From Occupational Hazards and Tips

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…

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…

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…

Jaggers and the Law Society rule governing trust accounts

Fans of Charles Dickens’ novels will know that his lawyers are practitioners of an obscure art.  In that regard, they are plot devices, agents of change in the course of principal characters’ lives.  None is more iconic than Jaggers, or Mr. Jaggers, in Great Expectations.  The trustee of a sum of money left by an anonymous benefactor to the orphaned working-class boy Pip, Jaggers is instructed to disburse funds necessary to make Pip a gentleman.  The secret identity of the benefactor, not revealed until nearly the story’s end, is the source of a significant malentendu that drives Pip’s actions and character development. No one…

A Self-Harming of Judicial Independence: The Legacy of the Inquiry into Lori Douglas

The Canadian Judicial Council Inquiry Committee regarding the Honourable Lori Douglas is now over.  The embattled Manitoba judge, whose late husband allegedly posted nude photos of her online and encouraged his former client to sleep with her, decided to settle for early retirement after the committee’s November 4, 2014, Ruling on Preliminary Motions, in which the tribunal insisted on viewing the nude photographs of her.  Douglas did obtain a temporary stay of the ruling from the Federal Court, but this step effectively bought her time to bring a halt to the proceedings. Despite the stay and the settlement of the complaint, the CJC’s ruling has damaged…

Lawyers’ Technological Literacy, or Lawyers’ Literacy and Technology

In her September 30 column in Slaw.ca, Tackling Technology, Prof. Amy Salyzyn argues lawyers’ ability to use and manage information technology is now an element of professional competence. Technology is now a driver of client service, effective lawyering and access to justice.  The flip side of this argument is that screen-based technology is an inhibitor of contextual literacy.  Contextual literacy is a core legal skill, without which our services are worthless to clients.  Technological literacy will probably look after itself, with the passing of generations.  Loss of contextual literacy, however, will be a more serious problem from the perspective of…

Is belief in law logical?

Many years ago, I agreed to act for an elder of the Celestial Church of Christ, a religious order based in Nigeria.  A member of his congregation had asked him to be a “character reference” on a bank loan.  It turned out to be a guarantee on a sub-prime mortgage.  To make a long story short, my client ended up on the hook for an amount equivalent to twice his annual gross family income, and he had an aggressive creditor after the mortgage company sold the debt on.  By the time he arrived in my office, the congregant had defaulted,…

A Very Canadian “Mexican Standoff” of an American Contest between Executive and Judicial Power

Marbury v. Madison is the considered the seminal decision in judicial review of executive and legislative action.  At least, that is what the U.S. courts have subsequently repeated.  In fact, the 1803 decision of a fledgling American high court represented a Mexican standoff between executive and judicial power in which the limits of the U.S. Supreme Court were sharply defined.  Was Marbury a boundary wall it built to assert its jurisdiction, or one behind which it retreated? One criticism that can be leveled against the Marbury court was that it institutionalized a mechanical, semi-democratic vision of judicial action.  American governments now operate within a constitution…

Judicial Ethics in Real Time: Commentary D.9 to Principle D.3 of Ethical Principles for Judges

This morning, the Chief Justice of Canada responded to a statement from the Prime Minister’s Office that, last summer, she initiated a call to the Minister of Justice regarding the nomination of Justice Marc Nadon.  Media reports have suggested the eruption of a very public battle of statements.  As lawyers, we respect and honour our Chief Justice, and take her at her word.  As I read her office’s release, I wondered: What could have possessed her? The press release issued by the Chief Justice’s office described the July 31, 2013, interaction with the Minister thus: On July 31, 2013, the Chief Justice’s office called…