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…
an open mind : about canadian law & ethics
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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…
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…
Bring #RealChange to Legal Aid Funding: Make Access the Trudeau Government’s Justice Priority
The promise of #RealChange that led Canadians to usher in a new Liberal government will undoubtedly bring on a tsunami of expectations among various interest groups. It is at that moment that politics will crash into the best intentions of the new Trudeau Cabinet. Witness the demise of the Ontario NDP government of 1990-95, caught…
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…
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…
Guindon v. Canada: Does the s. 11 Charter analysis stand up to bilingual construction?
In Guindon v. Canada, released today, the Supreme Court of Canada dismissed the appeal of a tax lawyer acting as a tax adviser, Julie Guindon, for penalties imposed by the Minister of National Revenue for issuance of tax receipts containing false statements. Guindon argued she was entitled to procedural safeguards under s. 11 of the Canadian Charter…
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…
