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 deficits in the senior bar and judiciary of Ontario in relation to the public they serve. At the end of the day, most law firms and public legal institutions already have diversity mission statements and accommodation policies as good as any drawn up by our…
an open mind : about law & ethics
Latest articles
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 and that the other judges hadn’t. At his discipline hearing, he testified that he did not actually support Mr. Trump and that the incident was a clumsy attempt at courtroom humour. Justice Zabel admitted the gesture was inappropriate, given the divisive campaign involving the president-elect’s…
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 not have the power to legislate, and these time limits do not exist in the Criminal Code. Rather, the 5-4 majority in Jordan arrived at these ceilings by interpreting s. 11(b) of the Charter of Rights and Freedoms (English / French), which prescribes the right of a person accused of…
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 Al-Rawi on the basis that a woman intoxicated to the point of loss of consciousness could give consent, some trial courts seem to have been disregarding the Supreme Court of Canada’s clear ruling in its 2011 decision, R. v. J.A. Since J.A., the law of sexual assault in Canada…
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 45th President of the United States, or of his tenure in office, or of America’s choice of an unfit man over a qualified woman as its chief executive. It is the Wikipedia commentary on the Salem Witch Trials. As mob chants of “lock her up!” resonated through…
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. Hurt LLP, an injury law firm with a reputation for obtaining high settlements through zealous trial advocacy. She is excited because her senior partner Jay Z. has introduced her to his client Brian, who had suffered a bad whiplash injury in a car accident with…
Canada deserves better: Functional bilingualism for SCC appointments is not enough
In recent days, there has been much talk about the requirement that Canadian Supreme Court justices be functionally bilingual. Coverage of the appointment of Malcolm Rowe from Atlantic Canada has fuelled criticism of this requirement. Much of the criticism is well-considered, but ultimately none of it addresses the basic fact that the laws of Confederation exist in two separate and equal languages. Quite frankly, functional bilingualism a bar set too low. I say this as one who advocated the Western Canadian position and helped to broker passage of the CBA’s 2010 compromise resolution on bilingual SCC judges. Since then, I have…
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 the publication received little fanfare and I don’t know many who have read it. Judges are appointed from a pool of senior lawyers. It stands to reason that most judges possess a poor grasp of scientific principles. The demographic fact that the last time most…
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…
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…
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…
