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

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… Read More

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… Read More

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… Read More