Recent Canadian Legal Ethics Scholarship

A few recent additions of legal ethics related papers to SSRN:

Elaine Craig, Judging Sexual Assault Trials: Systemic Failure in the Case of Regina v Bassam Al-Rawi

Link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2949992

Abstract:

The recent decision to acquit a Halifax taxi driver of sexual assault in a case involving a very intoxicated woman, who was found by police in the accused’s vehicle unconscious and naked from the breasts down, rightly sparked public criticism and consternation. A review of the trial record in Al-Rawi, including the examination and cross-examination of witnesses, the closing submissions of the Crown and defence counsel, and the trial judge’s oral decision suggests a failure of our legal system to respond appropriately to allegations of sexual assault – a failure for which, the author argues, both the trial judge and legal counsel may bear some responsibility. Arguably, in addition to the many legal errors of the trial judge, both the Crown and defence counsel in this case also contributed to the problematic outcome in Al-Rawi. For example, defence counsel introduced evidence that the complainant had flirted and danced inappropriately earlier in the evening on the night of the incident. The theory of the defence appears to have been that the complainant, when she consumes alcohol, becomes the “type of person” who flirts and dances inappropriately with men in bars, and can reasonably be inferred to have entered a taxi, stripped her urine soiled clothes off, thrown them at the unknown driver, perhaps kissed or licked his face, and then propped up her legs in the straddle position minutes or seconds before passing out. The Crown did not object when defence counsel introduced this evidence, which arguably should have been excluded under Canada’s rape shield regime; nor did he, in his closing, urge the trial judge to ensure that it not be relied upon to draw stereotypical inferences about women, alcohol, and sex.

 

David Tanovich, Regulating Inductive Reasoning In Sexual Assault Cases

Link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2949147

Abstract:

Justice Marc Rosenberg will be remembered as one of Canada’s greatest criminal law jurists by those fortunate enough to have worked with him, to have appeared before him, and now, by those who study and rely on his jurisprudence. He was a jurist who cared deeply about the fairness of the criminal justice system and he strived in every decision to arrive at a just result on the law and the facts. Many of Justice Rosenberg’s judgments reflect a concern for the constant struggle of triers of fact to accurately and fairly assess the credibility and reliability of evidence in determining historical events whether it be the testimony of the accused or central Crown witness. This piece explores three decisions from Justice Rosenberg which highlight the different ways in which stereotyping can distort the assessment of credibility and reliability in sexual assault cases: R v. Levert, R v. Rand and, R v. Stark.

An important aspect of ensuring accuracy and fairness for Justice Rosenberg was the need to carefully regulate inductive reasoning: the engine that drives judicial reasoning and, ultimately, fact finding. The tools used for inductive reasoning include the decision maker’s or the law’s application of what it sees as common sense, logic and human experience. As an endeavour that explicitly relies on so-called common sense and generalizations about human experience, which shift with time, inductive reasoning can be highly subjective and can easily become a breeding ground for implicit bias, discriminatory stereotyping and unreliable decision-making.

 

Amy Salyzyn, Lori Isaj, Brandon Piva and Jacquelyn Burkell, Literacy Requirements of Court Documents: An Underexplored Barrier to Access to Justice

Link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2945441

Abstract:

We know that members of the public find court forms complex. Less is known, however, about what in particular makes these documents difficult for non-legally trained people to complete.

The study described in this article seeks to fill this information gap by deploying a “functional literacy” framework to evaluate court form complexity. In contrast to more traditional conceptions of literacy, “functional literacy” shifts the focus away from the ability to read and towards the ability of individuals to meet task demands. Under this framework, an individual is assigned a literacy level by virtue of the complexity of the tasks that he or she is able to complete. As a result, the framework focuses as much on tasks (and associated documents) as it does on the capacity of the individual.

Four different Ontario forms needed to initiate three different types of legal proceedings were examined: (1) a Plaintiff’s Claim (Form 7A) that an individual would need to start a claim in Small Claims Court; (2) a Form T2-Application about Tenant Rights that an individual would need to seek relief against a landlord before the Landlord and Tenant Board; and (3) an Application (General) (Form 8) and Financial Statement (Property and Support Claims) (Form 13.1) that an individual would need to seek a contested divorce that would include a contested spousal support claim and division of property. With respect to each court form, it was assumed for the purposes of the study that the individual using the court form would also be referring to the relevant government-published guide to completing the specific court form. Both the court forms and the guides examined were those in use as of July 2015.

The results of the study are described in significant detail in the article. Some of the identified sources of challenge include requirements to: generate information that requires expert legal knowledge; infer the meaning of technical legal terms; and move between multiple information sources (including, for example, searching on a website to find a correct court address). Another set of identified challenges was reflected in “distractors” contained in the court forms that risked confusing the reader, such as broad requests for information or the use of unclear terms. Although the associated court guides provided some guidance on the above types of issues, we found that such guidance was often incomplete and also potentially difficult to access given the overall complexity of the guides themselves.

Thomas Stuart Harrison, The Good, the Perfect and the Professional: Reflections on the Tension between Principle and Practicality When Teaching Legal Ethics

Link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2940259

Abstract:

This article identifies challenges in legal ethics and professionalism arising from the design and teaching of a new law course in the subject. It focuses on many of the major themes highlighted by the study of legal ethics and professionalism, both in Canada and beyond. In particular, the article seeks to sketch out a middle ground in the approach to professional issues, between the aspirational goals of legal professionalism and the gritty specificity of daily practice. This approach highlights the independent role of the bar to achieve the principled goals in law and identifies some limits in the traditional legal education and the justice system. In considering the issues identified, the author advocates for differentiated instruction in teaching legal ethics and professionalism and concludes by briefly describing efforts to integrate this mode of instruction in a new law course in the subject.

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