R Mendleson and R Brennan, Judging of judges should be public: Opposition critics

 Critics at Queen’s Park are calling on the province to lift the veil of secrecy that keeps the public in the dark about investigations into complaints against judges.

“There is something suspicious about the whole process when there isn’t even a report put out to the public,” interim Progressive Conservative Leader Jim Wilson said Monday. “I think the government should be held accountable.”

Wilson’s comments come after a Star investigation into a complaint against a Toronto judge who had been repeatedly admonished, and the system that keeps the vast majority of such complaints under lock and key.

Confidential documents, provided to the Star by an unknown source, detailed how the complaint was handled in secret, and the case closed.

According to the Ontario Judicial Council, which probes complaints against judges, there is a “general order,” permitted under Ontario law, banning the publication of any documents and information relating to complaints that don’t result in a public hearing.

The rest of the Toronto Star story HERE

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A Dodek: Why won’t MacKay release his legal advice on prostitution?

ADAM DODEK  Contributed to The Globe and Mail

Published Tuesday, Jul. 08 2014, 12:34 PM EDT
Last updated Tuesday, Jul. 08 2014, 12:42 PM EDT

Minister of Justice Peter MacKay has confidently asserted two things about Bill C-36, the Government’s new proposed prostitution law: that it will certainly be challenged in the courts and that it is constitutional. Mr. MacKay is undoubtedly correct that there will another round in the legal battle over the country’s prostitution laws that will make its way back to the Supreme Court. Until then, we will not know if he is correct about the bill’s constitutionality.

Mr. MacKay can, however, back up his second claim by showing Members of Parliament and Canadians the legal advice that supports his confident assertion. And he should.

Canadian governments have remained steadfast in their refusal to publicly reveal the legal advice that forms the basis for many of their decisions. Governments love to rely on solicitor-client privilege – the protection afforded by the law to confidential communications between a client and lawyer. The Supreme Court of Canada has recognized solicitor-client privilege as a fundamental legal and civil right that enjoys constitutional protection in certain circumstances. For reasons that I have argued elsewhere, it does not make a lot of sense to talk about the government enjoying such constitutional protection.

For the rest of the post, click HERE

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G Hamilton: Judge accused of buying cocaine as a lawyer attempts to halt disciplinary procedure before hearings even begin

National Post article

Graeme Hamilton
Thursday, Jul. 10, 2014

MONTREAL — A Quebec Superior Court judge facing possible removal from the bench over allegations he bought cocaine during his days as a lawyer has gone to court in an attempt to halt a disciplinary procedure before hearings are even held.

In an application for judicial review filed with Federal Court, Justice Michel Girouard is challenging the Canadian Judicial Council’s powers to investigate complaints against judges.

Among other arguments, Judge Girouard is saying the council has no business examining his behaviour when he was practising law before his 2010 appointment to the bench. “Only the provincial authority has the jurisdiction to investigate and draw conclusions on the conduct of a lawyer,” his lawyers write in the application.

The Council, whose members include Supreme Court of Canada Chief Justice Beverley McLachlin and all superior court chief and associate chief justices, announced in February that it would hold a public inquiry into Judge Girouard’s conduct.

“After a careful review of the matter, the members of the [review] panel decided that the issues in question are serious enough that they could warrant the judge’s removal from office,” the council said at the time. A three-person inquiry committee was named last month, but proceedings are on hold until the Federal Court case is resolved.

The rest of the story HERE

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Contract on toilet paper slammed by Saskatchewan Law Society

Lawyer was unhappy with being asked to furnish a retainer agreement

CBC News Posted: Jun 24, 2014 5:30 AM CT Last Updated: Jun 24, 2014 5:30 AM CT

A Saskatchewan lawyer who submitted a piece of toilet paper as proof of a contract with his client has been sharply rebuked by the province’s law society.

In a decision recently published to an online legal database, Ron Cherkewich, from Prince Albert, Sask., has been ordered to pay a fine and investigative costs totaling $10,500 for the ill-advised stunt, which the law society said amounted to conduct unbecoming a lawyer.

According to the decision, Cherkewich’s behaviour — described as “rude and provocative” — took place in 2011 while he was representing a client who had filed a claim under Canada’s Indian Residential Schools Settlement agreement.

The full story

Posted in Decisions, Ethics and Professionalism, News Items | Leave a comment

R N M Graham: Legal Ethics: Theories, Cases, and Professional Regulation (3rd Edition)

Randal N. M. Graham’s casebook: Legal Ethics: Theories, Caes, and Professional Regulation (Emond Montgomery Publications, 2014) available soon.

Order through Emond Montgomery Publications

From the website:

Legal Ethics: Theories, Cases, and Professional Regulation, 3rd Edition is the only Canadian legal ethics text to focus specifically upon the approach applied by regulators in practice, presenting lawyers’ ethical obligations in direct relation to the concepts that are of greatest concern to regulators. This casebook delivers a structured and rational assessment of ethical decision-making by tying it to predictable and measurable costs and benefits, and examining the impact of decision outcomes on the social functions of the legal system.

The third edition of Legal Ethics: Theories, Cases, and Professional Regulation has been adapted to reference the Federation of Law Societies’ Model Code of Professional Conduct as its primary source of ethical rules, so that it may apply to all Canadian jurisdictions. It features an expanded section on the Good Character requirement that applies to students on their admission to the bar, as well as a new section on Civility, and recent developments in the expanding Duty of Loyalty. The regulatory approach presented by the author demystifies nebulous notions of “ethics” and “morality” by examining the efficient functioning of the legal system, the effect of rules on self-interested actors, the goals of deterrence and compensation, and the implications of a self-governing profession.

Throughout this edition of Legal Ethics: Theories, Cases, and Professional Regulation, surprising theoretical situations are introduced to illuminate the intricacies of legal ethics and demonstrate how they are applied in practice. Extensive sample questions, illustrative scenarios, and hypothetical case studies will provoke lively classroom discussion and thoughtful analysis of the ethical principles being considered. This casebook delivers a thorough and methodical account of legal ethics that will equip students with the insight and analytical capacity to apply their knowledge in a wide variety of practical and professional contexts.

Posted in CALE business, Ethics and Professionalism | Leave a comment

Workshop: Ethics and Civility in the Practice of Law

A 1/2 day program on Ethics and Civility in the Practice of Law for the Canadian Institute for the Administration of Justice. The program will be held in Edmonton at the Sutton Place Hotel on September 26, 2014 from 8:30am -12:30pm.

From the flyer:

A half-day, hands-on, practical seminar addressing some of the more intractable ethical issues lawyers, judges, and tribunal members must deal with in practice: Do the courts, and law societies have a role in regulating civility and, if so, how do their roles differ? What role is there for professional bar associations? What unique ethical and civility issues arise in the context of administrative proceedings? What special ethical and civility issues apply to and arise for in-house and government lawyers?

Agenda and additional information

Posted in Ethics and Professionalism, Government Lawyers, Lectures/Workshops | Leave a comment

N Semple: Legal Services Regulation at the Crossroads: Justitia’s Legions

Noah Semple’s book, Legal Services Regulation at the Crossroads: Justitia’s Legions will be published by Edward Elgar in 2015.

Updates will be posted here when we have them.

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T Farrow: Civil Justice, Privatization, and Democracy

Trevor Farrow, Civil Justice, Privatization, and Democracy (University of Toronto Press, 2014)


Privatization is occurring throughout the public justice system, including courts, tribunals, and state-sanctioned private dispute resolution regimes. Driven by a widespread ethos of efficiency-based civil justice reform, privatization claims to decrease costs, increase speed, and improve access to the tools of justice. But it may also lead to procedural unfairness, power imbalances, and the breakdown of our systems of democratic governance. Civil Justice, Privatization, and Democracy demonstrates the urgent need to publicize, politicize, debate, and ultimately temper these moves towards privatized justice.

Written by Trevor C.W. Farrow, a former litigation lawyer and current Chair of the Canadian Forum on Civil Justice, Civil Justice, Privatization, and Democracy does more than just bear witness to the privatization initiatives that define how we think about and resolve almost all non-criminal disputes. It articulates the costs and benefits of these privatizing initiatives, particularly their potential negative impacts on the way we regulate ourselves in modern democracies, and it makes recommendations for future civil justice practice and reform.


Posted in Access to Justice, Articles/Books | Leave a comment

A Dodek’s new book: Solicitor-Client Privilege

Adam Dodek’s new book Solicitor-Client Privilege (Lexis Nexis, 2014) has finally been published.

Details for the book launch:

  • in Ottawa in conjunction with the County of Carleton Law Association and the Cavanagh LLP Professionalism Speaker Series on Tuesday June 24th http://www.ccla-abcc.ca/events/event_details.asp?id=447009&group=  Please register for this event; and
  • in Toronto on Thursday, June 26th from 5:30-7:30 pm at the LSUC.  The Honourable Stephen T. Goudge will provide introductory remarks and refreshments will be served.  RSVP to SCPBookLaunch@gmail.com to let me know if you can make it.

Description from the LexisNexis website:

Solicitor-client privilege is the oldest and strongest legally-sanctioned safeguard protecting confidential communications. Yet, lawyers today know very little about the ways in which solicitor-client privilege can be overridden or rendered inapplicable. Most practitioners assume that all lawyer-client communications are protected – they aren’t.

Solicitor-Client Privilege is the only Canadian textbook of its kind to explain key aspects of lawyer-client confidentiality. With a Foreword written by former Supreme Court of Canada justice Ian Binnie, this distinctly Canadian law textbook analyzes the exceptions to privilege, conditions where privilege is unclear, and situations of competing interests that might bring into question the application of privilege.

Especially useful is the examination of privilege in specific contexts, such as in civil litigation, administrative law, corporate settings, and government. Portable and immediately accessible, this useful hardcover book gives lawyers the answers they quickly need, and assurances as to when they can rely on solicitor-client privilege and when they can challenge it.

 For more information, and to ORDER

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Maj.-Gen. Blaise Cathcart faces examination in Nova Scotia

Judge advocate general has gone 3 years without filing reports to defence minister

By James Cudmore, CBC News Posted: May 30, 2014 5:00 AM ET Last Updated: May 30, 2014 5:00 AM ET

Maj.-Gen. Blaise Cathcart, the top lawyer and general in charge of Canada’s military justice system, is under scrutiny by legal regulators after an apparent failure to comply with the National Defence Act three years running.

And CBC News has learned the other two pillars of military justice — the directors of defence and prosecution — have each also apparently broken military regulation for a similar failure.

Cathcart, the military’s judge advocate general, has admitted he failed to provide reports on the administration of military justice, as he is required to do by law.

Full story on the CBC website

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