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By: Joshua Sealy-Harrington and David Rennie PDF Version: Making Sense of Aboriginal and Racialized Sentencing Cases Commented On: R v Laboucane, 2016 ABCA 176 (CanLII); R v Kreko, 2016 ONCA 367 (C…

In common law Northern Europe and in Australasia, a wave of reform has been transforming legal services regulation since roughly 1980. Old structures and approaches, based on the principles of professionalism and lawyer independence, are being replaced in these jurisdictions by new ones that prioritize competition and consumer interests. In the United States this has conspicuously not happened, leaving intact a regulatory approach whose broad outlines have changed little in the past 100 years.

By: Joshua Sealy-Harrington and Marita Zouravlioff PDF Version: Trinity Western Decision Fails to Clarify Approach to Balancing Conflicting Charter Rights Case Commented On: Trinity Western Univers…

When lawyers elect the leaders of their self-regulatory organizations, what sort of people do they vote for? How do the selection processes for elite lawyer sub-groups affect the diversity and efficacy of those groups? This article quantitatively assesses the demographic and professional diversity of leadership in the Law Society of Upper Canada.

In R v DLW, 2016 SCC 22 the Supreme Court of Canada split on whether the criminal offence of bestiality requires “penetration.” The majority judgment held that bestiality requires penetration and, on that basis, held that a dog licking a vagina is not bestiality. In contrast, the dissenting judgment held that bestiality does not require penetration and, accordingly, held that a dog licking a vagina is bestiality. In this post, we first summarize the factual and legislative background in DLW and the reasons of the majority and dissenting judgments. Second, we critique the majority judgment for: (1) its unpersuasive reliance on judicial deference; and (2) its overstated claim that “buggery” (the precursor to bestiality) had a clear meaning. Lastly, we critique both the majority and dissenting judgments for their reliance on: (1) imprecise sexual terms which fail to bring clarity to bestiality law; and (2) an unimaginative privileging of cisgender, procreative heterosexuality that perpetuates harmfully conservative understandings of human sexuality.

Taking Palestine as the focus of inquiry, and drawing on our experiences as co-directors of Karamah, a judicial education initiative focused on dignity, we reflect on the attributes of colonisation and the possibilities of decolonisation in Palestine through development aid. We conclude that decolonisation is possible even within development aid frameworks. We envision the current colonial condition in Palestine as a multi-faceted, complex and dynamic mesh that tightens and expands its control over the coveted colonial subject but that also contains holes that offer opportunities for resistance or refusal. We turn to Karamah to illustrate how some judges have insisted on a professional identity that merges the concepts of human dignity and self-determination and ultimately rejects the colonial condition inherent in both occupation and development aid. We conclude that in this process of professional identity (re)formation, members of the Palestinian judiciary have helped reveal the demands of decolonisation by demonstrating their commitment to realising human dignity through institutional power, and bringing occupation back into international development discourse.

Featured image courtesy Sydesian Transitional justice is a popular term in present day Sri Lanka. It is the means by which the various parties to the conflict have decided to bring about justice an…

This article explores whether the International Committee of the Red Cross (ICRC) enjoys testimonial privilege before Canadian courts. The authors argue that there is strong evidence to suggest that customary international law requires that the ICRC be granted a privilege not to testify or disclose confidential information in domestic court proceedings. Such a privilege, they argue, is entailed by the ICRC’s mandate to engage in international humanitarian law protection activities using confidential means. Given that customary international law forms part of the common law in Canada, the authors argue that this privilege should be recognized by Canadian courts despite its potentially uneasy fit with traditional Canadian evidence law.

Many recent hate speech cases in Canada, Europe, and elsewhere involve religion either as the source of views that are alleged to be hateful or as the target of such views and sometimes, of course, as both the source and target of these views. This chapter explores the difference religion makes to the application of hate speech laws – when it is the target of this speech. The ‘religious’ hate speech cases are difficult for the same reason that all hate speech cases are difficult. There is significant disagreement in the community about whether, or to what extent, the restriction of hate speech can be reconciled with the public commitment to freedom of expression. There is, however, another reason why hate speech cases involving religion are so difficult, which stems from our complex conception of religious adherence or membership – as both a personal commitment and a cultural identity. The chapter focuses on anti-Muslim speech in Canada.

Innovation in family law firms can tangibly improve access to justice in Canada. This article develops that claim by drawing on empirical data and scholarship about Canadian family law. Part 1 explains how and why legal needs arising from the dissolution of intimate relationships are so difficult for the parties to meet. This Part draws on civil legal needs surveys, surveys with lawyers, and data from interviews with litigants. The focus shifts to family law firms (including sole practitioners) in Part 2, using new empirical data about the Canadian lawyers who do this work. Three promising opportunities to innovate for accessibility in family law practice are identified: (i) innovative fee structure; (ii) innovative service variety; and (iii) innovative division of labour. A "third revolution" in Canadian family law is proposed in Part 3. Our family law doctrine was revolutionized beginning in the 1960s, and family law alternative dispute resolution was similarly transfigured beginning in the 1980s. It is now time to foment a third revolution, in family law practice accessibility, to bring the benefits of family justice to all Canadians who need them.

In the burgeoning literature on law and religion, scholarly attention has tended to focus on broad questions concerning the scope of religious freedom, the nature of toleration and the meaning of secularism. An under-examined issue is how religion figures in the decisions, actions and experiences of those charged with performing public duties. This point of contact between religion and public authority has generated a range of legal and political controversies around issues such as the wearing of religious symbols by public officials, prayer at municipal government meetings, religious education and conscientious objection by public servants. Authored by scholars from a variety of disciplines, the chapters in this volume provide insight into these and other issues. Yet the volume also provides an entry point into a deeper examination of the concepts that are often used to organise and manage religious diversity, notably state neutrality. By examining the exercise of public authority by individuals who are religiously committed - or who, in the discharge of their public responsibilities, must account for those who are - this volume exposes the assumptions about legal and political life that underlie the concept of state neutrality and reveals its limits as a governing ideal.

This paper examines one of the most recent and widespread cases of consultation to occur in the development of lawmaking in Canada: citizen participation in the enactment of accessibility standards for persons with disabilities. Canadian provinces are attempting a new politico-legal experiment to combat disability discrimination. Through consultation processes leading to binding regulations, they are enacting mandatory standards of accessibility under legislation such as the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). These statutes create an antidiscrimination regulatory process designed to offer participatory rights to persons with disabilities and other interested stakeholders in the development of accessibility standards. The standards address conditions of social inclusion in areas such as customer service, employment, transportation, and information and communication, and aim to break down a host of barriers including architectural and attitudinal ones. Collaborative standard development is a new and proactive approach to addressing disability barriers in society. The first part of the paper presents a comparative overview of Canadian accessibility legislation with a focus on citizen participation.

"Chapter 7: Economic enablers" published on 27 May 2016 by Edward Elgar Publishing.

The initial purpose of this study was to examine the educational needs and perceptions of students and clinicians in Canadian legal clinics. The author conducted a literature review of leading legal educational materials in Canada and the United Status focusing on required or preferred competencies for law students. The author then interviewed law students, clinicians, social workers, and community legal workers, all of whom were working or studying at law school-affiliated legal clinics. Interview subjects were asked a series of questions about their learning experiences in hopes of informing the creation of teaching and learning materials. The data revealed an under-reliance on the affective elements of teaching, learning and practice in both existing literature and current teaching practices. The data also revealed deep structural divides between doctrinal and clinical teaching and learning approaches. Without further integration, students and, ultimately, communities and clients will not reap the benefits of an integrated curriculum.

In an ideal world justice would be dispensed instantaneously and the incursion of any form of interlocutory loss, irreparable of not, would be avoided. In an imperfect world we need to learn to live with law’s complexity, human frailty, evidential uncertainty, limited resources, and the inevitable passage of time that passes when these are engaged. Law, like any other human construct that takes thought to digital page, simply takes time. Just as an infinite number of monkeys placed before typewriters takes time to recreate the works of Shakespeare, time also passes between an applicant’s assertion of a wrong, and establishing the legal framework upon which those claimed rights are to be determined. Uncertainty and delay can arise in the need to establish a claimed right, as in where the right is novel or only in nascent form. Delay can emerge from the gathering of evidence particularly where the action is going to be determined largely on an affidavit record. Similarly, because the evidence is written and not subject to cross examination, it is open to divergent interpretations. Even if the best counsel can over come the aforementioned difficulties, they face resource constraints in terms of judicial and court time. Unlike health care where there are now standards for wait times there are no similar standards for court hearings. Between the ideal and the real, interlocutory relief exists as a form of paradoxical justice. It is not perfect justice because it is decided under less than ideal trial circumstances, yet it purports to do justice by minimizing a loss for which the applicant will never be able to recover. While an applicant has a right to a civil judgment following proof of a legal cause of action and meeting the requisite level of evidence, there is no equivalent right, outside one conferred by statute to jump the queue or to obtain an interlocutory injunction. The real world is also a dynamic one in which a variety of contextual issues frame the need and desire for interlocutory relief. Even at inception of the American Cyanamid test, Hammond identified how the difference in dealing with affidavit evidence on both sides of the Atlantic, i.e. allowing for limited cross examination in Canada, would impact upon the potential credibility of the evidence and thus the veracity courts would give to it. Post 1975, transformations in civil procedure, particularly simplified proceeding, case management, and status reviews, have all increased the control exercised by courts to hasten litigation through the adjudicative process and indirectly lessen the need for interlocutory relief. Buttressed by these procedural changes, some courts are now more willing to deny or suspend granting interlocutory relief in return for an undertaking from the parties to expedite the trial process, or to keep records that will make it easier to quantify damages. The ebb and flow of interlocutory injunctions is greatly influenced by all these externalities.

In the US, rap is frequently on trial, even in death penalty cases. It also appears to be a growing trend in England. And so, I began to study the issue in Canada. I was able to document thirty-six cases of attempts by the Canadian criminal justice system to put rap on trial in a recently published article “R v. Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases” (available on SSRN at http://ssrn.com/abstract=2730123). This Walrus piece provides a summary of some of the Canadian cases and explores how our criminal justice system should respond.

By: Joshua Sealy-Harrington and Joe McGrade PDF Version: Good Kid, M.A.D.D. City: Seeking Proportionality in Drunk Driving Sentencing Cases Commented On: R v Lacasse, 2015 SCC 64; R v Sargent, 2016…

Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women, rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights. In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.