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Author: Alice Woolley Page 8 of 20

LL.M. (Yale), LL.B. (Toronto), B.A. (Toronto).
Professor. Member of the Alberta Bar.
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Defining Prosecutorial Discretion (With an Invitation to the Court to Re-define Abuse of Process)

By: Alice Woolley

PDF Version: Defining Prosecutorial Discretion (With an Invitation to the Court to Re-define Abuse of Process)

Case Commented On: R. v. Anderson, 2014 SCC 41

With its unanimous judgment in R. v. Anderson, 2014 SCC 41, the Supreme Court has clarified the scope of “prosecutorial discretion”, distinguishing it from matters that go only to “tactics and conduct before the court” (para 35) while confirming its application to a “wide range of prosecutorial decision making” (para 45).  The Court also confirmed the non-reviewable nature of prosecutorial discretion absent demonstration of an abuse of process, and reviewed the law governing assessment of an abuse of process. Finally, the Court held that Crown counsel have no constitutional obligation to consider an accused’s aboriginal status when they tender Notice to the accused that the Crown intends to seek the mandatory minimum punishment that may be applicable given that accused’s prior convictions.

#Yesallwomen/#Notallmen: Sexual Harassment in the Legal Profession

By: Alice Woolley

PDF Version:#Yesallwomen/#Notallmen: Sexual Harassment in the Legal Profession

How do we understand bad things done to women by men?  Through the few men who do them (#Notallmen)?  Through misogyny in our culture as a whole?  Through the experience of all women living with the risk that such bad things can happen (#Yesallwomen)? The ferocity of recent internet debate on this topic clouds the possibility that harm done by men to women should be understood as about all these things: the men who inflict it, the society in which it occurs and the lives of the women who live with the possibility of that threat.

In this post I explore the thought that sexual harassment and sexual discrimination in the legal profession must be understood with this sort of breadth of perspective: it is conduct reflecting the pathologies of the specific men who do it; it in no way reflects the conduct of all – or even that many – men in the profession; yet it is conduct that reflects aspects of our professional culture, aspects that we need to address to achieve gender equity and fairness.

Ethical vs. Unethical: The Troubling Tales of Tony Merchant

By: Alice Woolley     

PDF Version: Ethical vs. Unethical: The Troubling Tales of Tony Merchant

Case commented on: Merchant v Law Society of Saskatchewan 2014 SKCA 56

Introduction

Last week the Saskatchewan Court of Appeal upheld the Law Society of Saskatchewan’s three month suspension of E.F. Anthony (Tony) Merchant for conduct unbecoming.   The Court did so unanimously and without evident hesitation, rejecting clearly and unequivocally each of the many objections raised by Merchant to the Law Society’s decision.

Defining the “Client” (or not) in Former Client Conflicts

By: Alice Woolley

Case commented on: Orr v. Alook, 2014 ABQB 141

PDF version: Defining the “Client” (or not) in Former Client Conflicts

When teaching the law on conflicts of interest to students, I suggest they start by determining the relationships between the parties, lawyer-client, lawyer-lawyer and client-client, and between the matters. This starting point helps the students because knowing whether a client is a former or a current client, whether the matters are the same, related or unrelated, and whether the clients are represented by the same lawyer or lawyers at the same firm, will direct them to the norms and rules that appropriately govern the situation.

The More Things Change…. A Post-McKercher Conflicts Case

By: Alice Woolley

PDF Version: The More Things Change…. A Post-McKercher Conflicts Case

Case Commented on:  MTM Commercial Trust v Statesman Riverside Quays Ltd. 2014 ABQB 16

In his decision in MTM Commercial Trust v Statesman Riverside Quays Ltd. Justice Macleod determined whether Bennett Jones LLP could act for Matco Group, a client of many years, in a dispute with the Statesman Group, for whom Bennett Jones acted on a very limited retainer, and who had been advised that Bennett Jones would act for Matco in the event of a future dispute between the two clients.  Somewhat surprisingly, Justice Macleod held that Bennett Jones could not represent Matco.  In this comment I will suggest that this judgment supports the position I set out in an ABlawg post in 2011, that “in actual cases judges are less concerned with carefully articulating the applicable rules, and more concerned with reaching the right outcome on the facts, all things considered” (The Practice (not theory) of Conflicts of Interest; see also Conflicts of Interest and Good Judgment).

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