New Scholarship:The Attorney General’s Forgotten Role as Legal Advisor to the Legislature: A Comment on Schmidt v Canada (Attorney General)

CALE member Andrew Martin has a new article up on SSRN (published in UBC Law Review).

Here is the abstract:

In Schmidt v Canada (Attorney General), the Federal Court of Appeal interpreted a series of provisions requiring the Minister of Justice to inform the House of Commons if government bills or proposed regulations are “inconsistent with” the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights. The Federal Court of Appeal, like the Federal Court below, held that these provisions are triggered only where there is no credible argument for consistency. In doing so, both Courts relied, in part, on a separation of powers argument. They stated that the Minister of Justice and Attorney General is not a legal advisor to Parliament. However, this statement was a legal error: federal legislation provides that the Attorney General is, as a matter of law, a legal advisor to Parliament.

New Scholarship: Advocacy in Non-Adversarial Family Law: A Recommendation for Revision to the Model Code

New scholarship from CALE member Deanne Sowter now up on SSRN!

Link here.

Abstract:

Family law is evolving towards non-adversarial dispute resolution processes. As a result, some family lawyers are representing clients who are trying to reach settlements that recognize their interests, instead of just pursuing their legal rights. By responding to the full spectrum of client needs, lawyers are required to behave differently than they do when they are representing a client in a traditional civil litigation file. They consider the emotional and financial consequences of relationship breakdown – things that are not typically within the purview of the family law lawyer. They objectively reality check with their client, and they approach interest-based negotiations in a client-centric way. These lawyers view their role as that of a non-adversarial advocate, and their client as a whole person with interests that are not just legal. This paper draws on an empirical study involving focus groups with family law lawyers, to argue that the Federation of Law Societies of Canada, Model Code of Professional Conduct, needs to be updated to incorporate non-adversarial advocacy. The lawyers in the study viewed non-adversarial advocacy as being responsive to client needs, and in the interest of the client’s children. This paper draws from the study to establish what constitutes non-adversarial advocacy and then it presents a proposal for revising Rule 5 (Advocacy) of the Model Code.