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Archive for the ‘Justice Issues’ Columns

A Canadian Model for Bridging the Private Governance of Online Speech in the Wake of New Privacy Proposed Legislation

We are witness to a parallel or alternate dimension where the constitutional rights democratic nations have toiled to enshrine and interpret, including freedom of speech, can be effectively – and imperceptibly – bypassed. While this situation prevailed prior to COVID-19, the pandemic has fast-tracked erratic private mediation of expression out of sheer necessity.

Questions respecting social media platforms’ ad hoc or arbitrary reactions to sensitive matters abound, including Twitter’s unprecedented restraint of the New York Post’s Hunter Biden piece and Facebook’s slowdown of the story.

Presumably recognizing some degree of state-like responsibility, platforms are deploying algorithmic decision-making tools and . . . [more]

Posted in: Justice Issues

Justice Is Missing the Boat

The year 2020 will go down in history as the year when much changed. One thing seems to remain constant: the fact that the justice sector is slow to change. As a consequence, it seems to be missing a rather big boat.

Good things often come out of bad things. It is no different with the current crises we face. In its 5 December issue, The Economist carries an article that sets out how the pandemic is leading to unprecedented innovation and investment in the health sector. It sees the dawn of “the next trillion-dollar industry”. Patients are . . . [more]

Posted in: Justice Issues

How the Law Abandons Those Who Speak Up in the Public Interest

On December 3, my new report titled Whistleblowers Not Protected: How the Law Abandons Those Who Speak Up in the Public Interest in Alberta was published by the Parkland Institute. The report looks at whistleblowing in a broad sense, meaning anyone who either publicly or anonymously discloses information that is in the public interest.

The report considers not only the gross deficiencies of Alberta’s whistleblower protection legislation but also looks at the need for both anti-SLAPP legislation, and a journalist shield law to protect confidential news sources.

The week before the report, a major controversy erupted in Alberta politics over . . . [more]

Posted in: Justice Issues, Practice of Law

Doing the Two-Step on Uneven Platforms: Successes and Setbacks of Human Rights Advocacy

Human rights advocates are sometimes asked whether human rights advocacy works. Most human rights defenders answer in the form of anecdotes, because empirical research on effectiveness is scarce in a world where human rights advocates have limited resources and are increasingly in danger. This report reviews some 2020 successes and setbacks experienced by the pro bono advocates of Lawyers’ Rights Watch Canada (LRWC). The year 2021 will require renewed energy and resources for visionary and persistent human rights advocacy that makes a positive difference to people at risk.

The gap between international law and reality

It is undeniable that human . . . [more]

Posted in: Justice Issues

Yours to Discover: The Lack of Evidence Supporting the Conclusions Reached by the LSO Paralegal Licensing Report

On June 26, 2020, the Law Society of Ontario (LSO) released the Family Legal Services Provider License Consultation Paper (FLSPL) for review and comment by the legal profession in Ontario. Prior to the release of the FLSPL the LSO had released the Ontario Civil Legal Needs Project Steering Committee’s Report to Convocation entitled “Listening to Ontarians”, which in May of 2010 reported to Convocation that the Committee had identified access to justice as a significant issue facing the public in Ontario.[1]

Access to justice in the area of family law is an issue. Access to justice is an issue . . . [more]

Posted in: Justice Issues

Name-Calling Aside: The Problem With the “Unrepresented” vs. “Self-Represented” Distinction

Are people coming to court without counsel “self-represented litigants,” or are they “unrepresented litigants”? I shall reveal all below, but frankly, I feel the tendency of the Canadian Bench and Bar to get caught up in assigning separate distinctions to these terms distracts from the important work of understanding the lived realities of these litigants, and working with them to find solutions to our shared and indisputable Access to Justice problem.

All the same, the reason it IS important to address this issue once again is because the language describing those who are in court without a lawyer has been . . . [more]

Posted in: Justice Issues

Understanding the Impacts of Access to Legal Help

If popular culture is to be believed, the success of a legal dispute is determined foremost by the calibre and character of one’s legal representative; the ability to deliver an inspiring closing argument is a clear signal that a favorable outcome is forthcoming. The recipe, it would appear, is one part institutional knowledge added to one part intuitiveness sprinkled with a dash of showmanship. (A devil-may-care regard for the truth and facts is optional.) Notwithstanding the oft times sensationalistic portrayal of lawyers in film, novels and the news, the role that legal professionals play in securing satisfactory outcomes for people . . . [more]

Posted in: Justice Issues

An Emerging Ministers of Justice Movement

Since April, we have been calling for justice leaders of the world to get out of their national cubby holes and come together to share fears, failures, successes, and strategies, just like public health minister are doing. The COVID-19 crisis is too big and too unprecedented to deal with on your own national level. On 20 October, 22 ministers of justice did just that at the Justice for All in a Global Emergency meeting convened by Minister of Justice of Canada, David Lametti (see end for participants). It was a significant moment. For 90 minutes, they shared their experiences in . . . [more]

Posted in: Justice Issues, Practice of Law

Rethinking Ontario’s Anti-SLAPP Law After Bent v. Platnick

In 2015, Ontario passed legislation aimed at protecting defendants from lawsuits stifling expressions made in the public interest. One aspect of this law is that it allows defendants to successfully bring an expedited motion to dismiss even in circumstances where the plaintiff’s action has substantial merit and there are no valid defences that could reasonably be advanced at trial.

This is known as the “public interest hurdle” analysis and, more exactly, provides that an action will not be dismissed if the plaintiff can show

the harm likely to be or have been suffered by the responding party [plaintiff] as a

. . . [more]
Posted in: Justice Issues, Legal Ethics

Canadian Pro Bono Lawyers Amplify the Calls for Justice Worldwide: 30th Anniversary of the UN Basic Principles on the Role of Lawyers

For the past two decades, Canadian lawyers have been speaking up for lawyers and human rights defenders in danger in dozens of countries under the auspices of Lawyers’ Rights Watch Canada (LRWC). In 2005, LRWC was granted United Nations (UN) consultative status. Since then LRWC has regularly advocated for lawyers and other defenders at the UN Human Rights Council (Council) and other UN bodies.

This year marks the 30th anniversary of the UN Basic Principles on the Role of Lawyers, which recognize the importance of ensuring access to justice by protecting the rights of lawyers to provide independent . . . [more]

Posted in: Justice Issues

Is Former SCC Chief Justice McLachlin’s Action Committee and Leadership of the A2J Agencies Avoiding the Major Issues? [Part 2 of 2 Parts]

[The content of this article is closely related to five of my previous posts on Slaw, dated: July 25, 2019; April 9, 2020; May 29, 2020; August 6, 2020; and, October 22, 2020. See also the full text on the SSRN.]

Part 1 presented the proposition that the great amount of “emergency relief-type” activity and literature that has been produced by the many access to justice agencies (A2J agencies) in relation to the “A2J problem” of unaffordable lawyers’ services, is: (1) deflecting attention from the great need to solve it; and, (2) it . . . [more]

Posted in: Justice Issues, Practice of Law

Building Bridges Between Private Bar Services and Community Legal Clinics

Community legal clinics have always had strong linkages with the communities they serve and have developed connections with community organizations. They have done this by working with community service agencies and voluntary organizations through different forms of outreach to identify people with legal problems who would probably not otherwise request assistance and by using holistic and integrated approaches to service delivery that identify people experiencing multiple problems and sometimes complex problem clusters. Compared with contacts with community organizations, connections with the private bar have not been prominent aspects of outreach. Community legal clinics can increase the market for private sector . . . [more]

Posted in: Justice Issues