Thursday, October 16, 2014

5 Qs for prospective Benchers #law #yeg #yyc

The legal profession in Alberta is governed by the Law Society of Alberta, which in turn is governed by a board of directors-like body called the "Benchers."

There is currently an election going on to select the representative of the legal profession who will sit as Benchers for the coming term.

To that end, I thought I'd publish a list of questions I'm interested in hearing answers on.  If any of the Benchers run across it, I'd be happy to have their answers.

1. The Law Society of Alberta has as one of its strategic objectives the promotion of retention and diversity and inclusion of lawyers toward the goal of access to justice.  Since the attrition rate for female lawyers in private practice is three times the attrition rate for male lawyers, do you agree that the law society should acknowledge that this problem affects women disproportionately, and take steps to address that inequity?  What steps would you recommend?  Do you believe that retention of women lawyers in private practice should be a formal Performance Measure for the Law Society?

2. Do you believe that the Law Society's regulation of law firms should not advantage entrenched corporate entities, and that rather than dictating expensive means, law society regulations should specify desired outcomes, and allow individual lawyers to find the most efficient means of achieving those outcomes?

3. Do you believe that sole practitioners and small firms are disproportionately impacted by regulations of every type, and that sole practitioners and small firms, as the largest part of private practice lawyers, should be the first hypothetical against which the appropriateness of all proposed regulation is tested?  Do you believe that sole practitioners and small firms are adequately represented in the LSA's governance structure?

4. What do you think the law society's approach should be with regard to advising lawyers on new technologies? Should the law society proscribe and endorse certain technologies, or be technologically agnostic - provide information on risks and benefits, both practical and ethical, and allow clients and lawyers to make informed choices?

5. Do you believe the resources that the law society spends educating, supporting, and assisting lawyers in adhering to best practices are appropriately balanced with the resources that the law society spends disciplining members for failing to adhere to those practices?

Friday, October 03, 2014

"Uhhhh... what?" A response to 2014 SCC 59 #scc #law

So according to the Supreme Court of Canada, the right to access the superior courts is found in section 96 of the constitution, by implication. Which means that it is not subject to being overridden by legislation, like the measly common law right of reasonable access we had until now; and it is not subject to being overridden by reasonable limits in a free and democratic society, like the rights in the Charter of Rights and Freedoms (piddly things like life, expression, and the right to vote).  It is now as sacrosanct as the exclusivity of the federal government's right to raise a military.

Just to take a single real-world example, what might this mean for provincially enacted section 96 court rules regarding, say... limitation dates?  Those pesky rules that say if you are going to sue, you have to do it by a certain time?

Is that an infringement of your right to access the courts?  Well yes, in the now traditional sense of the infringement of rights under the Charter.  But if we're talking about section 96... the question is not about your rights, it's about jurisdiction, and becomes something like: are limitation dates in pith and substance a restriction on access to the courts, or in pith and substance a matter pertaining to the administration of courts?

Constitutional law just got old-school. At least paramountcy won't come up, because the courts don't legislate.  I mean, yet.  Goodness knows what else is in section 96, I guess.

OK, let's try this again.  So section 92 gives the provincial government the right to administer the court system, but not the ability to do anything in administering the court system that would constitute an infringement on the jurisdiction granted to the superior courts under section 96, which jurisdiction includes the right of individuals to access those courts?  Uhhhh... what?

This is hard to unpack. Analogy time.  Jurisdictions are like national borders, right?  You control what is inside them, you don't control what is outside them.  And so the right of access to the courts in this analogy would be like the right to visit another country.

So, by analogy, it is a violation of the territorial integrity of the United States if I can't afford to go there.

No, I'm still lost.  Does anyone else understand what is going on?

Friday, September 19, 2014

Clio sets a new standard in Technology Customer Service

So here's a thing that just happened.

I discovered that Clio works with Zapier, which is an IFTTT-esque service.  I discovered that Zapier could automate some of the steps that I take when I open a new file in order to connect my gmail archiving script to my google drive.  A bunch of steps.  Annoying ones.

But... there was something missing.  The information that I could get out of Clio was just not quite right.

Wednesday, September 17, 2014

Will Premier Prentice help @LegalAidAlberta?

I was pointed by a friend to Justice Minister Denis' mandate letter from the new Premier.

Mr. Denis is one of only four Ministers to maintain their post after the swearing in of Mr. Prentice as Premier on Monday.

Mr. Denis has, until now, been comfortable blaming the federal government for the state of Legal Aid's finances.  The federal government may be obliged to contribute more.  But I am not satisfied that is an excuse to allow people to go without representation in court.

It appears the Premier has made adequate funding of Legal Aid one of Minister Denis' new top four or five or six priorities.

Hopefully Mr. Denis has been informed that the status quo is unacceptable, and that he expects the minister to take action, not merely make excuses.  We'll see.

As a first step, Minister Denis could immediately take on financial responsibility for the representation of individuals for whom Rowbotham applications are granted.  Just a thought.

Tuesday, September 16, 2014

Can Delusional Schizophrenics Consent to Sex?

The CBC has been reporting on the case of Kirsten Lamb. Paula Simons, who I follow on Twitter, also made some comments about the case bringing it to my attention. Ms. Lamb suffers from schizophrenia, and was found unfit to stand trial for the murder of her mother, who it is alleged she killed in 2010.

When she appeared at court for the trial of her fitness, she was pregnant, and the court was informed that she was due to give birth in November of this year.  That would mean she became pregnant while on a secure unit at Alberta Hospital Edmonton, where she still resides.  She has evidently declined to inform anyone of the identity of the father.

There has been a well-meaning, but I believe misguided reaction to this news.  It is best exemplified by this line from the second CBC story, attributed to ethics consultant Laura Shanner.

Shanner said the pregnancy raises questions of consent, noting that a severely delusional schizophrenic could not provide informed consent to sex.
It would be horrific if Ms. Lamb had been victimized once by her disease, and once more by a sexual predator.  That much is certain.  What is not certain, at least not to me, is that you can take "severely delusional" people, and say categorically that they cannot consent to sex.  I don't think that's correct, either legally or ethically.

Legally, capacity is specific.  You can write a will if you have capacity to write a will.  You can make your own medical decisions or financial decisions if you have the capacity to make those specific sorts of decisions.  Broadly speaking, the concern is whether the person is capable of understanding the consequences of their choices, and whether they are capable of understanding the things that they need to know to make those choices.

There is nothing about "severely delusional" that suggests that a person must not understand the consequences of choosing whether or not to have sex, or must not know what they need to know in order to make that decision.

It could mean they don't, of course. Many women have delusions of being pregnant when suffering the effects of schizophrenia.  If that delusion caused a woman to believe that she could not get pregnant because she already was, then she may not be capable of making the decision, because she doesn't understand the information she needs to understand in order to make that decision.  But that would depend on the facts.  Which is the point.  It should be on a case-by-case basis that we decide capacity, not on the basis of mental illness, regardless of how severe.

Beyond it being legally incorrect, we have a history in this province of making very bad mistakes when it comes to the sexuality of the mentally ill.  There was, at one time uncomfortably recent, a policy of sexual sterilization of people with mental illness.  A blanket policy, even if well intended, that "you are mentally ill, therefore you cannot consent to sex" ventures dangerously close to the same sort of prejudiced and uninformed attitudes that allowed those mistakes to occur.

So while I respect the concern that people have expressed for Ms. Lamb's situation, and when the specifics are known it may in fact be shown that she was taken advantage of, nothing that has been reported by the CBC so far tells us what we need to know.

In the absence of specifics, we must be careful of casually denying the mentally ill their rights "for their own good."