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Archive for ‘Justice Issues’

Professional Responsibility as Reconciliation: Law School and Legal Obligations

An accused has a constitutional right to a fair trial and may raise concerns about race and discrimination if they identify it as an issue in their case. Furthermore, lawyers have an obligation to remind their client of this right. This very issue arose in R v Fraser (Fraser). In Fraser, a white student accused a Black high school teacher of committing “sexual improprieties”. The appellant raised concerns about racial bias both before and during the jury selection, but his lawyer nonetheless failed to tell Fraser that he had the right to challenge for cause. Upon . . . [more]

Posted in: Education & Training: Law Schools, Justice Issues, Law Student Week

Infanticide: Should It Remain a Criminal Offence?

Infanticide as a criminal offence sprang about centuries ago, dating back to the 1600s. It was a crime that punished women, particularly poor women who sought to escape the oppressive stigma of having a child out of wedlock.

However, by the turn of the 20th century, courts were often unwilling to convict women that murdered their babies. In response, England enacted the Infanticide Act.

In R. v. Borowiec, 2016 SCC 11, Justice Cromwell writes at paragraph 27:

The adoption of the Infanticide Act, 1922 was intended to remedy the fact that judges and juries were reticent to

. . . [more]
Posted in: Justice Issues

More Than Just Rhetorical Questions

I am a professional working woman. My mother was, until her retirement, a professional working woman. My daughter will, I expect, be a professional working woman when she completes her education.

Issues related to the (in)equality of working women therefore are of particular significance to me.

Yesterday was Equal Pay Day in the U.S. This is a day that marks the point in time each year when women in the workforce will have earned enough to catch up to the earnings of men in the previous year. Did you get that?

In the U.S., women need to work for more . . . [more]

Posted in: Justice Issues, Practice of Law: Future of Practice

Constitutional Amendments for Electoral Reform

On November 11, 1947, Winston Churchill said to the British House of Commons,

Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…

The concept has been attributed to Churchill himself, but it’s clear he was quoting another unknown source. In the aftermath of the collapse of the Soviet Union, social scientists have explored with wonder . . . [more]

Posted in: Justice Issues, Substantive Law: Legislation

The Susskinds on the End of Tomorrow’s Professions

Lawyers like to think they’re unique.

This exceptionalism can explain in part our resistance to change, and our inability to adopt best practices from other industries. Sometimes it limits our ability to recognize that our challenges are part of larger societal trends which everyone is facing.

In The End of Lawyers?: Rethinking the nature of legal services, Richard Susskind explored alternative methods of providing legal services, while pointing to some of the many failings of the existing models of delivery. In Tomorrow’s Lawyers: An Introduction to Your Future, he goes further, and describes the types of new jobs . . . [more]

Posted in: Justice Issues, Practice of Law: Future of Practice

DIY A2J 6: How to Share Your Public Writing While Retaining Authorial Control

Although its use is of questionable significance in the age of the internet, many of us mark our public writing, including our public legal education materials, with a copyright statement asserting an exclusive right to control the use and distribution of our work. This is a fairly normal thing to do, and almost universal among legal aid providers; after all, when you’ve sweat blood over something, you want to keep it for yourself and you don’t want to discover someone else claiming it as their own or using it for their own purposes.

I certainly felt that way and my . . . [more]

Posted in: Justice Issues, Legal Information

Ghomeshi Controversy a Call to the Profession

I won’t comment much on the Ghomeshi verdict, other than to note that most of its detractors don’t appear to fully appreciate the nuance of the decision.

The animus exhibited by the complainants was mirrored by observers in the court room, and the crowd that gathered outside.

There was reason to be upset. Such incidents are rightly upsetting, but these feelings should not be directed towards the bench or the justice system.

The protections within our legal system, including our Charter rights, cannot be applied selectively, or withdrawn for individuals we don’t like, or we think are likely to . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Access to Justice — the Data Moment

Data — big, open — is having a well-deserved moment among access to justice advocates. While access to justice problems don’t fall into neat quadrants as they might in the technology and business worlds, there is much that can be learned from the use of data to address real needs in other sectors. With new tools to address access to justice challenges comes a key turning point in the application of data to solve complex social problems.

A recent post by Margaret Hagan of Open Law Lab explores the access to justice opportunities available from public data. The potential . . . [more]

Posted in: Justice Issues

Making a List: Barriers to Access to Justice

After engaging this afternoon in a discussion about a number of issues related to ongoing access to justice, I continued thinking about the barriers that stand between ordinary people with legal problems and their effective access to justice. Many of the obstacles are obvious and have been extensively studied (for example, see the ongoing work of Dr. Julie MacFarlane on the experiences of self-representing litigants). But not all barriers to access to justice are readily apparent.

Initially, this was just going to be a mental list, formed as part of a conversation with myself (I engage in those entirely . . . [more]

Posted in: Justice Issues

Limits on Lawyers’ Ability to Research Jurors?

One reads regularly of the problems courts have in restricting jurors from researching cases in front of them, so that they get only the evidence properly before them and the arguments subject to judicial control.

What of restrictions on lawyers who want to get out-of-court information about jurors, ideally in time to challenge them at the time of their selection, but also to tailor arguments and maybe even appeal results?

A US judge has recently asked for detailed submissions from Oracle and Google as part of their ongoing patent litigation, to say why they should be able to research jurors . . . [more]

Posted in: Justice Issues, ulc_ecomm_list

A Brief History of Choking

For possibly the first time since Confederation, choking is a hot topic in criminal law. During the Jian Ghomeshi trial, several news outlets ran pieces asking questions about this strange offence. Catherine Porter at the Toronto Star has called for a stronger strangulation law. Women’s groups are performing studies on strangulation and domestic violence, many demonstrating that strangulation is a strong predictor of partner homicide.

This is the offence:

Overcoming resistance to commission of offence.

246 Every one who, with intent to enable or assist himself or another person to commit an indictable offence,

(a) attempts, by any means,

. . . [more]
Posted in: Justice Issues

Judicial Review vs. Request for Reconsideration

Federal Court published a decision regarding the government’s policy when to reconsider or re-open an application. In his decision, Justice Phelan came down hard on the government’s inflexible guidelines as they lack “common sense and fairness”. This is a very significant decision for immigration practitioners and lawyers who make requests to Visa Officers or other government officials to have their matters reconsidered.

The facts of Lim v. Canada are relatively simple. The Applicant applied for Canadian citizenship, an Officer requested more information via letter but the letter was not received. The application was deemed abandoned and the file closed. When . . . [more]

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