The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Criminal justice

The risks in fixing jury selection in Canada

By Yves Faguy February 20, 2018 20 February 2018

The risks in fixing jury selection in Canada

Alice Woolley has an interesting post up on the ethical duties of jurors in the wake of the acquittal, by a jury on which seemingly sat no Indigenous Canadians, of Saskatchewan farmer Gerald Stanley in the killing of Colten Boushie, a member of the Red Pheasant First Nation.

Did the Stanley jurors act unethically? On the one hand, there is reason to be concerned that they may have done. The evidence against Stanley was so significant, and the evidence for this having been an accident that occurred despite his proper handling of the firearm so weak, the decision to acquit of manslaughter seems on its face unreasonable. One can speculate about the role of racial bias and stereotypes in the jury’s reasoning, and whether it simply refused to apply the law, preferring instead the position that killing is justified when people come on your property and make you afraid – i.e., that they refused to apply the law not as the conscience of their community, but because they disagreed with applying it here.

On the other hand, the lawyer for the Bouchie family, Chris Murphy, has said “…the jurors took an oath to render a fair and just verdict. Based on the evidence they heard, the submissions made and the charges that the judge gave to the jury, a route of acquittal was a possibility.” If the evidence admitted raised a reasonable doubt in the jury’s mind, and the jury acquitted on that basis, their decision was proper, whether or not we agree with it.

In my view it’s simply impossible to know whether the Stanley jurors acted unethically. But the certain lesson to be learned here is that we need to ensure our juries are representative of the community, that we provide them proper instructions so that they understand their powers and how to exercise them, that we allow them to explain themselves, and that we treat them with the respect and consideration they deserve. Jurors do have ethical duties; it’s our job to help ensure they satisfy them.

Do read the whole thing.

A. Scott Reid, meanwhile, also has a must-read up – a primer of sorts on peremptory challenges in jury selection. Noting that peremptory challenges (not having to give a reason for excluding a potential juror) in criminal trials are a necessary “failsafe” when the triers get a challenge for cause wrong.  He warns there are no easy fixes the system:

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Legal technology

Global Legal Hackathon kicks off this week

By Yves Faguy February 19, 2018 19 February 2018

Global Legal Hackathon kicks off this week

 

A global legal hackathon is taking place on February 23-25 in a bid to help tackle some of the legal industry’s big data challenges. Talented tech, information, design and legal professionals are invited to gather in hubs in 40 cities around the world to combine ideas and technology to build concepts and solutions that address business and practice of law challenges and access to justice opportunities.

Teams are competing for one of ten spots in the world finals, which will take place on April 21st in New York.

“Many within and outside the legal profession have been advocating for the role of technology and outside expertise as essential to helping the profession take on law’s thorniest challenges,” says Colin Lachance, the CEO for Compass, a Canadian legal research platform and country lead for vLex Canada, which is supporting the event.

In Ottawa, collaborators from Invest Ottawa, Compass / vLex Canada, the University of Ottawa’s law faculty and its Programme de Pratique du Droit, among others, will converge on Bayview Yards for the weekend to form teams to build apps and innovations aimed at solving a particular problem, whether they are inefficiencies that contribute to unaffordable legal services or obstacles to accessing legal information and understanding.

Other participating Canadian cities include Montreal, Toronto, Calgary and Vancouver.

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Legal marketplace

Alternative legal services: A catch-22 for law firms

By Yves Faguy February 7, 2018 7 February 2018

Alternative legal services: A catch-22 for law firms

The recent Thomson Reuters 2017 Alternative Legal Service Study reports that alternative legal services providers (ALSPs) have grown into a $US 8.4 billion global industry:

The largest component of the market consists of independent LPOs and e-discovery and document review service providers, at $6.2 billion. The Big 4’s legal services units and contract lawyer and staffing services have another $900 million in revenue each. Captive LPOs and Managed Legal Services are smaller segments in terms of revenue.

By comparison, the total of all US law firm revenues is about $275 billion, and we estimate total global legal spending to be around $700 billion. ALSPs have clearly not swamped the incumbent players. But at $8.4 billion and growing, ALSPs represent one of the most dynamic segments of the legal services industry and they are likely to continue to play a role as competitors and disruptors for years to come.

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The Supreme Court

The new Chief Justice on not taking our judicial institutions for granted

By Yves Faguy February 5, 2018 5 February 2018

The new Chief Justice on not taking our judicial institutions for granted

On the occasion of his official welcome ceremony, Chief Justice Richard Wagner remarked how, in today’s media environment, there are far fewer reporters assigned to cover the Supreme Court of Canada as their primary beat.

That reality, he says, presents challenges to his court in communicating with Canadians, particularly at a time marked by the explosion of social media, and a growing distrust in institutions.

The Chief Justice has been building up to the theme. Last week speaking at the University of Western Ontario's faculty of law, he promised greater transparency at the Supreme Court, as he announced it will publish plain language case summaries on its website and on Facebook, to help Canadians understand its rulings.

Echoing previous statements made by his predecessor, Beverley McLachlin, he has been warning against taking “our democratic assets” for granted in Canada.

Acknowledging that the Supreme Court building is “an architectural gem,” he was quick to point out that “it is no ivory tower,” and that it belongs to Canadians. "We just work here for them."

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Rule of law

Rule of Law index shows worrying trends amid some bright spots

By Yves Faguy January 31, 2018 31 January 2018

Rule of Law index shows worrying trends amid some bright spots

 

The US-based World Justice Project has released its 2017-2018 Rule of Law Index.

Canada’s overall score remains unchanged at 0.81, compared to 2016, ranking 9th globally (up three spots) — which is heartening.  More worrisome is that scores have fallen in 38 out of 113 countries since 2016. Among them, the Philippines dropped 18 places, and Poland dropped 3 places, in large part because attacks on the independence of the judiciary, but also deteriorations in criminal justice, fundamental rights and open government.  Overall, more countries saw their scores fall (34 per cent) than rise (29 per cent).

"We are witnessing a global deterioration in fundamental aspects of the rule of law" said William H. Neukom, WJP founder and CEO.

On the more positive side, Ghana has demonstrated progress as it now ranks first among African countries (43 globally), edging out South Africa (44). Croatia (33) made notable gains in open government and civil justice. Constraints on government power improved considerably in Argentina (46). France also saw significant improvements in several areas, including order and security, and regulatory enforcement. It ranks 18th globally, ahead of the U.S., which dropped one spot, having suffered setbacks in the category of fundamental rights, where it fell five spots.

Sitting atop the rankings are Denmark, Norway and Finland, in that order. The worst scores were found in Afghanistan (111), Cambodia (112), and Venezuela (113).

Check out the interactive map here.

 

 

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