I found it challenging recently to be asked if I have any further observations or opinions in relation to open access to the law book environment. The short answer is, “probably not”, but the fault for that is mine. However, given that the significant issues relate almost exclusively to primary legal materials, most of what needs to be argued on that is done elsewhere.

However, I do think that the question of open access in legal information publishing is entirely bound up with other related ones. Open access is part of an innovation debate. Key issues include the . . . [more]

Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode [videoconference] of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work…

Justice Perram, Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Australia)

Like many adjudicators working during the pandemic, I am now adjudicating in a virtual hearing room instead of a real one. The . . . [more]

A lawyer has an obligation to be honourable and a duty of integrity. In a negotiation, a lawyer will not be completely honest. Both of these statements are true, but they seem contradictory. The Federation of Law Societies of Canada’s Model Code of Professional Conduct, does not expressly prohibit a lawyer from lying to another lawyer, but the Code does include provisions that promote integrity, honesty and honour. In this post, I attempt to defend the idea that an honourable lawyer can engage in a small range of permitted deception during negotiations.

James White famously framed the question of . . . [more]

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 30^th 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]

Recidivism risk assessment is the process of determining the likelihood that an accused, convicted, or incarcerated persons will reoffend. The process is aimed at assisting in the determination of the appropriate limitation on the freedom of the subject. With innovation in technology especially in the area of artificial intelligence (AI), recidivism risk assessment tools built on AI technology are now well-developed and used in the criminal justice system. Algorithmic tools are increasingly being used in the Canadian criminal justice system in pre-trial, sentencing, and post-sentencing phases in predicting the future criminal behaviour of accused, convicted, or incarcerated persons. The increasing . . . [more]

[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]

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]

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

The recent decision of the Supreme Court of Canada in, R. v. Thanabalasingham 2020 SCC 18 (July 17, 2020; by a full Court of 9 Justices), demonstrates why the access to justice problem exists, i.e. the A2J problem of unaffordable legal services for middle- and lower-income people (they being the majority of society), is caused by . . . [more]

After a lot of pondering, I have decided to share my personal experiences of trying to get access to justice – including, at one point, finding myself confronted with the nightmare of being a self-represented litigant – with Slaw readers.

My experiences are no worse than thousands and thousands of others of course, but I hope that hearing this from a system “insider” (law professor, mediator, scholar, and researcher) will have some impact. This blog is organized around three themes in my own A2J journey (in Canada and England, but with almost identical conditions and legal rules) that I believe . . . [more]

For as long as there have been judges, people have tried to predict judges’ decisions. In so doing, they have always understood that judges are human beings. They are not calculators from an assembly line, each of which will display the same result if one punches in the same inputs. Thus, at any watering hole where litigators gather, it will be overheard that “Justice Smith comes down hard on drug offenders,” or “If your client has soft-tissue injuries, you had better hope that you don’t draw Justice Jones for the trial.”

In France, it would seem that such conversations are . . . [more]

Continuing Legal Education BC (CLEBC) is offering its annual Conflict Resolution Conference in an innovative virtual 24-hour format.

This is a great opportunity to learn from and with innovators from around the world who will share how the field is responding to COVID-19, increased calls for anti-oppression work within our systems, and the challenges of shifting our practices online. AND to do all this from the comfort of your home and at very affordable prices.

The conference site describes this unique approach:

“Participants will have the opportunity to learn about:

• conflict resolution responses to the COVID-19 pandemic, including both new

Use is essential in Canadian trademark law. The Federal Court of Appeal has addressed the “use” of a trademark in association with services on the internet. in the context of a non-use cancellation action.

The Trademarks Act defines “use” in relation to services if the trademark “is used or displayed in the performance or advertising of those services”.^[1] Courts have held that the mere advertising of services in Canada will not constitute use in Canada in association with a service. Some aspect of the services must be performed or delivered in Canada.^[2] This is a fact based assessment . . . [more]