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Archive for December, 2015

When Even Trump Calls Foul on Scalia

The controversial situation around affirmative action in American universities has reared its legal head at the Supreme Court of the United States more than once.

Affirmative action was brought into the forefront in 1961, when John F. Kennedy issued an executive and provided financing for it. The Civil Rights Act of 1964 went further, prohibiting discrimination on the basis of race, colour, religion, sex, or national origin, while never explicitly mentioning affirmative action. The Act does not have a comparable component to s. 15(2) of the Charter, but Title VII and subsequent amendments empowered the Equal Employment Opportunity Commission (EEOC) . . . [more]

Posted in: Education & Training: Law Schools, Substantive Law: Foreign Law

Summaries Sunday: Supreme Advocacy

On one Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all appeals and leaves to appeal granted, so you know what the S.C.C. will soon be dealing with (November 12 – December 11, 2015 inclusive).

Oral Judgments

Criminal Law: Dangerous Driving Causing Death; Test For Mens Rea
R. v. Hecimovic, 2014 BCCA 483(36260) 2015 SCC 54

Justice Abella: “The majority is of the view . . . [more]

Posted in: Summaries Sunday

Summaries Sunday: SOQUIJ

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT) : En l’absence d’épisodes psychotiques, les troubles de l’humeur ne devraient qu’exceptionnellement entraîner un verdict de non-responsabilité pour cause de troubles mentaux (art. 16 C.Cr.).

Intitulé : Autorité des marchés financiers c. Patry, 2015 QCCA 1933
Juridiction : Cour d’appel (C.A.), Montréal, 500-10-005472-137
Décision de : Juges François . . . [more]

Posted in: Summaries Sunday

Nova Scotia’s Cyberbullying Law Struck Down

Nova Scotia’s Cyber-Safety Act has been struck down as unconstitutional, with immediate effect.

The law clearly intended to restrict expression. The way it did so was held so vague as not to constitute a restriction “prescribed by law” as required by section 1 of the Charter. It was also disproportionate to the harms it sought to remedy. The court declined to suspend application of the ruling, as the Crown had requested.

Further details are in the blog of the successful counsel, David Fraser of Halifax.

Tragic circumstances do not justify a hasty or overbroad legislative response. . . . [more]

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

Grit and Growth for Embracing a Life of Learning and Challenge

What if there was one personality attribute that made all the difference to your success as a lawyer? And it was something that you could develop in yourself?

That attribute is Grit. Grit is a by-product of a Growth mindset. And a Growth mindset is something you can actively develop in yourself.

Last month I moderated a Grit and Growth Panel with three partners and one associate from large law firms in Vancouver at the Canadian Bar Association’s Leadership Conference for Women Professionals held the weekend of November 19 and 20 in Vancouver.

Grit and Growth… truth be told, when . . . [more]

Posted in: Practice of Law

The Friday Fillip: Let Me Illustrate

We love to rank. High and low, higher and lower yet: Social standing — whether “brow” or “class” — seats in the coliseum, credit cards, professors — whole universities1, come to that — even art2. You’ll know high art by where you find it. It’ll be in museums and grand concert halls, which are created to define high art. There’ll be a salon des refusés perhaps, for the near misses. And then — maybe even daubed on the outside of the same walls — there’s ephemera: pop, journalism, illustration, the work of hacks, jills and jacks . . . [more]

Posted in: The Friday Fillip

Lawyers Who Have Won the Nobel Peace Prize

December 10th is the day on which the annual winners of the Nobel Prizes in various fields collect their awards in Oslo or Stockholm.

The Nobel Prize winners in literature, chemistry, physics, medicine and economics gather in the Swedish capital. The winner or winners of the yearly Peace Prize attend a ceremony in Oslo.

Law Library of Congress employee Jennifer Gonzalez has written a two-part post on the Library’s blog In Custodia Legis about the many lawyers and law professors who have won the Peace Prize:

The list includes Oscar . . . [more]

Posted in: Justice Issues

What Syria Has Taught Us About Food Security

When someone mentions the words “human rights”, there’s often a very romanticized notion of what that means. People might imagine a right to live, or a right to be treated fairly, and a right to live and believe in whatever we want to believe. While there may be some discrepancies, the common thread among different interpretations is the answer to the question “what is it that we are all equally entitled to?”. When it comes to “big ticket” items like the right to live, worship and think freely, it’s difficult to argue against that.

But what about issues such as . . . [more]

Posted in: Justice Issues

Law in the Age of Justin Trudeau

Whether you greeted the ascendancy of Justin Trudeau’s Liberals with rainbow-tinted visions of angels and unicorns or you prophesied Canada’s sulfuric descent into a pit of doom, all agree on one inviolable truth: change is coming.

Trudeau, and his newly appointed Justice Minister, Jody Wilson-Raybould, face a ticking clock on a phalanx of legal challenges and legislative amendments many of which require immediate attention.


Whether it’s legalization or some form of decriminalization, this is a promise that Trudeau’s youthful fans – who turned out to vote for the party in record numbers – are not likely to sit quietly . . . [more]

Posted in: Justice Issues

Interactive Model Code of Professional Conduct – a New Resource for Mobile Lawyers, Academic Researchers and Others

I am very pleased to let you know that the Federation of Law Societies of Canada has launched the Interactive Model Code of Professional Conduct, a new free online tool that links the provisions in the Federation’s Model Code to the matching or related rules of professional conduct in every law society in Canada.

This interactive tool will allow mobile lawyers, law society staff and leaders, academic researchers and others to quickly and easily find the enforceable rules in every Canadian jurisdiction using the national Model Code as the central reference point. Users will be able to isolate specific . . . [more]

Posted in: Miscellaneous

Law as a Human Construct and Why That Matters

“Not only are the professions themselves a human construct, therefore, but so too is the organization of the knowledge that they dispense.” Richard Susskind and Daniel Susskind – The Future of The Professions

The knowledge that the legal profession dispenses comes mostly from case law. Case law springs from precedent, creating a body of writing obsessed with the past. This obsession with the past obscures the human author and makes the law appear pre-ordained and sacrosanct rather than a human construct.

Professor Elizabeth Judge explains in “Precedent and the Individual Opinion: Judges Judging Judgments and the Creation of the Law . . . [more]

Posted in: Miscellaneous

Encryption = Good : Backdoor = Bad

Every time there is a tragic attack on people or property, there is a cry from various authorities or politicians for law enforcement to get unfettered access to all kinds of communication tools.

But that would cause far more harm than good, and is a really bad idea.

The argument goes something like this:

These bad actors hide behind encrypted communications to plan their evil deeds. Therefore to stop them law enforcement needs to have access to all this. Therefore we need to have backdoors built into all encryption that law enforcement can use.

This is flawed in many ways. . . . [more]

Posted in: Technology: Internet