Nearly three years ago, I wrote here that the use of s. 33 in Ontario constituted “UnChartered waters.”

Given the successful appeal in that case, the use of the clause ultimately wasn’t necessary. However, I was fortunate to appear as an intervener before the Court to note that the potential use of the notwithstanding clause would presumably emerge in circumstances that were clearly pressing and substantial, and asked the Court to carefully scrutinize any such rationale as a result. That decision is still pending.

Perhaps because the case involved the elections of a single city (albeit the largest in Canada, . . . [more]

Systems and entities can be evaluated by measuring inputs against outputs, and then benchmarked against peers to rank relative performance. This simplistic measurement tool may not indicate optimal performance (as a whole sector could be functioning poorly) but it can be helpful generally to identify the best and worst performing entities within a given peer group. It can likewise prove useful to identify areas in need of improvement, and when tracked over time, can identify trends in performance. In sum, benchmarking is useful to gauge the relative performance, or lack thereof, of the Ontario court system.

The function of the . . . [more]

The Canadian Judicial Council (CJC) was founded in 1971, under what is now Part II of the Judges Act, largely stemming from concerns from the Royal Commission of Inquiry from the Justice Leo Landereville affair.

The Council has 41 members, and in the modern world helps the Canadian judicial system keep up with the values of society. However, the the CJC has faced criticism over its policies and procedures in recent years.

The CJC has released several important guidance documents over the years, including the Ethical Principle for Judges in 1998. In 2006, the CJC released the Statement of . . . [more]

In July 2020, the Ontario Legislative Assembly enacted new legislation governing the provision of legal aid in the province, Legal Aid Services Act, 2020 (“2020 Act”). The legislation does not come into force until it has been proclaimed by the Lieutenant-Governor and that won’t happen until new rules have been finalized. The board of Legal Aid Ontario (LAO) (called “the Corporation” under the 2020 Act) has the authority under section 46 of the 2020 Act to make rules governing the provision of legal aid. The proposed rules are currently available for comment on Legal Aid Ontario’s website (more on that . . . [more]

In 2000, in an article in the UNB Law Journal (Vol. 49, 169) about section 33, entitled “Section 33 of the Charter: What’s the Problem, Anyway? (Or, Why A Feminist Thinks Section 33 Does Matter)” I said, “Whatever merits it might have, dressed up as a means to represent the will of the people against the follies of unelected courts, recourse to section 33 may actually legitimate the continuation of prejudice.” (p.169) Bill 21 (SQ 2019, c12), An Act respecting the laicity of the State, illustrates the scope of section 33 to have a significant impact on freedom of . . . [more]

The Biden administration has made a key announcement on how Americans talk about immigration. The terms “illegal alien” and “assimilation” have been replaced by “undocumented noncitizen” and “integration”. The details of this shift in terminology has been sent to US Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (CBP). As reported by NPR:

“As an essential steward of a more secure and humane immigration system, ICE will set a tone and example for our country for years,” wrote Tae Johnson, ICE’s acting director in his memo announcing the new language guidance.

“The way that we choose to communicate

On April 16, 2021, the Province of Ontario introduced new measures under the Emergency Management and Civil Protection Act, which would allow law enforcement to stop individuals and vehicles, asking them the reasons for leaving their home.

The government believed it necessary to stop COVID-19, as part of their broader support to a complete lockdown and stay at home order to battle a third wave of the virus.

The amendment to O. Reg 294/21 stated,

Requirement to provide information

2.1 (1) This section applies as of

In the article” Ontario Civil Justice Reform in the Wake of COVID-19: Inspired or Institutionalized?” by Suzanne E. Chiodo, Professor Chiodo remarks that “Ontario’s justice system is already facing an overwhelming backlog, and the courts’ inability to function at full capacity—combined with the spike in litigation that is sure to follow the pandemic —could lead to a breakdown of the system.” 

Unfortunately, simply moving court processes online to Zoom will not demolish the backlog. Some of the contributing factors to the backlog include: a poorly structured system, chronic underfunding of the courts, and outdated rules from the Rules of . . . [more]

In my last Slaw post, I reviewed the concept of “universal design”, which was initiated about 25 years ago to respond to the increased participation of persons with disabilities; at the time, it tended to be limited to the built environment, although it has since expanded to other contexts. In this post, I begin considering how universal design might provide a feasible framework for the legal system. My post of May 5, 2020 also provides background. . . . [more]

While I find Twitter posts too often to be vicious, bigoted (neither in those I actually follow, but in retweet comments), frustrating and a lagoon of self-congratulatory messages (“I’m honoured and humbled to have won/been recognized for/have been included among these fabulous people….”), I also enjoy some people’s very clever humour and discover news of developments I might not otherwise see. So it is with a Tweet from @lawtech_a2j (aka the UK’s Roger Smith): “The concept of user-centred legal design has proved itself as exciting, galvanising and innovative over the last decade. Can we call it a ‘game changer’? It . . . [more]

On Feb. 25, 2021, I provided the keynote speech at Bora Laskin School of Law for Black History Month. I noted that Black History could not be just reduced to slavery, but at the same time the legacy and trauma of that history has significant impacts on our society and justice system today.

The Ontario Court of Appeal recently heard an appeal of Justice Nakatsuru’s decision in R. v. Morris, which explored the social circumstances of Black Canadians and its impact on the justice system.

Justice Nakatsuru took into account the unfair and disproportionate discrimination that Black offenders face . . . [more]

The Canadian Bar Association’s Task Force on Justice Issues Arising from COVID-19 studied the issues, wrote a report, and presented it at the February 17, 2021, annual general meeting.

The risk with reports, however, is that they can become static documents, a snapshot of an issue. Reports gather dust as a collection of information if no one pulls up their sleeves to do the actual work to carry out their recommendations – and by the time the report comes out the political will to act may have subsided.

In our case, the ongoing pandemic is keeping these issues current . . . [more]