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A round-up of the Canadian Bar Review

Here’s a quick peek at the latest from legal scholarship on emerging issues in law.

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Confronting the sexual assault of teenage girls

The ‘mistake of age defence,’ as it relates to sexual offences against under-aged juveniles, “should only succeed in rare circumstances,” argue Isabel Grant and Janine Benedet, of UBC.

Focusing on sexual assault against girls, they remind us that the defence should work only where the accused honestly believed that the complainant was above the age of consent and took all reasonable steps to ascertain her age.  The problem is that there are far too many cases where assumptions are made about the complainant’s age based on stereotypes that “do not accord with the reality of adolescent behaviour or development for many girls.” And too often the courts are endorsing this line of reasoning, write the authors.

“The accused should not be able to rely on the complainant’s apparent familiarity with sex to support his mistaken belief in age claim,” write the authors. “If the accused learns this from the sex acts he is engaging in with the complainant, the sexual assault is already underway. The accused cannot rely on a belief in age developed after the fact. It also ignores the fact that, given the prevalence of child sexual abuse, familiarity with sex acts tells us nothing useful about someone’s age.”

Can the courts order the Crown to spend public monies?

Micah B. Rankin, of Thompson Rivers University, challenges the widespread belief that courts cannot order the Crown to spend public funds.  This is an issue that many consider settled by the 1924 Privy Council ruling Auckland Harbour Board v. The King.  Noting that the question has “been a source of perennial legal controversy” since that time, Rankin argues that Canadian courts have nevertheless misunderstood the decision. This isn’t to say that courts can order a legislature to appropriate monies. But he doesn’t take that to mean that courts are necessarily prohibited from ordering the legislative branch “to spend funds that Parliament has already appropriated.”  Situating the Auckland Harbour Board ruling in its historical context, he reviews its application in Canada, and invites the courts to re-examine “their authority to make funding orders in appropriate circumstances.”

TWU and the law societies’ public interest mandate

Alice Woolley (University of Calgary) and Amy Salyzyn (University of Ottawa) consider whether law societies can adequately fulfill their mandate to regulate in the public interest when benchers make policy decisions about public interest issues.  In particular, they draw some lessons from the Canadian law societies’ response to Trinity Western University seeking approval of its law degree. The issue led to two decisions by the Supreme Court of Canada, which upheld the right of the law societies of B.C. and Ontario to reject TWU law school graduates because of TWU’s mandatory covenant requiring students to abstain from sex outside of heterosexual marriage. Though the authors agree with the outcome in the ruling,  they question whether law societies really have the expertise to decide on matters that balance conflicting rights and freedoms. They conclude that current law society decision-making structures need to be revisited. Specifically, they call upon governments to better articulate the law societies’ public interest mandate and to remove the use of referenda in law society decision-making.

Canada’s military lawyers

Andrew Flavelle Martin (UBC) examines the relationship and tension between the Judge Advocate General and the Minister of Justice.  He notes that “a defining characteristic for military lawyers is the tension between their obligations as military officers and their obligations as lawyers,” and draws a parallel to government lawyers who are delegates of the Attorney General. Military lawyers, on the other hand, are delegates of the Judge Advocate General, which helps explain why the relationship between the Minister of Justice and the JAG can get tricky.  The author recommends several legislative changes to address some potential conflicts. Specifically, he suggests that lawmakers clarify whether the Minister of Justice has an equal or supervisory role to the JAG.

A question of loyalty

For his part, John Mark Keyes (University of Ottawa) examines the duties of loyalty that public sector lawyers owe to their government clients.  Keyes focuses specifically on the 2018 ruling by the Federal Court of Appeal in Schmidt v Canada. The case involved Edgar Schmidt, the whistleblower and senior government lawyer who sought a declaration against the Minister of Justice (in whose department he had been employed) for failing to properly review the constitutionality of draft legislation and ensuring that government bills are consistent with the Charter and the Canadian Bill of Rights.  Keyes argues the court was wrong to recognize that Schmidt had a sufficient interest to seek a declaration, mainly because it should have given more consideration to his relationship to the government as both a lawyer and a public servant. According to the author, the “uncertainty that characterizes many aspects of the law, particularly as it relates to public policy, and the role of the courts in resolving these uncertainties, argue that public sector lawyers must respect and support choices made by the government officials they advise in all but the clearest circumstances of illegality.”

Divorcing without involving a judge

Jeffrey Talpis (Université de Montréal) discusses a French law, adopted in 2017, that allows for divorce without involving a judge. Talpis focuses in particular on its cross-border application in various foreign jurisdictions, namely in Canada and Quebec. According to Talpis, the French model of divorce without a judge is not something that should be imported into Quebec.

Judging the reliability of scientific evidence

Limiting the introduction of scientific evidence into civil proceedings has become a major issue in modern procedural law, writes Gabriel Stettler.  The challenge is the massive amount of technical expert evidence, in this day and age, that courts are called upon to hear.  But expert evidence is costly drag on limited resources, and it is paralyzing legal decision making and hindering court proceedings. According to Stettler, the legal systems of North America have taken a novel approach to limiting the admissibility of scientific evidence by having the reliability of the evidence assessed by a judge, who has effectively become a “gatekeeper of scientific evidence.” But should judges, untrained in science, really be applying that standard to the evidence?