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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.

This past August, I participated in the Blanket Exercise organized by the Faculty of Law University of Windsor with our incoming law students. The narrative exercise, designed by KAIROS (though sli…

In a brief submitted to the standing committee on industry, science and technology, 11 Canadian intellectual property scholars urged Parliament to maintain a balanced, distinctly Canadian copyright system that guards against external...

Québec is pushing to ban public servants from wearing religious garb even as the crucifix hangs in its legislature. It’s ironic and hypocritical for a province that prides itself on secularism.

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.

Since the publication of the first edition in 1970, Labour and Employment Law: Cases, Materials, and Commentary has become the standard resource for labour and employment law courses across Canada. Prepared by a national group of academics -- the Labour Law Casebook Group -- the book has continued to evolve with each new edition, reflecting the considerable changes that have occurred in Canadian workplaces and the laws governing them. A great many changes throughout the book respond to the numerous developments in labour and employment law since 2011. The most high-profile of these has been the set of Charter decisions that extend the protection of freedom of association to include the right to choose an independent bargaining agent and the right to strike, and which rely significantly on international labour standards in doing so. Additionally, this new edition responds to the growing importance of international and transnational law with a completely revised chapter; focuses on the gig economy and the proliferation of contracting networks that have fissured workplace relations; provides examples of caselaw and policy discussions grappling with the reach of legal responsibility to workers in these new relationships; and deepens the treatment of the rights of dependent contractors at common law and under labour and employment legislation. New cases and other source material have been added, and material that appeared in previous editions has been updated. The result is a comprehensive and thoroughly contemporary volume that benefits from over forty-five years of use in law schools across the country, while at the same time taking advantage of cutting-edge scholarship in assessing issues of contemporary concern.

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.

Canadian aid to Palestine will continue to do little good if the Canadian government continues to ignore Israel’s role in destroying the Palestinian economy and violating basic human rights.

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.

Free speech may protect offensive speech, but we degrade this central right when we see it as simply the right to offend, regardless of the impact on others.

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.