I wrote about the Supreme Court of Canada’s recent restatement of the open court principle in a column last year. In that column I suggested that the court had opened the door for more requests for closed hearings in its decision of Sherman Estate v. Donovan, 2021 SCC 25. Some courts have disagreed with this assessment and at least one court has agreed with it. What is clear from the recent caselaw is that courts are more focused on the evidence necessary to support confidentiality in what would otherwise be open proceedings. Speculation of harm to an important public . . . [more]

INTRODUCTION

The Ford Government’s invocation of section 33 of the Canadian Charter of Rights and Freedoms in Bill 28 prohibiting education workers from striking and imposing a contract on them has once again raised cries of “this isn’t what the notwithstanding clause is for”. Really? What exactly did everyone expect to happen? Here I explain why I think section.33 has always been a ticking time bomb — and that there’s nothing that can be done about it except through strength of public opinion. . . . [more]

I have championed ways of increasing the public availability of research and scholarship in these Slaw columns for well over a decade under a variety of names, from open access to the catchy right to research (R2R). I picked up R2R, as I’ve noted, from the inspiring Program on Information Justice and Intellectual Property at the American University Washington College of Law in an initiative led by Sean Flynn. What I’ve now realized about R2R is that it can be read in two historically significant ways, with the difference between them neatly capturing what sets Prof Flynn’s and my current . . . [more]

Each Wednesday we tell you which three English-language cases and French-language cases have been the most viewed* on CanLII and we give you a small sense of what the cases are about. La version française suit.

For this last week, the three most-consulted English-language decisions were:

1. R. v. Ndhlovu, 2022 SCC 38 (CanLII)

[1] Parliament and courts have increasingly recognized the grave harms which flow from the wide variety of sexual offences prohibited in the Criminal Code, R.S.C. 1985, c. C-46. Over the years, the substantive elements of some sexual offences have been modified: consent is now . . . [more]

Family lawyers cross-examining victims of intimate partner violence (“IPV”) gets little attention in legal ethics literature. To be sure, there is a considerable debate and body of scholarship focused on the conduct of lawyers acting in criminal sexual assault cases, much of which can be analogized to IPV. However, in the family law context there are usually multiple issues to be determined, including the well-being of a third party (i.e.: a child). There are serious problems in family law with abusive spouses self-representing to gain access to their former partner and directly questioning them about the abuse. But my concern . . . [more]