Category Archives: Ethics and the Legal Profession

Defending Rapists

By: Alice Woolley

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.

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Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy era”?

By: Alice Woolley

PDF Version: Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy era”?

Matter Commented On: Canadian Judicial Council Inquiry Committee Report Regarding Justice Robin Camp

What role should empathy have in a system of laws? What does an empathetic legal system look like? In a recent article on the Robin Camp case, Brenda Cossman raised concerns about the Canadian Judicial Council Inquiry Committee recommendation that Justice Camp be removed from the bench. She raised, in particular, the concern that removing rather than educating Justice Camp facilitates a growing “post-empathy” culture:

I worry even more about the impulse to punish in light of the recent rise of a powerful backlash against any and all equality-seeking groups. We have moved into a new postempathy era, where more people are prepared to stand defiantly and unapologetically in favour of discrimination, sexism, and racism. I worry that we dismiss the possibility of education and move to punish those who are genuinely remorseful (“For Judge ‘knees together’ Camp: Education is Power”, Globe and Mail, December 1, 2016).

I am not entirely sure what Professor Cossman meant, but I think that her point is that the absence of empathy in those who seek to remove Justice Camp encourages by example the absence of empathy in those who “stand…in favour of discrimination, sexism, and racism”. Our own insufficient empathy creates and empowers the post-empathy culture, which in turn creates the very sexism and discrimination that we seek to prevent. Continue reading →

The Dangers of Inconsistency (and Consistency) in Supreme Court Jurisprudence

By: Alice Woolley

PDF Version: The Dangers of Inconsistency (and Consistency) in Supreme Court Jurisprudence

Case Commented On: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (CanLII)

I can’t decide whether I am more excited that the Supreme Court issued a decision dealing with two legal issues of great interest to me – administrative law standard of review and statutory incursions into solicitor-client privilege – or irritated that the Court’s handling of both issues is so annoying. Because it is the end of term, and I’m as grumpy as any other professor at the end of term, I am mostly irritated. Irritated because on standard of review the Court seems literally incapable of a consistent and practical approach, while on solicitor-client privilege the Court has been so consistent that it risks fetishizing the significance of solicitor-client confidentiality to the point of jeopardizing other important legal interests.

On standard of review the Court needs to stop. It needs to stop trying to articulate and apply a set of rules for judicial deference to administrative decision-makers. It should instead let administrative judicial review be a matter of practice and the appropriate judicial attitude, one of respectful attention to any decision-maker’s reasons for a particular decision, while recognizing that judges provide a sober second thought through judicial review, particularly on matters of legal interpretation. Along with significantly shifting every decade or so, the rules identified end up being misleading at best and unhelpful at worst, failing to capture the basic and in the end relatively straightforward idea that standard of review reflects. The Court’s attempt to articulate rules governing standard of review is like a baseball coach trying to develop a set of rules for players to use when deciding whether to swing, when the appropriate advice is both simple and incapable of more precise articulation: swing at a strike; don’t swing at a ball (or, alternately, swing at a pitch you have the skill to hit, and leave the rest alone).

On solicitor-client privilege, the Supreme Court can certainly claim to have been consistent: solicitor-client privilege is generously defined and strenuously protected. On the whole, that seems to me a good thing. But this decision raises the possibility that that consistent and vigorous protection may go beyond what is necessary for protection of the privilege, and may occur at the expense of other values of importance to the legal system. Continue reading →

The Problem of Judicial Arrogance

By: Alice Woolley

PDF Version: The Problem of Judicial Arrogance

In her remarkable new book Life Sentence (Doubleday Canada, 2016), Christie Blatchford describes the Canadian judiciary as “unelected, unaccountable, entitled, expensive to maintain and remarkably smug” (at pp. 33-34). She argues that the process for judicial appointments and judicial discipline, along with the structure and conduct of an ordinary trial, create judicial arrogance. And that arrogance, even if not universal, is both systemic and common enough to corrode and undermine the pursuit of justice. She also suggests that actors in the legal system are complicit in judicial arrogance while simultaneously having considerable arrogance of their own: lawyers and judges alike deny the rationality and dignity of the “non-lawyer,” refuse to admit their own faults, and tend both to aggrandize official power and to subdue public criticism.

I wish I could disagree with Ms. Blatchford. But I can’t. I have to reluctantly concede the uncomfortable truth of her fundamental allegation: we undermine our legal system through our own arrogance, and particularly in how we create, encourage and reinforce judicial power, unaccountability and – at the end of the day – judicial conduct that can be fairly described as arrogant. Continue reading →

A National Code of Conduct?

By: Alice Woolley

PDF Version: A National Code of Conduct?

Document Commented On: The Federation of Law Societies of Canada’s Model Code of Professional Conduct

I like the Federation of Law Societies’ Model Code of Conduct. It’s not perfect. But it represents the culmination of considerable effort and reflection by intelligent and thoughtful lawyers. It provides meaningful guidance on a number of issues that lawyers face, particularly in relation to conflicts of interest. It provides a vehicle for national discussion and for work on emerging issues and on areas requiring reform. The Federation has done some truly great things with the Code, such as having a Standing Committee to update and revise the Code on an ongoing basis, and creating an interactive website where the provisions of the Federation’s Code can be cross-referenced with similar provisions applicable in every Canadian province.

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