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The statutes that govern the legal profession across the country reserve the practice of law for lawyers, giving rise to lawyers’ claim to a monopoly over legal services. However, those same statutes, and many others, also allow non-lawyers to engage in practice-of-law activities. Non-lawyers provide legal assistance, advice, and representation across Canada in a range of settings. The privilege of self-regulation imposes on law societies a duty to govern in the public interest. The public interest is often cited to support lawyers’ monopoly, which is a useless fiction. Arguments by lawyers to restrict or limit non-lawyers’ provision of legal services are essentially quality arguments. This article asserts that lawyers’ claims for a monopoly are inconsistent with both the extent and quality of non-lawyer legal service provision in Canada.
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Law societies in Canada have long been granted the privilege of self-regulation by the state – a privilege that comes with a statutory duty to govern in the public interest. There exists an access to justice crisis in this country. More must be done to address unmet legal needs. There is nothing new in this, but law societies across Canada are reluctant to implement at least one ready solution. Ontario introduced paralegal regulation over ten years ago with the promise that it would increase access to justice. Evidence suggests that it has done so. Yet no other Canadian jurisdiction is prepared to regulate paralegals as independent providers of legal services. Law societies’ continued resistance to the regulation of paralegals is contrary to the public interest. This paper argues that to alleviate the access to justice crisis, it is time to regulate paralegals.
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In its 2008 decision in R v Kapp, the Supreme Court of Canada gave broad effect to the Canadian Charter of Rights and Freedom's ameliorative program provision, section 15(2). The Supreme Court's decision signalled that a government respondent's declaration that a program is “ameliorative” may shield it from further scrutiny under section 15(1). This Women's Court of Canada judgment takes the opportunity to reformulate the approach to section 15(2). Although the Charter provides express protection of ameliorative programs, such programs have sometimes been challenged by members of advantaged groups claiming “reverse discrimination.” We argue that such “equality regressive claims” should be caught by section 15(2). However, for challenges to “under-inclusive” programs, deference to the government on the development of ameliorative programs may perpetuate disadvantage experienced by excluded disadvantaged groups and should not be similarly shielded. This decision develops a contextual approach to section 15(2) that ensures that it does not become a loophole through which government respondents can avoid fulsome Charter scrutiny of claims of under-inclusivity. We outline a test that not only encourages government to take affirmative action but is also narrow enough to subject genuine equality claims to section 15(1) review.
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Joshua Sealy-Harrington, Jonnette Watson Hamilton, 2018 7-1 Canadian Journal of Human Rights 1, 2018 CanLIIDocs 106
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The crisis of a failing system of judicial interim release disproportionately disadvantages Aboriginal accused persons. Rather than ameliorating this crisis, the principles articulated in R v Gladue and re-affirmed in R v Ipeelee are being interpreted at the bail phase in a manner that exacerbates the problem. A review of Gladue bail jurisprudence reveals the ways in which Aboriginal people in Canada are improperly being sentenced via bail proceedings. The courts have failed to identify the relevant legal principles that should animate bail. Instead, judicial interim release is being utilized as a diagnostic tool and Aboriginal people are inappropriately being subjected to “treatment” via the over-use of sureties and conditions of release. The relevant systemic factors are not properly considered and should play a far greater role in the assessment of risk and the interpretation of Gladue. The paper concludes with a proposal for how Gladue can more appropriately be interpreted and applied in the context of judicial interim release, including an alternate understanding of what systemic factors should animate Gladue bail proceedings.
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Global administrative law scholars have argued that global administrative law’s principles and normativity can bring about legitimacy to global governance institutions, and subsequently benefit the people of the Global South. I challenge these recent arguments that suggest global administrative law has managed to incorporate the concerns of the Third World. I caution international lawyers’ attempts to theorize global governance as administration to fill the democracy gap within the global space. My arguments are premised on the history of domestic administrative law and its uses to facilitate the settler colonial project in places like North America. I first examine the two animating claims within global administrative law and then focus, based on taxonomies available within the current literature, on procedural administrative law. The procedural argument has been developed by American legal scholars who want to deploy their common law based notions of administrative law within the global space. Based on this analysis, I develop and deploy a case study from the International Criminal Tribunal for Rwanda as illustration of judicial review within an international criminal institution set up by the UN Security Council. In the final section, I challenge global administrative lawyers’ arguments that global administrative law can be a tool of emancipation for the people of the Global South based on the ICTR case study.
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