Copyright has several rules which apply automatically. If an employee creates a work in the scope of employment, and absent an agreement to the contrary, the employer is the first owner of the copyright in the work.^[1] The Ontario Court of Appeal had occasion to focus on what is meant by the words ‘in the scope of employment’ in Nexus Solutions Inc. v. Krougly, 2026 ONCA 199.

At trial, the Court held that the employer, Nexus Solutions, did not establish that the software in question was created by Krougly ‘in the scope’ of employment, even though Krougly secretly developed it while he was employed by Nexus and the software competed with Nexus’s software. Nexus raises several issues in its appeal. It argues that the trial Court erred “by requiring Nexus to show that it had specifically directed Krougly to develop the software at issue before it could succeed in claiming copyright pursuant to s. 13(3)”.

The Court of Appeal found that none of the alleged errors were made, and its analysis illuminates the meaning of the critical term ‘in the course’ of employment.

Background

Nexus is a software development firm that develops and markets a continuous emissions monitoring system (“CEMS”) software product called CEMView, which monitors and reports the compounds in smokestack emissions produced by heavy industry.

Krougly was an employee hired as a senior software developer to write source code for CEMView.

Several years before he left Nexus, Krougly began surreptitiously developing a competing CEMS software that was named “Limedas”, standing for “Live Measurement Data Acquisition System”. Krougly continued the development of Limedas until he resigned from Nexus, effective January 4, 2011. Following his resignation, he attempted to commercially market Limedas, including to some of Nexus’s customers.

Nexus discovered this activity and commenced legal action, raising several claims, including that it owned the copyright in Limedas as the work was developed ‘in the course of’ employment with Nexus.

The trial judge held that the factors relevant to the assessment of whether a work was created ‘in the course’ of employment were set out in the caselaw as follows:

(i) the terms of the contract of employment;

(ii) where the work was created;

(iii) whether the work was created during normal office hours;

(iv) who provided the materials for the work to be created;

(v) the level of direction provided to the author;

(vi) whether the author can refuse to create the work; and

(vii) whether the work is “integral” to the business.^[2]

The trial judge was not convinced that Nexus had established that these factors applied in the instant case. He found that the relevant factors were:

(1) There were certain similarities between CEMView and Limedas, since both programs were designed to collect, store, display, and report emissions monitoring data and used similar communication protocols to communicate with and acquire data from physical devices in smokestacks called “analyzers”. However, there were also substantial differences, including the fact that their source codes were different, and the algorithms they used and data they acquired were dissimilar. Krougly did not copy any substantial portion of CEMView in creating Limedas;

(2) The bulk of Krougly’s work in developing Limedas was done outside normal business hours and did not involve the use of Nexus property;

(3) Krougly’s primary role at Nexus was to develop the company’s existing CEMView software and he was not permitted to create any other software for Nexus without receiving prior authorization. Had Nexus become aware that Krougly was developing Limedas, his employment at Nexus would have been terminated;

(4) Krougly did not have a written contract of employment, and there was no written agreement that prohibited Krougly from working on his own projects on his own time, or allocated ownership of anything that he might create, whether during Nexus’s time or his own personal time;

(5) The development of CEMS was squarely within Krougly’s duties at Nexus, and had he been ordered to develop a program such as Limedas, he would have been required to do it. However, Krougly was not asked or directed to develop the software akin to that used by Limedas, and his work in creating it was not at the direction or within the control of anyone at Nexus. Krougly’s work on Limedas, although intimately related to the work he was doing at Nexus, was clearly a side venture;

(6) Nexus did not bargain for, or expend resources for the development of Limedas; and

(7) Nexus did not assume any major financial, organizational, or associative risks involved in the creation, production, and distribution of Limedas.^[3]

The Court of Appeal held that the purpose of the exception in section 13(3) of the Copyright Act is “premised on the determination that the employer ought to hold copyright over works that were made by the employee as part of their responsibilities to the employer. The supporting rationale is that the employee was paid to make the work and did so in fulfillment of their agreed role with the employer.”^[4]

While the factors set out in Penhallurick cited by the trial Judge may be relevant, the Court of Appeal held that the overriding issue is “whether the making of the work in question is something that the employee was asked or expected to do, either expressly or by necessary implication, as part of their employment responsibilities.”^[5]

The Court of Appeal articulate the test as follows:

The fact that an employer could require an employee to carry out a task is a necessary, but not a sufficient condition for that task to fall within the employee’s course of employment. Whether or not the task falls within the employee’s course of employment depends on whether the employer has actually assigned responsibility to the employee to carry out the task or perform the function in question. At the same time, the employer need not have specifically directed the employee to produce a particular work for that work to have been made in the course of employment. What is necessary, however, is that the employee’s actual (as opposed to potential) responsibilities included making the work.^[6] {Emphasis in original]

The Court of Appeal addressed the argument that Nexus argued that it was an error to require it to show some consideration flowing to Krougly for making Limedas stating that:

Nexus misconstrues the larger point the trial judge was trying to make, which is simply that Nexus did not expend resources to support the development of Limedas. This is why the trial judge regarded it as relevant that Krougly was being paid “the same salary he was being paid prior to starting Limedas on his own time”. In other words, because Krougly did not receive any increase in compensation when he began developing Limedas, and he undertook this work almost entirely on his own time and using his own equipment while still working full-time in his existing role with Nexus, Nexus did not fund the creation of Limedas by paying Krougly’s salary or otherwise. Read in context, this is all the trial judge was attempting to convey in his “bargain for” comment.^[7]

In conclusion, the Court of Appeal found there was no overriding or palpable error made by the trial judge and refused the appeal.

Lessons

There are important lessons for software developers from the decision.

An agreement to the contrary is contemplated by the wording in Section 13(3), and a developer would be wise to employ a well-crafted agreement setting out the rights of the employer and employee, the ownership of intellectual rights in work product and whether or not the employee could develop competing software. By directing the parties to consider these issues would serve to help them be aware of the possibilities of problems and, through agreement, avoid the problems.

________________

^[1] See Section 13(3) Copyright Act

^[2] See Nexus Solutions Inc. v. Krougly, 2026 ONCA 199 at para 10 relying on Penhallurick v. MD5 Ltd., [2021] EWHC 293 (IPEC), aff’d [2021] EWCA Civ 1770.

^[3] See Nexus Solutions Inc. v. Krougly, 2026 ONCA 199 at para 11.

^[4] See Nexus Solutions Inc. v. Krougly, 2026 ONCA 199 at para 27.

^[5] See Nexus Solutions Inc. v. Krougly, 2026 ONCA 199 at para 29.

^[6] See Nexus Solutions Inc. v. Krougly, 2026 ONCA 199 at para 34.

^[7] See Nexus Solutions Inc. v. Krougly, 2026 ONCA 199 at para 48.

The post Scope of Employment appeared first on Slaw.

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

How to Account for Trauma and Emotions in Law Teaching. Edited by Mallika Kaur & Lindsay M. Harris. Cheltenham, U.K.: Edward Elgar, 2024. ix, 214 p. Includes index. ISBN 9781035307043 (hardcover) US$130.00.

Reviewed by Alexia Loumankis
Reference and Research Librarian
Bora Laskin Law Library, University of Toronto

In How to Account for Trauma and Emotions in Law Teaching, editors Mallika Kaur and Lindsay M. Harris have compiled a collection of chapters that challenge the traditional mindset that legal education must be detached, objective, and unemotional. They provide thought-provoking strategies for integrating trauma-informed and emotionally intelligent practices into law classrooms.

Kaur and Harris, both experienced legal educators and clinicians, open the book with a chapter that proposes a shift from the avoidance of trauma and emotions in the classroom to the pedagogical acceptance of them. They advise that trauma-informed pedagogy is both ethically necessary and practical in diverse legal courses. Not only does it make legal education more intellectually and emotionally rewarding for teachers and students, but it also better prepares law students for the emotional realities of legal practice, ultimately making them better lawyers. In this first chapter, the editors also outline their philosophy for the book. They explain that while the content is anchored in theory, the book is not a manual or mental health guide. Finally, they acknowledge that there are myriad ways of approaching trauma and emotion in legal education; therefore, their aim is to provide law teachers with a variety of strategies to address trauma in the classroom and embed emotional intelligence within their teaching.

This intention helps unify the later chapters, which examine an assortment of pedagogical methods and legal subject areas in classrooms and clinics from the U.S., Canada, and the Netherlands. The contributors represent a diverse group of legal scholars, clinicians, and educators who draw on expertise in clinical practice, doctrinal teaching, Indigenous legal traditions, and experiential learning.

For readers unfamiliar with the subject of trauma in education, the chapter “From Trauma to Transformation: Trauma-informed Pedagogy in Law School,” written by Angela P. Harris and Monika Batra Kashyap, is a welcome introduction. The authors ably situate the theory of trauma-informed pedagogy within current legal education and align it with the “social model” of disability, which emphasizes that trauma is a product of one’s social environment. They explore what it means to view legal teaching through the lens of trauma and how curricula, classroom practices, and institutional cultures can change accordingly.

While many of the book’s chapters focus on areas of law to which students’ emotional reactions may seem obvious, such as intimate-partner violence, criminal law, and human rights law, there are also chapters on areas of law that one may not initially consider emotional. For example, Anna Lund’s chapter “Teaching Trauma and Hope in Debtor-Creditor Law,” which compellingly argues that even the usually technical subject of judgment enforcement law can be taught through a trauma-informed approach. Lund describes how and why she has her students examine a sexual-abuse judgment enforcement decision to illustrate how trauma relates to debtor-creditor law, while also encouraging student agency, solidarity, and consideration of just economic futures. Lund demonstrates how trauma-informed teaching can enrich even doctrinal courses.

Many of the chapter authors candidly reflect on both the successes and missteps they have encountered in adopting trauma-informed approaches, offering examples of what has worked well in their classrooms and clinics and where their practices fell short. By acknowledging these challenges alongside their achievements, they present trauma-informed pedagogy not as a perfect model but as an evolving, reflective practice that requires reflection, experimentation, and continual learning.

Some legal educators may be skeptical about trauma-informed pedagogy, unsure whether it fits within legal education or uncertain about how to implement it. This book addresses those hesitations directly, offering practical guidance and concrete examples centered in theory that make trauma-aware teaching accessible and compatible with doctrinal, elective, and clinical legal curricula.

How to Account for Trauma and Emotions in Law Teaching offers a timely and compelling reimagining of legal education, urging instructors to recognize that learning is as emotional as it is intellectual. While this text is most obviously appropriate for academic law libraries, it would also be valuable for any library that serves practitioners who work with articling and/or summer law students. Through the authors’ candid reflections, practical strategies, and diverse pedagogical perspectives, the book makes a persuasive case for a more humane, responsive, and emotionally intelligent approach to teaching and ultimately practicing law.

The post Book Review: How to Account for Trauma and Emotions in Law Teaching appeared first on Slaw.

Each month, we tell you which five English-language cases and French-language cases have been the most viewed* on CanLII in the previous month and we give you a small sense of what the cases are about using summaries sourced from the case text, CanLII-published AI-generated summaries of the case, or anonymized excerpts from the case text.

For this past month, the five most-consulted English-language decisions were:

1. Ramsden v. Peterborough (City), 1993 CanLII 60 (SCC)

Summary from case:

This appeal concerned the constitutional validity of a municipal by‑law prohibiting all postering on public property. The issue was whether the absolute ban on such postering infringed the Charter guarantee of freedom of expression, and if so whether that infringement was justified under s. 1 of the Charter.

The accused advertised upcoming performances of his band on two occasions by affixing posters to hydro poles contrary to a city by‑law banning posters on public property. On both occasions, he was charged under the by‑law. The accused, while not denying the offences, took the position that the by‑law was unconstitutional because it was inconsistent with the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms.

A Justice of the Peace found that the by‑law did not violate the Charter and convicted the accused. The appeal to Provincial Court, which was dismissed, was based on the agreed facts that postering on utility poles can constitute a safety hazard to workers climbing them, a traffic hazard if placed facing traffic, and visual and aesthetic blight contributing to litter if left too long. A majority of the members of the Court of Appeal found that the by‑law infringed the accused’s freedom of expression and was not justifiable under s. 1 of the Charter. The constitutional questions in this Court queried if the by‑law limited the right guaranteed by s. 2(b) of the Charter, and if so, whether such limits were demonstrably justified under s. 1.

Held: The appeal should be dismissed.

In determining whether postering falls within the scope of s. 2(b), it must first be decided that it constitutes expression, and if so, whether postering on public property is protected by s. 2(b). The second step requires a determination of whether the purpose or effect of the by‑law is to restrict freedom of expression.

Postering conveys or attempts to convey a meaning, regardless of whether it constitutes advertising, political speech or art. The first part of the s. 2(b) test is satisfied.

Postering on public property, including utility poles, clearly fosters political and social decision‑making and thereby furthers at least one of the values underlying s. 2(b). No persuasive distinction existed between using public space for leaflet distribution and using public property for the display of posters. The question was not whether or how the speaker used the forum, but whether that use of the forum either furthered the values underlying the constitutional protection of freedom of expression or was compatible with the primary function of the property.

The by‑law was aimed at the consequences of the particular conduct in question and was not tied to content. On its face, it was content‑neutral and prohibited all messages from being conveyed in a certain manner and at certain places. The purpose of the by‑law ‑‑ avoiding the consequences associated with postering ‑‑ was “meritorious”. The absolute prohibition of postering on public property, however, prevented the communication of political, cultural and artistic messages and therefore, infringed s. 2(b).

(Check for commentary on CanLII Connects)

2. Edmonton (Police Service) v. McKee, 2026 SCC 24

AI-generated summary:

Facts: A police detective has a prior disciplinary finding of misconduct that is administratively expunged from his record under s. 22 of the Police Service Regulation, Alta. Reg. 356/1990. The detective leads an organized crime and drug trafficking investigation that results in criminal charges, and the defence requests any police disciplinary records. The police disclose a package stating no relevant disciplinary records exist, and the Crown provides that disclosure to the defence. Defence counsel later learns by chance that the Crown possesses the expunged disciplinary decision from an unrelated prosecution file, and requests its disclosure. The Crown reviews the disciplinary decision, considers it serious and credibility-relevant, and supports disclosure while police resist.

Parties’ Submissions: Appellant (Chief of Police): Administrative expungement under s. 22 of the PSR makes the record irrelevant for first-party disclosure, so access must proceed through third-party production under O’Connor. Respondent (Accused): Seeks disclosure as first-party material, arguing s. 22 of the PSR does not preclude criminal disclosure. Respondent (Crown): Consents to disclosure after reviewing the record and concluding it is serious and bears realistically on credibility.

Legal Issues: Which disclosure framework governs administratively expunged police misconduct records? What qualifies as relevant information of police misconduct for disclosure? What are the respective roles of police and the Crown in disclosure decisions?

Disposition: Appeal dismissed. Motion to file further evidence allowed. Solicitor-client costs awarded against the appellant Chief of Police, payable to the accused respondent.

Reasons: By Martin J. (Wagner C.J. and Karakatsanis, Côté, Rowe, Kasirer and Jamal JJ. concurring): Disclosure operationalizes the accused’s fair-trial rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, and relevance governs what must be disclosed. The police participate in first-party disclosure by triaging and transmitting relevant investigative and disciplinary material, but the Crown ultimately decides relevance. Administratively expunged misconduct records remain governed by the Stinchcombe/McNeil first-party framework where they are relevant to the defence. Section 22 of the PSR is interpreted as confined to disciplinary-related proceedings and cannot displace constitutional criminal disclosure obligations. Treating “destroyed” as permanent erasure for all purposes would undermine disclosure principles and cannot be the provision’s effect. Administrative expungement changes disciplinary status and possibly currency, but not the record’s character as a misconduct finding capable of bearing on credibility and trial fairness. Relevance is a low, utility-based threshold, and misconduct is relevant where tied to the investigation or where it could reasonably impact the case against the accused. The Crown’s duty to inquire is engaged by founded notice of potentially relevant information, and retrieval from another prosecution file can remain first-party when feasible. On the facts, the Crown possesses the disciplinary decision, assesses it as serious and credibility-relevant, and first-party disclosure is required despite police opposition based on expungement.

(Check for commentary on CanLII Connects)

3. Wilsher v. Olympic Wholesale, 2026 ONSC 3620

AI-generated summary:

Facts: A long-serving night shift supervisor is terminated for cause after the employer alleges “fraudulent activity and time theft” through timesheet edits. The supervisor maintains that supervisors routinely allow early departures and “top up” hours as an unwritten practice. Management investigates after receiving a complaint and confronts the supervisor in a meeting with questions about repeated hour increases. The supervisor is dismissed immediately, escorted out, and later receives an ROE stating “dismissal or suspension”. After termination, the supervisor searches for work without success and attributes difficulty to lack of references and being labelled a “thief”. The employer later audits the supervisor’s managed timesheets and confirms the edits are attributable to him.

Parties’ Submissions: Plaintiff: He admits “topping up” hours but submits it is a longstanding, unwritten supervisory practice aligned with the union contract guaranteeing 40 weekly hours. Defendant: It submits the practice is unauthorized, contrary to company policy and procedure, and amounts to “time theft” and “fraud” establishing just cause, including alleged lying and cover-up.

Legal Issues: Did the employer have “just cause” to terminate the employee’s employment? If there is no just cause, what reasonable notice period is owed? Are additional damages owed, including an extension of the notice period, aggravated damages, or punitive damages?

Disposition: Just cause is not established; the employee receives 19 months’ pay in lieu of notice. The notice period is extended by 14 months for bad faith and unfair dealing, for a total of 33 months. Aggravated and punitive damages are denied. The employee’s ROE must be amended to remove “dismissal/suspension”. Costs are awarded to the successful party, subject to offers to settle, with a schedule for submissions if needed.

Reasons: By WOODLEY J.: The employer bears the onus of proving just cause on a balance of probabilities. Termination for “just cause” under the Employment Standards Act, 2000, S.O. 2000, c. 41 requires “wilful misconduct, disobedience or wilful neglect of duty” meeting the statutory standard. The McKinley v. BC Tel, 2001 SCC 38 contextual approach governs dishonesty-based dismissals. The evidence establishes a longstanding, transparent, institutionally ingrained “clock out/top up” practice used by night shift supervisors. The employee’s account is accepted and the allegation of lying or attempted cover-up at the termination meeting is rejected. The practice does not constitute dishonest misconduct on these facts, and in any event does not justify summary dismissal. The fiduciary-duty argument based on Dunsmuir v. Royal Group, Inc., 2018 ONCA 773 is rejected as distinguishable on the record. Reasonable notice is assessed under Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 and set at 19 months given age, service, and role. An extended notice remedy is warranted because the dismissal involves bad faith and unfair dealing, including a targeted investigation and accusatory documentation affecting the employee’s job search. The extension runs to the release date, adding 14 months for a total of 33 months’ notice. Aggravated and punitive damages are not warranted on this record, given the compensation provided through the notice extension.

(Check for commentary on CanLII Connects)

4. Bloomberg v. Burnett, 2026 ONSC 3863

AI-generated summary:

Facts: The parties marry and later separate after nearly fifteen years, and they have four children. The family’s wealth increases significantly through a profitable fund enterprise, and the parties also hold valuable real properties. The respondent stops working outside the home and remains the primary caregiver, while the applicant works to grow the fund. After separation, no regular child or spousal support structure is put in place, and large advances are paid instead. The respondent brings a motion to regularize interim child and spousal support.

Parties’ Submissions: Respondent: The respondent seeks interim child and spousal support to regularize support, relying on a budget and expert income report. Applicant: The applicant argues the motion is premature because equalization (including a proposed “butterfly transaction”) will meet support objectives and remove entitlement.

Legal Issues: Is the respondent’s interim support motion premature given the anticipated equalization from the fund enterprise? Is the respondent entitled to interim spousal support? What interim spousal support quantum is appropriate? What interim child support quantum is appropriate? Should retroactive spousal and child support be ordered on this motion?

Disposition: Motion is not premature. Interim spousal support ordered at $200,000 monthly starting August 1, 2026. Interim child support ordered at $75,000 monthly starting August 1, 2026.
Applicant must pay $27,000 monthly toward nannies’ and assistants’ collective salaries starting August 1, 2026. Retroactive support is not ordered.

Reasons: By Diamond J.: Interim support is a holding order pending trial, intended to preserve the accustomed lifestyle through “rough justice.” The equalization and support analysis invoked by the applicant depends on a fulsome trial record that is unavailable at this early stage. The respondent’s motion is not premature, because delaying regularized support until trial would be unfair. No evidence supports compelling the respondent to complete a “butterfly transaction,” and no “advance on equalization” is available through that mechanism. A prima facie case of spousal support entitlement is established by the lengthy marriage, the respondent’s domestic role, and career interruption supporting the applicant’s business success. Prior advances do not displace spousal support where a significant portion is expressly “on account of capital.” The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides objectives and factors for spousal support, while the SSAGs are advisory and may not be presumptive in high-income cases. The evidentiary record does not permit an interim determination of the applicant’s income within the competing expert scenarios. The respondent’s claimed expenses appear inflated or aspirational in part, so an interim spousal support amount of $200,000 monthly is appropriate. The applicant agrees to fund 100% of agreed upon section 7 expenses. The Child Support Guidelines approach is inappropriate on these interim facts, and child support should reflect actual recurring needs under shared parenting. The respondent’s child-related budget is sufficiently inflated, so $75,000 monthly plus a separate $27,000 monthly nanny/assistant contribution is ordered. Retroactive support is reserved for trial given the incomplete factual matrix and the substantial advances already made.

(Check for commentary on CanLII Connects)

5. R v Longclaws, 2026 ABCA 222

AI-generated summary:

Facts: The accused faces two indictments alleging sexual offences against three complainants. The alleged offences occur between 2012 and 2016 for two complainants and in March 2021 for a third. The accused is deaf and cannot speak, read, or write, and does not use a recognized sign language. At trial, the defence seeks a stay, arguing the accused cannot understand proceedings or instruct counsel. A defence expert opines the accused lacks foundational language skills and cannot participate in legal proceedings. The Crown seeks a fitness assessment based on possible impacts of language deprivation syndrome on executive functioning.

Parties’ Submissions: Appellant (Crown): The trial judge errs by finding no evidence of mental disorder and by treating a fitness assessment as futile, and an assessment could support processes restoring fitness. Respondent (Accused): A fitness assessment is unavailable or inappropriate because language deprivation syndrome is a communication disorder, and the accused cannot participate due to communication limits.

Legal Issues: Did the trial judge err in finding no evidence supporting a mental disorder requiring a fitness assessment? Did the trial judge err in concluding a fitness assessment would be futile given the accused’s language deficits? Does the standard of review permit appellate intervention in the refusal to order an assessment and the stay remedy?

Disposition: Appeal dismissed.

Reasons: By Slatter J.A., Woolley J.A., and Friesen J.A.: Fitness to stand trial and ordering a fitness assessment operate under the framework in the Criminal Code, RSC 1985, c C-46, including the presumption of fitness and the “mental disorder” requirement. A fitness assessment under the Code requires reasonable grounds that assessment evidence is necessary to determine fitness, and conjecture or speculation is insufficient. The relevant inquiry concerns the effect of any mental disorder on understanding proceedings and meaningful communication with counsel. Characterization of language deprivation syndrome as a mental disorder is unsupported on this record. The defence expert’s evidence focuses on a communication assessment and describes language deprivation syndrome primarily as childhood circumstances affecting language access. General testimony that language deprivation syndrome can impact mental health or executive functioning does not establish a fact-based likelihood of a mental disorder in this accused. The applicable standard of review requires deference on mixed fact and law determinations about “disease of the mind” and on the discretionary stay remedy. The trial judge’s assessment of the evidentiary record includes the Crown’s lack of distinct evidence on mental condition and the expert’s evidence that executive functioning could not be helpfully assessed. Deference applies to the refusal to order a fitness assessment and the stay of proceedings, and no appellate intervention is warranted.

(Check for commentary on CanLII Connects)

***

The five most-consulted French-language decisions were:

1. Société Radio-Canada c. Association des réalisateurs, 2026 QCCA 900

AI-generated summary:

Faits: Un employeur mandate une enquêtrice indépendante après des allégations de harcèlement psychologique visant un réalisateur. L’employeur suspend ensuite l’employé sans solde pour un mois, sur la base des résultats d’enquête. L’association syndicale dépose un grief pour contester la suspension et demande des précisions sur les motifs disciplinaires. L’arbitre ordonne la communication d’informations, dont des noms, et l’employeur sollicite des ordonnances de confidentialité et un huis clos.

Prétentions des parties: Appelante (Demanderesse) : Elle demande des ordonnances de non-divulgation, non-publication, non-diffusion et huis clos, en invoquant l’art. 12 du Code de procédure civile et les art. 60 et 61 du Code canadien du travail. Elle soutient qu’une levée d’anonymat compromettrait l’intégrité de son mécanisme de plainte, et reproche une analyse limitée à la dignité. Intimée (Mise en cause) : Elle fait valoir que la demande d’ordonnances s’appuie largement sur des considérations de vie privée et sur une prétendue assurance de confidentialité.

Questions de droit: Le juge de la Cour supérieure a-t-il erré en jugeant raisonnable l’application de la première condition de Sherman? Le juge de la Cour supérieure a-t-il erré en omettant de considérer une jurisprudence soumise par l’appelante? Le juge de la Cour supérieure a-t-il erré en ne relevant pas l’omission d’analyser les deuxième et troisième conditions de Sherman?

Dispositif: Appel rejeté, avec les frais de justice.

Motifs: Par la juge Dutil, J.C.A. (le juge Immer, J.C.A., y souscrivant) : La norme applicable demeure celle de la décision raisonnable, vu le caractère interlocutoire de la sentence arbitrale. La première condition de Sherman exige un intérêt public important et une preuve d’un risque sérieux. La protection du mécanisme de dénonciation constitue un intérêt public important. Le risque sérieux doit être établi par une preuve contextuelle convaincante, et non dans l’abstrait. Les allégations générales d’effet dissuasif ne suffisent pas à établir un risque sérieux. Les engagements, politiques et lignes directrices invoqués protègent surtout la confidentialité pendant l’enquête, sans garantir l’anonymat devant un tribunal. Le par. 30(2) du Règlement sur la prévention du harcèlement et de la violence au travail, DORS/2020130 vise le contenu du rapport d’enquête et ne limite pas la discrétion du tribunal. L’absence de preuve d’un risque sérieux commande le rejet, sans examen des autres conditions cumulatives. Par le juge Ruel, J.C.A. (motifs concourants) : La SRC a amalgamé devant l’arbitre l’intérêt lié à la dignité et celui lié au mécanisme de dénonciation. L’arbitre répond aux prétentions telles que formulées et écarte l’inconfort sans preuve de préjudice sérieux. Une requalification du débat au stade du contrôle judiciaire ne peut suppléer l’absence de preuve administrée devant l’arbitre.

(Check for commentary on CanLII Connects)

2. Vêtements de sport Gildan inc. c. Norton Rose Fulbright Canada, 2026 QCCS 2484

AI-generated summary:

Faits: La demanderesse cherche à obtenir de la défenderesse une copie de certains dossiers liés à une lutte par procuration. Les mis en cause demandent une avance de fonds pour faire valoir leur position dans ce débat. Lors de l’interrogatoire hors cour du président et chef de la direction, des demandes visent des renseignements sur des mandats confiés à Stikeman. La demanderesse s’oppose, invoquant le secret professionnel de l’avocat.

Prétentions des parties: Mis en cause (Anciens administrateurs) : Les renseignements demandés sur les mandats de Stikeman sont pertinents, car ils appuient la thèse que Norton Rose a été embauché par les Anciens administrateurs. Ils plaident aussi une renonciation au secret professionnel par certaines divulgations de Gildan. Demanderesse : Les renseignements demandés sont protégés par le secret professionnel. Elle conteste la pertinence et nie toute renonciation, notamment malgré la production de factures de Norton Rose et certaines réponses sous réserve.

Questions de droit: Les renseignements demandés sur les mandats de Stikeman sont-ils couverts par le secret professionnel? Si ces renseignements sont privilégiés, la demanderesse a-t-elle renoncé au secret professionnel?

Dispositif: Objections maintenues à l’égard des demandes PU-1(b) et PU-1(d). Objections maintenues à l’égard des engagements UGC-15 et UGC-16. Frais de justice suivant le sort de l’instance.

Motifs: Par l’honorable Martin F. Sheehan, J.C.S. : L’art. 228 C.p.c. ne s’applique pas lorsque l’objection concerne le secret professionnel de l’avocat. La question se décide immédiatement. Le secret professionnel vise les communications confidentielles entre client et conseiller juridique, destinées à obtenir ou rendre un avis juridique. Il constitue au Québec un droit quasi constitutionnel, assorti d’exceptions d’interprétation restrictive. Le privilège ne couvre pas les communications purement commerciales ou politiques, même transmises par un avocat. Des faits autrement interrogatoires ne deviennent pas privilégiés par leur simple divulgation à un avocat, sous réserve d’un lien intime avec l’avis juridique. Un mandat général et prolongé fait présumer la confidentialité des communications et de l’information échangée, incluant des informations de facturation pouvant révéler la nature des services. Les renseignements demandés (description et titres des mandats, dates d’ouverture, factures et dates des derniers services) révèlent ou risquent de révéler la nature des services juridiques rendus. Les honoraires et leur chronologie créent ici une possibilité raisonnable de déductions sur des communications protégées, compte tenu de la granularité demandée et de l’absence de caractère public de ces mandats. Le Jugement d’octobre 2025 s’inscrit dans un contexte distinct où deux groupes se prétendent clients de Norton Rose, ce qui ne s’assimile pas à une demande de tiers visant un cabinet dont il n’est pas client. La renonciation au secret professionnel doit émaner du client et être volontaire, claire et non équivoque. La production de factures de Norton Rose n’emporte pas renonciation au secret entre la demanderesse et Stikeman. Les allégations des mis en cause sur les services de Stikeman n’émanent pas de la demanderesse, et sa réponse ne met pas en litige la teneur de ces services. Les réponses fournies sous réserve indiquent clairement l’absence d’intention de renoncer au privilège.

(Check for commentary on CanLII Connects)

3. Maurice c. Agence du revenu du Québec, 2026 QCCQ 2205

AI-generated summary:

Faits: Un contribuable achète des actions accréditives pour les revendre rapidement ou les donner afin d’obtenir un avantage fiscal. Il retient les services de sociétés spécialisées qui identifient les émetteurs, structurent les modalités et orchestrent les transactions. L’Agence du revenu du Québec accepte l’avantage fiscal, mais conteste la déductibilité des frais facturés par ces sociétés. À la suite d’une vérification, l’Agence établit des cotisations pour les années 2018 à 2022 en refusant ces déductions.

Prétentions des parties: Demandeur : Il soutient que les montants facturés par les sociétés sont des « frais financiers » déductibles en vertu du par. d) de l’art. 157 de la Loi sur les impôts (LI), RLRQ, c. I-3, et non des commissions. Défenderesse : Elle prétend que ces montants constituent des commissions, exclues par le par. d) de l’art. 157 LI, et que les services rendus ne sont pas des services de conseil ou de gestion visés. Défenderesse : Elle invoque aussi l’art. 128 LI pour soutenir que la dépense n’a pas été engagée pour gagner un revenu.

Questions de droit: Les frais payés aux sociétés spécialisées sont-ils des commissions au sens du par. d) de l’art. 157 LI? Sinon, ces frais sont-ils déductibles aux termes du par. d) de l’art. 157 LI?

Dispositif: Contestation du demandeur rejetée. Frais de justice adjugés contre le demandeur.

Motifs: Par l’honorable Nathalie Chalifour, J.C.Q. : L’art. 157 d) LI et l’art. 20(1) bb) de la Loi de l’impôt sur le revenu (LIR), LRC (1985), ch. 1 (5e suppl.), sont similaires, et la jurisprudence fédérale s’applique. Le terme « commission » n’est défini ni dans la LI ni dans la LIR, et son sens ressort de la jurisprudence. La présence d’une rémunération calculée en pourcentage constitue un indice fort d’une commission. Les sociétés offrent un service « clé en main » et orchestrent l’ensemble des opérations visant l’avantage fiscal. Leur rémunération varie généralement entre 8 % et 11 % par transaction, et aucune rétribution n’est versée sans transaction. L’absence de contrat écrit qualifié de mandat n’empêche pas une qualification de commission, et aucune exigence de mandat n’est démontrée. La preuve ne permet pas de limiter l’apport des sociétés à de simples avis, et diverses indications montrent une intervention « au nom du client ». Le contribuable ne choisit pas les titres, ne négocie pas les modalités et exécute les opérations selon les directives reçues. La rémunération constitue donc une commission et ne se déduit pas en vertu du par. d) de l’art. 157 LI. La seconde question devient peu utile, mais l’art. 157 d) LI s’interprète strictement comme exception, et la planification fiscale générale n’entre pas dans son champ. Les services rendus dépassent les avis sur l’opportunité d’acheter ou vendre certaines actions ou les services d’administration et de gestion visés. Une déduction partielle exigerait des factures détaillées isolant les services admissibles et un honoraire raisonnable, ce qui n’est pas établi. L’argument fondé sur l’art. 128 LI est jugé séduisant, puisque les frais visent l’obtention d’un avantage fiscal plutôt qu’un revenu, mais il n’est pas tranché. La contestation échoue, notamment faute pour le contribuable de renverser la présomption de validité des cotisations.

(Check for commentary on CanLII Connects)

4. Entreprises Bertrand Roberge ltée c. Giroux, 2025 QCCS 4157

AI-generated summary:

Faits: Les demandeurs, composés de sociétés en commandite et de leurs commanditaires, réclament des dommages-intérêts à l’encontre de Robert Giroux et des sociétés qu’il contrôle. Ils allèguent que Giroux a géré de manière frauduleuse et négligente les fonds FIISH et Q-12, entraînant des pertes financières importantes. Les demandeurs soutiennent que Giroux a dissimulé des informations essentielles, manipulé des données financières et utilisé des fonds de manière abusive, notamment dans des transactions de type Ponzi.

Prétentions des parties: Demandeurs : Giroux a induit les commanditaires en erreur par des fausses représentations sur la sécurité des investissements et les garanties offertes. Les fonds FIISH et Q-12 ont été gérés de manière frauduleuse, avec des transactions de type Ponzi et des détournements de fonds. Les défendeurs ont manqué à leurs obligations légales et contractuelles, causant des pertes financières importantes. Défendeurs : Les demandeurs étaient des investisseurs aguerris et conscients des risques associés à leurs placements. Les stratégies de prêt des fonds FIISH et Q-12 ont été respectées, et les garanties étaient suffisantes. Les pertes financières sont attribuables à la débâcle du Groupe Huot et non à leurs actions.

Questions de droit: Le recours des commanditaires est-il recevable ? Les défendeurs ont-ils commis des fautes engageant leur responsabilité personnelle et celle de leurs sociétés ? Les fautes des défendeurs ont-elles causé les dommages réclamés par les demandeurs ? Les clauses de limitation de responsabilité des conventions des fonds FIISH et Q-12 sont-elles applicables ? La levée du voile corporatif est-elle justifiée ? Les demandeurs ont-ils rempli leur obligation de minimiser les dommages ? Les défendeurs ont-ils commis un abus de procédure ?

Dispositif: Le recours des demandeurs est déclaré recevable. Les défendeurs sont condamnés solidairement à payer 73 024 119 $ pour FIISH et 55 553 375 $ pour Q-12, avec intérêts. Une ordonnance Mareva permanente est émise pour geler les actifs des défendeurs jusqu’à l’exécution complète du jugement. La levée du voile corporatif est ordonnée, rendant Giroux personnellement responsable. La demande reconventionnelle des défendeurs est rejetée.

Motifs: Juge Jocelyn Geoffroy : Le juge conclut que les défendeurs ont manqué à leurs obligations légales, contractuelles et extracontractuelles. Giroux a manipulé les données financières, dissimulé des informations cruciales et utilisé les fonds des commanditaires pour des transactions frauduleuses, notamment de type Ponzi. Les preuves démontrent que les fautes des défendeurs ont directement causé les pertes financières des demandeurs. La levée du voile corporatif est justifiée en raison de l’utilisation abusive des entités corporatives par Giroux pour masquer sa responsabilité personnelle. Enfin, le comportement procédural des défendeurs est qualifié d’abusif, justifiant une déclaration formelle d’abus de procédure.

(Check for commentary on CanLII Connects)

5. Charette c. R., 2026 QCCA 962

AI-generated summary:

Faits: La police intercepte l’accusé, qui conduit un véhicule loué avec une passagère, pour vérifier le permis de conduire. L’accusé dit ne pas avoir de permis valide, et la passagère fait l’objet d’un « mandat percepteur ». Une fouille du véhicule révèle notamment des stupéfiants, des munitions, un revolver et une imitation d’arme à feu. Au poste, l’accusé fait une déclaration non enregistrée où il reconnaît notamment l’arme et l’imitation. Au procès, il répudie cette déclaration et affirme que l’arme appartient à sa conjointe.

Prétentions des parties: Appelant (accusé) : Il invoque des erreurs de droit, notamment une méprise sur la preuve quant à la présence de sa conjointe et la connaissance de l’arme, rendant les verdicts déraisonnables. Intimé (poursuivant) : Il soutient que les critères de connaissance, contrôle et consentement fondent raisonnablement la possession commune, et que toute erreur sur le moment est sans conséquence. Il plaide aussi l’application de la disposition réparatrice.

Questions de droit: Le juge de première instance a-t-il commis des erreurs de droit sur la possession d’une arme à feu prohibée? Le juge de première instance a-t-il commis une erreur de droit sur le dessein dangereux lié à l’imitation d’arme?

Dispositif: Appel accueilli. Appelant acquitté des chefs 2, 3 et 5 (dossier 540-01-105226-222) et du chef 1 (dossier 540-01-105224-227). Nouveau procès ordonné sur le chef 4 (dossier 540-01-105226-222).

Motifs: Par le juge Cournoyer, J.C.A. (les juges Marcotte et Sansfaçon, J.C.A., y souscrivant) : Le poursuivant choisit, dans les chefs d’accusation, de particulariser la « transaction » au moment où l’accusé se trouve dans le véhicule. Ces précisions lient le poursuivant et commandent la preuve des éléments essentiels à ce moment précis. Le juge du procès croit l’accusé lorsqu’il dit ignorer la présence de l’arme dans le véhicule lors de l’interception. Cette conclusion sur l’absence de connaissance exige l’acquittement des chefs visant la possession de l’arme au moment de l’occupation du véhicule. Une déclaration de culpabilité fondée sur une possession commune antérieure, tirée du témoignage de l’accusé, compromet l’équité du procès et mobilise l’accusé contre lui-même. Le principe de la « preuve à réfuter » exige que l’accusé connaisse la preuve complète et l’allégation précise avant de répondre. Pour l’imitation d’arme, l’analyse du « dessein dangereux pour la paix publique » exige de considérer toutes les circonstances, dont la nature de l’objet possédé. Le juge du procès omet de tenir compte de la nature de l’arme jouet dans sa conclusion de culpabilité. Cette omission justifie un nouveau procès sur ce chef.

(Check for commentary on CanLII Connects)

* As of February 2025, we measure the number of unique pageviews that a case gets; as well, a case once mentioned won’t appear again for three months.

The post Wednesday: What’s Hot on CanLII? – July 2026 appeared first on Slaw.

I have a vivid memory of being told I was callous for suggesting that an individual who was drafting a Statement of Claim to recover lost funds should instead report their losses to the authorities – they would likely never see their money again. To be fair (to me), they probably never did. That individual’s son convinced them to invest their savings, roughly $14,000, with his friend, a young 20-something crypto-investment “genius” who offered to use his know-how to make them rich, for free (no fees), while offering a 100% guarantee of returns. Sounds exciting! Except, that this situation resulted in the financial devastation of this family. Years later, in April 2026, when I read that the Federal government introduced Bill C-29, An Act to Establish The Financial Crimes Agency,^[1] and the proposed amendments came with a significant budget to stand up the agency,^[2] frankly, my first thought was that it was about time!

The Financial Fraud Loss Problem in Canada & the World

Financial fraud is a multi-trillion-dollar global problem (that’s with a ‘T’).^[3] In 2025 alone, Canadians reported over $704M in fraud losses and between 2002-2005, combined losses amounted to roughly $2.4B (that’s with a ‘B’).^[4] Keep in mind that these statistics only include reported incidents. There are likely many more victims who have not reported their losses out of embarrassment or because they’re unlikely to see any money back.

Currently, financial crime investigations can be disjointed with local police services and RCMP engaged in investigations at various levels, with FINTRAC, the Office of the Superintendent of Financial Institutions (OSFI), the Department of Finance, and other organizations operating within their own designated mandates. The financial experience and expertise between investigators can also vary. A sophisticated, centralized, well-funded and internally integrated agency tasked with the specialized skills to investigate financial crimes is good news and is largely a response to criticism that Canada’s strategy to combat financial crimes, like money laundering, lags behind other international law enforcement agencies.^[5] 

About the Proposed Financial Crimes Agency

If passed, the Act will create a specialized federal law enforcement agency to:

• recover proceeds of crime
• participate in global efforts to combat financial crime
• investigate serious and complex financial crimes^[6]

Serious and complex crimes could include money laundering, trafficking, or any other crime that adversely impact the integrity of Canada’s financial system or capital markets.^[7] Under the supervision of the Minister of Finance,^[8] this specialized law enforcement agency will be able to enter into information-sharing arrangements and collaborate with other agencies to investigate financial crimes.^[9]

Entities Should Consider Strengthening Programs Now

As the new centralized agency enhances in sophistication and sharpens its investigation and enforcement of financial crimes, it also means that entities that find themselves the targets of financial criminals and schemes should consider how to increase their corporate agility and be responsive to the new Financial Crimes Agency.

Start considering how your entity plans to:

• strengthen internal controls
• strengthen governance documentation
• strengthen information-sharing processes across various risk management groups
• strengthen fraud reporting
• strengthen investigative responses
• strengthen documentation processes

These strengthening considerations will help your organization better prepare for the Financial Crimes Agency launch. Even better, try combining these considerations with an agile approach to risk and good document (and product) design.^[10] Enhancing institutional maturity will better position some organizations to be prepared to effectively respond when the Financial Crimes Agency comes knocking.

The Theme of this Story

The ongoing theme of this financial crime story is that, right now, it is far too easy for the 20-something crypto-investment “genius” to defraud individuals, leaving financial devastation in his wake. Even though people should be very skeptical of someone who promises quick returns with low/no-risk, people often ignore the red flags.^[11] Financial fraud is getting more complex, more sophisticated, and happen at speed with targeted accuracy (thanks AI!). Will this situation rise to the level of the Financial Crimes Agency? Maybe. Or, maybe not. But, at least a centralized agency with strong collaborative powers can begin to put a dent in this $2 trillion dollar + global problem. And, it is about time.^[12]

___________________

^[1] Long Title: An Act to establish the Financial Crimes Agency and to make consequential amendments to certain Acts and regulations

^[2] Fasken. “Federal Spring Economic Update 2026: Highlights Affecting Financial Services” (4 May 2026) (bulletin), online: <https://www.fasken.com/en/knowledge/2026/05/federal-spring-economic-update-2026-highlights-affecting-financial-services>.

^[3] Leyland Cecco, “Canada to create powerful financial crimes agency as US weakens its approach,” The Guardian (30 April 2026) (Online: theguardian.com/world/2026/apr/30/canada-financial-crimes-agency-us-weakens-approach-cryptocurrency-atms-money-laundering): “A 2024 report on the scale of financial crimes estimated that more than US$3tn in illicit funds had moved through the global financial system in the previous year. Among the largest culprits were money laundering for human and drug trafficking, as well as terrorist financing. A 2024 report from the US treasury department found those efforts had had “devastating economic and social impact” on citizens.”

^[4] Competition Bureau Canada, News Release, “Fraud Prevention Month to bring hidden crime into the spotlight” (6 March 2026) (Government of Canada, Online: www.canada.ca/en/competition-bureau/news/2026/03/fraud-prevention-month-to-bring-hidden-crime-into-the-spotlight.html).

^[5] Transparency International Canada. “Canada Falls from its Anti-Corruption Perch” (25 February 2020) (Transparency International, online: www.transparency.org/en/blog/canada-falls-from-its-anti-corruption-perch).

^[6] Bill C-29, An Act to establish the Financial Crimes Agency and to make consequential amendments to certain Acts and regulations, 1st Sess, 45th Parl, 2026 (first reading) at s. 3(a)-(c).

^[7] Ibid at s. 2.

^[8] Ibid at s. 5.

^[9] Ibid at s. 24(1)-(2).

^[10] For more information about designing good policies, refer to Kerri Salata, “The Sheriff of Notconsideringyouham: Draft Better Policies by Starting With the User” (27 August 2025) (SLAW, Online: www.slaw.ca/2025/08/27/the-sheriff-of-notconsideringyouham-draft-better-policies-by-starting-with-the-user/).

^[11] Some good resources for financial fraud include: “Protect Yourself from Fraud.” Ontario Securities Commission, 2025 (Online: https://www.osc.ca/en/investors/check-before-you-invest#:~:text=Warning%20signs%20of%20fraud,-Margaret%20believed%20in&text=You%20are%20

promised%20high%20returns,not%20registered%20to%20sell%20investments); “Warning on crypto and romance frauds.” Government of Canada, May 28, 2024 (Online: https://antifraudcentre-centreantifraude.ca/news-nouvelles/2024/2024-05-28-eng.htm); “How to report scams in Canada: a simple guide.” Canadian Bankers’ Association (Online: https://cba.ca/article/how-to-report-scams-in-canada).

^[12] Other articles considered: Graeme A Hamilton, Zev Smith & Valerie Cheng, “Canada’s proposed Financial Crimes Agency: A new era of financial crime enforcement” (12 May 2026) (BLG, Online: https://www.blg.com/en/insights/2026/05/canadas-proposed-financial-crimes-agency-a-new-era-of-financial-crime-enforcement).

The post Canada’s Proposed Financial Crimes Agency: It’s About Time! appeared first on Slaw.

This paper is part of a larger, multi-year project looking at representation, efficiency and outcomes in Ontario’s provincial court[1]. As outlined in an earlier Slaw piece on this project (“Using Representation Pathways to Explore Court Data”, October 2025), several parts of this research are ongoing. The paper highlights the “representation pathways” idea, which is being explored as a methodological tool and as a way of better understanding the experience of accused persons in the provincial criminal court system.

The research is being carried out using an appearance-based database from the Ontario Court of Justice (OCJ). The data set includes 17,622,670 appearances nested within 2,002,306 disposed cases covering the period from 2011 to 2022.[2] Even using the same data, different answers can be obtained to the same question depending on how the question is asked and how the data is organized.

The first step is to determine the extent to which there is a lack of legal representation. The basic data on representation is coded in terms of appearances. Based on an analysis of all 17.6 million appearances over the 12-year period, accused persons were not represented at 10.4 percent of all appearances. The data can also be analyzed in terms of final appearances. Accused persons were unrepresented at nearly the same level, 10.1 percent of final appearances. The graph below shows the percent of appearances at which accused persons were unrepresented by year.

Different Ways to View the Same Data

The analysis based on all appearances treats each appearance as an isolated event. This is not incorrect. It depends on the question one wishes to ask. This analysis answers the question about the extent of unrepresented accused as it relates to separate appearances. However, from a certain point of view it may seem somewhat artificial to treat the data in this way unless, of course, the research question is specifically framed in terms of all appearances.

Analysis based on final appearances might be a better choice. Logically, there can be only one final appearance for each disposed case. Although not technically correct, a disposed case is analogous to an individual accused. Analysis based on final appearances is closer to the experience of individuals from that perspective and may make more sense intuitively. While it is possible to link any appearance with other variables such as the outcome or the number of days to disposition associated with the disposed case in which that appearance is nested, case characteristics can be more easily conceived in terms of disposed cases (final appearances) or accused individuals. However, analysis based on final appearances ignores the fact that there can be different numbers of appearances leading to the final disposition.

Representation Pathways

Each appearance in the series leading to a disposed case can have a different form of representation: not represented, represented by duty counsel or by retained counsel. These differences may be important in terms of case outcome and court efficiency. To account for the different combinations in terms of type of representation, a new variable called representation pathways was created. The representation pathway variable was created by recoding the original appearance data into the seven categories shown below in Table 1.

This approach to examining representation provides a very different picture than analysis based on appearances. Accused persons who are not represented at any appearances make up 5.1% of all disposed cases. This is about half the percentage of appearances at which accused are unrepresented based on either all appearances or final appearances. In slightly under a quarter, 23.2% of all disposed cases[3], accused persons are not represented at some appearances but are represented at other appearances by duty counsel, retained counsel or a combination of the two. Accused persons are represented at all appearances in 71.6% of all disposed cases.

A Different Picture

Overall, the important difference in determining the extent of unrepresented accused using representation pathways compared with the analysis based on appearances is that the representation pathways analysis shows that 28.3% of accused persons are not represented at all or at some appearances (5.1 + 23.2%). This is more than twice the approximately 10% figure from the appearance-based analysis. None of the different percentages of unrepresented accused are incorrect. It depends on how you ask the question.

The representation pathways approach reflects the reality that legal assistance can take many forms, including brief advice from duty counsel, full representation, or different combinations of assistance across some or all appearances. It is also worth noting that “duty counsel” itself is not a single, uniform category of representation—it can range from brief advice at a single appearance to representation sustained across many appearances. The earlier representation pathways research found that cases represented by duty counsel at all appearances resolved efficiently, while pathways combining duty counsel with other forms of representation were among the least efficient—a reminder that the type of representation matters less than the pattern it forms across a case. The approach provides a beginning to understanding the complexities of the experience of accused persons in the criminal courts.

At the same time, it is important to acknowledge the role of human and contextual factors, such as case complexity and individual capabilities and self-efficacy, which are difficult to capture with basic court data.

More refinements may be carried out on the representation pathways approach. In terms of court efficiency or case outcomes, the percentage of accused persons not represented, represented by duty counsel or represented by retained counsel within each of the three “not represented at some” representation pathways may be important. Whether the accused person is not represented at 75% or 25% of appearances could make a difference in duration to disposition, case outcomes, reduced charges, or sentence length. Whether a refinement of the categories or a more sophisticated statistical analysis is required has to be determined through experimentation. At this point, however, the representation pathways construct appears to be a promising advance in the analysis of legal representation.

The results we are seeing so far underscore the importance and value of representation—both for systemic efficiency and, ultimately, for the experience and outcomes of people moving through the justice system.

—

Ab Currie
Senior Research Fellow
Canadian Forum on Civil Justice

Trevor C. W. Farrow
Dean and Professor
Osgoode Hall Law School

Jean-Paul Bevilacqua
Director
Canadian Forum on Civil Justice

________________________

[1] Ab Currie, Trevor CW Farrow and Lisa Moore, Using Representation Pathways to Explore Court Data, SLAW, October 3, 2025

[2] The research team is grateful to the Ontario Court of Justice and the Ontario Ministry of the Attorney General for making the data available.

[3] Calculated by combining 6.1% not represented at some appearances + represented by duty counsel at some appearances, 5.8% not represented at some appearances + represented by retained counsel at some appearances and 11.3% not represented at some appearances + represented by retained counsel at some appearances + represented by duty counsel at some appearances

The post It Depends on How You Ask the Question: The True Number of Unrepresented Accused in the Ontario Court of Justice appeared first on Slaw.

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Canadian occupational health & safety law 2. Employment & Human Rights Law in Canada 3. Legal Post Blog 4. Know How 5. ABlawg.ca

Canadian occupational health & safety law
Do you know what you don’t know? Workplace hazard disclosure and the limits of owner liability under the Occupational Health and Safety Act

A recent Ontario Superior Court of Justice appellate decision has important implications for both owners/employers and constructors when it comes to workplace hazard disclosure. In Ontario (Ministry of Labour, Immigration, Training and Skills Development) v. Greater Sudbury (City), 2026 ONSC 3671, the Court overturned a trial judge’s decision that had convicted the City of Sudbury (the City) of two offences under the Occupational Health and Safety Act (the OHSA) for failing to ensure worker safety and notify the constructor of hazards at a worksite. …

Employment & Human Rights Law in Canada
Electronic Monitoring of Employees in Ontario: Transparency is Not a Choice

Technology has made it easier than ever to monitor how work gets done. With the rise of hybrid and remote work, digital productivity tools, and AI‑enabled systems, workplace monitoring has become a key compliance issue for Ontario employers. Ontario does not have a single, comprehensive statute governing employee privacy in the workplace. However, under the Employment Standards Act, 2000 (“ESA”), employers with 25 or more employees in Ontario must have a written policy on electronic monitoring in place. This requirement was introduced through Bill 88, Working for Workers Act, 2022 and continues to apply each year. …

Legal Post Blog
Ontario woman awarded $400,000 over husband’s decades-long abuse in legal first

Know How
2026 Fall Tours: September 8-17

The Great Library is once again offering tours to welcome new articling students this fall. Led by one of our law librarians, the tours provide an introduction to the Library’s services, print collections, and electronic resources. Whether you’re new to legal research or new to the Library, join us to discover how we can support you throughout your articling term and your career. …

ABlawg.ca
The Orphan Well Association Annual Report 2025/2026: The Problem with the AER’s Long Run Plan for Orphan Oil and Gas Sites

On July 15, 2026, the Orphan Well Association (OWA) released their annual report for 2025/2026. OWA annual reports provide insight into Alberta’s orphan oil and gas site problem and the pace at which the problem is being addressed (see the ABLawg posts on past OWA annual reports: 2022/2023; 2023/2024; 2024/2025). The OWA annual report is separate from the Alberta Energy Regulator (AER)’s annual liability management performance reports, which are concerned with the closure liability of oil and gas sites generally in Alberta, most of which still have operating licensees. …

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*Randomness here is created by Random.org and its list randomizing function.

The post Monday’s Mix appeared first on Slaw.

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PROCÉDURE CIVILE : Bien que le droit d’être jugé dans un délai raisonnable prévu à l’article 11 b) de la Charte canadienne des droits et libertés s’applique à une personne accusée d’outrage au tribunal en matière civile, les principes établis dans l’arrêt R. c. Jordan (C.S. Can., 2016-07-08), 2016 CSC 27, SOQUIJ AZ-51302609, 2016EXP-2173, J.E. 2016-1212, [2016] 1 R.C.S. 631, ne peuvent être transposés en droit civil.

Intitulé : Ville de Montréal c. Gestion Tasa inc., 2026 QCCA 954
Juridiction : Cour d’appel (C.A.), Montréal
Décision de : Juges Mark Schrager, Patrick Healy et Christian Immer
Date : 10 juillet 2026

Résumé

PROCÉDURE CIVILE — outrage au tribunal — citation à comparaître — arrêt des procédures — violation de l’ordonnance — cessation d’un usage dérogatoire — municipalité — règlement municipal — droit d’être jugé dans un délai raisonnable — délai déraisonnable — article 11 b) de la Charte canadienne des droits et libertés — inapplicabilité du cadre d’analyse de R. c. Jordan (C.S. Can., 2016-07-08), 2016 CSC 27, SOQUIJ AZ-51302609, 2016EXP-2173, J.E. 2016-1212, [2016] 1 R.C.S. 631 — application des critères établis dans R. c. Morin (C.S. Can., 1992-03-26), SOQUIJ AZ-92111050, J.E. 92-517, [1992] 1 R.C.S. 771 — point de départ du calcul du délai — appel — erreur de droit — erreur manifeste et déterminante.

PROCÉDURE CIVILE — causes intéressant l’État — avis au procureur général — nécessité — question constitutionnelle — municipalité — moyen invoqué pour la première fois en appel — outrage au tribunal — outrage civil — article 11 b) de la Charte canadienne des droits et libertés — inapplicabilité du cadre d’analyse de R. c. Jordan (C.S. Can., 2016-07-08), 2016 CSC 27, SOQUIJ AZ-51302609, 2016EXP-2173, J.E. 2016-1212, [2016] 1 R.C.S. 631 — pouvoir discrétionnaire — question nouvelle et d’intérêt général — présence du procureur général.

DROITS ET LIBERTÉS — droits judiciaires — personne arrêtée ou détenue — droit d’être jugé dans un délai raisonnable — outrage au tribunal — citation à comparaître — arrêt des procédures — délai déraisonnable — article 11 b) de la Charte canadienne des droits et libertés — inapplicabilité du cadre d’analyse de R. c. Jordan (C.S. Can., 2016-07-08), 2016 CSC 27, SOQUIJ AZ-51302609, 2016EXP-2173, J.E. 2016-1212, [2016] 1 R.C.S. 631 — application des critères établis dans R. c. Morin (C.S. Can., 1992-03-26), SOQUIJ AZ-92111050, J.E. 92-517, [1992] 1 R.C.S. 771 — point de départ du calcul du délai.

PÉNAL (DROIT) — garanties fondamentales du processus pénal — droit d’être jugé dans un délai raisonnable — article 11 b) de la Charte canadienne des droits et libertés — inapplicabilité du cadre d’analyse de R. c. Jordan (C.S. Can., 2016-07-08), 2016 CSC 27, SOQUIJ AZ-51302609, 2016EXP-2173, J.E. 2016-1212, [2016] 1 R.C.S. 631 — application des critères établis dans R. c. Morin (C.S. Can., 1992-03-26), SOQUIJ AZ-92111050, J.E. 92-517, [1992] 1 R.C.S. 771 — point de départ du calcul du délai — délai déraisonnable.

INJONCTION — jugement final — outrage au tribunal — injonction permanente — citation à comparaître — arrêt des procédures — violation de l’ordonnance — cessation d’un usage dérogatoire — municipalité — règlement municipal — droit d’être jugé dans un délai raisonnable — délai déraisonnable — article 11 b) de la Charte canadienne des droits et libertés — inapplicabilité du cadre d’analyse de R. c. Jordan (C.S. Can., 2016-07-08), 2016 CSC 27, SOQUIJ AZ-51302609, 2016EXP-2173, J.E. 2016-1212, [2016] 1 R.C.S. 631 — application des critères établis dans R. c. Morin (C.S. Can., 1992-03-26), SOQUIJ AZ-92111050, J.E. 92-517, [1992] 1 R.C.S. 771 — point de départ du calcul du délai — appel — erreur de droit — erreur manifeste et déterminante.

Appel d’un jugement de la Cour supérieure ayant ordonné l’arrêt des procédures relativement à 2 citations à comparaître pour outrage au tribunal. Accueilli en partie.

Le 27 août 2018, la Cour supérieure a accueilli une demande en cessation d’usage et en injonction permanente à l’encontre des intimées, lesquels contrevenaient à l’article 5.48 du règlement de zonage de la ville appelante. Alléguant plusieurs manquements de ces dernières, la ville a déposé, les 9 novembre 2021 et 30 septembre 2022, des demandes pour ordonnance de citation à comparaître en matière d’outrage. Le 23 juillet 2024, les intimées ont demandé l’arrêt des procédures en application de l’article 11 b) de la Charte canadienne des droits et libertés. Le juge de première instance a fait droit à cette demande puisque le délai de 18 mois imposé par l’arrêt R. c. Jordan (C.S. Can., 2016-07-08), 2016 CSC 27, SOQUIJ AZ-51302609, 2016EXP-2173, J.E. 2016-1212, [2016] 1 R.C.S. 631, n’était pas respecté.

Décision

M. le juge Schrager: Premièrement, comme l’a constaté le juge, l’appelante a concédé que l’article 11 b) de la charte ainsi que les plafonds présomptifs de l’arrêt Jordan s’appliquent à l’outrage civil. Toutefois, cette dernière, qui prend maintenant la position opposée, peut soulever l’erreur pour la première fois en appel. Cette question ayant des implications sérieuses pour le système de justice civile, les circonstances justifient amplement de traiter de cette nouvelle question de droit sur le fond. Un débat contradictoire s’impose pour établir le droit applicable à cette question qui touche les droits fondamentaux et dépasse le seul intérêt des parties.

Deuxièmement, l’absence de l’avis exigé par l’article 76 du Code de procédure civile (C.P.C.) est en principe fatale à la recevabilité d’une question constitutionnelle. Cet article s’applique, notamment, à des recours fondés sur la Charte canadienne des droits et libertés entamés à l’encontre de «l’État, de l’un de ses organismes ou d’une personne morale de droit public», ce qui inclut la municipalité appelante. Un avis en vertu de cet article était donc requis en première instance. Cependant, l’arrêt Guindon c. Canada (C.S. Can., 2015-07-31), 2015 CSC 41, SOQUIJ AZ-51200651, 2015EXP-2269, J.E. 2015-1269, [2015] 3 R.C.S. 3, confirme l’existence d’un pouvoir discrétionnaire de la Cour de se saisir de l’affaire si l’avis n’a pas été envoyé dans les instances inférieures. Suivant ces enseignements, la participation du procureur général du Québec en appel suffit donc pour permettre de traiter la question malgré ce défaut.

Troisièmement, encadrée par les articles 58 et 62 C.P.C., la procédure civile d’outrage au tribunal est qualifiée de quasi pénale et constitue un pouvoir d’exception, car elle peut donner lieu à l’emprisonnement. Depuis l’arrêt Vidéotron ltée c. Industries Microlec produits électroniques inc. (C.S. Can., 1992-09-24), SOQUIJ AZ-92111100, J.E. 92-1458, [1992] 2 R.C.S. 1065, il est acquis que l’article 11 c) de la charte s’applique en cette matière. Or, la Cour est d’avis que l’article 11 b) de la charte trouve également application, car rien ne justifie de distinguer les divers alinéas de cet article qui sont pertinents en l’espèce, de sorte qu’une personne est «inculpée» ou pas selon le droit qu’elle tente d’invoquer.

Quant à l’arrêt Jordan, le cadre juridique établi dans celui-ci constitue une réponse directe de la Cour suprême du Canada à des défauts systémiques constatés dans les instances pénales et criminelles. Dans le présent cas, il n’y a pas de preuve ou de constatations d’office de délais systémiques afférents à la poursuite des dossiers civils en général ou pour outrage au tribunal expressément. En outre, certains aspects de Jordan, tel que l’imputation de certains délais à l’une ou l’autre des parties, sont difficiles à appliquer aux causes civiles. Le juge a donc commis une erreur de droit en appliquant cet arrêt.

En suivant plutôt le cadre juridique proposé dans l’arrêt R. c. Morin (C.S. Can., 1992-03-26), SOQUIJ AZ-92111050, J.E. 92-517, [1992] 1 R.C.S. 771, le rejet de la première citation pour outrage est confirmé en raison du délai déraisonnable de 930 jours. En ce qui concerne la deuxième citation, le juge a commis une erreur manifeste et déterminante en réunissant celle-ci à la première. Or, pris de manière indépendante, le délai total de la deuxième citation jusqu’à la date prévue pour le procès serait de 560 jours. Puisque ce délai ne brime pas les droits des intimées conférés par l’article 11 b) de la charte, il y a lieu de la rétablir.

Le texte intégral de la décision est disponible ici

The post Summaries Sunday: SOQUIJ appeared first on Slaw.

As a supplement to our Sunday Summary each month, Supreme Advocacy LLP in Ottawa presents Supreme One-Liners, a super-short descriptive guide to the most recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers its more comprehensive weekly electronic newsletter, Supreme Advocacy Letter, summarizing all Appeals, Oral Judgments and Leaves to Appeal granted.

Appeals

Constitutional Law/Courts: Review of Delegated Powers
Democracy Watch v. Canada (Attorney General), 2026 SCC 28 (41576)

Clarifications re courts’ jurisdiction as to legality of delegated power exercise.

Civil Litigation: Spoliation of Evidence
SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp,2026 SCC 29 (41543)

Proven spoliation requires adverse inferences to fill evidentiary gap.

The post Summaries Sunday: Supreme One-Liners appeared first on Slaw.

Two columns ago, I followed the money through a law firm’s student recruitment program and found nearly $500,000 a year in lawyer time and expenses before a single billable hour was worked. Last column, I followed that same money into the delegation of actual work and found that firms were quietly losing much of it back through vague instructions, overworked memos, and write-downs nobody quite wants to talk about.

This column follows that same money to where it gets spent – on the reps junior lawyers used to log before anyone trusted them with something that mattered. Those reps are what’s disappearing now, and firms need to decide who is responsible for replacing them.

The job that built judgment

For as long as I’ve been watching firms operate from the management side, the deal was straightforward, if rarely said out loud. Juniors did the unglamorous work including the first-pass research memo, the lease-by-lease due diligence review, and the first draft of a statement of claim nobody expected to survive a partner’s red pen. It was slow. It was often duplicative. And it was also, not incidentally, how judgment got built.

Paul Saunders, chief strategy and innovation officer at Stewart McKelvey in Halifax, has been blunt about what’s changing. He learned contract law, he says, by grinding through leases line by line on due diligence files — the kind of task that now takes a junior minutes to summarize with an AI tool instead of days to read. He calls the resulting gap the “AI training conundrum,” and the phrase has stuck for a reason: it names a problem firms haven’t solved, not one they’ve avoided.

He’s not alone in naming it. Matthew Peters, national leader of transformation at McCarthy Tétrault, describes lawyers regularly stunned by how fast AI now compresses work that used to take hours. Erin Cowling, CEO of Flex Legal Network, has watched smaller, tech-forward firms shift first-draft pleadings — traditionally a new call’s job — onto AI entirely. And Allison Speigel, a partner at Speigel Nichols Fox in Mississauga, told Canadian Lawyer that even when an AI summary is “totally correct,” she still finds herself wanting to go to the underlying documents, because in litigation a few words can change a case.

That instinct isn’t just caution. It’s the job. The Law Society of Ontario’s guidance on lawyers’ use of AI is explicit that AI-generated output must be independently verified by a human, not by the tool that produced it. The Law Society of British Columbia has taken a similarly firm stance since 2023 through its own practice resource on generative AI, warning that the technology is no substitute for a lawyer’s professional judgment. Which raises the obvious follow-up question: verified by which human, exactly, if the humans coming up through the system never did the underlying work themselves?

Is “apprenticeship” still the right word?

I’ve gone back and forth on that word. It’s the one Axios, Bloomberg Law, and Canadian Lawyer have all used this year to describe this exact shift. But it also carries a certain nostalgia: structured, intentional, a master craftsperson patiently transferring a trade. Anyone who has actually been a junior associate knows that’s a generous description of what articling and the first few call years have often looked like: inconsistent supervision, wildly uneven feedback, and, as I wrote last column, a fair amount of student time quietly written off because nobody explained the assignment properly in the first place.

So no, I don’t think we’re losing some golden age of mentorship. I think we’re losing the reps. The volume of low-stakes, moderately tedious work that let a junior lawyer be wrong in private, a few hundred times, before they had to be right in front of a client. That’s the specific thing worth protecting. Not the word, the reps behind it.

The scale of the shift

This isn’t a hypothetical firms can wait out. In February 2026, Baker McKenzie cut between 600 and 1,000 business services roles globally. That’s the largest AI-attributed reduction the legal industry has seen to date. Clifford Chance made similar cuts the previous year, citing AI adoption directly, according to the Financial Times. Neither of those is a Canadian firm, but both operate here, recruit here, and set expectations that ripple through the Canadian market regardless.

Closer to home, a Thomson Reuters survey found that a large majority of Canadian legal professionals are adopting AI faster than they’re comfortable with — and that only a small fraction of firms are consistently disclosing that use to clients, a gap that has its own governance implications well beyond training.

None of this means junior lawyers are becoming redundant. A Law360 Pulse survey from March 2026 found both junior and senior lawyers believe AI could absorb responsibilities traditionally handled by junior associates — but American legal hiring data from the same period showed legal employment at a ten-year high, and law firms are still locking down top law students two and a half years before they start, in some cases paying five-figure sums simply to keep them off a competitor’s roster. That is not the behaviour of an industry that believes entry-level lawyers are becoming unnecessary. It’s the behaviour of an industry that hasn’t yet figured out how to rewrite their job description.

That’s the more accurate way to frame this. It isn’t a story about fewer junior lawyers. It’s a story about the same number of junior lawyers doing less of the work that used to teach them anything, unless firms deliberately intervene.

That instinct showed up again, from a different angle, when I interviewed Jacob Murad on a recent episode of my podcast, Lawyer Launcher: Behind the Bar. He’s a corporate-lawyer-turned-entrepreneur who now runs a 150-person professional services firm and mentors articling students through the Law Society of Ontario. Murad doesn’t think AI replaces junior lawyers; as he put it, someone still has to prompt it. But he’s already changing what his own juniors spend their time on, moving them off first drafts and research memos and into client intake calls and presentations instead, precisely because that’s the part AI still can’t do. His bet isn’t just that judgment needs deliberate reps. It’s that relationship skills do too. He’s spot on. AI can’t develop relationships and build trust.

What deliberate intervention actually looks like

Saunders’ answer isn’t to slow the technology down. It’s to rebuild the teaching around it. He argues firms need to double down on mentorship that happens in real time: bringing juniors into client meetings and boardrooms, not only handing judgment back through redlined documents by email. He also wants law schools brought into that redesign, so graduates arrive with some of this baked in rather than starting from zero.

I’d add a few practical ideas of my own, in the same spirit as the delegation checklist I laid out last column:

1. Treat AI fluency as a trained skill, not an assumed one — including how to interrogate an AI-drafted answer, not just how to prompt for it.
2. Delegate a few “slow” assignments per rotation, done without AI assistance, specifically because the friction is the point.
3. Have juniors review AI output against the source documents before a senior lawyer ever sees either version, so the verification is being practiced, not assumed.
4. Bring juniors into client conversations earlier and more often, even in a listening capacity, since that’s judgment-transfer that no drafting assignment ever fully replicated anyway. Let some of that time go toward intake calls, presentations, and other relationship-building work AI genuinely can’t do yet, rather than treating those as senior-lawyer territory.
5. Compensate and recognize the lawyers doing this coaching. Saunders is right that mentorship has long been treated as invisible labour. If it’s now doing more of the training work AI has hollowed out elsewhere, it can’t stay unpaid and unmeasured.

None of this requires firms to slow down their AI adoption, and none of it is really about AI at all. It’s actually about firms deciding, deliberately, what a junior lawyer’s first few years are supposed to build, and then reverse-engineering a plan, instead of discovering the gap five years from now when a mid-level associate can’t be trusted to run a file alone.

Recruitment gets the budget and the attention. Delegation quietly determines the return. And now the raw material that used to make delegation possible – the unglamorous, repetitive, judgment-building work – is the thing disappearing fastest.

Which leaves firms with a new question: if the reps are gone, what replaces them — and who, exactly, is responsible for helping students and juniors develop good judgement?

The post The Hidden Economics of the Vanishing Apprenticeship appeared first on Slaw.

In my previous column on the Alberta Regulated Professions Neutrality Act,[1] I focused on subtle details of the Act and the important implications of those details for how the Act worked and what it did.[2] In this column, I focus instead on the major flaw of the Act, which flaw is glaringly obvious but seems to have received relatively little attention and prompted relatively little pushback outside the legislative assembly.[3] Nothing in this column is revolutionary or imaginative or even particularly original. But it is worth emphasizing nonetheless. While the Act has implications for many regulated professions, I focus here on its implication for the legal profession.

Section 5 of the Regulated Professions Neutrality Act prohibits professional regulators from imposing discipline (“a sanction”) on a member “for expressive conduct of the regulated professional that occurs outside the practice of the regulated profession”.[4] (Curiously, the section also defines “sanction” as not including an administrative monetary penalty.[5]) This prohibition is narrowed in three ways. First, the section defines “expressive conduct” as “an activity or communication that conveys or attempts to convey meaning, but does not include physical violence or property damage”.[6] The second way is by a list of exceptions. These exceptions include “a threat of physical violence” and conduct for which the member “has been convicted of an offence”.[7] They also include “professional boundaries” misconduct, “expressive conduct of a sexual nature” with “a client, patient or student” or their relative, or grooming – as well as “misuse of the regulated professional’s position in their regulated profession with the intention of causing physical, psychological or financial harm to an identifiable person”.[8] However, discipline that is permitted through these exceptions must also be explicitly authorized in an Act or regulation.[9] The third way is an explicit exclusion, i.e. that this section does not prohibit discipline “for the disclosure of client, patient or student information”.[10]

While this prohibition is a legally permissible narrowing of the statutory jurisdiction granted by the legislature to provincial self-regulated professions,[11] it is deeply flawed in at least two ways. The first flaw is that this prohibition assumes that there is a meaningful distinction between professional conduct and extra-professional conduct (or what the legislation terms “conduct that occurs outside the practice of the regulated profession”.[12]) During the legislative debates, Justice Minister Mickey Amery also used the phrases “on their own time”,[13] “outside of their work”,[14] and “off duty”.[15] MLA Justin Wright likewise used the phrase “outside of the workplace”.[16] It is not obvious that a professional is ever off duty, especially in the age of social media and near-constant electronic availability.[17]

The second flaw is that, even if such a distinction can be made between professional conduct and extra-professional conduct, this prohibition assumes that extra-professional conduct is not legitimately regulable.

At Committee of the Whole, MLA Diana Batten gave the example of a family doctor who – outside of their clinic and outside of clinic hours – “shares a debunked medical claim online”.[18] Consider likewise a lawyer who, over the weekends when at home, runs a side business promoting freeman-on-the-land pseudo-legal hokum.[19] (Or, for that matter, a personal injury lawyer who promotes debunked alternative health remedies for automobile-collision injuries.) Assume the family doctor and the lawyer do not repeat or even mention these claims to any patients or clients during work hours. This would appear to be, in the language of the Act, “expressive conduct of the regulated professional that occurs outside the practice of the regulated profession”.[20] This conduct poses a potential serious harm posed to the public, given the credibility of these individuals as a family doctor and as a lawyer, and it is not clear that this distinction excuse the potential damage that these individuals do to public trust in the profession generally.[21] As noted by MLA Court Ellingson, “there is a very real chance that comments made by professionals have the ability to cause real harm to the public.”[22]

In the context of lawyers, consider the duty to encourage respect for the administration of justice.[23] Indeed, the commentary to this rule explicitly states that “[t]he obligation outlined in the rule is not restricted to the lawyer’s professional activities but is a general responsibility resulting from the lawyer’s position in the community. A lawyer’s responsibilities are greater than those of a private citizen.”[24] Aside from the pseudo-legal hokum, imagine the lawyer also posts comments across the internet asserting, without providing any evidence, a vast network of organized crime offences, including bribery and drug trafficking, by dozens of named lawyers and judges. This “expressive conduct” would clearly damage public trust in the legal profession and in the administration of justice. Addressing such conduct – including denunciation and deterrence – through professional discipline goes squarely to the mandate of the Law Society to protect the public interest.[25] But the Act very clearly precludes this discipline.

Note also that while the prohibition in the Act allows discipline for violence or threats of violence, as well as for “expressive conduct with respect to which the regulated professional has been convicted of an offence”, it does not allow discipline for conduct that breaches human rights law without constituting an offence.[26] Indeed, during the legislative debates, Justice Minister Amery appeared to suggest that such matters are for, and only for, the consideration of the provincial human rights apparatus: “The Alberta Human Rights Act, in fact, already exists to protect against these very acts of hatred.”[27] Discrimination that is contrary to the Human Rights Act does not constitute an offence.[28] Thus, despite Minister Amery’s assertion that “[n]othing in Bill 13 shields criminal behaviour, threats, harassment, or discrimination whatsoever”,[29] the Act does indeed shield discrimination from professional discipline (though it does not shield it from consequences under the Alberta Human Rights Act). Even if a lawyer is found to have committed discrimination under human rights law, the Law Society could not discipline them for that breach. Defamation is likewise not an offence. Moreover, the prohibition in the Act would not allow for professional discipline for offences – such as criminal hate speech – unless and until the member has been convicted. Hate speech is rarely prosecuted.[30]

The consensus in the Canadian legal ethics community appears to be that extra-professional conduct by lawyers should not be a disciplinary priority, particularly conduct of non-practicing lawyers.[31] To prohibit such discipline categorically is quite different from de-emphasizing it as a priority.[32]

To the extent that the Act was aimed at solving an existing or anticipated problem, it is either incredibly overbroad in the restrictions it places on professional regulators or remarkably poorly drafted – or both.[33] In other words, it is either an inherently bad policy decision or a questionable policy decision implemented haphazardly. As I have written elsewhere, the Act “fundamentally misunderstands the concept of professional responsibility, the role of professional regulators, and the maintenance of public confidence in the regulated professions”.[34] Even if there was a nugget of appropriate and meaningful law reform in this Act, it was completely lost or drowned out along the way.

Thus, while surprising no one, I again ask the question: Why?

__________________

[1] Regulated Professions Neutrality Act, SA 2025, c R-13.3 [RPNA], proclaimed to come into force (with minor exceptions) on September 1, 2026: <https://www.alberta.ca/proclamations>; OIC 164/2026 (4 June 2026).

[2] Andrew Flavelle Martin, “Why? The Details of the Alberta Regulated Professions Neutrality Act” (10 June 2026), Slaw (blog), online: <https://www.slaw.ca/2026/06/10/why-the-details-of-the-alberta-regulated-professions-neutrality-act/>.

[3] But see e.g. Malinda S Smith, Bukola Salami & Kannin Osei-Tutu, “Alberta’s ‘neutrality’ law redraws professional accountability” The Globe and Mail (2 January 2026), online: <https://www.theglobeandmail.com/opinion/article-albertas-neutrality-law-redraws-professional-accountability/>; Bukola Salami et al, “Bill 13 is Alberta’s law—but all Canadians must pay attention” The Hill Times (6 January 2026), online: <https://www.hilltimes.com/2026/01/06/bill-13-is-albertas-law-but-all-canadians-must-pay-attention/486670/>.

[4] RPNA, supra note 1, s 5(2).

[5] Ibid, s 5(1)(c).

[6] Ibid, s 5(1)(b).

[7] Ibid, s 5(2)(b).

[8] Ibid, s 5(2)(b).

[9] Ibid, s 5(2)(a): “an authorizing enactment expressly authorizes the regulatory appeal body or regulatory body to do so.” See s 5(1)(a) for a definition of “authorizing enactment”: “ ‘authorizing enactment’ means an Act or regulation that authorizes a regulatory appeal body or regulatory body, as the case may be, to impose sanctions on a regulated professional for expressive conduct that occurs outside of the practice of the regulated profession, but does not include a regulation made by a regulatory appeal body or regulatory body other than a Minister”. See also

[10] Ibid, s 5(3).

[11] There could be a reasonable legal argument that, in its application to the legal profession, this restriction of the powers of a law society offends the independence of the bar. See e.g. Law Society of British Columbia v British Columbia (Attorney General), 2026 BCSC 779 [currently under appeal].

[12] RPNA, supra note 1, s 5(2).

[13] “Bill 13: Regulated Professions Neutrality Act”, 1st reading, Alberta Hansard, 31-2, Day 13 (20 November 2025) at 404 (Hon Mickey Amery)

[14] “Bill 13: Regulated Professions Neutrality Act”, 2nd reading, Alberta Hansard, 31-2, Day 16 (26 November 2025) at 564, 565 (Hon Mickey Amery).

[15] Ibid.

[16] “Bill 13: Regulated Professions Neutrality Act”, 2nd reading, Alberta Hansard, 31-2, Day 16 (26 November 2025) at 572 (Justin Wright).

[17] See e.g. “Bill 13: Regulated Professions Neutrality Act”, 2nd reading, Alberta Hansard, 31-2, Day 16 (26 November 2025) at 569: (Janet Eremenko): “The point is: who decides when you’re off duty? As elected officials we are never off duty. I reckon that there is an awful lot of precedent that tells us that when you are a public figure and you are in the public realm, on social media for example, you are not off duty. So who decides? Genuinely, I’d love to hear from the minister who introduced this legislation: who decides what off duty is? If you’re on call and you’re having dinner at a restaurant, are you off duty or are you on duty? If you are on your way to work and having a phone call, are you on duty or off duty? When does it actually start and stop?”

[18] “Bill 13: Regulated Professions Neutrality Act”, Committee of the Whole, Alberta Hansard, 31-2, Day 16 (26 November 2025) at 802 (Diana Batten).

[19] See e.g. Donald J. Netolitzky, “Organized Pseudolegal Commercial Arguments as Magic and Ceremony” (2018) 55:4 Alta L Rev 1045.

[20] RPNA, supra note 1, s 5(2).

[21] “Bill 13: Regulated Professions Neutrality Act”, Committee of the Whole, Alberta Hansard, 31-2, Day 19 (2 December 2025) at 692 (Rhianna Hoyle): “Bill 13 creates a significant change in regulators who previously were free to impose discipline for off-duty conduct as they see fit when it impacts the interests of the public or harms the reputations of the profession.”

[22] “Bill 13: Regulated Professions Neutrality Act”, 2nd reading, Alberta Hansard, 31-2, Day 16 (26 November 2025) at 567 (Court Ellingson).

[23] See e.g. Law Society of Alberta, Code of Conduct (2025), r 5.6-1 [Code of Conduct] online: <https://documents.lawsociety.ab.ca/wp-content/uploads/2017/01/14211909/Code.pdf> perma.cc/3VGR-MJCW: “A lawyer must encourage public respect for and try to improve the administration of justice.” See e.g. Andrew Flavelle Martin, “The Lawyer’s Duty to Encourage Respect for the Administration of Justice: A Real Duty” (1 October 2025), Slaw (blog), online: <https://www.slaw.ca/2025/10/01/the-lawyers-duty-to-encourage-respect-for-the-administration-of-justice-a-real-duty/>.

[24] Code of Conduct, supra note 23, r 5.6-1, commentary 1. See also “Bill 13: Regulated Professions Neutrality Act”, 2nd reading, Alberta Hansard, 31-2, Day 16 (26 November 2025) at 569 (Janet Eremenko): “Being a regulated professional is a privilege, Mr. Speaker, that affords special opportunity but also comes with great responsibility. Certainly, if anybody is doing anything criminal on shift or off, well, there are repercussions for that, but the opinions of a person with a professional designation carry more weight, which is why unexpected claims from doctors or nurses will be further amplified online.”

[25] See Legal Profession Act, s 2.1(a): “The purpose of the Society is to uphold and protect the public interest in the administration of justice by … ensuring the independence, integrity, competence and ethical conduct of lawyers”. (Proclaimed to come into force on September 1, 2026: <https://www.alberta.ca/proclamations>; OIC 163/2026 (4 June 2026).) See also Song v The Law Society of Alberta, 2025 ABKB 525 at para 89: “the principle that a self-regulating profession must regulate in the public interest applies regardless of whether there is an express public interest clause in the enabling act.”

[26] “Bill 13: Regulated Professions Neutrality Act”, 2nd reading, Alberta Hansard, 31-2, Day 16 (26 November 2025) at 567-568 (Court Ellingson): “This bill limits sanctions of regulatory bodies to acts of physical violence, property damage, and expressive conduct of a sexual nature to a client, patient, or student. There are no comments here of hate speech, degrading speech, harmful speech towards people in our society.”

[27] “Bill 13: Regulated Professions Neutrality Act”, Committee of the Whole, Alberta Hansard, 31-2, Day 19 (2 December 2025) at 689 (Hon Mickey Amery); Alberta Human Rights Act, RSA 2000, c A-25.5.

[28] Note that while the Alberta Human Rights Act, supra note 27 does contain an offence provision, that offence is only for interference with the functions of the Commission: s 42(1).

[29] Bill 13: Regulated Professions Neutrality Act”, Committee of the Whole, Alberta Hansard, 31-2, Day 19 (2 December 2025) at 689 (Hon Mickey Amery).

[30] See e.g. Kenneth Grad, “Beyond Public Law: Recognizing a Tort Remedy for Hate Speech in Canada” (2026) 34:4 Constitutional Forum 43 at 49 [citations omitted]: “Since their initial enactment, the hate-speech provisions have been used infrequently compared with other Criminal Code offences, and the conviction rate for these crimes is significantly lower than the average for all criminal offences in Canada. Commentators have accordingly complained that hate crimes are rarely charged and seldom result in prosecution.”

[31] See e.g. Andrew Flavelle Martin, “The Limits of Professional Regulation in Canada: Law Societies and Non-Practising Lawyers” (2016) 19:1 Legal Ethics 169

[32] See “Bill 13: Regulated Professions Neutrality Act”, 2nd reading, Alberta Hansard, 31-2, Day 18 (1 December 2025) at 629 (Sarah Elmeligi): “[P]rofessional regulatory bodies are the ones who are best suited to determine what is or is not appropriate behaviour for their members.”

[33] I mean no disrespect whatsoever to the legislative drafters involved. I am confident that they effectively implemented the drafting instructions that they were given.

[34] Martin, supra note 2.

The post Again, Why? the Big Picture of the Alberta <i>Regulated Professions Neutrality Act</i> appeared first on Slaw.

Queen’s University Library has added a new chapter on “An Introduction to Researching Indigenous Legal Orders” to their Canadian Legal Research Manual.

The introduction to the chapter notes that it “provides a very brief introduction to researching Indigenous legal orders. It is not meant to be comprehensive, but rather a starting point primarily intended for non-Indigenous law students researching in an academic setting.”

It includes an overview of the terminology, an overview of sources of Indigenous law, a discussion of ethical considerations and limitations of resources, as well as a list of further reading. Suggested resources include writing from community members (both academic and non-academic), academic resources, treaties, primary (historical) resources, court cases, and trial transcripts.

— Susannah Tredwell

The post Tips Tuesday: Researching Indigenous Legal Orders  appeared first on Slaw.

Once a patent is granted, it can be asserted in litigation against an alleged infringer. One of the remedies that can be obtained is “reasonable compensation” for pre-grant infringement pursuant to section 55(2) of the Patent Act. While relief is often sought and granted for pre-grant infringement, the remedy has some subtleties, including those arising from changing practices at the Canadian Patent Office.

Section 55(2) of the Patent Act states the following:

55(2) A person is liable to pay reasonable compensation to a patentee and to all persons claiming under the patentee for any damage sustained by the patentee or by any of those persons by reason of any act on the part of that person, after the specification contained in the application for the patent became open to public inspection, in English or French, under section 10 and before the grant of the patent, that would have constituted an infringement of the patent if the patent had been granted on the day the specification became open to public inspection, in English or French, under that section.

The start date for liability for “reasonable compensation” is when the “specification contained in the application” became “open to public inspection” under Section 10 of the Patent Act. This date is presumably used because a third party first has the ability to review a pending application and assess their potential liability once it has been made available for inspection.

Section 10 of the Patent Act says that all patent applications “shall be open to public inspection”, subject to some limitations. The most important limitation is that an application shall not be open to public inspection earlier than 18 months after the priority date (or filing date if there is no claim for priority). This 18 month secrecy period is standard in most patent jurisdictions.

Patent applications that enter national phase in Canada from a PCT application are considered to have been opened for public inspection on the date the PCT application was published in English or French – see Section 157 of the Patent Rules. Since the national entry deadline is 30 months from the priority date, the national entry date for the vast majority of such applications is well after the PCT application was published.

However, the Canadian Patent Office does not have a statutory obligation to publish patent applications immediately upon the expiry of the 18 month secrecy period, only an obligation to keep pre-publication patent applications secret pursuant to Section 10 of the Patent Act and Section 16 of the Patent Rules and to make patent applications open to public inspection. This is in contrast to the Patent Cooperation Treaty (PCT) which requires publication after 18 months to be “effected promptly”.

In the past, the Canadian Patent Office published a weekly “Canadian Patent Office Record” that contained various statutorily required information (such as the list of locations that could receive physical mail required in section 5(4) of the old Patent Rules) but also patent applications newly published under Section 10 of the Patent Act. The Canadian Patent Office Record was discontinued in 2024 as part of the Canadian Patent Office’s Next Generation Patent (NGP) project.

Currently, newly published patent applications are simply added to the Canadian Patent Database and can be located using the usual search tools, including using the “Open to Public Inspection Date” field.

Because of delays in the processing of some patent applications, some patent applications have not been added to the public patent database until well after the 18 month period. As a result, the date it was open for public inspection printed on the patent cover sheet is not 18 months after the priority date but in some cases is a significantly later date. The longest located is over two and a half years after the filing date for publication of a patent application.

Because there is no longer a Canadian Patent Office Record, it can be difficult to precisely determine when a particular patent application was first made available in the patent database and therefore actually first available to be found by a search. In situations where the exact date a particular patent application was first made available in Canada is important, further investigation with the Canadian Patent Office may be required. This is particularly the case for patent applications published in the last several years.

The post Patent Publication Dates appeared first on Slaw.

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Jumping off the Ivory Tower Podcast 2. Sunday Night Administrative Review 3. Librarian of Things 4. Law of Work 5. Blogue SOQUIJ

Jumping off the Ivory Tower Podcast
Can’t Buy My Silence

Our final episode for this season focuses on the campaign to ban the misuse of non-disclosure agreements (NDAs) being led by Dr. Julie Macfarlane and Zelda Perkins. Named “Can’t Buy My Silence,” Julie and Zelda’s campaign aims to bring new law into effect in both Canada and the UK to stop victims being forced to exchange their own privacy for protecting their abuser in cases of harassment, discrimination, and bullying, and to stop employers (including schools, universities, and churches as well as both unionized and non-unionized workplaces) using NDAs to secretly “pass-the-trash” to other employers. …

Sunday Night Administrative Review
Issue 204: June 2026

Dear readers, I am working on a statutory interpretation primer for the benefit of practicing lawyers and administrative decision-makers. The primer is not a textbook or treatise. It is a much smaller and more usable how-to guide that I will update from time to time. It will be a detailed guide for how to navigate the confusion in this important area. The primer will be freely available. …

Librarian of Things
Now Is The Time of Facing Monsters

This keynote will address the contemporary intersection of technology and academic libraries using the framework of Eric Zimmerman’s Manifesto of the Ludic Century. Zimmerman argues that games are the definitional cultural form of the 21st century and that the logic of games will increasingly shape culture. …

Law of Work
Here’s What’s In the First UBER Collective Agreement in North America

The United Food and Commercial Workers (Local 1518) recently concluded the first ever collective agreement (CBA) with Uber in North America, a very significant achievement. Here’s my quick and dirty summary of the CBA. That agreement follows the certification of the UFCW by the BC Labour Relations Board last summer. The certification was based on the submission of union membership cards representing more than 55% of Uber employees in the bargaining unit, …

Blogue SOQUIJ
Child support: do not hide your salary increase

In order to maintain the value of child support, the Civil Code of Quebec requires parents to keep each other informed of the status of their respective income. Failure to comply with this obligation may have consequences, as demonstrated by a recent judgment. …

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*Randomness here is created by Random.org and its list randomizing function.

The post Monday’s Mix appeared first on Slaw.

…All my notions – notions of good and evil, of pleasant and unpleasant, of funny and serious, of ugly and beautiful – are essentially middle-class notions; my taste in books and food and clothes, my sense of honour, my table manners, my turns of speech, my accent, even the characteristic movements of my body, are the products of a special kind of upbringing and a special niche about half-way up the social hierarchy.

-George Orwell, The Road to Wigan Pier

Many in the legal profession who came from a working- or middle-class background can relate intimately to Orwell’s account of the bounded nature of common sense. The university educated, law school initiated, and professionally inaugurated, each have an intersubjective understanding of how people ought to speak, behave, and make decisions while members of their communities. This shared intuition expresses itself as a language that is not always communicated on parchment or through the spoken word. It may be expressed in the preferences one has, the assumptions one makes, the values one prioritizes, and the expectations one forms about routine human activities. It is a common tongue, a lingua franca, that draws the boundaries of what is permissible in these guarded communities, including in our own legal profession. Most importantly, for the purposes of this paper, it shapes who we – as a profession – deem worthy of admission into our ranks. In what follows, I will try to flesh out what this lingua franca is and is not, how it functions to assimilate, and by extension exclude, advocates who may think differently, and how the legal profession may try to correct the problem.

Language is Louder than Words

A. Latin as the Language of Empire

Before proceeding, it may be of help to better explain what exactly a lingua franca is and what work this metaphor is doing in expressing the central idea of this article. At its most basic, a lingua franca is a language used to communicate between populations who speak vernaculars that are not mutually intelligible.[1] During the height of the Roman Empire, for example, Latin and Greek became the lingua franca of the vast empire Rome had established by 117 AD. Whether those who were governed originally spoke Celtic, Aramaic, Syriac, Coptic, or Germanic, it was expected that Latin would be the mode by which those societies communicated when interacting with and operating in civic institutions. This adoption of a common tongue was not done voluntarily. It was an imposition from the imperial metropole onto its subjects. A practice that Canagarajah and Ben Said, both Professors of Applied Linguistics, had described as Linguistic Imperialism.[2]

The main idea of this paper is that this power-based, assimilative function of language finds expression in the profession of law in Canada through its own lingua franca, which traverses the realms of linguistics, semiotics, and normativity. It is imperial in its ambition: to impose and acculturate all those who enter the profession. It is imperial in its methods: to use the thrust of institutional power to police, sanction, and discipline. And its imperial in its consequences: to flatten distinctions, stigmatize peculiarity, and reward homogenization.

B. Two Fine Distinctions

It is important at this juncture to draw two fine distinctions that will help guide the reader’s understanding of what will follow.

First, there is a noteworthy difference between the literal language the legal profession deploys to communicate amongst themselves, and the more metaphysical language that this paper is focusing on. There is a considerable body of literature already available that focuses on the importance of using plain language in the legal profession to lower barriers to entry for those looking to access the justice system, partake in proceedings on behalf of themselves, and comprehend the various statutes, regulations, and judgements that make up the law.[3] There has even been some commentary provided on why the translation of legal resources from ‘legalese’ to the plain-language vernacular is not enough to bridge the literacy gap between lawyers and non-lawyers.[4] My central contention goes beyond the literal word or even the way lawyers think about legal problems. It focuses on normativity itself, expressed through the medium of words, behaviours, habits, rituals, practices, principles, norms, and expectations. Something that penetrates and permeates a lawyer’s life both inside and outside of their courtrooms, boardrooms, and offices. Where the ought is one everyone ought to share.

Second, it is important distinguish between lingua franca as practice and lingua franca as expectation. This article is concerned more with the latter than the former. Which is to say, while the lingua franca may have widespread adoption as practice, it is ubiquitous as a normative baseline for how a lawyer ought to speak, behave, and relate to the world around them. Thus, it may be true that some lawyers do not deploy legalese in as aggressive a manner as others. That specific terms of art may be entirely outside the lexicon of certain corners of the profession, while being an essential part of the language spoken in others. Or that styles of advocacy may deviate often and in noticeable ways from the baseline. But the presence of variation is baked into why lingua franca-as-practice is widespread while lingua franca-as-expectation is universal. Practice necessarily deviates; and when it does, the universality of an expectation becomes self-evident. To identify something as deviation is to accept and internalize the normative weight of the lingua franca. It is the point of origin. 0 and 0 on the XY graph. The baseline by which all standard deviations are identified, policed, and disciplined. And most importantly, a point of demarcation between those inside and those outside the ‘profession’.

C. The Lexicon

So, what is exactly does this language look like? Its content flows from its purpose. The lingua franca of the legal profession looks to professionalize by osmosis. It presupposes a conception of the legal professional that, when fully internalized by way of fluency, preserves the institutional authority lawyers have built up in the common law world over centuries. Its lexicon is made up of those intuitions, values, and turns of phrase that maximize the profession’s credibility, protect a client’s interests, and create a culture of collegiality. For the purposes of this article, I will not touch on whether these stated aims are actually those that should structure the profession’s normative baseline or whether they are mutually compatible. That would be better served in a sequel to this article, I will take them as a given to illustrate how what the lingua franca professes to safeguard may not align in symmetry with what the lingua franca actually asks or expects of a lawyer.

The precise content of the lingua franca is of course revealed through induction. It is based on what lawyers do, how they do it, and how they go about deciding to do it, rather than what they are asked of or required to do under the Rules. It is most certainly not based on what lawyers say. I will be relying on my personal experiences in the profession to illustrate how this language operates and what it consists of. A more muscular and formal analysis would be ideal, but I will leave that discussion for where it belongs: the ivory coated towers of the academy.

Its worth noting that what makes the lingua franca so potent and enduring is that it escapes codification, operating both through peer-based transmission and enforcement, and subtler exercises of vertical power, so personal experiences become one of the only ways to fully grasp its character. This makes the methodology of this article unconventional by nature, and a perfect fit for this platform.

Let us start with a clear and obvious example of when the lingua franca does help facilitate its aims. The lingua franca includes a strict adherence to silence when it comes to revealing any details, no matter how trivial or consequential, regarding a matter a lawyer is working on for a client. That adherence is not merely what is sketched out in the Rules. It may be true that a lawyer must hold in “strict confidence all information concerning the business and affairs of the client”.[5] But the profession as a whole conceives of this duty in a broader and more expansive sense: refusing to provide details that may, without directly naming the client, nevertheless allow one to draw inferences about who is being referred to; not repeating or disseminating information about other lawyers’ clients; and steering clear of any discussion of a client’s publicly revealed affairs.

To do otherwise would not necessarily invite the sanction of the high priestess of the LSO, but it would be taken as an indicator to other lawyers and clients that the lawyer in question has not fully embraced the foundational values from which both the Rules (and the more informal code of conduct) flow form. In such a case, the lingua franca is doing important and productive normative work, applying community-based penalties for those who diverge from crucial principles.

The problem arises when there is bona fide disagreement about whether the content is actually required for the purposes stated, or whether these informal rules are meant to satisfy an alternative function closely related to cultural, class-based, racial, or gendered preferences. For example, the Rules require a lawyer to represent a client “resolutely and honourably within the limits of the law”.[6] Yet, this is not the extent of the obligation for those who are fluent in the lingua franca. The intuition, which came as a surprise to those like me who grew up far from the hallowed grounds of affluence, is that a lawyer is to not express their personal agreement with their client’s cause. It of course makes perfect sense if the lawyer is expected to set aside their disagreement. To do otherwise would be to materially impact their ability to provide their client with the best possible advocacy. However, the notion that, outside of a pro-bono matter, the lawyer should remain stoic and impartial even as the case may have a direct impact on the lawyer’s own rights or the health of their own community is not intuitively obvious to me. Nor should it be. It is not the rights or the health of the upper classes, the non-racialized, or the secular that is usually put on trial. To them, extricating oneself from the cause of their client despite personally agreeing with it rarely will mean remaining apathetic to something that may touch on their human dignity. But to us, it often does.

If I was representing a plaintiff-focused labour and employment practice on the side of a hospitality union, as the son of a waitress and a line cook, it would come as a surprise to those I grew up with that I reserve any and all expression of my personal agreement with the cause. And yet, if I did so, I know that would attract the silent condemnation of my peers and more broadly those in my profession. Is there not value in a lawyer who expresses a passion and investment in the outcome of their client’s cause given the underpinning collective, class-based interests at stake? What precisely is the downside of doing so? Looking at the stated aims of the lingua franca, one would presume it would impact the quality of service provided to the client, the culture of collegiality in the profession, or the credibility of lawyers more generally. And yet, this seems far-fetched, counterintuitive even. The nexus appears weak, but the rule remains strong.

So how exactly then does this lingua franca assimilate and exclude?

To Assimilate and Exclude

Austrian philosopher Wittgenstein once stated that, ‘the limits of my language means the limits of my world’.[7] While the lingua franca of the legal profession may look to mould a freshly minted lawyer’s intuitions about appropriate behaviour in service of institutional authority, by structuring one’s horizon of what is possible, permissible, and desirable, and that which is not, it has a limiting effect on the type of person that may be a lawyer and advocate. It necessarily looks to flatten crucial distinctions in how lawyers may intuit differing solutions to the same problems or prioritize different values when faced with the same ethical dilemma. What may, to one pair of eyes, appear to be an exhibition in professionalism, may, to another, be a sign of isolation from present realities.

For example, in the wake of the War in Gaza I observed a chill slowly takeover the legal profession. Silence, neutrality, and apathy were the binding resolutions passed in the boardrooms of the partnerships. I am not here to state my own views on the conflict one way or another, but the point applies whichever side you fall on. To be clear, deviations happened. Lawyers spoke out in one direction or another, often being personally affected by what was taking place. But these were deviations. They were described as such, coded as such, and merited conclusions about the ‘competency’ and ‘judgement’ of the lawyer as such. The intuition that in a conflict as sensitive and contentious as this one, unstated and unwritten rules immediately went into effect about what was and was not permissible (personal) expression about the consequences of the war, was not shared by everyone. Especially to those impacted, to those who have been similarly situated, and to those who saw many of its downstream effects have a material impact at home.

Was it really an exhibition of careful judgement and discipline to refrain from expressing any view on the conflict, no matter how personal a capacity it was communicated through? Were the interests of clients actually implicated based on what Associates, Partners, or Counsel said on their personal social medias? Was the culture of collegiality necessarily one which required the sterilization of firm disagreements between lawyers about life, death, and humanity, even if it was expressed with courtesy and in good faith? Was the credibility of the legal profession adversely impacted if lawyers made public remarks about what they were witnessing in the Levant? None of these conclusions flowed naturally from the premises. These were not ‘intuitions’ that were easily activated for those who were not part of the traditional brass of the profession. These are intuitions that could only come from those raised in white-collar households, where one’s parents, siblings, and friends all practiced in high-skilled, service-based accredited professions that saw friction of any kind as fatal to business relationships, without questioning how that might impact those who have a personal stake in the friction or were raised in the vignettes of tragedy quietly observed from afar.

In this way, the lingua franca has an assimilative effect, expecting those with rough edges and coarse backgrounds to decouple themselves from their communities and the events that may impact them. To adopt as intuition what is merely a highly context-sensitive value judgement. To mould themselves in the shape of an ideal lawyer. A shape that is, in reality, not necessary to the stated purposes it seeks to fulfill. To do otherwise is to be branded a liability, to be the object of controversy, to have one’s competency and fitness to be a lawyer put under closer scrutiny. But to assimilate in this fashion is to exclude by necessity. Exclude lawyers who intuit differently. Make different assumptions. Have different experiences. And may as a consequence see effective and appropriate advocacy in a different way.

Multilingualism

To solve the problem requires first acknowledging it as a problem, which requires disentangling those norms and conventions that do work in service of the lingua franca’s stated aims, from those that do not. This is a difficult exercise. Italian philosopher Antonio Gramsci’s most famous contribution to class consciousness came from his work in the Notebooks, where he authored the concept of Cultural Hegemony. In short, without boring the reader to death, the ruling class of any community operated by the mass consent of those under its command, rather than merely coercion. That consent was cultivated, rather than organically spawned, through the mechanism of hegemony. The ruling classes used their cultural and institutional power, whether as employers, educators, representatives of the state, or norm entrepreneurs, to engender a specific set of values and norms within its rank and file. A process that was so encompassing and penetrated so deeply into the interior life of every person that at some point it became treated as mere ‘common sense’.[8]

This is ultimately how the lingua franca sustains itself in the legal profession. The vertical dissemination of norms and values – often perpendicular to their stated aims – using institutions of power in order to acculturate fluency in specific sensibilities. Once successful, horizontal enforcement takes over as peers see departures from ‘common sense’ as signs of incompetence and unprofessional behaviour. So how then does such a closed-loop system get broken open? From the top-down and bottom-up.

It requires expanding the frontier of Diversity, Equity, and Inclusion into the unvarnished and coarse terrain of the working class, where true bona fide challenges can be mounted against the prevailing orthodoxy of the profession. It requires an openness to countervailing intuitions and an explicit commitment to permitting them – within reasonable limits – as a matter of firm policy. It requires law schools to thaw the currently chilled environment in its classrooms, where professors are unaware that students are policing each other, writing papers in ways that conform to the professor’s particular ideological commitments, and treating any challenging ‘thought exercises’ done in the classroom, as fun experiments that would in no way be transferable to the ‘real world’. It requires members of the profession to recognize when common sense is being confused with context-sensitive value judgements and assessing their peers with grace and openness rather than scorn and sanction. In short, it requires upward and downward forces to collectively oust the current normativity, which admittedly is much harder said than done, no matter what language you speak.

____________________

[1] Mufwene, Salikoko, “Lingua Franca” (Accessed July 15, 2025), Encyclopedia Britannica, online: https://www.britannica.com/topic/language.

[2] Canagarajah, S., & Ben Said, S. (2011). Linguistic imperialism. In The Routledge Handbook of Applied Linguistics (pp. 388-400). Taylor and Francis. https://doi.org/10.4324/9780203835654.

[3] See: van Besien, Leen. “Plain Language in the Written Law” (2023) Georgetown Journal of Legal Ethics Vol. 36, 861-879.

[4] Jennifer Leitch. “Thinking Like a Non-Lawyer: When Plain Language is Not Enough.” (February 20, 2024) Slaw Magazine, online: https://www.slaw.ca/2024/02/20/thinking-like-a-non-lawyer-when-plain-language-is-not-enough/

[5] Rules of Professional Conduct, s. 3.3.

[6] Rules of Professional Conduct, s. 5.1-1.

[7] Ludwig Wittgenstein, Tractatus Logico-Philosophicus, trans. by C K Ogden (London: Routledge & Kegan Paul, 1922) at 5.6.

[8] Antonio Gramsci, Selections from the Prison Notebooks, ed & trans by Quintin Hoare & Geoffrey Nowell-Smith (New York: International Publishers, 1971).

The post The Lingua Franca of the Legal Profession appeared first on Slaw.

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT) : Dans une affaire de possession, d’accès et de distribution de pédopornographie, le juge de première instance a accordé un poids insuffisant aux caractéristiques personnelles de l’accusé, qui présente une déficience intellectuelle; il y a lieu de substituer à la peine prononcée une peine de 6 mois de détention dans la communauté et de déclarer inconstitutionnelle la peine minimale pour la distribution de pédopornographie.

Intitulé : Claing c. R., 2026 QCCA 926
Juridiction : Cour d’appel (C.A.), Montréal
Décision de : Juges Martin Vauclair, Mark Schrager et Stephen W. Hamilton
Date : 6 juillet 2026

Résumé

PÉNAL (DROIT) — détermination de la peine — infractions de nature sexuelle — publications obscènes — possession et distribution de matériel de pornographie juvénile — accès à du matériel de pornographie juvénile — culpabilité morale — juge ayant accordé un poids insuffisant aux caractéristiques personnelles de l’accusé — facteurs atténuants — déficience intellectuelle — problèmes de santé mentale — effets importants découlant de la détention — réinsertion sociale — proportionnalité de la peine — réhabilitation — dénonciation — dissuasion — protection contre tous traitements ou peines cruels et inusités — peine minimale — article 163.1 (3) C.Cr. — constitutionnalité — situation hypothétique — peine disproportionnée — invalidité constitutionnelle — détention — appel — substitution de la peine — condamnation avec sursis — ordonnance de purger sa peine dans la collectivité — peine concurrente — probation.

PÉNAL (DROIT) — détermination de la peine — principes généraux — les peines et la Charte canadienne des droits et libertés — protection contre tous traitements ou peines cruels et inusités — distribution de matériel de pornographie juvénile — peine minimale — détention — article 163.1 (3) C.Cr. — constitutionnalité — situation hypothétique — problèmes de santé mentale — culpabilité morale — gravité de l’infraction — peine disproportionnée — invalidité constitutionnelle — appel.

PÉNAL (DROIT) — détermination de la peine — principes généraux — facteurs à prendre en considération — culpabilité morale — juge ayant accordé un poids insuffisant aux caractéristiques personnelles de l’accusé — facteurs atténuants — déficience intellectuelle — problèmes de santé mentale — effets importants découlant de la détention — réinsertion sociale — proportionnalité de la peine — individualisation de la peine — réhabilitation — dénonciation — dissuasion — possession et distribution de matériel de pornographie juvénile — accès à du matériel de pornographie juvénile — détention — appel — substitution de la peine — condamnation avec sursis — ordonnance de purger sa peine dans la collectivité — peine concurrente — probation.

PÉNAL (DROIT) — garanties fondamentales du processus pénal — protection contre tous traitements ou peines cruels et inusités — distribution de matériel de pornographie juvénile — peine minimale — détention — article 163.1 (3) C.Cr. — constitutionnalité — situation hypothétique — problèmes de santé mentale — culpabilité morale — gravité de l’infraction — peine disproportionnée — invalidité constitutionnelle — appel.

DROITS ET LIBERTÉS — droits judiciaires — protection contre tous traitements ou peines cruels et inusités — distribution de matériel de pornographie juvénile — peine minimale — détention — article 163.1 (3) C.Cr. — constitutionnalité — situation hypothétique — problèmes de santé mentale — culpabilité morale — gravité de l’infraction — peine disproportionnée — invalidité constitutionnelle — appel.

DROITS ET LIBERTÉS — réparation du préjudice — invalidité constitutionnelle — protection contre tous traitements ou peines cruels et inusités — distribution de matériel de pornographie juvénile — peine minimale — détention — article 163.1 (3) C.Cr. — peine disproportionnée — appel.

PÉNAL (DROIT) — procédure pénale — procédure fédérale — niveau de précision de l’avis au procureur général du Québec — article 76 C.P.C. — protection contre tous traitements ou peines cruels et inusités — situation hypothétique — rôle du procureur général du Québec — appel.

Appel de la peine. Accueilli en partie; une peine d’emprisonnement avec sursis de 6 mois est substituée à la peine d’emprisonnement de 12 mois ayant été prononcée en première instance, et la Cour déclare inconstitutionnelle la peine minimale prévue à l’article 163.1 (3) du Code criminel (C.Cr.).

La Cour du Québec a condamné l’appelant à une peine globale de 12 mois d’emprisonnement pour avoir accédé à de la pédopornographie, en avoir eu en sa possession et en avoir distribué. Le juge de première instance s’est abstenu de se prononcer sur la constitutionnalité des peines minimales, soit une question que soulevait l’appelant, lequel souffre d’une déficience intellectuelle à laquelle s’ajoutent d’autres troubles de santé mentale.

Décision

M. le juge Schrager: Le juge a accepté que la responsabilité morale de l’appelant soit «très grandement diminuée» par ses caractéristiques personnelles et il a réduit la peine carcérale de quelques mois pour tenir compte de ce fait. Il s’agit là d’une sous-estimation de la mesure dans laquelle sa culpabilité morale est diminuée. En effet, malgré les 5 rapports d’experts et le témoignage de 2 d’entre eux, le juge a consacré très peu d’attention aux conclusions de ceux-ci dans ses motifs. Il s’ensuit que le juge, ayant reconnu ses maladies mentales et leur lien avec la commission des infractions, devait insister davantage sur l’objectif de réhabilitation plutôt que sur ceux de dénonciation et de dissuasion. Ces derniers objectifs étaient certes importants à la lumière de l’article 718.01 C.Cr. et de divers facteurs aggravants qui ne sont pas contestés. Toutefois, l’insistance sur ces derniers va à l’encontre d’une tendance jurisprudentielle qui consiste à accorder moins d’importance à la punition dans le cas des délinquants atteints de troubles mentaux. La preuve au dossier permet de comprendre que la détention provisoire a eu des répercussions néfastes sur l’appelant.

L’accent mis par le juge sur la dénonciation et la dissuasion, compte tenu notamment de la gravité de l’infraction et de ses conséquences sur les victimes, l’a conduit à subordonner le principe fondamental de la proportionnalité et à négliger d’autres manières d’atteindre ces objectifs, outre une peine d’emprisonnement ferme. La peine de détention en établissement est particulièrement sévère, considérant le profil de l’appelant. De plus, ce dernier a été en détention pendant 2 mois après son arrestation et pendant 73 jours supplémentaires entre son plaidoyer de culpabilité et le jugement entrepris. Elle est également déraisonnable dans la mesure où le juge a omis les autres objectifs de la peine, outre la dénonciation et la dissuasion, qui étaient également hautement pertinents pour arriver à une peine juste, compte tenu du profil particulier de l’appelant. L’incarcération en prison pour ce contrevenant fait fi du principe de l’individualisation et révèle une sévérité telle qu’elle empêchera sa réinsertion sociale. L’erreur de principe qui entache la décision du juge justifie l’intervention de la Cour pour substituer à la peine prononcée, tenant compte de la détention provisoire équivalant à 73 jours, une détention dans la collectivité de 6 mois.

Concernant la constitutionnalité de la peine minimale obligatoire prévue à l’article 163.1 (3) a) C.Cr., les peines infligées pour la distribution de pornographie juvénile doivent continuer à refléter les exigences législatives afin de rester en phase avec la compréhension actuelle du tort immense que cause cette infraction. Cependant, les objectifs de dissuasion et de dénonciation ne peuvent être poursuivis au mépris de l’accusé et de son degré de culpabilité morale. Le délit de diffusion de pédopornographie recouvre toute une série de comportements et de types de contenus dont le caractère répréhensible varie. Il existe des situations raisonnablement prévisibles dans lesquelles une telle peine serait excessivement sévère. Les situations présentées ici, ainsi que celle de l’appelant, mettent en évidence la cruauté d’une telle peine pour certains accusés vulnérables dont les actes se situent au bas de l’échelle de gravité. En conséquence, cette peine minimale viole l’article 12 de la Charte canadienne des droits et libertés.

M. le juge Vauclair: La réponse à l’inconstitutionnalité des peines minimales s’appuie sur la jurisprudence récente, soit les arrêts Québec (Procureur général) c. Senneville (C.S. Can., 2025-10-31), 2025 CSC 33, SOQUIJ AZ-52166252, 2025EXP-2453, ainsi que R. c. Gagnon (C.A., 2026-04-29), 2026 QCCA 583, SOQUIJ AZ-52213554, 2026EXP-1117, (distribution; peine minimale déclarée inopérante) et R. v. Pike (C.A. (Ont.), 2024-08-09), 2024 ONCA 608, SOQUIJ AZ-52051671 (par. 183; distribution par importation; peine minimale déclarée inopérante). En outre, la présente formation est liée par l’arrêt Gagnon. L’inconstitutionnalité des peines minimales repose également sur les caractéristiques de l’appelant et sur les effets cruels et inusités de la peine minimale dans son cas. Ainsi, les peines minimales, y compris la peine prévue à l’article 163.1 (3) C.Cr., sont contraires à l’article 12 de la charte. Quant à la position du procureur général du Québec selon laquelle l’appelant serait forclos de faire valoir des situations raisonnablement prévisibles qui ne figurent pas précisément dans son avis exigé par l’article 76 du Code de procédure civile, elle est exorbitante du droit et du rôle de ce dernier.

Le texte intégral de la décision est disponible ici

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As a supplement to our Sunday Summary each month, Supreme Advocacy LLP in Ottawa presents Supreme One-Liners, a super-short descriptive guide to the most recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers its more comprehensive weekly electronic newsletter, Supreme Advocacy Letter, summarizing all Appeals, Oral Judgments and Leaves to Appeal granted.

Appeals

Real Property: Riparian Rights
Zardev Inc. v. Dydzak, 2026 SCC 27 (41291)

Clarifications re riparian rights, submerged lots, accessories.

Leave to Appeal Granted

Administrative Law/Police: Mandamus
Royal Canadian Mounted Police External Review Committee, et al. v. Benison, et al., 2026 FCA 53 (42332)

Mandamus in administrative law & police context.

Civil Litigation/Arbitration: Standard of Review
Buffalo Point First Nation, et al. v. Buffalo Point Cottage Owners Association Inc., 2025 MBCA 72 (42053)

Standard of review re commercial arbitration.

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This is the sixth article in my series on RECLAIM, a cultural operating system for law firms built on how human beings are actually wired. Having covered Respect, Equity, Clarity, Learning, and Autonomy, I turn this month to the I: Inclusion.

A few years ago, I coached an associate in the real estate group of a large firm. She could have written a recruiting brochure for her team without exaggerating a word.

The group did the biggest deals in the city, and they knew it. They were proud of the work, and prouder of how they did it together. No one carried more than their share. When one lawyer was buried, another picked up a file without being asked. They protected each other’s time off, so a vacation actually stayed a vacation. When there was a marketing dinner or an industry conference, they went as a group and worked the room as a group.

She told me she had never felt so much a part of something in her career.

Then she said something I have thought about many times since. She had turned down two recruiter calls in a single month without a second thought. She simply could not imagine leaving these people.

That is what inclusion buys a firm.

It is worth naming what was happening in her nervous system while she felt all of that, because it explains why belonging is so powerful and why its absence is so costly.

Why Inclusion Is Not Optional

In the RECLAIM cultural operating system, the I stands for Inclusion. Inclusion is the brain’s answer to a fast, ancient question.

Am I in, or am I out?

Social neuroscientists have shown that our brains are constantly sorting the people around us into friend or foe. This happens in a fraction of a second, below awareness, and it shapes everything that follows. When someone is read as part of our group, the brain processes them using circuits close to the ones it uses to think about ourselves. When we feel outside the group, those circuits go silent and the brain treats the situation as a threat. This is the ancient drive to belong, and it is very much alive in a modern law firm.

The scientists who study this describe findings that are sobering. Neuroscientist John Cacioppo describes safe human connection as a primary need, on the order of food and water. Matthew Lieberman and Naomi Eisenberger found that social exclusion activates the same regions of the brain as physical pain. Being left out does not merely feel bad in a vague way. The brain registers it as an injury.

Inclusion is a performance lever. It is also a retention lever.

When people feel included, their nervous systems settle. They take risks. They ask the awkward question in the meeting. They surface a problem on a file early, while it is still fixable, instead of hoping no one notices. They stay.

When people feel excluded, the brain moves into protection. Attention narrows. Trust drops. People stop volunteering ideas and start managing their own exposure. And eventually, they leave, often for reasons a firm never fully understands.

What Inclusion Actually Means in a Law Firm

Let me clear up a common confusion first. When I talk about inclusion in the RECLAIM model, I am talking about whether the people in your firm feel connected, safe, and part of the group. This overlaps with diversity and belonging work, and a firm serious about one should be serious about the other.

Here is what Inclusion in the RECLAIM model looks like when it is present in a law firm.

Connection built into the ordinary day

The real estate group did not manufacture belonging at an annual retreat. They built it in the daily texture of the work. Picking up a colleague’s file. Walking into an event together. Knowing that a hard week would be shared rather than shouldered alone.

Belonging lives in the small, repeated interactions far more than in the big gathering. The team dinner matters. What matters more is whether someone notices you had a rough week and checks in with you. It is the partner who sees an associates hours are unusually high and asks if they can take some of the load off.

Psychological safety

Amy Edmondson’s research on psychological safety describes an environment where people feel safe to speak up, ask questions, and admit mistakes without fear of humiliation. This is inclusion doing its most valuable work.

The stakes are concrete. A first-year associate who feels safe will tell you they do not understand the assignment before they spend eight unbillable hours going the wrong direction. An associate who feels safe will flag the missed limitation date the moment they catch it. Silence is expensive in this profession. Safety is what buys you information while it is still useful.

Being looped in

Inclusion shows up in who gets included in the conversation. Who is copied on the email. Who is invited to the strategy call. Who has a part in the decision making process.

Exclusion does not have to be intentional to do damage. A lawyer who consistently learns about decisions that affect their work second hand will draw a conclusion about where they stand, and it will not be a generous one.

Leading with the benefit of the doubt

One of the advisers at the Flourishing Law Centre, Amy Binder, talks about leading with the benefit of the doubt. When an associate turns in work that misses the mark, the instinct is to assume they did not care enough. Before landing on that judgment, back up and assume for a moment that they were doing their best with what they had.

That assumption, held consistently, provides a central foundation for creating a sense of belonging. People can feel whether their leaders are looking for reasons to trust them or reasons to doubt them.

The Small Moments That Undermine Inclusion

Inclusion rarely collapses in one dramatic event. It erodes in ordinary moments which taken on their own seem too small to matter.

The associate left off the email chain about their own file.

The decision announced in a meeting they were not invited to.

The partner who goes silent for two weeks during a crunch, so the junior on the file has no idea whether they are doing well or badly.

The event where the same three people always get introduced to the client, and the fourth learns to stop expecting it.

The team lunch that happens to land on the day the part-time lawyer is not in.

Each of these can be explained away. Together they send a steady signal about who is inside the group and who is on its edge. Meanwhile, the brain is keeping score.

Operationalizing Inclusion

If you are a partner wondering what to do differently on Monday, start with three practices.

1. Listen for who is not speaking

In every meeting, there are voices you hear from and voices you do not. Inclusion asks you to notice the difference. Who has gone silent? Who has not been asked? Whose idea got passed over without acknowledgment?

Creating space to participate is a leadership act, not a courtesy. Belonging grows when people learn that their contribution is expected, not merely permitted.

2. Maintain connection under pressure

When a firm gets busy, connection is the first thing partners tend to drop. Heads go down. Communication shrinks to task assignments. The junior on the file hears nothing for days and fills the silence with worry.

This is exactly backwards. The need to feel connected runs highest exactly when people are under strain, so pressure is when connection matters most. Do not withdraw. Do not go dark. A two-line message acknowledging the grind, or a thirty-second check-in on how someone is holding up, does more for a team under strain than any amount of warmth once the deal has closed.

3. Build belonging into your systems, not just your personality

If inclusion depends on one charismatic partner, it leaves when that partner does. I have watched a strong culture evaporate the week its unofficial glue walked out the door.

Belonging holds when it is built into how the firm operates. Onboarding that connects a new lawyer to a real person, not just a policy binder. Mentoring pairs and small working groups where trust can actually form, since trust forms more easily in small groups than large ones. Meeting practices that reliably surface quieter voices. Distribution of client-facing opportunities so the same people are not always in the room. When belonging lives in the structure, it survives turnover.

A Final Thought

I want to return to the associate in the real estate group, because her story has a second chapter that makes the point better than I can.

Sometime later, she was assigned to a file with a new partner, and the working relationship became difficult enough that she started taking recruiter calls she would once have ignored. She began to wonder whether it was time to leave.

Because her group had built such a strong sense of belonging, she felt safe enough to bring this to her partners directly. Their response was immediate. There was plenty of work and plenty of people who worked well with that partner. They took her off those files, handled the conversation cleanly, and kept her. No hard feelings. A future leader of the group stayed.

That could have gone a hundred different ways, and most of them end with the firm losing her and never knowing why. It went the way it did because she was safe enough to have the conversation.

That is what inclusion is worth. A team whose people bring you their problems while there is still time to solve them, and who cannot picture themselves anywhere else.

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Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Canadian University Law: Essentials for Legal and Higher Education Professionals. By Sayeh Hassan & Anna S.P. Wong. Toronto: LexisNexis, 2025. xv, 212 p. Includes bibliographic references and index. ISBN 9780433533450 (softcover) $120.00.

Reviewed by Julie A. Lavigne
Legal Studies Librarian
Carleton University

Academic freedom and institutional autonomy, both foundations of the modern-day Canadian university, are surprisingly underdeveloped areas of the law. Courts have traditionally found that, despite receiving public funding and serving a public purpose, universities are not government institutions and therefore are not bound by laws that would otherwise apply, most notably the Canadian Charter of Rights and Freedoms. At the same time, private law rules have often been found to be lacking. Lawyers Sayeh Hassan and Anna S.P. Wong have written Canadian University Law: Essentials for Legal and Higher Education Professionals to serve as a road map for navigating this public–private terrain.

The first half of the book looks at the current state of the law. In his foreword, law professor Kent Roach writes about the importance of understanding academic freedom as well as the role of collegial governance within academia. Chapters 1 and 2 look at the concept of academic freedom in more detail, using the recent abortive hiring scandal of Dr. Valentina Azarova at the University of Toronto as a springboard. Chapters 3 and 4 take deep dives into administrative and private law, the two substantive law fields that are most relied upon in litigation involving universities. These chapters outline the main mechanisms for appeal and judicial review (and their appropriate use) and compare outcomes in academic versus non-academic disputes.

The authors see university-based Charter litigation as a growth industry, turning their focus to the Charter and its application to university issues in the second half of the book. This half, unfortunately, was not as well-executed as the first. Chapter 5 sets out a history of the Charter, highlighting key cases heard under each section. While a useful overview, this book is not meant to be an introductory text; readers will likely already have a passing familiarity with the Charter, so it does not seem necessary to include here. Chapter 6, on the other hand, meticulously examines whether the Charter applies to universities, laying out the inconsistencies and challenges inherent in this area of the law. Chapter 7, which discusses remedies, suffers from the same problem as Chapter 5. Even though the authors note that “many of the remedies … may be relevant and can apply to university-Charter cases” (p. 182–83), the discussion around applying these remedies was underdeveloped, barely filling one page at the end of this chapter.

In Chapter 8, the authors return to the question of academic freedom and the related freedoms in section 2 of the Charter (freedom of religion, expression, assembly, and association). This excellent, detailed analysis is then capped by a few pages that revisit the question of whether the Charter even applies—a repetition of arguments from Chapter 6. Chapter 9 concludes the text by looking at contemporary developments, such as the adoption of Québec’s Bill 32, the Academic Freedom Act.

Despite these concerns, the writing is concise and easy to follow. The book is obviously well researched with extensive footnotes; however, a table of cases and a list of references would have been helpful. Instead, each reference was cited in its entirety every single time (i.e., no use of ibid, supra, or any other means of cross-referencing), which felt overwhelming. There was no way to simply consult a complete list of references, nor could I quickly see where or how many times each case was discussed. There is an index, but it only listed a couple of cases and did not go into this level of detail.

I would nevertheless recommend libraries acquire this text as it helps to fill a gap in the literature. While Michiel Horn’s 1999 text Academic Freedom in Canada: A History (UTP, 1999) continues to be regularly cited, not many books published in the last decade or so have focused on academic freedom or broader issues of university governance, and even fewer in the Canadian context. This book would be an excellent addition to any law library. While the subject matter is too advanced for most public library patrons, other specialized libraries or organizations dealing with universities and their academic staff (such as unions and faculty associations) will also find this text invaluable.

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Over the past several years, artificial intelligence has moved steadily from the margins of organizational life toward the centre of ordinary operations. It now appears throughout the systems organizations rely upon and the work their people perform, frequently arriving without any deliberate decision to adopt it. For a growing number of organizations, the question is no longer whether artificial intelligence will appear in some form. It has already arrived, and that development carries real implications for boards of directors.

I have spent a fair amount of my career in and around boardrooms, working on questions of corporate governance, non-profit governance, and the oversight of various adjudicative and institutional bodies. One lesson that experience has reinforced is that boards tend to function best when they are able to engage an issue at the right level. They are not well suited to performing operational work, and they add little by descending into technical detail. Their contribution lies in the exercise of judgment, the framing of risk, and the assurance that the organization has addressed a problem with the diligence it deserves.

Artificial intelligence is unusually easy to place at the wrong level. Because the underlying tools are technical, it can be mistaken for a matter best left to information technology. Because management and staff are closest to its day to day use, it can appear to be a purely operational concern. And because it raises questions of privacy, confidentiality, and regulatory exposure, it is sometimes treated as a discrete legal problem to be resolved by counsel. In practice it tends to engage all of these dimensions at once, which is precisely why it belongs, at the appropriate threshold, within the board’s field of view.

None of this means that every use of artificial intelligence requires the board’s attention. Most will not, and a board that tried to supervise each new application would quickly exhaust itself to no purpose. The more important discipline is to recognize the threshold at which a particular use ceases to be a mere convenience and becomes a material risk to the organization. By the same token, the complexity of the subject is no reason for directors to hold back. The temptation to regard artificial intelligence as too novel or too technical for the boardroom is understandable, but it should be resisted. Boards routinely oversee matters in which they hold no personal expertise, and artificial intelligence is, in the end, another complex governance question of that familiar kind.

For Canadian directors, the relevant legal framework will be familiar. Directors are responsible for managing, or supervising the management of, the business and affairs of the organization. They owe fiduciary duties, and they are required to exercise the care, diligence, and skill of a reasonably prudent person in comparable circumstances. These obligations do not amount to a manual for the governance of artificial intelligence, but they are more than adequate as a starting point. When a new technology becomes significant to an organization’s operations, its risk profile, or its relationship with the people it serves, directors should expect to receive enough information to exercise genuine oversight rather than nominal awareness.

In my view, three considerations follow. The first is that artificial intelligence is best understood as a category of enterprise risk rather than as a matter of technical implementation. The second is that directors require a practical form of literacy, sufficient to ask informed questions of management and advisors, though well short of the technical fluency of a specialist. The third is that, should an incident occur, the governance record may prove central to how the organization is able to account for its conduct.

AI as Enterprise Risk

The first point concerns where artificial intelligence belongs within the organization’s overall assessment of risk. This may seem obvious, yet it is rarely how the technology actually enters an organization. More often it arrives quietly, and from several directions at once. An employee begins using a publicly available generative tool to summarize documents or prepare a first draft. A vendor introduces an AI feature into a platform the organization already uses. A manager, seeing an opportunity to improve productivity, encourages a team to experiment. Each of these steps is unremarkable in isolation, and each reflects the ordinary, incremental way in which most technologies make their way into institutional life. The difficulty peculiar to artificial intelligence is that uses which appear modest at the point of adoption can carry legal and institutional consequences that are anything but modest.

A single tool may quietly come to process personal information, confidential records, or privileged material. It may begin to influence consequential decisions, such as who is hired or how an internal complaint is handled. It may also create a dependence on external vendors whose data practices and contractual terms lie largely beyond the organization’s control. In each case the salient question extends past whether the tool produces a useful result, reaching the more demanding question of whether the organization genuinely understands the consequences of relying upon it.

None of this is foreign to the work boards already do. Financial reporting, cybersecurity, and major procurement all demand expertise that individual directors may not personally possess, and in each instance the board’s function is one of oversight rather than execution. Its task is to satisfy itself that management has identified the risk, assigned responsibility for it, established appropriate controls, and arranged for reporting proportionate to the significance of the matter. Understood in this way, artificial intelligence sits comfortably within an established governance tradition rather than outside it.

A board should be in a position to receive a clear account of how artificial intelligence is being used within the organization, the purposes it serves, the information it draws upon, and the persons responsible for its approval and ongoing supervision. Where the use is low in risk, that account may be brief. Where it is more consequential, it should be correspondingly fuller. The governing principle is proportionality, in that the depth of oversight ought to reflect both the nature of the use and the potential for harm.

For many organizations, a sensible first step will be a straightforward inventory of how and where artificial intelligence is actually in use. The exercise is unglamorous, but it is frequently indispensable, for it is impossible to govern a risk that has not first been identified. That task becomes considerably harder when the risk is dispersed across the organization through ordinary software, informal staff practices, and vendor-driven upgrades that no one specifically chose.

AI Literacy and Director Oversight

The second point concerns the kind of literacy directors actually require, a term that should be handled with some care. Literacy in this context does not mean technical mastery. No one should expect a director to understand model architecture, the composition of training data, or the underlying mathematics of machine learning. What directors require instead is a sufficient grasp of the categories of risk to ask intelligent questions, to recognize when an answer is reassuring in tone but empty in substance, and to sense when an organization is relying on assumption where it ought to be relying on control.

This becomes especially important precisely when a risk is novel, fast-moving, and potentially significant, which is to say in the very circumstances that most tempt a board to keep its distance. The proper response to such a moment is to lean in rather than to withdraw, to press far enough to understand what management knows, what it does not yet know, and how it proposes to proceed. None of this converts directors into operational managers. It does, however, require them to treat novelty and complexity as reasons for closer attention rather than as occasions for deference.

The questions a board should be willing to ask are not, for the most part, technical ones. They are questions of the plainest kind. Is artificial intelligence in use within the organization, and if so, by whom and with what information? Has management drawn any distinction between routine, low-risk uses and those carrying greater consequence? Are there applications that ought to require approval before they proceed, and is it clear what would prompt a matter to be escalated to senior management or to the board itself? Questions of this sort are simply the ordinary instruments of governance, applied to an unfamiliar subject.

They also guard against one of the more persistent difficulties in this area, namely the diffusion of responsibility. A new tool may be examined in turn by information technology, by legal, by procurement, and by those responsible for privacy or compliance, with each function considering the portion of the problem nearest to it and quietly assuming that the remainder is being attended to elsewhere. In the absence of a deliberate structure, responsibility becomes diffuse, and ownership of the risk comes to rest nowhere in particular.

It falls to the board to resist that drift. It can ask management to identify, by name or by role, who owns the risk associated with artificial intelligence; to fold that risk into the enterprise risk processes the organization already maintains; and to report on the uses that genuinely matter. Most usefully of all, it can ask the two questions that tend to be the most revealing, which are whether the organization has a policy that corresponds to what its people are in fact doing, and whether that policy is in fact being followed.

None of this should be read as an argument for excessive caution. There are many genuinely valuable applications of artificial intelligence, and organizations ought to feel free to pursue them. Sound governance does not impede innovation. More often it enables innovation, by making plain what acceptable use looks like and where accountability resides. Experimentation in itself is healthy and should be encouraged. What ought to concern a board is the particular kind of experimentation that proceeds without visibility, without structure, and without any clear point of accountability.

The Governance Record

The third point concerns the record itself, and the part it may come to play if something goes wrong. At the outset of an initiative the conversation is naturally dominated by the promise of the technology, by the prospect of faster work, better service, or reduced cost, and a board is right to remain open to the genuine possibility that artificial intelligence will improve how the organization performs. After an incident, however, the character of the questions changes entirely. Who authorized the use? What did the organization understand at the time, and what risks had it identified? Was there a policy in place, and was it observed? Was anyone charged with monitoring the system, and did any of this ever come before the board?

In that altered light, the documentary record acquires real importance. Board minutes, committee materials, management reports, and the risk register may demonstrate that the risk was identified, considered, assigned, and monitored, that the board asked reasonable questions, and that it relied appropriately on management and its advisors. They may establish that the organization took a measured and proportionate approach to a developing problem. They may also, of course, show very little at all.

A sparse record does not, in itself, signify poor governance. Minutes are not transcripts, and there are sound reasons not to commit every discussion to exhaustive detail. Where artificial intelligence is being used in ways capable of materially affecting the people an organization serves, however, whether its clients, its employees, or the public at large, some visible evidence of governance attention will be important. This is particularly so where the technology bears upon significant decisions or sensitive information. A system used merely to assist with the formatting of documents does not raise the concerns presented by one used to screen applicants for employment, to determine eligibility for a service, or to inform advice that affects a person’s legal rights. The graver the potential consequence, the more a board will wish to see that the matter received attention commensurate with its importance.

No board can reasonably be expected to prevent every possible failure. Even well-governed systems err, and the legal and technical terrain continues to shift. The pertinent question is therefore a narrower one, namely whether the board conducted itself with care, diligence, and skill in the circumstances as they actually were. Did it seek out sufficient information? Did it understand the nature of the risk? Did it satisfy itself that management had a process, and did it return to the matter as the organization’s use of the technology expanded? A coherent record assists in answering precisely these questions. It may show that the board asked management to map the organization’s existing uses of artificial intelligence, to separate the routine from the consequential, to put a workable policy in place, and to specify the circumstances in which a use or an incident must be escalated. No single one of these steps is dramatic. Taken together, they describe a board attending seriously to a real and developing risk.

Conclusion

Artificial intelligence has entered the boardroom because it has entered the organization, and it has done so in ways that touch operations, legal obligation, reputation, and institutional trust. This is not a concern confined to those organizations that build such systems. It applies with equal force to those that purchase such tools, that permit their staff to experiment with them, or that depend upon vendors who have quietly embedded artificial intelligence within familiar products.

For Canadian directors, the existing framework of duties is sufficient to begin. The obligation to manage or supervise the management of the organization, the fiduciary duties, and the requirement of care, diligence, and skill together point toward informed oversight whenever a new and material risk takes shape. Artificial intelligence does not ask directors to become technologists. It asks boards to understand enough to put useful questions, and to ensure that responsibility for the risk rests somewhere identifiable rather than nowhere at all.

For most boards the early steps are modest enough. They involve asking where artificial intelligence is in use and what information it touches, asking who is accountable for it and what circumstances would warrant escalation, and asking, in the end, the question that draws the others together. Were the organization’s use of artificial intelligence to be questioned at some later date, would its records reveal a considered and proportionate approach, or would they reveal a board that had simply looked away?

In my experience, directors grow markedly more comfortable with artificial intelligence once the subject is restored to the familiar language of governance. A board need not chase every technical development or react to every passing headline. It does need to recognize the moment at which a developing technology has become significant enough to warrant structured oversight, and for a great many organizations that moment has already arrived. The boardroom need not become a technical forum. It does, however, need to ensure that the risks associated with artificial intelligence are no longer invisible within it.

Should an artificial intelligence system one day fail, the inquiry will concern itself not merely with the conduct of the system but with the conduct of the organization, and in particular with the manner in which its board governed the technology’s use. Such an inquiry tends to begin where the present discussion ends, with a careful reading of the record and a single, unavoidable question: what would the minutes show?

The post What the Minutes Show: Boards and the Governance of AI appeared first on Slaw.

Rachel Birnbaum and Nicholas Bala’s recent discussion paper, Shaping the Future of Child-Inclusive Mediation in Canada, is an important contribution to the ongoing evolution of family mediation practice in Canada.

The paper provides a thoughtful overview of the research supporting child-inclusive mediation and reaffirms the principle that children should have opportunities to participate in decisions that affect their lives. As the authors note:

“The objective of child-inclusive mediation is not to have children making decisions but adding their input to the decision-making process. The research demonstrates that when children are consulted and included, they have better outcomes.”

Yet despite growing awareness of the benefits, implementation remains uneven. The paper notes that only about one-third of Ontario family mediators report involving children directly in their practice.

Birnbaum and Bala make several recommendations to address this gap, including the development of national policies, standards, and training relating to child-inclusive mediation. They also recommend the creation of an advisory group to assist Family Mediation Canada in this work.

I fully support these recommendations. And I would add one more suggestion.

If we are creating policies and standards about children’s participation, children and youth should participate in creating them – in a meaningful way. Not as symbolic members of a committee. They interpret that as “tokenism”. Not as an afterthought once a draft has been completed. Rather, as meaningful partners in the design process.

In our work with young people through the Family Justice Innovation Lab and the Transform the Family Justice System Collaborative, many young people have expressed frustration at being invited to consultation sessions but being asked to take notes or having only one young person in a room full of professionals discussing policies directly affecting children and youth.

This idea is not revolutionary. Across Canada and internationally, governments, researchers, educators, and community organizations are increasingly involving children and youth in the development of policies, programs, legislation, and services that affect them. Those with lived experience often have insights that professionals cannot provide on their own.

The same principle applies to policies and legislation governing the field of mediation.

Children and young people are uniquely positioned to tell us what helps them feel safe, respected, informed, and heard. They can identify barriers that adults may overlook. They can point out language that feels confusing or intimidating. They can help us understand the difference between participation that feels meaningful and participation that feels performative. Young people also tell me that participating in this way also supports their well-being and reassures them they are not alone.

The challenge, of course, is that meaningful participation is more complicated than simply asking for opinions.

In my last Slaw post I discussed the Lundy Model of participation, which was developed as a practical framework for implementing Article 12 of the United Nations Convention on the Rights of the Child. The model reminds us that participation involves more than voice. It requires four elements: space, voice, audience, and influence.

Children need safe opportunities to express their views. They need support to communicate those views. Decision-makers must genuinely listen. And perhaps most importantly, children need to understand how their views were considered and what impact they had on the outcome.

I believe that this framework is just as relevant to policy development as it is to individual family disputes.

I will bet that Family Mediation Canada has already considered this reminder. If it establishes an advisory group to develop standards for child-inclusive mediation, the Lundy Model offers a useful roadmap. Young people could be involved from the outset rather than consulted only after decisions have largely been made. Draft policies and training materials could be reviewed by youth participants. Feedback could be actively sought and incorporated. Most importantly, those young participants could be informed about how their contributions shaped the final product.

In other words, the process used to create the standards could reflect the same participation principles that the standards seek to promote.

Other mediation organizations could do the same. Also, the implications extend beyond family mediation. Similar questions arise in parenting coordination, child protection mediation, foster care planning, and other out-of-court dispute resolution processes involving children and youth. Wherever professionals are designing systems intended to serve children, there is value in asking whether children themselves have been invited into the conversation.

If we believe that children’s voices matter in decisions affecting their lives, it seems reasonable that they should also have a role in shaping the policies, standards, and training that govern how those voices are heard.

The post Voice Is Not Enough: Co-Creating the Future of Child-Inclusive Mediation appeared first on Slaw.

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Legal Feeds 2. The Trauma-Informed Lawyer 3. Michael Geist 4. Double Aspect 5. Timely Disclosure

Legal Feeds
SCC affirms 7-2 that methods of medical treatment cannot be patented in Canada

Methods of medical treatment cannot be patented under Canadian law, the Supreme Court of Canada ruled in a split decision Friday, affirming Canada’s approach to medical patents for the past half-century. In a blow to Pharmascience Inc., however, the SCC said this principle does not entitle the Quebec-based pharmaceutical company to market a generic version of a Janssen Inc. drug by advising patients to use the latter company’s patented dosing regimens. According to the SCC, Janssen’s dosing regimens do not amount to a method of medical treatment. …

The Trauma-Informed Lawyer
Emotional Justice, Racial Healing and the Work We Must Do with Esther A. Armah

Esther Armah is a Ghanaian-British journalist, playwright, radio host, and creator of the Emotional Justice framework. She is the author of Emotional Justice: A Roadmap for Racial Healing. She joins this episode from Accra, Ghan…

Michael Geist
Why the Government’s Plan for a Social Media Ban in Bill C-34 Is Unconstitutional

The debate over the government’s proposed social media ban for under 16s has raised several difficult questions, including doubts about whether it will work, which services it will cover, and what risks to privacy mandating age verification could create. But beyond the operational questions is a more fundamental one: is the ban constitutional? Bill C-34 contains some signals that the government knows there are serious constitutional vulnerabilities, given the obvious implications for freedom of expression that come from blocking an entire cohort of Canadians from accessing information and expressing themselves on social media. The bill contains several provisions that are seemingly designed to act as safeguards that could be used to argue that the ban is proportionate. …

Double Aspect
Booking – My plan for a forthcoming book on constitutional interpretation in Canada

Some personal news, and of a happier varierty than in my last post (though it won’t be news to those who have seen my posts on Twitter and Bluesky): a couple of weeks ago I signed a contract for what will be my first monograph, to be published by Hart. The (provisional) title is Interpreting the Supreme Law of Canada: Meaning, Purpose, and Principle. The manuscript is due on June 1, 2027 and, if all goes to plan, publication should be in early-ish 2028. And in further news that that I haven’t yet spilled, …

Timely Disclosure
Capital Markets and Mergers & Acquisitions Bulletin

Sellers use auctions to create competitive tension in pursuit of better deal value, deal terms, and deal certainty. The sellers’ control over the auction’s timing and process also allows them to plan and deploy a target and market-specific auction strategy. …

_________________________

*Randomness here is created by Random.org and its list randomizing function.

The post Monday’s Mix appeared first on Slaw.

As a supplement to our Sunday Summary each month, Supreme Advocacy LLP in Ottawa presents Supreme One-Liners, a super-short descriptive guide to the most recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers its more comprehensive weekly electronic newsletter, Supreme Advocacy Letter, summarizing all Appeals, Oral Judgments and Leaves to Appeal granted.

Leave to Appeal Granted

Sentencing: Mandatory Minimums
Quebec (Attorney General) v. Denis, 2026 SCC 25

Mandatory minimum of six months for obtaining sexual services from minor is constitutional.

Intellectual Property: Patents
Pharmascience Inc. v. Janssen Inc., 2026 SCC 26 (41209)

What is/is not patentable.

The post Summaries Sunday: Supreme One-Liners appeared first on Slaw.

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT) : L’usage que faisait l’appelante de son téléphone cellulaire au moyen d’un dispositif mains libres intégré à son véhicule n’était pas un usage autorisé en raison du fait qu’elle tenait en main son appareil durant la conversation téléphonique admise.

Intitulé : Rahme c. Ville de Laval, 2026 QCCA 902
Juridiction : Cour d’appel (C.A.), Montréal
Décision de : Juges Mark Schrager, Patrick Healy et Christian Immer
Date : 30 juin 2026

Résumé

PÉNAL (DROIT) — infraction — infractions routières — infractions au Code de la sécurité routière — distraction au volant — faire usage d’un téléphone cellulaire ou de tout autre appareil portatif — interprétation de l’article 443.1 du Code de la sécurité routière — exception — interprétation de «dispositif mains libres» — téléphone cellulaire tenu en main — présomption d’usage — déclaration de culpabilité — appel — norme d’intervention — absence d’erreur de droit.

INTERPRÉTATION DES LOIS — intention du législateur — interprétation de l’article 443.1 du Code de la sécurité routière.

Appel d’un jugement de la Cour supérieure ayant accueilli l’appel d’un verdict d’acquittement. Rejeté.

L’appelante, avant de démarrer son véhicule, a appelé son conjoint au moyen d’un dispositif intégré à son véhicule qui comprend un écran tactile connecté par Bluetooth à son téléphone cellulaire. Pendant qu’elle conduisait, son téléphone a glissé. Elle l’a récupéré avec sa main et l’a tenu pendant 2 minutes. Elle a reçu un constat d’infraction en vertu de l’article 443.1 du Code de la sécurité routière pour avoir fait usage d’un appareil portatif conçu pour transmettre et recevoir des informations ou pour être utilisé à des fins de divertissement ou encore comme écran d’affichage.

Le juge de la cour municipale a estimé que l’usage décrit par l’appelante ne constituait pas une utilisation du téléphone cellulaire prohibée par l’article 443.1 du code. Pour sa part, le juge de la Cour supérieure a conclu qu’une exception liée à l’utilisation d’un dispositif mains libres supposait qu’un conducteur ne tienne pas l’appareil en main lorsqu’il se sert de la fonction téléphonique du cellulaire.

L’appelante soutient que le simple fait d’avoir tenu l’appareil en main en communiquant au moyen d’un dispositif mains libres, sans activer la fonction haut-parleur du téléphone cellulaire et sans aucune preuve de distraction, ne saurait être assimilé à un usage actif au sens de la loi.

Décision

Le Code de la sécurité routière a pour principal objet de régir l’utilisation des véhicules sur les chemins publics et parfois privés, tout comme la circulation des piétons, des cyclistes et des autres usagers de la route sur les chemins publics. Une part importante des règles qu’il contient vise la sécurité des usagers de la route, soit l’un de ses objectifs fondamentaux. Quant à l’article 443.1 du code, il vise à restreindre — ou à limiter — l’usage des différentes sources de distraction au volant que sont les appareils portatifs, dont les téléphones cellulaires, et les écrans d’affichage pour assurer la sécurité de la population. Afin d’atteindre ces objectifs, il faut conclure que l’interdiction de principe doit recevoir une interprétation large et, par implication nécessaire, que celle des conditions d’usage autorisé doit être plus restrictive.

En l’espèce, l’appelante parlait au téléphone via le système intégré de son véhicule, ce qui constitue un usage de la fonction téléphonique du cellulaire. Le juge de la Cour supérieure a donc précisé, à bon droit, que la seule question était de déterminer si elle utilisait un dispositif mains libres en conformité avec les dispositions pertinentes.

Relativement à l’interprétation de «dispositif mains libres», il y a lieu de rejeter les prétentions de l’appelante. Il est évident que l’usage d’un tel dispositif sous-entend forcément que le conducteur n’a pas l’appareil portatif dans les mains et qu’il a effectivement les «mains libres». Ainsi, tous les cas d’usage autorisé d’un appareil portatif ou d’un écran d’affichage au volant visent un usage sans que l’appareil ou l’écran soit tenu en main ou autrement. Il est donc exact de dire que le législateur ne prohibe pas en soi le fait de tenir en main un appareil portatif, mais plutôt son usage et sa tenue simultanée étant donné qu’aucun des cas d’usage autorisé ne permet que l’appareil portatif soit tenu en main.

Par conséquent, le juge de la Cour supérieure n’a commis aucune erreur de droit en concluant que l’usage que faisait l’appelante de son téléphone cellulaire au moyen d’un dispositif mains libres intégré à son véhicule n’était pas un usage autorisé en raison du fait qu’elle tenait en main son appareil durant la conversation téléphonique admise.

Le texte intégral de la décision est disponible ici

The post Summaries Sunday: SOQUIJ appeared first on Slaw.

“Where’s my book?”

“On your bookcase.”

A pause. “Where on the bookcase?”

“The middle shelf.”

Another pause. “Where on the middle shelf?”

I let that hang for a second, my hands covered in the pie pastry I’d been rolling out. Maybe, if I just gave it some time, the book would reveal itself from its sophisticated hiding place of … the middle shelf of a tiny three-shelf bookcase.

It did not. So, I did what mothers do and retrieved the book.

I used to tell this story from my kid’s childhood for laughs, but it points to a deeper truth.

Mothers are expected to know where everything is, all the time. It’s part of women’s invisible labour. Planning. Organizing. Remembering. Making sure the books are found, even the ones sitting out in plain sight.

It’s invisible because people don’t see it as work, if they see it at all.

And this staunch refusal to see invisible labour is not restricted to the home. Women’s invisible labour permeates—and props up—work as well. Decades of research show that unbillable “office housework” disproportionately falls to women in the legal sector. For example, the seminal report “You Can’t Change What You Can’t See” notes that women, particularly women of colour, perform significantly more administrative tasks in law firms.

That gendering matters in how the work is valued.

There is a well-established finding in sociology that occupations dominated by women tend to be paid less and accorded lower status because of their association with women. As one body of research puts it, the “feminization” of an occupation is linked to its devaluation, both in wages and in prestige (see, for example, Statistical Horizons and Research Outreach).

Enter librarians.

Data from the 2021 Canadian Census shows that 84% of people with library science training are women. Virtually all of them have a post-secondary education, with 44% having earned a master’s degree. But when women do the work, the work itself is seen as worth less.

Librarians are often described in terms that diminish their role. They are caretakers of books, quiet custodians of space, helpful guides to a catalogue. After all, don’t they just find books for others?

But a truer description reveals a profession grounded in intellectual labour, building relationships, and the ongoing negotiation of knowledge itself. The work of forging a trail up a mountain of information, misinformation, and disinformation is essential. And unseen.

Legal work depends on good librarianship, but when it is done well—and done predominantly by women—it becomes invisible. Even when we shout its value from the rooftops in the form of statistics and “you saved my life” anecdotes.

It won’t always be like this. The world lurches toward equality, taking three steps forward and two and a half steps back. That half a step of hard-won progress is still progress.

My son, who once stood in front of a bookcase unable to find a book sitting in plain sight, is now in university.

He doesn’t ask me where things are anymore. He tells me when we are out of cat food or need to add coffee to the grocery order. And he won’t accept money for the campus bookstore. Instead, he tracks down used copies and online sources for his textbooks.

I’m proud of him. And I’m proud of me for teaching him that this too is work, and valuable work at that. It’s not invisible to him anymore.

And that’s what we need for librarians.

Their skill, their value, their work is right there, on the middle shelf.

See it.

The post A Woman’s Work Is Never Done. or Valued Appropriately. appeared first on Slaw.

Now in an era in which it is uncommon to find much discussion and newly written commentary on aspects of law publishing, as distinct from artificial intelligence technology, it was a pleasant surprise to encounter New Perspectives on the Legal Treatise. The content of the book was edited by Femi Cadmus, who, at the time, was law librarian and Professor of Law at Yale Law School and Nicholas Mignanelli, Assistant Dean and Director of the Mabee Legal Information Center [sic] and Associate Professor of Law at the University of Tulsa College of Law. Its contributions are based on the proceedings of the Second Yale Legal Information Symposium, held in 2023, since when it might be argued, of course, that the world of legal information is not as before. Certainly, just using my own published observations on law publishing as a measure, by 2023, while it was not possible or wise to ignore AI developments, since then, the scale, importance and extent of debate on the topic has increased exponentially; some might even say excessively.

The book considers how legal treatises have shaped US legal research and how they continue to function amid shifts in technology, access, and research practices. Published in late 2025 by William S. Hein & Co., it features essays by some sixteen distinguished North American legal academics and law librarians, all of whom deserve commendation for their contributions and insights.

My expectations about what the book would actually offer altered somewhat once I began to read it, as opposed to having initially seen promotional literature describing it. The headline “Why the legal treatise still deserves a closer look” caused me, perhaps erroneously, to imagine that it would be primarily an argument in favour of the printed treatise concept in an age of increasing artificial intelligence, and the risk of harm to scholarship which that might entail. Therefore, I assumed that I might skip through much of the historical content, on grounds that it is done, and is, so to speak, what it is, with history being incapable of being changed, and go, almost directly, on to what the future might hold, in the opinions of the learned writers. That I was wrong was in no sense a disappointment, as I found the historical accounts of the concept of legal treatises fascinating, focused, as they are, on the USA, with references to and comparisons with those of other jurisdictions, notably England, as important but somewhat peripheral. Hence, in my judgment, New Perspectives on the Legal Treatise is a well-edited collection of articles on legal and publishing history, which I might have otherwise entitled, in a more specific way, “A Retrospective Appraisal of Legal Treatise Publishing in and for the USA”. Its authors and editors are deeply knowledgeable on the subject matter and would appear to be, even today, enthusiastic about the concept under discussion, as should be expected.

My pleasure, in the year in which marks 200 years since the publication of the first edition of Chitty on Contracts, upon being given the opportunity to dwell on historical aspects, allowed a welcome and rare diversion from having to read incessantly about what are, to me, tedious technical tweaks, together with boasts about private equity investment in AI. Instead, the book humanises the story of the birth of the USA through the influence of the people who, and ideas which created its modern legal system. To non-US readers such as me, with a Northern Ireland undergraduate bachelor of laws and jurisprudence degree, and publishing experience acquired in London, initially in legal editing and subsequently commercial legal publishing management, while the US experience is familiar, the important differences which have served to bring about the evolutionary path of the legal treatise are thoughtfully brought into focus. The federal system of government, the mixing of common law and civil law traditions, the written constitution and partial codification of law sit alongside differing ways of teaching law at university and of providing pre-qualification professional training for attorneys, as well as barristers, solicitors, advocates, notaries and others, depending on the jurisdiction. These issues and many more, as explained by the writers, serve to make sense of how and why legal treatise publishing has developed differently in various jurisdictions, driven by the many variable factors.

For purposes of this review, the issue of dramatic developments in artificial intelligence presently and in the future, somewhat separately from historical perceptions on law book publishing, must be kept in mind, to the extent that they will affect the opinions expressed in the past. I am certain that, if written in 2026/2027 rather than 2023/2024, the book simply could not have ignored such questions as law treatises being licensed from publishers to populate and train large language models and with that, issues of the quality and reputations of the treatises in question. Likewise, ever important in a digital era, is the matter of real-time currency of treatises. To quote from the book, “to be a reliable statement of contemporary legal doctrine, a treatise must be updated at least once a year”. In contrast, it was shocking to read, in the midst of today’s weaponised and corrupt US official structures and once respected institutions, of Supreme Court Justices citing long out-of-date and superseded editions in determining legal cases before them. The disciplines of the best of modern treatise publishing serve to maintain good law.

I believe that it is important to judge a law book not only by its core content but also its signposting metadata, production values and price. In this case, the print size is generous, with good spacing, and I found the extensive footnotes, being properly positioned, to be a measurable benefit. The index is adequate to support the book’s 300 or so Executive/Super Octavo pages. However, perhaps it tries to do too much, being heavily populated by names, places and titles, and it is a little insufficient on the level of taxonomy that underpins the best of indices. I would have preferred to see a separate short table of reported cases, with citations, extracted from footnotes.

Factual and descriptive, thankfully, rather than overtly polemical in favour of or against the law treatise concept itself, this book reminds me that the purpose of the classic law treatise is to provide integrated and structured information, with subjective and objective opinions for lawyers, scholars and students. However, they are not, in and of themselves, substitutes for the work of the courts and legislative bodies. Its content offers different benefits for different people, partly thanks to the broad range of expertise underpinning its totality. A minor, perhaps predictable criticism, notwithstanding its overall character, is that the book might have been enhanced by the inclusion of a chapter written by someone with career-based, insider experience of US law publishing. So often, the perceptions of law publishers differ from those of authors, editors and other external scholars, particularly on the reasoning behind publishing decisions of one kind or another, and opinions about optimal quality standards and markets. That said, some chapters will appeal strongly to legal and publishing historians, while others will provide valuable insights for lawyers, law librarians and students examining these specialist subjects. However esoteric and limited might its appeal be, this interest should extend beyond the USA, to libraries and readers in obvious common law and some civil law jurisdictions, perhaps especially in Canada, Great Britain, Ireland, Australia and New Zealand, but much further afield than that, in Africa, Asia and the Caribbean, including many of the 56 Commonwealth countries. I thoroughly recommend it.

New Perspectives on the Legal Treatise is published by William S. Hein & Co., Inc. Its ISBN is 9780837743325 and its price is US$130.00.

The post New Perspectives on the Legal Treatise appeared first on Slaw.

At a conference of law teachers at Western in June, I took part in discussions among professors and lawyers about whether facility with AI should be a core competence in a Canadian law degree at this point in time. This gave rise to larger questions about whether law profs now have an ethical or pedagogical duty of some kind to familiarize themselves with AI and develop methods of teaching students how to use it effectively. This, in turn, pointed to the even larger question of what it means to be a competent lawyer in the age of AI.

Put another way, if you choose to forgo or even resist what some believe to be the many benefits and efficiencies that AI has to offer (as some at the conference said they’ve chosen to do), are you in some way — as a prof or lawyer — failing in your duty of competence?

Have we crossed a certain threshold where you can no longer be competent as a lawyer, can no longer practice or teach to an appropriate standard, given the way that technology has changed realities on the ground?

In 2019, the Federation of Law Societies of Canada amended its Model Code of Professional Conduct to address technological competence. Law societies across the country, including those in Ontario and BC, have since incorporated the Federation’s guidance into their own frameworks.

Briefly, our codes of professional conduct contain a duty of competence, or a duty to possess and apply relevant knowledge, skills, and other attributes described in various sub-rules. The final of these is commonly worded: “otherwise adapting to changing professional requirements, standards, techniques and practices.”

The Federation’s commentary adds:

To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities. A lawyer should understand the benefits and risks associated with relevant technology…

And:

The required level of technological competence will depend on whether the use or understanding of technology is necessary to the nature and area of the lawyer’s practice and responsibilities and whether the relevant technology is reasonably available to the lawyer.

So, we have both a duty and a standard to meet. We have a duty to become informed about technologies relevant to our practice area, and even to develop an ability to use them.

And how informed must I be and able to use this technology? Well, it depends.

But wait a minute, that’s just what we all want to know!

Do I, as a family or criminal lawyer, an insurance defence litigator or corporate solicitor have to spend time sorting out how to use Harvey, Protégé, or Copilot and decide whether and when to use them in a given case?

Can I not just attend a brief seminar to get an overview of these tools and casually dismiss them as non-essential to the workflow that has served me well for over 20 years?

As a prof, am I not perfectly justified in saying that some of these tools might be quite useful, but my job is to teach students black-letter law, how to think like a lawyer, and so on — things more fundamental than how to use the technology of the day effectively?

Who decides what is necessary here? Are lawyers and profs (and students, for that matter) not free to decide that AI might be useful in some situations, might result in certain efficiencies, but that despite this, they don’t need AI?

And what about AI’s notorious unreliability? How could a tool like Protégé ever become necessary when its research memos and opinions are wrong so much of the time? And isn’t AI like this more broadly?

For that matter, is any technology — aside from pen and paper — really ‘necessary’ to practice law competently? Couldn’t I do a perfectly competent job without even cracking open my laptop if I really wanted to?

Take email. Is it optional at this point? Could you offer a client competent service as a family or employment lawyer if you refused to use it and insisted on writing letters? Probably not. Why? It’s worth spelling out: because your service would be so slow as to risk a failure to resolve a client’s issue in a timely fashion, which it is your duty to do.

So we can point to cases where recent technology becomes necessary; which is to say, where the tech changes realities on the ground and standards of competence shift accordingly.

Is AI one of these cases? Is AI as fundamental to the practice of law as word processing or email?

Can you render legal service competently, that is, in a reasonably timely, efficient, and effective manner, with no reliance on it at all?

Or is it, like email or word processing, something that creates efficiencies so significant as to change the nature and pace of the practice itself?

My sense: not yet, but soon, in some areas, possibly even most, it will be.

Yes, certain AI tools are unreliable for certain purposes. But there are more or less reliable and effective ways of using AI. And some of the more reliable ways of using AI can lead to huge efficiencies. Examples include large document review in litigation, contract drafting when carefully prompted to produce a first draft, case law research done with a frontier model using an MCP, and generating meeting transcriptions and summaries of audio kept on file as a backup.

The efficiencies AI can provide here are so striking that they may soon render the technology necessary to doing a competent job, in the sense that failing to use it would mean wasting a client’s time and money without justification.

But AI is more powerful than email or word processing. If harnessed effectively, it could lead to a higher level of service, raising the bar across the board. I’m thinking here of workflows that lawyers at the frontiers of experimentation with AI in practice have come up with, ranging from automating intake memos and generating draft agreements or routine correspondence, to more elaborate tools for analyzing litigation strategy.

At this point, there is at least a basis for thinking that professional standards of competence may be shifting. The bar may be rising.

We may be approaching a point at which you can no longer be competent in many areas if some portion of your work on a file — research, opinion or contract-drafting, document review — is not in some way aided by AI.

We may not be there yet. We lack clarity about what is ‘necessary’ when it comes to the use of AI in a given practice area. Law profs might continue to ignore the place of AI in the curriculum or remain indifferent to whether facility with AI is, or should be, a core competence in law school.

But soon, I suspect, our collective thinking about this will change. There is at least a real possibility, if not a likelihood, that in the near future we will all need to use AI in some capacity to practice law competently — to deliver service at a level of timeliness and efficiency that clients will be entitled to expect given the general pace at which practice will have evolved.

Again, we may not be there yet. But it’s clearly on the horizon.

The post What Does It Mean to Be a Competent Lawyer in the Age of AI? appeared first on Slaw.

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Canadian Class Actions Monitor 2. Know How 3. Canadian Appeals Monitor 4. David Whelan 5. Welcome to the Food Court

Canadian Class Actions Monitor
Submission to Finance Canada as part of its Pre-budget Consultations in Advance of the upcoming 2025 Fall Federal Budget

There has been a new development in a class action that we previously covered (see: Recklessness as a Willful Violation of Privacy: B.C. Court of Appeal Decision has Implications for Private and Public Sector Organizations). The development is G.D. v. South Coast British Columbia Transportation Authority, 2026 BCSC 773 and it has implications for public and private sector organizations that collect, store, or manage sensitive personal information in British Columbia. The decision suggests that plaintiffs may be able to advance statutory privacy claims beyond certification based solely on allegations of inadequate safeguarding, with “access” being interpreted broadly at the certification stage. It also reinforces the possibility of aggregate damages awards despite the absence of individualized proof of loss. …

Know How
Legal Research Lifelines in the Age of Information Overload

We are revisiting an older post in our Legal Research Survival Guide, Part 10 – Lifelines and Last Tips, and it occurred to us that Tip #4 is especially worth highlighting in today’s context of information overload. Tip #4 – Use a lifeline has only become more relevant since the Guide was written in 2020. With the sheer volume of legal information now available, and the pressure students and junior lawyers face to find reliable answers quickly, it’s easy to lose time going down the wrong research path. …

Canadian Appeals Monitor
Civil Appeals by the Numbers: The Court of Appeal for Ontario Releases a Decade of Data

On July 2, 2026, the Court of Appeal for Ontario released its first annual report in over a decade. The report, covering the period 2023–2024, provides insights on how Canada’s busiest provincial appellate court is functioning and what parties who come before it can expect. The report also highlights several practical takeaways for parties considering or engaged in an appeal, including how long the appeal process typically takes, how often civil appeals typically succeed, how rarely leave to appeal is granted, the growing presence of self-represented litigants, and the court’s continued move toward digital filing through its new portal. …

David Whelan
Like A Good Neighbor

I had the lawn mower out over the weekend. We had a brief respite from the heat and the rain and the new sod we’d put down needed a trim. As I was finishing up, my neighbor came out with his mower and a similar mindset and we got to chatting. We’ve lived here for over a year now and we are fortunate to have good neighbors. I picked up a bit of scuttlebutt about the neighborhood and what his family was up to, swapped opinions on lawn hardware, and then both got back to our chores. I’m grateful for a good neighbor. We are constantly in contact with people in our lives and we can’t always choose who we live next to and work beside. When those relationships are sour, they can rot everything else. …

Welcome to the Food Court
Codex CCFL49: What Came Out of Five Days in Ottawa

Allergen statements, bilingual claims, country-of-origin language, and joint-presentation rules for multipacks are some of the rules that decide whether a product can sit on a shelf in Canada, or whether the company selling it is exposed to enforcement, recall liability, or a Competition Bureau referral. Many of those rules arrived in Canada through the Codex Alimentarius Commission years before they appeared in the Food and Drug Regulations or the Safe Food for Canadians Regulations. Codex sets international labelling standards through its Committee on Food Labelling. Canada hosts that committee, has done so for decades, and chairs its sessions. The 49th Session of CCFL met in Ottawa from May 11 to 15, 2026. …

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*Randomness here is created by Random.org and its list randomizing function.

The post Monday’s Mix appeared first on Slaw.

One Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all Appeals, Oral Judgments and Leaves to Appeal granted from April 18 – June 25, 2026 inclusive.

Appeal

Civil Litigation/Elections: Collateral Attack; Abuse of Process; Parliamentary Privilege; Immunity
Resler v. Anglin, 2024 ABCA 113; 2026 SCC 23 (41298)

Can an unsuccessful election candidate bring a civil claim against an elections officer for the tort of misfeasance in public office? The claim herein does not constitute a collateral attack on the 2015 election result or an abuse of process, there is an arguable case for the non-application of parliamentary privilege and statutory immunity, and the rigorous test for striking out a claim is not met. Accordingly, the order of the majority of the Court of Appeal is upheld. The civil claim, with the exception of the malicious prosecution claim that was struck and was not the subject of a cross-appeal, may proceed.

Civil Litigation/Mortgages: Res Judicata; Cause of Action Estoppel
Patrick Street Holdings Ltd. v. 11368 NL Inc., 2024 NLCA 11; 2026 SCC 15 (41296) May 8, 2026

Because cause of action estoppel provides a full answer to this appeal, it is unnecessary to address 11368’s arguments respecting the applicability of issue estoppel and abuse of process by relitigation to the facts herein. The test for cause of action estoppel: (a) There is a final decision of a court of competent jurisdiction in the prior action; (b) The parties to the subsequent litigation were parties to or in privy with parties to the prior action; (c) The cause of action in the prior action is not separate and distinct; and (d) The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.

Constitutional Law: Charter; Language Rights
Société de l’Acadie du Nouveau-Brunswick v. Canada (Prime Minister), 2024 NBCA 7; 2026 SCC 22 (41398)

Section 16(2) of the Charter enshrines a mandatory guarantee of substantive equality for the two official languages in New Brunswick’s institutions. Section 16(2) protects both the possibility of using either official language in the province’s institutions and the equality of status of these two languages. This equality cannot be preserved when the position of Lieutenant Governor of the province, a unipersonal and highly symbolic institution, is held by a unilingual person, a situation that necessarily gives predominance to the majority language, English. The appropriate remedy is to issue a declaration affirming that the appointment of a Lieutenant Governor in New Brunswick who does not have the ability to understand, communicate in and perform their functions in both official languages infringes s. 16(2) of the Charter.

Constitutional Law: Parliamentary Privilege
Alford v. Canada (Attorney General), 2024 ONCA 306; 2026 SCC 14 (41336) May 1, 2026

In 2017, Parliament enacted the National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15 (“NSICOP Act”) for the purpose of setting up a statutory committee of parliamentarians to oversee Canada’s national security and intelligence apparatus (“Committee”). Section 12 of this Act contains a provision that prohibits parliamentarians who sat on the Committee from claiming immunity based on parliamentary privilege in a proceeding against them related to the disclosure of national security information obtained through their Committee membership. Due to the nature of parliamentary privilege in Canadian constitutional law; the interpretation of s. 18 of the Constitution Act, 1867, in light of its text, historical and constitutional context, and purpose; and considering whether s. 12 of the NSICOP Act falls within the scope of s. 18 of the Constitution Act, 1867; the S.C.C. held that s. 12 of the NSICOP Act was validly enacted under the legislative authority conferred on Parliament by s. 18 of the Constitution Act, 1867. Section 18 gives Parliament the authority to define its privileges, subject only to the limits of its text and purpose, as understood within the broader context of the Constitution. This authority includes limiting these privileges. When Parliament does so, it exercises a legislative authority conferred by the Constitution; it does not amend the Constitution itself.

Constitutional Law: Right to Vote
Québec (Attorney General) v. Lalande, 2025 QCCA 1558; 2026 SCC 13 (42152) Apr. 22, 2026; May 1, 2026

The determination made by the first instance judge concerning the infringement of s. 3 of the Charter has not been appealed to this Court. The appeal by A.G. Qué. relates solely to the justification for this infringement under s. 1 of the Charter. Since the appellant has not shown any reviewable error by the Qué. C.A. the appeal is dismissed. Contrary to what the appellant argues, the Qué. C.A. did not unduly narrow the pressing and substantial objective accepted by the first instance judge and did not depart from the factual findings derived from the evidence relating to what the appellant describes as a [translation] “persistent phenomenon of devitalization of certain remote regions” (outline of argument, at para. 3.2b)). Moreover, the pressing and substantial objective urged by the appellant would not meet the further rational connection requirement. At the minimal impairment stage of the Oakes test, the appellant argued that the alternative solution identified by the Qué. C.A. would not render it possible to achieve the legislature’s objectives in a real and substantial manner. The S.C.C. rejected that argument: it is true that the state is accorded a measure of deference at the minimal impairment stage (Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 53); in addition, depending on the circumstances, the unanimity of a legislative assembly may help to demonstrate that electoral reform was enacted in good faith rather than for purely partisan purposes. However, the mere fact that the ATI was passed unanimously by the National Assembly is not here a determinative consideration that shields the ATI from constitutional scrutiny and relieves the appellant of his burden, under s. 1 of the Charter, of demonstrating that the law has been “carefully tailored so that rights are impaired no more than necessary” (RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160, cited by Qué. C.A., at para. 78).

Criminal Law: Delay; Case Complexity Analysis
R. v. Vrbanic, 2025 ONCA 151; 2026 SCC 19(41741) Dec. 4, 2025; May 29, 2026

To the extent that jurisprudential and legislative developments in the past decade have increased the complexity of criminal trials, the Jordan framework can comfortably respond. This is not an appropriate case in which to consider more fundamental changes to the Jordan ceilings or to revisit the remedy for a breach of s. 11(b) of the Charter. Instead, this appeal offers an opportunity to clarify how the exceptional circumstance of particular complexity can justify delay in excess of a Jordan ceiling.The case complexity exception recognizes that certain cases, because of their inherent time requirements, cannot reasonably be completed within the presumptive ceilings. The exception applies to cases that are “particularly complex” because the nature of the evidence or issues requires an inordinate amount of preparation or trial time (Jordan, at para. 77). However, the exception will not apply where the Crown has failed to develop and follow a concrete plan to minimize delay associated with a case’s complexity (para. 79). Case complexity involves a qualitative rather than a quantitative assessment; it does not result in the deduction of any specific period of delay (R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 64). Where net delay exceeds the relevant presumptive ceiling after defence delay and any discrete exceptional circumstances have been accounted for, a case’s particular complexity may justify the time it has taken. The case complexity exception is sufficiently flexible to account for changes in the average complexity of criminal trials.

Criminal Law: Delay; Joint Trials
R. v. Jacques-Taylor, 2024 ONCA 458; 2026 SCC 20(41430) May 29, 2025

Delays flowing from the Crown’s decision to conduct a joint prosecution may, sometimes, amount to discrete exceptional circumstances. In the instant case, the delay caused by the unavailability of the co‑accused’s counsel amounts to a discrete exceptional circumstance. It should therefore be deducted from the net delay. This brings the total delay to under 18 months, rendering it presumptively reasonable.

Criminal Law: Forfeiture
R. v. Nguyen, 2024 QCCA 674; 2026 SCC 10(41400) Apr. 17, 2026

This matter is remanded to the Court of Québec, which does have jurisdiction to proceed with the criminal forfeiture hearing herein. First, the stay of the trial proceedings is not, for the purposes of the forfeiture matter, tantamount to an acquittal. The stay may be equated to an acquittal for the purposes of the plea of autrefois acquit and the exercise of appeal rights because they engage a person’s risk of criminal liability and liberty interests. But the stay has no decisive effect on the forfeiture proceedings. The matters required to establish that the property is criminally tainted were not decided in the respondents’ favour in a prior criminal proceeding, such that it is open to the Crown to lead evidence on those issues to support its forfeiture application. There is no necessary issue estoppel between matters decided on the stay — whether the delay was unreasonable — and matters at issue in subsequent forfeiture proceedings — whether the property is tainted by crime. The stay does not oust statutory jurisdiction in respect of forfeiture. Second, as a matter of statutory interpretation, the Court of Québec does not have the power in the instant case to order forfeiture under the principal provisions invoked by the Crown in the Criminal Code and the CDSA, which tie that authority to trial and sentencing proceedings. Jurisdiction to conduct criminal forfeiture proceedings survives under statutory rules that operate independently of trial and sentencing. Parliament has provided for a number of circumstances in which forfeiture can be ordered even where no accused has been tried.

Criminal Law: Hearsay
R. v. Saddleback, 2024 ABCA 352; 2026 SCC 18(41567) Nov. 1, 2024; May 22, 2026

In brief oral reasons, the trial judge convicted the respondent of second degree murder. In support of his conclusion that the two men were left alone at the crime scene shortly before the murder, the trial judge referenced an out-of-court statement made by the deceased during a phone call with a witness. A majority of the Alta. C.A. concluded the trial judge erred in relying on the statement for an impermissible hearsay purpose and, on this basis, quashed the conviction and ordered a new trial. Based on a plain reading of the trial reasons, the trial judge used the out-of-court statement as hearsay, that is, to make proof of the truth of its contents. Even if it were true that the out-of-court statement could have been relied on for a purpose other than establishing the truth of its contents or could have been admissible to prove the truth of its contents under a hearsay exception, the trial judge’s reasons, read in light of the trial record as a whole, are insufficient to allow an appellate court to infer or reconstruct an analysis supporting either basis. It is noted the Crown does not rely on the curative proviso. In the circumstances, a new trial is required.

Criminal Law: Sexual Assault; Alibi
R. v. G.G., 2025 ONCA 574; 2026 SCC 12 (41963) Aug. 1, 2025; Mar. 20, 2026;

The S.C.C. agreed with the Ont. C.A. that herein the time period alleged by the Crown concerned the last sexual encounter between the appellant and the complainant on or about April 7, which they agreed happened on the last night they slept in the marital home together. This period was defined by the language of the charging document, the substance of the complainant’s evidence, the evidence elicited by the Crown, and the Crown’s position at trial, taken together. In these circumstances, the complainant’s estimate of when the sexual assault occurred, elicited by the defence in cross-examination, did not narrow the Crown’s case to that specific period. As a result, the Crown did not shift the alleged time frame or deny the appellant the right to make full answer and defence by maintaining that it was not required to prove that the sexual assault occurred around 10:00 or 11:00 p.m. on April 7. Put simply, the Crown never claimed that it did occur at that time. And the Court agreed that substituting a conviction was the appropriate remedy. Under s. 686(4)(b)(ii) an appellate court can set aside an acquittal and enter a conviction where “the trial judge’s findings of fact, viewed in light of the applicable law, supported a conviction beyond a reasonable doubt” (R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326, at para. 50). That standard was met in this case.

Criminal Law: Sexual Assault; Conflicting Evidence
R. v. Berg, 2025 SKCA 85; 2026 SCC 21(41980) April 14, 2026; June 5, 2026

A majority of the Court of Appeal for Saskatchewan dismissed Mr. Berg’s appeal. There, and herein, Mr. Berg argued that the trial judge made two reversible errors. First, the trial judge failed to resolve material inconsistencies in the complainant’s testimony. Second, he failed to assess the complainant’s testimony in light of the totality of the evidence and erroneously used it to reject Mr. Berg’s account. The Sask. C.A. convincingly explained how the trial judge convicted Mr. Berg based on proof beyond a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. As a general rule, trial judges should not rely on J.J.R.D. (2006) 218 O.A.C. 37 when structuring their W. (D.) analyses or when providing W. (D.) directions to a jury. J.J.R.D. is a case about appellate review for sufficiency of reasons and it does not purport to set out a formula for performing a W. (D.) analysis. It was intended to apply to appellate review of trial decisions when assessing whether the trial judge’s reasons were sufficient to permit appellate review, not to be applied by trial judges themselves.

Torts: Intimate Partner Violence
Ahluwalia v. Ahluwalia, 2023 ONCA 476; 2026 SCC 16 (41061) July 7, 2023; May 15, 2026

On the strength of the facts and Ms. Ahluwalia’s pleadings, the S.C.C. recognized a tort of “intimate partner violence”. To establish liability under this new tort, a plaintiff must prove three elements: first, that the abusive conduct arose in an intimate partnership or its aftermath; second, that the defendant intentionally engaged in that conduct; and third, that the conduct, on an objective measure, constitutes coercive control. Proof of these three elements suffices to establish that the plaintiff has suffered a dignitary harm (see generally Insurance Corporation of British Columbia v. Ari, 2025 BCCA 131, 46 C.C.L.I. (6th) 173, at para. 32). Harm flows from proof of the intentional wrong because coercive control directly interferes with the plaintiff’s legal interests in dignity, autonomy, and equality within an intimate partnership. The extent of that harm may warrant a greater or lesser quantum of damages, depending on the circumstances.

Oral Judgment

Criminal Law: Fresh Evidence
R. v. Maadani, 2025 ONCA 582; 2026 SCC 11 (41972) Judgment rendered April 17, 2026

“The Chief Justice: “A majority of this Court is of the view that Huscroft J.A., writing for the majority of the Court of Appeal, made no reviewable error in dismissing the application for new evidence for lack of cogency. Therefore, the appeal is dismissed. Justices Karakatsanis and Côté would have allowed the appeal. They are of the view that, in its cogency analysis, the majority erred in law in making its own determination of the witness’s ultimate credibility. The majority also erred in its analysis of due diligence. Justices Karakatsanis and Côté agree with Copeland J.A. that the fresh evidence was reasonably capable of belief by the triers of fact on key points relating to self-defence and would have admitted the fresh evidence and would have ordered a new trial.”

Leaves to Appeal Granted

Agriculture: Fertilizers
Biogénie Canada Inc. v. Canadian Food Inspection Agency, 2025 FCA 150 (42060) May 28, 2026

Federal regulations re fertilizer composition.

Charter: Language Rights
Forum des maires de la Péninsule acadienne Inc. v. Minister of Justice and Public Safety, 2025 NBCA 99 (42073) May 28, 2026

Language rights re court services.

Class Actions: Road Disturbances
Belmamoun, et al. v. Ville de Brossard, et al., 2025 QCCA 1011 (42047) Apr. 30, 2026

Class action issues re municipal roads.

Corporate Litigation: Derivative Actions
Hougen Co. Ltd. v. Su, et al., 2025 BCCA 164 (41946) May 28, 2026

Issues, including limitations, in derivative action.

Criminal Law: Failure to Blow
R.v. Emereuwa, 2025 SKCA 83 (42075) May 28, 2026

Offence elements of failing to blow.

Criminal Law: Homicide
R. v. Dussault, 2025 QCCA 1433 (42169) May 14, 2026

There is a publication ban in this case, in the context of homicide.

Criminal Law: State Agents
R. v. Pham, 2025 BCCA 324 (42101) May 21, 2026

Courier depot employees as state agents.

Criminal Law: Theft; Sentencing
Wood v. R., 2025 ONCA 746 (42127) Apr. 30, 2026

Sentencing principles for theft offences.

Elections: Returning Officer Appointments
Canada (Attorney General) v. Drover, 2025 ONCA 468 (42005)

Constitutionality of Canada Election Act re returning officer appointments.

Judicial Independence: Special Clerks & Bankruptcy Registrars
Québec (Attorney General) v. Petrishki, et al., 2025 QCCA 893 (42018) Apr. 30, 2026

Constitutionality of judicial independence re special clerks and bankruptcy registrars.

Mining/Aboriginal Law: Duty to Consult
British Columbia (Chief Gold Commissioner) v. Gitxaala Nation, et al., 2025 BCCA 430 (42200) May 21, 2026

Duty to consult; justiciability of U.N. Declaration.

Professions: Pharmacists
Haggaï v. Loiselle, 2025 QCCA 932 (41976) May 7, 2026

There is a publication ban in this case, in the context of alleged professional disciplinary complaints against a pharmacist.

Securities: Constitutionality of Summons
Ontario Securities Commission v. Binance Holdings Limited, 2025 ONCA 751 (42156) May 21, 2026

Constitutionality of Security Commission summons.

Torts: Malicious Prosecution
McCormack v. Evans, et al., 2025 ONCA 767 (42170) May 21, 2026

Wrongful prosecution, negligent investigation, and other civil torts.

The post Summaries Sunday: Supreme Advocacy appeared first on Slaw.

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT) : Un examen inégal des témoignages de l’appelant et de la victime d’agression sexuelle allant au-delà de la méthodologie est démontré; l’analyse de la crédibilité de l’appelant a mené à un renversement du fardeau de la preuve, et la Cour d’appel ordonne la tenue d’un nouveau procès.

Intitulé : Savoie c. R., 2026 QCCA 866
Juridiction : Cour d’appel (C.A.), Québec
Décision de : Juges Marie-France Bich, Michel Beaupré et Myriam Lachance
Date : 22 juin 2026

Résumé

PÉNAL (DROIT) — infraction — infractions de nature sexuelle — agression sexuelle — femme — absence de consentement — intoxication de la victime — appréciation de la preuve — examen inégal — renversement du fardeau de la preuve — déclaration de culpabilité — appel — norme d’intervention — déférence — erreur de droit — disposition réparatrice n’ayant pas été invoquée par la poursuite — tenue d’un nouveau procès.

PÉNAL (DROIT) — preuve pénale — appréciation de la preuve — témoignage — versions contradictoires — application de R. c. W. (D.) (C.S. Can., 1991-03-28), SOQUIJ AZ-91111043, J.E. 91-603, [1991] 1 R.C.S. 742 — examen inégal — crédibilité des témoins — présomption d’innocence — absence de consentement — intoxication de la victime — contradictions — détail périphérique — omission de tenir compte d’un élément de preuve — renversement du fardeau de la preuve — agression sexuelle — appel — norme d’intervention — déférence — erreur de droit.

PÉNAL (DROIT) — garanties fondamentales du processus pénal — présomption d’innocence — appréciation de la preuve — témoignage — versions contradictoires — application de R. c. W. (D.) (C.S. Can., 1991-03-28), SOQUIJ AZ-91111043, J.E. 91-603, [1991] 1 R.C.S. 742 — examen inégal — crédibilité des témoins — absence de consentement — intoxication de la victime — contradictions — détail périphérique — omission de tenir compte d’un élément de preuve — renversement du fardeau de la preuve — agression sexuelle — appel — norme d’intervention — déférence — erreur de droit — disposition réparatrice n’ayant pas été invoquée par la poursuite — tenue d’un nouveau procès.

DROITS ET LIBERTÉS — droits judiciaires — personne arrêtée ou détenue — présomption d’innocence — appréciation de la preuve — témoignage — versions contradictoires — application de R. c. W. (D.) (C.S. Can., 1991-03-28), SOQUIJ AZ-91111043, J.E. 91-603, [1991] 1 R.C.S. 742 — examen inégal — crédibilité des témoins — absence de consentement — intoxication de la victime — contradictions — détail périphérique — omission de tenir compte d’un élément de preuve — renversement du fardeau de la preuve — agression sexuelle — appel — norme d’intervention — déférence — erreur de droit — disposition réparatrice n’ayant pas été invoquée par la poursuite — tenue d’un nouveau procès.

Appel d’une déclaration de culpabilité. Accueilli; la tenue d’un nouveau procès est ordonnée.

L’appelant a été déclaré coupable d’agression sexuelle par la Cour du Québec. Les gestes reprochés par la victime ont eu lieu la nuit, chez l’appelant, au terme d’une soirée festive.

Décision

M^me la juge Lachance: L’appelant ne démontre pas que le verdict est déraisonnable, mais il relève cependant 2 erreurs de droit déterminantes dans l’analyse du juge de première instance. S’il est vrai que, pour justifier une intervention de la Cour, l’omission reprochée doit concerner un élément de preuve important se rapportant à la question à trancher, certains faits périphériques peuvent aussi contribuer à démontrer l’asymétrie de l’examen des témoignages. C’est le cas en l’espèce. Un examen inégal des témoignages de l’appelant et de la victime allant au-delà de la méthodologie est démontré, ce qui constitue une erreur de droit. Ce constat ressort des 25 pages de transcription du jugement rendu oralement. Parmi celles-ci, 14 pages passent au peigne fin le témoignage de l’appelant, alors que seules 3 pages résument la version de la victime, sans vraiment l’analyser. Évidemment, une démonstration convaincante d’un double standard n’est pas le résultat d’un exercice arithmétique où le nombre de mots utilisés pour commenter le témoignage de l’un est comparé à celui utilisé pour l’autre. Cependant, les motifs du juge sont non équivoques à cet égard.

Au terme de chacune des sections qui passaient en revue tous les angles du témoignage de l’appelant, le juge concluait que toute discordance, même menue et périphérique, donnait prise à un constat de contradiction. Certes, l’évaluation de la preuve par le juge mérite déférence, mais cela devient problématique lorsqu’il ressort de la facture générale du jugement que le juge semble se donner pour mission de décortiquer le témoignage de l’appelant afin d’y déceler toutes les raisons possibles de ne pas le croire et, de surcroît, lorsqu’il omet de faire de même à l’égard des autres témoins et notamment de la victime. Le rôle du juge du procès n’est pas de scruter chaque aspect d’un témoignage afin de trouver la moindre divergence, et ce, dans le but d’écarter celui-ci. Une telle analyse microscopique risque de faire bifurquer l’évaluation de la preuve vers des éléments périphériques à l’essence du litige.

Le danger de l’évaluation inégale des témoignages est donc de porter atteinte à la présomption d’innocence. Ce malheureux exercice se révèle dans le jugement entrepris où, après avoir scruté le témoignage de l’appelant, le juge a limité essentiellement l’évaluation de celui de la victime à 1 énoncé de sa version des faits. Il a qualifié son récit d’honnête et de candide, et a estimé que cette version était «en grande partie compatible avec l’ensemble de la preuve recueillie». Pourtant, le juge n’a pas porté attention à certains témoignages apportant une vision différente de l’état d’intoxication allégué par la victime, ce qui constitue une question pertinente au consentement. Qui plus est, ces témoignages allaient dans le sens de celui de l’appelant, mais le juge a estimé que sa version à ce sujet était évolutive et contredite par la preuve. Cette façon de confronter le témoignage de l’appelant à celui de la victime ressort aussi d’une autre portion du jugement: le problème dans cette analyse concernant le consentement aux activités sexuelles réside dans le fait que «le reste de la preuve» se limite au témoignage de la victime.

L’analyse de la crédibilité de l’appelant a mené à un renversement du fardeau de la preuve qui contrevient à la présomption d’innocence, et cette erreur de droit est présumée lui être préjudiciable. Il revenait dès lors à la poursuite de démontrer l’absence de préjudice afin de pouvoir recourir à la disposition réparatrice, qui n’a pas été invoquée en l’espèce.

Le texte intégral de la décision est disponible ici

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As a supplement to our Sunday Summary each month, Supreme Advocacy LLP in Ottawa presents Supreme One-Liners, a super-short descriptive guide to the most recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers its more comprehensive weekly electronic newsletter, Supreme Advocacy Letter, summarizing all Appeals, Oral Judgments and Leaves to Appeal granted.

Leave to Appeal Granted

Bankruptcy: Contempt
Lymer v. Jonsson, 2025 ABCA 423 (42227)

Civil contempt issues in bankruptcy.

Civil Litigation: Contempt; Charter s. 11 (c)
Estate of Craig Sutherland, et al. v. Murphy, 2025 ONCA 227 (41818)

Civil contempt issues in injunctions and Anton Piller.

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