What is cabinet confidentiality? How does it restrict what a minister of the Crown can reveal in public discourse? How can a court, tribunal or parliamentary committee compel disclosure, and how can that process be blocked? Cabinet confidentiality is a feature of Canadian constitutional law derived from Part III of the Constitution Act, 1867, in which… Read More
Talking to the Attorney-General about Solicitor-Client Privilege
Out of the blue, solicitor-client privilege is a meme. The subject excites legal ethics nerds but is not recommended dinner-party conversation. Until now. If the public weren’t confused enough by this legal principle, a former Attorney-General hires a retired Supreme Court judge as her legal counsel. The former minister declines comment to reporters on the… Read More
Is it time to unshackle law schools from law societies?
On December 10, 2018, the Law Society of Ontario chose to stay the course on its dual streams for lawyer licencing. Apart from a few substantive enhancements such as the requirement for paid internships, a candidate for membership in the legal profession must either article under an approved lawyer or pursue an experiential education program… Read More
The Myth that Lawyers Believe in Equality, Diversity and Inclusion
In case you missed it, the Law Society of Ontario now requires lawyers to prepare and embrace a ‘Statement of Principles‘ regarding diversity in their practices. I have been critical of the initiative because, at the end of the day, it requires no more than yet another act of lip service to fix real diversity… Read More
Did Politics Trump Justice Zabel’s Sentence?
Yesterday, the Ontario Judicial Council sentenced Justice Bernd Zabel, a trial judge sitting in Hamilton, to a 30-day suspension without pay for having brought a Donald Trump “Make America Great Again” cap into court the morning after the 2016 U.S. presidential election, and for telling the public assembled in court that he had “voted” for Mr. Trump… Read More
Resolving R. v. Jordan linguistically: Why the dissent was right
It was the most significant Supreme Court of Canada decision of 2016, and it continues to dog the justice system. Last July, R. v. Jordan set 18 months as the presumptive ceiling for criminal cases in the provincial courts, and 30 months in superior courts (or cases in provincial courts after a preliminary inquiry). Canadian courts do… Read More
Why some courts don’t get consent in sex offence trials
Canadian courts have recently come under intense scrutiny over the treatment of complainants in trials of sexual assault offences. From the judicial discipline proceedings against Judge Robin Camp, who asked the assault complainant why she “couldn’t just keep [her] knees together,” and referred to her as “the accused,” to the acquittal of taxi driver Bassam… Read More
The Trial of Hillary Clinton, the Lawyer and Woman
“The episode is one of … America’s most notorious cases of mass hysteria. It has been used in political rhetoric and popular literature as a vivid cautionary tale about the dangers of isolationism, religious extremism, false accusations, and lapses in due process.” No, this is not a future historian’s description of yesterday’s election of the… Read More
Testing for Legal Ethics and Efficacy: You take the test
Recently, a colleague asked me for an example of a bar exam question that tests the candidate’s judgment between being an effective lawyer and being an ethical one. It has been long since I’ve prepared such a question, so here is a rusty stab at it: Astrid is a first-year lawyer hired recently by R. U.… Read More
A Science Manual for Canadian Judges. Who knew we all had to read it?
This summer, while researching for a paper on the Canadian law of causation in the age of torts committed in cyberspace, I re-read the Science Manual for Canadian Judges (Manual). A 2013 project of the Canadian National Judicial Institute, the Manual was intended to fill a much-needed lacuna in our legal system. Most lawyers are awful scientists. So… Read More
