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.

Green v. Law Society of Manitoba

On March 30, the Supreme Court of Canada released its decision in Green v. Law Society of Manitoba with the majority agreeing with the courts below that the Law Society of Manitoba (“Law Society”) can impose rules that couple a mandatory CPD program with a possible suspension for failing to meet the program’s requirements.

Justice Abella and Justice Côté authored a dissent, holding (as described in the headnote) that:  “A rule that leads to an automatic suspension for failing to attend 12 hours of continuing professional development is so far removed from ensuring the public’s confidence in lawyers that it is manifestly unjust, and therefore, unreasonable.”

Law Student Week at Slaw.ca!

This past week, Slaw.ca hosted several very interesting blogs on legal ethics written by law students. They are worth a read! Professor Adam Dodek’s introduction is excerpted below:

In a decade of teaching legal ethics, I have come to realize that students bring different and often fresh viewpoints to their analysis of ethical issues in the profession. Slaw founding Publisher Simon Fodden agreed to provide a forum for our future colleagues at the bar to share these perspectives with a wider audience. We are fortunate that his successor Steve Matthews has continued to do so.

This year seven University of Ottawa students produced interesting and provocative that will be published by Slaw over the course of this Student Week (March 27th through 31st). The issues range from how and where to learn competency, humility as an ethical value and expanding the public safety exception to confidentiality and privilege to include reporting on intimate partner violence. Other papers deal with the professional responsibility of lawyers in dealing with self-represented litigants, government lawyers as superheroes and lawyers behaving badly. And Atticus Finch and To Kill a Mockingbird. Of course. I hope you are challenged by these students as much as I was. And I hope you enjoy their writing as much as I have.

CJC Recommends that Justice Camp be Removed from Office

On March 9, 2017, the Canadian Judicial Council released its Report recommending that Justice Camp be removed from office. The CJC’s press release may be found here and the full Report, here.

Following the release of this Report, Justice Camp announced that he would resign and issued an apology. More details can be found here.

This development attracted significant media coverage, including an op ed in the Globe and Mail by CALE President Alice Woolley.

 

LSUC Advertising and Fee Rules to Change

At its February Convocation, the Law Society of Upper Canada voted to amend its conduct rules governing the advertising of legal services with a view to strengthening their ability to protect the public. In the Law Society’s own words, the amended rules:

  • Provide detailed guidance on what awards may be used for marketing purposes. Amendments to the rules provide specific direction to the professions on the type of awards and honours that are permitted in advertising.
  • Require licensees to identify in their advertising whether they are a lawyer or paralegal. This will enhance the public’s awareness of the different types of licences and help the public make a more informed choice of legal service provider.
  • Prohibit advertising of second-opinion services. The Working Group found that the main purpose of second-opinion advertising was to attract already-represented clients with the intention of having the client switch lawyer or paralegal — rather than to market valuable second-opinion services. Under the new rules, second-opinion services are still permitted. The Working Group found that the public is well-informed of the right to seek a second opinion and to change lawyer or paralegal. Advertising of this service is not required.
  • Make explicit that lawyers and paralegals may not advertise for work they are not licensed to do, not competent to do or do not intend to do. The amended rules provide additional guidance to lawyers and paralegals in these areas to ensure that they are fully aware of their obligations to the public.

At the same meeting, the Law Society approved a policy to cap and further regulate the fees a lawyer or paralegal may charge for referring a client to another licensee. More details from the Law Society on this change can be found here.

 

 

Family Legal Services Review (aka Bonkalo Report) now released

Link to full report is here.  Public feedback is being solicited until May 15, 2017.  Below is an excerpt from the Ministry of Attorney General’s press release that provides background on the report:

Improving Access to Justice for Families

Making the Family Court System Easier to Navigate

March 6, 2017 12:00 P.M.

Ontario is helping families by making it easier for them to navigate family courts and access the legal assistance they need.

Last year, Ontario and the Law Society of Upper Canada asked the Honourable Annemarie E. Bonkalo to lead a review to consider whether a broader range of service providers could deliver certain family legal services.

Ontario and the Law Society are now seeking public feedback on Justice Bonkalo’s recommendations. People can submit feedback online until May 15, 2017.

The province, together with the Law Society, plans to release an action plan by fall 2017 to address these recommendations.

In addition, Ontario has asked the federal government to support its plans to expand Unified Family Courts provincewide. Expanding these courts would streamline the family court process by ensuring Ontario families only have to go to one court to resolve their legal issues no matter where they live.

Improving access to justice for families is part of our plan to create jobs, grow the economy and help people in their everyday lives.

 

The Immunity of the Attorney General to Law Society Discipline

New scholarship from CALE member Andrew Flavelle Marton published in the Canadian Bar Review on the interesting question of whether the law society can discipline the AG.

Abstract:

The Attorney General is both the minister responsible to the legislature for oversight of the law society and a practicing member of the law society. This dual status raises important questions: Is the Attorney General subject to discipline by the law society? Should she be? This article argues that the Attorney General is immune, absent bad faith, both for prosecutorial discretion and core policy advice and decisions, as well as absolutely immune under parliamentary privilege for anything said in the legislature. The Attorney General enjoys no special immunity otherwise, i.e. for the practice of law outside prosecutorial discretion and for policy and political functions outside core policy advice and decisions. (The Attorney General for Ontario enjoys extended immunity under a statutory provision that is unique to that province.) The article then argues that the Attorney General should generally be subject to discipline to enhance the rule of law and the protection of the public. If some immunity is necessary, that immunity should require good faith.

Link to here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2889089

An Inquiry Committee of the Canadian Judicial Council recommends the removal of Justice Camp

Message from Canadian Judicial Council:

 

Ottawa, 30 November 2016 –The Inquiry Committee reviewing the conduct of Justice Robin Camp has presented its report to the Canadian Judicial Council. An Overview of the Report is also available on the Council’s website.

The Inquiry Committee found that Justice Camp committed misconduct while presiding over the trial in R. v. Wagar and placed himself, by his conduct, in a position incompatible with the due execution of the office of judge within the meaning of paragraphs 65(2)(b) and (d) of the Judges Act.

The Inquiry Committee found that during the Wagar trial Justice Camp made comments and asked questions evidencing an antipathy towards laws designed to protect vulnerable witnesses, promote equality, and bring integrity to sexual assault trials. The Inquiry Committee also found that Justice Camp relied on discredited myths and stereotypes about women and victim-blaming during the trial and in his reasons for judgment.

The Inquiry Committee has expressed the unanimous view that a recommendation by the Council for Justice Camp’s removal is warranted.

Council will now consider the Inquiry Committee’s report, after giving Justice Camp an opportunity to make written submissions.

After considering all the issues, Council will decide on a recommendation to make to the Minister of Justice of Canada in this matter.

Information about the Council, including the process for public inquiries, can be found on the Council’s website at www.cjc-ccm.gc.ca.