Author Archives: Alice Woolley

About Alice Woolley

LL.M. (Yale), LL.B. (Toronto), B.A. (Toronto). Professor. Member of the Alberta Bar. Please click here for more information.

Prosecutors as Ministers of Justice?

By: Alice Woolley

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Three recent cases have brought to light bad behaviour by criminal prosecutors.

In R v Suarez-Noa, 2015 ONSC 3823 Justice Reid ordered a mistrial after the prosecutor suggested “to the jury that the accused had behaved like an animal rather than a human being,” calling the characterization “highly improper” and incapable of being “erased from the minds of the jurors” (at paras 10-11).

According to the CBC, in the Nuttall/Korody bombing trial British Columbia Supreme Court Justice Catherine Bruce said the prosecutors “took my breath away” with the “impropriety” of their decision to show a video to the jury that contained “footage of an actual pressure-cooker explosion.” She further described the prosecutor’s decision to ignore her express instruction not to refer to defences of duress and entrapment as “unspeakable” and as something she had “never experienced… before. Ever.” The CBC reported that Justice Bruce “said she would have called a mistrial had the proceedings not been so protracted and difficult”.

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Still Just the Facts: Applying the Bright Line Rule

By: Alice Woolley

PDF Version: Still Just the Facts: Applying the Bright Line Rule

Case Commented On: Statesman Master Builders v Bennett Jones LLP, 2015 ABCA 142

In a unanimous judgment the Alberta Court of Appeal has reversed a decision by Justice Macleod removing Bennett Jones LLP as counsel for its longstanding client Matco Investments Ltd. on the basis of a conflict of interest (Justice Macleod’s decision is here). In a blog on that earlier judgment I suggested that the decision indicated the importance of the facts to the outcome in conflicts cases. While the firm had taken significant steps to manage the conflict, the case management judge may have been influenced by the fact it had not been as absolutely candid as it could be:

The unfortunate thing for the firm here is that in many ways it had been candid with Statesman. Its e-mail regarding the advance consent was pretty blunt as to what it was trying to do. But the lesson may be that there is very little judicial tolerance for an absence of candour in situations of conflict; a little bit of candour won’t do (“The more things change…”)

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What Makes a Law School Great?

By: Alice Woolley

PDF Version: What Makes a Law School Great?

What makes a law school great? What should a law school curriculum seek to accomplish in light of the school’s obligations to its students, its university, the pursuit of knowledge, the profession, and society as a whole? What should a law school strive to be?

Every law school has to answer these questions one way or another, and events of the last few years – the crises of American legal education and Canadian articling, and global and technological shifts in the legal services market – have given them greater urgency.

In this post I want to share our law school’s recent efforts to answer them, and the significant curricular changes we have adopted in our attempt to bring ourselves closer to our standard for a great law school. This is not to suggest that our perspective and approach are the right ones (although I am in no way going to pretend to be neutral given I was Chair (later Co-Chair with Jennifer Koshan) of the committee leading the process). It is simply to put them out there as one law school’s view on what it should strive to be.

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Lawyers’ Representation, Lawyers’ Regulation and Section 7 of the Charter

By: Alice Woolley

PDF Version: Lawyers’ Representation, Lawyers’ Regulation and Section 7 of the Charter

Case Commented On: Attorney General (Canada) v Federation of Law Societies, 2015 SCC 7

In Attorney General (Canada) v. Federation of Law Societies, 2015 SCC 7 the Supreme Court of Canada precluded the application to lawyers of certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17, and the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/2002?184. The Court held that, as applied to lawyers, those provisions violated s. 7 and s. 8 of the Charter. The violation of s. 8 arose from the provisions’ failure to protect adequately solicitor-client privilege in the context of searches permitted under the legislation. The violation of s. 7 arose because the provisions put lawyers’ liberty at risk and were inconsistent with fundamental justice. Specifically, because of the “conclusion that the search aspects of the scheme inadequately protect solicitor-client privilege” (at para 105) and, for a majority of the Court, because the provisions interfered with a newly articulated principle of fundamental justice: that the state may not impose duties on lawyers that undermine a lawyer’s commitment to her client’s cause. The Court declined to hold that independence of the bar was a principle of fundamental justice.

The conclusion by the majority that fundamental justice prevents improper interference with lawyers’ commitment to their clients is welcome. The rule of law requires legal counsel committed to protecting the ability of clients to enjoy the respect for their dignity and autonomy that the law provides (see my articles setting out this position here and here). The Court’s view of the legislation as unconstitutional also appears warranted; certainly the legislation’s search provisions seem plausibly to permit improper intrusions into privileged documents and information.

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The Top Ten Canadian Legal Ethics Stories – 2014

By: Alice Woolley

PDF Version: The Top Ten Canadian Legal Ethics Stories – 2014

For the last two years I have written up the “top ten” Canadian legal ethics stories for the prior year (2013 and 2012). This year I initially wondered whether it would be possible to identify ten important legal ethics stories. It wasn’t. Moreover, it is fair to say that some of these stories now justify the descriptor “saga,” making their third consecutive appearance on the list.

It should be noted that the ordering of the list is neither rigorous nor based on a precise calculation of each story’s importance. Nor is the “Top Ten” descriptor a claim I’d aggressively defend. I’m not sure whether, in an objective sense, these are the top ten stories and nor am I sure which ones are more interesting and significant than the others. But since “Ten Canadian legal ethics stories listed in no particular order but that I, for my own idiosyncratic reasons, think are interesting and significant” is not exactly catchy, I’m sticking with “Top Ten.”

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