The Power of Perspectives

The Canadian Bar Association

National Blog

How do we measure technology's impact on access to justice?

By Selena Lucien February 3 2016 3 February 2016

    Technology and the legal system are on a collision course. In the past few years, Ontario has witnessed the proliferation of unregulated digital technologies that aim to simplify, facilitate, and reduce the cost of legal services. Spearheaded just six months ago by Aron Solomon and Jayson Moyse, the LegalX Cluster at MaRS Discovery District has already emerged as a world leader in the legal innovation space supporting technologies such as Beagle.ai, LawScout, and Knomos. The Legal Innovation Zone at Ryerson University’s DMZ is also home to emerging legal technologies that aim to “change the status quo of the Canadian legal system” with companies such as Kabuk, Map your Property, and Kinso to name a few.

    These emerging technologies are increasingly transforming the relationship between law and society.  What is striking about the advent of legal technologies is that their purpose is not limited to improving the management and efficiency of the legal profession alone; it is to simultaneously empower all parties using the legal system. Motivating many legal technologists is more than a desire to profit. They seek to assist individuals in finding, understanding, and complying with legal rules that govern their lives. Some of these new technologies are also designed to support law-making bodies and to analyze proposed laws for cost, overlap, and inconsistency.

    Access to justice is the most urgent issue facing the legal system today. A 2013 report by the Canadian Bar Association, Reaching Equal Justice, points out that “the state of access to justice in Canada is abysmal and getting worse” and that “public confidence in the legal system is declining.” It is why access to justice is a growing collective focus for the public, government, regulators, bar associations, researchers, and educators.

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    Deaths in custody: The trouble with calling it an epidemic

    By Rebecca Bromwich February 2 2016 2 February 2016

      Recently, Harvard medical researchers made headlines by characterizing the number of deaths of African American prisoners in police and corrections custody in the U.S. as an “epidemic” and framing these widespread deaths as a public health issue.  Perhaps less known is that the use of the term “epidemic” to refer to deaths of aboriginal people in custody in Canada was prevalent at least as early as 2014.

      The term “epidemic,” normally used to describe phenomena circulating in a population or, is most commonly used within the discipline of epidemiology to describe infectious diseases. Using the frame of epidemiology to describe and study deaths in custody is one way of what Peter Conrad and many others describe as medicalizing a social problem.

      Language conceals as much as it reveals. As Teun Van Dijk and other discourse analysts have shown, the way people and phenomena are described can support and undermine existing social structures, including racism, in complicated ways.  Using the term “epidemic” and the frame of public health talk about epidemiology to understand deaths in custody has both advantages and disadvantages.

      On the helpful side, using the medicalized language of epidemiology to describe the disturbingly large number of deaths of racialized and aboriginal prisoners in custody in Canada and the U.S. conveys a sense of urgency. It gives legitimacy to concerns raised about these high numbers of deaths. Most significantly, it provides means to reveal the statistical prevalence of the occurrence. Framing deaths in custody as a matter of public health is one way of speaking back against the prior Federal government’s abhorrence of “committing sociology” and allows researchers, advocates, and the public to see and study trends.

      On the other hand, calling deaths in custody an “epidemic” makes invisible, or at least shifts focus away from, the agencies of the human beings involved in these deaths.

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      Can the courts force the Prime Minister to appoint senators?

      By Justin Ling February 1 2016 1 February 2016

        CBA National tackled that question last year. And while Vancouver lawyer Aniz Alani was optimistic that he could convince a Federal Court judge that, indeed, the judicial system has that power, there wasn’t much support for the idea that the courts would venture into the realm of constraining the executive’s decision-making to a fixed timeline.

        “It can be difficult to show that a course of not doing something amounts to a decision not to do it that is amenable to judicial review,” wrote Léonid Sirota, J.S.D. candidate at the NYU School of Law, of Alani’s constititutional challenge on his blog. What’s more, Sirota goes on to say, the Prime Minister himself is not, technically speaking, the one who appoints Senators. He refers candidates to the Governor General — and no formal rule compels the Prime Minister’s action in that relationship.

        Paul Daly, assistant professor at the Université de Montréal Faculty of Law, concurring with Sirota, writing on his site: “At some point, the Senate would be so hollowed out by non-appointment that the Constitution would have been amended de facto. We are a long way from there.”

        Nevertheless, Alani’s first real legal hurdle came up this month, when the Federal Court of Appeal heard a motion from the Attorney General to dismiss Alani’s request for judicial review altogether.

        The court, perhaps somewhat surprisingly, declined to quash Alani’s constitutional challenge.

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        Legal Futures round-up: February 1 2016

        By Emily Alderson February 1 2016 1 February 2016

          Inspired by the CBA Legal Futures Initiative, which released its comprehensive report, Futures: Transforming the Delivery of Legal Services in Canada in 2014, here’s our biweekly round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

          Noel Semple responds to Richard and Daniel Susskind’s new book The Future of the Professions, which predicts machines will take over a significant amount of legal work. On the bright side of this impending automation, he predicts that machines could increase access to justice by doing repetitive tasks more cheaply, and by freeing up human hands to deal with unmet legal needs.

          In a separate post on Legal Rebels, Paul Lippe also responds to the Susskinds’ new book. Lippe agrees that lawyers and law schools are facing a crossroads: They can either help build the new legal system or be forced to react to it. Lawyers need to become more responsive to other disciplines, including technology, and become “cross-disciplinary leaders.”

          A senior judge in the UK has suggested fixed costs for civil matters under £250,000 ($500,000 CDN). Lord Justice Jackson called on the government to create a table of recoverable costs for lawyers’ fees, which would do away with cost management. 

          American law Professor Jerry Organ says that the LSAT scores of current law students bode poorly for bar-exam pass rates over the next couple years. American law schools, eager for tuition dollars, have accepted students with lower LSAT scores, leading to dismal bar exam pass rates. Elsewhere in the US, Wake Forest University School of Law is experimenting with the GRE as a predictor of law school success as a replacement for the LSAT.

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          Sweet 16: Why lowering the voting age is a good idea

          By Léonid Sirota January 29 2016 29 January 2016

            During Each Parliamentary session, a number of private members’ bills, a very large number indeed, many hundreds, are introduced. Most of are never going to go anywhere. Deservedly so, in a great many cases. The 42nd Parliament has sat for mere weeks, but there are already bizarre and even blatantly unconstitutional bills before the House of Commons. But there is at least one private member’s bill that deserves to be seriously debated and, in my view, enacted ― although possibly with some modification. It is Bill C-213, introduced by Don Davies, which would lower the voting age from 18 to 16.

            As Ilya Somin has contended in posts over at the Volokh Conspiracy,

            all the arguments for giving adults the right to vote also apply to sufficiently knowledgeable children. Like the adults, children have a claim to the franchise because government policies affect them too, because otherwise their interests might be undervalued in the political process, because it affirms their status as citizens with equal rights, and so on.

            In his view, children should be allowed to vote, without a minimum age, provided that they can pass a political knowledge test. Prof. Somin acknowledges, of course, that many adults lack such knowledge, but he thinks that it is not unfair to treat children, who traditionally have lacked the right to vote at all, differently from adults, even ignorant adults, who already possess it.

            For my own part, I am not quite persuaded by this. As prof. Somin also recognizes, designing and administering an appropriate test in an impartial fashion would be difficult. And I am simply not convinced that it is just to treat minors differently from adults in this way. As I have argued at my blog, Double Aspect, a “bright line” minimum age qualification, however arbitrary, is preferable, and more consistent with the law’s general approach to the transition from childhood to adulthood. Still, there is no particularly good reason why the voting age should be set at 18. A young person is, in some provinces anyway, allowed to leave school at 16, and to work full-time. Even if working part-time, he or she must pay taxes. At 16, minors may be deemed mature enough to be sentenced as adults for breaking the law. Yet they are denied a say in how these laws are made.

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            Invasion of privacy as a tort

            By National January 28 2016 28 January 2016

              In Doe v. D., the Ontario Superior Court of Justice granted injunctive relief and awarded costs and damages to the tune of  over $141,000 to a victim of revenge porn, whose ex-boyfriend had posted intimate images of her, without her knowledge, on a pornographic website. In assessing damages, Justice David Stinson turned to a 2007 sexual battery case in Nova Scotia, written by now Supreme Court Justice Thomas Cromwell. Justice Stinson had this to say about the analogy

              Given the novelty of the plaintiff's claim, there is no Canadian case law to guide me in determining a suitable monetary award in this case. That said, in light of the nature of the wrong, the significant and ongoing impact of the defendant's conduct on the plaintiff's emotional and psychological health, and its similarity to the impact of a sexual assault, I agree that some assistance may be found in that category of cases.

              David Fraser stresses the importance of the Ontario ruling:

              This is a huge deal, as it explicitly expands the scope of privacy protection under the common law and stands as an example of how the traditional courts (and perhaps new-ish torts) can be called upon to help victims of cyberbullying.

              David Canton notes, however:

              While the decision is ground breaking, there is a caveat to it. The defendant did not file a statement of defence, and this decision was based on a motion for default judgment. So while the decision is well reasoned, there was no contrary position presented. This issue will eventually make it to an appeal court in another case to settle the law.

              Recent changes to the Criminal Code, passed under the Harper government, prohibit knowingly posting intimate images of people without their consent. Doing so could result in either an indictable offence with a prison term of up to five years, or a summary conviction with up to 6-months in jail and $5,000 in fines.

              Photo licensed under Creative Commons by perspec_photo88

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              Arbitration to enforce carbon reduction commitments

              By National January 27 2016 27 January 2016

                “There is huge potential to consider how the existing use of international arbitration and ADR mechanisms in resolving climate change related disputes may be advanced and expanded, both in the context of contractual obligations and treaty mechanisms,” David W. Rivkin, President of the International Bar Association (IBA), said in a December address to its Task Force on Climate Change Justice and Human Rights, as talks were underway at COP 21.

                Akhlaq Choudhury and Khaled Moyeed pick up on the theme, and make their own pitch for arbitration as a means to help enforce states’ obligations to meet carbon emission reduction targets, and hint at the possibility of an International Court for the Environment:

                National courts are not a viable forum for climate change related disputes involving parties from multiple jurisdictions, because of the potential for political fall-out as a state may not recognise judgments handed down by another state’s courts. International forums are better equipped to ‘arbitrate’ such disputes, for example, the Permanent Court of Arbitration (PCA), which is discussed further below.

                The UNFCC as it currently stands does not specifically endorse arbitration or any international forum as a means of resolving disputes arising from climate change. In article 14, the UNFCC says that “parties shall seek a settlement through negotiation or any other peaceful means of their own choice“. Negotiation has been the key feature in achieving a climate change agreement and arbitration could be a “peaceful means” of settling disputes. Indeed, arbitration was used as a means of finding a peaceful solution to the civil war between the Government of Sudan and the Sudanese People’s Liberation Movement/Army (the Abyei Arbitration).

                […]

                Arbitration is an attractive proposition because of the range of stakeholders and the types of disputes that it can accommodate. In the same way that investment treaty arbitrations are helping to create a uniform standard of sovereign behaviour towards investors, arbitration could also develop similar standards to help vulnerable communities impacted by rising sea level and other extreme weather events.

                Photo licensed under Creative Commons by ConexiónCOP

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                Tribunal rules Ottawa discriminated against aboriginal children

                By National January 26 2016 26 January 2016

                  In what was the largest human rights complaint it has ever heard, the Canadian Human Rights Tribunal found that the federal government has discriminated against thousands of aboriginal children by underfunding welfare services on reserves compared to the rest of the country.

                  The ruling is likely to dramatically change the legal parameters of how and to what extent First Nations peoples access social services across Canada.

                  At issue was the management by Indian and Northern Affairs Canada (INAC), later renamed Aboriginal Affairs and Northern Development Canada (AANDC), in providing and funding child and family services to First Nations on-reserve and in the Yukon. The services were conceived to protect children and encourage family stability, and most importantly to safeguard children from abuse and neglect.

                  In 2007, the First Nations Child and Family Caring Society and the Assembly of First Nations ((whose executive director Cindy Blackstockis pictured above) filed a human rights complaint against Ottawa, alleging that Canada’s failure to provide equitable and culturally based child welfare services to First Nations children on-reserve amounts to discrimination under the Canadian Human Rights Act.

                  The CHRT agreed:

                  Indeed, throughout this decision, and generally at paragraph 458 above, the Panel has outlined the main adverse impacts it has found in relation to the FNCFS Program and other related provincial/territorial agreements. As race and/or national or ethnic origin is a factor in those adverse impacts, the Panel concluded First Nations children and families living on reserve and in the Yukon are discriminated against in the provision of child and family services by AANDC. The Panel believes these findings address the Caring Society’s request for declaratory relief.

                  The Tribunal then specified that assistance offered by Ottawa must go beyond funding:

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                  "Litigation funding has evolved into corporate finance"

                  By National January 26 2016 26 January 2016

                    Here’s an interesting development in the world of litigation funding in Britain. Burford Capital recently struck a deal with British telecoms giant BT Group to provide litigation financing to the tune of over £31m ($62CAD).  For more on the evolution of litigation financing, Burford Capital and The Lawyer Research Service offer a detailed report:

                    Litigation funding has evolved into corporate finance. From WIP funding and costs advances to recourse loans and security for costs, litigation financiers offer an increasingly diverse range of financing solutions for litigants and law firms. Many of these financing products do not require the financing to be used to fund litigation at all.

                    The problem is that not enough people really understand the versatility of litigation financing. A quarter of surveyed UK-based litigation lawyers had not heard of disbursement funding, 37 per cent were unaware of security-for-cost bonds and 39 per cent did not know about work-in-progress financing. Less than 15 percent had actually used any of these structures.

                    Photo licensed under Creative Commons by Davide D'Amico

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                    Suspending invalidity - Cont'd

                    By National January 25 2016 25 January 2016

                      More displeasure, this time from James B. Kelly, on the outcome of the SCC’s decision to extend time to the federal government to come up with a legislative framework that addresses physician-assisted dying.  In particular, he thinks the Court got the timing of the extension – four months – wrong:

                      The delay caused by the 2015 election (4 months) and the period between the summoning of Parliament (December 3, 2015) to the election of Joint Chairs for the Special Joint Committee on Physician-Assisted-Dying (January 18, 2016) results in a further delay of 6 weeks, for a total delay of 5.5 months, and not the 4 months recognized by the SCC. This is only two-weeks shy of the 6-months requested by the Trudeau government.

                      What does this say about the rationale delivered by the Supreme Court of Canada to grant a 4-month extension instead of the requested 6-month extension? Principally, that it rests on a misunderstanding of Parliament, the legislative process, and the workings of parliamentary committees that puts into question its justification for granting a 4 month extension.

                      The request by the Trudeau government was reasonable because it – and not the Supreme Court of Canada – understands the subtleties of the legislative process. In such matters, the SCC should defer to the institutional competency of Parliament when the ministry makes an unusual request for an additional extension on a section 24(1) remedy, as in the case of Carter v. Canada. In this respect, the Court was wrong to deny the requested 6-months extension by the Trudeau government. Instead of acting with the Wisdom of Solomon, the Supreme Court of Canada acted as if it had the Wisdom of Solomon, in relation to Parliament and the legislative process.

                      Kelly then goes on to argue that even the requested six months is far too short a period for Ottawa and the provinces to get all their ducks in a row.  He then offers the following insight into the state of Charter dialogue, the notion that “Canadian legislators are engaging in a self-conscious dialogue with the judiciary.”

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                      Unplanned parenthood and the meaning of consent

                      By Jennifer Taylor January 25 2016 25 January 2016

                        “I don’t want to have a baby with some random girl. I waited my whole life to decide who I have a baby with.”

                        “...this random girl is fine doing it on her own.”

                        You may have heard the news already: A doctor in Ontario (“PP”) sued his former sexual partner (“DD”) for the “emotional harm of an unplanned parenthood” after DD became pregnant and decided to have the baby that PP said he didn’t want (his paternity remains unconfirmed). Justice Paul Perell of the Superior Court of Justice sensibly struck out this lawsuit in PP v DD, finding there was no chance of success for PP’s claims of fraudulent misrepresentation and sexual battery.

                        This is a good result for women’s reproductive autonomy, and one that accords with the holistic understanding of consent in the criminal case of R v Hutchinson – a case that PP relied on but ended up working against him.

                        Procedural points: Confidentiality and costs

                        The parties are called “PP” and “DD” after Justice Perell took the unusual step of making a confidentiality order on his own motion, reported in a companion decision. He did this, he said, to protect the child at the centre of the dispute from future “trauma” – even though neither party requested this order or apparently presented evidence on the issue. In both decisions, Justice Perell emphasized the “salacious” nature of the facts.

                        But based on the decisions, the only “salacious” part was that PP had the gall to sue DD for a logical biological consequence of their sexual relationship. DD’s conduct should not be painted with the same “salacious” brush (even though she may have appreciated not having her and her child’s real names splashed all over the internet).

                        At the end of his reasons in the main decision, Justice Perell permitted the parties to make costs submissions. However, he said his “present view” was that “there should be no order as to costs.” Surely fairness to DD, who had to respond to this frivolous lawsuit questioning her reproductive autonomy, would require that she get her costs?

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                        Tower dumps and the role of phone companies

                        By National January 22 2016 22 January 2016

                          David Fraser applauds Justice Sproat’s tower dump ruling in R. v. Rogers Communications, which now gives guidance to phone companies that get requests from law enforcement to produce records on all users whose cell phones connect to towers serving a specific geographical area.  Rogers and Telus successfully challenged production orders issued by the Peel Regional Police as overbroad. But Fraser is nonetheless troubled by the circumstances leading to the case:

                          But I think we need to look closely at what happened that gave rise to the decision, and to carefully consider what this says about law enforcement in Canada. I see an institutional attitude that does not even consider privacy rights of Canadians and the Charter that creates them. I find this to be very troubling.

                          If you’ve read the decision or a summary of it, you will know that the Peel Regional Police were investigating a string of jewelry store robberies. So the Peel Police sought a series of production orders requiring telecommunications companies to deliver the records of all the cellphone towers that are in the vicinity of the crimes being investigated. But its nature, this is purely a fishing expedition. They were hoping that information about a small number of suspects was among the details of tens of thousands of Canadians uninvolved with the crime.

                          I am told that they got production orders against six telcos, but only two of them pushed back ultimately leading to the court hearing.

                          Keith Rose picks up on the same theme, and raises four questions about the role of phone companies in assisting law enforcement with investigations:

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