Ontario’s Law Society: Orwell’s Big Brother or Fuller’s Rex?

By: Alice Woolley

PDF Version: Ontario’s Law Society: Orwell’s Big Brother or Fuller’s Rex?

On September 13, 2017 Ontario’s Law Society with no name sent a now infamous e-mail to its licensees stating:

You will need to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public. You will be asked to report on the creation and implementation of a Statement of Principles in your 2017 Annual Report.

While some have defended the Statement (see Omar Ha-Redeye here on SLAW and Renatta Austin’s comments on The Current) most commentary has been harshly critical.  Bruce Pardy on The Current called it “the most egregious kind of violation of freedom of speech…this is the authorities requiring you to say what it is that they want to hear”. In an editorial in the National Post Pardy described it as “[f]orced speech” of the type that would be imposed in North Korea.  In his view the Statement “effectively prohibits Ontario lawyers from engaging in…debate” around the “contours of anti-discrimination laws”. In an equally histrionic editorial in the Globe and Mail, Arthur Cockfield described the Statement’s “chilling Orwellian language” and claimed that it would prevent lawyers from representing certain types of clients, like a person who was charged criminally after calling for the imposition of sharia law. And even Conrad Black saw fit to unleash a polysyllabic spree against the Law Society’s initiative, decrying the Law Society for taking “unto itself the totalitarian power to exclude or otherwise punish anyone who declines to declare total fealty to principles enunciated by the professional self-regulator”. Black went on to condemn the whole lot of us as “a largely venal association of self-serving gougers riveted on the back of society and dispensing a hideously bloated service on a defenceless public as the lawyers jubilate in their 360-degree cartel.” Continue reading

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Posted in Ethics and the Legal Profession | 1 Comment

Landlords, Tenants, and Domestic Violence: The Family Homes on Reserves and Matrimonial Interests or Rights Act

By: Elysa Darling

PDF Version: Landlords, Tenants, and Domestic Violence: The Family Homes on Reserves and Matrimonial Interests or Rights Act

Legislation Commented On: Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20

This blog post accompanies a series of posts written by Jonnette Watson Hamilton and Jennifer Koshan on Landlords, Tenants and Domestic Violence. The series examines the legal uncertainties facing landlords and property managers seeking to respond to domestic violence involving their tenants, as identified in the Centre for Public Legal Education Alberta (CPLEA) report on Domestic Violence: Roles of Landlords and Property Managers.

As section 91(24) of the Constitution Act, 1867, 30 & 31 Vict, c 3, places “Indians and Lands reserved for Indians” within federal jurisdiction, provincial laws regarding leases and matrimonial property are inapplicable on designated reserve land (for more details on the inapplicability of provincial regulations on reserve in a lease context, see here). The Indian Act, RSC 1985, c I-5, does not, however, provide for any laws dealing with matrimonial real property on reserve lands. As a result, indigenous persons and communities were left without any recourse regarding property (owned or leased) upon the death of a spouse or the breakdown of a marriage or common-law relationship. The federal government sought to fill this gap in 2013 with the passage of the Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20 (FHRMIRA). This Act governs the actions of tenants and landlords dealing with domestic violence in reserve communities. Continue reading

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Posted in Aboriginal, State Responses to Violence | 1 Comment

Property Division for Common-law Couples: The Problem, the Project, and the Proposals

By: Laura Buckingham

PDF Version: Property Division for Common-law Couples: The Problem, the Project, and the Proposals

Report Commented On: Alberta Law Reform Institute, Property Division: Common Law Couples and Adult Interdependent Partners, Report for Discussion 30

The Alberta Law Reform Institute (ALRI) is considering how to improve the law of property division for common-law partners. It recently published Property Division: Common Law Couples and Adult Interdependent Partners, Report for Discussion 30. The report reviews the issues with the existing law and makes preliminary recommendations for reform. ALRI is now seeking feedback on its preliminary recommendations, before it makes final recommendations to the government of Alberta. Continue reading

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Is Alberta Doing Enough to Protect Patients from Abuse by Health Professionals?

By: Lorian Hardcastle

PDF Version: Is Alberta Doing Enough to Protect Patients from Abuse by Health Professionals?

Headlines such as “Grande Prairie doctor suspended, charged over inappropriate examinations”, “Disgraced Calgary psychiatrist Aubrey Levin facing new abuse allegations” and “Southern Alberta doctor accused of sex assault on disabled patient” are not isolated incidents. Despite limited data, one news report found that at least 250 Canadian doctors were disciplined by self-regulatory bodies for boundary offences between 2001 and 2016. The term “boundary offences” encompasses a wide range of conduct including sexual comments, inappropriate touching (often under the guise of a physical exam), taking photographs or videos without a patient’s knowledge, or sexual intercourse with a patient (without or with consent—if a patient can truly provide valid consent in this context). Although evidence on the prevalence of sexual misconduct by health professionals is limited, in a study of 10,000 US doctors, 9% reported sexual contact with patients. Ten of the 21 disciplinary decisions currently listed on the website of the Alberta College of Physicians and Surgeons relate to boundary offences. The harm resulting from sexual abuse by health professionals is substantial. Patients are often in a vulnerable position and, when a health professional exploits his or her position of trust and power, victims report feeling shame, confusion, anxiety, and depression. These cases not only damage the relationship between the victim and the perpetrator, but harm public trust in health professionals and self-regulation. In what follows, I recommend several reforms to better protect patients from abuse. Continue reading

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Proving Parties to an Offence Beyond a Reasonable Doubt: A Clear Application of Sections 21(1) and 21(2) of the Criminal Code

By: Jeanine Zahara

PDF Version: Proving Parties to an Offence Beyond a Reasonable Doubt: A Clear Application of Sections 21(1) and 21(2) of the Criminal Code

Case Commented On: R v Hardy, 2017 ABQB 588 (CanLII)

The Alberta Court of Queen’s Bench released a decision on 2 October 2017 which directly applied the law on parties to an offence to the evidence heard at trial. In R v Hardy, Tamra Hardy and her brother Cody Hardy were co-charged with manslaughter contrary to s 236(b) of the Criminal Code, RSC 1985, c C-46, break and enter with intent to commit an indictable offence contrary to s 348(1)(a) of the Criminal Code and robbery contrary to 344(1)(b) of the Criminal Code. Cody Hardy pled guilty to manslaughter prior to Tamra Hardy’s trial. Furthermore, while Tamra pled not guilty to the charge of break and enter with intent to commit theft, at the end of her trial she “invited a conviction on” s 348(1) (a) of the Criminal Code (at para 113) and a conviction was entered on that count She did dispute her criminal liability for the robbery and manslaughter, however, which turned on whether she was a party to these offences.

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