Another One Bites the Dust! Bolstered Law Offices and a Blocked Taxman in Chambre des notaires du Québec

In Canada (Attorney General) v. Chambre des notaires du Québec the Supreme Court once again vigorously defended a lawyer’s obligation to preserve confidential client information. The Court’s recent interest in solicitor-client privilege is significant. Since 2006, the Court has heard at least 10 cases dealing with solicitor-client privilege, about the same number it heard during that period related to each of sections 15 and 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”). The Court’s language in these cases reinforces the perception that the Court views solicitor-client privilege as extraordinarily important. Among other things, the Court has described solicitor-client privilege as “one of the most ancient and powerful privileges known to our jurisprudence” and as having an “importance…to our justice system [that] cannot be overstated.

A New Lens: Reframing the Conversation about the Use of Video Conferencing in Civil Trials in Ontario

The state of courtroom technology in Ontario is increasingly capturing the attention of both the public and the legal profession. This article seeks to contribute to the conversation on this issue by focusing on one particular technology in Ontario’s courtrooms: the use of video conferencing to receive witness testimony in civil trials. The central claim is that the approach to video conferencing that dominates the policy discourse reflects an overly narrow, instrumentalist view of technology that fails to adequately take account of possible broader political and social implications as well as this technology’s transformative potential. This argument is developed by exploring two different sources of risk associated with the implementation of video-conferencing technology in civil trials: (1) how video conferencing, as a mediating technology, may unintentionally interfere with credibility assessments and emotional connections between courtroom participants; and (2) the ways in which video conferencing, by disrupting the physical geography of adjudication, threatens the solemnity associated with, and respect given to, the civil justice system. A detailed consideration of these risks reveals that video conferencing engages fundamental questions about our civil justice system and implicates democratic values in ways that require more nuanced consideration in conversations about its use. Rather than offer a final verdict on the use of video conferencing in civil trials in Ontario, this article concludes by calling for deeper and broader discourse on this issue. This discussion should include all stakeholders in a conversation about if and how video-conferencing technology should be incorporated into our civil justice system

A New Lens: Reframing the Conversation about the Use of Video Conferencing in Civil Trials in Ontario

The state of courtroom technology in Ontario is increasingly capturing the attention of both the public and the legal profession. This article seeks to contribute to the conversation on this issue by focusing on one particular technology in Ontario’s courtrooms: the use of video conferencing to receive witness testimony in civil trials. The central claim is that the approach to video conferencing that dominates the policy discourse reflects an overly narrow, instrumentalist view of technology that fails to adequately take account of possible broader political and social implications as well as this technology’s transformative potential. This argument is developed by exploring two different sources of risk associated with the implementation of video-conferencing technology in civil trials: (1) how video conferencing, as a mediating technology, may unintentionally interfere with credibility assessments and emotional connections between courtroom participants; and (2) the ways in which video conferencing, by disrupting the physical geography of adjudication, threatens the solemnity associated with, and respect given to, the civil justice system. A detailed consideration of these risks reveals that video conferencing engages fundamental questions about our civil justice system and implicates democratic values in ways that require more nuanced consideration in conversations about its use. Rather than offer a final verdict on the use of video conferencing in civil trials in Ontario, this article concludes by calling for deeper and broader discourse on this issue. This discussion should include all stakeholders in a conversation about if and how video-conferencing technology should be incorporated into our civil justice system

Judging by the Numbers: Judicial Analytics, the Justice System and its Stakeholders

This article considers the future of judicial analytics, its possible effects for the public, the judiciary and the legal profession, and potential responses to the rise of judicial analytics in Canada. Judicial analytics involves the use of advanced technologies, like machine learning and natural language processing, to quickly analyze publicly-available data about judges and judicial decision-making. While, in Canada, judicial analytics tools are as yet at the early stages of development and use, such tools are likely to become more powerful, more accurate and more accessible in the near-to-medium future, resulting in unprecedented public insight into judges and the work of judging. This article identifies benefits of mainstreamed judicial analytics, including increased transparency into the work of judging, and risks flowing from the rise of judicial analytics, including the propagation of inaccurate or misleading information about judges. In light of these benefits and risks, the article identifies voluntary third-party certification and the production of credible public tools as meaningful responses to the rise of judicial analytics and calls on judicial regulators to consider how information made available through judicial analytics tools may influence their work. Cet article examine l’avenir de l’analyse judiciaire, ses effets possibles sur le public, la magistrature et la profession juridique, et les réponses possibles à la montée de l’analyse judiciaire au Canada. L’analyse judiciaire implique l’utilisation de technologies avancées, comme l’apprentissage automatique et le traitement du langage naturel, pour analyser rapidement les données accessibles au public au sujet des juges et des décisions judiciaires. Bien qu’au Canada, les outils d’analyse judiciaire n’en soient encore qu’aux premiers stades de développement et d’utilisation, il est probable que ces outils deviendront plus puissants, plus précis et plus accessibles dans un avenir proche ou moyen, ce qui permettra au public d’avoir une vision sans précédent des juges et de leur travail. Cet article identifie les avantages de l’analyse judiciaire généralisée, notamment la transparence accrue du travail des juges, et les risques découlant de l’essor de l’analyse judiciaire, notamment la propagation d’informations inexactes ou trompeuses au sujet des juges. À la lumière de ces avantages et de ces risques, l’article identifie la certification volontaire par une tierce partie et la production d’outils publics crédibles comme des réponses significatives à l’essor de l’analyse judiciaire et appelle les régulateurs judiciaires à considérer comment les informations rendues disponibles par les outils d’analyse judiciaire peuvent influencer leur travail

Literacy Requirements of Court Documents: An Underexplored Barrier to Access to Justice

Court forms are complex. Canadians have told researchers this in numerous studies to date. For individuals who can afford lawyers, court form complexity may result in few if any adverse consequences as the legal professionals representing them have the experience and training to navigate these documents with relative ease. The story is different, however, for the increasing number of individuals who end up representing themselves in court because they cannot afford a lawyer. For those individuals – commonly referred to as “self-represented litigants” or “SRLs” – court form complexity can be a major barrier to accessing justice. As a practical matter, if SRLs have difficulty in understanding or completing a court form, their legal rights may be compromised. Complexity can lead to mistakes in completing court forms or, in some cases, even be so challenging or demoralizing that an individual may choose not to pursue or defend a claim. Systemically, court form complexity can lead to significant delay if court staff and judges need to spend time explaining court forms or dealing with the consequences of incorrectly filled out forms. The stakes are high

A Mixed Bag: Critical Reflections On The Revised Ethical Principles For Judges

In 2021 the Canadian Judicial Council completed a multi-year review and update of Ethical Principles for Judges (EPJ), the ethical and professional guidance for all federally-appointed judges in Canada. The revisions address issues such as case management and settlement conferences, technological competence and the use of social media, interactions with self-represented litigants, professional development for judges, confidentiality, and the return of former judges to the practice of law. In this article, five directors of the Canadian Association for Legal Ethics/Association canadienne pour l’éthique juridique analyze the revised EPJ and offer their observations. The article covers five important topics. On impartiality, it explains the ways in which the revised EPJ represents a significant evolution in the understanding of this important concept. The article then critically examines the absence of any reference to Reconciliation. On judicial involvement with the community, it argues that the revised EPJ may lead judges to disengage from community activities to an unwarranted degree and critiques the scope of new provisions requiring judges to avoid visible signals of support for causes or views. On judicial technological competence, the article endorses new obligations but cautions that these developments will have to be supported by significant resources to provide appropriate training and guidance on best practices. On confidentiality and return to practice, the article welcomes the new provisions while highlighting some additional issues including avenues for enforcement

Another One Bites the Dust! Bolstered Law Offices and a Blocked Taxman in Chambre des notaires du Québec

In Canada (Attorney General) v. Chambre des notaires du Québec the Supreme Court once again vigorously defended a lawyer’s obligation to preserve confidential client information. The Court’s recent interest in solicitor-client privilege is significant. Since 2006, the Court has heard at least 10 cases dealing with solicitor-client privilege, about the same number it heard during that period related to each of sections 15 and 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”). The Court’s language in these cases reinforces the perception that the Court views solicitor-client privilege as extraordinarily important. Among other things, the Court has described solicitor-client privilege as “one of the most ancient and powerful privileges known to our jurisprudence” and as having an “importance…to our justice system [that] cannot be overstated.

Positivist Legal Ethics Theory and the Law Governing Lawyers: A Few Puzzles Worth Solving

Debates about the proper boundaries of a lawyer’s role are far from new. A fresh spin on this old debate, however, has emerged with the positivist turn in legal ethics theory. While in legal theory scholarship the label positivism carries various nuances and controversies, its use in the legal ethics context is, as a general matter, more straightforward and uniform. Broadly speaking, positivist accounts of legal ethics share a general view that the law owes its normative content to its ability to solve coordination problems and settle moral controversies. This view of the law, in turn, informs a particular view of the lawyer as governed in her actions by the legal entitlements at issue, as opposed to, for example, considerations of morality or justice writ at large.Because the positivist account grounds a theory of legal ethics in respect for the law, it seems safe to assume that the law governing lawyers is properly viewed as playing a central role in this account. Stated otherwise, the same fidelity to law that lawyers must exhibit when, for example, interpreting tax codes to advise clients on structuring financial transactions is presumably also required when a lawyer is interpreting how the rules of professional conduct apply to her situation. What has not been given much, if any, attention is how the law governing lawyers is different from other types of law and how this difference may be consequential for the positivist account. The law governing lawyers does not simply have the status of law (and therefore, assumes a central role in the positivist account), it also addresses the same subject matter — the proper bounds of lawyer behavior — that legal ethics theory itself purports to address. As a consequence, two of the typical questions or challenges lobbied at positivist accounts of law — what to do when: (1) following the law leads to unpalatable outcomes; or (2) the law at issue contains moral terms — give rise to some outstanding questions in the case of positivist legal ethics theory. Below, some very preliminary thought is given to how these puzzles might be solved. Ultimately, however, the main goal of this Idea is to highlight these issues as ripe for further consideration and critique