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Guest Blogger – Slaw



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Last Build Date: Fri, 15 Dec 2017 12:00:58 +0000

 



Book Review of the Mighty Hughes

Tue, 28 Nov 2017 12:00:07 +0000

A reader in search of a new book could be forgiven for taking a pass on The Mighty Hughes. After all, what could be interesting about the life and times of a saint who was neither mutilated nor martyred?

Such a reader should think again.

The story of the life of Ted Hughes QC, OC is a tale of aggressive virtue. His pursuit of honest outcomes and dishonourable individuals has brought him respect and fame throughout Canada. In the pages of Craig McInnes’s biography, Hughes is depicted as a heroic figure who has, at times, brandished the sword of . . . [more]




Beyond the Bitcoin Crash: Ontario Law Lays a Foundation for Enforceable Smart Contracts

Mon, 27 Nov 2017 12:00:26 +0000

The not-so-smart money has pushed the price of a Bitcoin well above US$6,000. The crash is inevitable. The first-mover “cryptocurrency” is based on an inefficient proof of work model designed for anonymous transactions on a public network. The next generation of blockhain developers, like those working on the Ethereum platform, are less interested in the ideology of anonymous transactions than the practicality of efficient business applications. Corporate adopters like the Enterprise Ethereum Alliance have already noted the pace of migration from anonymous public blockchain networks to a combination of public and permissioned private networks. Since “altcoin” currencies are not . . . [more]




The T-Shaped Lawyer: Successful Skills and Abilities of Current and Future Lawyers

Fri, 03 Nov 2017 12:30:45 +0000

This post originally appeared on the OsgoodePD Blog.

Technology has had a fundamental effect on most professions. It has standardized and simplified processes, removed labour intensive elements, and increased efficiency of how products and services are developed and sold. Most importantly, it has made it necessary for those in the profession to adapt and change who does the work, what the work is, and how the work is done.

Law and the practice of law has, in many ways, remained relatively untouched. That is until now!

Yes, computers and email have transformed how lawyers communicate and do their work, . . . [more]




On the LSUC Dialogue on Licensing, Pt 2: Where Is Access to Justice?

Thu, 19 Oct 2017 11:00:55 +0000

This blogpost addresses a second shortcoming in the foundational framing and materials for the Law Society of Upper Canada’s unfolding Dialogue on Licensing. In Part 1, I argued that the initial arguments and subsequent materials that have framed the Dialogue do not provide a clear or compelling demonstration of a ‘need for change’ in the current system for licensing of lawyers in Ontario. In this Part 2, I argue that a further shortcoming is a failure to adequately acknowledge the relevance of the ongoing inaccessibility of justice in Ontario. Proper recognition of access to justice issues could provide the . . . [more]




On the LSUC Dialogue on Licensing, Pt 1: Is There a Need for Change?

Thu, 21 Sep 2017 11:00:36 +0000

Over the summer months, the Law Society of Upper Canada has been conducting a Dialogue on Licensing to prompt information sharing, discussion, input and reflection on the future of the requirements for licensing of lawyers in Ontario. Based on materials disseminated as part of the Dialogue, a series of discussion sessions were held and summary reports released. Submissions were also invited through a broad call open into August. According to a late June update, the Professional Development and Competence Committee (PDCC) of the LSUC will spend the remainder of 2017 reviewing the input, with a view to producing . . . [more]




New MMS.watch Website Tracks Constitutionality of Canadian Mandatory Minimum Sentences

Mon, 11 Sep 2017 12:30:15 +0000

(image) Mandatory minimum sentences (MMS) for criminal and drug offences have been getting a lot of attention lately. The federal government recently conducted a public survey on MMS, causing some commentators to wonder whether the Liberals will make good on their campaign promises to roll back the MMS created by the previous government. The question is timely since Parliament resumes next week. Even StatsCan’s excellent Juristat weighed in last month with a detailed analysis of the effects of MMS.

We noticed that much of this debate was happening without reference to just how many MMS have already been struck down as . . . [more]




Curation Over Creation: Getting the Most Out of Existing Legal Information

Tue, 22 Aug 2017 11:00:38 +0000

This summer, with the support of a Donner Foundation fellowship, I developed web pages for Community Legal Education Ontario (CLEO) that connect Ontario nonprofits to existing legal information on incorporation, maintenance, and governance. This article is about the process of creating those pages. My hope is that others will use the process in areas of law where legal information exists online, but is: overwhelming in quantity, difficult to find, and/or scattered.

Pitching the Project: The Pragmatic and Philosophical Justifications of Curation

Before anyone can start the project, somebody needs to be convinced it’s worthy of scarce resources. Why not . . . [more]




The Positive Parenting Project: A Collaborative Local Initiative in the Therapeutic Justice Movement

Tue, 25 Jul 2017 11:00:40 +0000

“Spare the rod, spoil the child”, the old adage went. In Canada, we have come a long way from that belief in child-rearing, even with the availability of section 43 of the Criminal Code to parents/teachers or others standing in the place of a parent.

To raise children, given what research into child development indicates, requires incredible expertise and ongoing education. Early child educators, academics and parenting experts advise parents how best to navigate this complicated road. In my experience, many of those who are charged with over-discipline of their children did not have a great example of parenting themselves, . . . [more]




Lessons Learned in Criminal Law

Thu, 22 Jun 2017 11:00:57 +0000

I recently read Adam Dodek’s post for Slaw entitled “Letter to A Future Lawyer” where he provides some great words of advice to those being called to the bar. The piece reminded me of a document that I kept on my laptop during my articling that was titled ‘Lessons Learned.” As I fumbled through some of the various procedural mazes of the courthouse, my goal was to only make each mistake once. For the last seven years I have learned a lot more, and here are my best seven tips for those lawyers joining the ranks.

1. Be . . . [more]




An AI to Make Me Smarter

Wed, 21 Jun 2017 11:00:50 +0000

At Kobo last week, we had a guest-talk about machine learning by Sheldon Fernandez of Infusion.

After with a good grounding in deep learning systems, which mimic the human brain to a degree, we got to the interesting stuff: inscrutability, hidden factors and confounding variables. All of these pose problems to people trying to use AI, and illustrate reasons why others fear it.

Inscrutability in AIU is exactly what it is in people: an AI often cannot tell us how it arrived at a decision, or it’s description is so convoluted that it is almost worthless.

When we dig in . . . [more]




Holding Refugees Hostage at Legal Aid Ontario

Mon, 19 Jun 2017 11:00:33 +0000

Legal Aid Ontario is in a mess. In what should have been a good news story, LAO received new funding to enhance access to justice in recent years. Using this money, LAO created new programs and increased financial eligibility thresholds for existing programs. But LAO miscalculated demand for legal services and gave out more legal aid certificates than they could afford. The result: a deficit.

LAO now says that the deficit is not their fault. The big problem is that Canada has become increasingly welcoming towards refugees (you saw Trudeau’s tweet, right?). There is “unprecedented demand” for legal aid from . . . [more]




The Case for Redesigning Caselaw

Wed, 24 May 2017 11:00:42 +0000

To a jurist or a legal draftsperson, caselaw probably looks like a reliable, elegant way to record what legislation really means, in context.

To a programmer, it looks like a collection of bugs, for a program that was badly written in the first place and isn’t being maintained by its authors any more.

The programmer then goes looking for the bug-tracker for the criminal code and there isn’t one. At this point their head explodes.

Introduction

When a statute fails to deal with an unexpected situation, the courts fix it. This is a lot like fixing bugs in programs, . . . [more]




The Accessibility of the LSAT: A Response to Dean Sossin and Dean Holloway

Tue, 23 May 2017 11:00:58 +0000

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Harvard Law’s recent relaxation of the LSAT requirements by allowing applicants to take the GRE has spurred a debate in the Canadian context about whether it is prudent to maintain the strict LSAT requirements for law school admissions. So far, the deans of two law schools – Dean Sossin of Osgoode Hall and Dean Holloway of Calgary Law – have taken a public stand in support of the LSAT. The arguments cited are not new. The LSAT, it is argued, is a useful comparative tool that allows admission committees to compare the logical reasoning of their applicants. It is also . . . [more]




Suing for Defamation – a Call for Restraint

Wed, 26 Apr 2017 11:00:11 +0000

The law of Defamation continues to be one of the most technical areas of law, with special limitation periods, notice pre-conditions to the commencement of proceedings, special rules of pleading and evidence, and reverse onuses of proof. It is an area of law that requires great expertise and more importantly experience. A lawyer who provides advice and proceeds with a claim based solely on a review of the relevant legislation may do a great disservice to his or her client.

Absent the existence of special damages, defamation actions should rarely be brought for monetary reasons alone. It is an unfortunate . . . [more]




Translation at SOQUIJ

Mon, 24 Apr 2017 11:00:45 +0000

Since 2004, SOQUIJ has offered English translations of selected judgments of the Court of Appeal of Quebec, the Court of Quebec, and the Superior Court of Quebec, free of charge. Our aim is to promote access to Quebec case law beyond the francophone legal community and citizens of this province, make the valuable insight of Quebec judges more widely known across Canada, and enrich Canadian law.

Selection

The judgments we translate are of national interest. In other words, they are selected according to their relevance in areas of law applicable across Canada; accordingly, a majority of our translations are of . . . [more]




Mirror, Mirror, on the Wall, We Are the Greatest of Them All: The Ideal and Challenge of Humility in the Legal Profession

Fri, 31 Mar 2017 14:00:26 +0000

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It is no secret that a career in law is generally viewed as prestigious, elite and attracting high status in Canadian society. Those in law are often typified as strong, intelligent individuals and leaders. Multiple factors may influence such perceptions: from the long schooling required to be a lawyer; the various examinations aspiring lawyers must pass; historical notions of law as a noble profession; to TV depictions of busy, wealthy lawyers; and media coverage of high profile cases.

Not surprisingly, many students-at-law and lawyers alike learn to feel proud of their role and the prestige that comes with it. In . . . [more]




Constructing Competence: One Student’s Experience in Legal Education

Thu, 30 Mar 2017 17:00:39 +0000

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Since entering law school, people have told me their personal “horror” story regarding their experience with a lawyer. They generally follow the same narrative arch: “I paid X amount of dollars and the lawyer did nothing for me. They were so incompetent!” As I often stand steadfast in the defense of my chosen profession, there is a voice in my head that whispers, “maybe they’re right”. Though the law society has formed a comprehensive definition of competence, in my experience, there has been little done in the rearing of new lawyers to meet it.

The Law Society of Upper Canada . . . [more]




The Need for a Broader Public Safety Exception: Ethical Duties to Survivors of Intimate Partner Violence

Thu, 30 Mar 2017 14:00:13 +0000

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The ethical duty of defence counsel to evaluate information under the public safety exception to solicitor-client privilege should be broadened to require disclosure when an offender is being released back into an environment where intimate partner violence will likely reoccur.

Consider a situation of domestic violence.[1] A woman calls the police to report an assault by her husband. It was not the first time he assaulted her, but she did not previously report the abuse. Charges are laid. A psychological assessment is conducted, an expert stating that the defendant has violent tendencies and is likely to reoffend. The defendant . . . [more]




The Limits of Codes of Professional Conduct and the Value of a Lawyer Following Their Own Conscience: Lessons From Atticus Finch

Wed, 29 Mar 2017 14:00:19 +0000

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“Is it or is it not an ethical dilemma?” “Does such a behaviour violate the ethical rules in the Rules of Professional Conduct?” These are questions that we students were asked each day in our Professional Responsibility class. However, day after day, we were often unable to reach a conclusive answer to a myriad of ethical dilemmas. I found myself often pondering why it was often so difficult to reach a conclusive answer to an ethical issue.

As law students, we are trained to unfailingly following rules, such as the Law Society of Upper Canada’s Rules of Professional Conduct, . . . [more]




“Truth, Justice, and the Ethical Way”: The Legal Ethics of Government Lawyers

Tue, 28 Mar 2017 17:00:46 +0000

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Ever wondered what government lawyers and superheroes have in common? Although you are unlikely to see counsel in capes, flying through the metropolis, government lawyers and superheroes serve the public in the pursuit of justice. Both are accurately described as guardians of the public interest, albeit in very different contexts. Government lawyers and superheroes also hold great power and must use it to advance the public interest ahead of all else. And with great power comes great ethical responsibility.

The intersection of professional responsibility and the public service situates the unique role of federal and provincial government lawyers in the . . . [more]




Lawyers Behaving ‘Badly’: Should Lawyers Be Breaking the Rules?

Tue, 28 Mar 2017 14:00:31 +0000

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The Faculty of Law at the University of Ottawa is known for its expertise in social justice and in my experience many of my colleagues decided to attend this institution for this reason.[1] When I applied and accepted my offer of admission to the University of Ottawa I did so because I hoped that my professors would provide me with the knowledge and skills that I will need to practice law within a system of laws that is not “always a system of justice”.[2] I have not been disappointed in this respect. However as my time as a . . . [more]




David Versus Goliath – Lawyer’s Professional Responsibility & Self-Represented Litigants

Mon, 27 Mar 2017 17:00:43 +0000

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The story of “David and Goliath” is a part of our cultural consciousness. Generally, the biblical tale is told as follows: a young shepherd battles a giant warrior and, using only a slingshot, comes out victorious. Today, the phrase “David and Goliath” represents a more secular meaning as a metaphor for improbable victories by a weaker party, better known as the “underdog”. A quick glimpse at popular culture illustrates that this “underdog phenomenon” has generated mass appeal – but why? Some scholars have said it is because the underdog story gives us hope for a fair and just world. However, . . . [more]




The Lawyer Licensing System in Ontario

Fri, 17 Mar 2017 14:00:35 +0000

A vital part of the Law Society’s legislated mandate is to ensure that all lawyers called to the Bar in Ontario have the demonstrated competency to practise law at an entry level.

There are many stakeholders across the legal profession in Ontario who believe that the current licensing process is unfair and unsustainable over the long term, and needs to continue to evolve. There is no consensus, however, on the shape or scope of that change.

The Law Society understands that any change in the fundamental components of lawyer licensing must be supported by the profession.

In this article, I . . . [more]




Critical and Emerging Issues in Blockchain Law

Mon, 27 Feb 2017 15:00:11 +0000

Six years ago, two Papa John’s pizzas were traded for 10,000 bitcoins. Today, those bitcoins are worth approximately $10,000,000 and around $200,000,000 in bitcoin changes hands daily. In 2016, the technology under the hood of Bitcoin, commonly called “blockchain technology” or “Distributed Ledger Technology” is being looked to for applications in insurance, banking, trade, and finance.

Where will blockchain take us in 2020? What legal issues will you be asked to grapple with in 2017 as blockchain continues its transition from the startup community to the financial services industry?

The Bank of Canada, Senate, and Department of Finance have been . . . [more]




Dismantling the Roadblocks to Judicial Diversity

Tue, 21 Feb 2017 12:00:48 +0000

Over a century ago, without his knowing it, legendary jurist Oliver Wendell Holmes spawned the case for judicial diversity in ten words: “the life of the law is not logic, but experience.” Bursting from these words is a truth we have known all along. Legal issues often pose uneasy choices. In choosing whose stories to believe and which principles to prioritize, a judge draws on not only legal precedents, but also personal experiences, values and beliefs.

However they might try, judges cannot shed their experiences and values at the courtroom door. Justice Bernd Zabel brought the point home when he . . . [more]




Canadian Association of Muslim Women in Law Receives 2016 SABA Diversity Award

Fri, 18 Nov 2016 13:00:14 +0000

The Canadian Association of Muslim Women in Law (CAMWL) was founded in 2013 by Muslim women in the legal community who were brought together by their commitment to social justice. Since then, through its public education, direct advocacy, and law reform initiatives, CAMWL has endeavoured to help shape a legal profession that is responsive to our collective obligation to promote substantive justice and equality.

On November 14, 2016, CAMWL was honoured to receive the 2016 Diversity Award from the South Asian Bar Association. What follows are the remarks delivered that night by CAMWL co-founding member, Fathima Cader.

*****

SABA 2016 . . . [more]




Standard of Review: The Great Passion of Canadian Law?

Wed, 09 Nov 2016 16:00:23 +0000

The great passion of Canadian law is standard of review. Judging by last week’s 5:4 decision in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, we can’t get enough litigation and case law on the subject.

First, a note about the style of cause, which is determined by the vagaries of court practices. The order of the parties should really be reversed, because it was Edmonton East (Capilano) Shopping Centres Ltd. (the “Company”) that started the case by filing a complaint with the Assessment Review Board (the “Board”) for the City of Edmonton (the . . . [more]




‘If Not Us, Who? if Not Now, When?’: Reflections on the Law Society’s Challenges Faced by Racialized Licensees Working Group Report

Mon, 31 Oct 2016 15:00:33 +0000

The Law Society debate, set for December 2, 2016, is the most significant acknowledgment of the obligation to address issues of systemic racism within the Ontario legal profession to date. It is a call to action. The Law Society’s commitment is anchored in its 1997 Bicentennial Report and the Report of the Bicentennial Working Group. Much has changed since the Law Society’s largely unimplemented response of 1999 to the Canadian Bar Association Recommendations flowing from the Report on Racial Equality and my own complementary Virtual Justice Systemic Racism in the Canadian Legal Profession Report. In the intervening two . . . [more]




The Alan Turing Law: Who’s Pardoning Whom?

Fri, 28 Oct 2016 15:00:23 +0000

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The UK government recently announced plans to pass an “Alan Turing law” to pardon men convicted of historical offences related to homosexuality. The bill would pardon about 15,000 living citizens of the UK and posthumously pardon 40,000 (including Oscar Wilde). This follows the 2013 posthumous pardon of Alan Turing, the brilliant codebreaker who greatly contributed to the Allies’ victory in World War II and was rewarded with a conviction for gross indecency and chemical castration before dying by suicide.

Reactions to the proposed law are mixed. While a pardon is better than a permanent stain on one’s memory and . . . [more]




Ontario Land Titles System to Add Risk to Owners

Wed, 19 Oct 2016 11:00:03 +0000

The Ontario Land Titles Act pushes onto an owner the risk of the owner’s transfer being void. It does so, even if the owner took proper care when buying. This is an outdated idea. Most modern land titles systems don’t use it.

Ontario’s Bill 27, the Burden Reduction Act, 2016, includes a major change to the Ontario Land Titles Act. The bill aims to modernize Acts and reduce their burden. The bill would put a new definition of a “fraudulent instrument” into the Ontario Land Titles Act. This would push even more risk onto an owner. It . . . [more]