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…
an open mind : about law & ethics
From Legal Subject Areas
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…
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…
Canada’s Marbury v. Madison? Not quite.
As reported in the Globe and Mail, Justice Colin Westman has joined a chorus of Canadian judges refusing to apply the law, as a protest against the federal government’s criminal sentencing legislation. Whatever the merits of their political views on the subject, the rebellious judges threaten a constitutional showdown which they will not, and should not win. As lawyers and law students, it is important for us to understand why judicial rebellion is not judicial independence. Judicial rebellion harms judicial independence. To see this, one has to understand the source of judicial power.
CGL Policies – the Russian Doll of Business Insurance
Few subjects beguile new lawyers more than the interpretation of commercial general liability insurance policies (CGL). This includes many corporate-commercial lawyers contributing to complex agreements running into hundreds of pages. Show them a CGL form, and their eyes glaze over. But most CGL policies are only a few pages long, and the longest run a few dozen pages. Once you “get” the basic structure of the agreement, as described by Justice Rothstein at paragraphs 26-28 of the 2010 Supreme Court of Canada decision in Progressive Homes v. Lombard, you’ll wonder why you ever thought the subject so daunting:
Case Law
The reward for approaching every case with an open mind … Is the chance to see your name in print as counsel. Lee Akazaki has appeared as counsel in over 79 judicial decisions reported in Quicklaw, as well as 24 decisions in print reports such as the Ontario Reports (O.R.), Dominion Law Reports (D.L.R.), Ontario Appeal Cases (O.A.C.), Canadian Patent Reports (C.P.R.), Canadian Bankruptcy Reports (C.B.R.), Real Property Reports (R.P.R.), Canadian Cases in the Law of Insurance (C.C.L.I.), Canadian Insurance Law Reporter (I.L.R.), Carswell’s Practice Cases (C.P.C.), Ontario Trial Cases (O.T.C.) and All Canada Weekly Summaries (A.C.W.S.)
Uniform Law Conference of Canada
In August, 2008 and 2009, I was the Ontario Bar Association delegate to the Uniform Law Conference of Canada. The photo is from 2009 in Ottawa, in front of the Supreme Court of Canada. Click here for my report to the OBA Civil Litigation Section: CIV_Sept08 Terms of use / Mentions légales
Medical Malpractice in Crisis
Click on the link to read my article, “Medical Malpractice in Crisis” (February, 1999), 21 The Advocates’ Quarterly 163 21AdvocQ163. Should doctors receive unlimited publicly-funded legal aid defence and liability funding? Why not lawyers? Or anyone else? Terms of use / Mentions légales
Wrongful Birth: An Ironic Name for a Cause of Action in the Law of Medical Malpractice
Click on the link to read my article, “Wrongful Birth: An Ironic Name for a Cause of Action in the Law of Medical Malpractice,” The Advocates’ Quarterly Vol. 22, 1999, reprinted by On Examination, Medico-Legal Society of Toronto, Vol. 8, No. 2, 1999, 22AdvocQ102. I have been proven wrong through subsequent case law, but I think the judicial treatment has skirted around the real moral question: when can the birth of a disabled child be considered an actionable wrong? Terms of use / Mentions légales
