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<title>Law Firm Failures — the New Normal?</title>
<link>https://www.slaw.ca/2024/05/02/law-firm-failures-the-new-normal/</link>
<comments>https://www.slaw.ca/2024/05/02/law-firm-failures-the-new-normal/#respond</comments>
<dc:creator><![CDATA[Heather Suttie]]></dc:creator>
<pubDate>Thu, 02 May 2024 11:00:26 +0000</pubDate>
<category><![CDATA[Legal Marketing]]></category>
<category><![CDATA[Practice of Law]]></category>
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<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
Legal service is a business. Run it that way. 
Many law firms are successful by accident.
Anyone who knows anything about traditional law firm structures knows they are perilously fragile. It doesn’t take much to bring them down.
Up until this latest debacle—the 2024 collapse of Minden Gross—Canada’s highest-profile law firm failures were Heenan Blaikie in 2014, Goodman and Carr in 2007, and Holden Day Wilson in 1996.
Canadian law firms are not alone in this plight. For example—and this is only a small sampling—lawyer exits and merger failure brought down U.S.-based <a href="https://www.reuters.com/legal/legalindustry/demise-147-year-old-stroock-is-boon-law-firm-rivals-2023-11-13/">Stroock & Stroock & Lavan</a> at the end . . . <a href="https://www.slaw.ca/2024/05/02/law-firm-failures-the-new-normal/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/05/02/law-firm-failures-the-new-normal/">Law Firm Failures — the New Normal?</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> Legal service is a business. Run it that way. 
Many law firms are successful by accident.
Anyone who knows anything about traditional law firm structures knows they are perilously fragile. It doesn’t take much to bring them down.
Up until this latest debacle—the 2024 collapse of Minden Gross—Canada’s highest-profile law firm failures were Heenan Blaikie in 2014, Goodman and Carr in 2007, and Holden Day Wilson in 1996.
Canadian law firms are not alone in this plight. For example—and this is only a small sampling—lawyer exits and merger failure brought down U.S.-based <a href="https://www.reuters.com/legal/legalindustry/demise-147-year-old-stroock-is-boon-law-firm-rivals-2023-11-13/">Stroock & Stroock & Lavan</a> at the end of 2023 after more than 30 of the firm’s 46 partners jumped ship to join Hogan Lovells, and in 2003, <a href="https://www.nytimes.com/2003/06/22/business/a-happy-firm-s-ending-is-anything-but.html">Brobeck, Phleger & Harrison</a> and its 500-plus lawyers lost talent and failed to find a merger partner. Global behemoth, <a href="https://www.forbes.com/sites/jayadkisson/2012/08/01/howrey-when-the-sinking-ship-seeks-the-cheese-back-from-the-fleeing-rats/?sh=efa1e767b084">Howrey, </a>that at its height had more than 700 attorneys in 17 locations worldwide, met that same fate in 2011.
<h2>Failure Flash Points</h2>
Like those firms, Canada’s <a href="https://www.mindengross.com/">Minden Gross</a> saw a series of lawyers exit the firm and failed to secure a merger.
<a href="https://www.thestar.com/news/insight/how-the-heenan-blaikie-law-firm-collapsed/article_3460602b-2700-535d-a988-8472f35e23dd.html">Heenan Blaikie</a>’s failure was a mismanagement mess that ranged from financial pressures, loss of trust, and misguided geographic reach to an apparent lack of formal management training and an absurd notion that the bottom line looks after itself.
In 2017, I wrote about Heenan Blaikie’s collapse and posited that had it been run as a business rather than a private club, collapse may not have happened. The link to that article is the last in this piece.
As for <a href="https://www.theglobeandmail.com/report-on-business/law-firm-goodman-and-carr-shutting-down/article1071989/">Goodman and Carr</a>, its lawyer roster shrunk from 140 to 90 in the two years prior to dissolution. Again, depending on who you talk to there were also problems with compensation and disparate practice groups.
<a href="https://en.wikipedia.org/wiki/Holden_Day_Wilson">Holden Day</a>’s demise was in a class by itself. Shock and grief overwhelmed the firm in 1993 after one of its partners fell 24-storeys to his death due to crashing through a floor-to-ceiling window when throwing himself against it to demonstrate the window’s strength to a group of lawyers who were attending a reception.
Many of that firm’s members were traumatized, including a friend of mine who was in the room when it happened. She was among the nearly 30 lawyers who departed within three years after that ghastly event.
Thankfully, not all law firms crash and burn in such spectacular fashion.
During the pandemic years, a number of small personal injury firms folded like lawn chairs. Their mostly quiet failures were primarily the result of people and vehicles remaining safely parked at home. Many of these small firms were bought by larger personal injury boutiques, absorbed into corporate/commercial practices, or stayed bust.
<h2>Lawyers Land Fast</h2>
When word of its impending demise spread through Minden Gross, most of its lawyers packed their briefbags and successfully refugeed elsewhere. This was not surprising since it’s par for the course that lawyers land fast.
But what about staff many of whom in Heenan Blaikie, Goodman and Carr, and Minden Gross’s case, had provided decades of service? What happened to them and others who worked at, in, and with firms such as these?
In Goodman and Carr’s case, there was swift action to get staff members hired elsewhere before the firm closed. In most instances, it worked. I know because I was peripherally involved in helping some of those people secure new roles at other law firms.
In Heenan’s situation, staff who saw the writing on the wall and could react fast, raced the lawyers to the exits.
As for Minden Gross, the dust and all its people have yet to settle.
<h2>Elysian Days of a Halcyon Past</h2>
There are always individuals within almost every law firm who tend to cling like barnacles to the Elysian days of a halcyon past.
Still to this day, there are law firms that <a href="https://heathersuttie.ca/insights/restructuring-legal-markets-brace-yourself/">operate as a country club</a> with some even having a Partner Lounge complete with a capital “P” and “L” in the name on the doorplate. But how many “country club” law firms will remain attractive to changing demographics and attitudes among both talent and clients when there are other law firms and legal service businesses operating in the market that are vibrant and modern, solvent and nimble, flat-structured and value-based, and built for flexibility and the long haul?
More to the point, how long will it be until <a href="https://heathersuttie.ca/insights/inside-a-legal-entrepreneurs-mindset/">business-oriented, whip-smart, self-preserving professional</a>s of any age, expertise, or experience decline outright any invitations to throw in their lot and, perhaps, capital to join one?
<h2>The AI Collision</h2>
When Richard Susskind’s <a href="https://www.amazon.ca/End-Lawyers-Rethinking-nature-services/dp/0199593612">The End of Lawyers?: Rethinking the nature of legal services</a> was released in 2010, it upset many lawyers’ apple carts.
Why? Because Susskind had the brass to challenge the legal profession to think like a business and determine how to use alternative ways of working to increase speed, lower costs, and maximize efficiency while retaining high quality output.
He argued that a legal services overhaul would be needed due to the increasing intolerance of the market to pay big bucks for rote, task-based work that could be better executed by smart systems and processes. He further suggested that, as a result, the jobs of traditional lawyers would be eroded or eliminated.
So, what happened? Much talk ensued among many. Little action was taken by few.
Ten years later, in 2020, two enormous forces collided: the world and COVID-19. During that time, and accelerating at light speed ever since, the world finds itself grappling with the newest upheaval: Artificial Intelligence.
The Internet changed the world. AI will flatten it.
As the world’s tardiest industry bloomer, the global legal services market may get flattened, too. But if that’s what it takes to realize momentous evolutionary change within a change-resistant sector, bring it on.
<h2>Legal Service is a Business</h2>
That Minden Gross, Heenan Blaikie, Goodman and Carr, and the rest of their ilk failed and fell has precious little to do with tenure, comradery, or culture.
According to Minden Gross’s website, blame is placed on “recent intensification of the challenges facing mid-sized law firms in Canada” when, in large part, it appears not to have been well prepared to withstand or swiftly adapt to change due to the fragility of traditional structuring.
Candidly, an astute legal market observer could have seen this failure coming. I did. For me, it was obvious years before it happened that Minden Gross would seal its own fate and collapse was simply a matter of time.
Even so, when the crash came, my initial reaction was anger. However, a month later my attitude neutralized to what can only be described as “meh.” And that’s because law firms, like other endeavours, always have, can, and will continue to fail primarily due to an inability or resistance to meet or exceed the galloping rate of change and adaptation with which the expanding world of business and its expectations evolve.
<h2>Basic Business Pillars</h2>
Despite the gloom, doom, and despair, there are strategies and solutions for those who dare to face the future head-on and take decisive action.
Rather than being successful by accident, proactive and better-adaptable law firms succeed by design and on three basic business pillars:
1) A distinctive <a href="https://heathersuttie.ca/services/market-strategy/market-positioning/">one of one market position</a> that sharply cleaves a firm from its competitors to the point where <a href="https://heathersuttie.ca/insights/one-and-only/">competition is irrelevant</a>.
2) A tightly focused, publicly stated, and strict strategy-to-objective <a href="https://heathersuttie.ca/services/business-strategy/">business-based mandate</a> with intentional, scheduled, and executed time-bound tactics, all of which are embraced by every member of the organization, each of whom is all-in and consistently walks the talk.
3) Professionally trained <a href="https://heathersuttie.ca/insights/lean-law-reckoning/">non-lawyer management</a> running all C-suite and critical business areas of the enterprise enabling lawyers to do what they do best: lawyering.
If Minden, Heenan, Goodman, and most other failed law firms had followed this advice trifecta, it’s likely that their demise could have been avoided. That’s because they would have been corporately structured with a so-tight-it-squeaks market position, governed by ironclad directives, bright-line boundaries, and powerful infrastructure, kept shipshape and accountable with publicly shared growth and cull mechanisms, and run like a bottom-line-or-bust business with expert management at the helm.
<h2>Accepting Failure as Normal</h2>
It is entirely reasonable to expect that <a href="https://heathersuttie.ca/insights/reckoning-and-retooling/">more failures will happen</a> since most traditionally oriented legal industry players adapt to change at the same rate of shifting speed as the Earth’s tectonic plates.
Much of the blame for future failures will be assigned to the retirement of Baby Boomers who, in short order, will shift out of active practice – willingly or not – as well as to younger generations of professionals seeking new work styles and different environments. With lots of blame to go around, the rest is likely to be showered upon the ever-increasing and swift advancements in technology and tools – <a href="https://heathersuttie.ca/insights/a-brave-new-world-ai-and-legal-service/">especially AI</a> – that, if the Good Lord’s willing and the crik don’t rise, should eventually decimate the blight of the billable hour.
It’s also fair to expect that if the legal industry keeps reacting to law firm failures in the histrionic fashion that has been favoured in the past, much finger-pointing, hand-wringing, and pearl clutching will continue to ensue.
How tiresome.
Better to shove the fainting couches into storage, enter this century, and run law firms like modern-day entities of commerce.
“Legal service is a business; run it that way” has been my mantra forever. This is my hill and I’ve been dead up here for years. Still, it’s sensible advice and fair warning that if you’re not taking assertive, deliberate, and action-oriented care of your law firm’s business, <a href="https://heathersuttie.ca/insights/what-abs-can-also-mean/">you’ll soon find yourself out of it</a>.
The post <a href="https://www.slaw.ca/2024/05/02/law-firm-failures-the-new-normal/">Law Firm Failures — the New Normal?</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Dealing With a Breach of a Court Order</title>
<link>https://www.slaw.ca/2024/05/01/dealing-with-a-breach-of-a-court-order/</link>
<comments>https://www.slaw.ca/2024/05/01/dealing-with-a-breach-of-a-court-order/#respond</comments>
<dc:creator><![CDATA[Heather Douglas]]></dc:creator>
<pubDate>Wed, 01 May 2024 11:50:01 +0000</pubDate>
<category><![CDATA[Case Comment]]></category>
<category><![CDATA[2024 ONCA 57]]></category>
<category><![CDATA[breach of a court order]]></category>
<category><![CDATA[Buduchnist Credit Union Limited v. 2321197 Ontario Inc.]]></category>
<category><![CDATA[enforcement of a court order]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106882</guid>
<description><![CDATA[When a party fails to abide by an interlocutory court order, there can be several consequences. For instance in Ontario, <a href="https://canlii.ca/t/t8m#sec60.12">Rule 60.12</a> of the Rules of Civil Procedure states that “…the court may, in addition to any other sanction provided by these rules, (a) stay the party’s proceeding; (b) dismiss the party’s proceeding or strike out the party’s defence; or (c) make such other order as is just.”
In the recent case, Buduchnist Credit Union Limited v. 2321197 Ontario Inc., 2024 ONCA 57 at para <a style="font-size: 1em" href="https://canlii.ca/t/k2g97#par53">53</a>, the Ontario Court of Appeal reaffirms that the court’s discretion to respond . . . <a href="https://www.slaw.ca/2024/05/01/dealing-with-a-breach-of-a-court-order/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/05/01/dealing-with-a-breach-of-a-court-order/">Dealing With a Breach of a Court Order</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
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When a party fails to abide by an interlocutory court order, there can be several consequences. For instance in Ontario, <a href="https://canlii.ca/t/t8m#sec60.12">Rule 60.12</a> of the Rules of Civil Procedure states that “…the court may, in addition to any other sanction provided by these rules, (a) stay the party’s proceeding; (b) dismiss the party’s proceeding or strike out the party’s defence; or (c) make such other order as is just.”
In the recent case, Buduchnist Credit Union Limited v. 2321197 Ontario Inc., 2024 ONCA 57 at para <a style="font-size: 1em" href="https://canlii.ca/t/k2g97#par53">53</a>, the Ontario Court of Appeal reaffirms that the court’s discretion to respond to a breach of a court order is broad. This broad discretion comes from the court’s inherent jurisdiction to prevent an abuse of process.
This broad jurisdiction is not currently limited by legislation. <a style="font-size: 1em" href="https://canlii.ca/t/9m#sec140">Section 140(5)</a> of the Courts of Justice Act, which deals with vexatious proceedings, states that “Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground.”
When attempting to vary a court order to avoid non-compliance, parties should consider their past behaviour. At para <a href="https://canlii.ca/t/k2g97#par47">47</a>, the court states that “a party seeks a discretionary exercise of the court’s equitable jurisdiction, the court may deny relief if the party is in default of a court order or has otherwise acted inequitably”. Parties must come to court with “clean hands” (see para <a href="https://canlii.ca/t/k2g97#par49">49</a>).
Buduchnist Credit Union Limited v. 2321197 Ontario Inc. serves as a reminder that court orders are to be respected, followed, and come into force immediately (unless stated otherwise).
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The post <a href="https://www.slaw.ca/2024/05/01/dealing-with-a-breach-of-a-court-order/">Dealing With a Breach of a Court Order</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<slash:comments>0</slash:comments>
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<title>Delays in Access to Justice and Memories</title>
<link>https://www.slaw.ca/2024/05/01/delays-in-access-to-justice-and-memories/</link>
<comments>https://www.slaw.ca/2024/05/01/delays-in-access-to-justice-and-memories/#respond</comments>
<dc:creator><![CDATA[Ian Mackenzie]]></dc:creator>
<pubDate>Wed, 01 May 2024 11:00:40 +0000</pubDate>
<category><![CDATA[Dispute Resolution]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106734</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
<blockquote>
Everyone is the poet of their memories. … But like the best poems, they’re also never really finished because they gain new meaning as time reveals them in different lights.
Richard Hell
</blockquote>
The resolution of disputes does not always depend on the memories of parties or witnesses, but when credibility is at issue the memories of actions can be a critical part of resolving disputes. The more we learn about how memories are formed, and more importantly, how they are retained, the more we should have real concerns about the ability of decision-makers to assess credibility of testimony of events . . . <a href="https://www.slaw.ca/2024/05/01/delays-in-access-to-justice-and-memories/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/05/01/delays-in-access-to-justice-and-memories/">Delays in Access to Justice and Memories</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> <blockquote>Everyone is the poet of their memories. … But like the best poems, they’re also never really finished because they gain new meaning as time reveals them in different lights.
Richard Hell</blockquote>
The resolution of disputes does not always depend on the memories of parties or witnesses, but when credibility is at issue the memories of actions can be a critical part of resolving disputes. The more we learn about how memories are formed, and more importantly, how they are retained, the more we should have real concerns about the ability of decision-makers to assess credibility of testimony of events that happened years ago.
The way in which memories change over time is another way that delays in getting to a hearing on the merits of a dispute can lead to negative consequences for the administration of justice.
In a recent book, “<a href="https://www.penguinrandomhouse.ca/books/705542/why-we-remember-by-charan-ranganath/9780593821084">Why We Remember</a>“, Charan Ranganath, an American professor of psychology and neuroscience, unpacks some of the science of memory for the lay audience. It is a good overview of how memories are formed, how we access our memories, and what happens to those memories over time.
Ranganath first points out that calling memories “true” or “false” is a fundamental mischaracterization of how memories work:
… I like to think of memory as less like a photograph and more like a painting. Most paintings typically include some mixture of details that are faithful to the subject, details that are distorted or embellished, and inferences and interpretations that are neither absolutely true nor entirely false, but rather reflection of the artist’s perspective. The same is true of memory.
Memories … are neither false nor true — they are constructed in the moment, reflecting both fragments of what actually transpired in the past and the biases, motivations, and cues that we have around us in the present.
So, we must start with the premise that our recollection of events is imprecise from the very beginning. But what happens to our imperfect memories over time? Memories are subject to our own influences when we recall them, as well as the influence of others. This is why, over time, our memories become less and less reliable.
As Raganath notes, our memories are “not etched in stone; they are constantly changing as they are updated to reflect what we have just learned and experienced.” The act of remembering is not a passive replay of the past — every time we remember, we apply information from the present that can either subtly or sometimes profoundly alter the contents of our memories:
<blockquote>Consequently, every time we recall an experience, what we remember is suffused with the residue of the last time we remembered it, and on it goes; each step is one link in a neural chain, subject to edits and updates, so that, overtime, our memories can drift further and further from that initial event.</blockquote>
What is crucial from the dispute resolution perspective is that when a memory is revisited over and over, subtle alterations occur with each repetition. So, the longer it takes for a dispute to get to a hearing on the merits, the more degraded (and inaccurate) that memory becomes.
Our memories do not exist in a vacuum — they are influenced by those around us. This happens in family conversations all the time – when stories are told in conversation, those who were also there at the event being recounted will often “correct” the memory using their perspective. This can change the storyteller’s memories of the event. Ranganath says that the interactions with others (especially family and friends) can reshape memories and, “in some cases, lead us to fundamentally reshape the narrative”.
One would think that collective memories, or the reconstruction of events by a group, would lead to more accurate memories. However, studies have shown that the opposite is the case – those working in a group have worse memory performance than those working alone. This phenomenon is known as “collaborative inhibition”. There are a few reasons for this. If you are recalling events in a group setting, you may lose the thread while waiting your turn to speak. There is also a homogenizing effect, “filtering out the idiosyncrasies that make each of us remember things just a little bit differently”:
<blockquote>…we tend to remember the information that we are moved to share with the others and leave out that which is unlikely to resonate with them, thereby morphing our memories in a way that makes them align with those of the rest of our group.”</blockquote>
In addition, our memories become skewed toward those who dominate the conversation — either by being loud, or because of their status.
What is most relevant to the issue of delay in hearings is what happens to collective memories over time. Ranganath cites a <a href="https://pubmed.ncbi.nlm.nih.gov/36780338/">study</a> by Suparna Rajaram that showed that as people get repeated opportunities to recall information with group members, “they begin to converge on the same memories”.
The more we learn about memory and how it is formed, the more concerned we should be about relying on memories alone to support findings of fact. Delays in access to justice exacerbate this concern since memories degrade or change over time.
The simple solution is to have all hearings occur within a reasonable time. However, with the current levels of backlogs in our justice system (in the courts and in tribunals), it will be some time before we have reasonably quick access to justice.
What are some of the precautions we can take in the short term? We cannot tell witnesses to “not think” about events — the brain is not that easily controlled. This is known as the <a href="https://nesslabs.com/pink-elephant-paradox">“pink elephant paradox”</a>. Once someone tells you not to think of a pink elephant, you will start to think about the pink elephant.
We could require witnesses to write down their recollection of an event as soon as possible after a dispute arises. Contemporaneous notes are often used as evidence in hearings, and notes that are not contemporaneous but are closer to the event than testimony should also be given some weight (and should generally be preferred over testimony given years later).
In the absence of notes from a witness, a decision-maker can often reconstruct a witness’s recollections from other documents written at, or close to, the events in question. E-mails, memos and texts can often provide a more accurate picture of events than the testimony of that witness years later.
Although difficult to enforce, advocates could tell witnesses not to discuss the events in question with others, thereby reducing the opportunities for memories to be revised.
I’ll end with a short anecdote from my experience as an adjudicator. I was hearing a grievance about events that had happened many years ago, related to the denial of an allowance under a collective agreement. Although the consequences were not insignificant, the conversations and representations made at the time were not memorable. Given the passage of time, I suggested to the parties that we could simply rely on the documents and dispense with testimony. The parties insisted that credibility was an issue and that testimony was required. At the hearing, none of the witnesses had any independent recollection of the events leading up to the denial of the allowance. I ended up assessing credibility based on the documentary record alone. This is a reminder that oral testimony is not always needed to assess credibility.
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<title>Awakening the Sun</title>
<link>https://www.slaw.ca/2024/04/30/awakening-the-sun/</link>
<comments>https://www.slaw.ca/2024/04/30/awakening-the-sun/#respond</comments>
<dc:creator><![CDATA[Tania Perlin]]></dc:creator>
<pubDate>Tue, 30 Apr 2024 11:00:38 +0000</pubDate>
<category><![CDATA[Practice of Law]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106423</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
I recently read about an interesting concept about reframing one’s point of view.
It stated that if you wake up with the sun, you are still asleep. However if you awaken the sun, then you are truly awake.
I had to read it a few times to actually understand it’s meaning, but then I realized that what this means, is that the way our day develops is completely up to us.
If we set an intention for the day to unfold in a calm and peaceful manner, knowing that we are fully capable of dealing with whatever challenges may arise, . . . <a href="https://www.slaw.ca/2024/04/30/awakening-the-sun/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/30/awakening-the-sun/">Awakening the Sun</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> I recently read about an interesting concept about reframing one’s point of view.
It stated that if you wake up with the sun, you are still asleep. However if you awaken the sun, then you are truly awake.
I had to read it a few times to actually understand it’s meaning, but then I realized that what this means, is that the way our day develops is completely up to us.
If we set an intention for the day to unfold in a calm and peaceful manner, knowing that we are fully capable of dealing with whatever challenges may arise, then we are setting ourselves up for success no matter what the day brings our way. Thus we awaken the sun.
Experts call this cognitive reframing.
<h2>Cognitive Reframing</h2>
It is beyond the scope of this article to discuss in detail how cognitive reframing works. However I want to provide some insight into this technique as well as some resources for you to read if the idea resonates with you.
According to experts, cognitive reframing involves:
<ol>
<li>learning to recognize the thoughts that are causing a negative outlook</li>
<li>finding evidence to discredit the thought</li>
<li>and then replacing the negative thought with a more realistic one</li>
</ol>
For example, if a person is asked to see their boss, the person may think: “Oh I am getting fired.” As soon as the negative thought enters the person’s mind, they may feel the physical sensations of fear, dread, sadness and the rest of the day becomes a downward spiral into the depths of despair.
The negative thought usually comes so quickly that it’s impossible to detect when it actually arrived. By the time we recognize that the negative thought is here, the body is already reacting with physical sensation.
In reality, a meeting with the boss may end up being a simple discussion about a file or a client, but the uninvited negative thought, results in catastrophic scenarios where the person ends up homeless on the street.
We are innately wired to remember negative things and to think negative thoughts as a protective mechanism. If you touch a hot stovetop you will remember the feeling and will unlikely do this again.
So we need to retrain our brains to stop the negative thoughts from spiraling into fearful scenarios. That is why cognitive reframing may be very helpful in these situations.
More information about cognitive reframing may be <a href="https://www.everydayhealth.com/stress/study-says-heres-how-to-reframe-stress-to-use-it-to-your-advantage/">found here</a>.
<h2>Starting Your Day with Positive Intentions</h2>
In addition to cognitive reframing, here are a few simple techniques you can use to start your day in a more positive way.
<ol>
<li>As soon as you open your eyes, say a few words of gratitude for a warm bed that allowed you to sleep in comfort all night.</li>
<li>Before getting out of bed, set an intention that everything you do will work out in ease.</li>
<li>When you get out of bed, put on music that you love that will put you into a positive mood as you prepare to take on your day.</li>
<li>If any negative thoughts start creeping into your mind, by putting doubt with “what if” scenarios, just reframe and say to yourself, “so what, I know that I can handle anything that comes my way.” (cognitive reframing in its simplest form).</li>
<li>As you pass by a mirror, look at your reflection and say: “ I love and accept myself exactly as I am. I am going to have a wonderful day.”</li>
</ol>
You may find it hard to do number 5. Many people do not feel comfortable saying nice things to themselves. However, self acceptance is the first step in loving ourselves and working on stopping the negative critic in our minds.
When we accept ourselves unconditionally, we stop judging everything we do negatively. We learn to be kind and compassionate towards ourselves, which leads to being compassionate and kind to others.
I am always happy to help create individualized plans for wellness and stress management.
Wishing you peace and calm in all your endeavors.
___________________
Disclaimer
The information in this article is not therapy, counseling, psychotherapy, psychoanalysis, mental health care/treatment, substance abuse care/ treatment, nor is it medical, psychological, mental health advice or treatment, or any other professional advice.
The information in this article is for information purposes only, and is not to be used as a substitute for therapy, counseling, psychotherapy, psychoanalysis, mental health care, medical care, or any other professional advice by legal, medical or other qualified professionals.
The information in this article shall not be recorded, copied or distributed.
If you feel that you may need medical or other professional help, please contact your doctor or call 911 if it is an emergency.
The post <a href="https://www.slaw.ca/2024/04/30/awakening-the-sun/">Awakening the Sun</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Tips Tuesday: Use the Verbatim Option in Google</title>
<link>https://www.slaw.ca/2024/04/30/tips-tuesday-use-the-verbatim-option-in-google/</link>
<comments>https://www.slaw.ca/2024/04/30/tips-tuesday-use-the-verbatim-option-in-google/#respond</comments>
<dc:creator><![CDATA[Susannah Tredwell]]></dc:creator>
<pubDate>Tue, 30 Apr 2024 11:00:11 +0000</pubDate>
<category><![CDATA[Tips Tuesday]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106590</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
You may have noticed that Google has changed its search results so that they now include words related to those in your search string. While this can be helpful, sometimes it means that the search results are not what you really wanted. 
One way of forcing Google to return only the words you are searching for is to put quotation marks around the words or phrases you want. Another way is to use Google’s verbatim option.
To use the verbatim option, go to the Tools option on the Google search page. Click on All Results and then select Verbatim. . . . <a href="https://www.slaw.ca/2024/04/30/tips-tuesday-use-the-verbatim-option-in-google/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/30/tips-tuesday-use-the-verbatim-option-in-google/">Tips Tuesday: Use the Verbatim Option in Google</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> You may have noticed that Google has changed its search results so that they now include words related to those in your search string. While this can be helpful, sometimes it means that the search results are not what you really wanted. 
One way of forcing Google to return only the words you are searching for is to put quotation marks around the words or phrases you want. Another way is to use Google’s verbatim option.
To use the verbatim option, go to the Tools option on the Google search page. Click on All Results and then select Verbatim.
<img decoding="async" class="aligncenter size-medium wp-image-106591" style="”border: 5px;" src="https://www.slaw.ca/wp-content/uploads/2024/03/Google-verbatim-300x211.png" alt="Screenshot of how to change Google search results from all results to verbatim" width="300" height="211" srcset="https://www.slaw.ca/wp-content/uploads/2024/03/Google-verbatim-300x211.png 300w, https://www.slaw.ca/wp-content/uploads/2024/03/Google-verbatim-200x141.png 200w, https://www.slaw.ca/wp-content/uploads/2024/03/Google-verbatim.png 466w" sizes="(max-width: 300px) 100vw, 300px" />
— <a href="https://www.linkedin.com/in/susannahtredwell">Susannah Tredwell</a>
The post <a href="https://www.slaw.ca/2024/04/30/tips-tuesday-use-the-verbatim-option-in-google/">Tips Tuesday: Use the Verbatim Option in Google</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Monday’s Mix</title>
<link>https://www.slaw.ca/2024/04/29/mondays-mix-553/</link>
<comments>https://www.slaw.ca/2024/04/29/mondays-mix-553/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Mon, 29 Apr 2024 11:00:39 +0000</pubDate>
<category><![CDATA[Monday’s Mix]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106857</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from more than 80 recent <a href="http://www.clawbies.ca/">Clawbie</a> winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
This week the randomly selected blogs are 1. <a href="https://www.globalworkplaceinsider.com/">Global Workplace Insider</a> 2. <a href="https://vancouverimmigrationblog.com/category/canadian-immigration-law-blog/">Vancouver Immigration Law Blog</a> 3. <a href="https://www.blogueducrl.com/">Le Blogue du CRL</a> 4. <a href="https://www.mccarthy.ca/en">Canadian Appeals Monitor</a> 5. <a href="https://lso.ca/gazette/home">The Treasurer’s Blog</a>
Global Workplace Insider 
<a href="https://www.globalworkplaceinsider.com/2024/04/la-cour-supreme-du-canada-tranche-les-cadres-ne-pourront-se-syndiquer-au-quebec/">La Cour suprême du Canada tranche : les cadres ne pourront se syndiquer au Québec</a>
Le 19 avril dernier, la Cour suprême du . . . <a href="https://www.slaw.ca/2024/04/29/mondays-mix-553/" class="read-more">[more] </a>
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Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from more than 80 recent <a href="http://www.clawbies.ca/">Clawbie</a> winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
This week the randomly selected blogs are 1. <a href="https://www.globalworkplaceinsider.com/">Global Workplace Insider</a> 2. <a href="https://vancouverimmigrationblog.com/category/canadian-immigration-law-blog/">Vancouver Immigration Law Blog</a> 3. <a href="https://www.blogueducrl.com/">Le Blogue du CRL</a> 4. <a href="https://www.mccarthy.ca/en">Canadian Appeals Monitor</a> 5. <a href="https://lso.ca/gazette/home">The Treasurer’s Blog</a>
Global Workplace Insider 
<a href="https://www.globalworkplaceinsider.com/2024/04/la-cour-supreme-du-canada-tranche-les-cadres-ne-pourront-se-syndiquer-au-quebec/">La Cour suprême du Canada tranche : les cadres ne pourront se syndiquer au Québec</a>
Le 19 avril dernier, la Cour suprême du Canada a rendu une décision fort attendue en matière de syndicalisation des cadres. Dans l’arrêt Société des casinos du Québec inc. c. Association des cadres de la Société des casinos du Québec[1], la Cour suprême juge que l’exclusion d’une association de cadres de premier niveau du régime du Code du travail du Québec est constitutionnelle et qu’ils n’ont dès lors pas le droit de syndiquer. Il s’agit d’une décision favorable pour les employeurs en ce qu’une décision contraire aurait pu élargir de façon considérable le droit à la syndicalisation au pays. …
Vancouver Immigration Law Blog 
<a href="https://vancouverimmigrationblog.com/the-dadms-noticeable-silence-clarifying-the-human-role-in-the-canadian-governments-hybrid-decision-making-systems-law-432-d-op-ed-2/">The DADM’s Noticeable Silence: Clarifying the Human Role in the Canadian Government’s Hybrid Decision-Making Systems [Law 432.D – Op-Ed 2]</a>
This is part 2 of a two-part series sharing Op-Eds I wrote for my Law 432.D course titled “Accountable Computer Systems.” This blog will likely go up on the course website in the near future but as I am hoping to speak to and reference things I have written for a presentations coming up, I am sharing here, first. This blog discusses the hot topic of ‘humans in the loop’ for automated decision-making systems [ADM]. As you will see from this Op-Ed, I am quite critical of our current Canadian Government self-regulatory regime’s treatment of this concept. …
Le Blogue du CRL 
<a href="https://www.blogueducrl.com/2024/04/intact-compagnie-dassurance-c-lavoie-2024-qcca-427/">Intact Compagnie d’assurance c. Lavoie, 2024 QCCA 427</a>
ASSURANCE : L’assuré intimé, dont la défense est entièrement couverte par certains assureurs, ne possède pas l’intérêt juridique requis pour présenter une demande de type Wellington afin de forcer la compagnie d’assurance appelante à le défendre et à partager les frais de cette défense avec ces autres assureurs. …
Canadian Appeals Monitor 
<a href="https://www.mccarthy.ca/en/insights/books-guides/2024-canadian-federal-budget-commentary-tax-initiatives">2024 Canadian Federal Budget Commentary – Tax Initiatives</a>
The Honourable Chrystia Freeland, Canada’s Deputy Prime Minister and Minister of Finance, tabled the Liberal government’s federal budget on April 16, 2024. Fairness for Every Generation (Budget 2024) details the government’s tax measures on a host of items affecting Canadian businesses and their owners, including: …
The Treasurer’s Blog 
<a href="https://lso.ca/gazette/news/equity-advisory-group-seeking-new-members">Equity Advisory Group seeking new members</a>
The Law Society of Ontario is inviting lawyers, paralegals, law students, paralegal students, licensing candidates and representatives of legal organizations and associations to apply for membership in the Equity Advisory Group. The Equity Advisory Group (EAG) represents the diverse interests of lawyers and paralegals who identify as a member of one or more equity-seeking groups. …
 
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*Randomness here is created by Random.org and its <a href="http://www.random.org/lists/">list randomizing function</a>.
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<title>Summaries Sunday: SOQUIJ</title>
<link>https://www.slaw.ca/2024/04/28/summaries-sunday-soquij-526/</link>
<comments>https://www.slaw.ca/2024/04/28/summaries-sunday-soquij-526/#respond</comments>
<dc:creator><![CDATA[SOQUIJ]]></dc:creator>
<pubDate>Sun, 28 Apr 2024 11:00:32 +0000</pubDate>
<category><![CDATA[Summaries Sunday]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106821</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : L’appel de la déclaration de délinquant dangereux prononcée à l’endroit de l’accusé est rejeté, et ce, bien que le juge de première instance ait mal énoncé l’état du droit et que la structure du jugement de détermination de la peine soit critiquable; la Cour n’y voit aucune . . . <a href="https://www.slaw.ca/2024/04/28/summaries-sunday-soquij-526/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/28/summaries-sunday-soquij-526/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : L’appel de la déclaration de délinquant dangereux prononcée à l’endroit de l’accusé est rejeté, et ce, bien que le juge de première instance ait mal énoncé l’état du droit et que la structure du jugement de détermination de la peine soit critiquable; la Cour n’y voit aucune erreur déterminante, vu les conclusions de fait tirées par le juge.
Intitulé : Chemama c. R., <a href="http://citoyens.soquij.qc.ca/ID=FA4A035D51321C6475694DCB248E4E5F">2024 QCCA 405</a> 
Juridiction : Cour d’appel (C.A.), Montréal 
Décision de : Juges Martin Vauclair, Robert M. Mainville et Marie-Josée Hogue 
Date : 8 avril 2024
Résumé
PÉNAL (DROIT) — procédure pénale — procédure fédérale — appel — procès devant jury — nomination d’un amicus curiae — juge du procès — détermination du rôle d’un amicus curiae — pouvoir discrétionnaire — mandat contradictoire — comportement perturbateur de l’accusé — accusé expulsé de la salle d’audience — lien vidéo — aptitude à subir son procès — motifs raisonnables — article 672.26 C.Cr. — droit à un procès juste et équitable — devoir d’assistance — choix du mode de procès — nouveau choix (art. 561 C.Cr.) — libération d’un juré — directives du juge au jury — droit d’être jugé dans un délai raisonnable — conduite de la défense — prononcé de la peine — délai de 67 mois — délinquant dangereux — détention — durée indéterminée — requête de type Rowbotham — outrage au tribunal — perte d’éléments de preuve — plaideur vexatoire — absence de partialité — agression sexuelle — voies de fait — séquestration — menaces — entrave à la justice — harcèlement criminel.
PÉNAL (DROIT) — garanties fondamentales du processus pénal — droit à un procès juste et équitable — procès devant jury — nomination d’un amicus curiae — juge du procès — détermination du rôle d’un amicus curiae — pouvoir discrétionnaire — mandat contradictoire — comportement perturbateur de l’accusé — accusé expulsé de la salle d’audience — lien vidéo — aptitude à subir son procès — motifs raisonnables — article 672.26 C.Cr. — devoir d’assistance — libération d’un juré — directives du juge au jury — plaideur vexatoire — absence de partialité — droit d’être jugé dans un délai raisonnable — conduite de la défense — prononcé de la peine — délai de 67 mois.
DROITS ET LIBERTÉS — droits judiciaires — vie, sûreté, intégrité et liberté — droit à un procès juste et équitable — procès devant jury — nomination d’un amicus curiae — juge du procès — détermination du rôle d’un amicus curiae — pouvoir discrétionnaire — mandat contradictoire — comportement perturbateur de l’accusé — accusé expulsé de la salle d’audience — lien vidéo — aptitude à subir son procès — motifs raisonnables — article 672.26 C.Cr. — devoir d’assistance — libération d’un juré — directives du juge au jury — plaideur vexatoire — absence de partialité.
DROITS ET LIBERTÉS — droits judiciaires — personne arrêtée ou détenue — droit d’être jugé dans un délai raisonnable — conduite de la défense — prononcé de la peine — délai de 67 mois.
PÉNAL (DROIT) — détermination de la peine — infractions de nature sexuelle — agression sexuelle — victimes travailleuses du sexe — 2 victimes âgées de 18 ans — accusé âgé de 28 ans — antécédents judiciaires — risque élevé de récidive — délinquant dangereux — détention — durée indéterminée — droit d’être jugé dans un délai raisonnable — conduite de la défense.
PÉNAL (DROIT) — détermination de la peine — infractions contre la personne — voies de fait — victimes travailleuses du sexe — 2 victimes âgées de 18 ans — accusé âgé de 28 ans — antécédents judiciaires — risque élevé de récidive — délinquant dangereux — détention — durée indéterminée — droit d’être jugé dans un délai raisonnable — conduite de la défense.
PÉNAL (DROIT) — preuve pénale — fardeau de la preuve — procès devant jury — directives du juge au jury — suffisance des directives — recevabilité de la preuve — preuve de faits similaires — preuve d’identification — perte d’éléments de preuve — nouvelle preuve.
Appels de déclarations de culpabilité, de peines et d’une déclaration de délinquant dangereux. Rejetés. Requêtes diverses. Une requête pour permission de présenter une preuve nouvelle est accueillie et les autres sont rejetées.
Les jugements entrepris, issus de la Cour supérieure et de la Cour du Québec, ont reconnu l’appelant coupable d’entrave à la justice et de crimes violents. Celui-ci a été condamné à une peine de 4 ans d’emprisonnement dans le premier cas et, dans le second, après avoir été déclaré délinquant dangereux, il a été condamné à une peine de détention d’une durée indéterminée. Les moyens d’appel portent principalement sur le processus ayant mené aux verdicts et à la déclaration de délinquant dangereux. Il convient de mentionner que l’appelant a constamment fait preuve d’une attitude hostile à l’endroit de toutes les parties prenantes, qu’il a été déclaré plaideur vexatoire en cours des procédures et, sauf à certaines occasions exceptionnelles, qu’il n’était pas représenté par un avocat. Enfin, vu la récente décision rendue par la Cour suprême du Canada dans l’affaire R. c. Kahsai (C.S. Can., 2023-07-28), 2023 CSC 20, SOQUIJ AZ-51956980, 2023EXP-1835, qui porte sur les pouvoirs d’un amicus curiae, la Cour a interrompu son délibéré et a invité les parties à se prononcer quant à l’incidence de cette décision sur les présents appels.
Décision
L’arrêt Kahsai n’a aucune incidence dans la présente affaire. Il est vrai que, dans le cadre de l’audience devant la Cour du Québec, la désignation d’un amicus curiae aurait pu être appropriée et que la Cour supérieure aurait pu accorder un rôle plus partisan à celui qu’elle a nommé, mais cela n’aurait pas eu d’incidence sur la défense de l’appelant. En effet, un amicus curiae nommé par le juge du procès doit être en mesure d’obtenir des renseignements de l’accusé afin que ses interventions puissent être utiles. Or, il semble que cette condition préalable n’ait pas été respectée dans les 2 procès en l’espèce, compte tenu de l’attitude de l’appelant.
Quant au fond des appels, si la Cour du Québec n’a pas strictement respecté la procédure prévue à l’article 561 du Code criminel (C.Cr.) relativement au droit de l’accusé de choisir un autre mode de procès, elle en a respecté l’essence. De plus, l’argument reprochant au juge du procès de ne pas s’être assuré que l’appelant était apte à subir son procès est sans fondement. En revanche, il est vrai que le juge a commis des erreurs en omettant d’expliquer à l’appelant, un accusé non représenté par un avocat, les fondements de la procédure du procès et en n’envisageant pas de prendre les moyens pour que ce dernier, qu’il venait d’exclure de la salle d’audience, bénéficie d’un lien vidéo. Dans d’autres circonstances, ces erreurs auraient pu justifier d’ordonner un nouveau procès, mais pas en l’espèce.
Par ailleurs, tous les moyens d’appel à l’encontre du jugement de la Cour supérieure sont rejetés, lesquels portaient sur la façon dont le juge avait géré le départ d’un juré, la question de la capacité de l’appelant de subir son procès — le juge n’ayant pas usurpé le rôle du jury sur cette question tel qu’il est prévu à l’article 672.26 C.Cr. —, les pouvoirs accordés à l’amicus curiae et, enfin, le recours à une preuve de faits similaires aux fins de l’identification de l’appelant et les instructions au jury à cet effet.
Les moyens proposés à l’encontre de la déclaration de «délinquant dangereux» sont également rejetés, bien que le juge ait mal énoncé l’état du droit. En effet, lorsqu’un délinquant est déclaré délinquant dangereux, la détention dans un pénitencier pour une période indéterminée n’est pas la peine imposée par défaut. La structure du jugement de détermination de la peine pourrait également être critiquée, car elle n’est pas tout à fait compatible avec les principes énoncés dans l’arrêt R. c. Boutilier (C.S. Can., 2017-12-21), 2017 CSC 64, SOQUIJ AZ-51453245, 2018EXP-32, [2017] 2 R.C.S. 936. La Cour n’y voit toutefois aucune erreur déterminante, vu les conclusions de fait tirées par le juge.
Quant à la question du droit d’être jugé dans un délai raisonnable, 67 mois constituent un délai exceptionnellement long qui ne devrait pas être considéré comme normal. Cependant, en raison de la conduite de l’appelant, la présente affaire n’a rien d’un dossier normal.
Le texte intégral de la décision est disponible <a href="http://citoyens.soquij.qc.ca/ID=FA4A035D51321C6475694DCB248E4E5F">ici</a>
The post <a href="https://www.slaw.ca/2024/04/28/summaries-sunday-soquij-526/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Book Review: Big Data</title>
<link>https://www.slaw.ca/2024/04/25/book-review-big-data/</link>
<comments>https://www.slaw.ca/2024/04/25/book-review-big-data/#respond</comments>
<dc:creator><![CDATA[Canadian Association of Law Libraries]]></dc:creator>
<pubDate>Thu, 25 Apr 2024 11:00:33 +0000</pubDate>
<category><![CDATA[Book Reviews]]></category>
<category><![CDATA[Thursday Thinkpiece]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106672</guid>
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Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (<a href="https://www.callacbd.ca/Publications">CLLR</a>). CLLR is the official journal of the <a href="https://www.callacbd.ca/">Canadian Association of Law Libraries (CALL/ACBD)</a>, and its reviews cover both practice-oriented and academic publications related to the law.
Big Data. Edited by Benoit Leclerc & Jesse Cale. Abingdon: Routledge, 2020. 148 p. Includes illustrations, bibliographic references, and index. Criminology at the Edge series. ISBN 9781138492783 (hardcover) $136.00; ISBN 9781032336992 (softcover) $42.36; ISBN 9781351029704 (eBook) $42.36.
Reviewed by Matthew Renaud 
Law Librarian, 
E.K. Williams Law Library, University of Manitoba . . . <a href="https://www.slaw.ca/2024/04/25/book-review-big-data/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/25/book-review-big-data/">Book Review: Big Data</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (<a href="https://www.callacbd.ca/Publications">CLLR</a>). CLLR is the official journal of the <a href="https://www.callacbd.ca/">Canadian Association of Law Libraries (CALL/ACBD)</a>, and its reviews cover both practice-oriented and academic publications related to the law.
Big Data. Edited by Benoit Leclerc & Jesse Cale. Abingdon: Routledge, 2020. 148 p. Includes illustrations, bibliographic references, and index. Criminology at the Edge series. ISBN 9781138492783 (hardcover) $136.00; ISBN 9781032336992 (softcover) $42.36; ISBN 9781351029704 (eBook) $42.36.
Reviewed by Matthew Renaud 
Law Librarian, 
E.K. Williams Law Library, University of Manitoba
Public Health Crisis Management and Criminal Liability of Governments opens with Jean Edmond Cyrus Rostand’s famous quotation from his 1938 book Thoughts of a Biologist: “Kill one man, and you are a murderer. Kill millions of men, and you are a conqueror. Kill them all, and you are a God.” This quotation is ultimately about power and privilege, and Public Health Crisis Management and Criminal Liability of Governments examines the ways in which various governments possessed and exercised their powers and privileges in the context of the COVID-19 pandemic. While an ordinary person faced penalties if they breached COVID-19 restrictions, this book asks the question of what penalties or sanctions governments might face.
The book conveniently offers a table of contents, a list of contributors, and a list of abbreviations used in the text. Following an introduction and one chapter outlining the emergence and global spread of SARS-CoV-2, the book is a comparative examination of 13 countries’ responses: Brazil, England, France, Germany, India, Indonesia, Iran, the People’s Republic of China, South Africa, Spain, Sweden, Turkey, and the United States. The final chapter provides a summary and considers responses to the COVID-19 pandemic in relation to crimes against humanity.
Each contributor begins their chapter with a contextual introduction followed by a constitutional, legal, and policy overview. Within the introductions, contributors comment on specific constitutional and legal principles regarding the criminal liability of high-ranking government and public officials, the scope of responsibility and areas of tolerated risk of each jurisdiction, the impact of immunities, and prosecutorial matters.
Discussions on causation follow the contextual overviews. Most chapters include comments on general causation principles, such as thin skull scenarios. Some chapters also include discussions on the structure of homicide offences and assault, aggravated assault, and serious bodily harm offences. Most contributors examine murder and manslaughter, offences related to actions that cause serious bodily harm, offences regarding unborn fetuses, interrupting the courses of viable pregnancies, and failure to render assistance. Following this, contributors discuss the crime of epidemic alongside crimes against humanity. Sections on defenses, justifications, and excuses follow the discussions of the crimes. Each chapter concludes with discussions on corporate criminal liability, forms of participation, attempts and sanctions, sentencing, punishment, reparations, and restorative justice. All within the context of answering the question of, during the initial stages of the pandemic, “to what extent did senior government officials cause death of serious illness that otherwise would not have occurred had it not been for the officials’ conduct?” (p. 2) and what is their criminal liability?
Public Health Crisis Management and Criminal Liability of Governments may not be directly applicable to practitioners in Canada due to the omission of research regarding the Government of Canada’s response to COVID-19; however, they may find the book worth consulting for a global comparison of the effects of COVID-19 and for analyses of other jurisdictions’ responses to the pandemic. There are a variety of articles on healthcare liability during COVID-19, but none from this perspective.
One challenge with the text was the complex language, which many readers may struggle with. In addition, the levels of detail provided varied widely, with some chapters featuring vague and general discussions while others went into more depth.
Ultimately, legal practitioners or researchers may wish to consult this book for the abundance of information and resources cited. As the only text of its kind, Public Health Crisis Management and Criminal Liability of Governments serves as an introductory global comparative law treatise on COVID-19 responses and the criminal liability of governments.
The post <a href="https://www.slaw.ca/2024/04/25/book-review-big-data/">Book Review: Big Data</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Governance Reform and Lawyer Independence in Canadian Legal Regulation: Examining British Columbia’s Bill 21</title>
<link>https://www.slaw.ca/2024/04/24/governance-reform-and-lawyer-independence-in-canadian-legal-regulation-examining-british-columbias-bill-21/</link>
<comments>https://www.slaw.ca/2024/04/24/governance-reform-and-lawyer-independence-in-canadian-legal-regulation-examining-british-columbias-bill-21/#comments</comments>
<dc:creator><![CDATA[Jordan Furlong]]></dc:creator>
<pubDate>Wed, 24 Apr 2024 11:00:03 +0000</pubDate>
<category><![CDATA[Legal Ethics]]></category>
<category><![CDATA[Practice of Law]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106780</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
Earlier this month, the government of British Columbia introduced <a href="https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/42nd-parliament/5th-session/bills/first-reading/gov21-1">Bill 21, the Legal Professions Act.</a> This bill amalgamates the Law Society of British Columbia and the Society of Notaries Public of British Columbia into a new corporation, Legal Professions British Columbia (LPBC), while also creating a licensing and regulation structure for paralegals. It could be the most consequential development in Canadian legal regulation in more than 100 years.
The British Columbia legal profession’s leading organizations (the <a href="https://www.lawsociety.bc.ca/about-us/news-and-publications/news/2024/law-society-of-bc-opposes-bill-21-%E2%80%93-the-legal-prof/">Law Society</a>, the<a href="https://www.cbabc.org/Newsroom/In-The-Media/2024/B-C-introduces-legislation-on-legal-profession-re"> Canadian Bar Association’s BC branch</a>, and the <a href="https://s3.amazonaws.com/membercentralcdn/sitedocuments/bc/bc/0534/2457534.pdf?AWSAccessKeyId=AKIAIHKD6NT2OL2HNPMQ&Expires=1713882609&Signature=MefndB4wTXLwkoAUgQ56grpKdYE=&response-content-disposition=inline;%20filename=%2204-10-2024%20-%20TLABC%20NR%20-%20Introduction%20of%20Bill%2021.pdf%22;%20filename*=UTF-8''04%252D10%252D2024%2520%252D%2520TLABC%2520NR%2520%252D%2520Introduction%2520of%2520Bill%252021%252Epdf&response-content-type=application/pdf">Trial Lawyers’ Association of BC</a>) strongly oppose Bill 21, with the . . . <a href="https://www.slaw.ca/2024/04/24/governance-reform-and-lawyer-independence-in-canadian-legal-regulation-examining-british-columbias-bill-21/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/24/governance-reform-and-lawyer-independence-in-canadian-legal-regulation-examining-british-columbias-bill-21/">Governance Reform and Lawyer Independence in Canadian Legal Regulation: Examining British Columbia’s Bill 21</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> Earlier this month, the government of British Columbia introduced <a href="https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/42nd-parliament/5th-session/bills/first-reading/gov21-1">Bill 21, the Legal Professions Act.</a> This bill amalgamates the Law Society of British Columbia and the Society of Notaries Public of British Columbia into a new corporation, Legal Professions British Columbia (LPBC), while also creating a licensing and regulation structure for paralegals. It could be the most consequential development in Canadian legal regulation in more than 100 years.
The British Columbia legal profession’s leading organizations (the <a href="https://www.lawsociety.bc.ca/about-us/news-and-publications/news/2024/law-society-of-bc-opposes-bill-21-%E2%80%93-the-legal-prof/">Law Society</a>, the<a href="https://www.cbabc.org/Newsroom/In-The-Media/2024/B-C-introduces-legislation-on-legal-profession-re"> Canadian Bar Association’s BC branch</a>, and the <a href="https://s3.amazonaws.com/membercentralcdn/sitedocuments/bc/bc/0534/2457534.pdf?AWSAccessKeyId=AKIAIHKD6NT2OL2HNPMQ&Expires=1713882609&Signature=MefndB4wTXLwkoAUgQ56grpKdYE=&response-content-disposition=inline;%20filename=%2204-10-2024%20-%20TLABC%20NR%20-%20Introduction%20of%20Bill%2021.pdf%22;%20filename*=UTF-8''04%252D10%252D2024%2520%252D%2520TLABC%2520NR%2520%252D%2520Introduction%2520of%2520Bill%252021%252Epdf&response-content-type=application/pdf">Trial Lawyers’ Association of BC</a>) strongly oppose Bill 21, with the Law Society promising a court challenge should the bill become law. The principal reason for their opposition is the new regulator’s proposed governance structure.
Instead of continuing the Law Society’s governance model, in which elected lawyers comprise a super-majority of directors (or Benchers), LPBC’s board would include a more balanced mix of elected legal professionals (lawyers, notaries, and paralegals) and appointed members, including Indigenous and First Nation representatives. The lawyer organizations opposed to Bill 21 believe the loss of the elected lawyer super-majority on the board would dangerously undermine the independence of the legal profession from government.
I understand and appreciate these organizations’ concerns; the independence of lawyers from state interference is extremely important. But I believe the new governance model would continue to safeguard the independence of lawyers while right-sizing the legal profession’s degree of influence over its own regulator. In addition, the bill will increase the range of authorized and affordable options for legal assistance for British Columbians, a much-needed response to the legal accessibility crisis.
Bill 21 is not perfect; I have significant reservations about certain aspects. But because of its new governance model and its authorization of licensed paralegals, I believe it will change the regulation, provision, and accessibility of legal services in British Columbia for the better. In this lengthy article, I will endeavour to trace the recent history of legal regulation reform efforts in BC, describe LPBC’s proposed new governance model, and explain why the bill and its reformed governance structure have my support.
<h2>Historical Background</h2>
British Columbia is one of only two provinces (along with Québec) where two separate regulators oversee two different types of legal services providers (lawyers and notaries public). Historically, <a href="http://www.apple.com">relations between the two professions could be described as uneasy at best</a>. The BC government’s proposal to amalgamate these two regulators into a single new body is the culmination of its long-running efforts to streamline legal regulation and address challenges related to the accessibility of legal services.
Bill 21 is not the government’s first attempt in this regard. In July 2012, <a href="https://www.lawsociety.bc.ca/Website/media/Shared/docs/home/blog/mou-notaries.pdf">Attorney General Shirley Bond asked both regulators</a> to develop a proposal for regulatory reform of legal and notary services that would “enhance the protection of the public interest in the provision of legal services, increase affordability and access to legal services and/or access to justice, and create efficiencies in the regulation of legal services.” (pp. 5-6)
That request produced <a href="https://www.lawsociety.bc.ca/Website/media/Shared/docs/home/blog/mou-notaries.pdf">a Memorandum of Understanding between the two regulators</a> to pursue what amounted to a merger that would see the Law Society take over regulation of notaries. (pp. 1-3) Task forces were struck and many discussions were held, but for reasons not available on the public record, <a href="https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/active-reviews/legal-professions-regulatory-modernization#previous-reform-effort">no final agreement was achieved</a>.
The BC government soon tried again, this time with an attempt to create a regulatory framework within the Law Society through which paralegals could be licensed to carry out less complex legal work, including in family law. In 2018, following several years of joint efforts with the Law Society, the government was ready to <a href="https://www.bclaws.gov.bc.ca/civix/document/id/bills/billsprevious/3rd41st:gov57-1">make required amendments</a> to the Legal Professions Act enabling licensed paralegal regulation by the Law Society.
But at the Law Society’s annual meeting that fall, <a href="https://www.canadianlawyermag.com/resources/professional-regulation/bc-lawyers-vote-to-block-licensed-paralegals-as-ag-pushes-through-legislation/275687">lawyers voted overwhelmingly in favour of a motion</a> directing the Benchers not to authorize licensed paralegals to practise family law and to ask the government not to bring the licensed paralegal amendments into force. Afterwards, on the recommendation of the <a href="https://www.lawsociety.bc.ca/Website/media/Shared/docs/initiatives/2020LicensedParalegalTaskForceReport.pdf">September 2020 report of the Licensed Paralegal Task Force</a>, paralegal licensing was instead re-routed to a new <a href="https://www.lawsociety.bc.ca/our-initiatives/access-to-justice/licensed-paralegals/">“innovation sandbox” at the Law Society</a> for case-by-case determination.
In 2021, the Law Society, to its credit, commissioned regulatory expert Harry Cayton of Great Britain to conduct a review of its governance. Mr. Cayton was already a familiar figure in provincial professional regulation: In 2018, the BC government had retained him to conduct a review of the College of Dental Surgeons, and later expanded his mandate to include an overall assessment of the provincial Health Professions Act. <a href="https://www2.gov.bc.ca/assets/gov/health/practitioner-pro/professional-regulation/cayton-report-college-of-dental-surgeons-2018.pdf">His subsequent report</a> led to <a href="http://i">extensive changes in health profession regulation in BC</a>.
Mr. Cayton’s review of the Law Society’s governance <a href="https://www.lawsociety.bc.ca/Website/media/Shared/docs/about/GovernanceReview-2021.pdf">was completed in late 2021</a>. He assessed the society’s governance against the Professional Standards Authority’s Standards of Good Regulation, and found that the Law Society met four of the nine standards, partially met three, and did not meet two. “This is an acceptable result on a first assessment, as the standards are intentionally demanding,” he wrote.
But Mr. Cayton’s report was also critical of various structural and operational aspects of the Law Society. Among <a href="https://www.canadianlawyermag.com/resources/professional-regulation/law-society-of-bcs-governance-structure-not-fit-for-a-modern-regulatory-body-expert-review/362636">his findings in this respect</a> were:
<blockquote>The legal framework within which the Law Society operates is not fit for a modern regulatory body. … The power of the members to elect the Benchers and to overrule them and to stop changes to the Society’s rules means that the Society acts more like a professional association than a professional regulator. … There is a lack of engagement with regulatory matters and the Society is too involved in responding to the interests of the legal profession.</blockquote>
To be fair to the Law Society of BC, Mr. Cayton’s description of many of these defects would apply to all law societies. When members of a regulated profession directly elect the great majority of the regulator’s board of directors, the public has both a right and a reason to ask serious questions about whose interests those directors will reflect: those of the public, or those of the professionals who voted them into their positions. Law societies’ failure to categorically expand legal service authorization beyond lawyers, in the face of Canada’s decades-long accessibility crisis, is a leading example of regulatory decisions that create doubts among the public regarding the regulator’s true priorities.
That, at least, is my own view. I do not know what view the BC government takes on this issue. But Bill 21’s establishment of a new single legal regulator, one with a radically different governance model, would at least suggest that the government believes it cannot bring about reforms to improve access to legal services under the present regulatory regime.
<h2>The New Governance Structure</h2>
Bill 21 is lengthy — 317 provisions, nearly 45,000 words — and there are many sections that deserve in-depth exploration (e.g., the definition of the practice law in s. 35, the scopes of practice in ss. 45-48, and the licensing powers in ss. 51-52, not to mention the enablement of an entirely new paralegal licensing regime). But I will focus here only on section 8, “Board of Directors,” which sets out the governance structure of the new regulator, as follows:
<ul>
<li>The total number of directors is 17. (Currently,<a href="https://www.lawsociety.bc.ca/about-us/benchers/#:~:text=Elected%20Benchers:%2025%20lawyers%20who,and%20can%20be%20re-elected."> the Law Society’s board has 31 members: 25 elected lawyers and 6 appointed lay benchers</a>.)</li>
<li>5 directors are elected by and from among lawyers.</li>
<li>2 directors are elected by and from among notaries public (who are not also lawyers).</li>
<li>2 directors are elected by and from among licensed paralegals — unless there are fewer than 50 licensed paralegals in the province, in which case these 2 directors are appointed by a majority of other directors on the recommendation of the BC Paralegal Association.</li>
<li>3 directors, of whom at least 1 must belong to a First Nation, are appointed by the Lieutenant Governor in Council.</li>
<li>5 directors, of whom:
<ul>
<li>4 must be lawyers,</li>
<li>1 must be a notary public who is not also a lawyer, and</li>
<li>at least 1 must be an Indigenous person,</li>
</ul>
</li>
</ul>
are appointed by a majority of the other directors.
These provisions create a board with the following characteristics (I will assume, for simplicity’s sake, that the threshold level of 50 licensed paralegals will be reached):
<ul>
<li>At least 9 of the 17 directors are lawyers.</li>
<li>At least 9 of the 17 directors are legal services providers who are elected by their colleagues.</li>
<li>At most 8 of the 17 directors are appointed — 3 by government, 5 by the rest of the board.</li>
<li>At least 2 of the 17 directors are individuals who are Indigenous or belong to a First Nation.</li>
</ul>
This complex allocation of seats would achieve one important goal, from the legal profession’s point of view: It would ensure that lawyers will continue to constitute a majority of the members of the board (9/17). Elected legal services providers would also form a board majority (9/17), albeit not exclusively lawyers. In addition, directors appointed by the government (3) would be outnumbered by directors appointed by the rest of the board (5).
This arrangement would seem designed to assuage lawyers’ concerns that the government will threaten the independence of legal professionals through a stacked appointment process. Indeed, the proportion of government-appointed directors would actually decline under the proposed arrangement. On the new LPBC board, 17.6% of members (3 of 17) would be appointed directly by government; on the current Law Society board, 19.3% of benchers (6 of 31) are appointed directly by government.
The governance provisions of Bill 21 would suggest that the government’s primary interest is to scale back significantly (although not to a minority) the number of elected legal professionals on the regulator’s board. That would be consistent with the recommendations of Mr. Cayton’s report on law society governance, as well as with emerging standards of professional governance worldwide.
In my personal view, no member of a professional regulator’s board should be a licensee elected by other licensees (for reasons set out previously <a href="https://www.slaw.ca/2023/03/29/the-last-bencher-election-governance-reform-is-coming-to-legal-regulation-in-canada/">here at Slaw</a> and <a href="https://jordanfurlong.substack.com/p/the-looming-crisis-in-lawyer-self">at my Substack</a>). I also believe that a professional regulator’s board should not be dominated by members of the regulated profession, since that creates a serious risk of both the perception and the reality of regulatory capture.
For these reasons, I do not support Bill 21’s allocation of 14 of the 17 director positions (9 elected, 5 appointed) to legal services providers. Too few board seats are occupied by people who need legal services, rather than those who sell them. It is asking a great deal of members of the public to believe their legal regulator will act in their interests when there are so few directors who can personally explain what those interests are. This is a significant drawback.
I would also question the allocation of elected director positions among the three types of authorized legal services professionals. Four elected seats are reserved for notaries and paralegals, who together number about 1,300 in BC, while five elected seats are set aside for lawyers, of whom there are more than 12,000. As noted, I oppose the election of service providers to regulatory director positions. But if there must be elections, then they ought to have at least a semblance of proportionality, which is missing here.
So my support for Bill 21 is by no means unqualified. I would have made different decisions about its provisions in certain respects. But I will not understate the scale of the changes to legal regulation set out here, or the impact they would have on both members of the public and the legal professionals who serve them. As a strong step in the right direction, I approve of this board structure, and I think it will increase the new regulator’s effectiveness and help boost the public’s confidence in its actions.
But this proposed arrangement is proving unsatisfactory to the legal profession and its deeply held belief that elected lawyers must continue to constitute a super-majority of the board of directors. That brings us to the critically important issue of lawyer independence.
<h2>Lawyer Independence</h2>
In its response to Bill 21, the Law Society of BC states: “The legislation tabled today fails to protect the public’s interest in having access to independent legal professions governed by an independent regulator that are not constrained by unnecessary government direction and intrusion. As legal professionals represent clients whose interests often diverge from those of government, there must be trust that the legal regulator is independent of government influence.”
The Law Society is correct to defend a legal regulator’s ability to resist government influence over lawyers. The independence of members of the legal profession from state interference is not a trivial matter — a substantial percentage of all litigation is between the government and its citizens, thousands of lawyers are themselves employed by the government, and thousands of other lawyers defend people charged by the state with criminal offences.
As recently as ten years ago, we might have felt more confident that provincial governments would not lightly interfere with the administration of justice or the rule of law. The Alberta Sovereignty Within a United Canada Act, Quebec’s own “Bill 21” that discriminates on the basis of religion, and a Premier of Ontario who openly intends to appoint only “tough on crime” judges, should disabuse us of that notion today. The state will not always be benevolent. The government will not always act in the best interests of the public or in accordance with the Constitution.
But with Bill 21’s new governance configuration, the government appears even less able to influence the regulator’s actions than it is now. The three government appointees would constitute a smaller percentage of the new board than of the current one. The five non-government-appointed directors would be chosen by the other twelve directors, nine of whom are elected legal professionals. Lawyers would continue to constitute a majority of all directors on the board. So would elected legal professionals of all stripes.
I believe it would actually be easier to make a case that a threat to the regulator’s independence arises from the licensees it is regulating. As Harry Cayton noted in his 2021 report on Law Society governance: “Benchers serve for only two years before having to stand for re-election, so their attention is directed inevitably to their constituency of fellow lawyers rather than to the public.”
A regulator that wishes to maintain public confidence must be, and must appear to be, free of undue influence from the professionals it regulates. This is difficult to achieve when almost all directors are professionals themselves and more than half are elected by their peers. There is not even a provision in Bill 21, as there is with the Solicitors Regulation Authority of England & Wales, that the Chair of the new regulator must not be a lawyer. Regulatory independence is a two-way street.
Related to concerns about independence, some lawyers have also expressed a need to maintain “self-regulation” with the new regulatory body. But it is important to remember that lawyers are not fully autonomous entities. Every law society in Canada was created by an Act of government that granted to lawyers, through a delegation of legislative authority, the privilege of governing their affairs to a limited degree.
Nor is “self-regulation” a universal feature of lawyer governance worldwide. In Australia, England, and Wales, independent third-party agencies have been regulating the legal profession for between 15 and 20 years without any reported adverse effects on lawyers’ independence from the state.
Finally, it is important to note that lawyers are not bereft of protection outside the boundaries of their regulator. Every lawyer in Canada is an officer of the court, and every ethical duty owed by lawyers is secondary to the duty they owe to the court. Judges have not hesitated to protect the independence of the legal profession when they feel it is under legitimate threat.
If a government were to attempt a de jure or de facto takeover of a legal regulator, with state appointees filling a majority of director roles or otherwise improperly acting to circumscribe lawyers’ professional duties, such action would easily pass the threshold to warrant judicial intervention. There are other safeguards in the system than those provided for in the regulator’s governance model.
It is critically important that a legal regulator not enable or facilitate state interference with lawyers’ independence. But that is not the only, or even the primary, purpose of legal regulation. A legal regulator exists to govern and regulate the legal profession(s) in the public interest. Lawyers’ independence must therefore be protected in ways that support and are consistent with that paramount interest.
<h2>Conclusion</h2>
Bill 21 represents a transformative approach to legal regulation in British Columbia, aiming to modernize the governance of legal professionals in a way that aligns with both public expectations and the interests of the legal professions. I understand lawyers’ concerns that BC’s proposed new legal regulator would pose a serious risk to their independence from state interference, which I agree is extremely important to protect.
But I believe the governance model proposed in Bill 21 would maintain safeguards more than sufficient to protect that independence. A super-majority of elected lawyers on the regulator’s board is not the only way or the least onerous way to protect lawyers’ independence from the state. But a super-majority of elected lawyers does compromise the public’s perception, and sometimes the reality, of the regulator’s independence from its licensees.
I believe Bill 21 would help to enhance the accessibility of legal services across BC without impairing the independence of lawyers. I hope that it becomes law, and that it inspires similar regulatory reform efforts elsewhere in Canada.
—
Jordan Furlong is a strategic consultant, forecaster, and legal market analyst who studies the impact of the changing legal world on law firms and legal organizations. He has written reports on lawyer licensing and competence for two Canadian law societies, and he has addressed thousands of lawyers and legal professionals in Canada, the U.S., Europe, South America, and Australia over the last 15 years.
The post <a href="https://www.slaw.ca/2024/04/24/governance-reform-and-lawyer-independence-in-canadian-legal-regulation-examining-british-columbias-bill-21/">Governance Reform and Lawyer Independence in Canadian Legal Regulation: Examining British Columbia’s Bill 21</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Effective Use of Visual Aids in Mediation</title>
<link>https://www.slaw.ca/2024/04/23/effective-use-of-visual-aids-in-mediation/</link>
<comments>https://www.slaw.ca/2024/04/23/effective-use-of-visual-aids-in-mediation/#respond</comments>
<dc:creator><![CDATA[Guest Blogger]]></dc:creator>
<pubDate>Tue, 23 Apr 2024 11:00:19 +0000</pubDate>
<category><![CDATA[Dispute Resolution]]></category>
<category><![CDATA[Practice of Law]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106620</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
<img decoding="async" class="alignnone size-large wp-image-106748" src="https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-600x391.jpg" alt="" width="600" height="391" srcset="https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-600x391.jpg 600w, https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-300x196.jpg 300w, https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-200x130.jpg 200w, https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-768x501.jpg 768w, https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-1536x1002.jpg 1536w, https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial.jpg 1800w" sizes="(max-width: 600px) 100vw, 600px" />
The use of demonstrative or visual aids at mediation is more widely accepted by lawyers and mediators since the legal profession began its rapid embrace of technology. Arguably, the pandemic accelerated this implementation. The technology adoption started with the exchange of electronic mediation briefs, improved access to scanned documents, and the use of video software, like Zoom and Teams. Now, counsel more commonly use Power Point or slides and electronic documentation in their introductory remarks, and present demonstrative aids in their Mediation Briefs to bolster arguments by visual communication.
Through technology, counsel can now utilize a variety of demonstrative aids . . . <a href="https://www.slaw.ca/2024/04/23/effective-use-of-visual-aids-in-mediation/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/23/effective-use-of-visual-aids-in-mediation/">Effective Use of Visual Aids in Mediation</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> <img loading="lazy" decoding="async" class="alignnone size-large wp-image-106748" src="https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-600x391.jpg" alt="" width="600" height="391" srcset="https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-600x391.jpg 600w, https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-300x196.jpg 300w, https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-200x130.jpg 200w, https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-768x501.jpg 768w, https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial-1536x1002.jpg 1536w, https://www.slaw.ca/wp-content/uploads/2024/04/SLAW-Editorial.jpg 1800w" sizes="(max-width: 600px) 100vw, 600px" />
The use of demonstrative or visual aids at mediation is more widely accepted by lawyers and mediators since the legal profession began its rapid embrace of technology. Arguably, the pandemic accelerated this implementation. The technology adoption started with the exchange of electronic mediation briefs, improved access to scanned documents, and the use of video software, like Zoom and Teams. Now, counsel more commonly use Power Point or slides and electronic documentation in their introductory remarks, and present demonstrative aids in their Mediation Briefs to bolster arguments by visual communication.
Through technology, counsel can now utilize a variety of demonstrative aids in mediation. Demonstrative aids can include videos, photos, diagrams, maps, images, or other documentation, and are particularly useful in specific areas of law like personal injury (surveillance footage, accident reconstructions), criminal law (video evidence of a crime), intellectual property disputes (product drawings and dimensions, comparative drawings illustrating copyright infringement), construction law (construction drawings or architectural specifications), etc.. Regardless of how they are used, visual aids are impactful. Visualization increases recall and can evoke powerful feelings in the viewer, but moreover, they are powerful instruments to support a position.
Demonstrative aids distill evidence which helps each party, and the mediator, understand the strengths and weaknesses of the case. They can help explain complex processes, chronology of events, how the event occurred, and connections between parties and participants. They can support or weaken claims for damages or statements made during discovery, prove or disprove claims, or better quantify the loss. They can highlight application of the law or a difficult legal issue. In his book “Knowledge is Beautiful”, David McCandless explains the importance of visualized data:
“[u]nderstanding really is the key. When you understand something, you’re able to perceive its structure: its connections, its relationships, its significance relative to anything else. How it fits. You see-feel-intuit the fit. You know it. You know?” (Introduction).
Understanding may be the key to a successful outcome for the client. Effective use of visual aids can help the mediator and opposing counsel connect the dots and gain an understanding of the case, losses and damages.
Jamie Dunbar, a Mediator with Global Resolutions Inc., discusses the use of technology and demonstrative evidence at mediation suggesting that mediation briefs that, “do not do so may be blunted as to their effectiveness.”<a href="#_ftn1" name="_ftnref1">[1]</a> Dunbar suggests that in personal injury cases, demonstrative evidence is expected to illustrate the damages sustained, the extent of the injuries and the cause of the injury.
Another (anonymous) mediator interviewed suggests they enjoyed one counsel’s use of an introductory video at the beginning of the mediation. Often this counsel would include witness interviews in their video. The benefit of using this type of visual aid is that opposing counsel can see what the witnesses would say and whether those statements were impactful. This mediator did suggest that sometimes the videos told a great story about the plaintiffs and led to accelerated settlement. At other times, the videos could be dismissed as a little hokey and insincere.
A hokey demonstrative aid will not help any party to the mediation. Most humans have built-in baloney detectors and can identify when the visual aid is not providing much value. Another negative impact is that the introduction of the visual could simply end the mediation, leading one party to walk away in frustration or anger. Also, counsel may not have the technological skills or instinct for design to create a clearly articulated visualization.
Counsel should consider their strategy when introducing visual aids at mediation. Supports to the Mediation Brief, like existing photos or other documents provided in Affidavits of Documents and readily available to all counsel prior to mediation will likely not be an issue at the mediation. However, if counsel is creating a demonstrative aid, like a Power Point presentation, video or infographic, counsel should consider when to provide it to opposing counsel: prior to or during the mediation. It is all a matter of strategy.
Providing the visual aid prior to the mediation allows counsel full access to their opponent’s position, which could lead to a better settlement, quicker mediation or illustrate strengths in the position. It allows opposing counsel to absorb the information and potentially reach out to their in-house client for better instructions if the visual aid is impactful. However, this strategy also allows opposing counsel to intensely scrutinize the aid, poke holes in it, develop an opposing strategy or allow them to better criticize the information used and how the illustrative device was created. If developed well, it could be compelling and lead to a more successful mediation.
Providing the demonstrative aid at mediation, during the introduction or even afterwards, can lead to eye-rolling and an abrupt end to the mediation – then developing the demonstrative aid was all for nothing.
Regardless of which strategy counsel uses to introduce the demonstrative aid, a lack of clarity or a misleading visual aid can cause confusion, which could waste time and lead to a poorer outcome for the client. It is incredibly important to effectively test the demonstrative aid prior to the mediation to be sure that it will have the positive impact on the users that is intended. For the visual aid to be compelling, the design and function must be compelling, not just for counsel and their client.
Visual tools can bolster many cases at mediation but they must be used effectively and strategically. As McCandless puts it, when the visual tool is effective and creates true understanding, “You know it. You know?”
_________
<a href="#_ftnref1" name="_ftn1">[1]</a> Jamie Dunbar, “Mediation Brief” (Lexis: December 12, 2022).
The post <a href="https://www.slaw.ca/2024/04/23/effective-use-of-visual-aids-in-mediation/">Effective Use of Visual Aids in Mediation</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>BC Court of Appeal Recognizes the Myth of False Allegations of Intimate Partner Violence</title>
<link>https://www.slaw.ca/2024/04/22/bc-court-of-appeal-recognizes-the-myth-of-false-allegations-of-intimate-partner-violence/</link>
<comments>https://www.slaw.ca/2024/04/22/bc-court-of-appeal-recognizes-the-myth-of-false-allegations-of-intimate-partner-violence/#respond</comments>
<dc:creator><![CDATA[Deanne Sowter]]></dc:creator>
<pubDate>Mon, 22 Apr 2024 11:01:08 +0000</pubDate>
<category><![CDATA[Justice Issues]]></category>
<category><![CDATA[Legal Ethics]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106738</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
Case Commented On: KMN v SZM, <a href="https://canlii.ca/t/k34nf">2024 BCCA 70 (CanLII)</a>, overturning <a href="https://canlii.ca/t/jxhs2">2023 BCSC 940 (CanLII)</a>
We have both written previously on myths and stereotypes about intimate partner violence (IPV), one of the most common of which is that women make false or exaggerated claims of violence to gain an advantage in family law disputes (see <a href="https://ablawg.ca/2023/11/08/the-myth-of-false-allegations-of-intimate-partner-violence/">here</a> and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4593592">here</a>). In KMN v SZM, <a href="https://canlii.ca/t/k34nf">2024 BCCA 70 (CanLII)</a>, the British Columbia Court of Appeal (BCCA) recognized the existence of this myth and the need for courts to avoid making assumptions that perpetuate it, holding that it is . . . <a href="https://www.slaw.ca/2024/04/22/bc-court-of-appeal-recognizes-the-myth-of-false-allegations-of-intimate-partner-violence/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/22/bc-court-of-appeal-recognizes-the-myth-of-false-allegations-of-intimate-partner-violence/">BC Court of Appeal Recognizes the Myth of False Allegations of Intimate Partner Violence</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> Case Commented On: KMN v SZM, <a href="https://canlii.ca/t/k34nf">2024 BCCA 70 (CanLII)</a>, overturning <a href="https://canlii.ca/t/jxhs2">2023 BCSC 940 (CanLII)</a>
We have both written previously on myths and stereotypes about intimate partner violence (IPV), one of the most common of which is that women make false or exaggerated claims of violence to gain an advantage in family law disputes (see <a href="https://ablawg.ca/2023/11/08/the-myth-of-false-allegations-of-intimate-partner-violence/">here</a> and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4593592">here</a>). In KMN v SZM, <a href="https://canlii.ca/t/k34nf">2024 BCCA 70 (CanLII)</a>, the British Columbia Court of Appeal (BCCA) recognized the existence of this myth and the need for courts to avoid making assumptions that perpetuate it, holding that it is erroneous to do so unless there is an evidentiary basis for a finding of false allegations. This judgment came just a week before the Supreme Court of Canada released a decision on rape myths and stereotypes, in which it reiterated its recognition of the myth of “false allegations of sexual assault based on ulterior motives” (R v Kruk, <a href="https://canlii.ca/t/k39g6">2024 SCC 7 (CanLII)</a> at paras 35-37). The Supreme Court has not yet acknowledged the myth of false allegations of IPV in the family law context, however.
This post will describe the underlying parenting dispute between KMN (the mother) and SZM (the father) and the trial court and BCCA’s reasons for decision, followed by our commentary on the significance of the latter decision. In addition to its holding on the myth of false allegations, the BCCA underlined the importance of courts making findings of fact when family violence is raised in parenting disputes, and of considering the impact of children’s direct and indirect exposure to family violence.
<h2>Facts and Interim Orders</h2>
The parties had been married for about five years, with one child together. Both parties were in their thirties, and their child was two years old at the time of separation (2020), five years old at the time of trial. The father was a corrections officer, although he was not working at the time of trial. The mother received disability benefits following a brain injury caused by two car accidents (2009 and 2012). She was the child’s primary caregiver before the separation.
The mother alleged that the father was physically and verbally abusive, raising two incidents of IPV that occurred in March and September of 2020. The mother stated that in the first incident, the father “became angry, called her demeaning names, threw objects at her, and headbutted her while the child was at her feet” (BCCA at para 10). On the second occasion, which led to their separation, the father became angry while the mother was feeding the child (then two years old) and told her to leave with the child. While she was packing, there was “further aggression” by the father, including throwing objects at her (e.g. a water bottle), kicking a table across the room, pretending to punch a wall, and headbutting the mother twice while the child was nearby (at paras 13, 19). After the second incident, the mother and child left the parties’ home in Chilliwack, British Columbia to stay with her parents on Vancouver Island, in Nanaimo. After the second incident, the father sent text messages to a third party and admitted that “he had “snapped”, “grabbed [the mother’s] head”, and “ended up giving her a head butt”, which he said he knew was wrong (at para 13). The father was criminally charged in relation to both incidents in December 2020. Conditions of his release included a no contact order, and eventually further provisions for drop-offs and pick-ups to be facilitated through a third party were made (see 2023 BCSC at para 13).
A number of interim parenting orders were made between December 2020 and October 2021. The first two orders were by consent; the first granted the father one overnight stay with the child per week, and the second, two overnights per week. A third interim order was made in March 2021 after a contested application by the father to have the child returned to Chilliwack (SZM v KMN, <a href="https://canlii.ca/t/jdknk">2021 BCSC 365 (CanLII)</a>, (which was decided before Barendregt v Grebliunas, <a href="https://www.canlii.org/en/ca/scc/doc/2022/2022scc22/2022scc22.html?autocompleteStr=baren&autocompletePos=1&resultId=1bf2b476d5e34c469de5c813035c7a42&searchId=2024-04-03T17:14:43:766/3e6b8f3e80e64d31b726bbba65039c57">2022 SCC 22</a> (CanLII), more on the significance of this case below)). In response to the father’s application, the mother sought to have the child remain with her in Nanaimo, arguing that the father had a “history of family violence and unresolved anger issues” (at para 4). The primary issue for the Court was whether it was in the best interests of the child to remain in Nanaimo until long-term parenting arrangements were decided. The father argued that it was in the best interests of the child to have both parents actively involved in her life, and claimed the headbutting was accidental (at para 42). In reference to the September 2020 incident, Master Bruce Elwood found that there had been a “serious and troubling incident of family violence” on the father’s part, “both in terms of the emotional and physical safety of the mother, but also in [the child’s] best interests” (at para 43). Nevertheless, the court ordered the mother to return to the BC lower mainland to live closer to the father, finding that while “temporary relocation was justified to ensure the safety of mother and child”, the current situation would “result in a relationship between [the child] and her father that is largely defined by ferry rides and car travel, which is not in her best interests” (at para 66). The mother was awarded interim primary residential care of the child, with the father having parenting time every weekend (with exchanges of the child to be facilitated by a third party).
By April 2021, the criminal no contact order had been amended to provide an exception for pick-ups and drop-offs (see 2023 BCSC 940 at paras 13, 33), once again allowing contact. The mother began recording parenting exchanges and in May 2021, the father broke her cell phone during an exchange and was subject to further criminal charges as a result. This led to a decrease in his parenting time back to one overnight per week. A subsequent revision to the order was made in August 2021 to accommodate the father’s work schedule, and further restricted communication between the parents to email. A parenting report was ordered by consent in September 2021 under s 211 of the Family Law Act, <a href="https://canlii.ca/t/8q3k">SBC 2011, c 25</a> (BC FLA).
The father also withheld the child on two occasions. In October 2021, the father failed to return the child to the mother in accordance with the court-ordered regime and she secured a court order for the child’s return. On a separate occasion between March and April 2021, the father did not return the child for what amounted to 22 days (see BCCA at paras 24-28).
Then in October 2021, the child disclosed that the father had hit her on the head, and a peace bond was sworn against the father, which led to a November 2021 order for supervised parenting time for two hours twice per week. The peace bond was stayed by the Crown after the Ministry of Children and Family Development (MCFD) investigated the matter and concluded there were no child protection concerns (BCCA at paras 29-31).
One year later, in October 2022, an eight-day trial for resolution of the parenting issues took place. The 2020 criminal charges had not been resolved by that time (nor by the time of the appeal) and in fact the father had been charged with a number of other offences related to the mother, including uttering threats, criminal harassment, mischief, and failing to comply with his interim release order (10 charges in total). By the time of trial, there had also been seventeen family court orders, and after the trial there were three further applications heard in chambers.
<h2>Trial Decision</h2>
In SZM v KMN, <a href="https://canlii.ca/t/jxhs2">2023 BCSC 940 (CanLII)</a>, the father (claimant) had counsel and the mother (respondent) was self-represented. The primary issues were parenting time, decision making, and payment of expenses under the BC FLA. The father sought shared parenting, and joint decision-making with the final authority in the event of a disagreement. The mother agreed to shared parenting but sought for parenting time to be supervised for the father. Justice Kenneth Ball found in favour of unsupervised shared parenting time (on a gradual basis), with equal time reached in three months. This included unsupervised overnight access to start immediately.
In reaching his decision, Justice Ball found that neither of the parents were strong witnesses, but the father was more credible (at para 30). His findings in this regard are worth repeating, and we will return to them in our commentary below:
<blockquote>[30] …The respondent made a number of reports which suggested the claimant had abused or assault the child, which reports caused the arrest of the claimant, but none of these reports are reflected in any medical or hospital documents. On one occasion, the respondent, alleged seeing bruising on the child, but did not attend at a doctor or hospital to ask for assistance or care for the child, but instead called the police to report the incident. As a result no alleged injury was recorded in any reliable manner but rather one of a number of arrests of the claimant occurred. The respondent was not reliable when she told the Court that she did not appreciate that the claimant would be arrested when she made this sort of report to the police, and the ability to report alleged misdeeds by the claimant to the police became a weapon used frequently by the respondent against the claimant.</blockquote>
Justice Ball also noted that, on one occasion, the mother “did not allow the claimant a parenting visit” on the child’s birthday, despite a court order to the contrary, without explanation as to why (at para 32). He only noted that the mother “disregarded a court order with apparent impunity” (at para 32). In reference to the mother’s video recordings, he found that they were not useful evidence except to note that the child was “curiously” crying during some parenting exchanges, and that the mother “dramatized” a couple of events because of her forgetfulness (she left her keys in the stroller; she forgot a stuffed animal) (at paras 33-36).
Justice Ball also took issue with several other things the mother did, including: co-sleeping with the child to the exclusion of the father (at para 42), telling the court the father had been fired “allegedly based on a criminal allegation” (at para 58), recommending the father seek counselling when she herself had not (at para 60), and reporting bruises on the child to the police but not taking the child to a hospital (at paras 23, 61). He noted that there was no parenting time for the father between October 17 and December 15, 2021 (at para 47). And with respect to the no contact orders which were breached by the father, Justice Ball took issue with the mother “deliberately approaching” the father on three occasions, and he used this to suggest the mother did not fear the father (at para 57).
The s 211 parenting report by Dr. Elterman was also entered into evidence during the trial. According to the decision, the report revealed concerns about both parents but found the best interests of the child would be met by having a positive relationship with them both (at para 52).
The father’s brother also gave evidence. After living with the couple for one year, he had not seen any physical violence and was not told about any violence by the mother, with whom he claimed he had a positive relationship (at para 65).
Pursuant to section 37 of the BC FLA, the court must consider only the best interests of the child when making an order for parenting time and responsibilities, and in doing so, must consider the presence and effect of any family violence. Justice Ball found equal parenting time was in the best interests of the child and there was “no valid reason” the father should not have longer periods of parenting time (at para 72). He found there was “no danger to the child”, and only because the child had not been spending overnights with the father the return to shared parenting would need to be gradual (at para 72). He also found with respect to the MCFD report that “there had been coaching of the child to report events which did not happen” (at para 44).
Under the trial judge’s order, parenting time exchanges were to take place in an RCMP detachment exchange area parking lot, with the assistance of third parties (at para 76). Holidays were also to be shared equally. In addition, a parenting coordinator was to be retained, and the fees were to be shared equally unless the parenting coordinator ordered otherwise (at paras 73-75). The mother was unsuccessful in costs and ordered to pay for the parenting exchange supervisors and expert report in proportion to her income (at paras 81-82).
The financial implications of this decision on the mother are also important. In addition to being ordered to pay for the expenses above, her claims in relation to support were denied. The father had been paying child and spousal support. The mother sought to introduce evidence that the father’s financial disclosure was inaccurate and sought retroactive child support and varied ongoing child and spousal support. However, the court found that she failed to properly claim them, provide evidence, and follow the rule in Browne v Dunn, 6 R 67, <a href="https://canlii.ca/t/h6kw6">1893 CanLII 65</a> (UKHL), which requires a party to question the opposing party on substantial matters in dispute before calling evidence to challenge their position. As a result, the mother’s financial claims and evidence were not allowed (at paras 22 and 56). Similarly, she sought compensation for personal possessions but did not properly claim it and so she was also denied this remedy (at para 54). Justice Ball told the parties during trial to exchange financial disclosure annually for the purpose of calculating child support – leaving it up to them to coordinate, calculate, and enforce the support (at para 56).
Following the trial, the mother appealed and sought a stay of the trial judgement until the matter was heard by the Court of Appeal, citing concerns about the child’s welfare (see <a href="https://www.canlii.org/en/bc/bcsc/doc/2023/2023bcsc1697/2023bcsc1697.html">here</a>). The notice of appeal was filed in June 2023 and the matter was to be heard the following January. In the meantime, the mother did not retain and pay for a parenting coordinator, and she did not respond to an offer of financial support from the father to do so (at paras 5-13). Justice Ball declined to stay his judgement. He reiterated that “family violence is a not a significant aspect of this case”, rather the issue was the “parenting time that each parent will come to enjoy with the child” (at para 24).
<h2>BCCA Decision</h2>
The primary issue on appeal was whether the trial judge had failed to analyze the best interests of the child in accordance with the BC FLA, and in doing so made a reversible error in ordering equal and unsupervised parenting time for the father. The mother also took issue with the father’s characterization of her conduct as “weaponizing”, arguing that it reflected myths and stereotypical reasoning (at para 48), and she sought a new trial. The father disagreed, arguing that the trial judge had taken a “holistic approach” to the evidence, properly finding that there was no family violence, and the child was unharmed (at 79-81). At the appeal, the father was represented by the same counsel who represented him at trial, and the mother was represented by lawyers from the <a href="https://www.womenslegalcentre.ca/">Rise Women’s Legal Centre</a>. The BCCA’s unanimous decision was written by Justice Joyce DeWitt-Van Oosten (Justices Gail Dickson and Karen Horsman concurring).
The BCCA commenced its reasons by noting that assessing the best interests of a child is a heavy responsibility, one that is individualized and discretionary (at para 2). As a result, appellate courts give deference to trial judges. The standard of review on appeal for parenting orders is that of “material error, a serious misapprehension of the evidence, or an error in law” (at para 3). The Court concluded that there were material errors in the trial decision, including Justice Ball’s failure to properly consider and make findings of fact about family violence and its impact on the child. They allowed the mother’s appeal and reinstated supervised parenting time for the father pending a new trial (at para 5).
The BCCA noted several errors in the trial judge’s description of the parties’ positions and the facts. While the trial judge said that the mother wanted limited, supervised parenting “in perpetuity” (2023 BCSC 940 at para 59), the BCCA found that the record indicated otherwise. The mother had told the judge that “she was not asking to take the father’s ‘parenting time away indefinitely’”; instead, her goal was to protect the child from exposure to violence, and she was seeking a “significant improvement in the father’s conduct” (BCCA at para 42). The BCCA also corrected the trial judge’s comment that the mother had not sought medical attention for the child after observing the bruising – the record showed that she took the child to the hospital the next day (at para 44). As for the mother not allowing parenting time on the child’s birthday, contrary to a court order, the BCCA noted that the trial judge failed to mention that the father withheld the child from the mother twice, once for 22 days (at para 45). And while Justice Ball suggested that the mother had weaponized reporting of the father to the police and MCFD, he neglected to note that the father had also reported the mother to the MCFD (at para 47). Lastly, the BCCA indicated that Justice Ball misrepresented Dr. Elterman’s recommendation in the s 211 report by suggesting the report indicated “the needs of the child are best fulfilled by a positive relationship with both parents” (at para 49) and using that to order a graduated unsupervised parenting schedule; however, Dr. Elterman “did not recommend unsupervised parenting time for the father” (at para 53). Instead, the recommendation was for both parties to engage in counselling followed by a s 211 update, which had not been obtained by the time of trial (at paras 53-54).
The BCCA held that Justice Ball had failed to analyze the best interests of the child in accordance with the BC FLA and had failed to properly consider the evidence of family violence (at para 61) including the child’s indirect exposure to IPV. Family violence is a mandated consideration relevant to the best interests of the child under s 37(2) of the BC FLA. Section 38(f) requires courts to consider the child’s indirect exposure to family violence as relevant to their safety, security, and well-being, as well as the responsible parent’s ability to care for the child and meet their needs (see also BC FLA ss 37(2)(g) & (h)). The Court held that analysis of these sections in light of the evidence is “a necessary pre‑requisite to properly assessing the best interests of the child and fundamental to a fully-informed resolution of the contested parenting issues” (at para 83). The trial judge should have considered the evidence of family violence and its impact on the child who was directly and indirectly exposed to it.
However, Justice Ball had failed to properly consider the evidence. He only referred to the September 2020 incident of violence that led to criminal charges, only by way of the father’s evidence, without making any findings of fact, and omitted mention of the mother’s other testimony about family violence (at paras 87-89). The trial judge also failed to note evidence of a contemporaneous text message by the mother that corroborated that she had been assaulted by the father in March 2020 (at para 88), and he effectively blamed the mother for the post-separation incident where the father broke her cell phone, also without exploring the evidence or making findings of fact (at para 89). Justice Ball also cited the evidence that the father’s brother did not observe family violence, which the BCCA implicitly suggested was not very weighty (at para 97). In essence, the BCCA found that Justice Ball had failed to make findings or meaningfully analyze the mother’s evidence, including her testimony, regarding the father’s physically aggressive and demeaning conduct towards her during the marriage and after separation, and he ignored the presence of the child during that conduct (at para 97).
The BCCA also questioned the trial judge’s interpretation of the s 211 and MCFD reports. Justice Ball found the reports indicated the mother’s allegations concerning the father’s treatment of the child were “unlikely”, and that she had coached the child (at para 90, citing 2023 BCSC 940 at para 44). To the contrary, the BCCA noted that the s 211 report only found that the father was unlikely to have “intentionally” hit the child, while also remarking on the father’s tendency to move suddenly and excitedly (at para 92). The trial judge should also have assessed the evidence independently of this report, with consideration of the mother’s testimony and the corroborating evidence that she had taken the child to the hospital (at para 93). Furthermore, Justice Ball was incorrect in stating that the MCFD had found that the mother coached the child – this was merely raised as one possibility by a worker who had not actually met with the child (at para 94). He also failed to refer to a psychological assessment prepared for the criminal matters, which found that if the mother’s allegations were substantiated, the father was at “potentially moderate risk of re-offending” (at para 106).
The culmination of these errors meant that the best interests of the child were not properly assessed. The BCCA found that Justice Ball’s conclusion about the best interests of the child “was reached without advertent or demonstrated consideration of the mother’s evidence about violence or controlling behaviour directed by the father towards her, either pre- or post-separation, and the possible indirect impact of that behaviour on the child” (at para 99, emphasis in original). They noted that because family violence was central to the mother’s concerns about the father’s parenting ability and the impact of his conduct on the child, the trial judge should have closely attended to these issues (at para 106). Instead, he only considered the absence of evidence of direct violence by the father towards the child (at para 107). Overall, his approach to family violence amounted to “an error in principle that irreparably tainted his assessment of the best interests of the child and ultimately, his resolution of the case” (at para 108). These errors were sufficient to order a new trial.
However, the BCCA went on to consider the mother’s submissions on myths and stereotypes, which it defined as “assumptions or expectations that are false or faulty and are linked to disadvantaging beliefs, attitudes, and narratives” (at para 110, quoting <a href="https://commons.allard.ubc.ca/can-j-fam-l/vol35/iss1/3/">this article</a> by one of us). It found that the father’s examination for discovery and testimony at trial were “replete with [the] accusation” that the mother had fabricated allegations of family violence to gain an advantage in the litigation (at para 112). In addition, the father’s lawyer, in closing submissions, accused the mother of weaponizing court orders and reporting mechanisms, analogously exaggerating her disability to falsely obtain benefits, and placing the child in trauma counselling to “provide cover” for her false allegations (at para 113). Moreover, the trial judge seemed to reflect the myth when questioning the mother. The BCCA quoted from an exchange between the trial judge and mother in the trial transcript, where Justice Ball accused her of intending to have the father arrested. When the mother responded that she was following the Crown’s advice in telling the police about a possible breach of the no-contact order, Justice Ball implied she was being unreasonable and unfair (at paras 118-119).
The BCCA cited the work of researchers calling on courts to recognize the myth of false allegations and other IPV myths (at paras 120-121), and while noting that the matter was not fully argued at trial or on appeal, they stated that:
<blockquote>the law is clear that trial judges must assiduously guard against the potential for myths and stereotypes or unfounded or generalized assumptions about human behaviour—in whatever form—to affect their reasoning process. Doing so takes on heightened importance in the context of alleged family violence. (at para 122)</blockquote>
Relying on the Ontario Court of Appeal decision in Ahluwalia v Ahluwalia, <a href="https://canlii.ca/t/jz277">2023 ONCA 476 (CanLII),</a> which we blogged on <a href="https://ablawg.ca/2023/09/15/torts-and-family-violence-ahluwalia-v-ahluwalia/">here</a>, the BCCA noted the pervasiveness of family violence and its many forms, yet also noted that family violence claims are “notoriously difficult to prove” (at paras 122-123, quoting Barendregt v Grebliunas, <a href="https://canlii.ca/t/jpbbg">2022 SCC 22 (CanLII)</a> at para 144). The Court held that, taken together, these cases confirm that “an inability to prove family violence on a balance of probabilities does not mean that it must not have occurred or, importantly, that it was falsely alleged for the specific purpose of furthering a litigation objective” (at para 123).
The BCCA found that the father’s theory of the case was “in perfect alignment” with the myth of false allegations (at para 124). This theory had found its way into the trial judge’s reasons and “appears to have been accepted, at least in part, even though the judge made no apparent factual findings that would prove the theory on a balance of probabilities” (at para 114). To the extent that the ONCA in Ahluwalia suggested that claims of IPV may be made for strategic reasons (at para 120), the BCCA responded that:
<blockquote>Whether that has happened in a given case requires that the judge assess the credibility and reliability of the assertion as part of a thorough fact‑finding process. To approach allegations of family violence on the assumption (explicit or implied) that these allegations are routinely made for tactical reasons, is impermissible and will give rise to reversible error. (at para 126)</blockquote>
In addition to its findings on the difficulty of proving IPV, the Barendregt decision also noted the importance of considering children’s direct and indirect exposure to family violence as relevant to their best interests (at para 143). The BCCA properly pointed out Justice Ball’s failure to do so.
In ordering a new trial, the BCCA cautioned the next trial judge to “carefully assess the merits” of any continued adherence by the father to the theory of false allegations, in order to “ensure that the best interests of the child are determined without reference to, or reliance upon, misconceptions about post‑separation disclosure of intimate partner violence” (at para 127).
<h2>Commentary</h2>
The BCCA decision in KMN is significant for its recognition of the myth and stereotype that women will routinely make false allegations of abuse to achieve an advantage in family law. This is the first time a Canadian appellate court has so explicitly recognized this myth, which is an important landmark in the development of family laws’ responsiveness to family violence.
The BCCA’s reasoning on myths and stereotypes is also consistent with the Supreme Court of Canada’s approach to that topic. In Kruk, the Court reviewed two sexual assault decisions where the BCCA had adopted a new “rule against ungrounded common-sense assumptions”, under which any such assumptions made by trial judges would be seen as errors of law leading to correctness review on appeal (at para 1). One of the rationales for this new rule was that reliance on myths and stereotypes to discredit sexual assault complainants has been recognized as an error of law (at para 41). However, Justice Sheilah Martin, writing for the majority of the Supreme Court, held that this rationale created a false equivalency between assumptions that may disfavour the accused and the historical assumptions grounded in the intersecting inequalities experienced by sexual assault complainants. In rejecting the proposed new rule, Justice Martin also stated that “just because the evidence happens to align with a myth or stereotype does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial” (at para 65). The point is that where potentially discriminatory myths and stereotypes are at play, judicial decisions must be based on evidence and not assumptions. While her reasons were centred in sexual assault law, Justice Martin indicated that the same approach would apply to other areas of law where myths and stereotypes are at play (at para 54).
This reasoning aligns with that of the BCCA in KMN. Although the Court of Appeal’s proposed new rule against ungrounded common-sense assumptions was rejected in Kruk, in KMN its approach to reviewing the trial decision was based on rooting out errors based on discriminatory myths and stereotypes related to survivors of IPV. In family disputes, although establishing the truth of violence is not the issue that requires direct determination by the court (unlike sexual assault cases), the need for trial judges to thoroughly examine the evidence and make findings in relation to both the violence and its impact on a child is an important extension of the ideas from Kruk, even though KMN preceded it. The process of determining the best interests of the child is necessarily fact-specific and discretionary, requiring that determinations are not informed by discriminatory inferences and assumptions. The BCCA decision is also consistent with the approach called for by legal scholars and organizations well beyond the two of us – see e.g. <a href="http://ezproxy.lib.ucalgary.ca/login?url=https://heinonline.org/HOL/P?h=hein.journals/cajfl30&i=12">here</a> for an article by Donna Martinson and Margaret Jackson (cited by the BCCA at para 121), and <a href="https://www.scc-csc.ca/WebDocuments-DocumentsWeb/39533/FM040_Interveners_West-Coast-LEAF-Association_&_Rise-Women's-Legal-Centre.pdf">here</a> for the factum of West Coast LEAF and Rise Women’s Legal Centre in Barendregt.
It is also significant that the BCCA noted how the trial judge’s reliance on myths and stereotypes flowed from the father’s testimony and his lawyer’s submissions that the mother had lied about abuse to gain an advantage (at paras 112-113). When they are not grounded in evidence, these types of arguments invoke and lead to errors of law, and as such may be contrary to lawyers’ ethical obligations, as one of us has <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4593592">previously argued</a>. KMN indicates that the claim of fabrication for a strategic advantage cannot be based on, nor used by, lawyers to trigger stereotypical reasoning. Distracting the court by implying a vengeful motivation has the effect of suggesting moral blameworthiness and a need for punishment, which is improper and irrelevant to determining the best interests of a child. This type of argument also relies on gendered stereotypes analogous to those called out in Kruk.
Returning to the trial judgment, we wish to highlight a few particularly problematic examples of the trial judge’s perpetuation of myth and stereotypes because of the effect this reasoning can have on survivors’ access to justice. For instance, Justice Ball described one of the headbutting incidents as the parties’ foreheads coming into contact, downplaying the abuse (2023 BCSC 940 at para 7) and emphasizing that no physical injury followed. He also questioned the bruising the mother saw on the child, noting the lack of medical reports (at para 30), again, suggesting fabrication. Although the BCCA found this to be an incorrect review of the evidence, it is important to note the way this perpetuation of myths and stereotypes contributes to survivors’ reluctance and inabilities to access the justice system. Other courts have recognized the barriers that survivors may face in reporting violence to the authorities or even seeking medical attention, finding that negative assumptions about survivors’ credibility and claims should not be drawn on that basis (see e.g. Ahluwalia v Ahluwalia, <a href="https://canlii.ca/t/jmpnf">2022 ONSC 1303 (CanLII)</a> at paras 92-94). This is particularly the case for survivors experiencing intersecting and systemic inequalities. Yet Justice Ball assumed the mother’s reports to the police were false or otherwise being used as a “weapon” (2023 BCSC 940 at para 30), even when she had been following the advice of the Crown (BCCA at para 119). This inconsistency of expectations shows the Catch-22 faced by survivors in legal proceedings.
There is also a myth that shared parenting should be the norm in family law regardless of any IPV, which is reflected in the trial decision. Family law legislation does not impose a shared parenting presumption nor assume that shared parenting is the goal. Indeed, the BC FLA makes it explicit that no such assumption should be made (at s 40(4)). All decisions are to be made in the best interests of the child. While this was not addressed at any length by the BCCA, in applying the best interests of the child test, Justice Ball appeared to assume that shared parenting was the goal. This can be seen in the final order and the underlying reasoning – an implicit goal was the equal unsupervised involvement of both parents. However, the issue is not, as Justice Ball put it, what parenting time the parents will “enjoy” – the focus should be on the child’s best interests rather than the parent’s interests.
Another myth is that shared parenting is possible despite IPV if parenting is facilitated by a parenting coordinator. Regulation of parenting coordination varies across the country, but ordering parenting coordination is akin to ordering the parties into private mediation-arbitration for every contested parenting issue. Neither party is given final decision-making. As with mediation, parenting coordination can be problematic for some victims of IPV because the process is vulnerable to ongoing systems abuse (i.e. use of the legal system to perpetuate abuse – see e.g. <a href="https://canlii.ca/t/ng">here</a> at s 7.4). It can also be expensive, may impose costs consequences, and can limit other process options. It is unsurprising that the mother in this case was reluctant to engage a parenting coordinator. However, Justice Ball had the jurisdiction to make such an order pursuant to the BC FLA, ss 14-19, and the BCCA contemplated the continued involvement of a parenting coordinator in the interim until the new trial occurs (BCCA at paras 130-131).
Overall, the trial judge’s negative perceptions of the mother and her actions come across clearly in his written judgement, but even more so in the excerpts from the trial transcript that are quoted by the BCCA. Justice Ball’s lack of full attention to all the evidence is also only revealed when reading the BCCA decision. The case thus exemplifies the limitations faced by survivors who are self-represented in family law matters, and it affirms the importance of vigorous legal representation for survivors by counsel who understand IPV, and of rigorous appellate review by courts who understand IPV. In this case, the mother had the advantage of pro bono representation by Rise, an organization with deep expertise in IPV. Unfortunately, however, many survivors of family violence cannot financially or emotionally afford prolonged litigation to correct the types of errors made at trial in this case – (we note that the new trial in KMN v SZM is <a href="https://lawdiva.wordpress.com/2024/04/08/family-violence-takes-centre-stage-in-mothers-successful-appeal/">not expected</a> to be heard until late 2025 or 2026). Going forward, we hope that the BCCA’s reasons are taken seriously by family lawyers and trial judges in disputes across the country.
—
Jennifer Koshan’s research is supported by a UCalgary Research Excellence Chair and Deanne Sowter’s research is supported by a Vanier Canada Graduate Scholarship.
The post <a href="https://www.slaw.ca/2024/04/22/bc-court-of-appeal-recognizes-the-myth-of-false-allegations-of-intimate-partner-violence/">BC Court of Appeal Recognizes the Myth of False Allegations of Intimate Partner Violence</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Monday’s Mix</title>
<link>https://www.slaw.ca/2024/04/22/mondays-mix-552/</link>
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<pubDate>Mon, 22 Apr 2024 11:00:10 +0000</pubDate>
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<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from more than 80 recent <a href="http://www.clawbies.ca/">Clawbie</a> winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
This week the randomly selected blogs are 1. <a href="https://lawofwork.ca/">Doorey’s Workplace Law Blog</a> 2. <a href="https://www.lashcondolaw.com/blog/">Lash Condo Law</a> 3. <a href="https://www.mccarthy.ca/en">Canadian Appeals Monitor</a> 4. <a href="https://familyllb.com/">Family LLB</a> 5. <a href="https://avoidaclaim.com/">Avoid a Claim</a>
Doorey’s Workplace Law Blog 
<a href="https://lawofwork.ca/scc-exclusion-of-managers-from-labour-legislation-not-a-charter-violation/">SCC: Exclusion of Managers from Labour Legislation Not a Charter Violation</a>
The Supreme Court of Canada released a much anticipated but under the radar . . . <a href="https://www.slaw.ca/2024/04/22/mondays-mix-552/" class="read-more">[more] </a>
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Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from more than 80 recent <a href="http://www.clawbies.ca/">Clawbie</a> winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
This week the randomly selected blogs are 1. <a href="https://lawofwork.ca/">Doorey’s Workplace Law Blog</a> 2. <a href="https://www.lashcondolaw.com/blog/">Lash Condo Law</a> 3. <a href="https://www.mccarthy.ca/en">Canadian Appeals Monitor</a> 4. <a href="https://familyllb.com/">Family LLB</a> 5. <a href="https://avoidaclaim.com/">Avoid a Claim</a>
Doorey’s Workplace Law Blog 
<a href="https://lawofwork.ca/scc-exclusion-of-managers-from-labour-legislation-not-a-charter-violation/">SCC: Exclusion of Managers from Labour Legislation Not a Charter Violation</a>
The Supreme Court of Canada released a much anticipated but under the radar decision today dealing with Section 2(d) freedom of association under the Charter. One of the only commentaries I have seen about the lower court decisions was published right here on Law of Work blog by former OLRB Chair Rick MacDowell. The case is called Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec. … 

Lash Condo Law 
<a href="https://www.lashcondolaw.com/the-cost-of-saving-money-cai-luncheon/">The Cost of Saving Money – CAI Luncheon!</a>
Striking the balance between saving costs and keeping common expenses stable and ensuring a condo corporation is adequately maintained is a difficult task for boards and managers. For instance, sometimes delaying an important reserve fund project or failing to address a building deficiency may result in short-term savings but long-term financial consequences. This example, and many more, will be discussed at CAI Canada’s upcoming in-person Luncheon on May 22, 2024 from 11:00 a.m. to 2:00 p.m. …
Canadian Appeals Monitor 
<a href="https://www.mccarthy.ca/en/insights/books-guides/2024-canadian-federal-budget-commentary-tax-initiatives">2024 Canadian Federal Budget Commentary – Tax Initiatives</a>
The Honourable Chrystia Freeland, Canada’s Deputy Prime Minister and Minister of Finance, tabled the Liberal government’s federal budget on April 16, 2024. Fairness for Every Generation (Budget 2024) details the government’s tax measures on a host of items affecting Canadian businesses and their owners, including: …
Family LLB 
<a href="https://familyllb.com/2024/04/11/the-intersection-of-ai-and-ethics-unraveling-the-british-columbia-legal-scandal/">The Intersection of AI and Ethics: Unraveling the British Columbia Legal Scandal</a>
Once again, the intersection of artificial intelligence (AI) and the legal profession has made headlines, underscoring the importance of ethical and responsible use of technology in legal practice. This time, however, the story hits closer to home, as a British Columbia family law lawyer faces scrutiny for submitting fake case law to the courts after utilizing AI technology. Eight months ago, we reported on a story that rattled the legal community of news that two New York lawyers were facing possible sanctions for submitting documents to the court that were generated by AI and contained references to nonexistent prior court rulings. …
Avoid a Claim 
<a href="https://avoidaclaim.com/2024/your-trust-account-is-not-a-bank-account-and-you-are-not-a-banker/">Your trust account is not a bank account, and you are not a banker</a>
Your trust account is not a bank account, and you are not a banker. LAWPRO has seen instances where lawyers appear to be using their trust accounts to flow money in and out without doing any legal work. What Your Trust Account Is Not A backdoor bank account: Your trust account is not a workaround…
 
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*Randomness here is created by Random.org and its <a href="http://www.random.org/lists/">list randomizing function</a>.
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<title>Summaries Sunday: SOQUIJ</title>
<link>https://www.slaw.ca/2024/04/21/summaries-sunday-soquij-525/</link>
<comments>https://www.slaw.ca/2024/04/21/summaries-sunday-soquij-525/#respond</comments>
<dc:creator><![CDATA[SOQUIJ]]></dc:creator>
<pubDate>Sun, 21 Apr 2024 11:00:14 +0000</pubDate>
<category><![CDATA[Summaries Sunday]]></category>
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<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : La juge de première instance n’a pas erré en déterminant que la caractéristique dominante de la poupée en silicone que possédait l’accusé est une représentation des organes sexuels et de la région anale d’une enfant dans un but sexuel, ce qui constitue du matériel de pornographie juvénile . . . <a href="https://www.slaw.ca/2024/04/21/summaries-sunday-soquij-525/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/21/summaries-sunday-soquij-525/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : La juge de première instance n’a pas erré en déterminant que la caractéristique dominante de la poupée en silicone que possédait l’accusé est une représentation des organes sexuels et de la région anale d’une enfant dans un but sexuel, ce qui constitue du matériel de pornographie juvénile (art. 163.1 (1) a) (ii) C.Cr.); par ailleurs, la juge n’a commis aucune erreur en rejetant la défense de but légitime lié aux arts invoquée par l’accusé.
Intitulé : Yan c. R., <a href="http://citoyens.soquij.qc.ca/ID=4218B57FBD7FCA5360418B9D1A395FB0">2024 QCCA 399</a> 
Juridiction : Cour d’appel (C.A.), Québec 
Décision de : Juges Julie Dutil, Geneviève Cotnam et Lori Renée Weitzman 
Date : 4 avril 2024
Résumé
PÉNAL (DROIT) — infraction — infractions de nature sexuelle — publications obscènes — possession de matériel de pornographie juvénile — poupée sexuelle — notion de «caractéristique dominante» (art. 163.1 (1) a) (ii) C.Cr.) — représentation — organes sexuels et région anale d’une personne âgée de moins de 18 ans — aspect fonctionnel — but sexuel — analyse objective — contexte — accessoires — moyen de défense — défense de but légitime lié aux arts (art. 163.1 (6) a) C.Cr.) — interprétation large — photographie — valeur artistique — fardeau de la preuve — appréciation de la preuve — crédibilité de l’accusé — déclaration de culpabilité — appel — norme d’intervention — caractère raisonnable du verdict — absence d’erreur de droit — absence d’erreur manifeste et déterminante.
PÉNAL (DROIT) — preuve pénale — moyen de défense — possession de matériel de pornographie juvénile — poupée sexuelle — défense de but légitime lié aux arts (art. 163.1 (6) a) C.Cr.) — photographie — blogue mettant en valeur des vêtements historiques — fardeau de la preuve — exclusion de la preuve — droit à la protection contre les fouilles, les perquisitions ou les saisies abusives — mandat de perquisition — validité — suffisance de la dénonciation — motif raisonnable — suffisance de la preuve — absence de photographie de la poupée — taille de la poupée.
PÉNAL (DROIT) — garanties fondamentales du processus pénal — droit à la protection contre les fouilles, les perquisitions ou les saisies abusives — exclusion de la preuve — mandat de perquisition — validité — suffisance de la dénonciation — motif raisonnable — suffisance de la preuve — poupée sexuelle — absence de photographie de la poupée — taille de la poupée — possession de matériel de pornographie juvénile.
DROITS ET LIBERTÉS — droits judiciaires — protection contre les fouilles, les perquisitions ou les saisies abusives — exclusion de la preuve — mandat de perquisition — validité — suffisance de la dénonciation — motif raisonnable — suffisance de la preuve — poupée sexuelle — absence de photographie de la poupée — taille de la poupée — possession de matériel de pornographie juvénile.
DROITS ET LIBERTÉS — droits et libertés fondamentaux — pensée, opinion et expression — liberté d’expression — possession de matériel de pornographie juvénile — poupée sexuelle — moyen de défense — défense de but légitime lié aux arts (art. 163.1 (6) a) C.Cr.) — photographie — blogue mettant en valeur des vêtements historiques — fardeau de la preuve.
Appel d’une déclaration de culpabilité. Rejeté.
L’appelant se pourvoit à l’encontre du jugement l’ayant déclaré coupable de possession de matériel de pornographie juvénile pour avoir eu en sa possession une poupée en silicone ayant les traits d’une enfant et étant dotée de 3 orifices, soit à l’emplacement de la bouche, du vagin et de l’anus. La juge de première instance a rejeté sa requête en exclusion de la preuve. Ensuite, elle a conclu que la caractéristique dominante de la poupée était la représentation des organes sexuels et de la région anale d’une enfant dans un but sexuel (art. 163.1 (1) a) (ii) du Code criminel). Ainsi, la poupée répondait à la définition de «pornographie juvénile». La juge a également rejeté la défense de but légitime lié aux arts invoquée par l’appelant, qui soutenait qu’il comptait utiliser la poupée comme mannequin pour créer un blogue de photographies mettant en valeur des vêtements historiques.
Décision
Mme la juge Dutil: La juge n’a pas erré en rejetant la requête en exclusion de la preuve. La dénonciation, même si elle ne comprenait pas une copie de la photographie de la poupée et n’indiquait pas la taille de celle-ci, contenait suffisamment d’éléments de preuve crédibles et fiables permettant qu’un mandat de perquisition soit lancé.
La présente affaire est particulière et connaît peu de précédents jurisprudentiels, car la très grande majorité des accusations liées à de la pornographie juvénile concernent des représentations graphiques comme des photographies ou des vidéos, ou encore des écrits. En l’espèce, il s’agit d’un objet qui, à première vue, n’a pas comme caractéristique dominante la représentation, dans un but sexuel, d’organes sexuels ou de la région anale d’une enfant. À la différence d’une photographie ou d’un film, les organes sexuels ne sont pas mis en évidence. Toutefois, il faut prendre en considération l’aspect fonctionnel de ceux-ci ou de la région anale de cette poupée. Cette dernière est constituée pour reproduire le corps d’une enfant et permettre à son utilisateur de se procurer une satisfaction sexuelle. La juge n’a donc pas erré en déterminant que la caractéristique dominante de la poupée était la représentation des organes sexuels et de la région anale d’une enfant dans un but sexuel.
Quant à la défense de but légitime lié aux arts, prévue à l’article 163.1 (6) a) C.Cr., il ne fait aucun doute que la photographie peut répondre à la définition de «valeur artistique». Par ailleurs, même si, en l’espèce, l’oeuvre n’est pas la poupée, laquelle devait servir d’accessoire à sa réalisation, cette défense pouvait tout de même être invoquée. L’interprétation large qu’il faut donner à cette défense permet de considérer un projet d’art qui sera réalisé — mais qui ne l’est pas encore — à l’aide d’un objet constituant du matériel de pornographie juvénile. Lorsque la vraisemblance de ce moyen de défense est établie, ce qui est le cas dans le présent dossier, il revient à la poursuite de le réfuter hors de tout doute raisonnable.
Il est vrai que la juge a commis plusieurs erreurs dans l’évaluation de la crédibilité de l’appelant. Tout d’abord, elle ne pouvait spéculer sur les intentions de ce dernier quant à l’utilisation de la poupée à des fins sexuelles. Toutefois, cette erreur et l’absence de sperme sur la poupée n’ont pas d’effet sur la conclusion de la juge puisque l’intimé devait seulement établir la possession sans but légitime. Ensuite, la juge ne pouvait déterminer ce qui était ou non nécessaire à la création d’une oeuvre photographique en commentant le choix du mannequin. Cependant, cette erreur n’est pas déterminante, car la juge s’est appuyée sur plusieurs autres éléments de preuve pour conclure qu’elle ne croyait pas l’appelant. Elle n’a donc pas erré en rejetant ce moyen de défense.
Le texte intégral de la décision est disponible <a href="http://citoyens.soquij.qc.ca/ID=4218B57FBD7FCA5360418B9D1A395FB0">ici</a>
The post <a href="https://www.slaw.ca/2024/04/21/summaries-sunday-soquij-525/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Remembering Attorney General Roy McMurtry</title>
<link>https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/</link>
<comments>https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/#respond</comments>
<dc:creator><![CDATA[Adam Dodek]]></dc:creator>
<pubDate>Fri, 19 Apr 2024 11:00:51 +0000</pubDate>
<category><![CDATA[Legal Ethics]]></category>
<category><![CDATA[Practice of Law]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106766</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
The Hon. Roy McMurtry had a stellar career, serving as Chief Justice of Ontario, Canadian High Commissioner to the United Kingdom, Commissioner of the Canadian Football League, and Attorney General of Ontario. When he passed away in March, many of the tributes rightly focussed on the critical role he played in reaching “the kitchen accord” which led to the patriation of the Constitution with the enactment of the Charter of Rights and Freedoms, section 35 and the notwithstanding clause. Other tributes noted his participation in the landmark case of <a href="https://en.wikipedia.org/wiki/Halpern_v_Canada_(AG)#:~:text=The%20Ontario%20Court%20of%20Appeal,reasonable%20infringement%22%20under%20section%201.">Halpern v. Canada</a> (2003), which legalized same-sex marriage.
Because McMurtry . . . <a href="https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/">Remembering Attorney General Roy McMurtry</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> The Hon. Roy McMurtry had a stellar career, serving as Chief Justice of Ontario, Canadian High Commissioner to the United Kingdom, Commissioner of the Canadian Football League, and Attorney General of Ontario. When he passed away in March, many of the tributes rightly focussed on the critical role he played in reaching “the kitchen accord” which led to the patriation of the Constitution with the enactment of the Charter of Rights and Freedoms, section 35 and the notwithstanding clause. Other tributes noted his participation in the landmark case of <a href="https://en.wikipedia.org/wiki/Halpern_v_Canada_(AG)#:~:text=The%20Ontario%20Court%20of%20Appeal,reasonable%20infringement%22%20under%20section%201.">Halpern v. Canada</a> (2003), which legalized same-sex marriage.
Because McMurtry died the week of the funeral for former Prime Minister Brian Mulroney, his death did not get the breadth of attention that it should have. In particular, with all of McMurtry’s accomplishments, the enormity of his achievements as Ontario’s Attorney General between 1975 and 1985 was somewhat lost.
The sheer longevity of Mr. McMurtry’s tenure of Attorney General is remarkable. We are unlikely to see anything like it in the future. In the decade after McMurtry’s tenure, there were <a href="https://en.wikipedia.org/wiki/Attorney_General_of_Ontario">five</a> Attorneys General (Robert Welch, Alan Pope, Ian Scott, Howard Hampton and Marion Boyd). This coincided with the end of the Tories’ 40-year reign in Ontario, the election of the NDP under Bob Rae and Liberal rule under David Peterson. In the Harris-Eves years (1995-2003), there were <a href="https://en.wikipedia.org/wiki/Attorney_General_of_Ontario">four</a> Attorneys General (Charles Harnick, Jim Flaherty, David Young and Norm Sterling). Liberal Dalton McGuinty (2003-13) had <a href="https://en.wikipedia.org/wiki/Attorney_General_of_Ontario">three</a> Attorneys General (Michael J. Bryant, Chris Bentley and John Gerretsen) and his successor Kathleen Wynne (2013-18) also had <a href="https://en.wikipedia.org/wiki/Attorney_General_of_Ontario">three</a> Attorneys General (Gerretsen, Madelaine Meilleur and Yasir Naqvi). So far, Premier Doug Ford (2018-) has only had <a href="https://en.wikipedia.org/wiki/Attorney_General_of_Ontario">two</a> Attorneys General (Caroline Mulroney and Doug Downey).
During his ten-year term as Attorney General, Mr. McMurtry significantly overhauled the administration of justice in Ontario. When I worked as an advisor to Attorney General Michael Bryant, we marvelled at the sheer number of bills that McMurtry was able to pass each year. This was due to McMurtry’s stature within Premier Bill Davis’s cabinet and his ability to forge consensus and support from the NDP and Liberal opposition parties.
As a result, McMurtry introduced family law reforms, expanded legal aid and made Ontario’s justice system bilingual. On the latter issue, he faced – and overcame – significant opposition within his own party.
McMurtry put his stamp on the Ministry of the Attorney General to such an extent that senior officials were known as “Roy’s Boys”. This caused some problems for his successor and friend, <a href="https://en.wikipedia.org/wiki/Ian_Scott_(Ontario_politician)#:~:text=He%20was%20a%20cabinet%20minister,soul%22%20of%20the%20Peterson%20cabinet.">Ian Scott</a>. It is well-known that Scott reversed McMurtry’s position in the <a href="https://en.wikipedia.org/wiki/Justine_Blainey-Broker">Blainey case</a>, where Justine Blainey challenged her exclusion from a boy’s hockey team.
Attorney General Michael Bryant greatly respected both McMurtry and Scott who in turn were much revered amongst the staff at 720 Bay Street, the headquarters of Ontario’s Ministry of the Attorney General. Bryant decided to change the building’s name to “The McMurtry-Scott Building”. At the memorable event, both McMurtry and Scott were in attendance and McMurtry said that he was honoured that his name was to be put on the building along with that of his friend Ian Scott. Scott reciprocated the sentiment. The two were both cut from a different cloth.
Scott passed away in 2006 and now his friend Roy McMurtry has joined him. Two giants of the law.
We all live in Roy McMurtry’s legal world. From family law reform to legal aid to bilingualism in the courts to patriation of the Constitution and the enactment of the Charter to the legalization of same-sex marriage to the creation of Pro Bono Ontario, there are so many areas of the law and of life that McMurtry impacted.
We owe him a huge debt of gratitude.
The post <a href="https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/">Remembering Attorney General Roy McMurtry</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Friday Jobs Roundup</title>
<link>https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/</link>
<comments>https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Fri, 19 Apr 2024 10:59:04 +0000</pubDate>
<category><![CDATA[Friday Jobs Roundup]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106768</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, or <a href="https://jobs.slaw.ca/about/">learn how you can use Slaw Jobs</a> to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at Slaw.ca.
Current postings on Slaw Jobs:
<ul>
<li><a href="https://jobs.slaw.ca/job/director-of-policing-oversight-and-accountability/">Director of Policing, Oversight and Accountability</a> | Head Office in Westbank or any Indigenous Justice Centre, Canada 
(BC First Nations Justice Council)</li>
<li><a href="https://jobs.slaw.ca/job/family-lawyer-chilliwack-bc/">Family Lawyer</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
<li><a href="https://jobs.slaw.ca/job/accountant-chilliwack-bc/">Accountant</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group </li>
</ul>
 . . . <a href="https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/">Friday Jobs Roundup</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> <div class="content-wrap">
<div class="content-wrap">
Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, or <a href="https://jobs.slaw.ca/about/">learn how you can use Slaw Jobs</a> to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at Slaw.ca.
Current postings on Slaw Jobs:
<ul>
<li><a href="https://jobs.slaw.ca/job/director-of-policing-oversight-and-accountability/">Director of Policing, Oversight and Accountability</a> | Head Office in Westbank or any Indigenous Justice Centre, Canada 
(BC First Nations Justice Council)</li>
<li><a href="https://jobs.slaw.ca/job/family-lawyer-chilliwack-bc/">Family Lawyer</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
<li><a href="https://jobs.slaw.ca/job/accountant-chilliwack-bc/">Accountant</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
</ul>
</div>
</div>
The post <a href="https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/">Friday Jobs Roundup</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>The Lack of Protection for Non-Denominational Identity: The Webber Academy Case</title>
<link>https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/</link>
<comments>https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/#respond</comments>
<dc:creator><![CDATA[Patricia Hughes]]></dc:creator>
<pubDate>Thu, 18 Apr 2024 20:44:12 +0000</pubDate>
<category><![CDATA[Case Comment]]></category>
<category><![CDATA[Substantive Law: Judicial Decisions]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106772</guid>
<description><![CDATA[INTRODUCTION
Webber Academy (or “the school”), a private educational institution in Alberta, defined itself as non-denominational: it did not engage in any overt religious practice (with one possible and qualified exception). Yet, after two Alberta Human Rights Commission (AHRC) decisions, two Queen’s Bench (as it then was) (QB) judgements, two Court of Appeal (CA) rulings and two denial of leaves to appeal by the Supreme Court of Canada (SCC), it was held to have discriminated without justification against two Muslim students whom it prohibited from engaging, on school property, in overt prayers. How did this happen? And what does it . . . <a href="https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/">The Lack of Protection for Non-Denominational Identity: The Webber Academy Case</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[INTRODUCTION
Webber Academy (or “the school”), a private educational institution in Alberta, defined itself as non-denominational: it did not engage in any overt religious practice (with one possible and qualified exception). Yet, after two Alberta Human Rights Commission (AHRC) decisions, two Queen’s Bench (as it then was) (QB) judgements, two Court of Appeal (CA) rulings and two denial of leaves to appeal by the Supreme Court of Canada (SCC), it was held to have discriminated without justification against two Muslim students whom it prohibited from engaging, on school property, in overt prayers. How did this happen? And what does it mean for whether a private school is able to function in accordance with its own beliefs?
There were two complete rounds of litigation in this case. For convenience, they are set out here:
Round One: a complaint to the AHRC by the students’ parents; an appeal from the AHRC’s 2015 decision (<a href="https://canlii.ca/t/gh5p5">Amir and Nazar</a> v. Webber Academy Foundation [AHRC 1]) by Webber Academy to the QB; an appeal from the 2016 QB decision (Webber Academy Foundation v. <a href="https://canlii.ca/t/gswsg">Alberta (Human Rights Commission)</a> [QB 1]) by Webber Academy to the CA; application for leave to appeal from the 2018 CA decision (<a href="https://canlii.ca/t/hsbvx">Webber Academy Foundation</a> v. Alberta (Human Rights Commission) [CA 1]) to the SCC by the AHRC; denial of leave to appeal on February 28, 2019 by the SCC No. 38273 <a href="https://decisions.scc-csc.ca/scc-csc/scc-l-csc-a/en/item/17571/index.do">(Alberta Human Rights Commission (Director), et al.</a> v. Webber Academy Foundation).
Round Two: rehearing by the AHRC; an appeal from the AHRC’s 2020 decision (<a href="https://canlii.ca/t/j9400">Amir and Siddique</a> v. Webber Academy Foundation [AHRC 2]) by Webber Academy to the QB; an appeal by Webber Academy to the CA of the QB’s 2021 decision (<a href="https://canlii.ca/t/jh300">Webber Academy Foundation</a> v. Alberta (Human Rights Commission) [QB 2]); application for leave to appeal by Webber Academy of the CA’s 2023 decision (<a href="https://canlii.ca/t/jxppc">Webber Academy Foundation</a> v. Alberta (Human Rights Commission) [CA 2]); denial of leave to appeal on March 21, 2024 by the SCC No. 40907 (<a href="https://decisions.scc-csc.ca/scc-csc/scc-l-csc-a/en/item/20341/index.do">Webber Academy Foundation</a> v. Alberta Human Rights Commission (Director), et al.).
This case illustrates how the prohibition against religious discrimination under human rights legislation and the Canadian Charter of Rights and Freedoms (“the Charter”) applies differently to freedom from religion compared to protection for religious belief. And in that regard, Webber Academy illustrates that seeking to maintain a true non-denominational or secular identity will be almost impossible in the face of the guarantees given to religious freedom.
Although the second Court of Appeal decision is the only one that really matters, I am also referring to other decisions in this thread to a give a fuller sense of how the case led almost inevitably to the final conclusion against Webber Academy’s non-denominational identity freedom from religion claim.
BACKGROUND
As described in the first AHRC decision, “Webber Academy was founded in 1997 and has declared its mandate to be a high quality, non-denominational, co-educational, university preparatory, accredited private school.” It enrolled students from kindergarten to grade 12. (AHRC 1, para. 6; my emphasis)
Dr. Patrick Webber, the founder and president of Webber Academy, was the school’s spokesperson and, it appears, the real decision-maker, although there was also a board of directors. Dianne Lever, the director of admissions and Barbara Webber, vice-president of administration, were also involved “communicating” with the parents about praying on school grounds.
The school provided the kind of facilities one would expect in a school, including classrooms and other academic space, washrooms and places to eat, as well as an infirmary and rooms where students experiencing anxiety could do their homework or spend some quiet time. All students had access to these spaces. (AHRC 2, paras. 83, 85) Justice Poelman, in the first QB decision, described these facilities as “educational programs and other supportive services and facilities incidental to those programs” (QB 1, para. 44).
The school had a uniform dress code, which prohibited headwear, but its handbook explained that “head coverings which have a cultural or religious significance are permitted and may be worn” (QB 1, para. 77). It did not provide any religious facilities or undertake any religious activities, although it did put up religiously ambivalent Christmas tree in its lobby every year.
Although Webber Academy described itself as non-denominational in its materials, and although it permitted some deviations from its dress code and clean-shaven requirements, it did not include a statement about its policy on praying or generally on recognition of religious practices. The recognized practices might be characterized as “passive” religious (or cultural) expression. Nowhere, however, was there reference to overt praying. The lack of an express policy on overt praying meant that staff, teachers and most administrators did not actually know what position Webber Academy took on it and they therefore tended to follow their own inclinations when faced with the issue.
In November 2011, Farhat Amir and Dr. Shabnam Nazar, parents of two teenage boys, Sarmad Amir and Naman Siddique, respectively, applied to Webber Academy. As Sunni Muslims, the teenagers were obligated to pray five times a day. Two of the prayer times coincided with the school day. A prayer consists of two sequences of bowing, kneeling and standing, a process that takes between five and ten minutes (throughout, five minutes seems to have been the agreed upon time required, although the second CA decision refers to “5 to 8 minutes” [CA 2, para. 43]). Those praying did so quietly so as not to be heard by those around them.
The parents anticipated that the boys would be able to engage in prayers when at school; they said this had been addressed in a pre-enrollment meeting and subsequently during a tour of the school. Indeed, when school began, staff and teachers helped the students find places they could pray. Ms Lever was somewhat ambiguous when the issue was raised with her. Ms Webber thought it was enough to say the school was non-denominational to know prayer was not allowed (AHRC 1, para. 93).
However, when Dr. Webber discovered the students were praying, he prohibited it, offering the students time out from school to go off school grounds or to pray without the actions involved. He and the parents met to resolve the issue; when that failed, the parents made a complaint under section 4 of the AHRA to the AHRC of denial of services on the basis of religious belief.
Praying off the property meant adverse consequences for the students from weather, feelings of humiliation, among others (AHRC 1, para. 34). Given subsequent events, Dr. Webber advised that since the parents were ignoring the rules, their sons would not be accepted for the next year.
THE ISSUES ADDRESSED IN THE HUMAN RIGHTS CASE
The circumstances in the case raise several interrelated issues:
<blockquote>1. What does “non-denominational” mean and what is its significance? 
2. Did the parents/students’ claim fall under the AHRA? 
3. What had the parents requested: dedicated or undedicated space to pray? 
4. As a non-denominational school, was Webber Academy’s prohibition of overt praying on school property discriminatory and if it was, was it justified?</blockquote>
Together the answers to these questions raise the larger question of whether it is possible to be a non-denominational or secular institution that recognizes multicultural practices and inclusivity but denies overt religious expression?
 
<ul>1. What does “non-denominational” mean and what is its significance?</ul>
At the heart of this case is what “non-denominational” means and whether it is a meaningful concept. What kind of activities may effectively result in “losing” the status of being non-denominational?
Dr. Webber defined “non-denominational” as follows:
<blockquote>A “Non-denominational”, in my term, in terms of a non-denominational school is providing students with — with an academic atmosphere that does not include a religious practice. And non-denominational is — is a place where students from any religious background is [sic] welcome to be a part of our — of our academic studies, and it’s — it’s a place where you don’t have students conform to any one belief or prefer one belief over another. (AHRC 1, para. 96)</blockquote>
He was of the view that “’secular and non-denominational essentially mean the same thing: non-denominational means not being affiliated with any particular religion and secular means having no connection with any religion’” (CA 2, para. 13, citing AHRC 2, para 116). Dr. Webber had testified that the goal was to have a school that was “religious neutral” where there was no overt prayer and no religious activities on school property (AHRC 1, para. 87).
In the appeal from the tribunal’s first decision, Poelman J. also indicated Dr. Webber’s understanding of “non-denominational”:
<blockquote>It is a non-denominational school, fostering an atmosphere where those of many faiths and cultures would feel equally at home. This meant that Webber Academy “is not a place where religious activities are to be carried out by members of any religious group on campus.” (QB, para. 6; quoting Dr. Webber)</blockquote>
However, all the adjudicators essentially agreed with the first tribunal’s preferred definition:
<blockquote>The dictionary definition of non-denominational introduced by the director [of the AHRC] is: “not restricted to or associated with a religious denomination.” Principal Schneider of Rundle College captured non-denominational as follows: “(O)ur view of that is that we are not promoting or specifically affiliated with any denomination, and in that sense, we are non-denominational.”</blockquote>
(Rundle College is also a private, non-denominational preparatory school. The students went there after they were not allowed to register at Webber Academy in their second year.)
Dr. Webber believed that if the school were required to permit the prayers on school property, it would be tantamount to asserting that religious observance belongs in a school setting. The first tribunal rejected this view, stating instead,
<blockquote>the Students [sic] requests were not aimed at establishing that their religion, or any religion, “belonged” in a school setting. Rather, in order to fulfill their religion, they were required to pray at designated times. The Students’ physical location was incidental to their religious beliefs. The Students’ requests of Webber Academy were purely a function of being at school during their mandatory prayer times. (AHRC 1, para. 99)</blockquote>
As for state neutrality with respect to religion, which the human rights legislation was meant to reflect, the second tribunal stated,
<blockquote>[T]he AHRA . . . by prohibiting discrimination on the basis of religion and by requiring the accommodation of religious differences, does not in any way promote or discourage one belief or non-belief at the expense of any other. The state does not seek to require Webber Academy to allow religious activities on its campus regardless of the circumstances. (AHRC 2, para. 208; my emphasis)</blockquote>
At the second tribunal, Webber Academy raised its own religious freedom, that is, its right of freedom from religion (AHRC 2, para. 156). The tribunal found that “this is a belief and practice that has a nexus with conscience and religion” (AHRC 2, para. 204).
The school maintained that the AHRA requirement that it allow the prayers contravened its right to freedom from religion under section 2(a) of the Charter. For the first time before the first CA panel, it claimed that it had a right under the Charter to “religious and secular neutrality” and the right of the educational community to a “secular, non-denominational education” (CA 1, para. 34). Webber Academy submitted that “[a]s a private school, Webber Academy has a Charter protected right to offer secular, non-denominational education consistent with the convictions of the parents who choose to send their children to Webber Academy.” (CA 1, para. 38)
The school also argued that to the extent it permits religious prayer and other religious acts in secular schools, the AHRA is inconsistent with the Charter. (A summary of Webber Academy’s Charter arguments in its Notice of Constitutional Question can be found at CA 1, paragraphs 33-39.)
The second CA concluded that it was possible to have religious practices on the school site without interfering with its non-denominational identity because doing so did not mean the school adopted those practices, the curriculum was not affected and the practices did not impinge on parents’ or teachers’ views.
 
<ul>2. Did the parents/students’ claim fall under the AHRA?</ul>
 
Under section 4 of the AHRA,
<blockquote>No person shall
<ul>(a) deny to any person or class of persons any goods, services, accommodation or facilities that are customarily available to the public, or</ul>
<ul>
<li style="list-style-type: none;">
<ul>(b) discriminate against any person or class of persons with respect to any goods, services, accommodation or facilities that are customarily available to the public,</ul>
</li>
</ul>
<ul>because of the . . . religious beliefs . . . of that person or class of persons or of any other person or class of persons.</ul>
</blockquote>
The parents’ human rights complaint was reliant on determining the fundamental question of what “services” were “customarily available” at Webber Academy and to whom (that is, who are “the public”?). The latter was easily determined: the public was the student body as the parties agreed (CA 2, para. 33). However, there was a dispute about the nature of the services Webber Academy had been making available to the students.
Webber Academy argued the service at issue is “prayer space”, which was not customarily available to the student body. All adjudicators rejected this position.
The second tribunal said, “if all students, without distinction, have a right to access quiet, private spaces to attend to bodily functions or to remedy feelings of anxiety, those spaces are customarily available to the public, the student body.” Furthermore,
<blockquote>[s]ome of these facilities are specifically related to educational programming and others are related to the needs of the students who are required to be on campus for the entire school day. These services include places to eat, washrooms, an infirmary and places for those who have anxiety and need a quiet place to do homework. (AHRC 2, para. 83)</blockquote>
Justice Poelman described “the services and facilities Webber Academy customarily made available to its public [as] non-denominational educational programs and other supportive services and facilities incidental to those programs”. (ABQB 1, para. 44) The second CA decision defined the services to include “quiet, private spaces”, which is what the students were seeking to perform their prayers (CA 2, para. 42).
Of course, Webber Academy cannot discriminate in providing or allowing access to these facilities on a basis prohibited under the AHRA.
Justice Poelman stated that “to define the services and facilities addressed in section 4 of the Act as proposed by Webber Academy – that is, to define them as identical to the specific “service” requested by the students –would make the provision almost meaningless” (QB 1, para. 46).
Webber Academy had maintained that the students had access to education, which was the service it provided. However, Poelman J. found that they did not have meaningful access to education if they could not pray in a manner consistent with their beliefs and they were being discriminated against in comparison to students who were able to express their religious beliefs in other ways (QB 1, para. 64).
It is not clear that Poelman J.’s analysis is correct, however. One can define “the services customarily available” as the classrooms, washrooms, quiet rooms and so on, all of which have a particular purpose; in other words, the purpose is part of the service. The question then is whether overt praying is one of those purposes. Justice Poelman gives as an illustration a school denying wheelchair access to facilities because it had never done so. But use of a wheelchair is a means by which the services are made available. Praying is not a means by which the services at Webber Academy are made available.
The school argued that religious observance was not the same as washroom or study use and there had never been space for religious observance. Justice Neufeld on appeal from the second tribunal to the QB held, “At best, the Academy has an arguable position to advance for the proposition that prayer space is distinguishable from space for attendance to other personal needs, but an argument is not enough to satisfy the appellate standard of review.“ (QB 2, para. 39) This was the only recognition that Webber Academy’s position had any merit at all among all the adjudicators.
On appeal from Neufeld J.’s decision, Webber Academy continued to argue that the tribunal should have determined the service at issue (praying on campus) and then whether it was customarily available to the public (the student body). If it had done so, the school argued, it would have concluded it did not have jurisdiction to hear the complaint.
The second Court of Appeal panel held otherwise, doing a bit of fancy footwork in considering this question. It did not accept Webber Academy’s position that it had never provided space for prayer on school property because “it is uncontroverted that the Students were able to perform prayers for more than two weeks when they first started attending the school” with the help of teachers and staff (CA 2, para. 44). While this is true, the teachers were not aware prayer was not allowed without Dr. Webber’s approval, a point the CA did not address.
In any event, only after two weeks were the students actually prohibited from using space for prayer (CA 2, para. 44). In addition, Dr. Webber would allow them to use space for prayer “provided they prayed silently without moving their limbs so no observer could know that prayer was occurring” (CA 2, para. 45). Thus the second CA concluded,
<blockquote>. . . it seems that Dr. Webber’s objection was based specifically on the manner of the Students’ prayers because the prayers involved the overt, physical movements of standing, kneeling and bowing. The adverse impact was not because of prayer or religion per se, but because of the type of prayer required by the Students’ religion. (CA 2, para. 45)</blockquote>
Importantly, from identifying generic educational facilities and particular facilities that Webber Academy provided prior to the request to provide space for prayer, the adjudicators elided (non-dedicated) prayer space with these other facilities: space for religious observance was akin to the other places identified as “services available to the public”.
Therefore, the tribunal had jurisdiction to hear the complaint.
 
<ul>3. What had the parents requested: dedicated or undedicated space to pray?</ul>
 
The school maintained that the parents had requested prayer space (this was taken to mean “dedicated” space), while the parents stated that they had requested only that their children be allowed to pray in a space “sufficiently large to allow the children to bow, kneel and stand safely” (AHRC 1, para. 15). The AHRC accepted the parents’ characterization of what they had requested. Justice Poelman found that there was evidence to support the tribunal’s finding that they were not seeking “dedicated prayer space” and that, indeed, “the students were willing to perform their prayers in any private place, such as an unused room or behind a tree outside” (QB 1, para. 38).
In its first decision, the CA noted both the tribunal and Poelman J. had proceeded on the basis that the complainants had not been requesting “prayer space”. However, the students did require space to perform the various actions constituting the prayer, even if this was not “dedicated” space. The Court stated:
<blockquote>Neither the Tribunal nor the chambers judge explained the significance to their analysis if the request was for prayer space. Clearly, the students required space to pray and Webber Academy was being asked to provide space, whether dedicated or not. The Tribunal’s conclusion appears at best confusing, and without further elaboration of its reasons, the conclusion is not reasonable. (CA 1, para. 56)</blockquote>
Because of this and another error relating to contradictory testimony about whether Ms Lever told the parents space was available, both of which Poelman J. had been prepared to overlook because they did not change the final outcome, the CA sent the case back to the AHRC for a rehearing (CA 1, para. 63).
The parties submitted an agreed statement of facts at the rehearing (AHRC 2, para. 15). However, the issue of whether the space requested was dedicated space or any space and what the school’s administrators told the students’ mothers and the students on visits to the school remained in dispute. One administrator testified that the term used was “reflection”, not “prayer”, and others indicated that while the matter of prayer was raised, the parents were told that the school was non-denominational and prayer was not permitted. The parents stated they used “prayer” but not “dedicated space” and that the director of admissions did not say that was not acceptable.
Tribunal 2 found, “It is clear that the request was for a place to pray. The request was for a nominal space, a quiet place where the students would be able to stand, kneel, bow and engage in silent recitation.” (AHRC 2, para. 81)
Whatever the initial dispute, however, subsequently, Dr. Nazar, after confirming with religious authorities that there was not an acceptable alternative to the prayers being undertaken as described, wrote to Dr. Webber making a formal request for accommodation in the form of “a nominal space being provided to perform prayers and that the students be excused from class for five minutes per prayer when these prayers coincide with their scheduled classes.” (AHRC 1, para. 36) By “nominal space”, Dr. Nazar did not refer to dedicated prayer space, but anywhere it was possible to perform the prayers, such as the corner of a classroom or office (AHRC, para. 36).
Nevertheless, regardless of whether the parents asked for “prayer space” or “dedicated prayer space”, Dr. Webber was opposed, maintaining that Webber Academy never provided prayer space. The second CA held this was not the case because the students had prayed for two weeks before Dr. Webber discovered they were doing so and prohibited it. It also concluded that the prohibition was discriminatory, not because of religion in itself “but because of the type of prayer required by the Students’ religion”, since Dr. Webber would have allowed praying on campus “provided [the students] silently without moving their limbs so no observer could know that prayer was occurring” (CA 2, para. 45). These actions were the feature distinguishing the students’ overt praying from the passive religious (or cultural) symbolism the school permitted, a distinction the adjudicators glossed over for the most part.
In short, Dr. Webber would have (it appears) allowed prayer if, like the religious symbols already permitted, it was “covert”. Even though the Sunni prayers were performed as innocuously as possible, they were not covert.
 
<ul>4. As a non-denominational school, is Webber Academy’s prohibition of overt praying on school property discriminatory and if so, is it justified?</ul>
 
Once praying, including overt praying, was held to be a “customarily available service” for the student body, it followed that Webber Academy discriminated against the students by not allowing them to perform their prayers on school property. The onus thus fell on the school to establish it was justified in its refusal of the service, that is, the prayer, under section 11 of the AHRA, which provides,
<blockquote>A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.</blockquote>
None of the adjudicators considered allowing the prayers to be an undue hardship for Webber Academy whose only reason for not permitting them related to its identity as non-denominational. There were no cost ramifications or inconveniences for anyone else, the students did not seek curriculum changes and nothing really changed in how Webber Academy operated. Indeed, people did not notice that the students were praying the first two weeks. The second tribunal concluded there was no evidence about how overt praying compromised this identity (AHRC 2, para. 142).
In its second decision, the CA noted,
<blockquote>We would observe that Webber Academy does not appeal the Tribunal’s finding that it prima facially discriminated against the Students by not permitting them to pray on campus. Nor does Webber Academy appeal the Tribunal’s conclusion that it had a duty to accommodate the Students because Webber Academy did not establish that it would suffer undue hardship by accommodating them. (CA 2, para. 26)</blockquote>
Webber Academy had argued that the proper test for its Charter claim was whether its (non-)religious belief was interfered with in a manner that was more than trivial or insubstantial (a Charter test), while the tribunal had applied an undue hardship test (a human rights test). The Court of Appeal said the evidence supported the same conclusion under both tests (CA 2, para. 61).
The second tribunal had concluded that Webber Academy had “a sincere belief respecting religion”. But because the school did not prohibit all forms of religious expression and its witnesses all testified that the praying did not interfere with their religious beliefs or those of their children, the CA at the second hearing concluded that
<blockquote>when the Tribunal conducted the Charter analysis and concluded that Webber Academy did not suffer any undue hardship, it is apparent that the Tribunal was, in effect, finding that Webber Academy’s freedom of religion was not interfered with in a manner that was more than trivial or insubstantial by accommodating the Students’ need to pray on campus. (ABCA 2, para. 61)</blockquote>
The CA observed, “Webber Academy’s non-denominational policy is not affected by providing the Students with access to quiet, private space to pray. In our view, it cannot reasonably be suggested that Webber Academy is endorsing any religion or religious practice, and should not be seen to be doing so, simply by providing such accommodation.” (CA 2, para. 66)
IS IT POSSIBLE TO BE A NON-DENOMINATIONAL OR SECULAR INSTITUTION THAT RECOGNIZES MULTICULTURAL PRACTICES AND INCLUSIVITY BUT DENIES OVERT RELIGIOUS EXPRESSION?
There is no doubt that to some extent the reasons Webber Academy gave to the parents for refusing to let the students pray reflected an outmoded way of viewing things. For example, according to Dr. Nazar, Dr. Webber (presumably) stated during a meeting with the parents and others, “While quiet meditation or other non-descript prayer may be permitted, prayer which requires conspicuous ‘bowing’ and/or ‘kneeling’ is too obvious and may make other students uncomfortable (AHRC 1, para. 36; my emphasis). He apparently also “suggested the Students could pray quietly in their head or quickly make a cross where no one is aware of the prayer and this would be acceptable” (AHRC 1, para. 33).
One of the disadvantages for the school was the lack of a written policy addressing prayer in the school. Rather, the situation was dealt with on an ad hoc basis and by Dr. Webber writing to the parents, explaining the school had never said it had prayer space and that it had received a legal opinion that it did not have to accommodate the students, since it did not accommodate other religious practices: as “a non-denominational school . . . this is an integral part of its character and it is legally entitled to remain so” (AHRC 1, para. 37).
Justice Neufeld pointed out that there are many schools that establish policies or mandates that exclude others: this is the nature of a pluralist society. However, it is important that the mandate be clearly established:
<blockquote>[T]his is simply good governance. The long –and no doubt expensive – history of litigation in this case is demonstrative of that. Clear and early communication of school policy is also fundamentally fair to prospective and existing students and their families. It is a worthwhile goal in itself. (QB 2, para. 69)</blockquote>
Webber Academy itself had also opened the door by allowing the wearing of turbans and other religious-related headwear. As Poelman J. observed,
<blockquote>Webber Academy, to its credit, adopted a public policy of welcoming young people of many faiths and cultures, and to exemplify its policy, published photographs of students with turbans and facial hair even though these practices contravened usual school policies.
For some reason, it drew the line at Sunni prayer rituals, conducted in private, in a place that was convenient to the school and the students from time to time. Its policy thus discriminated against the belief of the complainant Sunni Muslim students as compared, for example, to students who overtly averred their religious affiliation by forms of dress and grooming. There was no demonstrated hardship, let alone undue hardship, motivating this policy. (QB 1, paras. 122-123)</blockquote>
(Although it may not have mattered, the praying was not necessarily private, but could occur in a corner of the library, for example.)
Webber Academy had made a deliberate decision to allow exemptions from the regular uniform policy (or they were part of the policy set out in the handbook) and therefore it is noteworthy that their information said nothing about praying overtly. The CA in its second decision rejected Webber Academy’s effort to distinguish (for example) the wearing of religious headwear and overt praying:
<blockquote>We accept that Webber Academy wishes to establish a campus welcoming of all faiths, believing that religious practice and instruction should be addressed by parents and caregivers of students, outside of the school environment. However, the evidence establishes that Webber Academy’s “culture” currently accommodates religious differences amongst the student body by allowing exemptions to the dress code for Students who wear religious head coverings and facial hair, and allowing prayer provided that the prayer is silent and not overt. With regards to the dress code, Dr. Webber considered these accommodations as being reasonable because the head wear and facial hair is a demonstration of who that student is as a person. We consider such accommodations to be consistent with the goal of Webber Academy to be welcoming of all faiths and cultures.
Religion, for some, is also a demonstration of who they are as a person. Here, one of the Students testified that telling him to stop praying was equivalent to telling him to stop breathing. And both Students provided testimony about how fundamentally important their prayers were to them as people. We consider the provision of a quiet, private space for the Students to pray to be an analogous accommodation [to the passive religious symbols]. (CA 2, paras. 77-78)</blockquote>
Even the Christmas tree, admittedly associated with a Christian season even when placed in the Eaton Centre, but which is in itself a secular object, comes back to bite the school in the second CA decision. Dr. Webber had described the tree as a “Canadian cultural symbol”, not a religious symbol. There had been rare complaints about the tree, but the description of the tree as not religious was accepted. The CA did not accept it, however, because “[s]imply because the [Webber Academy] considers a Christmas tree to have no religious significance does not mean that others hold the same view . . . .” (CA 2, para. 79).
Generally, consideration of religious belief does not entail seeking the opinion of others: “claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion” or, presumably as valid by members of other religions (<a href="https://canlii.ca/t/1hddh">Amselem</a>, para. 43).
Would it have made any difference had the school not permitted turbans or hijabs, for example? After all, Poelman J. referred to a school that had been found to have discriminated under human rights legislation because it justified refusing a Sikh student the right to wear a turban on the basis that it was not consistent with its uniform policy; it did not matter that there were other schools the student could attend (QB 1, para. 121). Yet surely a uniform policy does not rise to the level of a claim to a secular – non-religious – identity.
For the most part, the adjudicators simply did not see non-denominational identity — non-religious belief — as worthy of the same respect as religious belief or affiliation or religious practice. Justice Neufeld was a bit of an outlier in this regard. He said, although the views of the witnesses for Webber Academy did not establish that their religion would be interfered with by allowing the prayers, “[i]t does not follow, however, that the educational philosophy underlying a private school, including its position on the practice of religion within the school, is not relevant or worthy of consideration when an assessment is made under s. 11 of the AHRA as to whether a discriminatory policy is reasonable and justified in the circumstances.” (QB 2, para. 66) Nevertheless, he reached the same conclusion as the other adjudicators.
Given the high reputation of Webber Academy, it is not entirely unreasonable that its concern that the school would attract other applicants who wanted to engage in their overt religious practices during the school day. The first tribunal did acknowledge that “if a very large percentage of a student body sought to fulfill religious beliefs in a very visible way, that may impact a school’s non-denominational identity,” but that is not the case here (AHRC 1, para. 103) The second CA had little time for this “floodgates” argument, referring to it as a concern that the school “will be inundated by a magnitude of similar requests now or in the future”, holding it is not relevant to accommodation for the two students now (CA 2, para. 82). (It is also possible that given the school’s response to the current request and Dr. Webber’s apparent lack of understanding of Sunni prayers, parents would be wary of applying to the school if their children would need to express overt religious beliefs.)
For the adjudicators, there was no difference between the provision of washrooms and the provision of space for anxious students to spend some quiet time and the provision (albeit unallocated) for overt praying. They also saw no difference between allowing students to wear a turban or hijab and putting up an ambivalent Christmas tree, on the one hand, and clearly religious overt praying, on the other. As the second tribunal suggested, “permitting grace before a meal” would also be something that would not interfere with a non-denominational environment (although it is not clear whether this would be undertaken by a student on their own or by the school, it is obviously just “natural” that grace would be acceptable) (AHRC 2, para. 207). lt also stated:
<blockquote>In this case, the legislation requires the respondent to accommodate the complainant’s request for a quiet, private place to pray in the same way it provides such places for persons with anxiety and in the same way that it allows exceptions to its dress code for religious and cultural reasons. (AHRC 2, para. 208)</blockquote>
These determinations were fatal to Webber Academy’s claim that being a non-denominational school meant there should be no overt praying on school property.
The first tribunal did “not accept that being a non-denominational school can reasonably be interpreted as meaning “no prayer or religious practice will be allowed.” (AHRC 1, para. 98) The second CA panel reinforced this position: “Webber Academy’s non-denominational policy is not affected by providing the Students with access to quiet, private space to pray” (CA 2, para. 66).
The answer to the question of whether it is possible to be a non-denominational or secular institution that recognizes multicultural practices and inclusivity but denies overt religious expression is probably it is not possible. As long as space for prayers are equated with the availability of non-religious services, it will follow that accommodation for overt prayers, albeit quiet, is required under human rights legislation. Similarly, once a school allows the wearing of passive religious symbols, which will in any event likely be required under human rights legislation, it will have forfeited any claim to limit its recognition of religion within its own practice of non-denominational identity.
CONCLUSION
Would it have been so terrible had Webber Academy simply allowed the students to pray in relatively unobtrusive places? If it had developed a policy that clearly laid out the circumstances of prayer and other overt religious practices? If it had compromised its own sense of non-religious belief, given what little was being asked of it?
Webber Academy was, of course, expected to compromise its own beliefs because, unless an institution is the government of Quebec, its secular non-religious beliefs are less protected in the broad sense. It or its students are not forced to perform overt prayers (indeed, compulsory prayers in public schools are no longer allowed), but they are forced to accept the performance of acts inconsistent with secularism.
Certainly, in this case, Dr. Webber’s stubbornness and lack of sensitivity contrasted sharply with the picture painted of the adverse impact on the students. In the context of whether the school would suffer undue hardship if it were required to accommodate the students, the first tribunal stated, “[t]he respondent’s standard of ‘no overt prayer or religious practice on campus’ essentially asks these Students to leave their religion ‘at the door’ while other students who do not have religious obligations during school hours are not so required.” (AHRC 1, para. 105)
The first tribunal related that “Dr. Nazar said that her son felt he had to choose religion over school”. And the tribunal, as well as the other adjudicators, described the impact on the students when they had to leave the property: Naman Siddique testified (in the tribunal’s words), “It was winter and so they would often come back to the school really wet and cold. If there was a blizzard outside or if it was too cold to pray Mr. Siddique testified that he and Mr. Amir would find a nook or cranny and pray. He felt that this was humiliating.” (AHRC 1, para. 34)
The reality is, under human rights legislation there is almost no way that a school can maintain a secular identity. Despite the adjudicators’ view that the prayers do not interfere with that identity, do not change the school into a non-denominational institution, they do change the atmosphere from one that does not recognize religious practice as part of its own culture. Furthermore, a school that seeks to present a secular face is almost forced to deny what is the multicultural reality of its students as represented by passive symbols that appear throughout our society if it does not want to be caught in a web of its own making and appear to be inconsistent. Such a denial is neither possible nor desirable, however.
Webber Academy illustrates that the law does not acknowledge that secularism or a non-denominational identity is more complex than allowed by most of the adjudicators in the case. Or, perhaps, the opposite is true: that it is as simple as the law allows religious expression to be: unlike religious adherents and their faith, however, believers in secularism are not free to define their own beliefs and practices.
The post <a href="https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/">The Lack of Protection for Non-Denominational Identity: The Webber Academy Case</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Missing Discussions at Center of Union COVID Dispute</title>
<link>https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/</link>
<comments>https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/#respond</comments>
<dc:creator><![CDATA[Marie-Yosie Saint-Cyr, First Reference Managing Editor]]></dc:creator>
<pubDate>Thu, 18 Apr 2024 13:59:13 +0000</pubDate>
<category><![CDATA[Case Comment]]></category>
<category><![CDATA[Substantive Law]]></category>
<category><![CDATA[Substantive Law: Judicial Decisions]]></category>
<category><![CDATA[British Columbia Labour Relations Board]]></category>
<category><![CDATA[British Columbia Labour Relations Code]]></category>
<category><![CDATA[Collective agreement]]></category>
<category><![CDATA[Judicial review]]></category>
<category><![CDATA[Labour Law]]></category>
<category><![CDATA[Mandatory vaccine policy]]></category>
<category><![CDATA[Terms and conditions of employment]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106763</guid>
<description><![CDATA[Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.
The Supreme Court of British Columbia rendered a decision (<a href="https://www.canlii.org/en/bc/bcsc/doc/2024/2024bcsc55/2024bcsc55.html" rel="noopener" target="_blank">2024 BCSC 55 (CanLII)</a>) on judicial review which looked at the employer’s choice to implement a COVID-19 vaccination policy, and whether, under the Labour Relations Code, it was obligated to enter into discussions with the union first. The case provides employers with insight into the difficulty of overturning a tribunal’s decision.
Background
The workplace was a provincially run rapid transit company. The Court considered a union’s petition for judicial review of a decision by the British Columbia Labour . . . <a href="https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/">Missing Discussions at Center of Union COVID Dispute</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<h3>Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.</h3>
The Supreme Court of British Columbia rendered a decision (<a href="https://www.canlii.org/en/bc/bcsc/doc/2024/2024bcsc55/2024bcsc55.html" rel="noopener" target="_blank">2024 BCSC 55 (CanLII)</a>) on judicial review which looked at the employer’s choice to implement a COVID-19 vaccination policy, and whether, under the Labour Relations Code, it was obligated to enter into discussions with the union first. The case provides employers with insight into the difficulty of overturning a tribunal’s decision.
<h3>Background</h3>
The workplace was a provincially run rapid transit company. The Court considered a union’s petition for judicial review of a decision by the British Columbia Labour Relations Board regarding the interpretation of s. 54 of the Labour Relations Code in relation to a mandatory vaccination policy implemented by the employer. The dispute centered around whether the policy triggered s. 54 of the LRC, which requires employers to give notice and engage in discussions with the union when introducing measures affecting the terms, conditions, or security of employment of a significant number of employees covered by a collective agreement.
The union argued that the policy affected employment conditions and thus should have triggered s. 54, while the employer contended that the policy was akin to workplace rules and did not require such notice. The original decision by the Board found that s. 54 applied to the policy, but a reconsideration panel later overturned this decision, concluding that the policy did not fall under s. 54.
The Court summarized the arguments of both parties and the original decision, which found that the policy did indeed trigger s. 54 because it required employees to undergo a medical procedure and disclose confidential medical information, leading to organizational changes in the workforce. However, the reconsideration panel, in the majority decision, disagreed and found that the policy was directed toward individual behavior and did not constitute a significant change triggering s. 54. It reasoned that other workplace policies, such as sick leave policies, also require employees to disclose medical information and thus the policy in question was not unique.
In dissent, Associate Chair Matthews interpreted the statute differently, concluding that the policy fell within the class of employer conduct subject to negotiation and thus should have been covered by s. 54.
Overall, the Court reviewed the arguments, the original decision, and the reconsideration decision, ultimately granting deference to the majority decision of the Board, which found that the policy did not trigger s. 54.
<h3>The Court’s decision</h3>
Justice Devlin began the analysis by stating the applicable standard of review was that of patent unreasonableness. In other words, this highly deferential standard permits the original decision to stand unless it is clearly irrational or suffers from reasoning so flawed it affects the decision as a whole. If, on the other hand, a rational line of reasoning could support the conclusion, or if a defect is a minor one, then the decision must be allowed to stand.
With that standard in mind, the Court dismissed the application for judicial review put forward by the union. The Court addressed two main arguments. First, regarding the Board’s reasoning on the application of s. 54, the union claimed the majority’s decision stemmed from a misunderstanding of the original decision. However, the Court found no merit in this assertion, emphasizing that the majority’s analysis was comprehensive and contextually sound.
Second, concerning the statutory interpretation of s. 54, the union argued the majority failed to conduct a meaningful analysis. Despite this, the Court disagreed, stating the majority engaged in a thorough interpretation consistent with legal principles, having considered the legislative history and applicable jurisprudence. Consequently, the Court concluded the majority’s decision was not patently unreasonable and dismissed the union’s application for judicial review without addressing other arguments.
<h3>Key takeaway</h3>
It’s really hard to overturn a decision for being patently unreasonable, particularly when the decision maker lays out their thinking in a way that makes rational sense and aligns with the law. This case shows how parties’ reasonable perspectives may differ, but overturning a tribunal’s decision often takes more than a different point of view.
The post <a href="https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/">Missing Discussions at Center of Union COVID Dispute</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Thursday Thinkpiece: Internationally-Trained Lawyers Need More Than Just NCA Exams</title>
<link>https://www.slaw.ca/2024/04/18/thursday-thinkpiece-internationally-trained-lawyers-need-more-than-just-nca-exams/</link>
<comments>https://www.slaw.ca/2024/04/18/thursday-thinkpiece-internationally-trained-lawyers-need-more-than-just-nca-exams/#respond</comments>
<dc:creator><![CDATA[Guest Blogger]]></dc:creator>
<pubDate>Thu, 18 Apr 2024 11:00:19 +0000</pubDate>
<category><![CDATA[Legal Publishing]]></category>
<category><![CDATA[Thursday Thinkpiece]]></category>
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For those of us raised in Canada and who studied law here, it can be easy to forget that the way we practise law is very… Canadian.
While we’re all aware that there are substantive differences between Canadian law and the law of other jurisdictions, it’s much easier to forget that the practice of law varies just as much from nation to nation. There’s more than one way to do almost anything, and the Canadian legal system is founded on a very specific set of choices, norms, and traditions.
Upon arriving in Canada from her native Australia, and despite her . . . <a href="https://www.slaw.ca/2024/04/18/thursday-thinkpiece-internationally-trained-lawyers-need-more-than-just-nca-exams/" class="read-more">[more] </a>
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<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> For those of us raised in Canada and who studied law here, it can be easy to forget that the way we practise law is very… Canadian.
While we’re all aware that there are substantive differences between Canadian law and the law of other jurisdictions, it’s much easier to forget that the practice of law varies just as much from nation to nation. There’s more than one way to do almost anything, and the Canadian legal system is founded on a very specific set of choices, norms, and traditions.
Upon arriving in Canada from her native Australia, and despite her background as an academic from another common law system, <a href="https://www.linkedin.com/in/kellinde-wrightson-b448a9bb/?originalSubdomain=ca">Dr. Kellinde Wrightson</a> – now Executive Director of the <a href="https://law.ucalgary.ca/future-students/post-jdllb-certificate-programs/foreign-trained-lawyers-program?utm_source=google&utm_medium=cpc&utm_campaign=UCalgary+-+Law+School+-+FTLP+-+Google+-+Search+-+Generic+-+Direct&gad_source=1&gclid=CjwKCAjw_LOwBhBFEiwAmSEQAQFF-Lmab_NI7Ql0v8GCrChe0Sdwpr6d4XmFRYrpwWm3TjNDWriV4BoCr4AQAvD_BwE">Foreign Trained Lawyers Program</a> at the Faculty of Law, University of Calgary – felt a surprising measure of culture shock. With the help of mentors and colleagues within the Alberta legal community, she found her feet; but she wasn’t willing to simply forget the barriers and biases she observed along the way. Now an associate Professor of Law, Wrightson decided to write the very text she would have found helpful during her own adjustment period.
As her publisher, when we first agreed to publish <a href="https://www.emond.ca/Store/Books/Decoding-Canadian-Legal-Research,-Writing,-and-Con?r=%2fDivision%2fLaw-School%3ftype%3d%26program%3d%26subject%3d%26metadata%3d1">Decoding Canadian Legal Research, Writing, and Conventions</a>, we thought of it as merely a supplement to our existing legal research text The Comprehensive Guide to Legal Research, Writing & Analysis. But as we became more familiar with the manuscript, we realized we’d be publishing something much more important. Decoding would grow, before our eyes, into a code-breaking guide to the eccentricities of the Canadian legal system as seen through the eyes of a recent outsider.
How is our system eccentric? Well, for starters, we have articling, unknown in most of the legal world. We have the concept of parallel systems of law and equity. Our lawyers must pass both a barrister and a solicitor exam to be called to the bar. But these are just some of the well-known “big things”. To get a sense of the mysterious small things, imagine this: you’ve been a lawyer in India for decades, but you wake up one morning as an associate in a Canadian law firm. Your first meeting of the workday is a Zoom gathering of your county law association, and it starts with someone reciting an Indigenous land acknowledgment. The implications make your head spin, but no time to think about all that – it’s off to court to set a date for a trial. You scramble into your robes and rush to the courtroom – where nobody is robed (but will be, come afternoon, when you return in your street clothes). Then it’s back to the office to draft some pleadings which will be dropped right back on your desk, with half of the content – the best parts! – crossed out.
The most unlikely part of this story, of course, is the part about waking up as an associate in a Canadian law firm. THAT doesn’t just happen. Instead there are years spent requalifying, competing with local graduates for opportunities, and often despite years of practice experience, fighting a continual battle to defend your credentials.
Internationally-trained lawyers face huge obstacles in their quest to earn the right to practise here. It’s on all of us to do what we can to improve the welcome that we extend to them. By demystifying critical aspects of the system that most of us take for granted, Decoding Canadian Legal Research, Writing, and Conventions is Dr. Wrightson’s gift to those who follow her onto our shores. We at Emond Publishing are so proud to be its publisher.
The post <a href="https://www.slaw.ca/2024/04/18/thursday-thinkpiece-internationally-trained-lawyers-need-more-than-just-nca-exams/">Thursday Thinkpiece: Internationally-Trained Lawyers Need More Than Just NCA Exams</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>R. v. Bykovets: SCC Recognized Privacy Rights for IP Addresses</title>
<link>https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/</link>
<comments>https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/#respond</comments>
<dc:creator><![CDATA[Martin Kratz]]></dc:creator>
<pubDate>Wed, 17 Apr 2024 11:00:56 +0000</pubDate>
<category><![CDATA[Intellectual Property]]></category>
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In R. v. Spencer<a href="#_ftn1" name="_ftnref1">[1]</a> the Supreme Court of Canada held that a reasonable expectation of privacy attaches to subscriber information — the name, address, and contact information — associated with an individual Internet Protocol (IP) address. In R. v. Bykovets<a href="#_ftn2" name="_ftnref2">[2]</a>, the majority found that reasonable expectation of privacy extends to the numbers which make up an Internet protocol address even though those numbers might be changed at random by an Internet service provider.
The Facts
The Calgary City Police were investigating fraud in online liquor sales and came across a payment processor who processed the suspect transactions. . . . <a href="https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/">R. v. Bykovets: SCC Recognized Privacy Rights for IP Addresses</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> In R. v. Spencer<a href="#_ftn1" name="_ftnref1">[1]</a> the Supreme Court of Canada held that a reasonable expectation of privacy attaches to subscriber information — the name, address, and contact information — associated with an individual Internet Protocol (IP) address. In R. v. Bykovets<a href="#_ftn2" name="_ftnref2">[2]</a>, the majority found that reasonable expectation of privacy extends to the numbers which make up an Internet protocol address even though those numbers might be changed at random by an Internet service provider.
<h2>The Facts</h2>
The Calgary City Police were investigating fraud in online liquor sales and came across a payment processor who processed the suspect transactions. The payment processor volunteered the IP addresses of the suspect transactions which the police used to get a production order from the ISP who managed the account and identified the subscribers.
Police then used the subscriber information to seek and execute search warrants for the appellant’s and his father’s residential addresses. The appellant was arrested, and convicted after a trial, and his convictions were confirmed on appeal.
Before the trial, the appellant alleged that the police’s request to the payment processor violated his right against unreasonable search and seizure under <a href="https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth">s. 8</a> of the <a href="https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html">Charter</a>. S. 8 of the Charter guarantees that:
“Everyone has the right to be secure against unreasonable search or seizure.”
The key issue on the hearing at trial was whether the appellant had a reasonable expectation of privacy in his IP address.
Defence counsel submitted a forensic investigator’s expert report providing a technical summary of IP addresses and their functions. The Supreme Court noted:
<blockquote>“The report showed that there are internal and external IP addresses. External IP addresses are used to transfer information across the Internet from one source to another through a modem rented from the ISP. An external IP address is much like the street address of an individual’s house. Without one, a user can neither send nor receive data. A modem or router also assigns an internal IP address to each device on a local network, roughly equivalent to the individual rooms in a house.
IP addresses can also be static or dynamic. Most are dynamic, meaning that the ISP can change a user’s external IP address without notice and for any number of reasons. ISPs keep a record of which subscriber each external IP address was assigned to and for what time period.
A user’s ISP can be determined by entering their IP address into an IP lookup website. The police can then request subscriber information for the assigned IP address from the ISP, as contemplated by Spencer. That said, the expert explained that one may still take steps to determine a user’s identity, without resorting to an ISP, through the information logged on the website of a third-party company. Third-party companies, such as Google or Facebook, can track the external IP addresses of each user who visits their site and log this information to varying degrees. These companies can determine the identity of those individual users based on their Internet activity on their sites .”<a href="#_ftn3" name="_ftnref3">[3]</a></blockquote>
The forensic expert’s view at trial was if a user can have access to the information logged by such third-party companies, “it is not necessary to obtain ISP-held subscriber information in order to accurately identify a particular internet user”.<a href="#_ftn4" name="_ftnref4">[4]</a>
The majority focused on the subject matter of the search to find that was not the random numbers which make up an IP address but rather the information it reveals on the identity of the internet user. In the words of the majority, the IP address is the first “digital breadcrumb”<a href="#_ftn5" name="_ftnref5">[5]</a> and thus the key to unlocking the user’s internet usage. The majority described the approach to privacy protection as normative, as follows:
<blockquote>“… our Court has applied a normative standard to reasonable expectations of privacy. We have defined s. 8 in terms of what privacy should be — in a free, democratic, and open society — balancing the individual’s right to be left alone against the community’s insistence on protection. This normative standard demands we take a broad, functional approach to the subject matter of the search and that we focus on its potential to reveal personal or biographical core information.<a href="#_ftn6" name="_ftnref6">[6]</a></blockquote>
Thus the majority found that “Viewed normatively, an IP address is the key to unlocking a user’s Internet activity and, ultimately, their identity, such that it attracts a reasonable expectation of privacy”.<a href="#_ftn7" name="_ftnref7">[7]</a>
The minority was of the view that “the subject matter of this search was the IP addresses, i.e., the collections of numbers, and the identity of the ISP that is revealed by them.”<a href="#_ftn8" name="_ftnref8">[8]</a> Rather than see the IP address as opening a door to the exposure of personal information the minority focused on the limited information available from an IP address and that judicial authorization would provide the safeguard to the release of subscriber information.
The minority was also concerned that the recognition of an IP address as requiring court sanction would impede police investigation into internet crimes. The majority saw the investigative impact of their decision as minor.
Businesses that collect IP addresses should consider voluntarily sharing them as a warrant may now be needed for criminal investigations. Internal policies regarding the sharing of such data with the state should be updated.
Overall the Bykovets decision reinforces that additional scrutiny should be exercised whenever information is shared on the internet. It is another reason to review an organization’s information collection practices and policies.
_____________________
<a href="#_ftnref1" name="_ftn1">[1]</a> <a href="https://www.canlii.org/en/ca/scc/doc/2014/2014scc43/2014scc43.html">2014 SCC 43</a>, [2014] 2 S.C.R. 212.
<a href="#_ftnref2" name="_ftn2">[2]</a> 2024 SCC 6 (CanLII).
<a href="#_ftnref3" name="_ftn3">[3]</a> See R. v. Bykovets, 2024 SCC 6 at paras 19 – 21.
<a href="#_ftnref4" name="_ftn4">[4]</a> See R. v. Bykovets, 2024 SCC 6 at para 22.
<a href="#_ftnref5" name="_ftn5">[5]</a> See R. v. Bykovets, 2024 SCC 6 at para 69 citing R. v. Jones, <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc60/2017scc60.html">2017 SCC 60</a>, [2017] 2 S.C.R. 696 at para. <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc60/2017scc60.html#par42">42</a>, citing S. Magotiaux, “Out of Sync: Section 8 and Technological Advancement in Supreme Court Jurisprudence” (2015), 71 S.C.L.R. (2d) 501, at p. 502.
<a href="#_ftnref6" name="_ftn6">[6]</a> See R. v. Bykovets, 2024 SCC 6 at para 7 citing from R. v. Marakah, <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc59/2017scc59.html">2017 SCC 59</a>, [2017] 2 S.C.R. 608, at para. <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc59/2017scc59.html#par32">32</a>.
<a href="#_ftnref7" name="_ftn7">[7]</a> See R. v. Bykovets, 2024 SCC 6 at para 28.
<a href="#_ftnref8" name="_ftn8">[8]</a> See R. v. Bykovets, 2024 SCC 6 at para 140.
The post <a href="https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/">R. v. Bykovets: SCC Recognized Privacy Rights for IP Addresses</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Sharenthood: Turning Childhood Into Lucrative Content</title>
<link>https://www.slaw.ca/2024/04/16/sharenthood-turning-childhood-into-lucrative-content/</link>
<comments>https://www.slaw.ca/2024/04/16/sharenthood-turning-childhood-into-lucrative-content/#respond</comments>
<dc:creator><![CDATA[Alexandra Champagne]]></dc:creator>
<pubDate>Tue, 16 Apr 2024 11:00:26 +0000</pubDate>
<category><![CDATA[Justice Issues]]></category>
<category><![CDATA[Legal Information]]></category>
<category><![CDATA[Legal Publishing]]></category>
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In the 1920s, Jackie Coogan became one of Hollywood’s first child stars after playing the titular role of “The Kid” alongside Charlie Chaplin. Having starred in several box office successes, Coogan’s childhood career had <a href="https://www.washingtonpost.com/history/2023/08/25/illinois-child-influencer-earnings-law-history-jackie-coogan/">earned him an estimated $4 million</a> (roughly $62 million today). When Coogan tried to access his earnings in his 20’s, however, he discovered that his mother had spent nearly his entire fortune. In response to public outcry, California passed the Coogan Act, which aimed to <a href="https://blogs.loc.gov/law/2022/06/more-than-pocket-money-a-history-of-child-actor-laws/">safeguard a portion of child actors’ earnings</a> until they reached adulthood and to protect them from abuse and exploitation. The Coogan . . . <a href="https://www.slaw.ca/2024/04/16/sharenthood-turning-childhood-into-lucrative-content/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/16/sharenthood-turning-childhood-into-lucrative-content/">Sharenthood: Turning Childhood Into Lucrative Content</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> In the 1920s, Jackie Coogan became one of Hollywood’s first child stars after playing the titular role of “The Kid” alongside Charlie Chaplin. Having starred in several box office successes, Coogan’s childhood career had <a href="https://www.washingtonpost.com/history/2023/08/25/illinois-child-influencer-earnings-law-history-jackie-coogan/">earned him an estimated $4 million</a> (roughly $62 million today). When Coogan tried to access his earnings in his 20’s, however, he discovered that his mother had spent nearly his entire fortune. In response to public outcry, California passed the Coogan Act, which aimed to <a href="https://blogs.loc.gov/law/2022/06/more-than-pocket-money-a-history-of-child-actor-laws/">safeguard a portion of child actors’ earnings</a> until they reached adulthood and to protect them from abuse and exploitation. The Coogan Act contained several loopholes that permitted continued exploitation (see the money troubles of <a href="https://www.huffpost.com/entry/child-stars-protection-coogans-law_n_4775408#:~:text=Temple%20made%20the%20majority%20of,nearly%20all%20of%20his%20money.">Shirley Temple</a>, <a href="https://www.chicagotribune.com/1997/03/05/culkins-parents-lose-control-of-his-money/">Macaulay Culkin</a> and <a href="https://www.latimes.com/archives/la-xpm-1990-01-31-me-1022-story.html">Gary Coleman</a>), which were partially addressed by <a href="https://blogs.loc.gov/law/2022/06/more-than-pocket-money-a-history-of-child-actor-laws/">revisions made in 2000</a>. While there are laws in both Canada and the United States that aim to prevent the financial exploitation of child actors, little has been done to <a href="https://journalhosting.ucalgary.ca/index.php/muj/article/view/76422/56520">protect their privacy or prevent other forms of abuse</a>. And in the context of children in the emerging online entertainment industry, there are almost no protections offered.
<h2>Making Children Earn Their Keep (And Then Some…)</h2>
Children have become increasingly present—and popular—in online content. <a href="https://www.forbes.com/sites/abrambrown/2022/01/14/the-highest-paid-youtube-stars-mrbeast-jake-paul-and-markiplier-score-massive-paydays/?sh=4e1985fa1aa7">According to Forbes</a>, two out of the top ten highest paid YouTubers in 2021 were under the age of 13 (10-year-old Nastya earned $28 million, while 12-year-old Ryan earned a paltry $27 million). But given the fact that most large social media platforms (including <a href="https://www.tiktok.com/safety/en/guardians-guide/">TikTok</a>, <a href="https://kids.youtube.com/t/terms#:~:text=Who%20may%20use%20the%20Service%3F,-Age%20Requirements&text=You%20must%20be%20at%20least,a%20parent%20or%20legal%20guardian.&text=If%20you%20are%20under%2018,permission%20to%20use%20the%20Service.">YouTube</a> and <a href="https://help.instagram.com/154475974694511#:~:text=We%20require%20people%20to%20be,requirement%20for%20everyone%20on%20Instagram.">Instagram</a>) prohibit children under 13 from making an account, how are young children making it big online? In most cases, these accounts are run by their parents. Such accounts create content that usually falls under two major categories: “Kidfluencing” and “Sharenting”. In general, kidfluencing videos star children and are targeted towards other children. Such videos can feature toy reviews, unboxing gifts, or playing games. “Sharenting” videos, on the other hand, are usually centered on the parent (called a “mommy vlogger” or “family vlogger”) while still featuring their children and are geared towards a broader audience. These videos focus more on parenting advice, recipes, and documenting the family’s daily life.
<div id="attachment_106582" style="width: 610px" class="wp-caption alignnone"><img loading="lazy" decoding="async" aria-describedby="caption-attachment-106582" class="wp-image-106582 size-large" src="https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1-600x344.jpg" alt="" width="600" height="344" srcset="https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1-600x344.jpg 600w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1-300x172.jpg 300w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1-200x115.jpg 200w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1-768x440.jpg 768w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1.jpg 1039w" sizes="(max-width: 600px) 100vw, 600px" />Ryan’s World, “<a href="https://www.youtube.com/watch?app=desktop&v=MkiQVURF4qQ">Christmas Morning 2015 Opening Presents Surprise Toys Ryan ToysReview”</a> (25 December 2015). Ryan, now 12, has been making YouTube videos since he was 3. Note that I blurred the child’s face from the original thumbnail.</div>
<h2>An Industry Based on Exploitation</h2>
If you think this kind of manager-talent relationship between parents and children sounds ripe for abuse, you would be correct. While abuse is a broad term, it usually takes one of four main forms: <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10218097/">emotional, physical, sexual or economic</a>. Now, I think that it’s important to more clearly define emotional abuse before throwing the term around willy nilly. While the definitions of other forms of abuse may seem more clear cut, emotional abuse can seem nebulous to some. The Canadian government <a href="https://www.justice.gc.ca/eng/cj-jp/fv-vf/about-apropos.html">specifically recognizes</a> acts that would take away an individual’s self-respect (including humiliation and name calling) as a form of emotional abuse. Child influencers are particularly vulnerable to this type of emotional abuse by their parents, who have complete control over their lives. One former kidfluencer whose <a href="https://www.cosmopolitan.com/lifestyle/a60125272/sharenting-parenting-influencer-cost-children/">entire childhood was made into content</a>, shared how humiliated she felt when her mother forced her to do sponsored posts for sanitary pads when she reached puberty and began menstruating. In <a href="https://www.today.com/parents/jordan-cheyenne-speaks-out-about-youtube-video-son-crying-t231055">another example</a>, a former family vlogger was seen in a since-deleted video coaching her already distressed child on how to cry for the thumbnail after learning their puppy was dying. In some cases, emotionally abusive or otherwise exploitative behavior online can be indicative of physical abuse behind the camera. In February of 2024, former family vlogger Ruby Franke was sentenced up to <a href="https://globalnews.ca/news/10305461/ruby-franke-sentenced-child-abuse-jodi-hildebrandt/">60 years based on four counts of aggravated child abuse</a>. While her strict parenting style on camera <a href="https://www.change.org/p/child-protective-services-cps-investigation-into-8-passengers">led some to believe Franke was abusive</a> (e.g., threatening to destroy her children’s toys, withholding food, etc.) she was not arrested until her 12-year-old son escaped to request aid from neighbors. Upon investigation, the police found her children had severe signs of <a href="https://time.com/6696522/ruby-franke-child-abuse-sentencing-youtube/">malnourishment and abuse</a>.
<div id="attachment_106583" style="width: 610px" class="wp-caption alignnone"><img loading="lazy" decoding="async" aria-describedby="caption-attachment-106583" class="wp-image-106583 size-large" src="https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2-600x307.jpg" alt="" width="600" height="307" srcset="https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2-600x307.jpg 600w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2-300x153.jpg 300w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2-200x102.jpg 200w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2-768x393.jpg 768w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2.jpg 987w" sizes="(max-width: 600px) 100vw, 600px" />Today, “<a href="https://www.today.com/parents/family/live-blog/ruby-franke-sentencing-child-abuse-rcna139269">YouTube mom Ruby Franke and counselor Jodi Hildebrandt sentenced to 4-30 years for child abuse</a>” Ruby Franke, left, in a video on her YouTube channel, and appearing in court in December on child abuse charges.</div>
In some cases, parents may—intentionally or otherwise—expose their children to sexual abuse. A recent <a href="https://www.nytimes.com/2024/02/22/us/instagram-child-influencers.html">New York Times article</a> shed light on a major risk of posting your children publicly: pedophiles. While some of the child-centered accounts that they investigated posted predominantly innocuous content, <a href="https://www.nytimes.com/2024/02/22/us/instagram-child-influencers.html">the review found</a> that many mom-run accounts heavily featured images of their young daughters in tight or revealing clothing, sometimes in suggestive poses. While some parents interviewed claimed to delete inappropriate comments and block abusive users, other parents seemingly encouraged commenters and sold special photo sets or exclusive Q&As to “fans” of their children. This provides parents with a lucrative opportunity to exploit their children with the plausible deniability that they were naive to the fact that most of their children’s followers were adult men. Regardless of the stated intention of the parents, however, children are being exploited for money through online content. So, what should be done to prevent this from happening?
<h2>Removing the Financial Incentives</h2>
Just as in the case of child actors, child influencers can make big money. Through brand deals, ad revenue, merchandising, and donations, children with larger accounts can <a href="https://www.nytimes.com/2023/10/10/style/children-influencers-money.html">rake in huge earnings</a>—for their parents. Throughout all of Canada and most of the US, child influencers are afforded no protection from the financial exploitation of their parents. In other words, it is up to the parents to decide whether they want to save for their child’s future education or follow in the footsteps of Jackie Coogan’s mom and blow it all on diamonds and fur coats. In August 2024, <a href="https://www.nytimes.com/2023/10/10/style/children-influencers-money.html">Illinois became the first North American jurisdiction</a> to pass a law specifically requiring adults who use a child’s likeness, name or photograph in paid online content to set aside a portion of those earnings in a trust. This law represents a positive step in legislative progression. Illinois has recognized the changing face of children’s labour in entertainment and has taken action to address the real ongoing harms in the online content industry.
While protecting a child from certain forms of exploitation may be difficult to legislate (though the Canadian government has recently recognized the need to protect children online in the <a href="https://www.parl.ca/DocumentViewer/en/44-1/bill/C-63/first-reading">Online Harms Bill</a>), there is a clear path forward to preventing financial exploitation. Canadian provinces should follow the lead of Illinois and adopt legislation to protect children’s earnings from online content. Currently, Ontario’s <a href="https://www.ontario.ca/laws/statute/s15002">Protecting Child Performers Act, 2015</a> requires 25% of a child performer’s earnings to be held in trust if they earn over $2000. These protections are not extended to child performers in online content. Other provinces have similar legislation. Canadian labour law must be updated to meet the realities of the modern entertainment industry and address the challenges therein. And who knows, maybe Canadian provinces could even let children keep an even greater percentage of their earnings. 25% sounds a little meager to me. Let’s allow the kids to enjoy the fruits of their labour and raise it to say…50%. And if you’re a former child performer reading this 10 years in the future and your provincial government took my advice… I have PayPal and am currently awaiting your generous donation.
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<title>Summaries Sunday: SOQUIJ</title>
<link>https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/</link>
<comments>https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Sun, 14 Apr 2024 11:00:41 +0000</pubDate>
<category><![CDATA[Summaries Sunday]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106730</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Dans le cadre de l’affaire du meurtre de Guylaine Potvin, le tribunal déclare recevable le témoignage d’une biologiste judiciaire à titre de témoin expert concernant l’utilisation du nouvel outil d’enquête désigné comme le «Projet PatronYme» et ses résultats.
Intitulé : R. c. Grenon, <a href="http://citoyens.soquij.qc.ca/ID=C790786ACDAB70D045BCB3360197E90B">2024 QCCS 551</a> 
Juridiction . . . <a href="https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Dans le cadre de l’affaire du meurtre de Guylaine Potvin, le tribunal déclare recevable le témoignage d’une biologiste judiciaire à titre de témoin expert concernant l’utilisation du nouvel outil d’enquête désigné comme le «Projet PatronYme» et ses résultats.
Intitulé : R. c. Grenon, <a href="http://citoyens.soquij.qc.ca/ID=C790786ACDAB70D045BCB3360197E90B">2024 QCCS 551</a> 
Juridiction : Cour supérieure (C.S.), Chicoutimi 
Décision de : Juge François Huot 
Date : 26 février 2024
Résumé
PÉNAL (DROIT) — preuve pénale — recevabilité de la preuve — voir-dire — témoignage — expert — biologie judiciaire — nouvel outil d’enquête — projet PatronYme — recherche de patronymes — identification de l’accusé — orientation de l’enquête policière — critères à considérer — nouvelles techniques ou disciplines scientifiques — pertinence — nécessité d’aider le juge des faits — qualification de l’expert — impartialité — indépendance — fiabilité — valeur probante — effet préjudiciable — situation exceptionnelle — meurtre au premier degré — agression sexuelle grave.
Requête en déclaration de recevabilité d’un témoignage d’expert. Accueillie.
Dans le cadre de l’affaire du meurtre de Guylaine Potvin, survenu en 2000, la poursuite sollicite l’autorisation de faire entendre une personne à titre de témoin expert en biologie judiciaire, plus particulièrement en ce qui concerne l’utilisation du nouvel outil d’enquête désigné comme le «projet PatronYme» et ses résultats. En l’occurrence, le témoin était responsable de l’analyse du chromosome Y obtenu d’un prélèvement effectué sous les ongles de la victime à des fins de comparaison avec une base de données (pYste). Cette base contient des milliers de profils Y associés à des noms de famille. Ces données constituent l’unique base de référence du projet PatronYme. La recherche de profils Y dans pYste a été menée afin d’obtenir un ou des patronymes potentiels d’un suspect inconnu et de fournir ainsi de nouvelles pistes d’enquête à la police.
Décision
En l’espèce, les critères de recevabilité d’une preuve d’expert, dans le cadre de la première étape de l’analyse établie dans l’arrêt White Burgess Langille Inman c. Abbott and Haliburton Co. (C.S. Can., 2015-04-30), 2015 CSC 23, SOQUIJ AZ-51171118, 2015EXP-1385, J.E. 2015-767, [2015] 2 R.C.S. 182, sont remplis. Le critère de la pertinence est respecté: l’expertise proposée se rapporte à un fait en litige, à savoir l’identification de l’accusé, bien qu’elle ne permette pas en soi d’établir cette dernière, et elle est à ce point reliée à la question de l’identification qu’elle tend à l’établir en fournissant au juge des faits une explication sur les circonstances qui ont amené les policiers à circonscrire leur enquête sur la personne de l’accusé. Quant au critère de la nécessité d’aider le juge des faits, l’objet de l’expertise porte sur l’identification de l’accusé en tant que suspect principal. La poursuite souhaite fournir au jury un narratif qui lui permettra de comprendre les motifs ayant conduit les policiers à envisager une opération de filature et à requérir une autorisation judiciaire pour obtenir des échantillons corporels de l’accusé. La poursuite ne conteste pas par ailleurs qu’il conviendrait de circonscrire une telle preuve au narratif de l’enquête policière et de l’exclure expressément à titre de preuve d’identification de l’accusé. Sans cette expertise, le jury pourrait légitimement se demander pour quelle raison les policiers n’ont rien fait pendant 20 ans, alors que l’intimé faisait déjà partie d’une liste de suspects après la mort de la victime. Ainsi, il s’agit d’une «situation exceptionnelle» où le jury serait incapable de tirer ses propres conclusions sans l’aide d’un expert possédant des connaissances particulières. Manifestement, l’opinion du témoin est recevable pour donner au tribunal des renseignements scientifiques qui, selon toute vraisemblance, dépassent l’expérience et la connaissance d’un jury. Le critère de la qualification suffisante de l’expert est également rempli: l’objet de l’expertise relève du champ de compétence du témoin. De plus, celui-ci est disposé à rendre un témoignage impartial, indépendant et sans parti pris. Par ailleurs, l’expertise proposée n’est visée par aucune autre règle d’exclusion. Quant au dernier critère, relatif aux nouvelles techniques ou disciplines scientifiques, l’identification du profil Y est acceptée depuis longtemps. En revanche, son association à un patronyme est nouvelle. Dans 57 % des cas, cette technique permet d’orienter l’enquête vers le nom de famille du contributeur d’ADN. Cependant, la fiabilité des principes scientifiques s’apprécie en fonction de l’objectif poursuivi, qui consiste en l’occurrence à orienter une enquête policière et non à identifier à un accusé. La poursuite est consciente de la nécessité pour les policiers de confirmer la fiabilité du recours au projet PatronYme par l’obtention d’un échantillon d’ADN. En somme, on ne parle pas d’une science nouvelle, mais d’une technique scientifique reconnue appliquée à des fins nouvelles. La suite de l’enquête a prouvé la fiabilité de cette technique d’enquête.
Au stade de la deuxième étape, le tribunal rappelle qu’aucune réserve n’a été émise quant à l’indépendance et à l’impartialité de l’expert. La pertinence de l’expertise, sa nécessité, la fiabilité de la technique d’enquête et l’absence de parti pris ne font aucun doute. Le projet PatronYme ne vise pas précisément l’accusé. La recherche d’un profil Y dans pYste ne permet que de cibler des noms de famille pour orienter une enquête policière; il ne s’agit donc que d’une technique d’enquête dont le résultant est un communiqué sur la recherche de patronymes. Également, la preuve de cette technique d’enquête n’est guère longue ni complexe. Par ailleurs, le pointage de la correspondance obtenue en lien avec le nom de famille «Grenon» est de 94 sur 98, et ce, pour 21 allèles sur 21. Cette fiabilité est rehaussée par le résultat du prélèvement d’ADN effectué sur l’accusé à la suite de son arrestation. Ainsi, le tribunal déclare recevable le témoignage du témoin en question à titre de témoin expert en biologie judiciaire, plus particulièrement en ce qui concerne l’utilisation du projet PatronYme et ses résultats.
Le texte intégral de la décision est disponible <a href="http://citoyens.soquij.qc.ca/ID=C790786ACDAB70D045BCB3360197E90B">ici</a>
The post <a href="https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Blaming Victim of Sexual Harassment Not a Good Defence</title>
<link>https://www.slaw.ca/2024/04/11/blaming-victim-of-sexual-harassment-not-a-good-defence/</link>
<comments>https://www.slaw.ca/2024/04/11/blaming-victim-of-sexual-harassment-not-a-good-defence/#respond</comments>
<dc:creator><![CDATA[Marie-Yosie Saint-Cyr, First Reference Managing Editor]]></dc:creator>
<pubDate>Thu, 11 Apr 2024 14:30:15 +0000</pubDate>
<category><![CDATA[Case Comment]]></category>
<category><![CDATA[Substantive Law]]></category>
<category><![CDATA[Substantive Law: Judicial Decisions]]></category>
<category><![CDATA[disciplinary measures]]></category>
<category><![CDATA[Employment Law]]></category>
<category><![CDATA[grievance]]></category>
<category><![CDATA[Just cause]]></category>
<category><![CDATA[just cause for discipline.]]></category>
<category><![CDATA[Labour Law]]></category>
<category><![CDATA[sexual harassment]]></category>
<category><![CDATA[Victim blaming]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106725</guid>
<description><![CDATA[Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.
In January 2024, a British Columbia labour arbitrator had no hesitation concluding that an employee, who was the grievor accusing a female colleague of sexual harassment in this case, was actually the one who was sexually harassing the female colleague. Simply put, the arbitrator found that the grievor’s evidence was not credible, the female colleague’s account was credible and consistent with the evidence, and the female colleague did not do what the employee accused her of. As a result, the labour arbitrator agreed with the employer that . . . <a href="https://www.slaw.ca/2024/04/11/blaming-victim-of-sexual-harassment-not-a-good-defence/" class="read-more">[more] </a>
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<content:encoded><![CDATA[<h3>Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.</h3>
In January 2024, a British Columbia labour arbitrator had no hesitation concluding that an employee, who was the grievor accusing a female colleague of sexual harassment in this case, was actually the one who was sexually harassing the female colleague. Simply put, the arbitrator found that the grievor’s evidence was not credible, the female colleague’s account was credible and consistent with the evidence, and the female colleague did not do what the employee accused her of. As a result, the labour arbitrator agreed with the employer that the grievor filed a knowingly false complaint against the female colleague and the employer had just cause for discipline. The grievor’s termination grievance was dismissed.
<h3>What happened?</h3>
The employee was a regular full-time faculty member with the employer. He filed a sexual harassment complaint against a female colleague, accusing her of doing things that allegedly happened two years earlier. More specifically, the employee argued that the female colleague propositioned him for sex, tried to kiss him while they were in the car, brushed her breast against his arm and then finally kissed him on the mouth without consent.
The female colleague was a new employee. She denied all of the accusations against her and told a different story where she was made to feel uncomfortable around the employee, and the employee’s conduct was so upsetting that she asked to be relocated from the office they shared on campus to another location.
The employer hired a third-party to investigate the matter. Afterwards, the employer accepted the findings in the report and terminated the employee since his accusations were found to be false, made in bad faith and made in a distorted manner.
The labour arbitrator asked whether the employer had met its onus of showing just cause for the termination. This was made challenging since there were diverging accounts of the six months of interactions between the employee and his female colleague.
The arbitrator noted that, according to the employee, the female colleague called him cute, commented on his clothing saying they were sexy, and called him vagina bait. He also said that she tried to kiss him when they were in her car, brushed against him and eventually planted a non-consensual kiss on his mouth. In his complaint, he stated that he was not looking for retribution; he just wanted the situation put on record because he wanted to safeguard his career. He pointed out that the female colleague was part of a hatefest against him.
Contrastingly, the female colleague stated that nothing that the employee argued was true. She wanted to make a good impression as a new faculty member with the employer so that she could secure a permanent role. She was stressed, and the employee called her cute, the relationship was weird, his comments were over the top and she felt manipulated by him. The employee was not well-liked in the department, and he made her feel uncomfortable. She did not say anything to her employer right away because she did not want to make any waves as a new employee. Also, she did not have anything tangible yet to bring to the employer. She did not like that he asked her personal questions such as asking about her oral hygiene, which she thought was disturbing. She asked for advice from people who could help her (this was confirmed by Email records). Ultimately, she felt that she had no choice but to ask for a relocation to another place on the campus.
According to the employer, the female colleague gave testimony that was credible-unlike the employee’s evidence. In fact, the employer relied on her evidence when deciding to terminate the employee. Further, the employer argued that, regardless of the reasons why the employee fabricated the story, the employee persisted with the false story and his bad faith allegations without remorse or regard for the negative impact on the female colleague.
<h3>What did the labour arbitrator decide?</h3>
The arbitrator found the following:
<ul>
<li>The employee’s testimony was not credible given his inconsistencies and embellishments, and also his verbose modifications during cross-examinations. The employee was evasive during questioning and he gave convoluted responses.</li>
<li>
The female colleagues’ evidence was genuine and forthright, which was reasonable in the circumstances. She gave clear and concise explanations and answered questions directly.</li>
<li>It was more likely than not that it was the employee who initiated conversations that were sexualized-not the female colleague</li>
<li>Whether we are talking about what transpired in the office or the car, it was clear that the employee’s evidence was inconsistent and implausible. Taking a holistic view of the evidence, I find it more likely than not that the nature of the relationship between the [female colleague] and the [employee] was not that of a female colleague engaging in sexually suggestive conduct and kissing the [employee] without his consent, as alleged in the Complaint. I find the [employee’s] evidence, and his allegations against the [female colleague] place too great a strain on one’s sense of the realities of life and clash with the preponderance of probabilities disclosed by the surrounding circumstances.</li>
</ul>
Accordingly, the employer could show that the employee filed a knowingly false complaint against the female colleague and it had just cause for discipline. To that end, the employee’s grievance was dismissed.
<h3>What can we take from this case?</h3>
As can be seen in this case, it will eventually come out via investigations and hearings that an employee made up a sexual harassment complaint. Employers are recommended to address this issue of employees creating fictitious claims against coworkers in their anti-discrimination and anti-harassment policies. Along those lines, the issue should also be addressed during training sessions with employees so that it is clear that making up complaints in a dishonest manner will not be tolerated, and the policy will be enforced against employees with discipline up to and including termination.
Source: 2024 CarswellBC 211.
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<title>Democratizing Justice, Whose Problem Is It?</title>
<link>https://www.slaw.ca/2024/04/11/democratizing-justice-whose-problem-is-it/</link>
<comments>https://www.slaw.ca/2024/04/11/democratizing-justice-whose-problem-is-it/#comments</comments>
<dc:creator><![CDATA[Canadian Forum on Civil Justice]]></dc:creator>
<pubDate>Thu, 11 Apr 2024 11:00:07 +0000</pubDate>
<category><![CDATA[Justice Issues]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106618</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
Democratization means making something, usually a public good, accessible to everyone. The democratization of technology related to the internet or the democratization of health care are examples. As digital technologies become more widely adopted in areas touching peoples’ daily lives such as making appointments, applications for employment, being informed about changes in conditions of services or bargains available in the marketplace the reasons for making enabling technologies accessible to everyone become increasingly obvious. In a nation with a long-standing system of publicly funded health care the reasons are obvious although the realization seems to be falling short. In justice democratization . . . <a href="https://www.slaw.ca/2024/04/11/democratizing-justice-whose-problem-is-it/" class="read-more">[more] </a>
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]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> Democratization means making something, usually a public good, accessible to everyone. The democratization of technology related to the internet or the democratization of health care are examples. As digital technologies become more widely adopted in areas touching peoples’ daily lives such as making appointments, applications for employment, being informed about changes in conditions of services or bargains available in the marketplace the reasons for making enabling technologies accessible to everyone become increasingly obvious. In a nation with a long-standing system of publicly funded health care the reasons are obvious although the realization seems to be falling short. In justice democratization is being discussed, but unlike health care, in which democratization is accepted but falling short of its full realization, democratization of justice is a concept and an objective yet to be fully explored.
The introduction of United Nations Sustainable Development Goal (SDG) 16 in 2016 has energized the access to justice movement. SDG 16 is about promoting peaceful and inclusive societies for sustainable development, providing access to justice for all and building effective, accountable and inclusive institutions at all levels. SDG 16 has inspired evocative new themes in the recent discourse around access to justice such as justice for all<a href="#_ftn1" name="_ftnref1">[1]</a>, people-centered justice<a href="#_ftn2" name="_ftnref2">[2]</a> and, more recently, the democratization of justice.<a href="#_ftn3" name="_ftnref3">[3]</a>
More than a decade before SDG 16, legal needs research began focusing on legal problems as they are experienced by members of the public, rather than from the perspective of the formal justice system. Hazel Genn focused her landmark Paths to Justice study on justiciable problems, problems with legal aspects whether or not the individual recognizes the legal aspect of the problem or whether or not the person engages any part of the formal justice system to resolve it.<a href="#_ftn4" name="_ftnref4">[4]</a> Since Professor Genn’s seminal research, a large body of research producing remarkably consistent results has developed worldwide. From that we know now that legal problems are ubiquitous. Approximately a third to a half of all adults will likely experience one or more everyday legal problems within about a three-year period. Most people do not recognize the legal aspects or the potential seriousness of problems when they first occur. A majority of people do not obtain legal advice or other authoritative assistance. Many people do not resolve their problems in a timely way and experience a variety of adverse consequences as a result. Some people experience multiple inter-related problems that resist resolution unless the problem clusters are dealt with holistically. This has changed the way in which legal problems are viewed within socio-legal research and scholarship. The results of the contemporary body of legal needs research and the aspirational goals expressed within high level policy discourse in access to justice has set the higher bar for meeting the legal needs of the public. The task of expanding access to justice stretches the capacity of legal services providers beyond the funding available from traditional sources and beyond the skill sets normally resident in legal clinics.
Taking legal services as a starting point,<a href="#_ftn5" name="_ftnref5">[5]</a> democratizing justice can be accomplished using a number of strategies that have already been tried. First, it requires outreach. This means finding innovative ways to reach out to communities, learning from them in order to understand the problems being experienced by people, then working with those communities to find solutions that make sense for and to the people being helped. It means serving more people, serving people who might not otherwise receive help and assisting people with a range of problems that may be greater than the traditional menu of problems encompassed by coverage restrictions. It means establishing networks of access to justice services, so people can be referred to organizations with the skills and experience to deal with problems beyond the capacity of the legal service provider. It means partnering with community organizations that make up the social organizing of helping that exists in most communities. Collaborative partnerships might involve joined-up efforts to resolve multiple issues for individuals with complex problems. Importantly, it means discovering ways to connect with people who do not recognize they are experiencing problems that may have legal solutions. This can involve referrals from the trusted intermediary organizations to which people often turn first for help. This may require working with community organizations to give them the legal capability to identify potential legal need in their own clients and referring them to the legal services provider. Once established, outreach can create its own pathways as the service becomes alive and embedded in the community. This can involve observing how outreach evolves once set in motion, learning from the evolving strands of outreach how people learn about services available and responding to these new patterns, perhaps by locating the outreach where people will see it, reaching out through social media, appearing at community events, being in the community with the frequency and regularity that people begin to recognize the services as part of their community and a source of help like other services that are there when they need it. These are all elaborations and refinements of that guiding principle of taking justice out “to where people are at”.
One of the important accomplishments of the access to justice movement in decades past has been convincing governments that access to justice is the financial responsibility of the state. That was accomplished during a period in which access to justice rested solely on a rule of law rationale. Now the question: what is a legal problem? is open for debate. As thinking evolves about the nature of legal problems, about justice and access to justice and as aspects of well-being are added to the desired outcomes of access to justice services, we have cast the net wider and have made achieving access to justice a more daunting task. There is now no turning back to a perspective on access to justice that is an exclusively courts and lawyers narrative. In this emerging version of democratizing justice legal services providers are asked to take the lead and do more. Community groups who are already providing assistance to the same people who may require legal help are being asked to take some ownership of the justice problem. We are called upon to ask: whose problem is it? How will it be adequately resourced in a coherent way?
—
Ab Currie, Ph.D. 
Senior Research Fellow 
Canadian Forum on Civil Justice
____________________________________
<a href="#_ftnref1" name="_ftn1">[1]</a> Justice for All, The Report on the Task Force for Justice, Conference Version, Centre for International Co-operation, New York, 2019, www.justice.sdg16.plus
<a href="#_ftnref2" name="_ftn2">[2]</a> Organization for Economic Co-operation and Development, OECD Framework and Good Practice Principles for People-Centred Justice, OECD 2021, GOV/PGC(2021)26, https://www.oecd.org/governance/global-roundtables-access-to-justice/good-practice-principles-for-people-centred-justice.pdf
<a href="#_ftnref3" name="_ftn3">[3]</a> National Centre for Access to Justice and the Fordham Urban Law Journal, Access to Justice Solutions Symposium, February 9, 2024, Panel 3: The Movement to Democratize the Law, https://ncaj.org/news/you-are-invited-people-struggling-and-law-failing-what-are-solutions-access-justice-crisis
<a href="#_ftnref4" name="_ftn4">[4]</a> Hazel Genn, Paths to Justice, What People Do and Think about Going to Law, Oxford, 1999
<a href="#_ftnref5" name="_ftn5">[5]</a> Not necessarily the only perspective on democratizing justice. Supporting non-legal organizations with primary mandates to help people with problems such as domestic violence or housing by producing guides to the law and public legal information is one approach. Another is for legal clinics to provide secondary legal consultations to service providers in community service organizations and voluntary organizations assisting their own clients when they feel the problem may have legal issues.
The post <a href="https://www.slaw.ca/2024/04/11/democratizing-justice-whose-problem-is-it/">Democratizing Justice, Whose Problem Is It?</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>What if Access to Justice Was Never Going to Lead to Poverty Alleviation?</title>
<link>https://www.slaw.ca/2024/04/10/what-if-access-to-justice-was-never-going-to-lead-to-poverty-alleviation/</link>
<comments>https://www.slaw.ca/2024/04/10/what-if-access-to-justice-was-never-going-to-lead-to-poverty-alleviation/#comments</comments>
<dc:creator><![CDATA[Sarah A. Sutherland]]></dc:creator>
<pubDate>Wed, 10 Apr 2024 11:02:23 +0000</pubDate>
<category><![CDATA[Justice Issues]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106542</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
I recently read that when legal aid was first developed in the United States in the 1960s, its primary goal was alleviation of poverty rather than access to counsel. However, over time, some stakeholders, mostly on the conservative side of the political spectrum, expressed concern that this was an inappropriate goal for public policy. This led people working in the legal aid sector to rebrand their initiatives as access to justice.[1] The primary difference between framing initiatives as “access to justice” as opposed to “alleviation of poverty” being that access to justice has a goal of improving the legal system . . . <a href="https://www.slaw.ca/2024/04/10/what-if-access-to-justice-was-never-going-to-lead-to-poverty-alleviation/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/10/what-if-access-to-justice-was-never-going-to-lead-to-poverty-alleviation/">What if Access to Justice Was Never Going to Lead to Poverty Alleviation?</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> I recently read that when legal aid was first developed in the United States in the 1960s, its primary goal was alleviation of poverty rather than access to counsel. However, over time, some stakeholders, mostly on the conservative side of the political spectrum, expressed concern that this was an inappropriate goal for public policy. This led people working in the legal aid sector to rebrand their initiatives as access to justice.[1] The primary difference between framing initiatives as “access to justice” as opposed to “alleviation of poverty” being that access to justice has a goal of improving the legal system in ways that help everyone regardless of income. Whereas poverty alleviation is concerned with the legal and other needs of people whose primary issues relate to lack of financial and other resources instead of having issues that are primarily legal in nature.
Approximately 60 years later, we are still discussing and working toward access to justice. However, we often don’t clarify the difference between these two concepts. This makes many conversations in this space less clear than they may otherwise be, as in my experience access to justice initiatives are often criticized for not being sufficient to address the needs of people with the fewest economic resources. This can lead to good ideas being discarded as they don’t fit these alternate priorities.
Simultaneously, insufficient attention is paid to the particular needs of those in poverty. These people often have overlapping issues which make resolving their issues complex, as they are frequently not principally legal in nature, and legal representation, as legal aid is traditionally delivered, will not resolve their problems.
The income cutoff eligibility criteria for legal aid in most jurisdictions is so low that it is difficult to imagine that eligible recipients’ problems are predominantly legal in nature. Instead, it seems probable that their issues are more closely related to survival, with access to food, medical care, housing, and other necessities being more immediate concerns. This is not to say that legal means cannot or should not be deployed to help ensure that these needs are met, or that they shouldn’t have accessible ways to resolve their legal issues. But this is not commonly encompassed in the category of access to justice. For example, someone may be being evicted, which is a legal problem, but it is closely linked with economic scarcity and housing stability. The best solution for someone in the situation may not be legal advice, but rather financial assistance or policy reform.
That said, there are many people who need better ways to address their legal problems, and access to justice is an excellent paradigm to facilitate a reduction in conflict in our communities and to help people navigate the ways that their lives intersect with the state better. There is room for considerable change in the way the legal system is run to allow for resolutions to many problems that existing systems do not handle well. From usable forms to online courts to different models of legal services regulation there are many opportunities to provide more accessible resolution to people with legal problems. Initiatives like British Columbia’s Civil Resolution Tribunal, open publishing on platforms like CanLII, and advocacy for self-represented litigants all have room in access to justice.
Many people, however, will still not be adequately served by systems that require access to computers and other technology, advanced reading ability, and other social capital. Instead, they need people who will help them get what they need.
This conflation of these two sets of priorities and confusion of how initiatives will be valued limits our ability to advocate for both. Access to justice initiatives are not a failure if they do not resolve the problems of the most needy in our society. That is often not their primary purpose. Instead, they can be directed at people who are not always well served in the current environment that emphasizes the hiring of lawyers as representatives to achieve problem resolution and full court processes to resolve disputes. There are many people who may not have the funds needed to hire full service legal representation or need that level of service, but who can read well, and have access to computers and other initiatives, that can help them resolve their issues.
Access to Justice is not a failure if it solves the problems for these people. That said, there are many who will continue to have need of poverty alleviation and legal means are excellent tools to make sure that happens. It is appropriate for systems and services to be in place to help them get what they need. More people with legal problems identify concerns about issues like worrying lawyers will make a problem worse than say that they can’t afford legal assistance.[2] Finding better ways for people to navigate their interactions with the state and each other is a big tent, and there is room for diverse approaches. Let’s make sure we understand what we are discussing and not try to make every initiative fit all goals to be seen as a success.
[1] Charn, Jeanne. “Celebrating the ‘Null’ Finding: Evidence-Based Strategies for Improving Access to Legal Services.” Yale L.J. 122 (2013): 2206. <a href="https://www.yalelawjournal.org/essay/celebrating-the-null-finding-evidence-based-strategies-for-improving-access-to-legal-services">https://www.yalelawjournal.org/essay/celebrating-the-null-finding-evidence-based-strategies-for-improving-access-to-legal-services</a>. 
[2] Sutherland, Sarah A. “Uncovering Opportunities for Legal Services.” CBA/ABC The National, June 20, 2023. <a href="https://nationalmagazine.ca/en-ca/articles/law/access-to-justice/2023/uncovering-opportunities-for-legal-services">https://nationalmagazine.ca/en-ca/articles/law/access-to-justice/2023/uncovering-opportunities-for-legal-services</a>.
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<title>The Court of Owls… and Other Things That Mean Different Things to Different People</title>
<link>https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/</link>
<comments>https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/#respond</comments>
<dc:creator><![CDATA[Marc Bhalla]]></dc:creator>
<pubDate>Tue, 09 Apr 2024 11:00:18 +0000</pubDate>
<category><![CDATA[Dispute Resolution]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106579</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
Note: In this article, the term “culture” is used broadly and is intended to mean anything and everything related to one’s customs, beliefs, behaviours and habits attributable to the make-up of who they are. It embraces the concept introduced to the writer by legendary professor Michelle LeBaron which appreciates that each individual person subscribes to several different cultures. Any one person may have a cultural component of themselves attributable to their age, surroundings, work, etc.
<a href="https://www.linkedin.com/in/afsana-gibson-chowdhury-q-med-26875371/">Afsana Gibson-Chowdhury</a> is the founder of <a href="https://gcmediation.com/">Gibson Chowdhury, Clear Collaborative Mediation</a> and a renowned advocate for equity, diversity and inclusion among legal, dispute resolution and . . . <a href="https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/">The Court of Owls… and Other Things That Mean Different Things to Different People</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> Note: In this article, the term “culture” is used broadly and is intended to mean anything and everything related to one’s customs, beliefs, behaviours and habits attributable to the make-up of who they are. It embraces the concept introduced to the writer by legendary professor Michelle LeBaron which appreciates that each individual person subscribes to several different cultures. Any one person may have a cultural component of themselves attributable to their age, surroundings, work, etc.
<a href="https://www.linkedin.com/in/afsana-gibson-chowdhury-q-med-26875371/">Afsana Gibson-Chowdhury</a> is the founder of <a href="https://gcmediation.com/">Gibson Chowdhury, Clear Collaborative Mediation</a> and a renowned advocate for equity, diversity and inclusion among legal, dispute resolution and cross-sector professionals. In practice, Afsana has found it of paramount importance to address conflict that emerges through differing points of view early. This can minimize the potential of misunderstanding adding hostility, a risk ever more present when disputing parties lack shared cultural understanding. Afsana’s goal is to “create a safe environment where clients can openly share their views and explore themes of trust and security… drawing similarities can help parties to attach, and appreciate one another emotionally.” It takes an emotionally intelligent person to pick up cues and succeed in creating such shared understanding among parties in conflict.
Gibson-Chowdhury views it as part of the role of the process facilitator to notice and help parties overcome differing cultural views. In the collaborative process of mediation, such understanding is often essential to address a dispute. Establishing a secure space, absence of safety threats is key if a collaborative opportunity is going to be fully embraced. In adversarial proceedings, this understanding is an essential component of fairness. Those participating need to feel heard, objectively judged and offered the chance to put forth their best arguments.
Acknowledging variant cultural understandings is needed to overcome the challenges they bring. Contemporary dispute resolution process facilitators must be sympathetic and attuned to the potential impact of cultural differences amongst those they work with. The flexibility of private dispute resolution processes can help to overcome this, as can societal trends towards inclusion and greater understanding. Of course, obstacles exist on an institutional, systemic basis as well. This results in significant concerns related to fairness.
<a href="https://www.linkedin.com/in/imran-kamal-07218240/?originalSubdomain=ca">Imran Kamal</a> is a lawyer who is also a Board Member of the <a href="https://sabatoronto.com/">South Asian Bar Association of Toronto</a>. In discussing such obstacles, our conversation started with the classic consideration around eye contact during witness testimony. Imran and I have both worked with people who subscribe to the belief that looking someone with power in the eye is a sign of disrespect. Reconcile that with the notion that credibility and eye contact are related. The risk is that a decision maker may consider a witness uncredible for behaving in a manner the witness believes is conveying respect.
Beyond the formality of a hearing setting, a lack of shared cultural understanding can be problematic at all stages and levels of dispute resolution processes. By way of another example, touching – even a formal handshake – is seen by some as inappropriate and unprofessional. Appreciating that, it can be easy to see how an attempt to work through differences can end before it begins when someone is “left hanging” with their hand extended. They feel insulted while the receiver of the outstretched hand extended at them feels disrespected.
In search of answers for how to navigate varied etiquette between cultures of all types, many feel that there has historically been a view of conformity. That all who engage in conflict resolution in this part of the world are expected to abide by the practices of the once dominant culture. Kamal sees a default interpretation structure as problematic.
I feel that an important component of this consideration is that it goes both ways. We should not assume that others are familiar with the cultural nuances that are second nature to us. This includes not only etiquette but the meaning of symbols and related representations.
My favourite example of this is the <a href="https://perma.cc/2URH-FTQX">mascot</a> of the Supreme Court of Canada. Introduced in 2009, Amicus is a male-identifying owl whose role is to help draw attention to the court system and how it works; serving as a learning aid for educating younger generations.
Dominant society in Canada views owls as wise. That was not the case for me growing up. The term “ullu” was used as an insult within my friend group. The term means owl in Punjabi. It was used as an insult as the South Asian culture to which I subscribe has historically considered owls to be foolish animals (because they sleep all day and are awake at night). While that view may seem foreign to some, I offer Winnie the Pooh to help bridge the gap. The character <a href="https://winniethepooh.disney.com/owl">Owl</a> in the Disney films presents as a buffoon – unaware of the limits of their knowledge. Entertaining to children to be sure, but are those the traits we want to ascribe to the judges who sit on the nation’s highest court?
I am not certain that the intention of Amicus was to have the highest court of the land introduced by a court jester. While not everyone will view the mascot as an anthropomorphic fool, the lesson is to appreciate that we very much live in a society where varied cultures give rise to different interpretations. When it comes to resolving disputes, it is important to be mindful of the potential of this – to promote shared understanding and fairness.
This is not to suggest that dispute resolution practitioners must become fluent in hundreds of different cultures. The suggestion instead is about the importance of checking in on the assumptions we all too easily take for granted. Appreciate that not everyone shares our perspective and understanding. This awareness can help achieve the goal Gibson-Chowdhury suggests for our processes; fostering environments where “there is no devaluation of cultural, political or religious perspectives, and instead a mutual understanding of one another.”
The post <a href="https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/">The Court of Owls… and Other Things That Mean Different Things to Different People</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Anticipating AI-Generated Law Journal Submissions</title>
<link>https://www.slaw.ca/2024/04/08/what-to-do-about-ai-generated-law-journal-submissions/</link>
<comments>https://www.slaw.ca/2024/04/08/what-to-do-about-ai-generated-law-journal-submissions/#comments</comments>
<dc:creator><![CDATA[Annette Demers]]></dc:creator>
<pubDate>Tue, 09 Apr 2024 01:00:34 +0000</pubDate>
<category><![CDATA[Technology]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106640</guid>
<description><![CDATA[Last week, I was asked to provide a peer-review of an article submission to a law journal.
After reviewing it thoroughly, I began to suspect that at least some of the content may have been AI-generated.
What Gives?
First off, there were at least two citations that led to dead ends. By now we all know this is a dead give away.
Second, there was little to no language linking paragraphs together. So there might have been two or three paragraphs written on a distinctive topic, but no language to alert the reader that a new topic was about to . . . <a href="https://www.slaw.ca/2024/04/08/what-to-do-about-ai-generated-law-journal-submissions/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/08/what-to-do-about-ai-generated-law-journal-submissions/">Anticipating AI-Generated Law Journal Submissions</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[Last week, I was asked to provide a peer-review of an article submission to a law journal.
After reviewing it thoroughly, I began to suspect that at least some of the content may have been AI-generated.
<h3>What Gives?</h3>
First off, there were at least two citations that led to dead ends. By now we all know this is a dead give away.
Second, there was little to no language linking paragraphs together. So there might have been two or three paragraphs written on a distinctive topic, but no language to alert the reader that a new topic was about to be broached, nor how the topics fit together. 
Of course, we see this in student writing quite frequently, but it occurs to me that this is also may be a clue that AI has been used to draft individual paragraphs within a work.
<h3>What to do About it</h3>
So in addition to providing the article review, I also took a few moments to reach out to the editors. 
I mentioned to them that their Submission Guidelines may need to be updated to address the implications of AI.
I provided the same recommendations noted below to our other journal editors.
<H3>Surveying the Options</H3>
First, I think it is important for journal editors to have it on the radar that AI generated journal submissions are a distinct possibility.
This will require editorial boards to have a proactive conversation about how to handle such submissions.
In my mind, there are a few options available. Here is some language that editors might consider:
Option 1: Submissions shall not contain any AI generated content.
or
Option 2: 
Submissions should contain no more than ___% AI generated content. 
Such content should be thoroughly reviewed by the author to ensure accuracy and proper attribution of all source materials.
(Further details might need to be contemplated, so that the user understands what is an acceptable use and what isn’t. If using this option, then I’d highly recommend adding an additional requirement, as follows:)
Add-on to Option 2 / Option 3 
If submissions contain AI generated content, provide in a footnote for each AI-generated paragraph, the following information:
Name of AI | , version if available | . Prompt. | (Translation of prompt if applicable.) | (Developer | : host if different than developer | , date or date range of response). | URL if conversation publicly saved | (description of any additional prompts.)
Example:
ChatGPT, 3.5. Response to “why do citations of united nations documents include meeting information as well as a document number? It seems redundant.” (OpenAI, 12 January 2024). https://chat.openai.com/share/a41ec2d3-0362-4282-b15b-71654fb5302b (Further prompts to request sources of information provided in response.)
This citation format is borrowed from the draft Canadian Open Access Legal Citation Guide Group, Canadian Open Access Legal Citation Guide (CanLII, forthcoming 2024) (reproduced with permission).*
This final Option 3 could be used as a stand-alone guideline. It essentially does not restrict AI usage in any way, but instead requires attribution only.
<h3>Final Thoughts</h3>
For law librarians and others who are working with authors and editors, it will be our new responsibility to point out areas where AI generation may have impacts. 
To some who are reading this post, this may all seem inconsequential and bookish, however I would point out that our courts do frequently cite secondary material when finalizing their deliberations. Accordingly, having a fulsome discussion about the potential for gen-AI to infiltrate legal scholarship needs to be had in all circles.
By the by, in reviewing the various journal submission guidelines, I also recommended (as appropriate):
1. Moving to the 10th edition of McGill Guide for a citation standard (if an older version was required). 
2. Adopting the use of permanent URLS (such as those generated by <a href="https://perma.cc/" rel="noopener" target="_blank">Perma.cc</a>) (which is recommended by the McGill Guide). 
3. Removing personally identifying information from referee comments in a Word document by using “inspect document” option.
If you have other ideas for how to approach these issues and other similar issues that may arise in our workplaces, please comment below!
*My thanks to @James Bachmann, UBC Law Library and the COAL Group for allowing us this sneak peak. The COAL citation guide contains dozens of further elaborations and examples of how to attribute AI generated content.
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<title>Monday’s Mix</title>
<link>https://www.slaw.ca/2024/04/08/mondays-mix-551/</link>
<comments>https://www.slaw.ca/2024/04/08/mondays-mix-551/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Mon, 08 Apr 2024 11:00:21 +0000</pubDate>
<category><![CDATA[Monday’s Mix]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106708</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from more than 80 recent <a href="http://www.clawbies.ca/">Clawbie</a> winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
This week the randomly selected blogs are 1. <a href="https://pierreroy.com/blogue">PierreRoy & Associés</a> 2. <a href="https://www.osgoode.yorku.ca/research/research-centres-and-institutes/institute-for-feminist-legal-studies/">IFLS at Osgoode</a> 3. <a href="https://www.canadaemploymenthumanrightslaw.com/">Employment & Human Rights Law in Canada</a> 4. <a href="https://barrysookman.com/">Barry Sookmant</a> 5. <a href="https://meurrensonimmigration.com/">Meurrens on Immigration</a>
PierreRoy & Associés 
<a href="https://pierreroy.com/2024/03/responsabilites-administrateurs-dentreprise-ce-que-vous-devez-savoir/">Responsabilités d’administrateurs d’entreprise : ce que vous devez savoir</a>
Si vous êtes l’administrateur d’une entreprise aux prises avec des difficultés financières, vous . . . <a href="https://www.slaw.ca/2024/04/08/mondays-mix-551/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/08/mondays-mix-551/">Monday’s Mix</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from more than 80 recent <a href="http://www.clawbies.ca/">Clawbie</a> winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
This week the randomly selected blogs are 1. <a href="https://pierreroy.com/blogue">PierreRoy & Associés</a> 2. <a href="https://www.osgoode.yorku.ca/research/research-centres-and-institutes/institute-for-feminist-legal-studies/">IFLS at Osgoode</a> 3. <a href="https://www.canadaemploymenthumanrightslaw.com/">Employment & Human Rights Law in Canada</a> 4. <a href="https://barrysookman.com/">Barry Sookmant</a> 5. <a href="https://meurrensonimmigration.com/">Meurrens on Immigration</a>
PierreRoy & Associés 
<a href="https://pierreroy.com/2024/03/responsabilites-administrateurs-dentreprise-ce-que-vous-devez-savoir/">Responsabilités d’administrateurs d’entreprise : ce que vous devez savoir</a>
Si vous êtes l’administrateur d’une entreprise aux prises avec des difficultés financières, vous vous demandez probablement quelles seraient les répercussions sur vous personnellement advenant une faillite de l’entreprise. Nous tenterons ici de démystifier et de clarifier vos droits et vos responsabilités en tant qu’administrateur d’une entreprise au Québec. …
IFLS at Osgoode 
<a href="https://www.osgoode.yorku.ca/research/research-centres-and-institutes/institute-for-feminist-legal-studies/">Institute for Feminist Legal Studies</a>
The Institute for Feminist Legal Studies was established at Osgoode in the early 1990s to foster scholarship in feminism and law at Osgoode. We focus on a range of teaching and research activities, including: Visitors who enhance the work of Osgoode faculty and graduate students …
Employment & Human Rights Law in Canada 
<a href="https://www.canadaemploymenthumanrightslaw.com/2024/04/employment-law-101-workplace-harassment/">Employment Law 101: Workplace Harassment</a>
Complaints of harassment in the workplace continue to flourish across all industries. But what counts as “workplace harassment” and what are an employer’s obligations? This post will set out the basics. Workplace harassment is defined under the Ontario Occupational Health and Safety Act (OHSA) as a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. …
Barry Sookman 
<a href="https://barrysookman.com/2024/04/04/understanding-bill-c-27-from-the-indu-committee-review/">Understanding Bill C-27 from the INDU Committee review</a>
Bill C-27, the Act to enact the new privacy law (the CPPA) and the new law to regulate artifical intelligence (AIDA) has been the subject of much examination and debate including at the INDU Committee. The INDU Committee has now completed hearing from witnesses and has received numerous briefs commenting on the draft new laws. The INDU Committee has now published a list of witnesses that have appeared before it and has made available copies of the briefs filed with the Committee. This information can be accessed …
Meurrens on Immigration 
<a href="https://meurrensonimmigration.com/immigration-blog/">Borderlines Podcast #85 – Security Delays, Study Permits and Mandamus, with Lev Abramovich</a>
Lev Abramovich is an immigration lawyer in Toronto. There has been an increase in security screening in Canadian visa applications for residents of several countries. Chen v. Canada (Citizenship and Immigration), 2023 FC 885 is the first Federal Court of Canada decision to discuss mandamus in the study permit context. Lev was counsel in this …
 
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*Randomness here is created by Random.org and its <a href="http://www.random.org/lists/">list randomizing function</a>.
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The post <a href="https://www.slaw.ca/2024/04/08/mondays-mix-551/">Monday’s Mix</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Summaries Sunday: SOQUIJ</title>
<link>https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/</link>
<comments>https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/#respond</comments>
<dc:creator><![CDATA[SOQUIJ]]></dc:creator>
<pubDate>Sun, 07 Apr 2024 11:00:00 +0000</pubDate>
<category><![CDATA[Summaries Sunday]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106695</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Dans une affaire de violence conjugale et postconjugale, la juge de première instance a commis 2 erreurs de principe en omettant d’évaluer correctement le risque que l’imposition d’une peine avec sursis à l’accusé poserait pour la collectivité; une peine d’emprisonnement de 6 mois est substituée aux 10 . . . <a href="https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Dans une affaire de violence conjugale et postconjugale, la juge de première instance a commis 2 erreurs de principe en omettant d’évaluer correctement le risque que l’imposition d’une peine avec sursis à l’accusé poserait pour la collectivité; une peine d’emprisonnement de 6 mois est substituée aux 10 mois restants de la peine d’emprisonnement avec sursis imposée par la juge.
Intitulé : R. c. Gagnon, <a href="http://citoyens.soquij.qc.ca/ID=11877C700C2851DDA50219B4F988C816">2024 QCCA 343</a> 
Juridiction : Cour d’appel (C.A.), Québec 
Décision de : Juges Stephen W. Hamilton, Michel Beaupré et Éric Hardy 
Date : 19 mars 2024
Résumé
PÉNAL (DROIT) — détermination de la peine — infractions contre la personne — voies de fait — victime conjointe — accusé âgé de 53 ans — violence conjugale — interprétation de «ne met pas en danger la sécurité de la collectivité (art. 742.1 a) C.Cr.) — interprétation large — risque de récidive — critères à considérer — facteurs aggravants — mauvais traitement à l’égard d’un partenaire intime — mauvais traitement à l’égard d’une personne vulnérable (art. 718.04 C.Cr.) — vulnérabilité accrue des victimes de sexe féminin (art. 718.201 C.Cr.) — tentative d’étranglement en présence d’un enfant mineur — absence de facteurs atténuants — coup de poing porté à l’endroit d’une femme enceinte — ordonnance de purger sa peine dans la collectivité — condamnation avec sursis — cas inapproprié — appel — norme d’intervention — erreur de principe — substitution de la peine — détention — probation — détention provisoire — crédit à accorder — application du ratio de 1,5 jour crédité par jour de détention — interdiction de communication.
PÉNAL (DROIT) — détermination de la peine — infractions contre la personne — divers — harcèlement criminel — violence conjugale — harcèlement postconjugal — nouveau partenaire de l’ex-conjointe — accusé âgé de 53 ans — interprétation de «ne met pas en danger la sécurité de la collectivité (art. 742.1 a) C.Cr.) — interprétation large — risque de récidive — critères à considérer — facteurs aggravants — mauvais traitement à l’égard d’un partenaire intime — mauvais traitement à l’égard d’une personne vulnérable (art. 718.04 C.Cr.) — vulnérabilité accrue des victimes de sexe féminin (art. 718.201 C.Cr.) — absence de facteurs atténuants — ordonnance de purger sa peine dans la collectivité — condamnation avec sursis — cas inapproprié — appel — norme d’intervention — erreur de principe — substitution de la peine — détention — probation — détention provisoire — crédit à accorder — application du ratio de 1,5 jour crédité par jour de détention — interdiction de communication.
PÉNAL (DROIT) — détermination de la peine — principes généraux — nature des peines — ordonnance de purger sa peine dans la collectivité — condamnation avec sursis — cas inapproprié — interprétation de «ne met pas en danger la sécurité de la collectivité» (art. 742.1 a) C.Cr.) — interprétation large — risque de récidive — critères à considérer — dénonciation — dissuasion — violence conjugale — appel — erreur de principe — substitution de la peine — détention — peine concurrente — peine consécutive — voies de fait — harcèlement criminel.
Appel de la peine. Accueilli.
L’appelant se pourvoit à l’encontre d’un jugement de la Cour du Québec ayant condamné l’intimé à purger une peine d’emprisonnement totale de 18 mois avec sursis, suivie de 24 mois de probation, pour des infractions de harcèlement et de voies de fait commises à l’endroit de sa conjointe durant la vie commune et de harcèlement à l’égard de cette dernière et de son nouveau conjoint 6 ans après la rupture.
Décision
La juge de première instance a commis 2 erreurs de principe ayant eu une incidence sur la peine en omettant d’évaluer correctement le risque que l’imposition d’une peine avec sursis poserait pour la collectivité. Premièrement, elle a limité de façon déraisonnable la portée de ce terme en estimant que, puisque l’intimé avait commis les infractions à l’égard de sa conjointe dans un contexte conjugal, la collectivité n’était pas visée. Or, la sécurité du public ne concerne pas exclusivement la collectivité dans son ensemble: elle peut viser 1 seule personne. La juge a ainsi dénaturé le test applicable.
Deuxièmement, la juge n’a pas évalué le risque de récidive de l’intimé ou, à tout le moins, elle a omis d’accorder suffisamment d’importance à un cumul d’éléments pertinents. Or, même si l’on devait considérer qu’elle a pris en compte certains facteurs pour évaluer le risque de récidive de l’intimé, ce que la Cour ne conclut pas, ceux-ci ne suffiraient pas pour contrebalancer les facteurs défavorables et déterminants qui ont été retenus, dont la longue période infractionnelle, les antécédents judiciaires en semblable matière de l’intimé, les circonstances du harcèlement que celui-ci a fait subir à son ex-conjointe et au nouveau conjoint de cette dernière, son absence d’introspection et le fait qu’il est demeuré détenu durant son procès. Par ailleurs, la juge n’a procédé à aucune analyse de la gravité du préjudice susceptible de découler d’une récidive, à supposer qu’elle ait conclu à l’existence d’un tel risque, même minime.
Ces erreurs justifient l’intervention de la Cour. Concernant la gravité subjective et le degré de culpabilité morale de l’intimé, la juge a commis une erreur de principe en la qualifiant de «moyenne», et ce, sans faire de distinctions entre chacun des gestes infractionnels. Or, le degré de culpabilité morale de l’intimé en lien avec les voies de fait, y compris celles en lien avec le coup de poing qu’il a porté au ventre de la victime durant sa grossesse et sa tentative d’étranglement à son endroit, est élevé, notamment parce qu’elles sont survenues durant une longue période ponctuée d’autres gestes de violence physique.
Par ailleurs, la Cour doit prendre en compte le contexte de violence conjugale et postconjugale ainsi que l’importance des objectifs de dissuasion et de dénonciation en la matière, auxquels s’ajoutent les considérations associées à la vulnérabilité des victimes de violence conjugale de sexe féminin. Ces considérations revêtent par ailleurs une importance particulière lorsque des voies de fait sont commises aux dépens d’une femme enceinte.
En l’espèce, l’imposition d’une peine d’emprisonnement totale de 18 mois, soit 12 mois pour les voies de fait, 9 mois concurrents pour le harcèlement criminel commis durant la vie commune et 6 mois consécutifs pour le harcèlement ayant suivi la rupture, constitue une peine juste et appropriée. En ce sens, il y a lieu de substituer aux 10 mois de peine avec sursis qui doivent encore être purgés par l’intimé une peine de 9 mois d’emprisonnement. Celle-ci, après la prise en considération des jours de détention provisoire purgés par l’intimé, est ajustée à 6 mois.
Le texte intégral de la décision est disponible <a href="http://citoyens.soquij.qc.ca/ID=11877C700C2851DDA50219B4F988C816">ici</a>
The post <a href="https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Environmental Regulation Is Not “Constructive Expropriation”</title>
<link>https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/</link>
<comments>https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/#respond</comments>
<dc:creator><![CDATA[Annette Demers]]></dc:creator>
<pubDate>Fri, 05 Apr 2024 19:53:56 +0000</pubDate>
<category><![CDATA[Substantive Law]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106698</guid>
<description><![CDATA[On April 4, 2024, the Alberta Court of Appeal released its decision in <a href="https://www.canlii.org/en/ab/abca/doc/2024/2024abca105/2024abca105.html" rel="noopener" target="_blank">Altius Royalty Corporation v Alberta, 2024 ABCA 105 (CanLII)</a>.
The appellants own a royalty interest in a coal mine. In 2014 they acquired royalty interests in the Genesee coal mine. This coal fuels the Genesee power plant in Alberta. 
By 2012 federal performance standards, the end of life of the three coal-fired plants was determined to be 2039, 2044 and 2055 (para 3).
They claim their interest was constructively expropriated (paras 2 and 5) when the government of Canada amended the regulations to require the . . . <a href="https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/">Environmental Regulation Is Not “Constructive Expropriation”</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[On April 4, 2024, the Alberta Court of Appeal released its decision in <a href="https://www.canlii.org/en/ab/abca/doc/2024/2024abca105/2024abca105.html" rel="noopener" target="_blank">Altius Royalty Corporation v Alberta, 2024 ABCA 105 (CanLII)</a>.
The appellants own a royalty interest in a coal mine. In 2014 they acquired royalty interests in the Genesee coal mine. This coal fuels the Genesee power plant in Alberta. 
By 2012 federal performance standards, the end of life of the three coal-fired plants was determined to be 2039, 2044 and 2055 (para 3).
They claim their interest was constructively expropriated (paras 2 and 5) when the government of Canada amended the regulations to require the performance standard for coal-fired plants to be met no later than 2030 and the government of Alberta introduced its Climate Leadership Plan to phase out coal-fired electricity generation emissions by 2030 (para 4).
“In 2018, the appellants filed a statement of claim against the respondents, Canada and Alberta, alleging they had constructively expropriated their royalty interest without compensation.” (para 5)
The application was summarily dismissed; see: <a href="https://www.canlii.org/en/ab/abqb/doc/2021/2021abqb3/2021abqb3.html" rel="noopener" target="_blank">Altius Royalty Corporation v Alberta, 2021 ABQB 3 (CanLII).</a>
That decision was upheld on appeal to a chambers judge; see: <a href="https://www.canlii.org/en/ab/abqb/doc/2022/2022abqb255/2022abqb255.html" rel="noopener" target="_blank"> Altius Royalty Corporation v Her Majesty the Queen in Right of Alberta, 2022 ABQB 255 (CanLII)</a>.
“At issue in this appeal is the first requirement in the CPR/Annapolis test: an acquisition of a beneficial interest in the property or flowing from it, or as stated in Annapolis, an acquisition of an advantage in respect of private property. Here, the appellants assert the advantage flowing to governments is “avoided healthcare and environmental expenses”. They seem to say that because the governments assigned a dollar figure to the healthcare and environmental benefits, the alleged advantage is a proprietary one.” (Appeal, para 29)
Ultimately, the Court of Appeal upheld the lower courts’ decisions, stating: 
“Like Canada, Alberta received no advantage flowing from the appellants’ property. The appellants submit Alberta received benefits of the sort described in Canada’s Regulatory Impact Analysis Statement. But for the same reasons set out above, such public benefits do not satisfy the requirement that the Crown in right of Alberta acquired an advantage resulting from its actions.” (para 40).
Ecojustice was party to the appeal and has <a href="https://ecojustice.ca/news/constructive-taking-or-constructive-faking-when-regulations-stop-them-polluting-some-landowners-are-suing-for-millions/?utm_campaign=Breaking%20news&utm_medium=email&_hsenc=p2ANqtz-8edtm8UOkttZ63CuQFg4qSoiV9VKIP7j0oGUqNAOSxbjOSA5eiCXxunL8HukfS1zrzldq4RWSHGOVkTH21B2vSphNC0Q&_hsmi=301307080&utm_content=301307079&utm_source=hs_email" rel="noopener" target="_blank">commentary explaining the trial decision</a> and the <a href="https://ecojustice.ca/news/ecojustice-reacts-to-alberta-court-of-appeal-decision-on-constructive-taking-case/?utm_campaign=Breaking%20news&utm_medium=email&_hsenc=p2ANqtz--hWzftKibwG8P8ldfQJ_kEyOunGeP9NCmPGW6QMV9ixyXiuLs_FIZYJM7nTnWQvf-sPxskzfRTqAF5RTxAp6_sKp84lg&_hsmi=301307080&utm_content=301307079&utm_source=hs_email" rel="noopener" target="_blank">appeal decision</a>.
They also note that another “constructive expropriation” case is awaiting a ruling from the Supreme Court of Canada brought forward by the Lynch family of Newfoundland on a water regulation matter: 
<a href="https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=40302" rel="noopener" target="_blank">City of St. John’s v Wallace Lynch, et al (judgement reserved or rendered with reasons to follow, 16 November 2023, 40302).</a>
The post <a href="https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/">Environmental Regulation Is Not “Constructive Expropriation”</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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<title>Friday Jobs Roundup</title>
<link>https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/</link>
<comments>https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Fri, 05 Apr 2024 19:18:26 +0000</pubDate>
<category><![CDATA[Friday Jobs Roundup]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106697</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, or <a href="https://jobs.slaw.ca/about/">learn how you can use Slaw Jobs</a> to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at Slaw.ca.
Current postings on Slaw Jobs:
<ul>
<li><a href="https://jobs.slaw.ca/job/director-of-policing-oversight-and-accountability/">Director of Policing, Oversight and Accountability</a> | Head Office in Westbank or any Indigenous Justice Centre, Canada 
(BC First Nations Justice Council)</li>
<li><a href="https://jobs.slaw.ca/job/family-lawyer-chilliwack-bc/">Family Lawyer</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
<li><a href="https://jobs.slaw.ca/job/accountant-chilliwack-bc/">Accountant</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group </li>
</ul>
 . . . <a href="https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/">Friday Jobs Roundup</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> <div class="content-wrap">
Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, or <a href="https://jobs.slaw.ca/about/">learn how you can use Slaw Jobs</a> to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at Slaw.ca.
Current postings on Slaw Jobs:
<ul>
<li><a href="https://jobs.slaw.ca/job/director-of-policing-oversight-and-accountability/">Director of Policing, Oversight and Accountability</a> | Head Office in Westbank or any Indigenous Justice Centre, Canada 
(BC First Nations Justice Council)</li>
<li><a href="https://jobs.slaw.ca/job/family-lawyer-chilliwack-bc/">Family Lawyer</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
<li><a href="https://jobs.slaw.ca/job/accountant-chilliwack-bc/">Accountant</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
</ul>
</div>
The post <a href="https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/">Friday Jobs Roundup</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
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