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Archive for ‘Justice Issues’

Cutting Legal Aid: Reducing Access to Justice and Increasing Other Social Costs

People who cannot afford lawyers (or in some cases paralegals) are at risk of not having their rights vindicated. Or they may not even try to assert their rights in the first place. A great number of ad hoc arrangements have been created to respond to this failure to provide access to justice, but the most systematic is the legal aid system. (I mentioned some of the other arrangements in a previous Slaw post and there are others.) Legal aid is not perfect — even with increased funding that has allowed it to offer legal aid to more people, it . . . [more]

Posted in: Justice Issues

Incentivizing New Lawyers to Work in Rural Communities

[In Ontario] About 67% of lawyers are over the age of 40 and about half of all lawyers practise in Metropolitan Toronto. The age skew is similar in other provinces, where a notable percentage of lawyers have been practicing for 20 years or more and are entering the latter stages of their careers. The number of lawyers graduating is increasing, but not enough to offset the bubble of lawyers that will likely retire over the coming decades. (“Small communities struggle to pry lawyers from Canada’s big cities, despite promise of jobs” – Mandy Storey for National Post)

There . . . [more]

Posted in: Justice Issues

Reforming the Canadian Judicial Council: The Benefit of Expanding the Consultation

In an interview with the National Post on March 31st, Chief Justice Richard Wagner announced that he planned to reform the Canadian Judical Council, saying “everything is on the table”. The Chief Justice also indicated that “he is reaching out to senior judges across the country to garner their views on what changes are needed”. So, an internal review to determine what kind of changes are required to an internal process considering judges’ conduct. Is it enough to consult only with “senior judges”? I suggest not, that a review of the CJC affects anyone who cares about the legal system . . . [more]

Posted in: Justice Issues

Canadian Judicial Council Seeks Input on Revising Ethical Principles for Judges

The conduct of federally-appointed judges in Canada is governed by the Judges Act and by Ethical Principles for Judges, guidelines released by the Canadian Judicial Council. The Council is responsible for addressing complaints about judicial conduct under both the legislation and the Principles. The CJC has initiated a review of the Principles and is seeking input through a survey and freestanding submissions. It has published a short background paper to assist those wishing to provide their views. . . . [more]

Posted in: Justice Issues

Should We Ever Diminish the Application of the Rule of Law?

We consider the rule of law a fundamental value in our Canadian legal and constitutional systems; indeed, as the Supreme Court of Canada declared in the Secession Reference the rule of law is “a principle of profound constitutional and political significance” (para. 71) and “[t]he principles of constitutionalism and the rule of law lie at the root of our system of government.” (para. 70) The rule of law has significant impacts on our political, economic and social regimes. It’s true that we don’t always meet its highest standards, but we also don’t often decide to ignore it or deliberately avoid . . . [more]

Posted in: Justice Issues

Using Artificial Intelligence for Demeanour Evidence

Demeanour evidence holds a controversial role in evidence law. Centuries of common law have allowed trial judges to assess the behaviour, conduct, and mannerisms to make findings of credibility. Often these findings can be useful to judges, especially when the only evidence available on crucial determinations of fact is viva voce testimony from each side.

In “Relying on Demeanour Evidence to Assess Credibility during Trial – A Critical Examination,” Amna Qureshi provides some background on the use of demeanour evidence,

The fact that trial judges can and do assess credibility based on demeanour during trial has also been

. . . [more]
Posted in: Justice Issues, Technology

A Tale About Rehiring a Sexual Harasser: Who Wins and Loses?

Today’s “#MeToo” climate and questions about when someone who has been accused of sexual misconduct, although not convicted of it, should be allowed back into the public sphere (to direct films, do comedy routines, assume an executive role in business or whatever) has been much in the media recently. Although not explicitly, a recent decision of the Ontario Court of Appeal tells us that even if the impact of someone’s return might have significant impact on a victim’s working — and broader — life, return may occur. The final result in Colistro v. Tbaytel 2019 ONCA 197 is not unlike . . . [more]

Posted in: Case Comment, Justice Issues, Substantive Law: Judicial Decisions

“Family Justice in Canada Is at a Breaking Point” Redux*

The fees charged by many family law lawyers are out of reach for even middle-income Canadians and, in some underserved areas of the country, there aren’t enough family law lawyers to meet the needs of even those who can afford their services. As a result, an enormous number of people are entering the court system without the benefit of counsel, some by choice but most by necessity. However, the court system is difficult to navigate, even for those with an advanced education. Further layers of complexity are added by the intertwining of legislation and uncodified case law that is characteristic . . . [more]

Posted in: Justice Issues

Implied License for Differential Treatment

The interaction between law enforcement and notions of privacy in the security of our homes has always been a special focus of s. 8 Charter rights. The treatment of the home as a special place in the law was described by Justice Binnie in R. v. Tessling as a nuanced hierarchy protecting privacy of places, used to evaluate the reasonableness of a person’s expectation of privacy.

This privacy interest is not absolute, and although the “dwelling house” enjoys the greatest expectation of privacy, the perimeter space around the home enjoys a diluted measure of this same expectation.

One example of . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Solving the Issue of Access to Justice by Redefining “Access to Justice”

“Justice is open to all; like the Ritz Hotel.”

In the article “Clients Need Legal Services But Not Necessarily Lawyers“, Mark Cohen writes about the issue of access to justice. He points out that improving access to justice does not always mean improving access to lawyers. He refers to new products that provide legal services. These products include a chatbot that helps fight parking tickets, LegalZoom, Hello Divorce, and alternative legal service providers (like in house departments) that are not built on the profit per partner model.

Cohen also refers to the scholarship by Rebecca Sandefur in explaining . . . [more]

Posted in: Justice Issues

Education, Unbundling, Pro Bono, Lawyer Surcharge, Judicial Intervention-What’s the Answer to Achieving A2J?

We know that too many litigants are forced to represent themselves, sometimes with some form of assistance. These are people who cannot afford a lawyer and do not qualify for legal aid. (I am concerned here with people who would prefer to have a lawyer rather than those who want to represent themselves.) They may not even become litigants, but, where they are able, give up the opportunity to seek the justice they believe they deserve. They may then, legal problems left unresolved, find themselves spiraling downward into other problems. We know all this. But what we don’t seem to . . . [more]

Posted in: Justice Issues

Investigating Issues of Intersectionality

The notion of “intersectionality” has become a popular buzzword in pop culture and social activist groups. It describes the notion that various grounds of discrimination, such as gender, race, sexual orientation, religion, disability, etc., can affect and interact with each other in overlapping and complex ways.

First coined within the feminist movement in the early 80’s to help illustrate the exclusion of racialized women from many feminist initiatives, it helped illustrate how advocacy on behalf of a discriminated or marginalized group can also inadvertently create its own patterns of oppression and exclusion, not only towards other discriminated groups, but within . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions