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Archive for the ‘Justice Issues’ Columns

What Actually Happens to Cases Filed in the Superior Courts?

While we don’t have much by way of empirical data about what actually happens to claims filed in the superior courts, we do know that only about 2% to 5% of these cases are ultimately resolved by way of trial.[1] In light of this fact, the conclusion is sometimes drawn that at least 95% of filed cases settle – that is, resolve without trial. Research completed over the last few years however, should serve to displace this assumption. Research into the nature and scale of unmet legal need and into the phenomena of self represented litigants, makes it clear . . . [more]

Posted in: Justice Issues

The Bogus Rhetoric About Bogus Refugees

It is time to take a stand against all the bogus rhetoric about bogus refugees.

Our current Minister of Citizenship and Immigration, Chris Alexander, has unfortunately taken a shine to making frequent use of the pejorative, inflammatory and meaningless term. That was certainly the case last month when he decided to take Ontario Health Minister Deb Matthews to task for her decision to step in and provide essential health care coverage for large numbers of refugee claimants who had been cut out of the federal government’s longstanding refugee health care program.

On January 22nd he chided Minister Matthews, complaining . . . [more]

Posted in: Justice Issues

A Call to Arms and More Ikea Monkeys

Short of a historic influx of legal aid funding to pave the way forward, any trans-Canada highway to equal justice must be cobbled together piece by piece, steppingstone by steppingstone. Progress is likely to be slow and painstaking, but should eventually come from a mix of incremental enhancements and bold reforms. In the spirit of resolute movement forward, I offer two ideas imported from the old world—one relatively challenging and the other relatively mundane—for balancing the scales of justice for Canadian civil and family litigants:

  1. embrace the civil law principle of equality of arms; and
  2. introduce legislation permitting pro bono
. . . [more]
Posted in: Justice Issues

When Should the Polluter Pay for Pollution That Was Legal at the Time?

In a landmark lead paint liability case, the Superior Court of California has held three of five paint companies liable for public nuisance. The court ordered them to clean up lead paint in California residences painted before 1978, at a total cost of $1.15 billion. The use of lead in interior residential paint was permitted until after 1978, i.e. the manufacture and sale of lead paint was legal when these homes were painted. See People v. Atlantic Richfield Company, et al. Superior Court of California, County of Santa Clara, Case No. 1-00-CV-788657

Could this happen in Canada? It is possible. . . . [more]

Posted in: Justice Issues

Crime & Punishment in 2014

Trilogies seem to be all the rage these days. Did a book a fraction of the length of The Lord of The Rings trilogy really need to be bisected into a bloated three-part epic about a band of short-statured heroes on a quest to slay a dragon? Probably not but it will be at least another year before we see the end of the newly expanded Hobbit theatrical release. So what to do with this, the fourth in my annual Crime & Punishment retrospective? A prologue seems out of place…does anyone really want to hear my predictions for criminal justice . . . [more]

Posted in: Justice Issues

Accessing Legal Information in Our Evolving Digital World

Public legal education and information (PLEI) has a long history in Canada, but recently has received greater emphasis as a key component in the reinvigorated debate over access to justice. Three aspects of this debate are especially important to explain the increased interest in PLEI. The first is that a major catalyst for this debate has been the increasing number of self-represented litigants (SLRs). It is obvious that if SLRs are going to engage the justice system, they need some degree of legal education and information. Second, a central theme in the current access to justice debate has been the . . . [more]

Posted in: Justice Issues

Netflix Sub-Genres and Self-Represented Litigants

From my holiday viewing habits, Netflix now seems fairly (and justifiably) certain that I will be intrigued by content categories such as “Crime Comedies”, “Absurd Satires”, “Witty British TV Shows” and “Critically-Acclaimed Movies from the 1980s”. A recent article in The Atlantic tells us that Netflix has nearly 77,000 micro-genres and still deeper micro-tagging and rating of the underlying content. This data, combined with monitoring of viewing and clicking activity allows Netflix to, in the words of Netflix’s VP of Product Todd Yellen, put “the right title in front of the right person at the right time.”

The Netflix magic . . . [more]

Posted in: Justice Issues

So Where Is Canada’s International Human Rights Action Plan?

At the end of November the federal government unveiled a new international trade policy, describing it as a “sea change in the way Canada’s diplomatic assets are deployed around the world.” For something as significant as a sea change it received remarkably little fanfare at the time. In fact it seemed to go almost unnoticed. Of course it was nearly impossible for anything other than Rob Ford’s ongoing theatrics or the latest revelations from the Senate/PMO scandal to attract even a modicum of media or political attention.

The Global Markets Action Plan marks a move towards what the government has . . . [more]

Posted in: Justice Issues

A Roadmap for Change, the Final Report of the Action Committee on Access to Justice in Civil and Family Matters

Canada has a system of civil courts that would be the envy of many countries. We have a large, well- trained and dedicated legal profession. The legal aid system in Canada provides more service in civil matters than is available in many places throughout the world. Yet, with all this and all that it costs, we are not meeting the legal needs of the Canadian public. The final report of the Action Committee on Access to Justice in Civil and Family Matters, A Roadmap for Change, tackles the difficult problem of why this is the case and lays out . . . [more]

Posted in: Justice Issues

Freedom of Expression Before Environmental Regulators?

Environmental regulators and tribunals bear substantial responsibilities and make important decisions regarding development in Canada. If they won’t listen to opponents of a project, will they breach the Canadian Charter of Rights and Freedoms?

The issue has been raised before the courts recently regarding both a pipeline approval before the National Energy Board and regulation of ongoing fracking activities before the Alberta Energy Regulator. The AER replaced the Energy Resources Conservation Board (ERCB), and provides “full-lifecycle regulatory oversight of energy resource development in Alberta – from application and construction to abandonment and reclamation, and everything in between.”

The mandate . . . [more]

Posted in: Justice Issues

Confessions of a Prosecutorial Defence Lawyer

Switch hitting. Going over to the dark side. Seeing the light. I’ve been the target of a lot of clichés since my decision several months ago to dip a toe into the waters of becoming a per-diem Crown Attorney. My motivation was a desire to gain a deeper understanding of the machinery that inexorably grinds our system forward inch by inch (and not by the laughable pay rate that has the dubious distinction of being the only legal remuneration to make Legal Aid funding appear moderately generous). After spending nearly fifteen years exclusively as a criminal defence lawyer, my . . . [more]

Posted in: Justice Issues

Increasing Access to Justice Is Not a Zero-Sum Game

You probably know that pro bono publico translates as “for the public good”. But you may not know that some justice system stakeholders view doing the public good as not much good at all. Generally lauded by judges and leaders of the profession, the long-term systemic value of pro bono legal service is a matter of limited but uneasy debate in the community of reformers, progressives and do-gooders dedicated to the concept of equal access to justice for everyone. Within that virtuous circle, not everyone is convinced of pro bono’s net benefit to the mission.

The typical knock against . . . [more]

Posted in: Justice Issues