce laws binding another. Under the rule of law, citizens have

the right to come to the courts to enforce the law as against the

executive branch. And courts have the right to review actions by the

executive branch to determine whether they are in compliance with

the law and, where warranted, to declare government action

unlawful. This right in the hands of the people is not a threat to

democratic governance but its very assertion. Accordingly, the

executive branch of government is not its own exclusive arbiter on

whether it or its delegatee is acting within the limits of the law. The

detrimental consequences of the executive branch of government

defining for itself – and by itself – the scope of its lawful power have

been revealed, often bloodily, in the tumult of history.

When government does not comply with the law, this is not merely

non-compliance with a particular law, it is an affront to the rule of

law itself […].

[Emphasis added]

[4] The Applicants each request a Declaration that the Minister’s conduct is an affront to the

rule of law. For the reasons that follow, I have no hesitation in granting this request.

Page: 4

I. The Scheme of the Act

[5] The CWB is a corporation without share capital that is charged by s. 5 of the Act with the

statutory objective to “market in an orderly manner, in interprovincial and export trade, grain grown

in Canada.” The scheme of the Act is as follows: by Part III, the CWB is required to buy all wheat

and barley produced in Manitoba, Saskatchewan, Alberta, and the Peace River District of British

Columbia; Part IV prohibits any person other than the CWB from exporting, transporting from one

province to another, selling or buying wheat or barley, subject to limited exceptions established by

the Act or its regulations; and Part V establishes the mechanisms by which the CWB’s marketing

authority may be altered, and contains s. 47.1, the interpretation of which is at the centre of the

present Applications:

47.1 The Minister shall not

cause to be introduced in

Parliament a bill that would

exclude any kind, type, class

or grade of wheat or barley, or

wheat or barley produced in

any area in Canada, from the

provisions of Part IV, either in

whole or in part, or generally,

or for any period, or that

would extend the application

of Part III or Part IV or both

Parts III and IV to any other

grain, unless

(a) the Minister has consulted

with the board about the

exclusion or extension; and

47.1 Il ne peut être déposé au

Parlement, à l’initiative du

ministre, aucun projet de loi

ayant pour effet, soit de

soustraire quelque type,

catégorie ou grade de blé ou

d’orge, ou le blé ou l’orge

produit dans telle région du

Canada, à l’application de la

partie IV, que ce soit

totalement ou partiellement, de

façon générale ou pour une

période déterminée, soit

d’étendre l’application des

parties III et IV, ou de l’une

d’elles, à un autre grain, à

moins que les conditions

suivantes soient réunies :

a) il a consulté le conseil au

sujet de la mesure;

Page: 5

(b) the producers of the grain

have voted in favour of the

exclusion or extension, the

voting process having been

determined by the Minister.

b) les producteurs de ce grain

ont voté — suivant les

modalités fixées par le ministre

— en faveur de la mesure.

[Emphasis added]

The “board” referred to in s. 47.1 (a) is that of the CWB charged under the Act to direct and manage

the business and affairs of the Corporation (the Board). The “producers” referred to in s. 47.1 (b) are

those persons that farm grain in the area named in Part III (the Producers).

II. The Introduction of Bill C-18

[6] On October 18, 2011, the Minister introduced in Parliament Bill C-18: An Act to reorganize

the Canadian Wheat Board and to make consequential and related amendments to certain Acts

(Marketing freedom for grain farmers Act). The name of the legislation proposed in Bill C-18

accurately states the nature of the changes to the governance structure of the CWB, and, indeed, the

whole system of the marketing of grain in Canada; what is considered to be marketing freedom for

grain farmers will replace the present centralized marketing system.

[7] At the present time, Bill C-18 has passed second reading at the Senate and is before the

Standing Senate Committee.

III. Issues

[8] The present Applications are simple in nature; they are directed at an examination of the

Minister’s conduct with respect the requirements of s. 47.1. The Applicants confirm that the

Page: 6

validity of Bill C-18, and the validity and effects of any legislation which might become law as a

result of Bill C-18 are not in issue in the present Applications.

[9] The Applicants make it clear that their Applications are no threat to the Sovereignty of

Parliament to pass legislation. The controversy in the present case arises from the Act, legislation

that Parliament has already passed. Section 47.1 contains conditions which are known in law as

“manner and form” procedural requirements. This form of limitation on the exercise of legislative

power is well recognized in law. At paragraph 34 of the Producer Car Shippers argument, attention

is directed to the following passages from Professor Hogg’s text, Constitutional Law of Canada,

(Carswell, Toronto, 5th ed, 2007):

Would the Parliament or a Legislature be bound by self-imposed

rules as to the “manner and form” in which statutes were to be

enacted? The answer, in my view, is yes.

[…]

Thus, while the federal Parliament or a provincial Legislature cannot

bind itself as to the substance of future legislation, it can bind itself as

to the manner and form of future legislation.

[…]

It seems implausible that a legislative body should be disabled from

making changes to its present structure and procedures. Moreover,

the case-law, while not conclusive, tends to support the validity of

self-imposed manner and form requirements.

[Footnotes omitted]

(Motion Record of Producer Car Shippers, Tab 10)

[10] The Minister has attempted to argue that s. 47.1 does not meet the requirements of a

“manner and form” provision. I dismiss this argument and find any debate on “manner and form” is

Page: 7

not properly before the Court for determination. Section 47.1 is presumed to be constitutionally

valid, and no argument challenging this presumption has been properly presented in the present

Applications; to do so would require notice of a Constitutional Question which has not been given.

Thus, as the judicial review Applications are framed, the sole question for determination is: did the

Minister breach the process requirements of s. 47.1, and if so, what relief, if any, should be granted?

The answer to this question requires a statutory interpretation analysis.

IV. The Applications

[11] Both the CWB and the Producers place heavy reliance on the democratic process

instrumental in the marketing of grain under the Act. The present Applications have been launched

to protect the process and the separate, but conforming interests, of the Producers under T-1075-11

and the CWB under T-1735-11.

[12] It is an undisputed fact that the Minister tendered Bill C-18 without conducting the

consultation and gaining the consent expressed in s. 47.1 of the Act. As expressed by Chief Justice

Fraser in the quote above: “courts have the right to review actions of the executive branch to

determine if they are in compliance with the law and, where warranted, to declare government

action unlawful.” Thus, I find that the Minister’s decision to not comply with the conditions

expressed in s. 47.1, prior to tabling Bill C-18, is judicially reviewable pursuant to section 18.1 (3)

(b) of the Federal Courts Act, RSC 1985, c F-7.

[13] As a result, the issue is whether the factual and legal basis has been established for making

Declarations that state fault on the part of the Minister. Each Application supports the making of a

Page: 8

fault finding. The CWB supports the Producers’ argument in T-1057-11 and makes its own

argument on similar lines in T-1735-11. The CWB confirms this point as follows:

Although the Applications are framed somewhat differently, there is

significant overlap between the parties to, and the relief sought in, the

Applications. At their core, the Applications are each premised on

the failure of the Minister to comply with his statutory duty under

section 47.1 of the Act.

(Written Representations of the Canadian Wheat Board in T-1735-

11, para. 9)

[14] However, each Applicant frames the request for Declaratory relief in a slightly different

way. The Applicants in T-1057-11 express the claim for relief as follows:

(a) a declaration that the Minister breached his statutory duty to

consult with the Board and conduct a vote of wheat and barley

producers as to whether they agree with the removal of wheat and

barley from the application of Part IV of the Act and with the

elimination of the CWB’s exclusive statutory marketing mandate

(Breach Declaration);

and

(b) a declaration that the Minister breached the duty of fairness and

acted contrary to the legitimate expectations of producers in causing

the Bill to be introduced in Parliament without first consulting with

the Board and with producers through a producer vote (Legitimate

Expectation Declaration).

(Amended Notice of Application dated November 8, 2011)

And in T-1735-11 the Applicants express the request this way:

(a) a declaration that the Minister failed to comply with his statutory

duty pursuant to section 47.1 of the Act, to consult with the Board

and to hold a producer vote, prior to the causing to be introduced in

Parliament Bill C-18, An Act to reorganize the Canadian Wheat

Board and to make consequential and related amendments to certain

Acts ( “Bill”) (Breach Declaration);

and

Page: 9

(b) a declaration that the Minister has acted in breach of the

legitimate expectations of the CWB, the Board and producers, and

contrary to the duty of fairness, in causing to be introduced in

Parliament the Bill without first consulting with the Board and

holding a producer vote (Legitimate Expectation Declaration);

(Notice of Application dated October 26, 2011)

[15] By consent, given the conjunction of both Applications, and the consolidated argument filed

by the Minister in response, it is appropriate to determine each Application with a separate order,

but on the basis of the present single set of consolidated reasons which addresses the core arguments

which have equal application to both.

[16] Two interventions have been permitted: that of the Council of Canadians, and ETC

Group, the Public Service Alliance of Canada and Food Secure Canada (the “Council”); and that

of the Producer Car Shippers of Canada Inc. et al (“Producer Car Shippers”). The Council

maintains an interest in food sovereignty, food safety, food security, and the important role that

the CWB plays in maintaining and protecting those interests, and has permission to address how

s. 47.1 is to be interpreted in accord with NAFTA and the Charter. The Producer Car Shippers

maintain an interest in protecting the rights and investments of grain producers who ship their

own grain, and have permission to address the application of the “manner and form” doctrine

with respect to s. 47.1 of the Act.

Page: 10

V. Breach of the Law Challenge

A. The Test for Statutory Interpretation

[17] Whether the Minister breached the law is a matter of statutory interpretation and

consideration of the Minister’s conduct against that interpretation. I agree with the Applicants that

an appropriate test to be applied in the present Applications is as follows:

Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in the grammatical

and ordinary sense harmoniously with the scheme of the Act, the

object of the Act, and the intention of Parliament (Canada 3000 Inc,

Re: Inter-Canadian (1991) Inc (Trustee of), 2006 SCC 24 at para.

36; Bell ExpressVu Ltd Partnership v Rex, 2002 SCC 42 at para. 26).

(Applicants’ Memorandum of Fact and Law in T-1735-11, para. 44)

B. The Applicants’ Argument

[18] The Applicants argue that:

Properly interpreted in the context in which s. 47.1 and the 1998

amendments were adopted and the object underlying their enactment,

as well as the intention of Parliament, the ordinary sense of the broad

wording employed in s. 47.1 demonstrates that the Minister is

obligated to consult with the CWB and to hold a producer vote prior

to causing to be introduced in Parliament a bill that alters the CWB’s

exclusive marketing mandate; by causing the Bill to be introduced,

the Minister breached his statutory duty.

(Applicants’ Memorandum of Fact and Law in T-1735-11, para. 45)

[19] Thus, to the Applicants, history is important. The Act was first introduced in 1935, and in

1943 the CWB became a “Single Desk” which means the CWB became the sole marketing agency

for western Canadian wheat. This authority was extended to oats and barley in 1949, though the

marketing of oats was subsequently removed from the CWB’s exclusive jurisdiction in 1989.

Throughout this period government-appointed Commissioners managed the CWB; however, in

Page: 11

1998, legislative amendments were introduced to improve the CWB’s marketing mandate and

structure to introduce democratic governance and greater accountability. The amendments

transferred control of the CWB to the farmers by creating a board of directors. Since 1998, twothirds

of the members of the board are elected directly by the grain producers. Section 47.1 was also

implemented at that time.

[20] Based on the historical context, the Applicants make the following arguments with respect

to the purpose of s. 47.1 and the scheme and the object of the Act :

In this case, the 1998 Amendments and section 47.1 were adopted in

response to increasing calls for greater farmer control over the

CWB’s operations and marketing mandate, including the demands of

some for dual marketing.

The creation of the Board, the majority of which was farmer-elected,

and the adoption of section 47.1 were in response to “the reasonable

expectations of a majority of western grain producers” and were

aimed at empowering farmers. The purpose of section 47.1 was to

ensure that “producers should be in control of any future changes to

the [CWB’s] mandate”.

[…]

The bill creates a dual marketing system in which Part IV, containing

the prohibitions on the export or interprovincial sale of wheat and

barley, is repealed, but the CWB remains as a purchaser of grain.

Section 47.1 was enacted by Parliament to ensure that the Minister

consulted with the Board and with producers prior to introducing

legislation to implement this very system.

[…]

The purpose of the 1998 Amendments is clear. The consistent

themes underlying the amendments were democracy, accountability,

flexibility and empowerment for farmers. Similarly, the purpose of

section 47.1 was to ensure that “farmers, not government, would be

in control of any future change to the [CWB’s] marketing authority”,

including the implementation of dual marketing and the elimination

of the Single Desk.

Page: 12

(Applicants’ Memorandum of Fact and Law in T-1735-11, paras. 47-

48, 50, and 58)

[21] With respect to the intention of Parliament in introducing s. 47.1, from the body of evidence

presented by the Applicants, I find the following statements of the former Minister responsible for

the CWB to be particularly cogent:

House of Commons, October 7, 1997:

Virtually every marketing innovation which farmers have debated

over the past several years will be possible under this new law. In a

nutshell, that is what Bill C-4 is all about, empowering producers,

enshrining democratic authority which has never existed before,

providing new accountability, new flexibility and responsiveness,

and positioning farmers to shape the kind of wheat board they want

for the future (Affidavit of Allen Oberg, September 15, 2011, para.

38, Exhibit 7);

House of Commons, February 17, 1998:

Such a change would have eliminated the problematic clauses while

respecting and enshrining the fundamental principle of democratic

producer control;

[…]

Tonight, at long last, Bill C-4 will come to a vote at third reading. Its

passage will signal an era of change for the future. Its major themes

are democracy, accountability, flexibility and empowerment for

farmers.

Farmers will take control. They will have it within their authority to

shape their marketing agency as they see fit. I have complete

confidence in the judgment of producers to exercise their new

authority with strength, wisdom and prudence to the greater and

greater success of the prairie farm economy and prairie farmers most

especially (Affidavit of Allen Oberg, September 15, 2011, para. 40,

Exhibit 9);

Senate Committee, May 5, 1998:

Page: 13

The amendment would require that if any future minister responsible

for the [CWB] decides that it is appropriate public policy to change

the mandate of the [CWB], to make it either bigger or smaller, it

would be up to him to make that policy determination. But he would

be required to conduct a vote in advance to obtain the consent of

farmers (Affidavit of Allen Oberg, September 15, 2011, para. 42,

Exhibit 11).

[Emphasis in the original]

[22] In addition, the Former Minister repeatedly confirmed that s. 47.1 requires a Producer vote

if a proposed change is “significant or fundamental”:

Policy Statement, “Changes in Western Grain Marketing”, October

7, 1996:

The proposed legislation will provide for future mandate changes

contingent upon the formal considered advice of the CWB board of

directors and, if a quality control issue is involved, the formal

certification by the Canadian Grain Commission that a change can in

fact be made without jeopardizing the world-renowned Canada

reputation for high quality, consistency and dependability. If the

CWB directors consider any proposed change to be significant or

fundamental, a producer vote would be a prerequisite before

implementation [Emphasis added] (Record of the CWB, Tab 3, p.

112);

Standing Committee on Agriculture and Agri-Food, Meeting No. 57,

December 12, 1996:

In future the Wheat Board’s mandate may be adjusted, conditional

upon three things: first of all, a clear recommendation to that effect

by the directors of the Canadian Wheat Board; secondly, if a quality

control issue is involved, the unequivocal concurrence of the

Canadian Grain Commission that a change can be made safely

without damaging Canada’s reputation for quality and consistency;

and third, if the proposed change is significant or fundamental, then

an affirmative vote among farmers would need to be a prerequisite

[Emphasis added] (Record of the CWB, Tab 4, p. 125).

[23] The Council submits that the intention of Parliament can be evidenced by the invocation of

international trade obligations as a rationale for the 1998 Amendments by the Former Minister. The

Page: 14

democratic nature of s. 47.1, which mandates producer control, was considered necessary in order to

defend the CWB’s marketing practices in the face of the NAFTA. The Former Minister stated that

s. 47.1 was intended to prevent the Act from being “used as some thinly veiled excuse by our

competitors, perhaps the United States, to launch some form of trade harassment” (House of

Commons, February 17, 1998; Affidavit of Allen Oberg, September 15, 2011, Exhibit 9; Council

Memorandum of Fact and Law, paras. 8-14).

[24] The Council effectively argues that, when in doubt, statutory interpretation must have regard

to democratic and constitutional values. In the present case this is especially important because s.

47.1 speaks to the unique situation in which these democratic values are already implemented in the

structure of the CWB. This fact requires that, in proposing that a fundamental change be made to

the structure, the Minister must act democratically. This is what s. 47.1 says. Not adhering to these

values is not only disrespectful, it is contrary to law.

C. The Minister’s Response

[25] The Minster advances the following statutory interpretation argument:

The Applicants contend that section 47.1 should be read expansively

in such a way as to require the Minister to seek and to obtain a

favourable producer vote before being allowed to introduce any bill

“that alters the CWB’s exclusive marketing mandate.” In an

affidavit filed by the CWB in these proceedings, the Chair of its

board of directors states the CWB position as being “ […] simply

that farmers, not the government, should decide the future of the

Single Desk in a vote held in accordance with section 47.1 of the

Act.”

The clear wording of the section 47.1, however, refers only to the

addition or subtraction of particular grains or types of grain from the

marketing regime as it is established in Parts III and IV of the Act. It

does not refer to limiting the future repeal of the Act itself or to any

Page: 15

other changes. It leaves the future of the “single desk” as a matter for

Parliament to decide.

Section 47.1 is found in Part V under the heading, “OTHER GRAINS

– APPLICATION OF PARTS III AND IV,” which means that, not

only in its wording but in its statutory context as well, it is clearly

directed only to the addition or subtraction of particular grains in

Parts III and IV. The future of the “single desk” is a policy and

legislative decision for Parliament, not for the Court.

[…]

Properly interpreted, the scope of section 47.1 addresses the

inclusion or exclusion of particular grains or types of grain. Given

the principle of Parliamentary sovereignty, section 42(1) of the

Interpretation Act, and the clear wording of section 47.1 found under

the statutory heading “OTHER GRAINS – APPLICATION OF

PARTS III AND IV”, this provision cannot be so broadly interpreted,

as urged by the Applicants, as to place a perpetual veto in the hands

of each category of grain producers over the continued existence of

the marketing regime, or on the repeal of the Act itself.

Understanding the crucial distinction between removing types of

wheat or barley from the application of Part IV of the Act and

repealing the entire Act itself is fundamental to the correct

interpretation of section 47.1. Bill C-18 does not remove a particular

type of prairie wheat or barley from the application of Part IV of the

Act. Rather, Bill C-18 repeals the Act, thereby terminating the

CWB’s marketing monopoly in order to replace it with a new regime

that allows all grain producers the freedom to market and sell their

grain as they choose, including through the CWB if they so decide.

[Emphasis in original]

[Footnote removed]

(Respondents’ Consolidated Memorandum of Fact and Law, paras.

31-33; 38-39)

[26] The Minister relies upon the following evidentiary statements in support of the interpretation

argument:

a. A government news release issued in September 1997 concerning the

then Bill C-4 (into which section 47.1 was eventually added in the

Page: 16

course of Parliamentary deliberations) stated that the concept of

farmer control was directed to the potential exclusion or inclusion of

various types of grains into the system (Affidavit of Allen Oberg,

September 15, 2011, Exhibit 6);

b. The Minister, at second reading in the House of Commons of the

Bill containing section 47.1, stated that:

[t]his new law will also empower producers to

determine democratically what is and what is not

under the Canadian Wheat Board’s marketing

jurisdiction.

[Emphasis in original]

(Affidavit of Allen Oberg, September 15, 2011, Exhibit 7);

c. Clauses 23 and 26 of Bill C-4 show that the arrangements for

exclusion and inclusion of grains would take place by regulation. It is

clear that changes such as the abolition of the “single desk” or the

repeal of the Act in the future were not the type of changes to which

the new provisions were intended to apply (Affidavit of Allen Oberg,

September 15, 2011, Exhibit 8);

d. Commenting on an amendment to the bill that would become section

47.1, the Minister testified before the Standing Senate Committee on

Agriculture and Forestry on May 5, 1998. The Minister referred to

the inconsistency that had historically marked the methods by which

inclusions and exclusions of various grains, such as oats and barley,

had previously taken place – sometimes by Order in Council and

sometimes by statutory amendment. When the Minister stated, “…it

is unclear how one goes about amending the jurisdiction of the

Canadian Wheat Board”, he had in mind the problem of moving

various grains in or out of the regime that the CWB administered. He

was not referring to more fundamental changes to the nature or

existence of the marketing regime itself (Affidavit of Allen Oberg,

September 15, 2011, Exhibit 11);

e. When the Secretary of State moved second reading in the House of

Commons and concurrence in the amendments made in the Senate to

Bill C-4, including the clause that is now section 47.1, the Secretary

of State stated:

The second area of Bill C-4 where the Senate has

proposed amendments concerns the means by which

Page: 17

the number of grains under the marketing regime of

the wheat board can be either expanded or reduced.

As originally, drafted, western Canadian producers

had a process for excluding any kind, type, class or

grade of wheat or barley from the marketing authority

of the board. Similarly, the bill also laid out an

inclusion process for adding crops to the mandate of

the wheat board.

The amendment filled a gap in the existing Wheat

Board Act. As it now stands under the Canadian

Wheat Board, the process for changing the Canadian

Wheat Board’s mandate is unclear, as every member

from prairie Canada I am sure knows.

There have been concerns expressed by producers

and producer groups about the mechanism for

inclusion and exclusion originally laid out in Bill C-4.

Plenty of concerns have been expressed.

I am sure my colleagues from the opposition party are

going to get up very shortly and tell me why the

matter has not been set right yet.

The amendment responds to those concerns. The

amendment would replace existing clauses related to

the inclusion-exclusion of grains with the provision

that would require the current and future ministers

responsible for the board to consult the board of

directors with its two-thirds majority of farmer

chosen members and conduct a vote among

producers before any grains are added or removed

from the mandate of the board.

(Affidavit of Allen Oberg, September 15, 2011, Exhibit 12)

[Emphasis in Original]

(Respondents’ Consolidated Memorandum of Fact and Law, para.

47)

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D. Conclusions

[27] I find that by applying the interpretation test as set out above, the Applicants’ argument

which relies upon a contextual historical approach with respect to the unique democratic nature of

the CWB, and its importance, is compelling. I accept the argument that the CWB’s democratic

marketing practices are “significant and fundamental” because they are long standing, and strongly

supported by a large number of the some 17,000 grain producers in Western Canada. This support is

worthy of respect; the following argument on the rule of law made by the Council makes this clear:

The rule of law is a multi-faceted concept, conveying “a sense of

orderliness, of subjection to known legal rules and of executive

accountability to legal authority.” The Courts have repeatedly

described the rule of law as embodying the principle that the law “is

supreme over officials of the government as well as private

individuals, and thereby preclusive of the influence of arbitrary

power.” In other words, for political action to be legitimate, decisionmaking

must operate within the constraints of the law. Governments

cannot flout the law and must respect legitimate legal processes

already in place. As the Supreme Court stated in the Secession

Reference, “[i]t is the law that creates the framework within which

the “sovereign will” is to be ascertained and implemented. To be

accorded legitimacy, democratic institutions must rest, ultimately, on

a legal foundation.”

Adhering to the rule of law ensures that the public can understand the

rules they are bound by, and the rights they have in participating in

the law-making process. As the Applicants note, western farmers

relied on the fact that the government would have to conduct a

plebiscite under s. 47.1 before introducing legislation to change the

marketing mandate of the CWB. Disregarding the requirements of s.

47.1 deprives farmers of the most important vehicle they have for

expressing their views on the fundamental question of the single

desk. Furthermore the opportunity to vote in a federal election is no

answer to the loss of this particular democratic franchise. Until the

sudden introduction of Bill C-I8, Canadian farmers would have

expected the requirements of s. 47.1 to be respected.

The rule of law must therefore inform the interpretation of s. 47.1,

which sets out a process that includes consultation and a democratic

vote prior to abolishing the single desk. An interpretation of s. 47.1

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that is consistent with the rule of law would give effect to the plain

meaning of its words as ordinary citizens would understand and

interpret them, and not in a manner that defeats the consultative

purpose of s. 47.1 — particularly, given that citizens and

stakeholders understood s. 47.1 to provide them with particular rights

and acted in accordance with that understanding.

[Footnotes excluded]

(Memorandum of Fact and Law of the Council, paras. 26-28)

[28] I give weight to the Council’s argument that s. 47.1 applies to changing the structure of the

CWB because the democratic structure is important to Canada’s international trade obligations

under NAFTA. I find that this is an important consideration which supports the argument that

Parliament’s intention in s. 47.1 is not to alter this structure without consultation and consent.

[29] However, the Applicants’ statutory interpretation, which I accept, should not be considered

to the exclusion of the Minister’s interpretation which focuses on the words used in s. 47.1 itself. In

my opinion, the correct interpretation of the provision includes both perspectives. In my opinion, to

accept the Minister’s interpretation to the exclusion of the Applicants’ would results in an absurdity,

a condition which is to be avoided.

[30] By construing the liberal interpretation of the Act which best ensures the attainment of its

objects, I find that the Act was intended to require the Minister to consult and gain consent where an

addition or subtraction of particular grains or types of grain from the marketing regime is

contemplated, and also in respect of a change to the democratic structure of the CWB. As the

Applicants argue, it is unreasonable to interpret the Act to conclude that while the Minister must

Page: 20

consult and gain consent when extracting or extending a grain, she or he is not required to consult or

gain consent when dismantling the CWB; the point is made as follows:

… Under the Minister’s interpretation of section 47.1, farmers would

be denied a vote “when it is most needed”, namely, in circumstances

where the CWB’s exclusive marketing mandate is to be eliminated.

That interpretation is not only inconsistent with the principle that the

words of a statute must be placed in context, but is contrary to

common sense.

(Applicants’ Memorandum of Fact and Law in T-1735-11, para. 52)

[31] Section 39 of Bill C-18 proposes to replace the whole marketing scheme of wheat in Canada

by repealing the Act after a transition period. I find that it was Parliament’s intention in introducing

s. 47.1 to stop this event from occurring without the required consultation and consent.

VI. Legitimate Expectations

[32] As an alternative argument, the Applicants maintain that the Minister has failed to meet

legitimate expectations. The Supreme Court of Canada describes a legitimate expectation as

follows:

It affords a party affected by the decision of a public official an

opportunity to make representations in circumstances in which there

would be no such opportunity. The court supplies the omission

where, based on the conduct of the public official, a party has been

led to believe that his or her rights would not be affected without

consultation.

(Old St Boniface Residents Association Inc v Winnipeg (City), [1990]

3 SCR 1170, at para. 110)

During the course of oral argument, the Applicants confirmed that, should they be successful on the

s. 47.1 breach argument, they would be content with that as the single result of the Applications.

Therefore, I exercise my discretion not to grant the Legitimate Expectation Declaration requests.

Page: 21

VII. Conclusion

[33] The Minister argues that the declarations should not be granted because their effect would

be meaningless. In response, I say that there are two meaningful effects of granting the Breach

Declarations.

[34] The first effect is that a lesson can be learned from what has just occurred. Section 47.1

speaks, it says: “engage in a consultative process and work together to find a solution.” The change

process is threatening and should be approached with caution. Generally speaking, when advancing

a significant change to an established management scheme, the failure to provide a meaningful

opportunity for dissenting voices to be heard and accommodated forces resort to legal means to

have them heard. In the present piece, simply pushing ahead without engaging such a process has

resulted in the present Applications being launched. Had a meaningful consultative process been

engaged to find a solution which meets the concerns of the majority, the present legal action might

not have been necessary. Judicial review serves an important function; in the present Applications

the voices have been heard, which, in my opinion, is fundamentally importantly because it is the

message that s. 47.1 conveys.

[35] The second and most important effect is that the Minister will be held accountable for his

disregard for the rule of law.

[36] I find it is fair and just to issue the Breach Declaration on each Application.

“Douglas R. Campbell”

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKETS: T-1057-11 and T-1735-11

STYLE OF CAUSE: T-1057-11

FRIENDS OF THE CANADIAN WHEAT BOARD, ET

AL. v. ATTORNEY GENERAL OF CANADA, ET AL.

and COUNCIL OF CANADIANS, ET AL. (Interveners)

T-1735-11

THE CANADIAN WHEAT BOARD, ET AL. v. THE

MINISTER OF AGRICULTURE AND AGRIFOOD IN

HIS CAPACITY AS MINISTER RESPONSIBLE FOR

THE CANADIAN WHEAT BOARD and PCSC –

PRODUCER CAR SHIPPERS OF CANADA INC.

(PRODUCER CAR SHIPPERS), ET AL. (Interveners)

PLACE OF HEARING: Winnipeg, Manitoba

DATE OF HEARING: December 6, 2011

REASONS FOR ORDER: CAMPBELL J.

DATED: December 7, 2011

APPEARANCES:

Anders Bruun

FOR THE APPLICANTS

FRIENDS OF THE CANADIAN WHEAT BOARD,

HAROLD BELL, DANIEL GAUTHIER, KEN

ESHPETER, TERRY BOEHM, LYLE SIMONSON,

LYNN JACOBSON, ROBERT HORNE, WILF

HARDER, LAURENCE NICHOLSON, LARRY

BOHDANOVICH, KEITH RYAN, ANDY BAKER,

NORBERT VAN DEYNZE, WILLIAM ACHESON,

LUC LABOSSIERE, WILLIAM NICHOLSON AND

RENE SAQUET

(IN T-1057-11)

Page: 2

Joel Katz FOR THE RESPONDENTS

ATTORNEY GENERAL OF CANADA, THE

MINISTER OF AGRICULTURE AND AGRIFOOD

IN HIS CAPACITY AS MINISTER RESPONSIBLE

FOR THE CANADIAN WHEAT BOARD

(IN T-1057-11)

John Lorn McDougall, Q.C. and

Matthew Fleming

Stephen Shrybman

John Lorn McDougall, Q.C. and

Matthew Fleming

James E. McLandress

Joel Katz

John B. Martens and

Colin R. MacArthur, Q.C.

FOR THE RESPONDENT

THE CANADIAN WHEAT BOARD

(IN T-1057-11)

FOR THE INTERVENERS

COUNCIL OF CANADIANS, ETC GROUP

(ACTION GROUP ON EROSION, TECHNOLOGY

AND CONCENTRATION), PUBLIC SERVICE

ALLIANCE OF CANADA AND FOOD SECURE

CANADA

(IN T-1057-11)

FOR THE APPLICANTS

THE CANADIAN WHEAT BOARD, ALLEN

OBERG, ROD FLAMAN, CAM GOFF, KYLE

KORNEYCHUK, JOHN SANDBORN, BILL

TOEWS, STEWART WELLS AND BILL WOODS

(IN T-1735-11)

FOR THE APPLICANTS

(IN T-1735-11)

FOR THE RESPONDENTS

THE MINISTER OF AGRICULTURE AND

AGRIFOOD IN HIS CAPACITY AS MINISTER

RESPONSIBLE FOR THE CANADIAN WHEAT

BOARD

(IN T-1735-11)

FOR THE INTERVENERS

PCSC – PRODUCER CAR SHIPPERS OF

CANADA INC. (PRODUCER CAR SHIPPERS),

LOGAN CONNOR, LEONARD GLUSKA, BILL

WOODS, MYRON FINLAY, HOWARD VINCENT,

GLEN HARRIS, AND TIM COULTER, ON THEIR

OWN BEHALF AND ON BEHALF OF THE

MEMBERS OF PRODUCER CAR SHIPPERS

(IN T-1735-11)

Page: 3

SOLICITORS OF RECORD:

Anders Bruun

Barrister & Solicitor

Winnipeg, Manitoba

FOR THE APPLICANTS

FRIENDS OF THE CANADIAN WHEAT BOARD,

HAROLD BELL, DANIEL GAUTHIER, KEN

ESHPETER, TERRY BOEHM, LYLE SIMONSON,

LYNN JACOBSON, ROBERT HORNE, WILF

HARDER, LAURENCE NICHOLSON, LARRY

BOHDANOVICH, KEITH RYAN, ANDY BAKER,

NORBERT VAN DEYNZE, WILLIAM ACHESON,

LUC LABOSSIERE, WILLIAM NICHOLSON AND

RENE SAQUET

(IN T-1057-11)

Myles J. Kirvan, Q.C.

Deputy Attorney General of Canada

FOR THE RESPONDENTS

ATTORNEY GENERAL OF CANADA, THE

MINISTER OF AGRICULTURE AND AGRIFOOD

IN HIS CAPACITY AS MINISTER RESPONSIBLE

FOR THE CANADIAN WHEAT BOARD

(IN T-1057-11)

FOR THE RESPONDENTS

THE MINISTER OF AGRICULTURE AND

AGRIFOOD IN HIS CAPACITY AS MINISTER

RESPONSIBLE FOR THE CANADIAN WHEAT

BOARD

(IN T-1735-11)

Fraser Milner Casgrain LLP

Barristers & Solicitors

Toronto, Ontario

James E. McLandress

Barrister & Solicitor

Winnipeg, Manitoba

FOR THE RESPONDENT

THE CANADIAN WHEAT BOARD

(IN T-1057-11)

FOR THE APPLICANTS

THE CANADIAN WHEAT BOARD, ALLEN

OBERG, ROD FLAMAN, CAM GOFF, KYLE

KORNEYCHUK, JOHN SANDBORN, BILL

TOEWS, STEWART WELLS AND BILL WOODS

(IN T-1735-11)

FOR THE APPLICANTS

THE CANADIAN WHEAT BOARD, ALLEN

OBERG, ROD FLAMAN, CAM GOFF, KYLE

KORNEYCHUK, JOHN SANDBORN, BILL

TOEWS, STEWART WELLS AND BILL WOODS

(IN T-1735-11)

Page: 4

Sack Goldbatt Mitchell LLP

Barristers & Solicitors

Ottawa, Ontario

Aikins MacAulay & Thorvaldson LLP

Barristers & Solicitors

Winnipeg, Manitoba

FOR THE INTERVENERS

COUNCIL OF CANADIANS, ETC GROUP

(ACTION GROUP ON EROSION, TECHNOLOGY

AND CONCENTRATION), PUBLIC SERVICE

ALLIANCE OF CANADA AND FOOD SECURE

CANADA

(IN T-1057-11)

FOR THE INTERVENERS

PCSC – PRODUCER CAR SHIPPERS OF

CANADA INC. (PRODUCER CAR SHIPPERS),

LOGAN CONNOR, LEONARD GLUSKA, BILL

WOODS, MYRON FINLAY, HOWARD VINCENT,

GLEN HARRIS, AND TIM COULTER, ON THEIR

OWN BEHALF AND ON BEHALF OF THE

MEMBERS OF PRODUCER CAR SHIPPERS

(IN T-1735-11)

Privacy and Online Behavioural Advertising the Office of the Privacy Commissioner of Canada,

2011-12-08T03:12:00.001-05:00

Privacy and Online Behavioural Advertising

PDF Version

Online behavioural advertising involves tracking consumers’ online activities over time in order to deliver advertisements targeted to their inferred interests. Behavioural advertisers often use sophisticated algorithms to analyze the collected data, build detailed personal profiles of users, and assign them to various interest categories. Interest categories are used to present ads defined as relevant to users in those categories.

While advertising may help subsidize the delivery of free online content desired by most users, it is nevertheless essential that online advertising practices respect an individual’s privacy rights and consent choices.

Online behavioural advertising may be considered a reasonable purpose under thePersonal Information Protection and Electronic Documents Act (PIPEDA), provided it is carried out under certain parameters, and is not made a condition of service.

The following guidelines were developed to help the various types of organizations involved in online behavioural advertising ensure that their practices are fair, transparent and in compliance with PIPEDA. Any future complaints concerning online behavioural advertising would be assessed based on the specific facts of each individual case.

PIPEDA and Personal Information

PIPEDA defines personal information as “information about an identifiable individual”. Information will be about an identifiable individual where there is a serious possibility that an individual could be identified through the use of that information, alone or in combination with other available information.

A prominent strategic element of online behavioural advertising comes from the tailoring of advertisements based on an individual’s browsing activities, which could include purchasing patterns and search queries. Given the scope and scale of information collected, the powerful means available for aggregating disparate pieces of data and the personalized nature of the activity, it is reasonable to consider that there will often be a serious possibility that the information could be linked to an individual.

As such, we take the position that the information involved in online tracking and targeting for the purpose of serving behaviourally targeted advertising to individuals will generally constitute personal information.

PIPEDA and User Choice

PIPEDA requires an individual’s knowledge and consent for the collection, use, or disclosure of personal information. PIPEDA also requires that the purposes for which an individual’s information is to be collected, used or disclosed be explained in a clear and transparent manner. In addition, PIPEDA does recognize that the form of consent can vary: for example, express consent (opt-in) when dealing with sensitive information, and implied consent (opt-out) when the information is less sensitive. It is important to note that the sensitivity of information depends on the nature of the information and the context in which it is being collected, used or disclosed.

While obtaining consent in the online environment is not without its challenges, it is possible. Opt-out consent for online behavioural advertising could be considered reasonable providing that:

Individuals are made aware of the purposes for the practice in a manner that is clear and understandable – the purposes must be made obvious and cannot be buried in a privacy policy. Organizations should be transparent about their practices and consider how to effectively inform individuals of their online behavioural advertising practices, by using a variety of communication methods, such as online banners, layered approaches, and interactive tools;
Individuals are informed of these purposes at or before the time of collection and provided with information about the various parties involved in online behavioural advertising;
Individuals are able to easily opt-out of the practice - ideally at or before the time the information is collected;
The opt-out takes effect immediately and is persistent;
The information collected and used is limited, to the extent practicable, to non-sensitive information (avoiding sensitive information such as medical or health information); and
Information collected and used is destroyed as soon as possible or effectively de-identified.

Restrictions

Inability to Decline

Any collection or use of an individual’s web browsing activity must be done with that person’s knowledge and consent. Therefore, if an individual is not able to decline the tracking and targeting using an opt-out mechanism because there is no viable possibility for them to exert control over the technology used, or if doing so renders a service unusable, then organizations should not be employing that type of technology for online behavioural advertising purposes. At present, this could include, for example, so-called zombie cookies, super cookies and device fingerprinting. Further information related to online tracking technologies can be found on our Web Tracking with Cookies fact sheet.

Tracking of Children

PIPEDA requires meaningful consent for the collection, use and disclosure of personal information. It is difficult to ensure meaningful consent from children to online behavioural advertising practices. Therefore, as a best practice, organizations should avoid tracking children and tracking on websites aimed at children.

Addressing the Challenges

By putting in place privacy-sensitive frameworks, organizations will promote consumer trust in their online activities. Addressing the privacy concerns raised by online behavioural advertising is central to establishing and maintaining consumer confidence in the online world.

Three Mexican migrant agriculture workers have filed a lawsuit against the Canadian government and an Ontario agriculture operator for breach of contract and damages, after the workers were repatriated without a hearing or any explanation of why they were terminated. It is the first suit of its kind ever brought by migrant workers invoking their rights under Canada's Charter.

2011-12-06T03:25:00.001-05:00

TORONTO, ONTARIO - Three Mexican migrant agriculture workers have filed a lawsuit against the Canadian government and an Ontario agriculture operator for breach of contract and damages, after the workers were repatriated without a hearing or any explanation of why they were terminated. It is the first suit of its kind ever brought by migrant workers invoking their rights under Canada's Charter.

On August 30, 2010, Manuel Ruiz Espinoza, Salvador Reta Ruiz and Jose Ruiz Sosa were ordered by their employer — Tigchelaar Berry Farms in Vineland, Ontario — to pack up and leave Canada the next day. The three men were working legally in Canada as migrant agriculture workers under the federal government's Seasonal Agriculture Workers Program (SAWP). Under SAWP, the workers and the farm operator sign a binding contract; including terms that the workers may only be repatriated for "sufficient reason". No reason was ever given by their employer, or by the Mexican or Canadian governments.

Statement of Claim

The three men have now filed an action in the Ontario Superior Court of Justice. The suitalleges the breach of the plaintiffs' employment contracts was a violation of their rights under Section 7 of Canada's Charter of Rights and Freedoms; including their right be informed of allegations made against them, and the right be provided a meaningful opportunity to respond to the allegations. The unilateral eviction was also done without notice, or pay in lieu of notice, contrary to Ontario's Employment Standards Act.

"What has happened here is shamefully typical of a federal government system that treats migrant workers who don't have union representation like disposable commodities," says Wayne Hanley, the national president of UFCW Canada, which in association with the Agriculture Workers Alliance operates ten migrant agriculture worker support centres across Canada. "Without cause or a chance to defend themselves, scores of workers are shipped back home each season on a moment's notice, while the federal government turns a blind eye. It's a ruthless system that is meant to keep workers in constant fear and under the thumbs of the agriculture industry," says the UFCW Canada leader.

UFCW Canada is also a member of the Niagara Migrant Workers Interest Group which originally investigated the workers' repatriation. Lawyers Andrew Lokan and Michael Fenrick from the Toronto law firm Paliare Roland Rosenberg Rothstein LLP have partnered with Community Legal Services of Niagara South (CLSNS) to assist with the legal challenge which seeks $25,000 in damages for each of the repatriated workers.

UFCW Canada is Canada's largest private-sector union, with over 250,000 members working primarily in the food industry. For more than two decades the union has led a campaign to defend and uphold the human and labour rights of agriculture workers, and represents a number of agriculture bargaining units with migrant worker members in British Columbia and Quebec.

Canada's spy agency CSIS, was so reliant on information obtained through torture that it suggested the whole security certificate regime, used to control suspected terrorists in the country, would fall apart if they couldn't use it.

2011-12-05T03:09:00.001-05:00

Canada's spy agency was so reliant on information obtained through torture that it suggested the whole security certificate regime, used to control suspected terrorists in the country, would fall apart if they couldn't use it.

That's the essence of a letter written in 2008 by the former director of CSIS, Jim Judd, obtained by the Montreal Gazette.

It suggests a disturbing acceptance by the national security agency of torture as a legitimate strategy to counter terrorism.

The letter, dated Jan. 15, 2008, was sent from Judd to the minister of public security just as the government was finalizing Bill C-3, legislation to replace the security certificates law which was struck down by the Supreme Court as unconstitutional in February 2007.

The government had been given a year to come up with new legislation that would respect the charter rights of those targeted by the certificates.

In the letter, Judd urges the minister to fight an amendment to C-3 proposed by Liberal MP Ujjal Dosanjh that would prohibit CSIS and the courts from using any information obtained from torture or "derivative information" — information initially obtained from torture but subsequently corroborated through legal means.

"This amendment, if interpreted to mean that 'derivative information' is inadmissible, could render unsustainable the current security certificate proceedings," Judd writes. "Even if interpreted more narrowly to exclude only information obtained from sources and foreign agencies who, on the low threshold of "reasonable grounds" may have obtained information by way of torture, the amendment would still significantly hinder the Service's collection and analysis functions."

Despite Judd's opposition, the amended Bill C-3 was adopted in February, 2008. But the letter calls into question CSIS's previous assurances that it did not countenance torture abroad. And observers wonder whether anything has changed in CSIS' approach since C-3 was adopted.

Lawyer Johanne Doyon, who successfully petitioned the Supreme Court to strike down the original security certificate law on behalf of Adil Charkaoui, said after C-3 was passed the government immediately issued five new security certificates — including one for Charkaoui. CSIS had not had time to re-analyze the evidence it was presenting, Doyon said.

"The government was well aware before signing the certificates that they were based on information derived from torture," Doyon said. "It's very disturbing — they just closed their eyes and signed."

Charkaoui, a Moroccan citizen who CSIS alleged was an al-Qaida sleeper agent, was facing removal from Canada until the Federal Court struck down a security certificate against him in 2009.

Doyon is now arguing for a stay of proceedings in the case of Mohamed Mahjoub, held on a second certificate since 2000, and for his release from house arrest next week. Mahjoud was detained in June, 2000, accused of being a high-ranking member of an Egyptian terrorist group.

In his case, a federal court judge ruled in June, 2010 that ministers and special advocates for Mahjoub had to sift through the evidence in the Security Intelligence Report and exclude any that might have been obtained through torture. Justice Edmond Blanchard also said the approach taken by CSIS to filter information so as not to use any derived from torture was not effective.

"It's shocking and it's worrisome for society in general," Doyon said. "It's illegitimate, illegal and unconstitutional to (use information derived from torture.) Who in the name of Canada can be above the law this way?

"And it's not just in one case, but in so many, and with Canadian citizens too — Maher Arar for example (who was sent to Syria and tortured with CSIS complicity) Just where will it lead?"

In an email message Friday, a CSIS spokesperson did not address the 2008 letter from the director. But Tahera Mufti said: "We oppose in the strongest possible terms the mistreatment of any individual by any foreign entity for any purpose. We do not condone the use of torture or other unlawful methods in responding to terrorism and other threats to national security." Mufti also said CSIS uses "appropriate caveats or instructions when sharing information" and that its activities are subject to review by the Security Intelligence Review Committee, which has access to all CSIS "foreign arrangement files. "

In the 2008 letter, the CSIS director says part of the difficulty facing the agency lay in not being able to adequately assess which information came from where; foreign agencies do not often divulge the source of their information.

For Judd, the worst-case scenario would be that the federal court, in reviewing a security certificate, asks CSIS to certify that intelligence was gathered without resort to torture, or renders inadmissible "any and all information provided by agencies in countries whose human rights records are in question — of which there are many."

Amnesty International's 2007 State of Human Rights Report, referenced but redacted in Judd's letter, lists 102 countries which that year had cases of torture and ill-treatment by security forces, police and other state authorities, including the United States.

Judd does not express any concern about the reliability of such information, however. Rather, he suggests an alternative amendment to the bill, which would read "the judge may receive into evidence anything — other than a statement obtained under torture — that in the judge's opinion is reliable and appropriate."

Asked to comment Friday on the substance of the letter, Reem Bahdi, a law professor at the University of Windsor, said the more she learns about the practices of national security agencies, the more worried she becomes about the state of national security in Canada.

"The agencies tell us they don't use torture or support torture on the one hand, and on the other hand they appear to be promoting torture — promoting it as a form of information gathering!" Bahdi said. "I worry not only because information derived from torture is not reliable, but also because of the ramifications around the world that this kind of support for torture can have. What's taking place in the Middle East is very interesting — these are repressive societies built on torture and our agencies are helping to legitimize those regimes through their practices, their relationships with the regimes and their justifications."

Bahdi said the prohibition on torture is part of international law, and was part of Canadian law long before the C-3 amendment. But CSIS needs to be held accountable, she said.

"There has to be a cultural shift in CSIS so they take seriously the prohibition on torture and understand it's not there to tie their hands behind their backs so they can't do their work, but to ensure that their work has some integrity . . .

"If torture produced national security, the regimes in the Middle East would be the safest places in the world."

Audrey Macklin, a professor of law and at the School for Public Policy and Governance of the University of Toronto, said it's not surprising CSIS would warn of the end of the security certificates regime, because so many of them depend on information obtained through torture.

"But it's worth asking, why do we have the security certificates? Before 9/11 we didn't have provisions in criminal law addressing anti-terrorism — now we do. If they are good enough for citizens, why not for non-citizens?"

Program cost increases and further delays & Concerns over performance and safety of the F35.

2011-12-03T03:19:00.001-05:00

Program cost increases and further delays On 21 April 2009, media reports, citing Pentagon sources, said that during 2007 and 2008, computer spies had managed to copy and siphon off several terabytes of data related to the F-35's design and electronics systems, potentially enabling the development of defense systems against the aircraft.[37] However, Lockheed Martin has rejected suggestions that the project has been compromised, saying that it "does not believe any classified information had been stolen".[38]

On 9 November 2009, Ashton Carter, under-secretary of defense for acquisition, technology and logistics, acknowledged that the Pentagon "joint estimate team" (JET) had found possible future cost and schedule overruns in the project and that he would be holding meetings to attempt to avoid these.[39] On 1 February 2010, Gates removed the JSF Program Manager, U.S. Marine Corps Major General David Heinz, and withheld $614 million in payments to Lockheed Martin because of program costs and delays.[40][41]

On 11 March 2010, a report from the Government Accountability Office to United States Senate Committee on Armed Services projected the overall unit cost of an F-35A to be $112M in today's money.[42] In 2010, Pentagon officials disclosed that the F-35 program has exceeded its original cost estimates by more than 50 percent.[43] An internal Pentagon report critical of the JSF project states that "affordability is no longer embraced as a core pillar". On 24 March, Gates termed the recent cost overruns and delays as "unacceptable" in a testimony before the U.S. Congress. He characterized previous cost and schedule estimates for the project as "overly rosy". However, Gates insisted the F-35 would become "the backbone of U.S. air combat for the next generation" and informed the Congress that he had expanded the development period by an additional 13 months and budgeted $3 billion more for the testing program while slowing down production.[44] Lockheed Martin expects to reduce government cost estimates by 20%.[45]

In November 2010 as part of a cost-cutting measure, the co-chairs of the National Commission on Fiscal Responsibility and Reform suggested canceling procurement of the F-35B and halving orders of F-35As and F-35Cs.[46][47][48] At the same time Air Force Magazine reported that "Pentagon officials" are considering canceling the F-35B because its short range means that the bases or ships it operates from will be within range of hostile tactical ballistic missiles.[49] However Lockheed Martin consultant Loren B. Thompson said that this rumor is merely a result of the usual tensions between the US Navy and Marine Corps, and there is no alternative to the F-35B as an AV-8B replacement.[50] He also confirmed that there would be further delays and cost increases in the development process because of technical problems with the aircraft and software, but blamed most of the delays and extra costs on redundant flight test.[51][52]

The Center for Defense Information estimated that the program would be restructured with an additional year of delay and $5 billion in additional costs.[53] On 5 November 2010, the Block 1 software flew for the first time on BF-4 which included information fusion and initial weapons-release capability.[54] As of the end of 2010, only 15% of the software remains to be written, but this includes the most difficult sections such as data fusion.[55] But in 2011 it was revealed that only 50% of the eight million lines of code had actually been written and that it would take another six years and 110 additional software engineers in order to complete the software for this new schedule.[56]

In January 2011 Defense Secretary Robert Gates expressed the Pentagon's frustration with the skyrocketing costs of the F-35 program when he said "The culture of endless money that has taken hold must be replaced by a culture of restraint." Focusing his attention on the troubled VTOL F-35B Gates ordered "a two-year probation", saying it "should be canceled" if corrections are unsuccessful.[57] However, Gates has stated his support for the program.[58] Some private analysts, such as Richard Aboulafia, of the Teal Group state that the whole F-35 program is becoming a money pit.[57]

Former Pentagon manager Paul Kaminski has said that the lack of a complete test plan has added five years to the JSF program.[59] As of February 2011, the main flaws with the aircraft are engine "screech", transonic wing roll-off and display flaws in the helmet mounted display.[60]

The current schedule has the delivery of basic combat capability aircraft in late 2015, followed by full capability block three software in late 2016.[61] The $56.4 billion development project for the aircraft should be completed in 2018 when the block five configuration is expected to be delivered, several years late and considerably over budget.[62]

In November 2010, the GAO found that "Managing an extensive, still-maturing global network of suppliers adds another layer of complexity to producing aircraft efficiently and on-time" and that "However, due to the extensive amount of testing still to be completed, the program could be required to make alterations to its production processes, changes to its supplier base, and costly retrofits to produced and fielded aircraft, if problems are discovered."[63] A year later, program head Vice Adm. David Venlet confirmed that the concurrency built into the program "was a miscalculation".[64]

Delays in the F-35 program may lead to a "fighter gap" where America and other countries will lack sufficient jet fighters to cover their requirements.[65] Israel may seek to buy second-hand F-15s to cover its gap,[66] while Australia may also seek to buy more American fighters from the USN to cover their own capability gap in the face of F-35 delays.[67]

Initial Operational Capability (IOC) will be determined by software development rather than by hardware production or pilot training.[68]

In May 2011, the Pentagon's top weapons buyer Ashton Carter said that its new $133 million unit price was not affordable.[69]

In 2011 The Economist warned that the F-35 was in danger of slipping into a "death spiral" where increasing per aircraft costs would lead to cuts in number of aircraft ordered which would lead to further cost increases and further order cuts.[70] Later that year four aircraft were cut from the fifth LRIP order to pay for cost overruns.[71]

This was followed by a contract dispute where the Pentagon insisted that Lockheed Martin help cover the costs of fixes to aircraft already produced.[72] Lockheed Martin also objected to cost sharing in the program because even at this late date the remaining development challenges posed an uninsurable unbounded risk that the company could not cover.[73] However the Senate Armed Services Committee strongly backed the Pentagon position.[74]

Also in 2011 a Congressional Joint Strike Fighter Caucus was formed by some of the top recipients of Lockheed Martin contributions.[75]

Concerns over performance and safety In 2006 the F-35 was downgraded from "very low observable" to "low observable", a change former RAAF flight test engineer Peter Goon likened to increasing the radar cross section from a marble to a beach ball.[76]

Andrew Krepinevich has questioned the reliance on "short range" aircraft like the F-35 or F-22 to 'manage' China in a future conflict and has suggested reducing the number of F-35s ordered in favor of a longer range platform like the Next-Generation Bomber, but Michael Wynne, then United States Secretary of the Air Force rejected this plan of action in 2007.[77][78][79] However in 2011, the Center for Strategic and Budgetary Assessments (CSBA) pointed to the restructuring of the F-35 program and the return of the bomber project as a sign of their effectiveness, while Rebecca Grant said that the restructuring was a "vote of confidence" in the F-35 and "there is no other stealthy, survivable new fighter program out there".[80] Lockheed has also said that the F-35 is designed to launch internally carried bombs at supersonic speed and internal missiles at maximum supersonic speed.[81]

In 2008 it was reported that RAND Corporation conducted simulated war games in which Russian Sukhoi Su-35 fighters apparently defeated the F-35.[82] As a result of these media reports, then Australian defence minister Joel Fitzgibbon requested a formal briefing from the Australian Department of Defence on the simulation. This briefing stated that the reports of the simulation were inaccurate and did not actually compare the F-35's flight performance against other aircraft.[83]

The Pentagon and Lockheed Martin added that these simulations did not address air-to-air combat.[84][85] A Lockheed Martin press-release points to USAF simulations regarding the F-35's air-to-air performance against potential adversaries described as "4th generation" fighters, in which it claims the F-35 is "400 percent" more effective. Major General Charles R. Davis, USAF, the F-35 program executive officer, has stated that the "F-35 enjoys a significant Combat Loss Exchange Ratio advantage over the current and future air-to-air threats, to include Sukhois".[85] The nature of the simulations, and the terms upon which the "400 percent" figure have been derived remains unclear. Regarding the original plan to fit the F-35 with only two air-to-air missiles, Major Richard Koch, chief of USAF Air Combat Command’s advanced air dominance branch is reported to have said that "I wake up in a cold sweat at the thought of the F-35 going in with only two air-dominance weapons."[86] However the Norwegians have been briefed on a plan to equip the F-35 with six AIM-120D missiles by 2019.[87]

Former RAND author John Stillion has written of the F-35A's air-to-air combat performance that it “can’t turn, can’t climb, can’t run”, but Lockheed Martin test pilot Jon Beesley has countered that in an air-to-air configuration the F-35 has almost as much thrust as weight and a flight control system that allows it to be fully maneuverable even at a 50-degree angle of attack.[88]

Chen Hu, editor-in-chief of World Military Affairs magazine has said that the F-35 is too costly because it attempts to provide the capabilities needed for all three American services in a common airframe.[89] Dutch news program NOVA show interviewed US defense specialist Winslow T. Wheeler and aircraft designer Pierre Sprey who called the F-35 "heavy and sluggish" as well as having a "pitifully small load for all that money", and went on to criticize the value for money of the stealth measures as well as lacking fire safety measures. His final conclusion was that any air force would be better off maintaining its fleets of F-16s and F/A-18s compared to buying into the F-35 program.[90] Lockheed spokesman John Kent has said that the missing fire-suppression systems would have offered "very small" improvements to survivability.[91]

In the context of selling F-35s to Israel to match the F-15s that will be sold to Saudi Arabia, a senior U.S. defense official was quoted as saying that the F-35 will be "the most stealthy, sophisticated and lethal tactical fighter in the sky," and added "Quite simply, the F-15 will be no match for the F-35."[92] After piloting the aircraft, RAF Squadron Leader Steve Long said that, over its existing aircraft, the F-35 will give "the RAF and Navy a quantum leap in airborne capability."[93]

Consultant to Lockheed Martin Loren B. Thompson has said that the "electronic edge F-35 enjoys over every other tactical aircraft in the world may prove to be more important in future missions than maneuverability".[94]

In 2011, Canadian politicians raised the issue of the safety of the F-35's reliance on a single engine (as opposed to a twin-engine configuration, which provides a backup in case of an engine failure). Canada had previous experience with a high-accident rate with the single-engine Lockheed CF-104 Starfighter with many accidents related to engine failures. Defence Minister Peter MacKay, when asked what would happen if the F-35’s single engine fails in the Far North, stated "It won’t".[95]

Abousfian Abdelrazik has been removed from a UN Security Council terrorist blacklist. : cleared by CSIS and the RCMP of terrorist allegations.

2011-12-01T03:48:00.001-05:00

Abousfian Abdelrazik, a Canadian accused of being an al-Qaeda operative who trained in Afghanistan, has been removed from a UN Security Council terrorist blacklist.

Paul Champ, Abdelrazik's lawyer, says his client was "ecstatic" to hear the news.

The Sudanese-born man, who was arrested but not charged during a 2003 visit to see his mother in Sudan, has already been formally cleared by CSIS and the RCMP of terrorist allegations.

While he was behind bars in Sudan, Abdelrazik's passport expired and he subsequently lived in makeshift quarters at the Canadian Embassy in Khartoum.

In July 2006, the United States branded Abdelrazik a supporter of the al-Qaeda terrorist network, and the United Nations subsequently added him to the UN Al-Qaeda Sanctions List.

Abdelrazik has been trying to clear his name since late June 2009, when he returned to Canada.

Denmark is a big shame. Please share this on, this is serious cruelty.!

2011-11-29T03:11:00.001-05:00

Please share this on, this is serious cruelty.

Denmark is a big shame.

The sea... is stained in red and it is not because of the climate effects of nature. It's because of the cruelty of the human beings (civilized human) who kill hundreds of the famous and intelligent Calderon dolphins.

This happens every year in Feroe Island in Denmark . In this slaughter the main participants are young teens.

WHY?

A celebration, to show that they are adults and mature!

In this big celebration, nothing is missing for the fun. Everyone is participating in one way or the other, killing or looking at the cruelty supporting like a spectator

Is it necessary to mention that the dolphin Calderon, like all the other species of dolphins, it's near extinction and they get near men to play and interact.

In a way of PURE friendship.

They don't die instantly; they are cut 1, 2 or 3 times with thick hooks. And at that time the dolphins produce a grim cry like that of a new born child.

But he suffers and there's no compassion while this magnificent creature slowly dies in its own blood

Its enough!

We will publish until this post goes around the world that many more people will know about this shameful Dannish acts.

Take care of the world, it is your home!

SHARE this messages as a sign Against this cruelty

Sunnybrook Health Sciences Centre Canada.

2011-11-26T04:29:00.001-05:00

Sunnybrook Health Sciences Centre Canada.

wikipedia info

The Odette Cancer Centre is a part of the Sunnybrook Health Sciences Centre

Location in Toronto

Geography

Location Toronto, Ontario, Canada

Coordinates 43°43′22″N 079°22′23″W / 43.72278°N 79.37306°W / 43.72278; -79.37306Coordinates: 43°43′22″N 079°22′23″W / 43.72278°N 79.37306°W / 43.72278; -79.37306

Organization

Care system Public Medicare (Canada) (OHIP)

Hospital type Teaching

Affiliated university University of Toronto Faculty of Medicine

Services

Emergency department Level I trauma center

Helipad TC LID: CNY8

Beds 1275 (including 500 veteran beds and 74 bassinets)

Speciality Cancer, Cardiovascular and Neurosciences

History

Founded 1948

Links

Website http://www.sunnybrook.ca/

Lists Hospitals in Canada

Sunnybrook Health Sciences Centre, abbreviated SHSC and known simply as Sunnybrook, is an academic health sciences centre located in Toronto, Ontario.[1]

It is the largest trauma centre in Canada and is one of two major trauma centres in Toronto; the other is St. Michael's Hospital. It offers comprehensive care and is a national leader in image-guided therapies. In 2008, Sunnybrook made history when it received an unprecedented $74.6 million dollar research award.[2]

It is one of the fastest growing hospitals in North America, and is the nation's largest maternity hospital with the new Women & Babies Program,[3] which opened on September 12, 2010. Sunnybrook is home to the Edmond Odette Regional Cancer Centre and the Schulich Heart Centre, both national leaders in the respective areas of medicine. As of October 2008, Sunnybrook was named one of Greater Toronto's Top Employers by Mediacorp Canada Inc., which was announced by the Toronto Star newspaper.[4]

The Kilgour Wing (K Wing) is a long-term care centre with the large majority of patients being war veterans. The hospital was a centre used to handle the wounded after World War II.

Contents [hide]

1 History

2 Areas of focus

2.1 Veterans and Community

2.2 Brain Sciences

2.3 Holland Musculoskeletal Program

2.4 Women and Babies

2.5 Schulich Heart Centre

2.6 Odette Cancer Centre

2.7 Trauma, Emergency and Critical Care

3 Heliport

4 Private, for-profit cancer clinic

5 Holland Musculoskeletal Centre

6 References

7 External links

[edit] HistoryAlice M. Kilgour donated the Sunnybrook Farm to the City of Toronto in memory of her husband, Joseph Kilgour, for use as a public park in 1928. With the consent of the Kilgour heirs, the parkland was transferred to the Government of Canada to build a hospital for veterans. The Sunnybrook Veterans Hospital opened its doors in June 1948. The hospital merged with Women's College Hospital and the Orthopaedic and Arthritic Hospital in June 1998 under the provisions of Bill 51, but Sunnybrook and Women's College Health Sciences Centre was de-amalgamated in April 2006 to create Sunnybrook Health Sciences Centre and the separate Women's College Hospital. Currently, Sunnybrook maintains two campuses, with its main campus (Bayview) on Bayview Avenue in North York, and the satellite Holland Centre (orthopaedic and arthritic care) on Wellesley St. E. SHSC became affiliated with the University of Toronto in 1966.

Areas of focus Veterans and CommunityLocated in the Kilgour Wing it is partnered with Veterans Affairs Canada and has about 500 veterans of WWII and the Korean War. For veterans they provide various types of services such as mental health, cognitive and palliative care which is also provided to the general population[5]

Brain SciencesThey provide care for people with brain related problems including dementia, strokes and mood and anxiety disorders. It is also a research centre looking into areas such as neuropsychology and neurochemistry.[6]

Holland Musculoskeletal ProgramThe program is mainly involved in musculoskeletal injury but are also involved in musculoskeletal education and research.[7]

[edit] Women and BabiesThe program provides gynaecology services and includes a neonatal intensive-care unit. They deliver about 4,000 babies a year, of which 25% are high risk births.[8]

[edit] Schulich Heart CentreThe centre is named for Seymour Schulich a Canadian businessman and philanthropist from Montreal.[9] The centre, as per the name, is a cardiac care clinic and is involved in research, surgery and intervention.[10]

Odette Cancer CentreThe centre is involved in cancer research but also provides education and treatment.[11]

Trauma, Emergency and Critical CareThe hospital provides critical care and provides a consultation service to the Ross Tilley Burn Centre. The emergency department is open 24 hours a day. The trauma centre provides emergency medical services to patients suffering traumatic injuries.[12]

HeliportA helicopter pad (TC LID: CNY8) is located at the east end of the hospital grounds.[13] Sunnybrook handles air ambulance flights with urgent trauma cases from the Greater Toronto Area where an ambulance run is not possible. Only two other hospitals in Toronto have helipads (St. Michael's Hospital (Toronto) and Hospital for Sick Children).

Private, for-profit cancer clinicSunnybrook Hospital was the site of Ontario's first private cancer clinic created since the inception of Medicare. The clinic operated after regular working hours at the hospital, and was owned by Dr. Tim McGowan. An investigation by the Auditor General of Ontario revealed that the cost per procedure was $500 greater than in the public sector and that the waiting times did not decrease in the public system as a result of the clinic's creation.[14][15] The clinic operated from 2001 until 2003.

Holland Musculoskeletal CentreThe Holland Centre consists of the Orthopaedic Program located in downtown Toronto; the Holland Centre Campus is located on 43 Wellesley St. East.[16]

The Holland Orthopaedic and Arthritic Centre was initially founded as the Orthopaedic and Arthritic Hospital by Dr. James E. Bateman and Charles S. Wright II in 1955 based on a charter procured by Dr. C. Stewart Wright, an orthopaedic surgeon. It was founded as a specialty hospital for the treatment of patients with orthopaedic ailments. The building it was founded in was a sanitorium and since then it has undergone a series of renovations and additions.

As part of the Ontario initiative to reduce hospital wait-times, the Holland Orthopaedic and Arthritic Centre was named as a centre of excellence in joint replacement.

UQAM creates a new research chair on homophobia , the first permanent Chair on this issue in North America. The launch took place today

2011-11-23T02:57:00.001-05:00

November 21, 2011

UQAM creates a new research chair on homophobia , the first permanent Chair on this issue in North America. The launch took place today in the presence of Quebec Premier Jean Charest, the Minister of Justice, Attorney General and Minister responsible for the fight against homophobia, Jean-Marc Fournier, President and CEO Quebec Council of gays and lesbians, Steve Foster, and rector of UQAM, Claude Corbo.

Led by Professor Line Chamberland, Department of Sexology, the work of this Chair will allow a better understanding of the characteristics of various sexual minorities and problems experienced by these people in various settings. A better understanding of resistance to sexual diversity will strengthen the effectiveness of campaigns.

Research themes of the Chair

With the support of the Department of Justice, principal partner of the Chair, Dr. Chamberland and his team will analyze the process of marginalization and discrimination of sexual minorities and their psychosocial effects on gays, lesbians and bisexuals, transsexual and transgender. Their reflections will also address the needs of these communities, as well as evaluation of programs and policies to fight against homophobia in schools, workplaces and health services.

Committed partners

In addition to the Department of Justice, the Chair has the support of donors and works with organizations that believe in its mission. It also continues its active search for partners that will enable it play its role in production and transfer of knowledge to communities. The support of the ministry and all partners is essential to hire a team of researchers around the chair, while creating the confidence that its work will impact the fight against homophobia.

***

You can read the story No to Homophobia! , published in the latest edition of the magazine Inter- UQAM.

--------------------------------------------------------------------------------

The Universite du Quebec a Montreal's sexology department will study the consequences of homophobia on mental, physical and sexual health.

2011-11-22T03:58:00.001-05:00

Montreal will be getting North America's first research chair on homophobia, Premier Jean Charest announced Monday.

The Universite du Quebec a Montreal's sexology department will study the consequences of homophobia on mental, physical and sexual health.

It will also look into how sexual minorities can be socially-isolated and alienated, said UQAM's Line Chamberland, a professor in UQAM's sexology department.

"I think the chair will help us to better understand what's happening and what are the progresses that we've made -- and what are still the obstacles that are in front of us," she said.

The program, which will receive a $475,000 grant from the Quebec government, will benefit from the work of 20 researchers, coming from a handful of Quebec post-secondary institutions.

The project has also received private donations and there are plans to do corporate fundraising -- as well as asking for a federal contribution.

The new research chair will be in place until 2016.

The announcement comes a month after the suicide of Ottawa teenager Jamie Hubley, whose death prompted a national conversation on homophobic bullying.

Audit of Selected RCMP Operational Databases Section 37 of the Privacy Act Final Report 2011

2011-11-21T03:30:00.001-05:00

Audit of Selected RCMP Operational Databases

Section 37 of the Privacy Act

Final Report

2011

--------------------------------------------------------------------------------

Office of the Privacy Commissioner of Canada

112 Kent Street

Ottawa, Ontario

K1A 1H3

(613) 947-1698, 1-800-282-1376

Fax (613) 947-6850

TDD (613) 992-9190

Follow us on Twitter: @privacyprivee

Minister of Public Works and Government Services Canada, 2011

Cat. No. IP54-42/2011

ISBN 978-1-100-53857-0

--------------------------------------------------------------------------------

Table of Contents

Main Points

What we examined

Why this issue is important

What we found

Introduction

Background

Focus of the audit

Observations and Recommendations

Canadian Police Information Centre (CPIC)

Policies and procedures to protect the personal information accessed from CPIC are well established

A monitoring regime is in place to govern proper use

Police Reporting and Occurrence System (PROS)

Personal information is being retained longer than required

There is no active review of user accounts

Compliance with policies governing use of personal information is not systematically reviewed

Conclusion

About the Audit

Appendix: List of recommendations

--------------------------------------------------------------------------------

Main Points

What we examined

Canada’s law enforcement and criminal justice community relies upon an extensive network of database systems to help enforce laws, prevent and investigate crime, and maintain peace, order and security. As Canada’s national police service, the Royal Canadian Mounted Police (RCMP) has provided leadership in identifying needs and developing information systems and related services and making them available to the broader community.

Due to their importance and extensive use by the RCMP and other members of the larger law enforcement community, our audit focused on two of these systems: the Canadian Police Information Centre (CPIC) and the Police Reporting and Occurrence System (PROS). CPIC provides computerized storage and retrieval of information on crimes and criminals. PROS is the RCMP’s primary operational records management system.

The audit examined RCMP policies and procedures governing the access and use of CPIC, the policies and procedures to remove personal information contained in PROS that is no longer required, the RCMP’s review practices for compliance with the terms and conditions of use for both CPIC and PROS, and the management of user access to PROS.

Why this issue is important

Both CPIC and PROS contain extensive sensitive personal information that, if improperly used or disclosed, could have a significant impact on the rights and freedoms of individuals as well their reputations, employability and safety. A security breach may also compromise ongoing police investigations. The RCMP reports annually on security breaches related to the CPIC system. Many of these breaches have involved unauthorized access to and inappropriate use of personal information, with potentially significant privacy implications for the individual whose information was accessed.

The RCMP has also found that certain police agencies were disseminating the details of convictions, discharges or pardons to employers without the informed consent of the prospective employee, in contravention of CPIC policy.

Information in these databases is available to a wide range of users throughout the law enforcement community, both in the office and on the road. For example:

•CPIC data banks include, but are not limited to, information on: drivers' licences and vehicle plates; stolen vehicles and boats; warrants for arrest; missing persons and property; criminal history records; fingerprints; firearms registration and missing children. CPIC holds more than 10 million records and processed more than 200 million queries through 40,000 access points in 2009.

•PROS is a complete occurrence and records management system containing information on individuals who have come into contact with police, either as suspects, victims, witnesses or offenders, from initial occurrence to final disposition. PROS is used by the RCMP and 23 police partner agencies as their operational records management system. About 1.6 million occurrence files are processed per year.

The RCMP is responsible for the storage, retrieval and communication of shared operational police information to accredited criminal justice and other agencies involved with the detection, investigation and prevention of crime. It has an obligation to protect the privacy of individuals with respect to the personal information in its care.

What we found

Canadian Police Information Centre

The RCMP has developed and implemented policies and procedures to protect the personal information of Canadians being accessed and used in the CPIC database. Although privacy breaches have occurred, they are relatively rare and mechanisms are in place to investigate them and for action to be taken pursuant to those investigations. Many of the breaches involved users querying CPIC for personal reasons. Investigations that conclude there was a misuse of CPIC can result in a change in CPIC policy, a reprimand, suspension or dismissal.

The RCMP has established memoranda of understanding (MOUs) to govern the use of CPIC by agencies with limited law enforcement powers or roles complementary to law enforcement. However, the RCMP had yet to formally establish MOUs with approximately 25 percent of the police agencies that access CPIC.

Regular audits are performed to examine security screening of personnel, security at the CPIC terminal and/or interface site, and to ensure that policy and guidelines in the CPIC reference manual are adhered to by all agencies, including the RCMP. This monitoring regime is intended to ensure that all users are compliant with the requirements, including privacy principles, outlined in CPIC policy.

The RCMP was made aware of recent incidents where certain police agencies were disseminating criminal record information obtained from the CPIC system that was in direct contravention of CPIC policy, the Criminal Records Act, the Youth Criminal Justice Act and the Ministerial Directive on the Release of Criminal Records. A number of agencies were disseminating the details of convictions, discharges or pardons to employers without the informed consent of the prospective employee, and without confirming identity by means of a fingerprint comparison. In response to these disclosures, in November 2009, the RCMP issued a directive to agencies using CPIC noting that not all entities were complying with established policies and procedures regarding the use of the CPIC system. This was further strengthened in August 2010 when the Minister of Public Safety issued a directive clarifying the conditions under which criminal record information maintained in CPIC may be used and disclosed.

Police Reporting and Occurrence System

The RCMP has developed a comprehensive set of policies, standard operating procedures and agreements to ensure the use of PROS respects the principles set out in the Privacy Act. However, information purging, better access management, systematic reviews and more effective access to user activity logs are needed to ensure that PROS users are complying with RCMP policies and procedures as well as provincial and federal privacy legislation.

The RCMP has developed policies and standard operating procedures that set out how long personal information may be retained in PROS before it must be sequestered or deleted. However, we found that personal information is being retained longer than required, in contravention of the Privacy Act. Further, we found the RCMP has no process for the removal of access to records related to pardoned offences, or records related to wrongful convictions.

There is no active review of PROS user accounts. While the RCMP’s PROS policy requires that a user’s access be revoked when no longer required to perform job functions or after 14 months of inactivity, we found there were over 1,000 users with active accounts who had not accessed PROS for a period of 14 months or longer. We also found the process used to review user activity on PROS to be cumbersome, rendering reported incidents of misuse difficult to investigate.

The RCMP was unable to demonstrate that it systematically reviews PROS users to ensure that the personal information contained in PROS is used in accordance with the governing policies.

The RCMP has responded to our findings. Its responses follow our recommendations throughout this report.

Introduction

Background

1.The Royal Canadian Mounted Police (RCMP) is Canada’s national police service. It has approximately 30,000 members and employees whose mandate includes preventing and investigating crime; maintaining peace and order; enforcing laws; contributing to national security; and protecting state officials, visiting dignitaries and foreign missions.

2.The RCMP enforces federal laws across the country, and provincial/territorial laws in all provinces (except Ontario and Québec) and the territories, as well as nearly 200 municipalities, under the terms of policing agreements with those jurisdictions. The RCMP also provides investigative and operational support services to more than 500 Canadian law enforcement and criminal justice agencies.

3.CPIC and PROS are two of the databases the RCMP relies on in support of these services.

4.CPIC provides computerized storage and retrieval of information on crimes and criminals. CPIC is widely used by the law enforcement and criminal justice community. In 2009, CPIC held 10 million records and processed over 200 million query requests through 40,000 points of access. It allows more than 80,000 law enforcement officers to connect to the central computer system from more than 3,000 police departments, RCMP detachments and federal and provincial agencies across the country.

5.CPIC data banks include information on drivers' licences and vehicle plates, stolen vehicles and boats, warrants for arrest, missing persons and property, criminal history records, fingerprints, firearms registration, missing children and other subjects. CPIC has been described as the backbone of the criminal justice system. It provides the law enforcement community with access to a wide range of information on Canadians. The courts, parole boards and government departments and agencies such as Correctional Service Canada and the Canada Border Services Agency, also use CPIC for a variety of purposes.

6.PROS is the RCMP’s police records management system. It is a records management system containing information on individuals who have come into contact with police, either as a suspect, victim, witness or offender. PROS was introduced in 2003 to record all aspects of an investigation, from the moment an occurrence is reported to final disposition if the matter goes to court. PROS is used by both the RCMP and 23 police partner agencies as their operational records management system. Police partner agencies are smaller agencies (typically fewer than 300 officers) that do not have their own electronic records management system.

Exhibit 1: An example of how CPIC and PROS are used

An RCMP officer stops a car for speeding. The officer first runs a query in CPIC on the vehicle and the driver to see if the vehicle is stolen or if there are any outstanding warrants. The officer might then search PROS to see if the vehicle or person had been involved in other incidents. An occurrence record is created in PROS to record the event. The record would be updated later to include subsequent events—any charges laid and their disposition.

Focus of the audit

7.The audit objective was to determine whether the RCMP is adequately managing the personal information contained in the CPIC and the PROS databases.

8.We did not examine how the information in these databases influenced decisions as part of the day-to-day operations of the RCMP. Further, the audit did not look at the safeguards put in place by users of CPIC and PROS other than the RCMP. Information contained in CPIC is shared internationally via Interpol and with U.S. law enforcement agencies such as U.S. Customs and Border Protection. The audit did not examine the safeguards surrounding those sharing arrangements.

9.Additional details regarding the audit objective, scope, approach and criteria are available in the About the Audit section of this report.

Observations and Recommendations

Canadian Police Information Centre (CPIC)

10.The RCMP Commissioner is the overall governance authority for CPIC. The CPIC Advisory Committee provides advice and recommendations to the Commissioner for establishing the scope of the CPIC program and determining eligibility for participating agencies. The CPIC Advisory Committee is made up of representatives from major police departments as well as federal and provincial law enforcement representatives.

11.The RCMP is responsible for hosting the CPIC database, establishing controls and ensuring that monitoring is undertaken. Depending on the mandate of the agency accessing the CPIC database, the RCMP will set up an appropriate level of access based on a recommendation from the CPIC Advisory Committee. To assure compliance with the terms and conditions under which access was granted, the RCMP oversees an audit program to ensure reviews are undertaken on a regular basis. These audits examine, among other issues, whether the mandatory data that must be entered into the CPIC database is complete and whether there is adequate security around access to the system. However, the accuracy and timeliness of the information entered into CPIC is deemed to be the sole responsibility of the agency making the entry.

12.Given the sensitivity of the personal information contained in this database, we expected to find that the RCMP had policies and procedures in place to ensure the appropriate level of access is provided to CPIC users. To ensure there is no unauthorized disclosure of personal information, we expected to find that the RCMP had established and was verifying user compliance with the rules governing appropriate access and use of this database.

13.We examined whether the RCMP:

◦has policies and procedures in place to govern the access and use of the personal information contained CPIC; and

◦ensures that CPIC is monitored for user compliance with the terms and conditions of access and use.

Policies and procedures to protect the personal information accessed from CPIC are well established

14.When an agency requests access to the CPIC system, the request is reviewed by the CPIC Advisory Committee and, if approved, is forwarded to the RCMP so the access request can be processed. There are a number of different levels of access, which are granted based on the mandate of the requesting agency.

15.Once CPIC access has been approved for an agency, policy requires the RCMP to conduct a security evaluation to ensure that the technical infrastructure of the agency is adequate. We examined this evaluation process and found that many essential elements to ensure a secure environment were present in the requirements. These include physical security, authentication of users and requirements for secure network configurations. Although we were satisfied with the complete and robust nature of the security evaluation framework, the RCMP was unable to demonstrate that security evaluations had been completed for all agencies that had access to CPIC.

16.Due to the volume of data contained in CPIC and the large number of users, policies and procedures along with written agreements have been put in place to protect the privacy of individuals. MOUs containing privacy protection provisions establish the terms and conditions governing the use of CPIC by the member agencies. The RCMP has assembled policies and procedures into a single document - the CPIC Reference Manual (the Manual).

17.The Manual contains the policies and procedures used to govern the overall operations of CPIC and it addresses the fair information principles embodied in the Privacy Act. It includes the principles of data use, collection, accuracy, safeguarding, retention and disclosure.

18.The RCMP was made aware of recent incidents where certain police agencies were disseminating criminal record information obtained from the CPIC system in direct contravention of CPIC policy, the Criminal Records Act, the Youth Criminal Justice Act and the Ministerial Directive on the Release of Criminal Records. The RCMP informed us that a number of agencies were disseminating the details of convictions, discharges or pardons to employers without the informed consent of the prospective employee and without confirming identity by means of a fingerprint comparison.

19.In response to these disclosures the RCMP issued a directive in November 2009 to agencies using CPIC noting that not all entities were complying with established policies and procedures regarding the use of the CPIC system. Then, in August 2010, the Minister of Public Safety issued a directive clarifying the conditions under which criminal record information maintained in CPIC may be used and disclosed.

20.A written agreement such as an MOU governs compliance with CPIC policy. The RCMP has MOUs in place with member agencies to govern access to CPIC. Although the MOUs differ somewhat depending on which category the agency belongs to or, in some cases, the specific mandate of a given agency, all MOUs include procedures to be followed with respect to the handling of personal information contained in the database. Personnel clearance requirements for CPIC access, including criminal records checks and mandatory training, are defined. The MOUs set out the procedures to be followed when disseminating or sharing information from CPIC, and require the agency to report any and all known or suspected breaches. The MOUs state that the agency is expected to comply with applicable provincial and federal access-to-information and privacy laws. Any agency that is found not in compliance may have its CPIC privileges revoked.

21.We found the RCMP had established MOUs with agencies that have limited law enforcement powers, such as the Canada Border Services Agency, Canada Revenue Agency, Citizenship and Immigration Canada, Correctional Service Canada and the National Parole Board. As well, agencies with roles complementary to law enforcement, such as Passport Canada, Transport Canada and the Insurance Bureau of Canada had MOUs in place. We noted that the MOUs in place are renewed periodically, at which time the agency’s requirement for access is reassessed and either continued or adjusted.

22.However, we found the RCMP had yet to formally establish MOUs with approximately 25 percent of the police agencies that access CPIC. Previously, these agencies were not required to have MOUs as their access to CPIC was granted based on their core policing role. During the course of our audit, the RCMP was negotiating terms and conditions with police agencies that did not yet have MOUs in place.

23.Recommendation

CPIC should set a clear timeframe for establishing MOUs, which include privacy provisions with all entities.

RCMP response:

The CPI Centre is currently and actively in negotiation with the final 25 percent of the agencies that have yet to sign an MOU as directed by the Deputy Commissioner, Policing Support Services in November 2010. As expected, a template approach to MOUs does not necessarily apply to all cases and differences are being discussed in order to have MOUs in place by March 31, 2012.

24.In order for users of an approved agency to be granted access to CPIC, CPIC policy requires that a user first receive appropriate training. We found that the training program contains modules that instruct users on their obligations toward privacy and what constitutes an acceptable use of CPIC. As well, users are informed that CPIC transactions must be for legitimate use and must not be used for personal reasons and that reported violations of CPIC policy and procedures will be investigated. Consequences or penalties resulting from investigations range from requirements for reinforcement training to fines, suspension and termination of employment.

25.We examined the controls in place to ensure that users are authorized to access CPIC. We found that CPIC has an ongoing IT risk mitigation strategy. This strategy includes a requirement that member agencies implement enhanced security by requiring CPIC users to use both a physical token and a password to log on to the CPIC system. This is referred to as strong identification and authentication.

26.However, we found that 33 percent of CPIC member agencies have not yet implemented this user authentication procedure due to technical constraints in their infrastructures. We noted that the RCMP had established a target date of April 2009 for these agencies to deploy the required security measures. We found that the RCMP has been monitoring the progress of delinquent agencies to implement the required level of security.

A monitoring regime is in place to govern proper use

27.The information contained within CPIC is used by police services and other agencies for investigation and enforcement actions that impact thousands of Canadians every day. For this reason, it is important to ensure that CPIC standards and practices are followed to assure the information contained therein is valid and accurate, and that information-handling procedures comply with applicable privacy legislation.

28.The maintenance of accurate up-to-date information is the responsibility of the CPIC agency contributing such information. We found that the RCMP sends a validation report to each contributing agency every month to review the integrity of the data. Agencies are required to verify the validity and accuracy of their entries and to make any necessary adjustments.

29.We found that audits of CPIC member agencies are conducted by the RCMP (except in Ontario and Québec where the audits are performed by the Ministry of Community Safety and Correctional Services and the Sûreté du Québec, respectively) to ensure compliance with the validation process and to determine if an agency is compliant with the privacy principles outlined in CPIC policy. Standard procedures, tools and reporting are used. CPIC policy requires that an audit to confirm compliance with policy and procedures be completed for each agency at least once every four years. Any new agency is audited within one year of being granted access to CPIC. In the fiscal year 2009-10, 477 CPIC audits were conducted.

30.The auditors look for the quality and integrity of records entered in the CPIC system and assess the system knowledge and proficiency of the agency personnel. Furthermore, auditors examine security screening of personnel, security at the CPIC terminal and/or interface site, and ensure that policy and guidelines in the CPIC reference manual are adhered to by all agencies.

31.Upon completion of the audit, the auditors compile and distribute a summary report to the CPIC Advisory Committee outlining their findings. A report of the number of audits conducted by region is published in the CPIC annual report. A follow-up verification is conducted within a few months of the completion of the audit to ensure that deficiencies have been addressed.

32.We also found that the RCMP tracks reported CPIC security breaches. The RCMP monitors investigations of breaches of CPIC security reported by police departments and individuals. We found that reported security breaches are relatively rare and that these incidents are investigated. Audit activities have been responsible for detecting approximately 10 percent of CPIC breaches, while remaining breaches have been identified through ongoing reviews or complaints. There are more than 200 million annual CPIC queries and, in 2009, there were 280 reported breaches. Of those, investigations determined that 24 were founded and 86 were unfounded, while 170 remained under investigation. Many of the breaches involved querying CPIC for personal reasons. Security breaches can result in a change in CPIC policy, a reprimand, fines, suspension or dismissal of the employee involved.

Police Reporting and Occurrence System (PROS)

33.PROS is a police records database used by the RCMP and 23 police partner agencies as their operational records management system. Partners are smaller agencies (fewer than 300 officers) that do not have their own electronic records management system. The RCMP provides access to the PROS database and houses the data. Approximately 1.6 million occurrence files per year are processed using PROS.

34.PROS was introduced in the fall of 2003 and was in full production nationally by the summer of 2005. PROS is used to record all aspects of an investigation, from the moment an occurrence is reported to final disposition if the matter goes to court. It contains information on individuals who have come into contact with police, either as suspects, victims, witnesses or offenders.

35.Given the sensitivity of the personal information contained in this database, we expected to find that the RCMP had policies and procedures in place to ensure that the personal information contained in PROS is handled in accordance with legislative requirements for retention and disposal, and is adequately protected from unauthorized access. Retention policies and procedures are drawn from governing legislation such as the Criminal Records Act and the Youth Criminal Justice Act.

36.We examined whether the RCMP:

◦established policies and procedures to remove personal information contained in PROS that is no longer required;

◦is adequately managing access to PROS; and

◦ensures that the use of PROS is monitored for compliance with RCMP policies and procedures to protect personal information.

Personal information is being retained longer than required

37.We found that the RCMP has developed policies and standard operating procedures for PROS that set out how long information may be retained before the information must be sequestered or deleted in accordance with governing legislation.

38.There are legislative requirements to sequester certain information when the retention period for that information has been met. Sequestering involves placing records into a special repository that has highly restricted access. Types of information that are sequestered include details relating to absolute or conditional discharges and pardons.

39.Legislation requires that all records created in PROS be purged when the retention period for each category of information has expired. Prior to deletion, records are evaluated to determine if they should be archived with Library and Archives Canada.

40.We examined the procedures governing the retention of personal information in PROS and found that the database was designed to automatically purge occurrences once they reach their disposition date unless they have archival value. We found the RCMP had disabled this function. As a result, personal information of an individual whose data should have been purged can still be readily accessed from the PROS database.

41.The RCMP informed us this was done so that statistical information can be extracted from PROS. As a result, occurrences that should be purged because they have reached the end of their retention period are not removed.

42.Recommendation

The RCMP should purge the required data from PROS so that it is in compliance with the Privacy Act.

RCMP response:

The RCMP agrees and will take immediate steps to rectify this situation.

43.Access to pardoned offences is not removed as required. While examining purging procedures mandated by the Criminal Records Act and Youth Criminal Justice Act, we found that the RCMP has not yet implemented a process to remove records related to pardoned offences from the PROS database.

44.When a pardon is issued, the records relating to that offence should no longer be accessible from PROS. We found that if the name of an individual with a pardoned offence were to be queried on PROS, the details of the pardoned offence may appear.

45.It is important to Canadians who have received a pardon that the information not be inappropriately disclosed. Doing so could hinder their opportunities to get a job, travel, study or volunteer. The Canadian Human Rights Act prohibits discrimination based on a pardoned record.

Exhibit 2: Disclosure of Pardoned and Discharged Offences

There are exceptions where the existence of a pardoned or discharged offence may be disclosed. These exceptions are defined in the Criminal Records Act. The name, date of birth and last known address of the subject of a pardoned or discharged offence can be disclosed to a police force to aid in an investigation if a fingerprint matching that of the subject is found at the scene of a crime. This same information may also be released to a police force to identify a deceased person or person suffering from amnesia. The existence of a conviction for a sexually based offence may be disclosed in the context of a Vulnerable Sector Search. This type of search may be requested by an authorized representative of an organization responsible for the well-being of vulnerable persons to verify an applicant who has applied for a paid or volunteer position, and who has consented in writing to the verification and disclosure.

46.No procedure to remove wrongful convictions. While there have been no known cases of wrongful convictions that fall under the control of the RCMP since PROS went into full production in 2005, the RCMP does not have a procedure to remove records related to wrongful convictions. Although standard operating procedures exist on sequestering information other than pardons as well as processing conditional and absolute discharges, we found that the RCMP does not have a process in place to remove wrongful conviction records.

47.As with pardons, the removal of records related to the wrongfully convicted is important to Canadians so their opportunities to get a job, travel, study or volunteer are not diminished.

48.Recommendation

To mitigate the risk of an unlawful or inappropriate disclosure, the RCMP should implement processes to remove access to the required records related to pardoned offences and wrongful convictions from the PROS database.

RCMP response:

The RCMP will immediately implement a process and the necessary technology solution to enable the sequestering of information related to individuals who have been granted a pardon. The RCMP will also amend the PROS standard operating procedure on Sequestering Information Other Than Pardons to include instructions for the processing of records of wrongful conviction.

There is no active review of user accounts

49.Access controls are important tools that determine who has access to what data and what actions they can perform. These actions include who may create, read, update or delete data records. We examined the access controls the RCMP has put in place to ensure the personal information contained within PROS is adequately protected.

50.We found that the RCMP has role-based access controls in place for the PROS database. Access levels are based on an individual’s current job requirements. However, we also found that, as users of PROS move between jobs, their access rights are not always updated or disabled in a timely fashion.

51.The RCMP’s PROS policy requires that a user’s access must be revoked when no longer required or after 14 months of inactivity. However, during our examination we noted there were over 1,000 users with active accounts who had not accessed PROS in 14 months or longer. The RCMP was unable to readily produce an up-to-date and accurate report of users and the status of their accounts.

52.Had the RCMP performed regular reviews of user activity, these accounts would have been disabled. There is a risk when users who are no longer authorized to access PROS retain their access. Without regular access reviews, unauthorized access may not be discovered for a long period of time.

53.Recommendation

The RCMP should regularly review the status of PROS user accounts and disable access when no longer required to perform job functions.

RCMP response:

The RCMP will take immediate steps to rectify this situation and will also examine its current training practice for employees who carry out the review of PROS user accounts.

54.The ability to review user actions is limited. We examined the transaction-logging capabilities of the PROS system to see if the RCMP could review reported incidents of misuse by a user. We found that PROS is able to track a user’s actions in audit logs. The information recorded includes details on which records were viewed and any modifications made.

55.The RCMP informed us that if misuse by a user is suspected, the level of effort involved to consolidate and review the audit logs limits the ability to investigate. While an automated audit log review tool is available within PROS, it has not been implemented. Without this function, extracting details of a user’s activity is highly labour intensive. As a result, it is difficult for the RCMP to investigate reported misuse of the system.

56.Recommendation

To aid in the investigation of unauthorized access of personal information within PROS, the RCMP should enable the audit log review tool.

RCMP response:

The RCMP will proceed immediately to enable the Audit Log Viewer tool as an efficient method to consolidate and review the audit logs.

Compliance with policies governing use of personal information is not systematically reviewed

57.In addition to the RCMP, there are 23 police partner agencies that rely on the use of the PROS system to manage their operational records. We examined the RCMP’s policies and procedures governing the use of PROS, the MOUs between the RCMP and the police partner agencies and how the RCMP ensures these agencies are in compliance with the terms and conditions of these agreements.

58.We found that the RCMP has established policies and procedures to ensure that its use of PROS respects the principles for use of personal information set out in the Privacy Act. The RCMP sets out conditions of use in MOUs with all police partner agencies to ensure that the system is used in accordance with these policies and procedures.

59.The MOUs include terms on the acceptable use and sharing of the information contained in PROS, security provisions, training requirements, breach-reporting procedures and protocols to ensure the information contained in PROS is used for legitimate law enforcement purposes.

60.The MOUs remain in effect for five years from the date of signing, unless terminated. Reasons for termination include unauthorized use and disclosure, any breach of security policies or regulations or breach of RCMP PROS policy.

61.When we reviewed the MOUs, we found there are provisions that allow the RCMP to conduct audits of the agency to ensure compliance with the governing terms and conditions. The RCMP has the right to monitor the use of its networks including use by specific employees, and to periodically conduct security reviews through on-site visits to police partner agencies. Audits of the use of PROS are important as they provide the RCMP with assurances that users are complying with procedures governing the use of the personal information contained in PROS.

62.The RCMP was unable to demonstrate that it systematically undertakes reviews of police partner agencies to ensure that personal information contained in PROS is used in accordance with the governing terms and conditions. A limited number of audits have been undertaken. For example, all police partner agencies in Alberta have been audited, whereas in Nova Scotia only a limited number were audited, and none at all were audited in Prince Edward Island. Further, the RCMP was unable to demonstrate that it systematically undertakes such reviews of its own users.

63.Recommendation

The RCMP should adopt a consistent and regular review process that provides assurances that all users are complying with the policies and procedures governing the use of the personal information contained in PROS.

RCMP response:

The RCMP will immediately review its existing audit process, and make amendments where necessary, to ensure that both internal and external users of PROS are subject to reviews.

Conclusion

64.The RCMP has developed and implemented policies and procedures to protect the personal information of Canadians accessed from the CPIC database. Although some privacy breaches do occur, they are relatively rare and mechanisms are in place to investigate them, and action is taken upon the results of those investigations. The RCMP had established MOUs governing the use of CPIC by agencies that have limited law enforcement powers or roles complementary to law enforcement. However, the RCMP had yet to formally establish MOUs with approximately 25 percent of the police agencies that access CPIC.

65.Regular audits are performed that examine security screening of personnel, security at the CPIC terminal and/or interface site and to ensure that policy and guidelines in the CPIC reference manual are adhered to by all agencies, including the RCMP. This monitoring regime ensures all users are compliant with the privacy principles outlined in CPIC policy.

66.The RCMP has developed policies and standard operating procedures that set out how long information may be retained before the information must be sequestered or deleted from PROS. However, personal information is being retained longer than required, in contravention of the Privacy Act. Further, the RCMP has no process for the removal of access to records related to pardoned offences or records related to wrongful convictions. The removal of access to records relating to pardons and the wrongfully convicted is important to Canadians so they will have the same opportunities to get a job, travel, study or volunteer as any other Canadian.

67.There is no active review of PROS user accounts. While the RCMP’s PROS policy requires that a user’s access be revoked when no longer required to perform their job functions or after a period of inactivity, we noted there were over 1,000 users who had not accessed PROS in 14 months or longer whose accounts were still active. Further, the ability to review user activity on PROS is cumbersome and hinders effective investigation of reported misuse.

68.The RCMP was unable to demonstrate that it systematically undertakes reviews of PROS users to ensure personal information contained in PROS is used in accordance with the governing policies.

69.The RCMP is adequately managing the personal information contained in the CPIC. However, the RCMP should set a clear timeframe for establishing MOUs that include privacy provisions for all entities.

70.The RCMP needs to improve how the personal information contained in the PROS database is managed. The RCMP needs to purge data from PROS, implement processes to remove access to records related to pardoned offences and wrongful convictions, regularly review the status of PROS user accounts and disable access when no longer required to perform job functions, enable the PROS audit log review tool and adopt a consistent and regular review process that provides assurances that all users are complying with the policies and procedures governing the use of the personal information contained in PROS.

About the Audit

Authority

Section 37 of the Privacy Act empowers the Privacy Commissioner to examine the personal information-handling practices of federal government institutions.

Objective

The audit objective was to determine whether the RCMP is adequately managing the personal information contained in the CPIC and the PROS databases.

Criteria

Audit criteria are derived from the Privacy Act. Supporting information technology (IT) controls were assessed using selected criteria from the Control Objectives for Information and Related Technology (CobIT), an industry-standard set of best practices for IT management, and relevant Government of Canada policies and standards.

We expected to find that the RCMP:

•had established policies and procedures to govern the access and use of CPIC;

•ensures that use of CPIC is monitored for compliance with the terms and conditions of use;

•had established policies and procedures to remove personal information contained in PROS that is no longer required;

•is adequately managing access to PROS; and

•ensures that the use of PROS is monitored for compliance with RCMP policies and procedures to protect personal information.

Scope and Approach

We examined the policies, systems, administrative controls and safeguards implemented by the RCMP for CPIC and PROS governing the use, disclosure, retention and disposal/destruction of personal information under the Privacy Act.

Audit evidence was obtained by examining the various standard operating procedures, agreements, process flow documents, record retention schedules, program documentation, audit reports, files and application controls. We also reviewed the user access controls and system architecture of both CPIC and PROS, and requested briefings, demonstrations and walk-throughs in support of our audit examination work.

We did not examine how the information in these databases influenced decisions as part of the day-to-day operations of the RCMP. Further, the audit did not look at the safeguards put in place by users of CPIC and PROS other than the RCMP.

The audit work was substantially completed on March 31, 2011.

Standards

The audit was conducted in accordance with the legislative mandate, policies and practices of the Office of the Privacy Commissioner, and followed the spirit of the audit standards recommended by the Canadian Institute of Chartered Accountants.

Audit Team

Director General: Steven Morgan

Sylvie Gallo Daccash

Anne Overton

Bill Wilson

Appendix: List of Recommendations

1.Recommendation

The CPI Centre should set a clear timeframe for establishing MOUs, which include privacy provisions with all entities.

RCMP response:

The CPI Centre is currently and actively in negotiation with the final 25 percent of the agencies that have yet to sign an MOU as directed by the Deputy Commissioner, Policing Support Services in November 2010. As expected, a template approach to MOUs does not necessarily apply to all cases and differences are being discussed in order to have MOUs in place by March 31, 2012

2.Recommendation

The RCMP should purge the required data from PROS so that it is in compliance with the Privacy Act.

RCMP response:

The RCMP agrees and will take immediate steps to rectify this situation.

3.Recommendation

To mitigate the risk of an unlawful or inappropriate disclosure, the RCMP should implement processes to remove access to the required records related to pardoned offences and wrongful convictions from the PROS database.

RCMP response:

The RCMP will immediately implement a process and the necessary technology solution to enable the sequestering of information related to individuals who have been granted a pardon. The RCMP will also amend the PROS standard operating procedure on Sequestering Information Other Than Pardons to include instructions for the processing of records of wrongful conviction.

4.Recommendation

The RCMP should regularly review the status of PROS user accounts and disable access when no longer required to perform job functions.

RCMP response:

The RCMP will take immediate steps to rectify this situation and will also examine its current training practice for employees who carry out the review of PROS user accounts.

5.Recommendation

To aid in the investigation of unauthorized access of personal information within PROS, the RCMP should enable the audit log review tool.

RCMP response:

The RCMP will proceed immediately to enable the Audit Log Viewer tool as an efficient method to consolidate and review the audit logs.

6.Recommendation

The RCMP should adopt a consistent and regular review process that provides assurances that all users are complying with the policies and procedures governing the use of the personal information contained in PROS.

RCMP response:

The RCMP will immediately review its existing audit process, and make amendments where necessary, to ensure that both internal and external users of PROS are subject to reviews.

Michael Moldaver Justice Moldaver biography & . Justice Andromache Karakatsanis biography

2011-11-19T03:13:00.001-05:00

Andromache Karakatsanis is a Canadian jurist. She was nominated to the Supreme Court of Canada by Stephen Harper in October 2011. She is the first Greek-Canadian judge on the Court.

Contents

1 Early life

2 Career

3 Personal life

4 References

5 External links

Early lifeJustice Karakatsanis was born in Canada to Greek parents, and raised with an emphasis on her Greek heritage.[1] She grew up near the Don Mills Rd. and Lawrence Ave. area, where her parents owned a restaurant called Top of the Mall, where she got her start as a waitress serving souvlaki.[2]

Karakatsanis attended Victoria College at the University of Toronto, graduating with a B.A. in English literature in 1977.[3] She then received her legal training at York University's Osgoode Hall Law School, receiving her LL.B. in 1980. She was called to the Ontario bar in 1982.[4]

CareerAfter her call to the bar, Karakatsanis clerked for the judges of the Ontario Court of Appeal from 1982-1983, after which she entered private practice. In 1987, Karakatsanis was appointed to the Liquor Licensing Board of Ontario as Vice-Chair, becoming Chair and CEO the following year. She held that position until her 1995 appointment as Assistant Deputy Attorney General and Secretary of the Ontario Native Affairs Secretariat.[4][5] Karakatsanis was named Deputy Attorney General for the province of Ontario in 1997, and she became Secretary of the Cabinet and Clerk of the Executive Council of the Government of Ontario in 2000.[4]

Justice Karakatsanis's judicial career began when she was appointed to the Ontario Superior Court of Justice in December 2002, where she developed an expertise in administrative law. She was subsequently elevated to the Ontario Court of Appeal on March 26, 2010, where she served for 19 months prior to her appointment to the Supreme Court.[5]

Personal lifeKarakatsanis is fluent in English, French and Greek. She is married to former lawyer Tom Karvanis, who is afflicted with multiple sclerosis and confined to a wheelchair, and has two children: Paul Karvanis, who is a lawyer at Stikeman Elliott, and Rhea Karvanis.[5][2]

[edit] References1.^ Atara Beck (10 May 2011). "Great Canadian women have diverse backgrounds but much in common". Jewish Tribune. http://www.jewishtribune.ca/TribuneV2/index.php?option=com_content&task=view&id=4315&Itemid=53. Retrieved 17 October 2011.

2.^ a b Laura Stone (18 October 2011). "Karakatsanis: From slinging souvlaki to the highest court". Hamilton Spectator. http://www.thespec.com/news/canada/article/610975--karakatsanis-from-slinging-souvlaki-to-the-highest-court. Retrieved 19 October 2011.

3.^ http://www.fja.gc.ca/features-en_vedette/nomination2/curriculum_vitae-eng.html

4.^ a b c Atara Beck (26 March 2010). "Ontario Judicial Appointment Announced". Department of Justice. http://www.justice.gc.ca/eng/news-nouv/ja-nj/2010/doc_32492.html. Retrieved 17 October 2011.

5.^ a b c "Brief Biographical Note of Justice Andromache Karakatsanis". Court of Appeal for Ontario. http://www.ontariocourts.on.ca/coa/en/judges/karakatsanis.htm. Retrieved 16 October 2011.

Michael Moldaver is a Canadian judge. Justice Moldaver was appointed to the Supreme Court of Ontario in 1990, and subsequently to the Ontario Court of Appeal in 1995. Justice Moldaver completed his legal training at the University of Toronto Faculty of Law in 1971, graduating as a Gold Medallist, and was called to the Bar of Ontario in 1973.[1]

On October 17, 2011, he was nominated by Stephen Harper, along with fellow Ontario Court of Appeal judge Andromache Karakatsanis to the Supreme Court of Canada.[2][3][4][5]

[edit] References1.^ "Brief Biographical Note of Justice Michael J. Moldaver". Court of Appeal for Ontario. http://www.ontariocourts.on.ca/coa/en/judges/moldaver.htm. Retrieved 16 October 2011.

2.^ Kirk Makin (17 October 2011). "Harper picks two Ontario appeal judges to fill Supreme Court vacancies". The Globe and Mail. http://www.theglobeandmail.com/news/politics/harper-picks-two-ontario-appeal-judges-to-fill-supreme-court-vacancies/article2204246/. Retrieved 17 October 2011.

3.^ Meagan Fitzpatrick (17 October 2011). "Supreme Court judge nominees named by Harper". CBC. http://www.cbc.ca/news/politics/story/2011/10/17/pol-scoc-appointments.html. Retrieved 17 October 2011.

4.^ Robert Fife (16 October 2011). "Prime minister to announce 2 Supreme Court nominees". CTV News. http://www.ctv.ca/CTVNews/TopStories/20111016/harper-to-nominate-two-supreme-court-judges-111016/. Retrieved 16 October 2011.

5.^ Kirk Makin (16 October 2011). "Harper to appoint Ontario judges Karakatsanis and Moldaver to Supreme Court: CTV". The Globe and Mail. http://www.theglobeandmail.com/news/politics/harper-to-appoint-ontario-judges-karakatsanis-and-moldaver-to-supreme-court-ctv/article2202999/. Retrieved 16 October 2011.

External linksSupreme Court biography

Court of Appeal biography

A four-year legal battle over compensation for Canadian veterans is playing out in a Halifax courtroom.

2011-11-17T03:16:00.001-05:00

A four-year legal battle over compensation for Canadian veterans is playing out in a Halifax courtroom.

More than a dozen veterans gathered Wednesday in Federal Court to show their support for a class-action lawsuit against the federal government.

'The most severely disabled pay the highest price.'

— Dennis Manuge, lead plaintiffThe suit revolves around long-term disability benefits paid out to retired members of the Armed Forces under their military insurance plan.

The veterans involved in the suit were injured while serving their country. They claim the government is using the insurance plan to claw back pension money meant for pain and suffering because it's deemed income.

Dennis Manuge, the lead plaintiff, is a former mechanic who was injured in 2003. He says he lost about $10,000 between then and 2005.

However, he said, others are losing up to $3,500 a month.

"It's never been about the money or Dennis Manuge," he told reporters outside court.

"It's been about the people you see here and the gentleman in the wheelchair and those folks that are a lot worse off.… The most severely disabled pay the highest price."

Manuge said the amount owed to all veterans runs as high as $500 million.

The class-action suit was certified in 2008, a year after Manuge launched his case.

Michael Watson, of East Hants, had to leave the military after developing ALS. He uses a wheelchair and has to be fed through a tube.

He said the government clawback is costing him about $1,800 a month.

"I'm capable of surviving, but I'd be getting more money for my family to be able to just do more with my family because money for me right now, what am I going to do with it?" Watson said.

Lori Rasmussen, a lawyer representing the federal government, said the long-term disability benefits are only meant as a top-up to guarantee members receive 75 per cent of the income they were making before they were released from the military.

"Income is money that you receive. I mean, there are lots of definitions of income and they've provided some dictionary definitions and we'll be providing some dictionary definitions," she said.

"Our argument is that the definition of the word income is broad enough to include money that you receive such as a Pension Act benefit, and we want to make it clear that it's not a clawback."

The hearing will continue in Halifax on Thursday.

The geek with a cynical view

A medication commonly prescribed to treat enlarged prostates may have an even more important use: slowing the growth of early stage prostate cancer.

Goodman Cancer Research Centre. at .mcgill university

Support Princess Margaret Hospital Canada .

University of Alberta DCA Research

National Non-Smoking Week (NNSW) Canadian Council for Tobacco Control

Your leader wants you to butt out.

Canada's justice minister says all same-sex marriages performed in Canada are legally recognized and the government is working to ensure foreign couples married here can divorce if they chose to.

Eight former CWB directors are asking the Federal Court of Canada to quash the Conservative government's appeal of Justice Douglas Campbell's declaration.

The Ontario Court of Appeal has sounded a warning to insurers who deny benefits under a policy despite the medical evidence by awarding damages for the loss of the policyholder’s peace of mind.

SUPREME COURT OF CANADA Citation: Reference re Securities Act, 2011 SCC 66 Date: 20111222 Docket: 33718

Tobacco companies at the centre of a $50-billion lawsuit by the Ontario government had their hopes dashed on Friday when a judge dismissed their bid to have the case dropped.

Toothbrush lawsuit ends

Saliha Alnoor, V Colgate-Palmolive. B.C.

The Harper government spent hundreds of thousands of dollars in its unsuccessful legal battle against Insite, Vancouver's supervised injection site, according to newly released documents.

More extreme weather heading toward Sweden: Share3 A new low pressure area with strong winds and precipitation is on the way toward Sweden. It will pass over central Sweden

happy new year!

Happy holidays!

HIV/AIDS Vaccine Developed at The University of Western Ontario Proceeding to Human Clinical Trials Sumagen Canada, the vaccine (SAV001)

National securities regulator decision coming: Supreme Court ruling will not please all provinces.

Liberal Leader Bob Rae is accusing Stephen Harper of showing a "lack of respect" toward the troubled First Nations community of Attawapiskat.

New public health campus coming to downtown Montreal : will soon be the site of the largest public health school in North America.

Public Safety Minister Vic Toews acted unreasonably when he refused to allow two Canadians imprisoned in the United States to serve out their sentences in Canada, a Federal Court judge has ruled.

A class-action lawsuit by travellers who paid extra for seats on Air Canada flights because they were obese or disabled has received permission to take off from a Quebec judge.

Evidence admitted despite Charter violations: G20 Geek,”

Former Parti Québécois cabinet minister Daniel Paille has been elected the new leader of the Bloc Québécois.

Sweden was one of four European Union member states to scupper hopes of a 27-country agreement to help strengthen the euro, but nevertheless plans to participate in the creation of a European bailout fund.

Federal Court of Canada Docket: T-1057-11 & Docket: T-1735-11 Citation : 2011 FC 1432

Privacy and Online Behavioural Advertising the Office of the Privacy Commissioner of Canada,

Privacy and Online Behavioural Advertising

PIPEDA and Personal Information

PIPEDA and User Choice

Restrictions

Tracking of Children

Addressing the Challenges

Related OPC Documents

Canada's spy agency CSIS, was so reliant on information obtained through torture that it suggested the whole security certificate regime, used to control suspected terrorists in the country, would fall apart if they couldn't use it.

Program cost increases and further delays & Concerns over performance and safety of the F35.

Abousfian Abdelrazik has been removed from a UN Security Council terrorist blacklist. : cleared by CSIS and the RCMP of terrorist allegations.

Denmark is a big shame. Please share this on, this is serious cruelty.!

Sunnybrook Health Sciences Centre Canada.

Recent comments by senior members of Stephen Harper's government reveal a troubling ideological antipathy towards public broadcasting.

UQAM creates a new research chair on homophobia , the first permanent Chair on this issue in North America. The launch took place today

The Universite du Quebec a Montreal's sexology department will study the consequences of homophobia on mental, physical and sexual health.

Audit of Selected RCMP Operational Databases Section 37 of the Privacy Act Final Report 2011

Michael Moldaver Justice Moldaver biography & . Justice Andromache Karakatsanis biography

A four-year legal battle over compensation for Canadian veterans is playing out in a Halifax courtroom.