Category Archives: Ethics and the Legal Profession

The Incarcerated Complainant: Submissions to the Minister of Justice

By: Alice Woolley

PDF Version: The Incarcerated Complainant: Submissions to the Minister of Justice

Matter Commented On: Investigation by Roberta Campbell of the Incarceration of the Complainant in R v Blanchard, 2016 ABQB 706 (CanLII)

On June 14, 2017, I sent the following letter to Alberta Justice Minister Kathleen Ganley, Chief Judge Terence Matchett of the Alberta Provincial Court and to the Law Society of Alberta. The letter concerns the conduct of Crown counsel, duty counsel and the judge in the preliminary inquiry into the matter of R v Blanchard, 2016 ABQB 706 (CanLII). It should be noted that the final assessment of the conduct of counsel and the judge in this matter depends on a full review and investigation by those parties; this letter comments only on the transcript and other written materials (as listed in the letter). Continue reading →

Justice for Some

By: Alice Woolley

PDF: Justice for Some

Case Commented on: Green v Law Society of Manitoba, 2017 SCC 20 (CanLII)

Introduction (AKA: A General Complaint About Injustice)

On March 30, 2017 the Supreme Court issued its judgment in Green v. Law Society of Manitoba, 2017 SCC 20 (CanLII).

Rarely have so many judicial resources been spent on a case worthy of so little.

Sidney Green was called to the bar of Manitoba in 1955. In 2011, the Law Society of Manitoba introduced a requirement that all lawyers complete 12 hours of professional development a year. Mr. Green refused to participate. He said that “the CPD activities available to him would not have been helpful to him in his practice” (at para 48). The CEO of the Law Society of Manitoba sent Mr. Green a letter “notifying him that if he did not comply with the Rules within 60 days, he would be suspended from practising law” (at para 10). The CEO also told him, however, that Mr. Green should let the Law Society know if it had made a mistake, and if he needed more than 60 days that period could be extended (at para 10). Mr. Green still did not complete his professional development. Instead he sought judicial review and retained Charles Huband, formerly of the Manitoba Court of Appeal (1979-2007), to assist him.

Mr. Green’s application was unsuccessful at the Manitoba Court of Queen’s Bench (2014 MBQB 249 (CanLII)). It was unsuccessful at the Manitoba Court of Appeal (2015 MBCA 67 (CanLII)). The Supreme Court nonetheless granted leave. Continue reading →

Judgmental Judges

By: Alice Woolley

PDF Version: Judgmental Judges

Case Commented On: Abdulaali v Salih, 2017 ONSC 1609 (CanLII)

Introduction

Judges exercise considerable power, and discharge a crucial public function. They identify, interpret and even create the rules that govern us. They decide what happened. And they determine the legal consequences of what happened.

But judges also exercise a defined and limited public function, and in doing so they are human, not superhuman. Judges determine and apply the law, but they do not decide questions of morality outside the law; they do not decide what it means to be a good person except as the law defines goodness. They do not – except in the specific ways the law asks them to – decide matters of public policy. Nor do they have any particular qualification to do those things. Judges know what happened only through the evidence in their courtroom. Even though some judges may be men or women of moral wisdom, there is no particular correlation between having that wisdom and holding judicial office. Judges have no democratic mandate to decide questions of public policy.

Yet obviously the lines between these things can be hard to draw. The law deals with – and decides – questions of morality. It deals with – and decides – questions of public policy. Deciding a case can require a judge to make a moral or policy determination. And even when it doesn’t, sometimes only judges can see problems of policy or morality clearly, and may be uniquely positioned to raise awareness of problems that society ought to address.

So at what point, if any, does a judge’s pronouncements on matters of morality or policy exceed his office? Does a judge have an ethical obligation to try and restrain his decision to the legal matter before him, addressing questions of morality or policy only as necessary for adjudicating the case? And can a judge commit misconduct if he exceeds his mandate in that respect?

These questions were raised for me by a March 13, 2017 written endorsement of a consent order by Justice Alex Pazaratz, in which he castigated the parties and Legal Aid Ontario for “squandering scarce judicial and community resources” (at para 26).   Continue reading →

Legal Innovation, Access to Justice, and the University of Calgary’s Family Law Incubator

By: Kyle Gardiner

PDF Version: Legal Innovation, Access to Justice, and the University of Calgary’s Family Law Incubator

Matter Commented on: The University of Calgary’s Family Law Incubator

Family law litigants are increasingly experiencing difficulty with access to justice that compounds the nature of their legal problems. This post reviews the potential of the University of Calgary’s Family Law Incubator to meet the growing demand for legal services from Canadian families, and considers some regulatory issues surrounding its operation. Before discussing the specific contours of family law practice that would benefit most from this kind of legal innovation, I must first describe the problem that the Incubator is properly aimed at addressing. That problem is the lack of access to justice for family law litigants, as illustrated by the increasing frequency of self-represented litigants in family law matters at all levels of court in Alberta. Continue reading →

Defending Rapists

By: Alice Woolley

PDF Version: Defending Rapists

Lawyers who defend people accused of sexual assault tend to be subject to one of two narratives in popular conversations, particularly on social media:

The critical narrative: Sexual assault is a violent and under reported crime. Our criminal justice system further victimizes complainants by treating their claims with unwarranted skepticism, and by degrading them both during the investigation of the crime and during the trial of the accused. Lawyers who represent an accused in sexual assault cases engage in morally suspect conduct, except in those (rare) cases where the accused is factually innocent. They directly participate in the victimization of complainants through cross-examination and the arguments they make in court.

The defending narrative: Everyone is entitled to the presumption of innocence. A lawyer who represents a criminal accused ensures the presumption of innocence is a reality, and that lawyer is entitled to be a zealous advocate on behalf of his or her client. Zeal requires doing whatever it takes to secure an acquittal, and the consequences of that for complainants are irrelevant, especially since many accused are innocent.

Continue reading →