Obergefell v. Hodges’ invocation of liberty and due process, instead of substantive equality

The release today of the United States Supreme Court’s decision in Obergefell v. Hodges will today be debated by popular pundits, and in the days and years to come, studied by legal scholars and school children.  Beyond the debate among American conservatives and liberals, the decision of a sharply divided court continues a philosophical debate as old as the American Constitution itself.  What is “liberty” and can the state deprive its citizens of it without due process? The dissenting opinion warned us that the interpretation of liberty in the Due Process provisions of the U.S. 14th Amendment to encompass the right to…

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B.C. Minister’s reason for revoking TWU’s J.D. hurts the legal academy

Virk revokes ministerial approval of twu’s j.d. program Opponents of Trinity Western University (TWU) in its bid to open a law school celebrated earlier this month when, on December 11, 2014, the British Columbia Minister of Advanced Education, Amrik Virk, revoked Trinity Western University’s authorization to grant undergraduate law degrees (J.D.).  He explained his decision as follows: Based on the current situation, I have decided to revoke my approval of the proposed law school at Trinity Western University. This means the university cannot enroll any students in its proposed program. The current uncertainty over the status of the regulatory body approval means…

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Judges judging judges: The Douglas Inquiry exposed its flawed process

My recent post on the conclusion of the Canadian Judicial Council (CJC) Inquiry into the Douglas Inquiry urged for a better and clearer articulation of the reasons for removal of federally-appointed judges from office.   After realizing late that a procedure in the hands of her judicial colleagues was in fact a runaway train, the former Associate Chief Justice of…

A Self-Harming of Judicial Independence: The Legacy of the Inquiry into Lori Douglas

The Canadian Judicial Council Inquiry Committee regarding the Honourable Lori Douglas is now over.  The embattled Manitoba judge, whose late husband allegedly posted nude photos of her online and encouraged his former client to sleep with her, decided to settle for early retirement after the committee’s November 4, 2014, Ruling on Preliminary Motions, in which the tribunal insisted on viewing the nude photographs of her.  Douglas did obtain a temporary stay of the ruling from the Federal Court, but this step effectively bought her time to bring a halt to the proceedings. Despite the stay and the settlement of the complaint, the CJC’s ruling has damaged…

Let’s be honest about the SCC’s new ‘fair opportunity’ doctrine in contract law

On November 13, the Supreme Court in Bhasin v. Hrynew, 2014 SCC 71 (CanLII) changed the law of contract in Canada by imposing duties of good faith and honesty on all contractual relations.  Until now, the duties have been applied to agreements in situations of power imbalance, notably insurance, employment and franchises. The plaintiff, Mr. Bhasin, was a dealer in education savings plans, a type of consumer investment, offered by the corporate defendant. At the end of the three-year contract, the corporate defendant decided to invoke a notice provision blocking the automatic renewal of the contract.  The reason for its…

Diversity Awareness and Cultural Competency as Core Skills for Canadian Lawyers

Later today, I will have the privilege of participating in a working group of the Chief Justice of Ontario’s Advisory Committee on Professionalism tasked with modernizing the basic principles of professionalism for lawyers.  High in priority is the importance of integrating equity, diversity and cultural competency into the package that lawyers must offer the public. Historically an afterthought The equity and diversity file has historically been an afterthought, tucked into the discussion after other ‘Wonder Bread’ aspects of professional merit are given full airing.  This has been a fault of those leading the discussion.  It is time to turn the agenda…

Stop letting the TWU controversy make fools of the Canadian bar

It came to my notice that my last post on the British Columbia Law Society’s handling of the accreditation of Trinity Western Law School may have appeared at odds with a prior entry encouraging a negotiated solution.  In the September 26 post, “B.C. Law Society abdicates self-governance in favour of non-governance,” I stated that the decision to refer the decision to a referendum before the expiry of a statutory 12-month period was an abdication of the Law Society’s duty to govern the affairs of the legal profession.  Further, the referendum option can only be invoked by a petition from the membership, not the governing…

Lawyers’ Technological Literacy, or Lawyers’ Literacy and Technology

In her September 30 column in Slaw.ca, Tackling Technology, Prof. Amy Salyzyn argues lawyers’ ability to use and manage information technology is now an element of professional competence. Technology is now a driver of client service, effective lawyering and access to justice.  The flip side of this argument is that screen-based technology is an inhibitor of contextual literacy.  Contextual literacy is a core legal skill, without which our services are worthless to clients.  Technological literacy will probably look after itself, with the passing of generations.  Loss of contextual literacy, however, will be a more serious problem from the perspective of…

B.C. Law Society abdicates self-governance in favour of non-governance

This afternoon, the Law Society of British Columbia voted 20-10 to hold a referendum on the issue of accreditation of the Trinity Western University.  This came after a vote of 9-21 against deciding to overturn its previous decision in April to grant accreditation.* That first motion arose from a non-binding resolution of a special general meeting of the entire B.C. Bar, held in June.  A third motion, to defer any decision, was obviated by the decision to hold a referendum. In deciding to hold a referendum, the B.C. benchers have abdicated their responsibility as the directors of a self-governing profession.  Either they…

End the Trinity Western Law School Deadlock without Litigation

On June 10, rank and file members of the Law Society of British Columbia voted to require their elected Benchers to reverse course on Trinity Western University’s bid for a new faith-based law school.  According to s. 13 of the B.C. Legal Profession Act, the vote is not binding on Benchers, at least for a grace period of 12 months.  If the Benchers do not implement the resolution within 12 months, they face the prospect of a referendum to be conducted in accordance with poll rules identical to that of a Bencher election, under art. 1-37 of the Law Society Rules (p.…

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The Role of a Judiciary in a Coalescing Democracy

Il n’y a, en général, que les conceptions simples qui s’emparent de l’esprit du peuple. Une idée fausse, mais claire et précise, aura toujours plus de puissance dans le monde qu’une idée vraie, mais complexe.  ~  Alexis de Tocqueville, De la démocratie en Amérique De Tocqueville was likely not the first to say it, but his…

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A day in court is a day in court, no matter your ability to pay for Access to Justice

The “blawgosphere” seems to have lit up this week with the release of Morland-Jones v. Taerk, a dispute between neighbours in the affluent Toronto, Canada, neighbourhood of Forest Hill.  Essentially, the Ontario Superior Court ruled that the case, an interlocutory injunction matter involving multiple allegations of trespass and invasion of privacy, should be dismissed because “there is no…