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Traditional lawyer self-regulation, which has been abrogated or significantly compromised in most wealthy countries, lives on in anglophone North America. In the United States and in common law Canada, lawyers make and enforce almost all of the rules which govern legal service delivery. These regulatory regimes are also distinctive in their (i) maintenance of a single, unified occupation of "lawyer," (ii) insulation of law firms from non-lawyer ownership, and (iii) near-exclusive regulatory focus on individual lawyers as opposed to law firms. Other wealthy English-speaking countries (the UK, Ireland, Australia and New Zealand) have gradually abandoned all of these elements of traditional lawyer regulation over the past 40 years.

This paper argues for a multi-variable approach to identifying analogous grounds under section 15 of the Canadian Charter of Rights and Freedoms. The author begins with a review of Supreme Court of Canada jurisprudence to demonstrate how the Court has consistently applied such a multi-variable approach. In the course of that review, he notes the lack of clarity in the core factors considered by the Court, namely, immutability and constructive immutability. Then, the author argues in favour of a multi-variable approach because it is more sensitive to the complexities of identity formation and because it is more effective at recognizing grounds worthy of protection under the Charter.

The combination of human-computer interaction (“HCI”) technology with sensors that monitor human physiological responses offers state agencies purportedly improved methods for extracting truthful information from suspects during interrogations. These technologies have recently been implemented in prototypes of automated international border kiosks, in which an individual seeking to cross a border would first have to interact with an avatar interrogator. The HCI system uses a combination of visual, auditory, infrared and other sensors to monitor an individual’s eye movements, voice, and various other qualities throughout the interaction. This information is then aggregated and analyzed to determine whether the individual is being "deceptive". This paper argues that this type of application poses serious risks to individual rights such as privacy and the right to silence. Highly invasive data collection and analysis is being integrated into a technology that is designed in a way that conceals the full extent of the interaction from those engaging with it. Border avatars are being misconstrued as technological versions of a human border agent, when in fact the technology enables a substantially more invasive interaction. The paper concludes by arguing that courts, developers, and state agencies institute strict and strong limits on how this technology is implemented and what information this emerging technology can collect from the individuals who engage with it.

Access to information (ATI) dispute resolution is an administrative context in which polyjuralism abounds. This chapter examines the models of dispute resolution used by the legislative officers that have been statutorily created to resolve access to information complaints in Canada. Since the enactment of Canada’s first freedom of information legislation by the federal government in 1983, a debate has emerged as to whether an investigatory approach based on the ombuds tradition or an adversarial adjudicative approach is most suitable for achieving effective regulatory oversight. This chapter contributes to the debate in two ways. First, it defines three typologies for access to information dispute resolution regimes: investigatory, adjudicative, and mixed investigatory-adjudicative, using the access to information statutory regimes of the 14 territorial Canadian jurisdictions as a case study. With respect to mixed investigatory-adjudicative dispute resolution, it argues that the appropriate classification of Access to Information Commissioners endowed with both ombuds-like powers and order-making capacities is to understand them as independent accountability agencies. This avoids concerns about the 'citizen defender' image and denaturing the ombuds’ tradition, and instead properly focuses on the Commissioner as an agent of the policy goal of promoting governmental transparency. Second, this chapter takes an empirical look at how Canada's federal Office of the Information Commissioner is faring with respect to the four theoretical values of: i) institutional competence, ii) access to justice, iii) efficiency, and, iv) effectiveness in promoting government transparency. The empirical data for this discussion is taken from the preliminary results of an online survey administered to access officials in the federal government.

Professor Ladeur argues that administrative law’s postmodernism (and by extension Global Administrative Law) necessitates that we move beyond relying on ideas of delegation, account- ability and legitimacy. Global Governance, particularly Global Administrative Law and Global Constitutionalism, should try to adapt and experiment with the changing nature of the postmod- ern legality and support the creation of norms that will adapt to the complexities of globalisation. Ladeur’s contestation, similar to GAL’s propositions, can be challenged. By taking the International Criminal Tribunal for Rwanda, a significant contributor to the field of international criminal law, as an example, it is suggested that the creation of networks that Ladeur makes visible may not account for ‘regulatory capture’. This paper will argue that from the outside, the proliferation of networks may suggest that spontaneous accountability is possible. A closer look, however, drawing on anthropological insights from the ICTR, reveals that international institutions are suscepti- ble to capture by special interests. Furthermore, there are two central themes that animate the response to Professor Ladeur: the political nature of international institutions and the history of international law, and the role of institutions in this history.

This chapter identifies the intersecting ways in which Israeli approaches to international law are structured around Cohen's three main modes of denial-factual, interpretive, and implicatory-to silence or deflect responsibility for Palestinian suffering. It argues that international law has fed into a process of denial maintenance in Israel, creating the backdrop against which Israeli leaders deny Palestinian suffering. Israel's attitude towards the use of phosphorus as a military weapon compared with its attitude towards stone throwing is striking. The military court's response appears sincere when it emphasises the great risks posed by Palestinian children and youth with stones. The chapter suggests that international law, with its emphasis on domestic implementation, self-reporting, and shaming proves largely ineffective in states of denial. Cohen observes that interpretive denial, in part because it requires familiarity with law and legal concepts and in part because it suggests concern for human rights, can prove more difficult to counter than literal or factual denial.

Evaluating Ombuds Oversight in the Canadian Access to Information Context: A Theoretical and Empirical Inquiry - 1

Corporate and governmental wrongdoing can affect large numbers of people. Such wrongdoing has an institutional victim as well; mass harm exerts enormous pressure on civil justice systems to provide efficient but fair procedures for redress. In this context, settlement of mass disputes is easily understood as a common good. Yet settlements involving hundreds or thousands of claims, often across jurisdictions, raise concerns about the substantive fairness of the compromise reached by lawyers, and the ability of the court system to ensure meaningful oversight. Unburdening the judicial system of mass claims comes at a price; how much rough justice are we prepared to accept? As the contributions to this book illustrate, the difficulty of balancing these competing interests is ubiquitous. Canadian class action settlement practice is no exception. In this chapter, I first explore the realities of this form of litigation, and to some extent debunk the myth that class actions inevitably result in large monetary settlements. I then turn to a brief discussion of the incentives and disincentives to settle large claims, for both plaintiffs’ lawyers and defendants. In Part III, I describe and critique the judicial framework for the approval of proposed settlements.

This paper considers the recent Ontario Court of Appeal decision in Jones v Tsige. In this unprecedented case, a bank customer was allowed to sue a bank employee personally for the tort of invasion of privacy after the employee surreptitiously accessed her bank account. The case is significant due to its introduction, for the first time, of an American cause of action under the tort of invasion of privacy. In order to fashion the plaintiff with the personal remedy, however, the Court has failed to consider the application of the Tournier doctrine that has established that banks owe a duty of secrecy to their customers. In so doing, it is argued that the Court has undermined an established tradition of law that provides for a better approach in analyzing the issue from a banking perspective than that used by the Court.