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…

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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…

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…

Getting to know your inner ejusdem generis

With increasing frequency, one reads arguments by lawyers arguing their clients have a “strong” case or defence based on an interpretation of a contractual or statutory provision is so wrong, it is enough to make one weep.  Beyond the common complaint about the literacy of lawyers in their everyday correspondence or speech, the inexcusable lack of legal…

Pleading the Blues in Franglais, before Ontario Courts

It took a week, but the court finally accepted their own prescribed form. Last week, I launched a motion on behalf of a francophone client. The bilingual registrar at the court house refused to accept the Notice of Motion because it did not employ a literal translation of the English text of the rule and court form. When my court clerk relayed my advice that the Notice employed the French version of the Ontario Rules of Civil Procedure, as well as the corresponding court form, the registrar still rejected it. Only after arming the clerk with the form from the Attorney General’s own website,…

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…

Early Lesson from the Duffy Trial: The Bar needs to focus, not wince at a “bright line” rule

Amid the media frenzy over the morality play unfolding in an Ottawa courtroom, the bar has a lesson to glean from the argument over the interaction between the Canadian Senate’s expense rules and the Criminal Code.  (“Blame the rules, not Mike Duffy, defence says“; “Mike Duffy trial: Defence to continue attack on vagueness of Senate rules.”) Mr. Duffy’s defence lawyer contends the Senate’s self-imposed rules permitted practices such as claiming housing expenses for property in the province of a senator’s appointment, even though the senator resided in another province most of the time.  The Crown argues strict observance of this expense rule, to satisfy a questionable…

What if … counsel had adduced better evidence? Deguise v. Montminy showed us the ‘What if’

Last July, in Deguise v. Montminy, 2014 QCCS 2672 the Québec Superior Court had occasion to revisit these issues from in Alie v. Bertrand & Frere Construction Co. Ltd., 2002 CanLII 31835, applying the Ontario Court of Appeal decision in that 2002 case to civil law concepts relating to allocation of responsibility among insurers in complex construction and property damage cases.  Many of the rulings in the decision were specific to Québec civil law. In one aspect, however, the case provided an opportunity to test the writer’s hypothesis that the Alie court called on parties and counsel to present expert…

Abolition of the 5% PJI rule in MVA cases, prospective or retroactive?

In the past weeks, have received numerous inquiries and feedback from the bar and the bench on my Gilbertson Davis LLP litigation blog post on s. 258.3(8.1) of the Insurance Act, regarding the abolition of the special 5% rule on prejudgment interest in motor vehicle tort actions.  Many colleagues in the civil defence bar have told me they have printed it out and used it as leverage at mediations and pretrial conferences.  The plaintiff bar has, as expected, argued the opposite, but the argument against retroactivity fails because the 5% rule has always been arbitrary.  It cannot be argued that 5% is…