Law Commons^™

The Borders Of Responsibility, The Democratic Intellect, And Other Elephants In The Room, Liam Mchugh-Russell

Dalhousie Law Journal

What can André Zucca’s photos, taken during the Nazi occupation of Paris, tell us about the law to come or the challenges it will pose to lawyers, legal scholars and legal educators? In short: Zucca’s photos serve not just as a cipher for a past in need of reckoning but as a caution about abiding a present in which crisis is always just out of frame. In the throes of slow-motion apocalypse, what should an intellectual be? And for whom? In 80 years, when someone is rifling through an attic shoebox of our history, will we appear like the subjects …

Anchoring Lifeline Criminal Jurisprudence: Making The Leap From Theory To Critical Race-Inspired Jurisprudence, Danardo S. Jones

Dalhousie Law Journal

This article takes as a starting point the claim that anti-Black racism permeates Canadian society and finds expression in our institutions, most notably the criminal justice system. Indeed, anti-Black racism in criminal justice and its impact on Black lives are not credibly in dispute. Thus, what should concern legal scholars is the staying power or permanence of racism. In other words, should Canadian legal scholars ‘get real’ about the intractability of race? Or can anti-Black racism be effectively confronted by developing legal and evidentiary tools designed to fix, rather than dismantle, the current system? Put another way, this article aims …

Loyalty, Conscience, And Withdrawal: Are Government Lawyers Different?, Andrew Martin

Articles, Book Chapters, & Popular Press

There is a growing recognition that the core concepts and specific rules of legal ethics can have unusual and even unique implications for government lawyers. In this short essay, I examine how loyalty, conscience, and withdrawal apply to government lawyers. I argue that while government lawyers should be slower than lawyers in private practice to exercise their professional discretions to withdraw from a matter, they must be particularly ready to withdraw when unavoidably required – despite any selfless dedication to the ideal of a non-partisan public service.

The Continuing Application Of Gladue Principles In The Professional Discipline Of Indigenous Lawyers: A Comment On Law Society Of Ontario V Mccullough, Andrew Martin

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While Gladue principles have previously been applied in the professional discipline of Indigenous lawyers, the recent decision of the Law Society Tribunal in Law Society of Ontario v McCullough affirms and applies those precedents in new and powerful ways. In this case comment, I explain the ways in which McCullough is important in its application of Gladue principles and consider what questions remain to be settled in future decisions.

Law Society Regulation And The Lawyer-Academic, Andrew Flavelle Martin

Dalhousie Law Journal

Can, and should, law societies regulate and discipline lawyers for their teaching and research? This article explores these largely overlooked but critically important questions in order to establish a foundation for further debate and discussion by lawyers, legislators, and law societies. It argues that professionalism precludes only low-value teaching and research—teaching and research with little pedagogical or epistemic value such that it is unlikely or unworthy to be protected by academic freedom—and that any chilling effect on lawyer-academics comes as much from uncertainty as from actual danger of regulatory consequences. The author concludes that law societies and other stakeholders should …

The Stubborn Persistence Of The Lawyer Exemption In Canadian Collective Bargaining Legislation, David J. Doorey

Dalhousie Law Journal

In 1948, the Canadian government introduced transformative collective bargaining legislation that would serve as a template for provincial labour law in the postwar period. However, some employees were excluded entirely from this legislation, including employees in five professions, law among them. By the 1970s, the federal government and most provinces had repealed the professional exclusion from the primary collective bargaining legislation. However, four jurisdictions—Ontario, Alberta, Nova Scotia, and Prince Edward Island (Exclusionary Provinces)—have stubbornly preserved the exclusion. This essay traces the history and justifications proffered for the lawyer exclusion from Canadian collective bargaining legislation from the 1940s to present day. …

Legal Ethics For Government Lawyers: Confronting Doctrinal Gaps, Andrew Martin

Articles, Book Chapters, & Popular Press

Despite the recent growth in the Canadian literature on legal ethics for government lawyers, the leading conceptual models have yet to be applied to resolve many of the most important legal questions facing government lawyers. In this article, I identify four key situations where the obligations of government lawyers as lawyers appear to clash with their obligations as public servants. I provide both a doctrinal analysis of how the current law applies in those situations and proposals for how the law can be clarified and improved. This analysis both provides much needed guidance to government lawyers and promotes a greater …

Book Review: Amal Clooney & Philippa Webb, The Right To A Fair Trial In International Law (Oup, 2020), Robert Currie

Articles, Book Chapters, & Popular Press

Good lawyering, then, is required to maintain the fairness of trials, but good lawyering requires effective tools that can assist counsel in helping the contours of fairness be made apparent and cognizable before domestic courts. Translating international human rights law for the purposes of domestic application, in particular, is by no means an easy task, but this new text – The Right to a Fair Trial in International Law – provides lawyers with a formidable resource.

Introduction: Disciplining Judges – Exercising Statecraft, Richard Devlin, Sheila Wildeman

Articles, Book Chapters, & Popular Press

Globally, countries are faced with a complex act of statecraft: how to design and deploy a defensible complaints and discipline regime for judges. In this collection, contributors provide critical analyses of judicial complaints and discipline systems in thirteen diverse jurisdictions, revealing that an effective and legitimate regime requires the nuanced calibration of numerous public values including independence, accountability, impartiality, fairness, reasoned justification, transparency, representation, and efficiency.

The jurisdictions examined are Australia, Canada, China, Croatia, England and Wales, India, Italy, Japan, the Netherlands, Nigeria, Poland, South Africa, and the United States. The core findings are four-fold. First, the norms and practices …

The Duty Of Legislative Counsel As Guardians Of The Statute Book: Sui Generis Or A Professional Duty Of Lawyers?, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Legislative counsel—those who draft legislation for the executive or for legislative assemblies—are largely overlooked in the Canadian legal literature and case law. One respect in which legislative counsel appear to be unique is their duty as guardians or keepers of the statute book. This article argues that this Guardian duty is best understood as a professional duty of legislative counsel as lawyers. In the same way that all lawyers have professional duties as officers of the court, though these duties are most relevant to litigators, all lawyers have professional duties as officers of the statute book, though these duties are …

The Premier Should Not Also Be The Attorney General: Roncarelli V Duplessis Revisited As A Cautionary Tale In Legal Ethics And Professionalism, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

From time to time, a Premier or Prime Minister appoints themself as Attorney General. In this article, I argue that this dual portfolio is inherently and incurably problematic and should be avoided and indeed prohibited. I do so from the perspective of legal ethics and professionalism. The springboard for my analysis is the conduct of Quebec Premier and Attorney General Maurice Duplessis in the classic case of Roncarelli v Duplessis. While there may well be perceived benefits that tempt Premiers to serve in the dual role, any lawyer who does so unavoidably violates his or her professional obligations. For …

Billing Without Bilking: Regulating Time-Based Legal Fees, Noel Semple

Dalhousie Law Journal

The billable hour is the most common method for calculating legal fees in Canada. Codes of conduct state that time-based fees must be “fair and reasonable” and “disclosed in a timely fashion,” but provide very little additional guidance. Throughout a time-based retainer, lawyers and clients are confronted with ethical ambiguity. This creates both opportunities for exploitation and conflicts of interest.

This article argues that clear rules and efficient procedures are required to determine what specific billing and disclosure practices are “fair,” “reasonable,” and “timely.” Detailed rules are already replacing vague standards for contingency fees, and time- based fees should move …

The Government Lawyer As Activist: A Legal Ethics Analysis, Andrew Martin

Articles, Book Chapters, & Popular Press

Can a lawyer and government employee represent the government in her professional life while being an activist in her personal life? There is a striking and seemingly irreducible clash, at least at the intuitive level, between the two roles – between representing the government on the one hand while at the same time lobbying it or litigating against it on the other. Government lawyers are nonetheless some of the more successful activists in recent Canadian history. This article analyzes whether this duality is problematic from a legal ethics perspective. The analysis is grounded in three case studies: disability rights activist …

Folk Hero Or Legal Pariah? A Comment On The Legal Ethics Of Edgar Schmidt And Schmidt V Canada (Attorney General), Andrew Flavelle Martin

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In Schmidt v Canada (Attorney General), government lawyer Edgar Schmidt sought a declaration that the Department of Justice and the Minister of Justice were misinterpreting legislation requiring the Minister to inform the House of Commons if government bills are inconsistent with the Canadian Charter of Rights and Freedoms. Schmidt was one of the lawyers who made recommendations under that legislation. Schmidt thus presents an unusual case study in legal ethics: what should, or can, a lawyer do when a client rejects the lawyer’s advice? What if the client is the government, and the advice is about fundamental rights? This …

Evidence, Rollie Thompson

Articles, Book Chapters, & Popular Press

“Evidence” is what, in our adversary system, the parties attempt to place before the neutral factfinder in order to prove their case (or disprove their opponent's case). We follow the principle of party-presentation: parties determine what specific items of evidence are offered for proof, while the impartial judge or decision maker will determine which items are “admissible” evidence, in accordance with principles of law. At the end of the trial or hearing, the fact-finder (jury, judge, tribunal, decision maker) will determine which of those admissible items of evidence are believed or not, in formulating “fact-guesses” or “findings of fact”.

Constitutional Law, Jodi Lazare

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The materials below are the study outlines from the July 2020 and January 2021 Bar Examinations. The materials are not intended to provide legal advice, and should not be relied upon by articled clerks, transfer applicants, lawyers or members of the public as a current statement of the law.

Please note: The Bar Review Materials are updated every three years. They were last updated on May 1, 2020.

The Politics Of Regulating And Disciplining Judges In Nigeria, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The disciplining of judges is a sensitive and complex challenge. In Nigeria, the complexity is heightened because the process is complicated by socio-political factors and public views about the motivations for disciplining some judges, including claims of political interference by the ruling government. This Chapter argues that both judicial discipline and the work of the National Judicial Council (NJC) – the body responsible for judicial regulation in Nigeria – are caught up within Nigeria’s peculiar socio-politics, a reality that a strictly legal analysis will miss. The Chapter analyzes contemporary challenges and controversies associated with the complaints and discipline procedure in …

New Brunswick Needs A Public Inquiry Into Systemic Racism In The Justice System: Nova Scotia Shows Why, Naiomi Metallic

Articles, Book Chapters, & Popular Press

No abstract provided.

Searching For A Summary Judgment Equivalent In Quebec Procedural Law, Kathleen Hammond

Dalhousie Law Journal

The summary judgment is a procedural mechanism that is meant to improve the efficiency of civil litigation by allowing a judgment to be delivered in a summary way, and without the need for a full trial. It is seen as an important tool for dealing with the growing problem of access to justice in Canada. Reform to Ontario’s summary judgment rules in 2010, and a liberal interpretation of the Ontario rules in the case of Hryniak v Mauldin, 2014, have led to a greater reliance by parties on summary judgment motions in Ontario. This trend is also apparent in other …

A Less Private Practice: Government Lawyers And Legal Ethics, Jennifer Leitch

Dalhousie Law Journal

Government lawyers are public servants and legal professionals. How they differ from private lawyers has much to do with whom they purport to represent and how they exercise power as a lawyer. I will look at a particular case-study—the St. Anne’s Residential school adjudication. This case study illustrates the challenges that government lawyers face in fulfilling their professional duty within a traditional private lawyer framework. St. Anne’s Residential School involved some of the most egregious physical, sexual and psychological abuse of Indigenous children between 1941 and 1972. St. Anne’s Residential School litigation is used as a cautionary (and truly tragic) …

The Implications Of Federalism For The Regulation Of Federal Government Lawyers, Andrew Flavelle Martin

Dalhousie Law Journal

The implications of Canadian federalism for the regulation of lawyers for the federal government are largely overlooked in the literature and case law. This article argues that employees of the federal government can practice law without being licensed by the corresponding provincial law society (or any law society). However, if they happen to be licensed by a law society, they can be disciplined by that law society—unless and until Parliament adopts legislation immunizing them from law society discipline. The article also considers the possibility that Parliament could create a separate bar for federal government lawyers. It concludes that some form …

The Daily Work Of Fitting In As A Marginalized Lawyer, Kim Brooks

Articles, Book Chapters, & Popular Press

Despite increased public dialogue about the need for inclusion, marginalized lawyers adjust their behaviour to “fit” in their legal workplaces. In this article, the author presents the results of interviews with lawyers in Canada who self-identify as belonging to a marginalized group based on race, ethnicity, Indigeneity, gender or sexual identity, working-class background, and/or disability. Based on these interviews, the author advances a taxonomy of the five strategies employed by these lawyers to fit in to their workplaces: covering strategies, compensating strategies, mythologizing strategies, passing strategies, and exiting strategies. Marginalized lawyers employ covering strategies, which may be appearance-, affiliation-, advocacy-, …

Train Wrecks: 3m National Teaching Fellows Explore Creating Learning And Generative Responses From Colossal Failures, William B. Strean, Patrick T. Maher, Kim Brooks

Articles, Book Chapters, & Popular Press

We all fail. We also like to look good and avoid looking bad. So, even though we know that taking risks and trying new approaches are important for enhancing our teaching and students’ learning (Strean, 2017), we rarely talk about our failures. Our claim in this paper is that our insecurities create a substantial barrier to improving and enriching our teaching practices. If we do not find time to take big risks, and then to explore and critically reflect on failures that result sometimes from those risks, we lose out on the chance to become better teachers; more fundamentally, we …

Legal Ethics And Canada's Military Lawyers, Andrew Martin

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English Abstract: Military lawyers—lawyers who are legal officers in the Canadian Forces— are virtually ignored in the Canadian legal literature. This article assesses what appear to be the most striking potential legal ethics issues facing military lawyers. Several of these issues arise because military lawyers are both lawyers and military officers at the same time, and therefore face two sets of obligations that interact in complex ways. Some issues, however, arise because of the special practice contexts of military lawyers, for example, advising military commanders on the law of armed conflict. As context for this discussion, the article examines the …

Government Lawyering: Duties And Ethical Challenges Of Government Lawyers, Andrew Flavelle Martin

Dalhousie Law Journal

Are government lawyers different than lawyers in private practice? If so, why does it matter? While these questions have been addressed piecemeal in the Canadian legal ethics literature, Elizabeth Sanderson's Government Lawyering: Duties and Ethical Challenges of Government Lawyers is the first comprehensive and long-form answer to them.1 As Adam Dodek hints in the foreword 2 and has noted elsewhere,3 the degree to which government lawyers have been overlooked in the Canadian legal literature is incongruent with their sheer numbers as a proportion of the legal profession in Canada. The need for this book is pronounced.

Legal Ethics And The Political Activity Of Government Lawyers, Andrew Martin

Articles, Book Chapters, & Popular Press

The ability to engage in political activity is an essential feature of a democratic society. However, the ability of government lawyers to do so is unclear. While most governments have passed legislation identifying permissible political activity of their employees, it is unclear how the professional obligations of lawyers apply in this context and how these professional obligations interact with this legislation. This article answers these questions. The duty of loyalty to the client requires most government lawyers to refrain from all political activity at the same level of government. The special professional obligations of Crown prosecutors require these lawyers to …

The Year In Spousal Support: Appeals, Material Changes And More, Rollie Thompson

Articles, Book Chapters, & Popular Press

At last year’s Family Law Summit, after reviewing the 2016 appeal cases, I focussed my presentation on two SSAG issues: location in the ranges for amount and duration; and the SSAG exceptions. 2016 was a big year for SSAG cases in the Ontario Court of Appeal, notably the decision in Mason v. Mason, 2016 ONCA 725. Mason joins the three other “must-read” SSAG appeal decisions: Fisher v. Fisher, 2008 ONCA 11; Cassidy v. MacNeil, 2010 ONCA 218; and Gray v. Gray, 2014 ONCA 659.

2016 was also the year of the release of the Revised User’s Guide, an updated user’s …

Orphans No More: A Review Of Elizabeth Sanderson, Government Lawyering: Duties And Ethical Challenges Of Government Lawyers, Andrew Martin

Articles, Book Chapters, & Popular Press

Elizabeth Sanderson’s Government Lawyering: Duties and Ethical Challenges of Government Lawyers is the first comprehensive and long-form assessment of why government lawyers are different than lawyers in private practice and why that difference matters. This book review essay begins by setting out Sanderson’s position on a few concepts key to legal ethics for government lawyers: a definition of government lawyers, an account of the duties that apply to them, and the identity of the client. It then goes on to highlight the book’s four major contributions: an emphasis on the role of the Deputy Attorney General as an interface between …

Dirty Laundry: Judicial Appointments In Canada, Richard Devlin

Articles, Book Chapters, & Popular Press

The issue of the appointment of judges is not a freestanding problem. Rather, as Adam Dodek and I have argued, it is part of a larger public policy puzzle, the challenge of designing an appropriate regulatory regime for judges. Any description, analysis, assessment or critique of judicial appointments processes necessarily requires the development and deployment of some conceptual framework. Sometimes such a framework is implicit or taken for granted. However, in our opinion, it is better if we can make that framework—that paradigm—explicit because we can then more clearly understand the nature of the evaluative process in which we are …

Of Lodestars And Lawyers: Incorporating The Duty Of Loyalty Into The Model Code Of Conduct, Colin Jackson, Richard Devlin, Brent Cotter

Dalhousie Law Journal

The "conflicts quartet" ofcases decided by the Supreme Court of Canada can be understood as part of a long-standing tension in Anglo-Canadian jurisprudence between two competing conceptions of a lawyer's professional identity In the most recent of these cases, C.N. Railway v. McKercher, the Supreme Court conclusively preferred the loyalty-centred conception of the practice of law over the entrepreneurial conception. While the Federation of Law Societies of Canada amended its Model Code of Professional Conduct in 2014 in response to the Supreme Court's decision in McKercher, this article argues that those amendments did not go far enough. The authors propose …