ABLawg

The Virtues and Limits of the Representation of the “Man-in-trouble”: Some Reflections on Jian Ghomeshi and Legal Ethics

On November 3, 2014

By: Alice Woolley

PDF Version: The Virtues and Limits of the Representation of the “Man-in-trouble”: Some Reflections on Jian Ghomeshi and Legal Ethics

The scandal surrounding Jian Ghomeshi raises a myriad of legal questions across doctrinal areas: labour and employment; the jurisdiction of the court; criminal law; and legal ethics. Last week on ABlawg Joshua Sealy-Harrington wrote a post commenting on two of the criminal law questions – what is (and is not) relevant to assessing a sexual assault case, and how the presumption of innocence can co-exist with the empowerment of sexual assault victims (Jiango Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal).

Here I want to explore the legal ethics issues. My analysis will be necessarily tentative; we do not yet have sufficient information to characterize accurately the ethical issues that the situation presents. But even that tentative assessment provides an opportunity to reflect on the role of the lawyer representing a client in trouble, on the moral significance and importance of that representation, but also the challenges that can arise in identifying its limits.

Jiangho Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal

By Joshua Sealy-Harrington

On October 31, 2014

In Criminal

By: Joshua Sealy-Harrington

PDF Version: Jiangho Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal

The recent scandal surrounding Jian Ghomeshi’s dismissal from the CBC, and the sexual assault allegations relating to that dismissal, have had a polarizing impact on Canadian discussion about sexual assault. First, this comment outlines the legal framework surrounding the sexual assault allegations against Mr. Ghomeshi to clarify what is relevant to the adjudication of those allegations, and what is not. Second, this comment seeks to respond to the polarizing conversation on this issue and argue for a middle ground which preserves the presumption of innocence while simultaneously demanding greater support for the victims of sexual assault.

Background

On October 26, 2014, the CBC announced that its relationship with Jian Ghomeshi – host of the popular radio show “Q” – had come to an end.

The factual background underlying this controversy (AKA World War Q, AKA Ghomeshigate) is heavily contested. Mr. Ghomeshi, in a note posted on Facebook, claims to be the victim of “a campaign of false allegations pursued by a jilted ex girlfriend and freelance writer.” Shortly thereafter, an article in the Toronto Star reported that three anonymous women say that Mr. Ghomeshi “was physically violent to them without their consent during sexual encounters or in the lead-up to sexual encounters.” Moreover, following the Toronto Star piece, many other women echoed these allegations, including actress Lucy DeCoutere, who has agreed to be identified.

In the aftermath of his dismissal, Mr. Ghomeshi filed a $55 million law suit against the CBC for breach of confidence and defamation (though, some have argued that the law suit serves ulterior motives). To date, no formal complaint or police investigation relating to the allegations against Mr. Ghomeshi has taken place.

The Uncertain Status of the Doctrine of Interjurisdictional Immunity on Reserve Lands

By Nigel Bankes

On October 28, 2014

In Aboriginal, Constitutional

By: Nigel Bankes and Jennifer Koshan

PDF Version: The Uncertain Status of the Doctrine of Interjurisdictional Immunity on Reserve Lands

Case Commented On: Sechelt Indian Band v. British Columbia (Manufactured Home Park Tenancy Act, Dispute Resolution Officer), 2013 BCCA 262, application for leave to appeal dismissed with costs, October 23, 2014

The Supreme Court of Canada has passed up the opportunity to clarify the application of the doctrine of interjurisdictional immunity (IJI) to reserve lands following its decisions in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 and Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (Keewatin) in June 2014 by denying leave to appeal in the Sechelt Indian Band case. It is unusual to comment on a decision to deny leave since such decisions are never supported by reasons and the Court has warned that we cannot infer much about the status of an appellate decision on which leave was denied for the very good reason that there may be all sorts of considerations that might lead the Court to deny leave in any particular case. We are commenting on the leave issue in this case because in our view by missing the opportunity to clarify the scope of Tsilhqot’in and Keewatin the Court has left outstanding uncertainty as to the scope of these decisions that it could usefully have resolved. We also include a postscript referring to a recent decision out of Saskatchewan that seems to extend Tsilhqot’in to render IJI inapplicable to provincial limitations legislation applying to reserve lands.

The Charter Issue(s) in Ernst: Awaiting Another Day

By Jennifer Koshan

On October 27, 2014

In Administrative Law, Constitutional

By: Jennifer Koshan

PDF Version: The Charter Issue(s) in Ernst: Awaiting Another Day

Case Commented On: Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285

My colleagues Martin Olszynski and Shaun Fluker have posted comments on the Alberta Court of Appeal decision in Ernst here and here. In addition to the regulatory negligence claim against the Energy Resources Conservation Board (ERCB) and Alberta Environment they cover in their posts, Ernst brought a claim against the ERCB for breach of the Charter. More specifically, she alleged that the ERCB violated her freedom of expression under section 2(d) of the Charter by “punishing her for criticizing the ERCB in public and to the media, and … because she was prohibited and restrained in her communication with the ERCB” (2013 ABQB 537 at para 39). In response to the ERCB’s application to strike the statement of claim, Chief Justice Wittman found that the Charter claim, although novel, was not doomed to fail and should not be struck. However, section 43 of the Energy Resources Conservation Act, RSA 2000, c. E-10 (ERCA) barred Ernst’s Charter claim against the ERCB (2013 ABQB 537 at paras 42, 82-88). Although the ERCB did not appeal the finding that the pleadings disclosed an arguable claim for a breach of the Charter, the Court of Appeal upheld Wittman CJ’s finding that section 43 of the ERCA barred any Charter claim by Ernst.

How Lawyers Resolve Family Law Disputes

By John-Paul Boyd

On October 24, 2014

In Access to Justice, Family

By: John-Paul Boyd

PDF Version: How lawyers resolve family law disputes

This past July I was able to sample the views of 167 lawyers and judges attending the Federation of Law Societies of Canada‘s National Family Law Program in Whistler, British Columbia through a survey designed and implemented by two prominent academics and the Canadian Research Institute for Law and the Family. The survey asked questions about participants’ views on shared parenting and shared custody, litigants without counsel, and dispute resolution.

In the course of digesting the resulting data for a report, I noticed something very interesting about the information we’d collected on dispute resolution. We had asked lawyers to tell us the percentage of their family law cases which are ultimately resolved by: arrangements made by the parties themselves; negotiation involving lawyers; mediation; collaborative settlement processes; arbitration; through court with the assistance of a judge at an interim hearing or a judicial conference; or, through court at trial. Here’s what the numbers told us: