Category Archives: Ethics and the Legal Profession

R v Boudreau: Senior Crown Recused Due to Hostility, “Animus” Toward Accused

PDF Version: R v Boudreau: Senior Crown Recused Due to Hostility, “Animus” Toward Accused?

Case Commented On: R v Boudreau, 2021 ABPC 175 (CanLII)

In R v Boudreau, 2021 ABPC 175 (CanLII), Judge F. K. MacDonald for the Provincial Court of Alberta ordered that Mr. Mark Huyser-Wierenga, a Crown prosecutor, recuse himself from conducting a prosecution against the accused, Mr. William Boudreau. Judge MacDonald found that Mr. Huyser-Wierenga’s conduct showed “a lack of objectivity and an inappropriate hostility” to Mr. Boudreau’s defense counsel, Ms. Ellen Sutherland (at para 110). Mr. Huyser-Wierenga also put himself in a position of conflict and conducted himself recklessly or with unacceptable negligence. In this unusual decision, Judge MacDonald issues a stern rebuke to a very senior male Crown prosecutor who not only treated junior female defence counsel discourteously and unprofessionally, but also gave rise to a reasonable apprehension of bias against the accused by making himself a witness and using hyperbole and overstatement when before the court. Continue reading →

Lawyer Ethics in the Virtual Courtroom

By: Gideon Christian

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The COVID-19 pandemic has radically altered the way we live, work, and play. As will be examined below, it has altered the way lawyers conduct litigation. By mid-March 2020, the justice system in Canada (and in most other jurisdictions around the world) was scrambling to change its default ways of doing business – from the service of court documents to hearing of matters before the courts. Within a very short timeline, the courts and the legal profession quickly became open to doing things in a way they have long resisted.

Practice directions emerged overnight permitting parties to electronically file and serve documents. Virtual hearing became the default mode of court hearings in many jurisdictions during the early stage of the pandemic. On March 19, 2020, the Lord Chief Justice of England and Wales issued a directive that, “[t]he default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely.”

Soon, in-person hearings gave way to e-person hearings using innovative videoconferencing technologies like Zoom, WebEx, Teams, Skype, GoToMeeting, BlueJeans, CourtCall, etc. For many in the legal profession who were previously familiar with these technologies, the transition was very smooth. For the Luddites who were forced to embrace the change, the transition turned out to be (to their amazement), not as difficult as they had previously thought. They have discovered that legal technology is no rocket science after all. Continue reading →

Coercive Control: What Should a Good Lawyer Do?

By: Deanne Sowter

PDF Version: Coercive Control: What Should a Good Lawyer Do?

Matter Commented On: Federation of Law Societies Model Code of Professional Conduct, Rule 3.3-3

I am currently conducting research to determine whether coercive control can be considered psychological harm for the purpose of the future harm exception to confidentiality and solicitor-client privilege. (FLSC Model Code R 3.3-3; Smith v Jones, [1999] 1 SCR 455 (SCC)) My research is supported by the OBA Fellowship in Legal Ethics and Professionalism Studies. In that research I’m determining whether a lawyer can disclose, but doing that research has provoked me to wonder whether a lawyer should disclose.

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Confusing Equality with Tyranny: Repealing the Statement of Principles

By: Joshua Sealy-Harrington

PDF Version: Confusing Equality with Tyranny: Repealing the Statement of Principles

Matter Commented on: Law Society of Ontario Statement of Principles

Tomorrow, the Law Society of Ontario will vote on a motion to repeal the Statement of Principles (SOP) requirement for Ontario lawyers and paralegals. Many lawyers opposed to the requirement were recently elected to the Law Society’s governing body. But their opposition is, for the most part, disingenuous — pro speech in form, but anti-diversity in substance.

As background, the SOP requirement asks every Ontario lawyer and paralegal to write an annual statement acknowledging their existing legal obligations relating to equality. It seeks to promote reflection on racism in the legal profession. The statement is private. It is never disclosed to, or scrutinized by, the Law Society. Other than acknowledging one’s existing legal obligations, the statement’s content is entirely up to the author. And the Law Society has never indicated that any lawyers or paralegals would be sanctioned for failing to complete their SOP. It is a modest regulatory requirement. Continue reading →

Lawyer (In)competence and Family Violence

By: Deanne Sowter

PDF Version: Lawyer (In)competence and Family Violence

Legislation Commented On: Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

Family Lawyers Are Not Required To Be Trained In Nor Screen For Family Violence

In Canada, family law lawyers are not professionally required to screen for family violence. The Federation of Law Societies of Canada (FLS) and provincial / territorial law societies make no reference to screening or family violence in their codes of conduct.

The British Columbia Family Law Act, SBC 2011 c 25 (BC FLA) contains an expansive definition of family violence to include physical, sexual, psychological or emotional abuse of a family member, as well as the direct or indirect exposure to family violence by a child (s 1). The definition includes attempted physical or sexual abuse of a family member, coercion, unreasonable restrictions on a family member’s financial or personal autonomy, stalking, and intentional damage to property. There is no universally shared definition of family violence, domestic violence, intimate partner violence, or coercive control. What is important to note is that the BC FLA definition is expansive, and includes all forms of violence between family members. Section 8(1)(a) of the BC FLA, which is in the division devoted to out of court dispute resolution processes, requires family dispute resolution professionals to assess whether family violence may be present, the extent to which it may adversely affect the safety of the party or family member, and the party’s ability to negotiate a fair agreement. The term “family dispute resolution professionals” is defined to include family justice counsellor, parenting coordinator, lawyer, mediator, or arbitrator. The assessment for family violence must be done in accordance with the regulations, which only provides guidance for family law mediators, arbitrators and parenting coordinators, not lawyers. (See Family Law Act Regulation, BC Reg 347/2012).The BC FLA therefore suggests that lawyers ought to screen for family violence in order to assess whether it is present and discuss with the client the advisability of using various types of family dispute resolution processes to resolve the matter.

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