Panama Papers and Breaking Bad: Why attack lawyers who help offenders avoid charges, and praise those who help the guilty go free?

As worldwide governmental agencies pore over the financial and corporate information leaked from the Panamanian law firm, Mossack Fonseca, conversations have turned from the tax-dodges of the rich and famous to the ethics of lawyer participation in unlawful behaviour of all kinds.  Previously, in the popular TV series, Breaking Bad, attorney Saul Goodman provided both comic relief and lessons in abuse of professional privilege by using his storefront office to launder drug money and counsel assassinations.  Legal ethics has become the surprisingly sexy topic of dinner conversation. As with any field unexpectedly caught in the public spotlight, the legal profession has…

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Originalism as misnamed judicial legacy of the Scalia years – 1986-2016

Yesterday, in The Supreme Battle, Canadian constitutional scholar Adam Dodek described a side of the late Antonin Scalia, that few even in the legal community hardly ever saw: a U.S. Supreme Court justice willing to subject himself to honest intellectual debate among peers, even once with Canada’s former Supreme Court justice and champion of legal pragmatism, Ian Binnie. Dodek nevertheless attributed the lack of success of Canadian legal conservatives to too much inspiration from Scalia, whose strident ideology has found little favour here.  Despite the recent appointment to Canadian courts of jurists reportedly following Scalia’s brand of constitutional fundamentalism, it will take more than that…

On end-of-year MCLE credits, mixing law and religion, and lunch

Yesterday, the Cardinal Newman Society website reported that a decision by the State Bar of Texas to decline mandatory continuing legal education (MCLE) accreditation to faith-based programming for lawyers drew the ire of the State Governor’s office.  The state bar had, on a one-time basis, granted accreditation to such a programme, but refused to accredit any further events of a similar nature. My last post of 2015 is not about law and religion, but something far more suited to this festive season: the role of self-interest in lawyers’ attendance at CLE programmes (known in Canada as CPD).  After all, for…

From Law Office to lawPod : The Apple-ization of McCarthys

Yesterday’s Globe and Mail reported, in ‘McCarthy Tétrault’s Tracie Crook leading firm’s radical transformation,’ that the day of the partner’s corner office may one day be relegated to history.  By inverting the traditional office, partners will now occupy fish tanks in the middle of the office, surrounded by exchangeable stations in an open concept work space for support staff, junior lawyers and students.  In adopting this model, the firm evidently made a conscious decision to reinvent the law practice as a creative endeavour, rather than a technical one.  The extent to which lawyers are applied philosophers or glorified clerks, or a combination of the…

How two wrongs made for feckless governance of the B.C. legal profession

In my September 26, 2014, post, B.C. Law Society abdicates self-governance in favour of non-governance, I argued the Law Society of British Columbia irresponsibly fettered its independent decision-making authority to an ultra vires plebiscite of rank-and-file lawyers on the issue of accreditation of a Christian law school that openly discriminates against LGBT candidates. The LSBC went on to hold the referendum and, on October 31, 2014, voted that it was bound by the result, reversed its earlier decision of April 11, 2014 to grant accreditation. Last Thursday, in its judicial review, the Supreme Court of British Columbia agreed that the Law Society had abdicated its…

Why did the Federal Court issue a media statement regarding Justice Robin Camp?

In a media statement released on November 9, the Federal Court of Canada commented on the decision of the Canadian Judicial Council (CJC) to review the conduct of Justice Robin Camp while sitting as an Alberta Provincial Court Judge.  As widely reported, Judge Camp conducted the trial following a widely discredited understanding of sexual assault which flew in the face of Canadian law.  His comments, moreover, revealed a dismissive bias against complainants which most Canadians would find offensive.  The judgment of the Court of Appeal of Alberta, in ordering a new trial, was terse in its disapproval of every aspect of…

Why the Niqab defies electoral politics

Former Prime Minister Kim Campbell is the butt of jokes for having said during the 1993 Canadian general election, reportedly, that “an election is no time to discuss serious issues.”  The debate over the wearing of a Muslim headdress called a niqab illustrates a rare instance in which Campbell’s statement is true. In 2011, one of the reasons why I nominated the advocacy organization LEAF for the Ontario Bar Association President’s Award was to recognize the tireless efforts of this feminist legal organization in articulating the voice of women in the Canada legal system.  Another was the brilliant legal work performed…

In search of an evidence-based test for judicial bias

The Canadian principle of judicial bias has remained static for the four decades since the Supreme Court of Canada decision in Committee for Justice v. The National Energy Board.  The Supreme Court’s description of bias is rooted in the 20th-century jurist’s “reasonable man” mythos and emergent mid-century theories about the mind: … the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. … Would he think that it is more likely than not the Decision maker, whether consciously or unconsciously, would not decide…

Bénigne Gagneraux: Den blinde Oidipus anbefaller sin familj åt gudarna.
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Drama and Irony in a Canadian Courtroom?

With the nation riveted to news reports from a fraud, breach of trust and bribery trial in an Ottawa courtroom, Canada reaches a milestone in its legal history.  Behold, Canadians as mass spectators of our justice system “get” the role of dramatic irony, the narrative device used by playwrights to exploit the discrepancy between audience knowledge…

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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Getting to know your inner ejusdem generis

With increasing frequency, one reads arguments by lawyers arguing their clients have a “strong” case or defence based on an interpretation of a contractual or statutory provision is so wrong, it is enough to make one weep.  Beyond the common complaint about the literacy of lawyers in their everyday correspondence or speech, the inexcusable lack of legal…