Initial Feedback from CALE/ACEJ to Canadian Judicial Council on the review of the Ethical Principles for Judges

The Canadian Judicial Council (CJC) is currently undertaking a review of its Ethical Principles for Judges. More information can be found here.

In response to an invitation from the CJC, CALE/ACEJ has provided some initial feedback on the substance and process of the proposed review. For those interested in reading more, here is the letter that we have sent.

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.

Regulatory Developments in Ontario

Several significant motions passed at the Law Society of Upper Canada’s Convocation meeting today, including a motion dealing with a name change and a motion dealing with alternative business structures.

With respect to the name change, “Convocation voted overwhelmingly to change the Law Society’s name at its next meeting in November and to discontinue use of the words “Upper Canada.” For more details, see here. A lively debate on this issue that took place before today’s vote can also be found at on Slaw.ca here.

Regarding alternative business structures, “Convocation approved, in principle, a policy to permit lawyers and paralegals to provide legal services through civil society organizations (CSOs), such as charities and not-for-profit organizations.” For more details, see here.