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In Anglo-American legal discourse, the juridical subject of dispute resolution has traditionally been conceived as a bearer of rights or a bearer of interests: rights, in the model of liberal legalism that regards adjudication (i.e. court and tribunal processes) to be the preferred means of resolving disputes in the adversarial tradition; or interests, in an alternative or complementary model that regards consensual dispute resolution (i.e. negotiated and mediated settlement processes) to be the preferred means of resolving disputes in the non-adversarial tradition. This article explores the ethical implications of reframing the bearer of interests as a bearer of desires. This is more than just semantics. Reconceiving the juridical subject in this way invokes the contemporary tradition of progressive social theory that has centered the concept of desire in its critique of the liberal humanist subject. This critique has yet to be fully explored in the legal scholarship. One of the most productive lines of argument in this tradition is derived from queer theory – in particular, a strand of post-identitarian thinking in queer theory that regards sexual desire as something that is disruptive of ontology regardless of gender or sexual identity. This strand of thinking raises important questions in this context. Is it possible to theorize juridical subjectivity as a form of sexual subjectivity? What follows from such an effort to “queer” the constitution of the juridical subject, independent from its politicized identity as a bearer of rights in liberal legalism? Could this theory teach us something about the ethics of rights and interests-based dispute resolution processes?This paper argues that theorizing about the juridical subject of dispute resolution through the lens of sexual desire encourages us to think about the practice of settlement non-instrumentally, not unlike sexuality itself, which reveals the practice to be immune to the liberal legal imperatives of politicized identity. This is what makes it a fitting analogue for the trope of sexual freedom in queer theory, which opens up a pressing line of criticism about legal policy initiatives that have sought to limit, and in some cases categorically ban the use of consensual dispute resolution altogether. At the same time, however, this theory raises difficult questions about the ethics of sexual desire given the risk that consent to sex and settlement may be induced by coercive force. This helps us to understand the proper role of law – and specifically, the legal doctrine of consent – in regulating the conduct of these practices, or at least to understand it as something deeply fraught with uncertainty.

Legal scholars have long discussed the Supreme Court of Canada’s (”the Court”) erasure of race in its Charter jurisprudence. The lack of recognition is particularly noticeable in the Court’s jurisprudence on policing. It is well-established that African-Canadians and Indigenous people are disproportionately detained, arrested and charged by police, and thereby overrepresented in the criminal process. Criminologists and legal scholars largely agree that biased policing is one of the primary conduits through which Black, Indigenous and other racialized bodies are funnelled into the criminal justice system. Despite this fact, the Court has only ever marginally engaged in a race-based analysis of the Charter rights that are engaged by police encounters. In R. v. Le, the Court may have potentially lifted the judicial embargo on the discussion of race and biased policing; and, in so doing made a significant and much needed, contribution to critical race Charter litigation. The precedential impact of Le is challenging to predict, but there is reason to hope that Le will provide a veritable roadmap for lawyers who are seeking to mobilize race in the detention analysis under s. 9 of the Charter.

Beverley McLachlin is the architect of a flexible, socially conscious and principled approach to evidence admissibility in Canada. Her jurisprudence has infused the law of evidence with tools that enable it to adapt to new situations, to be aware of and reflect concerns for systemic issues all with an eye to ensuring it can fulfill its regulatory purpose of facilitating justice. I call this the McLachlin principle. This chapter explores the foundations of that approach in two early McLachlin decisions: R v Khan; R v Seaboyer; and then, as Chief Justice, in Mitchell v MNR where she set out, for the first time in a Supreme Court decision, a theory of evidence admissibility. After examining this evidence trilogy, the chapter will consider the application of the McLachlin principle in the context of defence applications to limit cross-examination of an accused on their prior criminal record under R v Corbett. Section 12(1) of the Canada Evidence Act permits all witnesses, including an accused, to be cross-examined on their criminal record and our common law has, for the most part uncritically, accepted that a criminal record is relevant to a witness’s credibility and whether they are prepared to abide by their oath or affirmation. In Corbett, the Supreme Court of Canada upheld the constitutionality of section 12(1) by reading into the provision a judicial discretion to prohibit or limit cross-examination on a prior record. Corbett was decided in 1988 and since then we have become more aware of the existence and manifestations of systemic racism, particularly as it relates to Indigenous and Black communities and the criminal justice system. Chief Justice McLachlin recognized this social reality in both Sauvé v Canada (Chief Electoral Officer) and R v Williams. Despite this consciousness, little, if any, attention has been given in our trial and appellate courts to how social conditions and bias are relevant in thinking about admissibility under Corbett. Enter the McLachlin principle.The chapter examines how it can be used to impact Corbett applications and stimulate future consideration of how evidence law can adapt to better facilitate justice in cases involving Indigenous and racialized participants.

There is much to learn from the trial of Saskatchewan farmer Gerald Stanley on the dangers of not directly confronting the potential impact of racial bias on the trial process. Stanley was acquitted in February 2018 by an all-White jury in the shooting death of 22-year-old Cree man Colten Boushie. The law gives us tools to safeguard trials from racial bias that we shouldn’t ignore. One of these tools is the law of evidence.The law of evidence is a set of rules aimed at regulating the admissibility and use of evidence, in order to fairly promote the search for truth. It recognizes that judges and jurors bring to court every day assumptions about human experience and behaviour that are grounded in unreliable, stereotypical or discriminatory assumptions. That is precisely why it gives judges a discretion to exclude evidence where its prejudicial effect outweighs its relevance or probative value. And why we have rules, for example, that make prior sexual history evidence in sexual assault cases or evidence that paints an accused in a negative light (bad character evidence) presumptively inadmissible.Unfortunately, despite the fact that Indigenous, Black and Brown lived experiences are disproportionately before courts consisting of largely White jurors or judges, we have failed to ensure that our rules of evidence protect against racial bias in the same way that they do against other types of unreliable and discriminatory generalizations. The Stanley trial is a stark reminder of this reality.This short piece examines the Stanley trial and how the law of evidence can incorporate systemic racism as a lens to address issues of admissibility.

In contemporary copyright law, there is an ongoing debate around the nature and scope of the rights users should have to copyright works, exacerbated by ongoing technological developments. Within that debate, this article queries the value of looking at the remedies users may have against copyright holders restricting their legitimate uses of works, as a means to further elucidate the nature and scope of user rights. While there is some value in looking at remedies to situate copyright user rights, an access to justice perspective to rights and remedies suggests that such approach may be too limiting with respect to the position of potential claimants in a legal system. On that basis, this paper identifies structural deficiencies of copyright user rights and proposes an analytical framework towards achieving greater “justice for users” both in the realm of public law and private law.

Transportation is the lifeline that connects persons with disabilities with the community, and facilitates greater opportunities for work, social inclusion and overall independence. Adequate accessible transportation has long been a concern of persons with disabilities, yet there is a dearth of sustained research on the legal and societal implications of transportation inequality for persons with disabilities. This article contributes to the research on both transportation inequality and equality theory by providing an empirical and theoretical analysis of the human rights tribunal decisions on transportation equality in Canada. In doing so, it examines the issues from the perspective of the voices of persons with disabilities by focusing on the substance of their legal claims. Ultimately, the author argues that narrow interpretations of prevailing law and doctrine have resulted in missed opportunities for achieving transportation equality on the ground for persons with disabilities. These opportunities may be captured by the application of a new theory of equality that addresses disability discrimination through the lens of what the author terms the ‘universality of the human condition’.

Colour, as a ground of discrimination, is usually equated with or subsumed under the ground of race. We argue that colour does and should have a discrete role in human rights and equality cases because it highlights certain hierarchies and forms of marginalization unaddressed by the ground of race. To support this argument, we first explore the concepts of “race” and “colour” and their relationship to one another, as well as the harms done by discrimination based on colour. Then, after a brief review of the use of race and colour in international and domestic instruments, we examine American anti-discrimination employment cases to learn from that country’s experience with separating the race and colour grounds of discrimination. We then turn to the emerging Canadian jurisprudence recognizing a distinct role for the colour ground and examine the possible consequences of that recognition.

In this third chapter of the book, The Right to Say No, Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi, (Hart, 2017) we provide a big-picture perspective on the long and bumpy road taken by many of the world’s countries in moving towards legal recognition that sexual assault can occur in a marital relationship and in the provision of a criminal law remedy for this form of gendered violence. We begin the chapter by articulating our arguments about why engaging the power of criminal remedies is necessary to the struggle to end sexual violence against women in marriage, particularly with reference to criminal law’s importance in expressing fundamental social norms. Section II moves to a critical review of the historical origins and ideological justifications underpinning the marital rape exemption in diverse societies. We show how similar themes occur across very different social regimes.

During the first Industrial Revolution, the patent system developed in an era of democratized invention. Individual inventors dominated patent filings and helped create a narrative surrounding the transformative impact of the patent system on the lives of inventors and society. Existing scholarship often overlooks the role of patent agents, those individuals who assisted inventors in securing patent rights, during this era. Industrial Revolution era patent agency was broad and indiscrete compared to its current form, which was largely a product of the needs of individual inventors and a pre-professionalization view of the discipline. As corporatization slowly replaced the individual inventor and professionalization began to dominate many occupational fields, the professional patent agent materialized. However, the emergence of disruptive technologies in our new Fourth Industrial Revolution may be reversing both of these trends, with the re-emergence of democratized invention and challenging the discretization of many fields of professional service.

This article challenges traditional approaches to gender difference in prescriptive negotiation analysis. Historically, dispute resolution scholars and practitioners analyzing the determinants of gender have either assumed or concluded that women and men negotiate differently, with so-called “women’s ways” being seen as less effective than “men’s ways” at achieving principled negotiation results. This position has led scholars to offer prescriptive negotiation advice that maps onto two forms of difference feminism: liberal feminist negotiation (translatable as “fix the woman”) and cultural feminist negotiation (translatable as “fix the system around the woman”). This article critiques difference feminist theory for its practical and political implications in principled negotiation. These criticisms suggest that difference feminist theory limits the range of negotiation tools accessible to everyone by reinscribing sex and gender stereotypes, and only allows room for feminist interventions based in minoritizing discourses of female/feminine bargaining identity at the expense of universalizing discourses of human activity. The article then offers an alternative based in postmodern feminism, “protean negotiation,” that aspires to dissolve fixed gender identities for the practical and political benefit of both women and men. This article concludes by suggesting that a form of the classic Negotiator’s Dilemma is reflected in the progressive politics of gender in negotiation where cultural feminism and postmodern feminism suggest a tension between ideological commitments to “identity” and “activity” respectively. These intuitions give rise to a struggle called the “Feminist Negotiator’s Dilemma,” and there may be no way to resolve it. The task for progressive politics should be to accept these competing imperatives and to negotiate their contradictions if feminists are to effectively understand, let alone resist, the limitations of gender difference in negotiation theory and practice.

This is an introduction to selected articles published in vol. 35 of The Windsor Yearbook of Access to Justice (2018) further to the Symposium: "Copyright User Rights and Access to Justice" hosted by Windsor Law on May 18-19 2017. It gives a brief overview of the concept of copyright user rights and access to justice, as well as of the main themes discussed in the articles and at the Symposium, including access to knowledge and human rights.

This article proposes a theoretical foundation for measuring legal service value. It aims to support efforts to compare the value of offerings from different law firms, as well as alternative legal service providers. The value of any legal service depends on (i) its effectiveness, (ii) its affordability, (iii) the experience it creates for its clients, and (iv) third party effects (the impact the service-provider has on people other than the client). These four elements of value can be quantified through various metrics applied to firms or entities that provide a given service. Output metrics evaluate either the actual real-world impact of a legal service service, or the written and oral work products of the firm. Internal metrics check for processes or structures within a firm that demonstrably support high value outputs. Input metrics focus on the attributes and credentials of the individuals who provide the service.This article concludes that measuring legal service value is challenging, and may be dangerous if done poorly. Nevertheless, the rewards justify the challenge. Higher quality legal professionalism, more effective and less burdensome regulation, and consumer empowerment are among the payoffs if we can find better ways to measure legal service value.

In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia. The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions, d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used to further and strengthen disability access laws on the ground. The federal government has proposed to introduce legislation that will likely establish a framework for the development of accessibility standards within Canada’s federal legislative jurisdiction. This follows on the heels of accessibility legislation being enacted in Ontario (2005), Manitoba (2013) and, most recently, Nova Scotia (2017). Public consultations in 2016-17 for the proposed federal accessibility legislation identified confusion about the practical differences between human rights laws and accessibility laws, and the need for more clarity about how these two laws interact. This study was commissioned to examine the interplay between human rights legislation and accessibility legislation in Canada and internationally. Based on the research findings, several recommendations are made regarding the complete set of governance functions examined. These recommendations include: incorporating a mechanism for public enforcement within the enforcement of accessibility standards, incorporating human rights supports and technical expertise within the development of standards, strengthening the statutory language to ensure an inclusive equality approach, avoiding confusion between reactive and proactive approaches to accessibility legislation by keeping the two systems distinct, and, establishing a Commissioner to take leadership in promoting awareness and systemic culture change, in encouraging compliance and in public education both across the federal government and with the general public. Finally, throughout this report, the author argues that all administrative governance functions in the proposed federal accessibility legislation should be guided by and promote an inclusive equality approach. Inclusive equality is a theoretical framework put forward by the UN that focuses on recognizing the intersectionality of individuals with disabilities in their experiences of disability discrimination. Power relations, access to justice, and the socio-historical context surrounding legal efforts to realize equality by people with disabilities within a reactive regulatory (complaints-based and adjudicative) system should also be considered through this lens.The views expressed in this document are those of the author and not those of Employment and Social Development Canada (Government of Canada) (ESDC).

In most religious accommodation cases, an individual or group seeks to be exempted from a law that restricts their religious practice. The accommodation claim, though, has a slightly different form in conscientious objection cases. In these cases, an individual asks to be exempted not from a law that restricts his/her religious practice, but instead from a law that requires him/her to perform an act that he/she regards as immoral. In many of these cases the claimant asks to be excused from performing an act that is not itself “immoral” but that supports or facilitates (what she/he sees as) the immoral action of others, and so makes him/her complicit in this immorality.

This paper analyzes the Supreme Court of Canada’s decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center). Almost 12 years after Captain Javed Latif’s ordeal began, the Supreme Court of Canada affirmed a decision by the Quebec Court of Appeal overturning a finding by a Quebec Human Rights Tribunal that Bombardier had discriminated against him. While there is much to celebrate in the Court’s reasons, the decision ultimately exposes and perpetuates a deep unwillingness to challenge the stereotyping of Muslims as terrorists in Canada. In response, this paper seeks to excavate Latif’s fuller story largely through a reading of silences. The Tribunal advanced two discrete but intersecting theories in its finding of discrimination. The Court focused, artificially, on one and found “no evidence” of discrimination. The Supreme Court not only ended Captain Latif’s quest for a remedy, it re-wrote his narrative by moving attention away from key facts involving his interactions with Bombardier. The Court’s chosen narrative also regulated the collective fears and aspirations of Muslim communities in Canada to the realm of the unsaid. At a time when Muslims are struggling to counter popular and official stereotypes that construct them as incorrigible barbarians and outsiders who are prone to terrorism and violence, it is important to create spaces for counter-narratives to be heard and lived experiences to be validated. Moreover, litigants who dedicate years of their lives to advancing social justice causes deserve the dignity of recognizing their own stories when relayed back to them by the legal process. The comparison of the Court’s reasons with that of the Tribunal thus represents a political act of hearing counter-narratives while also critically analyzing the Supreme Court’s claim that the Tribunal had little or no evidence before it to ground its finding of discrimination.

Tremendous confusion has revolved around the theory and application of the doctrine of essential elements in Canadian patent law ever since the Supreme Court of Canada first introduced the doctrine in Free World Trust c. Électro Santé Inc. In recent years, the Canadian Intellectual Property Office’s (CIPO) interpretation and application of the doctrine in its patent application examination guidelines has been the subject of considerable criticism from the Canadian patent profession. However, CIPO’s misapplication of the doctrine in recent years’ Patent Agent Qualifying Examination has received relatively little attention. This paper examines the application of the doctrine of essential elements in recent years’ Canadian Patent Agent Qualifying Examination. The analysis begins with a thorough and comprehensive review of the doctrine of essential elements under Canadian patent law. The analysis reviews the last ten years’ Canadian Patent Agent Examination, with a focus on recent years’ emphasis on the doctrine of essentiality. Despite the fact that the doctrine itself is still unsettled under Canadian law, the approach taken on recent years’ Patent Agent Exams is at best an ambiguous, and at worst an inaccurate application of the doctrine. This paper concludes by demonstrating that the concerns surrounding the doctrine of essentiality may be significant contributing factor to invalidity issues surrounding recent years’ Patent Agent Exams.

One of the greatest controversies in contemporary copyright law is the introduction of technological protection measures (TPMs) at the international and national level. By creating a separate parallel regime for digital copyright works, TPMs shifted the paradigm by redefining the rules of engagement of how users would increasingly access and experience digital copyright works.

English Abstract: The law has historically granted damages for some forms of non-pecuniary losses. In doing so, courts have freely admitted that there is imprecision in quantifying such losses and that there is no quantitative and objective calculus on pain and suffering. Against this background, new research on how hedonic losses are experienced by a victim provide an opportunity to review how non-pecuniary losses should be compensated. Some of this research suggests that experiences of anxiety, frustration and suffering may not affect a victim’s happiness as great as is presupposed in current models of compensation, and further, that its impact may also be ameliorated by the offering of an apology. In this essay, the author asks whether the law can incentivize tortfeasors to offer an apology as an element in mitigating compensatory damages for non-pecuniary loss.

"Personal plight" is the sector of the legal services industry in which the clients are individuals, and the legal needs arise from disputes. This article proposes that competition among personal plight law firms is suppressed by three demand-side phenomena. First, consumers confront high search costs. Identifying competing law firms willing and able to provide the needed services often requires significant expenditure of temporal and psychological resources. Second, comparable price and quality information about firms is scarce for consumers. Both of these factors impede comparison shopping and reduce competitive pressure on firms. A third competition-suppressing factor is observed in tort legal service markets, where offerings are typically priced on a contingency basis. Contingency fees have relatively low salience to consumers, and this reduces consumers' willingness to negotiate and comparison-shop on the basis of price. This analysis is supported by the author's empirical research with Ontario personal plight lawyers as well as the existing literature. The article concludes by suggesting possible consequences of this analysis for regulatory policy.

This chapter explores the more general and arguably distinct ethical obligations of those who practice criminal law either as defence lawyers or prosecutors. As you read this chapter, you should ask yourself whether you are satisfied with the justifications offered for the ethical rules that we have carved out for defence lawyers and prosecutors in this context and whether you think we have achieved the right balance. To assist you in thinking about the modern-day ethical roles of criminal lawyers, we begin with two historical cases, one from England and the other from Quebec, which frame the obligations in arguably extreme terms – defence lawyers justified in unbridled zealousness within the bounds of the law on the one hand, and the prosecutor as a “minister of justice” on the other. In reading the descriptions of the cases consider whether you think the duties of defence lawyers and prosecutors should be so different. What would justify that sort of difference? What common framing for the duties of defence lawyers and prosecutors might be available?