The Ontario Court of Appeal’s (“CA”) recent decision in Knauff v. Ontario (Human Rights Tribunal) (“Knauff”) sought to resolve two CA panels’ disagreement about the continuing relevance of the test for leave to appeal in Sault Dock Co. Ltd. and City of Sault Ste. Marie (Ont. CA) (“Sault Dock”). (I considered the two CA decisions, West Whitby Landowners Group Inc. v. Elexicon Inc. [“West Whitby”] and Davis v. Aviva General Insurance Company [“Davis”] in my January 7, 2025 Slaw post, “Tension on the Ontario CA: Thwarting a Judicial Coup?”.) My focus there was on whether West Whitby, by loosening the Sault Dock test, might have the effect of diminishing the independence of administrative tribunals by giving a greater scope to leave to appeal from the Divisional Court to the Court of Appeal. None of the decisions have addressed this issue and I refer to it only briefly below.

West Whitby challenged the continuing relevance of the test under Sault Dock; the panel in Davis defended Sault Dock and suggested that the panel in West Whitby could have reached the result it did in the case without trying to change Sault Dock, downplaying what it saw as an attempt in effect to establish a new test without going through the proper process of a five-person panel.

Adam Knauff had brought a complaint to the Ontario Human Rights Tribunal (“the Tribunal”) that his employer, the Ministry of Natural Resources, had discriminated against him when he was an active firefighter in failing to provide vegan meals at times other meals were provided. He maintained that “ethical veganism” was a form of “creed”, a protected ground under section 5(1) of the Ontario Human Rights Code (“the Code”). He requested that the Divisional Court quash the Tribunal’s decisions relating to the complaint.

The parties settled the claim of discrimination before the Divisional Court heard the case; however, Knauff still wanted the Tribunal to determine whether ethical veganism is a protected ground under the Code and when the Tribunal decided it was not, he sought judicial review of the Tribunal’s decision. The Divisional Court found the matter moot, and held this was not a proper case in which to exercise its discretion to hear it anyway. Knauff sought leave to appeal from the Divisional Court’s decision not to hear the matter.

As I explained in my May 13, 2025 Slaw post “Joining Battle: Preparing to Determine the Test for Leave to Appeal (Or, the Fate of Sault Dock”), “[i]n Knauff v. Ontario (Human Rights Tribunal) (“Endorsement”), Zarnett J.A. (Case Management Judge) of the Ontario Court of Appeal stated that Knauff had indicated in his motion for leave to appeal from the Divisional Court that ‘he intended to ask the Court to clarify the test for leave to appeal from the Divisional Court and to that end, requested that this leave motion be heard by a five-judge panel’.” Subsequently, Fairburn A.C.J.O directed a five-person panel hear the case (Knauff, “Endorsement”, paras. 2, 3).

And so, having been nudged by West Whitby, adhering to the protocol urged by Davis and seizing an opportunity, a five-person panel of the Court of Appeal has now articulated what is in effect a refashioning of Sault Dock.

THE TEST IN SAULT DOCK

Before exploring the Court of Appeal’s new take on Sault Dock, a quick reminder of the original test.

An appeal from the Divisional Court to the Court of Appeal requires the leave of the Court of Appeal “on a question that is not a question of fact alone” (Courts of Justice Act, s.6(1)). According to Sault Dock, the question must have an impact on the development of Ontario jurisprudence. In other words, the criterion is not the impact on the parties, but whether the decision will settle the matter of interest for the general public (or a large segment thereof).

Under Sault Dock, as a preliminary step in the analysis, the court determines whether the dispute raises one of the following kinds of questions: interpretation of a Canadian or Ontario statute, including whether it is constitutional; the interpretation or clarification of a general rule or principle of law; the interpretation of a municipal by-law where the issue is of public importance (but not all municipal by-laws); or interpretation of an agreement where the issue is of public importance (but not all agreements).

In addition, the court could grant leave if “special circumstances” related to the public interest (“such as the introduction of new evidence, obvious misapprehension of the Divisional Court of the relevant facts or a clear departure from the established principles of law resulting in a miscarriage of justice”) or if it seemed it was in the interests of justice to grant leave. Furthermore, “in cases in which there is clearly an error in a judgment or order of the Divisional Court, it is … the duty of the Court of Appeal to grant leave so that it might correct the error” but “the possibility that there may be error in the judgment or order will not generally be a ground in itself for granting leave”. (Sault Dock)

The Court of Appeal in Knauff summarized the framework in Sault Dock as first requiring a determination of “the importance of the question in issue viewed from the perspective of the development of Ontario law and the interest of the public, rather than from the perspective of the parties”. And second, requiring a determination of whether the question is arguable, “providing a short, non-exhaustive list of examples of cases that if arguable, might merit leave” (Knauff, CA, para. 11). The Court listed the examples in Sault Dock (see above) and then referred to Sault Dock’s “residual category of cases that might merit leave” (see above).

CHALLENGING SAULT DOCK

For the panel in West Whitby, one problem lay less with the Sault Dock decision itself than with its application. Litigants have lost sight of its flexibility and have tended to apply it “by rote”, missing the transcending question of whether determination of the issue at stake would contribute to the development of jurisprudence in Ontario.

What really seems to condemn Sault Dock, however, is that it is “old”, “so old … that it pre-dates the Canadian Charter of Rights and Freedoms” (“the Charter”). In the panel’s view, it would be difficult for the Divisional Court to assess cases that raise the Charter. One might be tempted to give credit to judges sitting as the Divisional Court that they could handle this challenge, but apparently one would be mistaken in doing so.

The proper test, from the West Whitby panel’s perspective, for granting leave to appeal from the Divisional Court to the Court of Appeal is more or less that for seeking leave to appeal to the Supreme Court of Canada: “Is the question on which leave is sought one that, by reason of its public importance, the importance of any issue of law or mixed law and fact involved, or for any other reason is of such a nature or significance that it ought to be decided by the Court of Appeal for Ontario?” (West Whitby, para. 13). This test effectively grants the Court of Appeal a very broad discretion to decide to grant leave unhindered by any pre-determined “categories”, with the potential to shift the relationship between the Divisional Court and the Court of Appeal. And, not incidentally, that in Ontario, at least, it implies the Court of Appeal is of significance akin to the Supreme Court of Canada.

The common element in Sault Dock and in West Whitby is that the matter at the heart of the application for leave to appeal has a public significance; the former gives some guidance as to what that means, although it defines it broadly, while the latter gives a wide scope of discretion to the Court of Appeal in deciding what cases to accept. Indeed, how the panel in West Whitby applies its own test implicitly confirms that (see my Slaw post, “Tension on the Ontario CA….”, on this point), although one cannot ignore that the panel in Davis stated that the West Whitby panel could have achieved the same result by applying the Sault Dock framework.

KNAUFF

And so to the Court of Appeal’s decision in Knauff.

The Court of Appeal concluded that “the essential message of Sault Dock should be maintained,” although employing an “updated framework”, regardless of whether the Divisional Court was exercising original or appellate jurisdiction (Knauff, CA, para.5) (Neither the panel in West Whitby nor that in Davis was concerned with this issue but the Knauff court’s statement makes the irrelevance of the distinction clear; the CA in Knauff discusses the history of this distinction at paras.13-16 and why a distinction is not necessary at paras. 47-51.)

In the Court of Appeal’s view, an updated framework is warranted by Ontario’s changing legal landscape, resulting in parties raising issues that do not easily fit into the Sault Dock categories, the first two of which help illustrate the meaning of “public importance” and other two of which do not, complicated by the fact that there is not an evolving jurisprudence on the meaning of public importance; by Sault Dock‘s not explaining how arguability and public importance related to each other; by lack of development of the residual category; and by the desirability of settling the “uncertainty” of whether there is a distinction between cases involving the Divisional Court’s original and appellate jurisdictions (Knauff, paras. 28-31). (Of course, any evolution of leave to appeal jurisprudence must be gleaned from the resulting decisions, since the court does not usually give reasons for why it grants leave or not.) (The CA does not include the introduction of the Charter explicitly in its decision as necessitating an update to the Sault Dock test, but it does refer in fn.7 to several changes in the “legal landscape” that West Whitby, the parties and intervenors raised as having occurred or increased since Sault Dock, including the Charter, the greater importance of the administrative state, Aboriginal rights and quasi-constitutional human rights.)

For its “updated framework”, the Knauff Court retained the criteria of importance and “arguability”. These two criteria are interrelated: “While distinct concepts, arguability and public importance have overlapping features. A question that is not arguable in the circumstances of the case cannot rise to the level of public importance warranting leave, because public importance is not gauged in the abstract. On the other hand, what makes a question arguable can inform why it is one of public importance warranting consideration by this court.” (Knauff, CA, para. 7) The Court translates this as one “key consideration” in the updated framework: “whether the proposed appeal raises an arguable question of law or mixed law and fact that is of sufficient public importance to warrant consideration by the Court of Appeal“ (Knauff, CA, para. 32; emphasis in the original).

What does “arguability” and its consideration mean in this context?

The appeal cannot merely be on a question of fact; short of exceptional circumstances, the issue must have been raised before the Divisional Court and not before the Court of Appeal for the first time; if the Divisional Court is entitled to deference, arguability must be determined within a deferential framework; and the issue must not be moot (unless there is a reason to exercise discretion to hear it). (Knauff, CA, para. 37) Arguability also derives from the failure of the Divisional Court to apply the correct law or standard of review “in a way that was not harmless but instead may have affected the outcome”. However, the analysis is not closed even if the Divisional Court has applied the correct law, for there may be an arguable question

…if that law, or the general principles that underlie it, should be reconsidered, expanded, qualified, clarified or changed. Indicators of that type of arguable question may include whether the issue is a constitutional one, whether the legal rule applied by the Divisional Court is out of step with developments in that area of the law, whether the issue is novel or in any event is one lacking in authoritative guidance from the Supreme Court of Canada or this court, the nature or adequacy of the Divisional Court’s reasoning on a debatable point, a dissent in the Divisional Court, conflicting case law from other jurisdictions, and/or compelling academic criticism and other legal commentary on the subject. (Knauff, CA, para. 38)

Again, these reasons for arguability give an appellate court a wide field on which to conclude that the first criterion is met and almost certainly an arguable issue based on these factors will be one of public importance.

One apparent difference between Sault Dock and the Court of Appeal’s decision in Knauff is that in the latter, “[t]here is no finite or closed category of question that can qualify as being of public importance” (Knauff, CA, para.40). I say “apparent” because by the time one runs through the various categories in Sault Dock, one reaches more or less the same result. The real difference is that the two decisions start from the opposite positions: Sault Dock lists categories but recognizes they are not exhaustive, while Knauff starts with an open-ended appreciation of what constitutes public importance.

Considering whether a matter is of public importance, once it is determined to be arguable, requires assessment of two perspectives: who is affected beyond the immediate parties (the broader the affected persons, and the more fundamental the interest affecting them, the more likely the matter is of public importance); and whether the question “goes to the development, progress, coherence, stability and predictability of the law, and thus the law’s ability to deliver justice in Ontario”. (Knauff, CA, paras. 44-45) This approach takes care of the main categories or circumstances enunciated in Sault Dock.

In the end, the Court really decided Knauff on the basis that the issue was moot and that the Divisional Court had determined it was moot and had decided not to exercise its discretion to hear it regardless. Accordingly, since Knauff was concerned only with the Divisional Court’s refusal to exercise its discretion to hear the matter although it was moot, his challenge “does not raise an arguable question of public importance” (Knauff, CA, para. 59).

CONCLUSION

Knauff’s challenge constituted merely a hook, and a rather weak one at that, on which the Ontario Court of Appeal could “resolve” what appeared to be a dispute between the two appellate panels. In doing so, it acknowledged the need to reconsider the framework in Sault Dock, as claimed by the panel in West Whitby, but used Sault Dock as a cover for an updated framework.

Ironically, as the Davis panel said of the panel in West Whitby, the Court could have reached the same decision had it applied Sault Dock. Notably, despite heading the penultimate section of its decision “Application of the Updated Framework to This Case”, it did not even undertake the pretence of applying the new framework to the elements in Knauff’s claim. Indeed, one is tempted to venture that it could have dismissed the case on almost any other basis. Rather, the Court simply undertook an exegesis of sorts about the test for leave to appeal on the flimsiest basis. Or, put another way, it reformulated the test in a manner contrary to its own injunction relating to arguability when leave to appeal is an issue; it developed it in the abstract.

Freeing the test from the categorical strictures of the first part of Sault Dock may be a good thing. Generally speaking, checklists are somewhat confining. Yet even in Sault Dock, the apparent limitation of the test is countermanded by references to “special circumstances” and “interests of justice”. At the same time, guidelines can be very helpful. In Knauff, the Court of Appeal has listed examples of the kind of circumstances that might satisfy the requirements of arguability and public importance (see, for example, para.44 on public importance) and this could encourage assessments that circumstances akin to these would satisfy them.

Ultimately, however, the value of the more loosely defined test in Knauff and its impact on the viability of Divisional Court decisions (and in many cases, the tribunal decisions that had been considered by the Divisional Court) will be revealed only in its application. And some of us will see whether Knauff attains the venerability of Sault Dock.

Finally, as far as the title to this post is concerned, the Court of Appeal in Knauff implicitly rejected the test the panel in West Whitby proposed, analogous to that the Supreme Court of Canada employs (see above), and has more modestly provided a test that is more reflective of Sault Dock with some refinement of configuration rather than a new test.

The post The Court of Appeal’s Consideration of Sault Dock: A New Test, Refinement or More of the Same? 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’omission de la juge de première instance d’aborder le critère du consentement de l’accusé à la présence de l’arme à l’intérieur du véhicule dans lequel il était passager constitue une erreur de droit; il y a lieu d’appliquer la disposition réparatrice (art. 686 (1) b) (iii) C.Cr.).

Intitulé : Fleurilien c. R., 2026 QCCA 1139
Juridiction : Cour d’appel (C.A.), Montréal
Décision de : Juges Michel Beaupré, Sophie Lavallée et Peter Kalichman
Date : 21 août 2026

Résumé

PÉNAL (DROIT) — infraction — infractions relatives aux armes — armes à feu — possession d’une arme à feu prohibée — possession non autorisée d’une arme à feu prohibée dans un véhicule automobile — exclusion de la preuve — protection contre les fouilles, les perquisitions ou les saisies abusives — véhicule automobile — fouille accessoire — passagers — droit à la protection contre la détention ou l’emprisonnement arbitraires — port de la ceinture de sécurité — interprétation de «véhicule routier en mouvement» (art. 396 du Code de la sécurité routière) — véhicule immobilisé — refus de déclarer ses nom et adresse (art. 74 du Code de procédure pénale) — arrestation légale — appréciation de la preuve — preuve circonstancielle — possession conjointe (art. 4 (3) b) C.Cr.) — consentement — connaissance — contrôle — proximité avec l’arme — déclaration de culpabilité — appel — erreur de droit — application de la disposition réparatrice prévue à l’article 686 (1) b) (iii) C.Cr. — règle interdisant les condamnations multiples.

PÉNAL (DROIT) — preuve pénale — exclusion de la preuve — protection contre les fouilles, les perquisitions ou les saisies abusives — véhicule automobile — fouille accessoire — passagers — droit à la protection contre la détention ou l’emprisonnement arbitraires — port de la ceinture de sécurité — interprétation de «véhicule routier en mouvement» (art. 396 du Code de la sécurité routière) — véhicule immobilisé — refus de déclarer ses nom et adresse (art. 74 du Code de procédure pénale) — arrestation légale — appréciation de la preuve — preuve circonstancielle — possession conjointe (art. 4 (3) b) C.Cr.) — consentement — connaissance — contrôle — proximité avec l’arme — possession d’une arme à feu prohibée — possession non autorisée d’une arme à feu prohibée dans un véhicule automobile — appel — erreur de droit — application de la disposition réparatrice prévue à l’article 686 (1) b) (iii) C.Cr.

PÉNAL (DROIT) — garanties fondamentales du processus pénal — protection contre les fouilles, les perquisitions ou les saisies abusives — véhicule automobile — fouille accessoire — passagers — exclusion de la preuve — droit à la protection contre la détention ou l’emprisonnement arbitraires — port de la ceinture de sécurité — interprétation de «véhicule routier en mouvement» (art. 396 du Code de la sécurité routière) — véhicule immobilisé — refus de déclarer ses nom et adresse (art. 74 du Code de procédure pénale) — arrestation légale — possession d’une arme à feu prohibée — possession non autorisée d’une arme à feu prohibée dans un véhicule automobile — appel.

DROITS ET LIBERTÉS — droits judiciaires — protection contre les fouilles, les perquisitions ou les saisies abusives — protection contre les fouilles, les perquisitions ou les saisies abusives — véhicule automobile — fouille accessoire — passagers — exclusion de la preuve — port de la ceinture de sécurité — interprétation de «véhicule routier en mouvement» (art. 396 du Code de la sécurité routière) — véhicule immobilisé — refus de déclarer ses nom et adresse (art. 74 du Code de procédure pénale) — arrestation légale — possession d’une arme à feu prohibée — possession non autorisée d’une arme à feu prohibée dans un véhicule automobile — appel.

DROITS ET LIBERTÉS — droits judiciaires — personne arrêtée ou détenue — droit à la protection contre la détention ou l’emprisonnement arbitraires — port de la ceinture de sécurité — interprétation de «véhicule routier en mouvement» (art. 396 du Code de la sécurité routière) — véhicule immobilisé — refus de déclarer ses nom et adresse (art. 74 du Code de procédure pénale) — arrestation légale — possession d’une arme à feu prohibée — possession non autorisée d’une arme à feu prohibée dans un véhicule automobile — appel.

DROITS ET LIBERTÉS — droits judiciaires — vie, sûreté, intégrité et liberté — véhicule automobile — fouille accessoire — passagers — exclusion de la preuve — port de la ceinture de sécurité — interprétation de «véhicule routier en mouvement» (art. 396 du Code de la sécurité routière) — véhicule immobilisé — refus de déclarer ses nom et adresse (art. 74 du Code de procédure pénale) — arrestation légale — possession d’une arme à feu prohibée — possession non autorisée d’une arme à feu prohibée dans un véhicule automobile — appel.

INTERPRÉTATION DES LOIS — méthode d’interprétation moderne — sens ordinaire des mots — différence entre les versions anglaise et française — interprétation contextuelle — principe de l’uniformité d’expression — interprétation téléologique — conséquences absurdes — interprétation de «véhicule routier en mouvement» (art. 396 du Code de la sécurité routière).

Requêtes en autorisation d’appel d’une déclaration de culpabilité. Déclarées sans objet. Requête pour permission de présenter une nouvelle preuve. Rejetée. Appel d’une déclaration de culpabilité. Accueilli en partie.

Une nuit, les policiers ont été appelés à intervenir après qu’on leur eut signalé un véhicule immobilisé à un feu de circulation dont les occupants auraient été endormis. Au cours de l’intervention policière, une arme tronçonnée et des munitions ont été découvertes dans le véhicule. La Cour du Québec a déclaré l’appelant, qui était l’un des passagers, coupable d’avoir eu en sa possession une arme à feu prohibée et des munitions facilement accessibles pouvant être utilisées avec celle-ci, et ce, sans être titulaire d’une autorisation ou d’un permis, ainsi que d’avoir occupé un véhicule automobile où il savait que se trouvait une telle arme. L’appel porte aussi sur le rejet de la requête de l’appelant en exclusion de la preuve. Celui-ci et ses coaccusés prétendaient que leur arrestation était illégale puisque le véhicule n’était pas «en mouvement» (au sens de l’article 396 du Code de la sécurité routière) et, par conséquent, que l’obligation de porter la ceinture de sécurité ne s’appliquait pas.

Décision

M^me la juge Lavallée: D’après leur sens courant, les mots «en mouvement» excluent un objet immobilisé ou qui est statique; ils impliquent plutôt un déplacement immédiat et actuel ou un changement de position. À première vue, le libellé de l’article 396 du code est clair, mais il révèle une ambiguïté puisqu’il serait étonnant que le législateur ait voulu que le port de la ceinture de sécurité ne soit obligatoire que lorsque le véhicule roule, alors que le conducteur d’un véhicule temporairement à l’arrêt au feu rouge a l’obligation de reprendre sa route en vertu du code. Il faut conclure qu’un véhicule routier est en mouvement même si le conducteur a l’obligation de respecter les signaux de signalisation et de s’immobiliser avant de poursuivre sa route, selon les diverses obligations prévues en ce sens dans le code. L’expression «véhicule en mouvement» se trouve à plusieurs endroits dans le code et devrait avoir 1 seul et même sens en vertu du principe de l’uniformité d’expression. Un poids moindre doit toutefois être accordé à ce principe dans le présent cas. En effet, l’expression «véhicule en mouvement» dans le code est parfois traduite en anglais par «moving vehicle», alors que, à d’autres endroits, elle est traduite par «vehicle in motion». Le législateur ne parle pas pour ne rien dire, mais il est difficile d’expliquer cette différence. Enfin, interpréter l’expression «véhicule routier en mouvement» qui figure à l’article 396 du code comme excluant les véhicules qui sont immobilisés ou stationnés au milieu de la voie publique contrecarrerait l’objectif de la loi qui vise à prévenir le risque d’accidents et de blessures graves, lequel ne disparaît pas parce que le véhicule n’est pas en cours de déplacement physique, actuel et immédiat. Il faut éviter de retenir une interprétation de la loi qui produirait de telles conséquences absurdes.

Par conséquent, même si le véhicule occupé par l’appelant était immobilisé au feu de circulation depuis plusieurs cycles de lumières et que la transmission était en position de stationnement, le policier avait des motifs raisonnables de croire que Jean (un autre passager) avait commis l’infraction prévue à l’article 396 du code et il pouvait lui demander de décliner son identité en vertu de l’article 72 du Code de procédure pénale. Compte tenu du refus de Jean, son arrestation en vertu de l’article 74 du Code de procédure pénale était légale. La fouille accessoire qui en a découlé l’était également.

Quant à la prétention de l’appelant selon laquelle le verdict serait déraisonnable, les motifs de la juge de première instance indiquent qu’elle a considéré que la possession personnelle était en cause en l’espèce. Or, la possession de l’arme par l’appelant ne pouvait qu’être conjointe au sens de l’article 4 (3) b) du Code criminel (C.Cr.) puisque celui-ci n’est pas le seul à avoir été déclaré coupable de la possession de l’arme. De ce fait, l’omission d’aborder le critère du consentement de l’appelant à la présence de l’arme dans le véhicule constitue une erreur de droit. Il y a toutefois lieu d’appliquer la disposition réparatrice (art. 686 (1) b) (iii) C.Cr.). En effet, l’ensemble de la preuve circonstancielle permettait de conclure que la seule inférence raisonnable était que l’appelant consentait à la présence de l’arme et qu’il en avait la possession en vertu de l’article 4 (3) b) C.Cr. La crosse de l’arme dépassait de l’ouverture du coffre et était pointée vers l’habitacle du véhicule, de sorte que l’appelant et son coaccusé Jean pouvaient l’empoigner. Cela démontre que ces derniers exerçaient un certain pouvoir et une certaine autorité quant à la disposition ou à l’emplacement de cette arme et, donc, qu’ils avaient la capacité ou la faculté de consentir à ce qu’elle se trouve à quelques centimètres d’eux. Ils avaient plus qu’une connaissance passive de sa présence. La preuve révèle que les occupants du véhicule étaient ensemble depuis un certain temps, car ils dormaient profondément. La juge a ainsi rejeté l’argument voulant que l’appelant ait monté à bord du véhicule très peu de temps avant son interception, de sorte qu’il n’aurait pas remarqué l’arme et les munitions; l’arme était visible pour les passagers assis à l’arrière, dont l’appelant, lequel avait la possibilité de l’empoigner pour s’en servir. Le verdict n’est donc pas déraisonnable.

Il y a toutefois lieu de prononcer l’arrêt conditionnel des procédures sous le second chef d’accusation, compte tenu de la règle interdisant les condamnations multiples.

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.

Leaves to Appeal Granted

Criminal Law: NCR; High Risk
G. v. R., 2025 ONCA 873 (42341)

High-risk accused designation in NCR context.

Criminal Law: Restraint & Management Orders
Nest Exchange Limited (formerly known as Nest Services Limited), et al. v. R., 2025 ONSC 7113 (42220)

A.G. applications for restraint and management orders.

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

Professional services firms spend a lot of time developing strategy. There are leadership retreats, partner interviews, market assessments, client discussions and competitive reviews. There are conversations about growth, succession, technology, culture, new markets and the future of the firm.

Once the strategic plan emerges and the most significant priorities identified, the plan is presented to the partnership, everyone agrees, and then everyone goes back to work.

So why do so many firms that created a perfectly good strategic plan, struggle so much with execution? This is typically because the strategy exists at one level of the organization while the work required to deliver it happens somewhere else.

For example, supposed the plan calls for “strengthening client relationships” with key clients. That sounds reasonable, but there are questions. Which clients? Where are the opportunities? Which practices should be involved? Who is responsible for the relationship? What should the relationship partner actually do differently? And on and on.

Without more information and discussion, “strengthen client relationships” will remain a strategic priority rather than a change in behaviour that is needed.

Everyone needs to be on board

For a strategy to work, it has to move from the executive team to practice groups, from practice groups to individual partners, etc. The broad objectives identified in the plan need to be connected with specific decisions.

Consider the following priorities examples and how they can easily get consumed by more questions before anyone is able to action it.

• Grow in priority markets: What markets? Which clients and prospects? What capabilities do we need?
• Deepen client relationships: Which clients matter most? Where is there genuine potential for growth?
• Improve collaboration: Which practices will benefit from working together?
• Develop future leaders: Who needs new responsibilities, experience or exposure to senior decision makers?
• Increase profitability: How?

Partners have considerable autonomy in professional services firms. Practice groups have their own priorities. Offices can develop their own ways of doing things. And client work will always take priority over internal initiatives. The challenge keeps getting bigger.

To overcome these challenges, firms need to translate broad priorities into practical actions. The answer will be different for every firm. But there has to be an answer.

The middle of the organization matters

As plans are developed there is typically a great deal of attention paid to the people at the top of the organization and the people expected to deliver the profits. This makes sense as it is the practice leaders, office leaders, sector leaders and other managers that play a critical role in execution. However in order to help each of them execute, leaderships needs to work with them to answer questions they may have such as:

• What does this priority mean for our practice?
• What are the opportunities for me and my group?
• What needs to change, if anything?
• What should we stop doing?
• How do we get help from other parts of the firm?

Without these conversations, it is impossible to know how the high-level strategy is interpreted and actioned across the firm.

Communication is part of implementation

Leadership often thinks about communication and execution after the strategy is complete. Whereas in actuality, these areas must be considered much earlier on.

Change does not come from a single announcement or a single meeting; it comes from daily actions. To be successful, people need to understand how the strategy affects them and see examples of what progress looks like. They need opportunities to ask questions and become vested in the results. They need to hear about the strategy often so that it remains connected with the decisions they make. And they need to see successes.

Marketing and business development can help

Marketing and business development teams have much more to contribute when empowered to do so. These groups often have more information about what is happening across the firm and can help translate strategy into actions. They know which clients generate revenue, which practices are involved, where relationships are strong or weak, what competitors are doing and where opportunities may exist. They can connect information across practices and offices that might otherwise remain in separate places.

This is when these functions become strategic contributors rather than simply support functions. These groups are experts at taking high level thinking and communicating in a manner for the masses.

The strategy is not finished when the plan is approved

A strategic plan is an important starting point. The harder work is implementing the plan. If the strategy only comes up once a year at a partner meeting, it is unlikely to influence what happens during the rest of the year.

The question is not whether people agree with the strategy, it is whether they know what to do with it to be successful.

The post When Strategy Is Not the Problem. Translation Is. appeared first on Slaw.

For Professor Seánna Howard, Director of the International Human Rights Advocacy Workshop, international legal research begins with a simple but important recognition: the most valuable sources are not always the most familiar ones. Her research has taken her to Tucson, where she joined the renowned Indigenous Peoples Law and Policy (IPLP) Program at the University of Arizona College of Law. Along the way, she has worked as an advocate, lawyer, researcher, independent expert, and educator on issues involving Indigenous Peoples, international human rights law, and social justice.

Her work also reflects the importance of developing research strategies for areas of law that may not fit neatly within traditional legal databases or pre-established research methods. For researchers working with the United Nations, treaty bodies, special procedures, regional human rights systems, and Indigenous Peoples’ institutions, finding the relevant material often requires persistence, creativity, and a willingness to look beyond the sources most familiar to domestic legal researchers. As the Associate Librarian for Comparative and International Law at the University of Arizona College of Law, I have had the pleasure to work closely with Prof. Howard on several different research projects. Therefore, I invited her to share on this post her career path, research tips and preferred legal databases with all slaw readers.

Professor Howard’s path to Tucson began in Hamilton, Ontario where she was born. After completing her LLB at the University of Ottawa, she developed an interest in global justice issues, including women’s rights, children’s rights, and the history and continuing effects of colonization at both the local and international levels.

Her legal education also helped shape her understanding of the importance of learning about Indigenous rights independently. As she explained, her law school experience did not provide a dedicated focus on Indigenous rights and International Law. She therefore pursued opportunities to learn more about the historical and contemporary dimensions of Indigenous Peoples, and international human rights.

A search for programs that combined domestic and global approaches to Indigenous rights led her to the IPLP Program at the University of Arizona College of Law. Tucson was nowhere in her long-term plan. In fact, Professor Howard explained that a simple online search helped her take one of the most consequential and transformative decisions in her career path: pursuing an LLM degree at the James E. Rogers College of Law IPLP program.

At the University of Arizona, she worked with Professor James Anaya, whose expertise in Indigenous Peoples’ rights and international human rights law was instrumental in shaping her professional path. Professor Howard eventually worked on cases and matters involving international mechanisms, first as part of the program and later as a staff attorney. She took directing Professor Anaya’s International Human Rights Advocacy Workshop in 2008 and his seminar course in 2016. Her career has since continued to combine advocacy, research, teaching, and international human rights work.

Researching International Law Beyond Traditional Databases

One of the central themes of Professor Howard’s work is the need to understand where international legal information is actually located. Unlike many domestic legal researchers, international legal researchers cannot always rely on a single comprehensive database. The materials may be distributed across the websites of international organizations, treaty bodies, special procedures, specialized agencies, regional institutions, and civil society organizations. In some areas, commercial databases such as Lexis or Westlaw may provide only a partial picture—or may not provide the relevant materials at all.

As a result, international legal research often requires researchers to develop their own research maps. Professor Howard described, for example, creating charts to organize sources relating to Indigenous peoples and international human rights law. These charts bring together materials from different parts of the United Nations system and help researchers identify relationships among institutions, procedures, reports, communications, and other documents.

[ Click the image to see a larger version of this chart.]

Treaty Bodies, Special Procedures, and International Mechanisms

Professor Howard’s research has involved cases and statements before international mechanisms, including UN treaty bodies and the Inter-American Commission on Human Rights. This work requires a researcher to locate formal cases, decisions, communications, reports, and related materials. The sources may not always be indexed in a way that makes them easy to find through a conventional keyword search.

The same is true of the UN special procedures system. Special Rapporteurs and other independent experts produce thematic reports, country visits, communications to states, and other materials. The letters sent by special procedures to governments, for example, can be particularly important sources of information about how international human rights concerns are raised and documented.

Professor Howard has worked with databases and collections of materials relating to these communications and has provided academic support for special rapporteurs. She has also worked on reports addressing specialized human rights topics at the highest levels of the United Nations system. For students working on these projects, research can involve much more than finding a single authoritative document. It may involve compiling resources, tracing an issue through multiple international institutions, identifying relevant country-specific materials, and understanding the procedural history of a matter. The research is often investigative.

The Importance of Institutional Websites

A major part of Professor Howard’s research method is working directly with the websites of international organizations and specialized agencies. These include institutions such as the International Labour Organization, UNESCO, UNDP, and other UN-related or independent international bodies. Their websites can contain reports, decisions, policy documents, guidelines, databases, country materials, and historical documents that may not appear in commercial legal research systems.

For researchers, this means that knowing how to navigate institutional websites is an essential international legal research skill. It also means that researchers must learn the organizational structure of the institution whose materials they are using. A report from a treaty body is different from a report by a Special Rapporteur. A communication from a special procedure is different from a General Comment of a treaty body. A report of the Expert Mechanism on the Rights of Indigenous Peoples serves a different purpose from the work of the UN Permanent Forum on Indigenous Issues. Understanding these distinctions is essential for evaluating the authority, purpose, and relevance of each source.

Foreign Legal Research and International Legal Research

Professor Howard’s work also illustrates the close relationship between foreign and international legal research. As part of the legal team that brought the Maya land rights cases in Belize, she had to research its relationship to other common-law jurisdictions while also considering the country’s international legal obligations and the capacity of its legal institutions. The two types of research often go hand in hand. International law does not exist in isolation from domestic or national legal systems. Human rights standards may be incorporated into domestic law, interpreted by domestic courts, or used by lawyers to advance arguments before national tribunals.

Professor Howard emphasized the importance of understanding international law not simply as something separate from domestic law or as a set of automatically superior rules. Rather, international legal standards can become tools for advancing legal arguments and developing domestic law. Lawyers may use international standards to persuade courts to interpret domestic law consistently with human rights principles. In this way, international legal research can directly influence domestic legal advocacy. The researcher therefore needs to understand both sides of the relationship: the international source itself and the domestic legal system in which the argument will ultimately be made.

Research as Advocacy

For Professor Howard, research is closely connected to advocacy. Whether working on a case before an international body, supporting a report, assisting students, or developing resources on Indigenous peoples’ rights, legal research is ultimately connected to a concrete purpose. That purpose may be to document a violation, support an argument, identify applicable international standards, provide evidence to an international mechanism, or help lawyers develop a case before a domestic court.

This connection between research and advocacy has shaped her career from the beginning. Her path to Tucson began with an interest in global justice and a desire to work on issues that had a tangible impact. Her work with international human rights mechanisms, Indigenous peoples, students, and legal researchers has continued that commitment. It has also made her an important resource for students learning how to conduct research in areas of law where the relevant materials are dispersed across institutions and jurisdictions.

A Researcher Who Maps the International Legal Landscape

Professor Seánna Howard’s career demonstrates that international legal research requires more than familiarity with legal databases. It requires knowing how international institutions work. It requires identifying the organizations that produce relevant information. It requires understanding the differences among treaty bodies, special procedures, expert mechanisms, regional institutions, and civil society organizations. And it often requires building research tools to bring scattered information together.

Most importantly, it requires curiosity. For students and researchers working in Indigenous peoples’ rights and international human rights law, Professor Howard’s approach offers a valuable model. The best research may begin with a database search, but it rarely ends there. Sometimes the relevant source is located on the website of an international organization. Sometimes it is hidden in a treaty body document, a Special Rapporteur communication, a country report, or the work of an Indigenous organization. Sometimes the researcher must create the chart, database, or research guide that makes the information visible to others.

That combination of persistence, institutional knowledge, and creative research is at the heart of Professor Howard’s work—and provides an important introduction to the scholar and advocate who has made Daniel F. Crachiolo Law Library her intellectual home and Tucson her professional home.

Her most recent scholarship includes the following titles:

Howard, Seánna, ‘Indigenous Peoples and Regional Human Rights Systems’ (25 June 2026), in Gautham Rao (ed.), Oxford Bibliographies in Legal History (New York, NY, online edn, Oxford Academic, 25 June 2026 – )

Howard, Seánna, ‘Regional Bodies and Indigenous Peoples’ (22 Apr. 2026), in Mattias Åhrén, and others (eds), The Oxford Handbook of Indigenous Peoples and International Law (online edn, Oxford Academic, 22 May 2024 – )

Osborne, T., Cifuentes, S., Dev, L. et al. Climate justice, forests, and Indigenous Peoples: toward an alternative to REDD + for the Amazon. Climatic Change 177, 128 (2024)

The post Researching Beyond the Familiar: An Interview With Professor Seánna Howard appeared first on Slaw.

Can a lawyer be disbarred for misconduct that is directly caused by mental illness? Until recently, my educated guess would have been no.

In May and June of 2026, a Hearing Panel of the Ontario Law Society Tribunal issued an important pair of decisions that carefully and deliberately resynthesize the role and impact of mental illness in lawyer regulation.[1] These decisions set out and apply a “unified approach” to alleged misconduct by lawyers where mental illness may be a factor.[2] At first glance, this new approach seems to reject case law, including case law by the Appeal Panel that was binding on the Hearing Panel. The approach actually clarifies – and to some extent, distinguishes – these precedents.

The conduct at issue included practicing despite an indefinite suspension for incapacity.[3] The Hearing Panel explicitly accepted expert evidence that the lawyer’s mental illness precluded him from recognizing the authority of the law society, including the suspension, and was a but-for cause of the conduct.[4] Nonetheless, the Hearing Panel found professional misconduct and revoked the lawyer’s licence.[5]

This approach and result appear to reject a long line of cases holding that, where a lawyer’s problematic conduct is caused by mental or other illness, that conduct cannot constitute professional misconduct. As recently as 2024 – as the Hearing Panel in these decisions recognized – an Appeal Panel re-affirmed that “[o]ur jurisprudence establishes that it is a defence to professional misconduct if the licensee is unable to comply with their obligations because of physical or mental illness.”[6] A 2002 decision by a Hearing Panel likewise held that “it simply cannot be misconduct where the licensee’s behaviour is explained by a physical or mental illness”.[7]

Despite the explicit and broad language in these precedents, the Hearing Panel held that such defences had only been recognized “where the misconduct has been at the lower end of severity”, and had not been recognized where “it was likely that the misconduct would continue”.[8] The Panel interpreted these precedents as meaning that there was merely a “discretion” to not find misconduct.[9] The Hearing Panel recognized a nuanced role for mental illness as a sometimes defence:

[M]ental illness cannot result in effectively unregulated conduct. Where mental illness is ended or is in remission or can be addressed by rehabilitative capacity orders, treating mental illness as a defence in a conduct application can advance the purposes of regulation of the professional conduct of lawyers and paralegals.

Accordingly, we conclude that mental illness is not invariably a defence to an allegation of professional misconduct but that it can be accepted as a defence taking into account the important personal rights and interests of licensees, the values of rehabilitation and respect for human dignity together with the need for effective conduct regulation of legal services in the public interest.[10]

This multifactorial and discretionary approach is in sharp contrast to the spirit of previous cases in which conduct caused by mental illness could never be professional misconduct.

The Hearing Panel also clarified the distinction between mental illness as a potential defence and mental illness as merely a potentially mitigating factor as to penalty where there was misconduct. Mental illness could be, but was not necessarily, a defence where the misconduct was “a result of their disability” (i.e., a but-for cause of the misconduct).[11] In contrast, mental illness could be, but was not necessarily, a mitigating factor as to penalty where “there is a connection between the misconduct and the disability” but not causation.[12]

The Hearing Panel, however, was noncommittal as to when mental illness would actually be a mitigating factor: “Where there is a finding of misconduct and there is a connection between the misconduct and disability, the disability and its connection to the proven misconduct may be considered at the penalty stage as may be appropriate.”[13] (In fairness to the Hearing Panel, since the mental illness in the matter before them was a but-for cause of the conduct, it was unnecessary to consider this mitigation issue any further.)

While the Hearing Panel rejected the submissions of the Law Society that the burden was necessarily on the lawyer to establish the mental illness and its relationship to the conduct,[14] it was not explicit as to who instead bears that burden:

As this case demonstrates, mental illness can interfere with a person’s ability to recognize disability and to show that a disability is connected to impugned conduct. The salient issue is not how, and by whom, a connection between a mental disorder and misconduct is shown, but rather whether the panel concludes that the required connection exists. As well, and as this case also demonstrates, the Law Society and the Tribunal can play a role in addressing the question of connection.[15]

In doing so, the Hearing Panel rejected a binding Appeal Panel decision that the lawyer bears the onus: “the onus is on the licensee to establish, on a balance of probabilities, that the disability precludes compliance”.[16] The Hearing Panel was explicit that “the panel must determine” these issues and that that is “ordinarily based on expert evidence”.[17] It remains unclear whether the Law Society or the Tribunal have some burden to inquire and what triggers that burden. (Again, in fairness to the Hearing Panel, it was unnecessary to consider this issue any further.)

In its penalty decision, the Hearing Panel explicitly found that the lawyer was ungovernable and that the cause of that ungovernability did not affect that finding or disbarment as the necessary consequence of that finding: “That his belief is the result of mental illness does not change the fact that he is ungovernable. Being a licensee requires being governable as such…. It is unfortunate that mental illness has caused [the lawyer] to be ungovernable, but we conclude that [the lawyer] cannot continue to be licensed.”[18] Intriguingly, the Hearing Panel explicitly recognized that this was an unusual kind of ungovernability, because it was not a failure of the culmination of progressive discipline, but nonetheless it was clear that the lawyer did not recognize the authority of the law society.[19] The Hearing Panel explicitly and very importantly recognized that, if the lawyer’s illness and its impact improved in the future, the lawyer could apply for re-admission.[20]

Subject to further clarification about when and why mental illness connected to the conduct will be an “appropriate” mitigating factor, as well as when and how the Law Society or the Tribunal should raise the possibility of mental illness, this new framework provides a clear, if open-ended and multifactorial, way forward.

With great respect to the Hearing Panel, however, I am not convinced that it was necessary to distinguish the precedents – stating that conduct caused by mental illness cannot be misconduct – so drastically. The facts of this matter were very particular. There would appear to be viable alternatives that would allow for the necessary result in this case without such a pronounced change in the law. For example, the Hearing Panel could have held that conduct caused by mental illness will only constitute misconduct in exceptional circumstances. Or that there is a strong but rebuttable presumption that conduct caused by mental illness cannot be misconduct. Or even that a misconduct finding is only appropriate when the remedy from a capacity application has proven inadequate (or more narrowly, where there is non-compliance with a suspension). The Hearing Panel is correct that “whether a capacity application is brought, or not, is for the Law Society to decide under the Act. Neither the Tribunal nor the licensee can divert to the capacity stream if the Law Society does not agree.”[21] But the Tribunal could nonetheless make it clear to Law Society counsel that where the conduct is caused by a disability, a Panel will only find misconduct if they are satisfied that a capacity proceeding would not have been sufficient in the circumstances. (Amendments to the Law Society Act may be appropriate or necessary for this last approach.[22])

Ultimately, the test adopted by the Hearing Panel can be applied in a manner consistent with compassion and understanding for licensees with mental illness.[23] However, it is not obvious that it must or will be applied in such a manner. (I am by no means suggesting that this Hearing Panel lacked compassion and understanding.) The invocation of rehabilitation and dignity is important, but on its own its impact is difficult to predict. Moreover, while the protection of the public must always be paramount, a different framing of the test would continue to protect the public while sending a strong and valuable signal about mental illness – not only to licensees with mental illness, but to all licensees, the courts, the public, and the media.

More generally, the language used by the Hearing Panel appears to be more tentative that it needed to be. For example, the Hearing Panel observes that “[w]here mental illness is ended or is in remission or can be addressed by rehabilitative capacity orders, treating mental illness as a defence in a conduct application can advance the purposes of regulation of the professional conduct of lawyers and paralegals.”[24] Again with respect, in those circumstances such a defence does advance the purposes of regulation, except in the situation where the licensee refuses treatment.

I understand that where misconduct is caused by mental illness, disbarment cannot be absolutely impossible and will sometimes be necessary. The unusual facts in this case demonstrate that reality. I nonetheless hope that such disbarment will be rare.

________________

[1] Law Society of Ontario v Bogue, 2026 ONLSTH 91 [Bogue merits], 2026 ONLSTH 109 [Bogue penalty].

[2] Bogue merits, supra note 1 at para 128.

[3] Ibid at para 9. There was also a citation around civility, which was also established, but seemed to play little role in the analysis: paras 38-48.

[4] Ibid at para 32.

[5] Ibid at para 147; Bogue penalty, supra note 1 at paras 15-16.

[6] Law Society of Ontario v McLennan, 2024 ONLSTA 10 at para 21 [McLennan], quoted in Bogue merits, supra note 1 at para 81.

[7] Law Society of Ontario v Phillips, 2022 ONLSTH 2 at para 38, quoted in Bogue merits, supra note 1 at para 81.

[8] Bogue merits, supra note 1 at para 112.

[9] Ibid at para 82.

[10] Ibid at paras 115-116 [emphasis added].

[11] Ibid at paras 128, 129 (quotation is from 128)

[12] Ibid at para 129.

[13] Ibid at para 129 [emphasis added].

[14] Ibid at para 119.

[15] Ibid at para 122.

[16] McLennan, supra note 6 at para 21, quoted in Bogue merits, supra note 1 at para 81.

[17] Ibid at para 128.

[18] Bogue penalty, supra note 1 at paras 12, 15.

[19] Ibid at paras 10-12.

[20] Ibid at para 16.

[21] Bogue merits, supra note 1 at para 124.

[22] Law Society Act, RSO 1990, c L.8.

[23] Bogue merits, supra note 1 at para 129: “Where misconduct results from disability, this approach permits, but does not require, a determination other than a finding of professional misconduct. This approach permits, but does not require, diversion to the capacity stream where misconduct results from disability. Where there is a finding of misconduct and there is a connection between the misconduct and disability, the disability and its connection to the proven misconduct may be considered at the penalty stage as may be appropriate.”

[24] Ibid at para 115 [emphasis added].

The post The Role of Mental Illness in Lawyer Regulation (In Ontario) appeared first on Slaw.

Preoccupation with the ongoing armed conflict in Iran has diverted attention from the grim aftermath of Iran’s nation-wide protests that began on 28 December 2025, during which tens of thousands of protestors were killed, arrested, or disappeared.

Lawyers were prevented from reaching their detained clients. Lawyers themselves were among those detained simply for trying to do their jobs. Protestors are now being tried without legal representation before courts that lack any semblance of independence or impartiality. Frequent executions are now being carried out following hasty and grossly unfair proceedings.

Dissidents who flee Iran may be subjected to transnational repression in countries where they seek refuge, including the United States (US) and Canada.

The first fifty days of Iran’s protests: Mass arrests, massacres, and executions

By the fiftieth day of Iran’s nation-wide protests, 15 February 2026, there had been 53,552 arrests and 7,015 confirmed deaths in 210 cities across all 31 of Iran’s provinces, according to the Human Rights Activists News Agency (HRANA). Iran engaged in mass extrajudicial killings on 8 and 9 January 2026 as security forces reportedly massacred thousands by opening fire on protestors and bystanders.

Dozens of lawyers were among those arrested during and after the protests, merely for carrying out their lawful professional duties. Many other lawyers face charges that carry long prison terms.

The exact number of arrested lawyers remains unclear. Documentation efforts were impeded by Iran’s 88-day disruption of international internet access starting 28 February 2026 when large-scale US and Israeli bombing of Iran began. While internet connections were partially restored on 26 May 2026, restrictions remain nationwide, with internet traffic at around 40 per cent of pre-blackout levels.

Detained lawyers have reportedly been tortured and ill-treated, including prolonged solitary confinement, beatings during interrogation, and denial of medical treatment. A sample list of lawyers arrested before and during the nation-wide protests appears in a written statement dated 15 August 2026 to the UN Human Rights Council, issued by Lawyers for Lawyers and co-sponsored by Lawyers’ Rights Watch Canada (LRWC) and the Centre for Supporters of Human Rights (CSHR).

US and Israeli bombings: Prisoners at risk

Detained lawyers are among those facing increased danger from US and Israeli bombings near prisons. On 9 March 2026, Amnesty International reported that Iran had refused to release arbitrarily detained prisoners and had transferred some detainees “to undisclosed locations or areas close to potential military targets.”

In an oral statement to the UN Human Rights Council on 23 March 2026, LRWC (with other NGOs) highlighted the grave risks posed by bombings to detained lawyers and prisoners of conscience in Iran. The statement called on Iran to activate its laws providing for “emergency furloughs, temporary release, or transfer of prisoners to safety during conflict.”

LRWC’s joint statement also condemned “all unlawful uses of force, including actions by the United States and Israel against Iran and Iran’s retaliation across the region,” and urged “an immediate cessation of hostilities consistent with obligations under the UN Charter and international human rights and humanitarian law.” Since then, President Trump has on several occasions threatened war crimes and atrocity crimes against the Iranian people, including a 22 September threat at the UN General Assembly that he may “annihilate the Islamic Republic” if the Iranian authorities refuse to “make a deal.”

Gendered repression of women lawyers

While threats and arrests of lawyers tend to escalate during periods of widespread protest, human rights advocates in Iran have faced longstanding threats. Women’s rights advocates are at particularly high risk.

Women lawyers in Iran face both professional persecution and gender-based discrimination. In addition to facing security threats, they must contend with discriminatory laws, mandatory dress codes, and pervasive institutional bias. Research by CSHR and IBAHRI, published in November 2025, details how mandatory hijab laws, gender-based dress-codes, and entrenched social biases constrain women lawyers’ professional opportunities and subject them to humiliating scrutiny and arbitrary restrictions. For example, the CHRS and IBAHRI report describes a situation in which a woman lawyer was barred from an imminent court hearing because she wore nail polish. She was forced to “rush through nearby streets in search of nail polish remover… [and] returned just in time to remove the nail polish and attend the session.”

When women are detained in Iran, they experience added dangers, including threats of sexual violence.

An unknown number of women were arrested during the nationwide protests. Among them were several women lawyers. For example, Shima Ghoosheh was arrested in January 2026 after publicly indicating her willingness to represent detained protesters. She was held in solitary confinement and released on bail of approximately US$40,000.

Human rights lawyer and women’s rights advocate Nasrin Sotoudeh was arrested on 1 April 2026, in part for a statement condemning the January 2026 massacre of protesters. She reported torture and ill-treatment during her arrest and detention. She has been charged with “propaganda against the state” and was released on bail on 13 May 2026. Ms. Sotoudeh has for over a decade been subjected to repeated arrests, prosecutions, arbitrary detentions, and repeated ill-treatment in retaliation for her human rights work and the legitimate exercise of her professional responsibilities. Ms. Sotoudeh deals with constant monitoring, travel restrictions, and reprisals against her family linked to her international advocacy.

Astareh Ansari was arrested on 3 May 2026 for representing persons detained during the nationwide protests. She is charged with “assembly and collusion against national security” and “propaganda against the state.” During interrogation she was subjected to beatings and ill-treatment, including denial of medical care, before being released on bail on 22 July 2026.

Bahar Sahraian was arrested on 16 May 2026, reportedly after appearing at the Shiraz Revolutionary Court in connection with a client’s case. She was released on bail on 21 July 2026. Ms. Sahraian faces charges of “assembly and collusion with intent to act against national security,” “propaganda activity against the state,” and “publishing falsehoods.” She was previously arrested in 2022 as part of a group of 30 lawyers in connection with the nationwide protests that began the “Women, Life, Freedom” movement after 22-year-old Mahsa Amini was beaten to death on 12 September 2022 by the morality police for “improper hijab.”

A “full spectrum” of transnational repression targeting exiles

Iranians who flee the country continue to face significant threats abroad. Freedom House reports that Iran deploys a “full spectrum” of transnational repression targeting Iranians in exile. According to the UN Fact-Finding Mission on Iran, as of March 2026 exiles in at least 14 countries have reported such repression in retaliation for their advocacy or reporting on human rights in Iran.

Tactics include assassination attempts, kidnapping, forced renditions to Iran, smear campaigns, convictions in absentia, abuse of Interpol red notices, cyber-attacks, and coercion of family members. Women exiles have been subjected to online harassment, including threats of rape and death. Pressure on exiles often extends to their family members in Iran, who may lose their employment, or may be summoned, interrogated, detained, or have their homes raided. To shield families from retaliation, many exiles self-censor or sever contact with their families.

Iranian lawyers facing repression around the world include Shirin Ebadi, a former Iranian jurist and Nobel laureate living in exile in the UK, who has continued to experience state-directed threats and defamation. Iranian-Canadian legal professional and human rights advocate, Ardeshir Zarezadeh, has been threatened by Iranian authorities for his work in support of victims of Iran’s human rights violations. Lawyer and former Canadian Minister of Justice, Irwin Cotler, founder of the Raoul Wallenberg Centre for Human Rights was subjected to threats of assassination by agents of Iran in 2024.

Transnational repression has been documented in Europe, Asia, and North America, including Canada. Iran is among the top three countries engaged in transnational repression of people in Canada, according to Canada’s Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, conducted by Justice Marie-Josée Hogue (Hogue report).

Violation of international law and standards

Iran’s actions against dissenters grossly violate its longstanding international obligations, including the International Covenant on Civil and Political Rights (ICCPR) which Iran ratified in 1975 (long before Canada acceded to it in 1976 and the US in 1992).

In relation to lawyers, Iran is also in violation of the UN Basic Principles on the Role of Lawyers (Basic Principles), which provide that governments must ensure that lawyers can perform all professional functions without intimidation, hindrance, harassment. or improper interference. The Basic Principles are firmly grounded in the ICCPR, which requires fair trials before impartial courts, prohibits extrajudicial killing, enforced disappearance, torture and ill-treatment of prisoners, and requires humane treatment for detainees.

ICCPR, Article 2, requires States Parties to ensure that victims of human rights violations are afforded a remedy. So far, Iranian lawyers, rights defenders, and dissenters have been afforded no remedies for Iran’s severe and systematic violations of their rights.

Canada and the US, along with all other countries, are obligated by international law to ensure that individuals are not subjected to refoulement; people must not be sent to countries where they are at risk of serious human rights violations. The US has been engaged in refoulement of many immigrants and asylum seekers.

Iranians seeking asylum in the US face risks of deportation, and in some cases, have been sent back to Iran on chartered flights. Notably, one such flight took place in 2026, even after the Iranian regime began to violently crack down on peaceful protesters. A lawsuit launched by the Iranian American Legal Defence Fund alleges that asylum seekers have been present on mass deportation flights from the US since early 2025, including members of Iran’s 2022 Women, Life, Freedom movement.

Iranians who first arrive in the US and later attempt to seek asylum in Canada are often prevented from doing so by the Safe Third Country Agreement (STCA), which denies access to Canada for individuals who have already landed in the US. When Canada sends asylum seekers back to the US pursuant to the STCA, it may be facilitating US violations of international refugee law.

Need for increased protection needed for those fleeing Iran: US and Canada 

Canada has no embassies in Iran itself, as diplomatic relations with Iran were cut off in 2012. At the same time, Canada declared Iran a “state sponsor of terrorism under the Justice for Victims of Terrorism Act.”

Canada has regularly expressed concern about Iran’s human rights violations, including its transnational repression practices. In July 2025, Canada was among 14 countries, including the US, that issued a joint statement condemning the expanding transnational repression within their territories by agents of Iran. The statement highlighted that “attempts by the Iranian intelligence services to kill, kidnap, and harass people in Europe and North America [are] in clear violation of our sovereignty.” On 10 June 2026, Canada was among 21 countries making another joint statement that “[a]ttempts to kill, kidnap, harass, intimidate, or otherwise attack people on our soil, undermines national sovereignty and international norms. These actions must stop immediately…” Notably, the US joined the 2026 statement, while simultaneously engaged in deporting Iranians to unsafe third countries.

Words that are not matched by actions ring hollow. Canada’s current laws, policies and practices are insufficient to ensure protection and remedies for Iranian lawyers, defenders, and dissenters at home or in exile abroad. A number of actions have been recommended, including the following. 

Revoke the Safe Third Country Agreement

In no case should any Iranian asylum seeker be returned to the US pursuant to the STCA. By maintaining the illusion that the US is a “safe third country” for Iranian exiles, Canadian authorities could be complicit in unlawful US refoulements. Amnesty International and other organizations, including the Canadian Association of Refugee Lawyers, Rainbow Railroad, and the Canadian Civil Liberties Association, have repeatedly sought Canadian government termination of the STCA. In our opinion, Canada is required by international law to do so and to ensure that all asylum laws, policies, and practices fully comply with international law on asylum.

Conduct criminal law investigations and prosecutions

The UN Human Rights Council’s Fact-Finding Mission on Iran recently recommended that countries:

Promptly open criminal investigations into any allegations of transnational repression against human rights defenders, activists, and journalists on Iran, in their territory or jurisdiction, including into the responsibility and role of entities or officials of the Government of Iran, and prosecute those responsible; regularly inform victims of the progress of the investigation and legal proceedings…

Implement a human rights-based approach to transnational repression

Canada already has a policy to protect human rights defenders. Remedies for Iranian lawyers and defenders at risk would include active implementation of Canada’s “Voices at Risk” policy, offering asylum to Iranian defenders facing transnational repression in other countries.

The Hogue report remains one of Canada’s main official actions on transnational repression. Although the Hogue report’s mandate was to address foreign interference and national security related to Canada’s elections, it did find that transnational repression has been used to curtail human rights activism in Canada. Regarding Iran, the report notes that transnational repression is “used to discourage advocacy and activism in Canada for human rights in Iran and against the Iranian regime.”

Canada’s Standing Committee on Access to Information, Privacy and Ethics published a 2024 report on foreign interference, which recommended that the Canadian government “ensure that any legislative mechanisms developed to counter foreign interference take into account how they might affect individuals and communities already victimized or targeted by foreign interference in Canada.”

Canada’s 2024 Countering Foreign Interference Act focuses primarily on national security, protection of Canadian interests, and “democratic rights.” In Canada’s Charter of Rights and Freedoms, “democratic rights” refer to the right to vote. The Act provides no protection of other individual rights that could be violated through transnational repression.

The Canadian government tends to frame transnational repression primarily as a “foreign interference” or “national security” issue rather than as a violation of exiles’ human rights and well-being. The Citizen Lab noted that Canada’s approach to transnational repression is a “far cry from taking specific measures that effectively protect targets – particularly women human rights defenders in exile…” The Citizen Lab report mentioned an Iranian women rights defender in Canada who “experienced online threats and sexual harassment originating from the social media accounts of other Iranians, some of whom she believed were based in the same city. She reported this to the police, who made her feel dismissed when they explained that these posts would be protected under Canadian human rights law.”

Conclusions

On 18 September, the UN’s Fact-Finding Mission on Iran (FFMI) found that the Iranian authorities’ response to the nationwide protests, including the crackdown on lawyers, cannot be understood as a mere continuation of its well-established pattern of suppressing dissent. It represents a significant escalation from the past – in the scale of violence and killings, in efforts to sever contact between communities and with the outside world, in the use of repressive laws and in the ever-increasing use of the death penalty as a tool of intimidation and control.

The violations are now so widespread and systematic that the FFMI found that many of them amount to crimes against humanity.

Not addressed in this article is the impact of the unlawful armed conflict between the US, Israel and Iran, which has spread to other countries in the region. The FFMI has found that the US and Iran have committed war crimes and has urged that “allegations of violations of international human rights law and international humanitarian law by all parties are independently investigated and those responsible held to account.” The FFMI also called on all UN member states to “guarantee protection and assistance for those fleeing or at risk of persecution…”

Protection of Iranian lawyers requires a full spectrum of actions at the international and domestic levels, with all countries taking concrete actions to protect lawyers, human rights defenders, and dissenters – and indeed all civilians, both in Iran and in exile.

___

This article is based in large part on research by co-author Paria Saremi, JD, LLM, an international human rights lawyer who served as the principal drafter of a written statement submitted to the UN Human Rights Council by Lawyers’ Rights Watch Canada (LRWC) and others regarding arbitrary detention of lawyers in Iran. Paria Saremi conducts advocacy and research on Iran for LRWC and the Zagros Human Rights Center in Geneva.

The post Iranian Lawyers Under Attack in Iran and Abroad 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.

Leaves to Appeal Granted

Arbitration: Same-Issue Estoppel; Standard of Review
Vancouver School District No. 39 v. Kingsgate Property Ltd., et al., 2026 BCCA 98 (42350)

Same-issue estoppel & standard of review in arbitration context.

Family Law: Common Law Relationships
Tanguay v. Zicat, 2025 QCCA 1255 (42126)

Cohabitation agreement precluding later unjust enrichment claim.

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) : Dans une affaire de voies de fait graves commises à l’endroit d’une inconnue à la sortie d’un bar, en se limitant à énoncer les conséquences indirectes de la peine et en les qualifiant de facteurs neutres, sans les analyser véritablement dans l’exercice de détermination de la peine, la juge de première instance a commis une erreur de principe justifiant de substituer à la peine de 4 ans de détention une peine d’emprisonnement avec sursis de 2 ans moins 1 jour.

Intitulé : Monfiston c. R., 2026 QCCA 1203
Juridiction : Cour d’appel (C.A.), Montréal
Décision de : Juges Geneviève Marcotte, Suzanne Gagné et Christine Baudouin
Date : 14 septembre 2026

Résumé

PÉNAL (DROIT) — détermination de la peine — infractions contre la personne — voies de fait — voies de fait graves — femme — intoxication — accusée âgée de 37 ans — conséquences indirectes de la peine — conséquences sur le plan de l’immigration — statut de résident permanent — mesure de renvoi — perte du droit d’appel — situation familiale de l’accusée — conséquences pour les enfants de l’accusée — facteur lié à la situation personnelle et particulière de l’accusée — facteurs atténuants — remords — plaidoyer de culpabilité — démarches de réhabilitation — proportionnalité de la peine — dénonciation — dissuasion — réinsertion sociale — fourchette des peines — détention — appel — norme d’intervention — erreur de principe — 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 — facteurs à prendre en considération — conséquences indirectes de la peine — conséquences sur le plan de l’immigration — statut de résident permanent — mesure de renvoi — perte du droit d’appel — situation familiale de l’accusée — conséquences pour les enfants de l’accusée — facteur lié à la situation personnelle et particulière de l’accusée — proportionnalité de la peine — voies de fait graves — vol qualifié — détention — appel — erreur de principe — substitution de la peine — condamnation avec sursis — ordonnance de purger sa peine dans la collectivité.

PÉNAL (DROIT) — détermination de la peine — infractions contre les biens et la propriété — vol — vol qualifié — téléphone cellulaire — femme — intoxication — accusée âgée de 37 ans — conséquences indirectes de la peine — conséquences sur le plan de l’immigration — statut de résident permanent — mesure de renvoi — perte du droit d’appel — situation familiale de l’accusée — conséquences pour les enfants de l’accusée — facteur lié à la situation personnelle et particulière de l’accusée — facteurs atténuants — remords — plaidoyer de culpabilité — démarches de réhabilitation — proportionnalité de la peine — dénonciation — dissuasion — réinsertion sociale — fourchette des peines — détention — appel — norme d’intervention — erreur de principe — substitution de la peine — condamnation avec sursis — ordonnance de purger sa peine dans la collectivité — peine concurrente — probation.

Appel de la peine. Accueilli; une peine d’emprisonnement avec sursis de 2 ans moins 1 jour est substituée à la peine d’emprisonnement de 4 ans ayant été prononcée en première instance.

L’appelante se pourvoit à l’encontre d’un jugement de la Cour du Québec l’ayant condamnée notamment à une peine de 4 ans d’emprisonnement à la suite de voies de fait graves commises à l’endroit d’une inconnue à la sortie d’un bar. Durant environ 8 minutes, l’appelante, qui était fortement intoxiquée, a asséné à cette dernière de violents coups répétés au visage et au corps en plus de la mordre au front et au bras. Même si la juge de première instance a reconnu que sa situation familiale et les conséquences potentielles sur son statut d’immigration pourraient militer en faveur d’une peine d’emprisonnement à purger dans la collectivité, elle a estimé que le processus de détermination de la peine exigeait l’imposition d’une peine d’emprisonnement de 4 ans.

Décision

La juge a commis une erreur de principe en qualifiant les conséquences indirectes propres à l’appelante de facteurs neutres. En effet, si les conséquences indirectes ne constituent ni un facteur aggravant ni un facteur atténuant, elles ne sont pas non plus un facteur neutre, mais plutôt un facteur lié à la situation personnelle et particulière de l’appelante, et peuvent avoir une répercussion sur le processus d’individualisation de la peine et le principe de parité.

Par ailleurs, le poids à accorder aux conséquences indirectes d’une peine varie d’une affaire à l’autre et dépend des circonstances propres à chaque accusé. Or, dans les circonstances particulières de l’espèce, ces conséquences revêtent une importance considérable au regard de la situation de l’appelante, qui est résidente permanente et a 4 enfants à sa charge. La peine d’incarcération qui a été imposée emporte des effets beaucoup plus importants sur l’appelante que sur d’autres délinquants qui auraient commis des gestes semblables puisqu’elle a notamment pour effet de lui faire perdre son droit d’appel devant la Section d’appel de l’immigration (SAI), de sorte qu’elle ne pourrait y faire valoir des considérations d’ordre humanitaire, y compris l’intérêt supérieur de ses enfants directement touchés, afin de militer contre son renvoi du Canada. Ainsi, l’omission de la juge d’intégrer véritablement ces conséquences à son analyse a eu pour effet de rendre la peine imposée plus sévère pour l’appelante, compte tenu de sa situation particulière, ce qui justifie l’intervention de la Cour.

Une peine d’emprisonnement de 2 ans moins 1 jour avec sursis, assortie de conditions rigoureuses, respecte les objectifs pénologiques en l’espèce. Au regard des facteurs atténuants et aggravants retenus par la juge, c’est la deuxième catégorie médiane de la fourchette des peines qui doit guider l’intervention de la Cour. En effet, les facteurs énoncés, qui militent en faveur de la réinsertion sociale de l’appelante, comprennent le fait que celle-ci est décrite par son entourage comme une mère aimante et dévouée, qu’elle a exprimé de vifs remords et de l’empathie envers la victime, qu’elle a enregistré un plaidoyer de culpabilité, qu’elle a entrepris une formation en gestion de la colère et qu’elle fréquente un organisme communautaire offrant des services de soutien aux familles. Par ailleurs, le rapport fait également état de certaines difficultés persistantes sur le plan de la régulation émotionnelle, de comportements parfois mésadaptés et d’un historique de toxicomanie. Enfin, comme il a été mentionné, les conséquences indirectes d’une peine d’incarcération dans le présent cas ne sont pas négligeables. Alors que la peine infligée par la juge prive l’appelante de la possibilité d’interjeter appel d’une éventuelle mesure de renvoi devant la SAI et d’y faire valoir des motifs d’ordre humanitaire, une peine d’emprisonnement avec sursis lui permet de préserver cette possibilité. Il y a lieu d’accorder un poids accru à l’objectif de réinsertion sociale, tout en maintenant une peine conforme aux objectifs de dénonciation et de dissuasion.

Le texte intégral de la décision est disponible ici

The post Summaries Sunday: SOQUIJ appeared first on Slaw.

A perpetual question from clients is whether a new development should be protected by filing a patent application or kept as a trade secret?

Patents are granted by national patent offices for new, useful and not obvious inventions. Patents require a full and public description of the idea and the details needed by a skilled person to put that idea into practice. For example, Section 27(3)(c) of the Patent Act requires that for machines, the patent “explain the principle of the machine and the best mode in which the inventor has contemplated the application of that principle”.

This quid pro quo is described as being at the heart of the patent system – in return for disclosure of the invention, the inventor gets a time-limited exclusive period to practice the invention.

On the other hand, trade secrets are ideas that are kept confidential, and maintain their value because of this confidentiality. A new process or technique may have value to a company that can use it, however, the value may be lost if all its competitors learn of it. Trade secrets are not registered but can be identified and maintained as confidential. This is usually done through a combination of legal measures (such as non-disclosure agreements), electronic systems (such as passwords and encryption), and physical protection (such as locked doors and need-to-know sharing). A claim for breach of confidence can be brought in provincial superior courts under the common law – see for example Lac Minerals Ltd. v. International Corona Resources Ltd. [1989] 2 SCR 574. There is also a criminal code prohibition (see Section 391) against anyone, who, “by deceit, falsehood or other fraudulent means, knowingly obtains a trade secret or communicates or makes available a trade secret.”

Depending on the nature of the development or idea, either patent protection or keeping it as a trade secret can make the most sense.

A key factor is whether the idea can be reverse engineered. For example, if the idea is for a mechanical part that is going to be sold to consumers, then patent protection is usually favoured. As soon as the first part is sold, any consumer (or competitor) can buy it, and take it apart to see how it works. If the intention was to keep the idea as a trade secret, the confidentiality would be lost and competitors could copy the design and move into the market.

However, if the idea relates to a manufacturing process or server-side algorithm where it can be used without disclosure, then keeping it confidential as a trade secret may be advantageous. New manufacturing processes can provide significant benefits but at the same time be kept away from competitors using factory walls, and NDAs for employees. Similarly, algorithms used deep inside a server may not be discernible to customers even if the inputs and outputs are readily apparent.

For trade secrets, the primary risk is that the secret will be learned by competitors. This can occur inadvertently during a factory tour, sloppy discussion at a trade show, or poor security practices on a website. More nefarious disclosure by hackers, a former employee sharing their secrets or espionage could also result in the secrets getting out. And most innocently, a third party could develop the idea independently. While there are some legal mechanisms to pursue breaches of confidence or violation of trade secrets, these can have limited impact if the secret is already out. If the trade secret is independently developed, then there is no recourse at all.

For patent protection, a key factor is the publication of the detailed description of the idea in the patent application. This description can provide a roadmap to competitors interested in replicating the idea and making their own (potentially patentable) improvements. While frustrating for the patent filer, this disclosure is a core feature of the patent system.

However, because patent applications are typically published prior to grant, the detailed description is shared publicly even if the patent application is refused by the patent office. The statistics for each jurisdiction differ (and most particularly if a patent agent is involved!) but only 40-60% of patent applications are granted. For computer-implemented inventions where the patent office carefully considers if the invention is ‘patentable subject-matter’, the risk that the patent application will be refused can be high. If the patent application is refused, then the invention has been disclosed to the public and competitors, without any ability to stop the idea from being copied.

A key benefit of patent protection is that a patent can be enforced against anyone that infringes the patent, whether they copied the idea or developed it independently. There is no need to show that the infringer “stole” the idea to establish infringement.

Another important factor in favour of patents is that they provide an external validation of the invention since the patent office has considered the patent application and found the invention new and inventive. Patents (and even patent applications) can therefore be a consideration for potential investors in a start-up and customers. It is more difficult to use trade secrets, being secret and not registered in any way, in the same way. However, for cost sensitive companies, the out-of-pocket costs to prepare, file and prosecute a patent application may push them towards trade secrets, that do not have same immediate costs.

Another important difference between patents and trade secrets is the duration. Patents have a maximum term of 20 years from the filing date. However, the time that a patent can be enforced does not usually start for 3 to 5 years until it is granted by the patent office (although financial remedies may be available for pre-grant activity). Trade secrets can be kept confidential indefinitely with suitable procedures.

Often an intellectual property strategy considers a mix of patent and trade secret protection. For example, a key feature of the product may be addressed in a patent application, but the manufacturing process is considered a trade secret. A careful analysis is required early because both trade secrets and patents benefit (or require) that steps be taken prior to any public disclosure.

The post Trade Secrets as an Alternative to Patent Protection appeared first on Slaw.

The new federal omnibus bill on the economy – Bill C-39, the Building Canada Strong Act – contains in Part 2 (“Keep Canada Moving”) Division 8, the Enabling Digital Trade Act.

This text implements for international trade in Canada the UNCITRAL Model Law on Electronic Transferable Records (MLETR). It allows, though does not require, the use of electronic versions of transferable records. Transferable records transfer title to the goods or sums mentioned in them by the transfer of the records themselves. Bills of lading are a common example, promissory notes another.

The provisions are a pretty straighforward reproduction of MLETR. They are consistent with the recently adopted Commonwealth Model Law on Digital Trade. Slaw had a note on the Commonwealth Model Law here.

Essentially, MLETR (and the federal bill in Canada) allow parties to international transactions to use electronic transferable records (ETRs) if the electronic versions are “reliable” in several ways.

The ETR must satisfy these rules (found in s. 8(1) of the new statute):

(b) it can be identified, by means of a reliable method, as being distinguishable from any copies of it;

(c) it is capable of being controlled, by means of a reliable method, from the time that it is created until the time that it ceases to have any effect or validity;

(d) it is protected, by means of a reliable method, against unauthorized alteration;

Further, “[a] paper trade document may be replaced by an electronic record if a reliable method is used for the change of medium.” (s. 8(2))

There are in MLETR seven different elements that must be reliable for the records to be legally effective.

The key question for those wanting to use ETRs is “what is reliable?” This question does not have a simple answer. UNCITRAL’s Guide to Enactment of MLETR, found at the same link (above) as the Model Law, says that the standard of reliability for each element of the ETR may be different, depending on the circumstance and the user’s needs and practices.

To assist the evaluation, the International Chamber of Commerce (ICC) and the Digital Governance Council (of Canada) have developed reliability assessment tools. The ICC’s own announcement is here.

MLETR has become since its adoption in 2017 the global standard for digital trade. The federal government can apply it only to cross-border trade, or other areas in federal legislation. Its application to commerce within provinces will presumably await satisfactory experience with the federal law.

Whether smaller businesses will be able to evaluate the reliability of the several elements of ETRs remains to be seen. In due course practices will develop and professional advisors (lawyers, insurers, technology consultants) will be able to give guidance to keep things safe.

The bill is a good first step in bringing Canada into this element of digital trade.

[Slaw has discussed ETRs in the past, most recently when UNCITRAL adopted MLETR. Previous articles were mentioned in this summary.]

The post Electronic Transferable Records – Canada Steps Up 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 Succeed (and Stay Human) in Law School: Pathways to Happiness and High Performance in the Study and Practice of Law. By Lynda Collins. Toronto: Emond, 2025. 160 p. Includes appendices and selected resources. ISBN 9781774625590 (softcover) $31.00; ISBN 9781774625606 (eBook) $31.00.

Reviewed by Katarina Daniels
Research Lawyer, Library Services Lead
Davies Ward Phillips & Vineberg LLP

In How to Succeed (and Stay Human) in Law School, Lynda Collins, a professor at the University of Ottawa’s Faculty of Law and the creator of Ontario’s first full-credit law school course in “happiness and the law,” provides a much-needed handbook on the human side of legal education. Drawing on scientific research, decades of personal experience, and student reflections, Collins advances the thesis that a happy law student is more likely to be a successful law student. She argues that prioritizing well-being while navigating the stress, self-doubt, and emotional toll of law school contributes to one’s academic excellence. The book spans eight chapters, ranging from “The Wellbeing Advantage” and “The Physical Foundations of Wellbeing and High Performance” to “Advanced Learning Strategies for Law School” and “The Wellness-Informed Legal Job Search.” Supplementing these chapters are four appendices that include a law school to-do list, reading group activities, a sample exam grocery list, and selected resources.

I echo Professor Adam Dodek’s comment in the foreword that he wishes he had this book when he was in law school, and I suspect it will resonate with anyone who has lived through that experience. While reading, I recognised several strategies I had instinctively adopted during my own time in law school, although I lacked the scientific grounding to understand why they worked. Other suggestions were entirely new to me and, upon reflection, would have meaningfully helped my stress levels (and quite possibly my academic performance as well). This blend of validation and discovery makes the book both comforting and genuinely useful. What struck me most was how Collins seemed to anticipate my reactions as I read. More than once, I found myself thinking “Easier said than done!”, only to find a few paragraphs later Collins acknowledging precisely that same objection and offering practical ways to overcome it. Her awareness of her audience is one of the book’s greatest strengths. Collins does not simply prescribe: she engages in a dialogue with the reader, anticipating and addressing pushback with empathy and evidence.

Chapter 6, “Advanced Learning Strategies for Law School,” deserves special mention. The study tips Collins offers here are among the most practical advice in the book, covering everything from effective study breaks and regular review to how to actively study—and, just as importantly, how not to study—for exams. Her advice on social media usage is particularly realistic: rather than prescribing an unsustainable digital detox, Collins recognizes that social media is simply part of life and suggests structuring study breaks to still allow for checking one’s feeds. I especially appreciated her suggestion that students switch their laptops to airplane mode during study sessions, a deceptively simple act that acknowledges both the reality of distraction and the students’ capacity to manage it. That said, some of Collins’s advice will not be equally applicable across all law schools. At McGill, for instance, professors generally create their own course materials rather than using standard casebooks, and these materials usually do not include quizzes or practice problems for students to work through. Similarly, in my experience, professors did not make old exams available as preparation tools. Students at different schools may therefore need to adapt some of Collins’s more specific recommendations to their own contexts.

One of the more innovative aspects of the book is its workbook format. Collins leaves space throughout for readers to reflect and develop personalized strategies. I particularly appreciated the reading group activities and discussion questions in Appendix B, which encourage students to team up with classmates and apply the book’s suggestions collectively. The idea of transforming what can be an isolating experience into a collaborative one is both clever and entirely consistent with the book’s emphasis on social support as a pillar of well-being.

Also commendable is Collins’s willingness to recognise the limits of her expertise. When discussing topics such as mental health conditions, she does not overreach but instead refers readers to appropriate specialists and resources. This restraint lends credibility to the text and reflects a genuine concern for readers’ well-being.

Collins makes effective use of empirical research to support her arguments about the importance of self-care and happiness. For those of us trained to equate success with long hours and cramming, and who may be instinctively skeptical of wellness-oriented advice, being provided with clear studies supporting these claims is definitely persuasive. That said, as someone who routinely procrastinated—sometimes preparing course summaries up until just a few hours before an exam—and yet still excelled, I occasionally found myself wondering whether the studies cited were selectively chosen or whether contrary evidence exists. A more balanced engagement with the broader literature, or at least an acknowledgement of the potential limitations, would have helped quell my skepticism.

All in all, How to Succeed (and Stay Human) in Law School is an accessible and engaging read that encourages its readers to rethink their approach to law school, their legal careers, and their future happiness. Collins has produced a thoughtful and practical resource that fills a significant gap in legal education literature at a time when students and young lawyers are struggling with mental health concerns. This book should be made available in all academic law libraries, and I would highly recommend it to anyone entering or currently in law school.

The post Book Review: How to Succeed (And Stay Human) in Law School: Pathways to Happiness and High Performance in the Study and Practice of Law appeared first on Slaw.

This is the final article in my series on RECLAIM, a cultural operating system for law firms. Having worked through Respect, Equity, Clarity, Learning, Autonomy and Inclusion, I finish with M for Meaning. You can find the full list of articles here.

I began this series in January 2026, in response to what I was reading about culture, and to hearing about law firms exploring culture at long last as an important part of their operations.

In strategic planning work with Carina Bittel, we have come to understand the relationship of culture to legal business this way: Strategy is the guiding path. Culture is the driving force, providing the energy to power the firm forward.

Healthy cultures generate trust. They generate engagement, energy and proactive attention. They foster higher performance.

I think back to a tour I did of Clio’s headquarters in Burnaby many years ago. I was greeted by a welcoming receptionist. As they talked to me about their culture, and their mission to transform the legal experience for all, I could feel how alive they all were to the meaning of their work. Anyone who has attended ClioCon understands the sense of commitment that Clions (as they call themselves) have for what they do, for the organization, for the mission and for serving clients. It is a tremendous example of a positive workplace culture, and a great deal of the company’s success comes from the culture they built.

The Human Operating System

To really understand what is happening with culture, it helps to understand our human operating system.

In the first article in this series, I shared some information on how our brains work. Thanks to the work of many neuroscientists over the last twenty years, we now have a much clearer understanding of our human operating system.

We know what our minds are alert to beneath the level of consciousness. We know the social cues the brain responds to with positive outputs, and which ones heighten stress and a sense of threat. A great deal of work has been done translating the neuroscience into the social sphere, and there I depend very much on David Rock and the team at the NeuroLeadership Institute.

Each letter of RECLAIM relates back to a social cue that our brain is actively alert to in its environment. When we sprinkle those cues into a firm’s day to day operations, we create a positive workplace where people are motivated to get things done.

Meaning and Mattering

Today we arrive at Meaning, the last letter in the series.

Meaning’s place in the RECLAIM model originates from the work of the Positive Psychologists, led by Martin Seligman and his team at the University of Pennsylvania and their colleagues of researchers and practitioners from around the world. Meaning is what people reach for once the essentials are covered: food, water, shelter, safety. Seligman and his colleagues place it at the centre of what makes work sustaining rather than depleting.

They pair it with something they call mattering. The M of meaning is also the M of mattering.

Mattering is the belief that you are needed, and that your contribution makes a difference to somebody. It shows up in the research on job satisfaction and on whether people stay.

Mattering sits very close to Inclusion in the RECLAIM model. Both are about the sense of being part of something important.

What Does Meaning Look Like in a Law Firm?

There are many opportunities to create a sense of meaning in a workplace.

Name the mission

Start with the overall mission that your firm, your practice group or your small team is there to achieve. It can be said plainly:

With care and compassion, we help our clients transition out of broken marriages to a new beginning.

We help families decide what happens to everything they have built, so the people they love are provided for and not left to fight over it.

We clear the legal path from raw land to finished building, so housing gets built in the communities that need it.

Talk about outcomes, not finish lines

Turn successful client work into stories that highlight meaning. Talk about client wins and successful outcomes. It is easy to report that we closed the deal, or that five divorces were finalized this month. The meaning is in the result for the people who were served.

Anyone can report that the power project closed. The meaning is that it will light five neighbourhoods.

Instead of announcing that the development financing closed, tell the story that the development will create fifteen below market homes, a hundred rental suites and a new daycare for the families in our community.

Explore what comes after the file closes, and why it matters.

Spotlight every role

Then talk about the team, and everyone’s part in making it happen.

The receptionist who greeted the clients so warmly every time they came in, who handled that very first call, and who remembered that one of them liked a particular kind of muffin. The legal assistant who kept the scheduling smooth, who worked the late nights when someone had to go the extra mile, and who stayed a steady, cheerful presence when things got rocky in the middle. The paralegal’s work. The associate’s work.

Spotlight all of it.

Centre roles on the mission, not the reporting line

When people join the firm, when you sit down for annual reviews, when you talk about compensation, describe the role in terms of the mission it serves. A role is best understood by its connection to the real work of the firm.

Centre people’s roles around the meaningful outcomes the team is working together to produce, rather than around who they report to.

Celebrate the small things

Celebrate small wins, small contributions, small pieces of meaning.

A colleague must work from home because their child is sick, so a paralegal steps up to take on a piece of work that had to be done to move the client’s case forward. That is a contribution worthy of recognition and an opportunity to sprinkle champagne, as we like to say at the Flourishing Law Centre.

Catch and recognise people doing small and large meaningful things. That is how you bring meaning to life in a workplace.

Where to Start

The best part is that none of this costs anything. It does take some thinking and planning to build it into the processes and systems you already have in place.

I would also encourage you to go back and look at the RECLAIM model and this series of articles. Print it out and keep it on your desk as a handy reference, to turn to when you are wondering how a new policy is going to land, or how to communicate something to the team, or what should be on the agenda at the next firm meeting, or what belongs in a performance review. The answers are in there.

Start with meaning this month. What can you do to bring it to life with your small legal team, your practice group or your firm?

Putting energy and care into building a culture that works in alignment with our human operating system will pay dividends. You end up with a place where people want to come to work and do the work.

The post RECLAIM: M Is for Meaning appeared first on Slaw.

One of the recurring themes of this column has been the extent to which the governance of artificial intelligence in Canada is increasingly being shaped by institutions outside the country while regulatory action within the country is largely stalled. Anthropic’s recent announcement that future versions of Claude will place an invisible watermark in generated text offers the most recent example of this phenomenon. A transparency requirement enacted in the European Union will alter the operation of Claude globally and may therefore leave a detectable signal in legal work prepared in Canada, including work produced through specialized legal-focused AI platforms that incorporate Claude within a broader and increasingly complex collection of models. The announcement from Anthropic was published on August 14, 2026, shortly before this column was written. Accordingly, there remains a genuine lack of information about how the watermark will operate across the products and workflows through which professionals actually use Claude. In my view, the announcement warrants attention beyond its immediate technical details because it raises some more challenging questions about disclosure as well as professional competence.

Anthropic describes the watermark as a statistical pattern created through the ordinary process by which a large language model selects one word or token at a time. When Claude reaches a point at which several words would be equally appropriate, a secret key, together with the words that precede the choice, influences the source of randomness used to select the next word. Repeated over a sufficiently long passage, these choices create a pattern that someone with access to the key can evaluate to determine the likelihood that Claude participated in producing the text. The technique is based on Google DeepMind’s SynthID-Text approach and, according to Anthropic, does not require hidden characters, additional metadata, extra tokens, or changes that would be apparent to a reader. It also carries no information capable of identifying the user, organization, or particular conversation. The more significant issue lies in what the watermark can establish. A detected signal indicates a probability that Claude was involved at some point, which may include drafting, translating, summarizing, or substantially editing material that originated elsewhere. It provides no conclusion about authorship, ownership, accuracy, the degree of human contribution, or the responsibility of the person presenting the finished work. Detection will also be less reliable in short passages, factual text, source code, and proofreading, where there are fewer discretionary choices available to the model, while extensive rewriting or paraphrasing may weaken or remove the signal. Anthropic has announced that a detection API will be made available but has not yet explained who will have access to it, what confidence thresholds will be applied, or how results should be understood in professional, disciplinary, or evidentiary settings. For the moment, the watermark remains a potentially useful provenance signal whose practical significance is still unsettled.

The explanation for this change is found in Article 50 of the European Union Artificial Intelligence Act. Article 50(2) requires providers of generative AI systems to ensure that synthetic text and other generated content are marked in a machine-readable format and detectable as artificially generated or manipulated. The legislation requires these measures to be effective, interoperable, robust, and reliable as far as technically feasible, while recognizing limitations arising from the nature of the content and an exception for systems performing standard editing that does not substantially alter a user’s input. Anthropic has also signed the EU Code of Practice on Transparency of AI-Generated Content, a voluntary compliance framework developed to support the implementation of these binding obligations. Approximately 190 organizations have signed the Code, including Google, Meta, Microsoft, Mistral, and OpenAI, although the particular marking and detection methods adopted by each provider may differ. Anthropic has stated that its watermark will be deployed globally because the company does not currently possess a durable means of limiting the change by region. The result is a clear example of European regulation exerting practical influence well beyond Europe. Canada remains without comprehensive federal AI legislation, yet a European transparency rule is already changing the technical environment in which Canadian professionals work. The watermark itself will not reduce hallucinations, prevent inappropriate reliance, or ensure responsible use, although it forms part of a broader regulatory effort to improve transparency and accountability around generated content.

For Canadian lawyers, the issues become more complicated when Claude is accessed through a specialized legal sector focused AI product rather than directly. For instance, Harvey has integrated models from Anthropic, Google, and OpenAI and has explained that its platform may automatically route different legal tasks, or different stages of a workflow, to the model considered best suited to the work. Thomson Reuters describes CoCounsel as having a multi-model architecture that includes Claude, OpenAI GPT, Google Gemini, and proprietary technology, while its next generation of CoCounsel Legal has been built on Anthropic’s Claude Agent SDK. LexisNexis Canada offers Claude alongside several OpenAI models through Protégé General AI. Even as this article was being prepared, that landscape became more complex. On August 20, Harvey announced Tenet, a research-stage model and four days later, Thomson Reuters formally launched Thomson, its own proprietary model. Thomson will initially power CoCounsel’s Tabular Analysis, although CoCounsel remains a multi-model system and its next-generation agentic architecture continues to use the Claude Agent SDK.

As of the date of the writing of this article, I have been unable to locate public guidance from these providers addressing what Claude’s watermark will mean within their respective platforms. It is unclear whether the signal will remain detectable after a legal product retrieves authorities, inserts citations, combines responses from several models, applies a firm template, or otherwise transforms the underlying output. It is similarly unclear whether a lawyer will know which model generated a particular portion of a document, whether vendors will provide access to detection results, and what audit record will remain after a multi-stage workflow has been completed. These questions fall comfortably within existing concepts of professional competence and technology oversight. Most Law Societies in Canada now provide some form of guidance that addresses competence, confidentiality, candour, supervision, information security, reasonable fees, and the lawyer’s continuing responsibility for technology-produced work. In this environment, competence may increasingly require an understanding of the technological supply chain beneath a legal product, sufficient to determine how the work was produced, what records exist, and whether the lawyer can comply with obligations owed to clients, courts, and regulators.

At this early stage, firm conclusions about the professional impact of Claude’s watermark would be premature. Anthropic’s detection tools have not yet been released, previously launched models are still being brought within the marking system, and the operation of the watermark inside multi-model legal platforms remains largely unexplained. Once detection tools become available, there is also a risk that a probabilistic signal will be asked to bear more weight than it reasonably can, particularly if courts, clients, employers, or professional regulators rely on detection results without a careful appreciation of their limitations. The fact that features of two leading legal AI platforms changed while this article was being prepared illustrates both the pace of development and the difficulty of governing products whose underlying models and architecture may change after they have been adopted. The broader significance of Anthropic’s announcement lies in what it reveals about the changing structure of AI governance. A European transparency obligation has reached Canadian professional work through the technical design of a foundation model, while the legal products that mediate access to that model have yet to explain fully how the change will appear within their own systems. For law firms and legal departments, a sensible response will include seeking information from vendors, reviewing internal disclosure and record-keeping practices, and ensuring that lawyers understand which models are contributing to consequential work. This oversight must continue after a product has been approved, particularly as vendors introduce proprietary models and alter the allocation of work among them. If a client, court, or regulator later asks how artificial intelligence contributed to a particular document, the relevant professional should be able to provide an account grounded in more than the appearance of the finished work and more complete than the probability reported by an invisible watermark.

____

Note: Generative AI was used in the preparation of this article.

The post Invisible Ink: Claude Watermarking and the Canadian Legal Profession 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 Combat Sports Law Blog 2. PierreRoy & Associés 3. Canadian occupational health & safety law 4. Legal Feeds 5. ABlawg.ca

Canadian Combat Sports Law Blog
Study – Brain Damage in Strikers vs Grapplers

A recent study conducted neuropsychological testing on a group of strikers and grapplers. Unsurprisingly the strikers had worse outcomes than the grapplers. The strikers “scored significantly lower in processing speed and verbal learning and memory“. The strikers were broken down into two groups. Professional fighters (boxing, kickboxing or MMA) and amateur athletes in the same disciplines. Interestingly “no significant cognitive differences were found between professional and amateur impact sport athletes”. …

PierreRoy & Associés
Dépenses d’été : comment profiter de la saison sans compromettre sa santé financière

L’été multiplie les occasions de dépenser. Et contrairement à la période des Fêtes, où l’on sait d’avance que le portefeuille sera sollicité, les dépenses estivales arrivent souvent de façon graduelle — sans qu’on réalise l’ampleur du total. Chez Pierre Roy & Associés, nous constatons chaque automne une hausse des consultations liées à un endettement qui s’est accéléré pendant l’été. La bonne nouvelle? Avec un peu de planification, il est tout à fait possible de profiter de la belle saison sans compromettre sa santé financière. …

Canadian occupational health & safety law
Alberta’s Bill 11: What every employer needs to know about the new health benefits rules

Bill 11, formally the Health Statutes Amendment Act, 2025 (No. 2), was introduced in late October 2025 and received Royal Assent on December 11, 2025. Once in force, it will amend the Alberta Health Care Insurance Act, RSA 2000, c A-20 to change how health coverage is coordinated in Alberta. ...

Legal Feeds
SCC explains why it annulled Terrebonne election over uncounted mail-in ballot

ABlawg.ca
Intimate Image Abuse in the Age of Deepfakes: Reforming Alberta’s Civil Legislation: Part 2

The Canadian Centre for Child Protection reported that non-consensual distribution of intimate images (NCDII) involving Canadian youth increased by approximately 21% between 2024 and 2025, from 436 to 527. Despite the growing prevalence of intimate image abuse, Alberta does not provide a dedicated process for obtaining an expedited intimate image protection order or expressly authorize orders requiring online platforms to remove intimate images. Victims seeking protective relief must instead navigate ordinary civil proceedings or pursue voluntary removal through online platforms. …

_________________________

*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.

FAILLITE ET INSOLVABILITÉ : La créancière hypothécaire est autorisée à poursuivre l’exécution du jugement ayant autorisé la vente sous contrôle de justice d’un immeuble, principal actif de la débitrice, qui a été rendu avant que celle-ci ne dépose son avis d’intention; exerçant le pouvoir discrétionnaire que lui reconnaît l’article 69.4 de la Loi sur la faillite et l’insolvabilité, le tribunal ordonne que l’avis de surseoir du syndic ne lui soit pas applicable.

Intitulé : Proposition de AZ Recrutement inc., 2026 QCCS 3025
Juridiction : Cour supérieure (C.S.), Montréal
Décision de : Juge Céline Legendre
Date : 13 août 2026

Résumé

FAILLITE ET INSOLVABILITÉ — procédure — suspension des procédures — levée de la suspension — créancier — immeuble — recours hypothécaires — préavis d’exercice — délaissement forcé — vente sous contrôle de justice — détenteur d’un jugement — avis d’intention de faire une proposition — application de l’article 69.4 de la Loi sur la faillite et l’insolvabilité — pouvoir discrétionnaire — préjudice sérieux — frais engagés — conduite du débiteur.

Demande de bene esse visant à faire déclarer la suspension des procédures non applicable et à obtenir la levée de celle-ci. Accueillie en partie.

La requérante est devenue créancière hypothécaire d’un immeuble constituant le principal actif de la débitrice, à la suite d’une cession, en sa faveur, de l’ensemble des droits, titres et intérêts détenus par une société de fiducie à l’égard d’un prêt intervenu avec la débitrice. Le seul actionnaire et président de cette dernière s’est porté caution des obligations. La requérante a obtenu, en février 2026, un jugement ayant condamné solidairement la débitrice et la caution à lui payer la somme de 1 445 021 $ et ayant autorisé la vente sous contrôle de justice de l’immeuble avec une mise à prix minimale de 602 250 $. Le 7 avril suivant, avant que ne soit écoulé le délai qui lui avait été accordé pour délaisser l’immeuble, la débitrice a déposé un avis d’intention de faire une proposition en vertu de la loi. Le syndic nommé au dossier a informé les huissiers de la requérante et leur a demandé de surseoir à toutes les mesures d’exécution.

Au soutien de sa demande, la requérante allègue que le préavis d’exercice prévu à l’article 2757 du Code civil du Québec est équivalent à un avis suivant l’article 244 de la Loi sur la faillite et l’insolvabilité et produit les mêmes effets. De façon subsidiaire, elle demande au tribunal d’exercer son pouvoir discrétionnaire en vertu de l’article 69.4 de la loi et de lever la suspension des procédures à son égard.

Décision

L’article 69 (2) a) de la loi ne trouve pas application en l’espèce puisque la requérante n’a pas pris possession de l’immeuble. Quant aux paragraphes b) et c) de cet article, ils traitent du préavis en vertu de l’article 244 de la loi, qui fait référence à des biens d’une personne insolvable acquis ou utilisés dans le cadre des affaires de cette dernière. Or, la preuve ne permet pas de conclure que l’immeuble a été acquis ou utilisé dans le cadre des affaires de la débitrice. Par ailleurs, même s’il est vrai que le préavis d’exercice hypothécaire contient toutes les exigences de celui prévu à l’article 244 (1) de la loi, en ce qu’il a été signifié et contient l’information exigée par le formulaire prescrit par le surintendant, l’article 69 (2) b) ne peut trouver application en l’espèce, l’immeuble n’étant pas visé par l’article 244 (1) de la loi.

La loi est d’ordre public et constitue un régime complet en soi. Ses dispositions doivent être rigoureusement observées en raison de leurs conséquences pour les droits respectifs des débiteurs et des créanciers. Dans le présent cas, la preuve justifie que le tribunal exerce le pouvoir discrétionnaire qui lui est conféré par l’article 69.4 de la loi puisque la requérante subit un préjudice sérieux au sens de cet article. En effet, en plus de demeurer impayée depuis septembre 2023, elle acquitte, depuis des années, les taxes scolaires et municipales afférentes à l’immeuble et elle continue d’engager des frais, et ce, alors même que la débitrice n’a pas contesté sa demande introductive d’instance dans le dossier civil, qui date de 2024, et que le jugement a été rendu en février 2026.

La débitrice indique qu’elle tente de mettre en vente l’immeuble au bénéfice de l’ensemble des créanciers, dont la requérante. Or, la preuve indique qu’il n’y a pas eu de progrès considérables. La chronologie des faits au dossier démontre que la débitrice cherche à créer des délais et à frustrer les droits de la requérante et ne permet pas de conclure qu’il est probable qu’une solution puisse être trouvée rapidement par la débitrice.

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

Elections: Irregularities
Sinclair-Desgagné v. Canada (Chief Electoral Officer), 2026 SCC 31  (42076)

Federal election irregularities; annulment.

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

The Society for Children and Youth of BC (SCYBC) recently published a series of research papers on child capacity in the context of children’s participation rights [Note 1]. The papers examine capacity generally and in four specific contexts: health care, mental health, family law, and child welfare and adoption.

Why does this matter? Traditionally, we have tended to assume that a child must first demonstrate sufficient “capacity” before being permitted to meaningfully participate in decisions affecting their life. And capacity has often been assessed primarily through the lens of cognitive ability.

The SCYBC reports challenge both assumptions.

I found them eye-opening. Although I have studied children’s meaningful participation for some time, I realized that I had been looking at capacity largely through the lens of my own experience in the legal system. The research paints a much more nuanced and multidimensional picture.

It also busts some persistent myths.

Myth 1: Capacity depends on cognitive ability

There is no universally agreed-upon definition of capacity. Importantly, capacity encompasses more than cognitive or developmental ability. It also includes “legal capacity” which recognizes that a child is a person with rights.

Developmental capacity itself has multiple dimensions: physical, relational, emotional and cognitive. It evolves over time, at different rates, and within the complex contexts in which a child lives. A child’s capacity to participate may also be different from their capacity to make a particular decision.

Most importantly, the UN Convention on the Rights of the Child (UNCRC) does not require a child to pass a cognitive test before having a right to be heard. Article 12 requires only that a child be “capable of forming his or her own views.” [Note 2]

That is a significantly different starting point.

Myth 2: Age tells us whether a child has capacity

Age alone is not a reliable indicator of capacity.

The UNCRC emphasizes that children can form views from a young age, even when they cannot yet express those views verbally. Adults, including professionals, tend to underestimate children’s capacities or to rely too heavily on age while overlooking their rights and other developmental factors.

In family law, I still hear variations of the statement that children can “decide with their feet” once they turn 12. This is an oversimplification of both the law and the social science research.[3]

There is no magical birthday on which a child suddenly acquires capacity.

Myth 3: Children must prove they have capacity before they can participate

This may be one of the most important shifts in thinking.

The research supports a presumption that children have capacity to express their views and preferences. As the introductory report puts it: “It is not up to the child to first prove her or his capacity.” [Note 4]

In other words, perhaps we have been asking the wrong question. Instead of asking, “Does this child have the capacity to participate?”, the family law report suggests asking: “How can we support this child to uphold their right to participate? What changes do our practices require?”

That reframing shifts responsibility from the child to the adults and systems around them.

Myth 4: “Best interests” should always trump participation

The best interests of the child remains a fundamental principle, but it should not eclipse the child’s separate right to be heard.

The two rights are distinct but interconnected. Problems arise when adults use their own assessment of a child’s best interests to justify excluding the child from participation, particularly when “best interests” are understood primarily through the perspectives of parents or other adults.

A determination about what is best for a child should be informed by the child, not used as a reason to silence them.

Myth 5: Parents can adequately represent their children’s views

Parents usually know their children extremely well and play an essential role in their lives. But that does not mean a parent’s perspective is the same as the child’s.

This is particularly evident in family law. Parents may be in court precisely because they disagree about what is best for their child. Relying exclusively on the parents to communicate the child’s views in those circumstances can leave the person most affected by the decision without an independent voice.

Myth 6: We protect children from family conflict by excluding them

The instinct to protect children from the turmoil of family breakdown is understandable. But protection and participation do not have to be in conflict.

The family law report cites research confirming that greater harm can result from excluding children, hindering their participation and disempowering them. [Note 5] Children generally know that important decisions are being made about their lives. Preventing them from expressing their views does not necessarily protect them from the conflict and may increase their distress.

This does not mean children should be forced to participate. Participation is a right, not an obligation. Children need information about their participation rights, appropriate choices about whether and how to participate, and supports that allow them to communicate in ways that work for them.

A different starting point

Perhaps the most important message from these reports is that we need to reconsider where we place the burden. Rather than requiring children to demonstrate that they are sufficiently mature, articulate or cognitively capable to earn a place in decisions affecting them, we might begin with a presumption that they have a right to participate, and then ask what we need to do to make that participation meaningful.

That is more than a subtle change in language. For lawyers, judges, mediators, parenting coordinators, health professionals, social workers, parents and others who make decisions affecting children, it invites us to examine our own assumptions, practices and systems.

The question is no longer “Is this child capable of participating?” It is “What are we doing to make their participation possible?”

The SCYBC reports are well worth reading.

_________

Notes

[1] The research was funded by the Office of the Representative for Children and Youth of BC (RCYBC). The SCYBC series includes an introductory report on child capacity and participation and reports addressing health care, mental health, family law, and child welfare and adoption.

[2] Article 12 of the UNCRC. As the research notes, meaningful expression may include non-verbal forms of communication such as play, body language, facial expressions, drawing and painting.

[3] The misconception may arise in part from references to age 12 in BC’s Child, Family and Community Service Act, many of which concern procedural rights such as notification or service of documents.

[4] UNCRC Article 12, UN General Comment 12.

[5] For example, the report cites Jackson and Martinson (2020), Implementing Children’s Participation Rights in Family Law and Child Welfare Court Proceedings: A Literature Review, (prepared by the FREDA Centre, School of Criminology, Simon Fraser University, for the BC Office of the Representative for Children and Youth), and important research by Rachel Birnbaum and Nicholas Bala.

The post Busting Myths About Children’s Capacity to Meaningfully Participate appeared first on Slaw.

December 30, 2022 was a momentous day in Canada’s copyright history, although it may not have been on the radar of the majority of the Canadian public. That is the date that the term of copyright protection in Canada changed to align with that of the United States, a requirement of the Canada-US-Mexico (CUSMA) trade agreement that came into force on July 1, 2020. Previously, Canada had the shortest copyright term of the three North American countries: the life of the author plus an additional 50 years. The CUSMA agreement forced the extension of that term to life plus 70 years. This extends by two decades the length of time before copyright expires and a work enters the public domain, at which point it becomes freely available for anyone to use or copy without permission or payment. For Canadians, this means that no additional works will enter the public domain until 2043, effectively locking up access to works by many prominent Canadians, as well as the works of other creators around the world, for an additional 20 years. Adding insult to injury, there is evidence to suggest that it will be corporate copyright owners, not Canadian authors and creators, who will reap the benefits of extending the term of protection.

While some argued the change was necessary in order to bring Canada in line with its major trading partners, it is difficult not to view the twenty-year extension as anything but a further erosion of the public’s right to freely access information, knowledge, and culture. It is a move that tips the balance of rights, already weighed heavily in favour of copyright owners, even further in that direction. A landmark Canadian Supreme Court decision, Théberge v. Galerie d’Art du Petit Champlain, established that while the Copyright Act provides for creators to obtain “just rewards” for their efforts, it is also intended that the public interest is served. Furthermore, the Théberge decision noted that “[e]xcessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”

The extension of Canada’s copyright term is an expansion of control by copyright holders that has undoubtedly created additional obstacles to the access and utilization of works. It complicates the process of tracing copyright ownership and obtaining permissions, as the longer copyright lasts, the more challenging (if not impossible) it becomes to locate those who inherited copyright ownership of the deceased author’s works. It results in more out-of-commerce and orphan works (works still under copyright protection but with unknown or unlocatable copyright owners) which will then become unavailable for re-use in many cases. It also stifles creative innovation by narrowing the scope of content freely available for today’s creators to repurpose and build on. But a longer term of copyright protection is just one example of how the public domain has and continues to be diminished, at the expense of the public it is meant to serve. In the digital age, when the use of works is increasingly constrained by license restrictions and website terms of use, content in which copyright has long since expired is routinely lifted from the public domain, locked behind paywalls, and/or subject to overreaching claims of copyright ownership. Online databases, e-book collections, and digitized collections of primary source materials frequently contain public domain content which, by virtue of its license terms, is available only to authorized users, and only for personal research and study purposes. Public domain images have found their way into the collections of image licensing companies which charge expensive licensing fees for their use.

Cultural heritage institutions, engaged in the digitization and preservation of valuable historical works and artifacts, also often claim ownership in the digital reproductions they make available and impose unnecessary limits on their reproduction and use. A 2024 report by Glammons, a European organization dedicated to “unlock[ing] the past and cultural heritage as a resource for present and future social development” found that, in spite of gains made during the Covid-19 pandemic in opening up access to public domain works, only fifty-two percent of surveyed European galleries, libraries, archives and museums (known collectively as GLAMs) were “public domain compliant”, meaning that they did not place copyright restrictions on their digitised public domain assets. A brief search of Canadian GLAMs sites reveals that some national and provincial galleries and museums also claim copyright ownership of digitized public domain content in their collections, place restrictions on their use, and charge licensing fees for reproductions of such works.

These practices have arisen due to a number of factors – the need for GLAMs to generate revenue from their collections, the mistaken belief that a new copyright is created when a public domain work is digitized, and a general confusion and uncertainty throughout the sector when it comes to “restrictive and vague” copyright law. But critics such as Douglas McCarthy, an advocate for open access to cultural heritage, have pointed out that such practices detract from the core purpose of copyright, which is to encourage creation by granting exclusive rights to creators for a limited term, after which their works become “a shared cultural resource”. McCarthy observes that by asserting copyright ownership over works in which copyright has expired, these institutions are “effectively extending copyright beyond its intended limits….creating an artificial scarcity that hinders the free flow of information and creativity, contradicting the very purpose of the public domain.”

Such practices also have the effect of perpetuating a “permissions culture” that posits that any and all uses of a work require authorization. They contribute to a shrinking public domain, which in turn impacts public perceptions of its value and usefulness and normalizes the notion that the only content of value is that which is paid for. These beliefs undermine the public understanding of the user rights enshrined in Canadian law, discouraging users from exercising fair dealing and other exceptions to copyright, and ultimately impeding both access to, and the future development of, a robust public domain.

Can the trend be reversed? In response to the extended copyright term, some have already suggested legislative changes that might help to reduce barriers to access as well as enrich and build upon the existing public domain. Measures providing creators with more control over their works once those works are no longer commercially available could result in more content entering the public domain sooner, for example, if publishing contracts were required to revert copyright ownership to authors after a certain period of time, or if a formal process existed enabling rights owners to place their works in the public domain before copyright expired. It is also essential that existing user rights to freely access and use content without permission are preserved by making contract or license terms that override those rights unenforceable. These kinds of provisions have already been implemented in some jurisdictions, ensuring that license restrictions that may be imposed on public domain content do not inhibit public access and use.

Globally, there has been increasing awareness of the need to ensure unfettered access to public domain content, spurred in part by initiatives such as the Open Heritage Statement, which calls on governments, universities, museums, and archives around the world to commit to “equitable access to heritage in the public domain”, while also outlining “shared values, principles and actions” that can help institutions to overcome barriers to public access. If this vision is to be realized, then copyright law also needs to provide protections for institutions so they do not assume unnecessary risk in their efforts to preserve and make available our collective cultural heritage. Measures limiting liability for institutions engaged in digitizing and publishing orphan works or works whose copyright status is unknown, would help alleviate uncertainty, mitigate risk, and encourage the digitization of a wealth of historical content currently unavailable due to potential copyright implications.

Equitable access to public domain resources depends on the ability to make them available in the digital environment without restriction. Widespread public attention and support is needed for the organizations who continue to advocate for open access to cultural heritage, and to call out and resist attempts to build fences around the public domain. But revisions to copyright laws are also required if we are to maintain the balance identified in Théberge. The twenty-year copyright extension mandated by CUSMA demonstrates that decisions made in the context of trade negotiations can have profound and lasting effects on public access to knowledge and culture. In order to safeguard and sustain the public domain for the benefit of current and future generations, copyright reforms must redress the imbalance and place equal weight on the public interest, user rights and the preservation of the public domain — otherwise copyright law serves only to extend private control rather than advancing the broader social and cultural goals it was intended to foster.

The post Claiming What’s Ours: Preserving the “Public” in the Public Domain appeared first on Slaw.

“The Access to Legal Services Boulder Was Never the Point”

BC Day 2025 Origins

Like many things Amici Curiae Friends of Court (AC) does, it starts with my waking up one morning and thinking to myself, hmmm, I think we could do better improving the services we provide British Columbians. BC Day 2025 was no different.

For many of us who are working in the access to justice ecosystem, solving these complex issues can feel Sisyphean. Sisyphus was a legendary king who was condemned by Zeus and the gods eternally for his cleverness, to repeatedly roll a heavy rock up a hill in Hades, only to have it roll down again as it neared the top. Like Sisyphus, we find ourselves continuously rolling the access to legal services boulder close to the top of the hill, only for the boulder to roll back to the bottom of the hill. It is such a humbling and frustrating experience.

Last year during the BC Day long weekend, I had an epiphany. Instead of designing a new service, what if we took a different approach? What if we had a conversation with community groups and various justice actors to understand what was happening on the ground in their own contexts, as they provided direct services to clients? It had been five and a half years since COVID struck, and I knew some services had not quite recovered their ability to help their clients. Over a cup of coffee, I reflected on the rise of anti-racist attacks experienced by members of the Pan-Asian community, myself included. After a few emails, AC decided to convene this conversation as a Community of Practice.

In early 2025, Amici Curiae published its Pan-Asian Justice Report, a community data-driven report that explores the challenges that Pan-Asian communities in Vancouver experience navigating BC’s legal system. The report interviewed service providers- non-profit community organizations that provide social services for predominantly East Asian populations in Vancouver’s Chinatown and the Downtown Eastside. The purpose of the report was to identify barriers that Asian communities face when navigating the legal system, which would inform areas where AC’s programming could respond to these gaps. Of the findings, one stood out: service providers wanted a network where they could connect with other service providers supporting clients in the Downtown Eastside. They wanted to be able to exchange information, learn about best practices and resources available to support referral pathways to strengthen community relationships and mitigate burnout.

AC sought out this opportunity to serve as a convenor, bringing together service providers, other access to justice supporters and senior judges to participate in an inaugural Community of Practice (CoP)

Last November 29, 2025, we convened our first Community of Practice. Those invited had an opportunity to:

• connect with like-minded community non-profits and service providers to learn what services they offer to support Pan Asian communities navigating BC’s legal system
• share best practices and resources
• identify gaps and propose solutions to existing barriers to access to legal services relevant to their local contexts
• share their experiences and needs with justice actors and decision-makers by broadening their understanding of their lived realities.

Here is the executive summary from the CoP.

BC Day 2026 Proof of progress

It has been a year since BC Day 2025. Despite the Sisyphean hurdles, there are reasons to be hopeful about the future. AC continues to be optimistic that by sustaining a community in Chinatown and the broader Downtown Eastside, we can make modest and meaningful headway.

Our community friends in Chinatown and the broader Downtown Eastside have established closer relations with each other as a result of attending our first Community of Practice.

This spring, AC has continued to sustain its community engagement priorities, checking in with service providers to learn more of what their needs on the ground are. It has been quite humbling to receive their very gracious offer to share their services to our clients. One client told us: “It is not much, we can offer you one to two beds for those who need transient accommodations.”

Designing at the speed of trust and as a result of the CoP, a legal referral pipeline to serve vulnerable temporary workers has been established in collaboration with the Immigration Refugee Legal Clinic and the Migrant Workers Centre. We anticipate it will be operational by 2027.

The presence of senior judges from the Provincial Court of BC at the CoP allowed them to hear first-hand about the justice gaps experienced by clients. The Court acted with surprising nimbleness.

Six months later, they invited AC on May 4, 2026 to open a Legal Information Centre just 100 steps from the Provincial Court of BC’s Robson court registry. AC is now preparing to open a second Legal Information Centre at another courthouse. For us, this is proof of what can happen when community knowledge reaches justice-sector decision-makers, and when those decision-makers are willing to respond.

Being optimistic about the future means collaborating with community organizations by finding ways to support their capacity to serve equity-deserving communities. It means continuing to listen, building relationships, sharing resources, and creating opportunities for community organizations and justice actors to learn from one another. This means that together, we will continue to look for ways to achieve synergies.

So you see, the access to legal services boulder was never the point.

The post Access to Legal Services: From Sisyphean Quest to a Sustainable Community 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. Double Aspect 2. Civil Resolution Tribunal blog 3. David Whelan 4. Know How 5. The Court

Double Aspect
How Power Corrupts VI

In years past, I had an occasional series of posts going to address the various meanings and implications of “Lord Acton’s Dictum” — power tends to corrupt, and absolute power corrupts absolutely. I have canvassed the insights on it we can get from The Lord of the Rings and from The Master and Margarita; explored the relationships between power and deceit and power and morality; and discussed an article about the scientific findings on the effects of power on its wielders. Except for the last one, these were all written before the beginning of the first Trump Presidency, and I think they hold up very well in light of its 0bject lessons on the subject of power and corruption. …

Civil Resolution Tribunal blog
Participant Survey – August 2026

The Civil Resolution Tribunal anonymously surveys people who have gone through the tribunal process. We use this feedback to improve the way we serve the public. We report the results every month on this blog. We had 28 responses to our participant survey in August 2026. We’re pleased to report that participant satisfaction remains strong in most areas. We’re taking measures to address a high volume of claims and improve timeliness in all areas of the dispute resolution process. …

David Whelan
Customizing the OBS Studio Start Up Image

I am a long time user of OBS Studio. It’s a video and audio management tool that works great for virtual meetings and video interviews. It intercepts your camera and audio inputs and allows you to combine multiple inputs into one single output. Your virtual meeting software will see OBS Studio as a single camera, giving you a great deal more control about your virtual, visual presentation. But recently my virtual meeting apps, both Microsoft Teams and Zoom’s Workspace, have been randomly dropping the camera. This isn’t a huge issue except that the placeholder image for OBS Studio is not the best professional image to provide. …

Know How
New Books – Summer 2026

Read on for a summary of new and noteworthy additions to our print collection over the last few months:Intervening in Canadian Courts / Claire Kane Boychuk. Practice Collection; KF 8895 B69 2025. Intervening in Canadian Courts is a procedural guide for practitioners, offering the first national, comparative perspective on third-party intervention before the various levels of court in Canada. …

The Court
Annual Symposium on Contract Law

Contract law is evolving rapidly, reshaping how agreements are drafted, interpreted and challenged across industries. At the Annual Symposium on Contract Law, John McCamus, Professor Emeritus at Osgoode Hall Law School, and a distinguished faculty of litigators, transactional lawyers, in-house counsel and decision-makers will lead you through the developments shaping Canadian contract law today. From drafting and risk allocation to disputes, damages and the growing use of AI in contract creation, participants will gain practical guidance for navigating complex contractual issues with confidence. …

_________________________

*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.

PÉNAL (DROIT) : Il y a lieu d’intervenir à l’égard de la décision ayant déclaré l’appelant coupable à la fois de l’infraction de proxénétisme prévue par l’article 286.3 C.Cr. et d’avoir obtenu les services sexuels du plaignant moyennant rétribution en vertu de l’article 286.1 C.Cr., cette décision étant erronée en droit.

Intitulé : Tilin c. R., 2026 QCCA 1150
Juridiction : Cour d’appel (C.A.), Québec
Décision de : Juges Marie-France Bich, Michel Beaupré et Myriam Lachance
Date : 31 août 2026

Résumé

PÉNAL (DROIT) — infraction — prostitution — marchandisation des activités sexuelles — obtention de services sexuels moyennant rétribution — proxénétisme — appréciation de la preuve — témoignage — versions contradictoires — crédibilité — 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 — déclaration de culpabilité — appel — norme d’intervention — raisonnabilité du verdict — déférence — absence de stéréotypes — communauté homosexuelle — absence d’hypothèses logiques infondées — question soulevée d’office — interprétation de l’article 286.3 C.Cr. — intention du législateur — exclusion d’une personne obtenant et payant des services sexuels pour elle seule — erreur de droit — absence de tiers client — acquittement.

PÉNAL (DROIT) — infraction — infractions en matière de drogues et autres substances — substances — trafic — méthamphétamine — rétribution — prostitution — marchandisation des activités sexuelles.

PÉNAL (DROIT) — preuve pénale — appréciation de la preuve — témoignage — 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 — versions contradictoires — crédibilité — appel — raisonnabilité du verdict — déférence — absence de stéréotypes — communauté homosexuelle — absence d’hypothèses logiques infondées.

INTERPRÉTATION DES LOIS — intention du législateur — cohérence — versions anglaise et française — modification législative — interprétation de l’article 286.3 C.Cr. — proxénétisme — exclusion d’une personne obtenant et payant des services sexuels pour elle seule.

Appel de déclarations de culpabilité. Accueilli en partie; l’appelant est acquitté sous 1 chef et sa culpabilité est maintenue sous 2 autres chefs.

À la suite d’un procès mettant en cause les versions contradictoires du plaignant F.B. et de l’appelant quant à la survenance et aux circonstances des activités sexuelles en litige, le juge de première instance a appliqué les enseignements de l’arrêt R. c. W. (D.), (C.S. Can., 1991-03-28), SOQUIJ AZ-91111043, J.E. 91-603, [1991] 1 R.C.S. 742, afin de déterminer la culpabilité de l’appelant. Il a conclu que la poursuite avait prouvé hors de tout doute raisonnable que ce dernier avait obtenu des services sexuels de F.B. moyennant rétribution (art. 286.1 (1) a) du Code criminel (C.Cr.)), qu’il l’avait amené à rendre des services sexuels moyennant rétribution (art. 286.3 (1) C.Cr.) et que, afin d’obtenir les services sexuels de F.B., il avait fait le trafic de méthamphétamine. L’appelant remet en question la raisonnabilité du verdict de culpabilité.

Décision

Bien que la raisonnabilité du verdict soit une question de droit, son examen requiert néanmoins, dans une certaine mesure, une réévaluation de la preuve. Sauf dans le cas où elle mène à un verdict déraisonnable, la Cour d’appel doit déférence à l’appréciation de la crédibilité des témoins par le juge, vu sa position privilégiée à cet égard (R c. Kruk (C.S. Can., 2024-03-08), 2024 CSC 7, SOQUIJ AZ-52010526, 2024EXP-662).

Tout d’abord, il y a lieu de rejeter l’appel de la déclaration de culpabilité sous le chef relatif à l’obtention par l’appelant de services sexuels de F.B. moyennant rétribution, ce qui emporte aussi le sort de l’appel de la déclaration de culpabilité sous le chef de trafic, à titre de rétribution, qui y est intimement lié. L’hétérosexualité de F.B. n’est pas contestée, et la conclusion du juge concernant la crédibilité de sa version et de celle de l’appelant ne résulte pas d’un raisonnement stéréotypé prohibé qui serait ancré dans le traitement discriminatoire de la communauté homosexuelle, mais plutôt d’une appréciation fondée sur l’ensemble de la preuve et propre au contexte révélé par leurs dépositions respectives. Il n’y a pas d’hypothèse logique non fondée sur la preuve.

En ce qui concerne le chef de proxénétisme, suivant l’arrêt R c. Mian (C.S. Can., 2014-09-12), 2014 CSC 54, SOQUIJ AZ-51106682, 2014EXP-2784, J.E. 2014-1585, [2014] 2 R.C.S. 689, une cour d’appel peut soulever une question constituant un nouveau fondement sur lequel on pourrait s’appuyer pour conclure que le jugement porté en appel est entaché d’une erreur révisable. En l’espèce, la Cour a soulevé, à l’audience, la question de savoir si, en tenant les conclusions factuelles du juge pour avérées, l’appelant pouvait être déclaré coupable du crime prévu à l’article 286.3 (1) C.Cr., en plus de celui prévu par l’article 286.1 (1) a) C.Cr., dans la mesure où aucun intermédiaire n’était intervenu entre lui et F.B.

À cet égard, il faut souligner que, hormis les activités sexuelles avec l’appelant, il n’a pas été établi que F.B. se livrait à de la prostitution. En l’espèce, le juge a déclaré l’appelant coupable en raison de sa lecture de 2 arrêts de la Cour d’appel de l’Ontario, soit R. v. Gallone (C.A. (Ont.), 2019-08-20), 2019 ONCA 663, SOQUIJ AZ-51622158, et R. v. Joseph (C.A. (Ont.), 2020-11-19), 2020 ONCA 733, SOQUIJ AZ-51723885, sans tenir compte du fait incontesté que, dans le présent cas, l’appelant a «amené» F.B. à «lui» rendre des services sexuels contre rétribution, et non à des tiers, ce qui touche au coeur de l’infraction que vise à prohiber l’article 286.3 C.Cr. En effet, il y a lieu de retenir une interprétation de cette disposition qui exclut les personnes qui obtiennent et paient des services sexuels pour elles seules, laquelle est cohérente et respectueuse de l’intention du législateur sans permettre pour autant à une personne qui se comporte comme l’appelant d’échapper à sa responsabilité criminelle, car cette conduite demeure prohibée par l’article 286.1 (1) a) C.Cr. Ainsi, la décision du juge de déclarer l’appelant coupable à la fois de l’infraction prévue à l’article 286.3 C.Cr. et de celle prévue à l’article 286.1 C.Cr. est erronée en droit. La preuve ne soutenant pas la culpabilité sous le chef de proxénétisme, il convient d’acquitter l’appelant.

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.

Leaves to Appeal Granted

Criminal Law: Post-Verdict Sentencing Delay
R. v. R.B.-C., 2026 SCC 30 (41677)

Clarification re post-verdict sentencing delay.

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

Last night, I danced the night away on a Toronto rooftop with 500 other women at a sober rave. The bass pounded up through the floor, spreading from our feet to our hearts. We moved, sang, drank slushies, laughed. We connected.

It was joyous.

In the way that people often think of joy. It was loud and boisterous and … obvious.

There are quieter joys in life.

I love slipping into used bookstores. Breathing in the musty, paperback smell while I look around till I get a good feeling from a dilapidated book by an author I don’t know. A Velveteen Rabbit of a story, ready to be loved by someone new. Being that someone is a quiet joy.

Do you remember going to the library when you were a kid? SO. MANY. BOOKS. And you got to read any one of them that you wanted. They just gave them to you. For free! I would spend hours wandering around the shelves like I was at an all-you-can-eat buffet. A little Enid Blyton? Don’t mind if I do! Agatha Christie? Yes please! Roald Dahl? Sure, I have room for a giant peach!

I still get that slightly breathless wonder walking into a library.

Thrift shops are my jam. (Stick with me, I’m going somewhere with this.) Sometimes, I’ve got a pretty clear idea of what I am looking for; sometimes it’s a fishing expedition to see if there’s anything that hits the trifecta of cute, in good condition, and in my size. Other thrifters out there will know that spark of joy when you find something. The thrill of the hunt, I call it.

Research can bring you that same joy. It’s a jolt of recognition: yes, there you are! You’re the precedent that bolsters my case. You’re the textbook that will teach me about the issues to watch out for.

There’s also joy in collaboration. Courthouse library staff work with legal professionals every day. A junior lawyer comes in with no idea where to start and the librarian guides them to the right textbook. A more experienced litigator flies in from the courtroom looking for a particular section of the criminal code immediately, and the librarian finds it. They collaborate with library patrons to enhance access to justice on both the macro and micro levels.

Receiving and giving support can be its own form of joy. Many courthouse libraries in Ontario have quiet rooms or areas for users who need them. A librarian can show an overwhelmed lawyer to a place he can collapse for a moment before getting back on his feet and back into the fray. Or, when she’s the one who’s been through the ringer, she can call a colleague in another county and let someone lighten her load.

We rarely describe a day at work as joyful. We reserve the word “joy” for cinematic, dancing-on-a-rooftop moments.

But joy wears many disguises. It hides in any number of quieter, more ordinary moments. The wonder of a library, the discovery of used bookstores, the anticipation of thrifting, the satisfaction of making or collaborating in a research breakthrough, the fulfilment of giving and receiving support.

Let’s take off its Groucho Marx glasses and give ourselves permission to recognize and enjoy it.

The post Joy Wears Groucho Marx Glasses 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.

Genocide in International Law: The Crime of Crimes. By William A. Schabas. 3rd ed. Cambridge: Cambridge University Press, 2025. xvi, 879 p. Includes abbreviation list, bibliographic references, and index. ISBN 9781009460811 (hardcover) $273.39; ISBN 9781009460781 (softcover) $120.95; 9781009460828 (eBook) $105.00.

Reviewed by Emily Landriault
Research Librarian (Law)
Brian Dickson Law Library, University of Ottawa

When I mentioned that I was going to read a book called Genocide in International Law: The Crime of Crimes, most people reacted with a mild amount of horror. Won’t it be upsetting to read? Won’t it be disturbing? The problem here, of course, is that people only heard the first word of the title when it’s the second part that should be noted when discussing this book: in International Law. Although it does reference specific genocidal events, this book is not gratuitous. In the preface, author William A. Schabas lays out what experience qualifies him to speak on this topic: professionally, he participated in a fact-finding mission in Rwanda for the International Centre for Human Rights and Democratic Development; personally, he is a descendant of Holocaust survivors, although he does not dwell on his or his family’s experience. This book primarily covers the history of the concept of genocide and the development of related international law norms. Extensive footnotes, as well as a bibliography and index, help the reader further explore the sources mentioned.

To a non-jurist, the extensive sections about the drafting process of the Genocide Convention and its related instruments might be difficult to digest; yet it is invaluable to understanding the expansion of this area of international law and in offering insight into its future development. Taking readers back to the early 1940s, when the term “genocide” was first coined, Schabas illustrates how the Convention was drafted against the backdrop of pertinent historical events.

Early chapters provide an excellent introduction to the evolution of the term “genocide” in the wake of the Nuremberg Trials. These chapters also differentiate the concept of genocide from that of “war crimes,” as genocide can and has taken place during peacetime. A great deal of discussion is also devoted to how narrow the Convention’s current definition of genocide is, in terms of the groups covered (e.g., national, ethnic, racial, or religious) and which acts are considered acts of genocide. Chapter 4 in particular interrogates each group specified in the Convention, taking time to look at the nuances of who is and isn’t included in these groups, with both historic and recent examples. For instance, the Canadian government’s historic treatment of Indigenous Peoples is brought up as an example of ethnic cleansing, something that would not be covered by the Convention (although it is covered by other international laws). A later chapter further explores “other groups,” a term included in a UN General Assembly Resolution on Genocide, but not in the Genocide Convention itself. Chapter 5 enters into a sort of statutory interpretation exercise of the acts of genocide outlined in the Convention. For each act, the author provides lengthy historical descriptions of the debates involved and the positions of different nations in drafting the Convention to help explain the drafters’ deliberate word choices. Later chapters examine genocide through different parts of the legal process, such as defences and prosecutions of genocide.

Schabas’s concluding remarks are hopeful, though tinged with disappointment and some words of caution. He acknowledges that there has been a great deal of progress in international criminal law but posits that much of that energy has been focused on war crimes and crimes against humanity, rather than the expansion of the definition of genocide. He does, however, point out that the term is readily thrown around in today’s society in a way that diminishes its gravity. He warns that some of the interventions being suggested in current conflicts entertain the idea of prevention through force rather than using other, less violent methods.

This is the third edition of Genocide in International Law, with the first published over 25 years ago. The current edition has been updated to include very recent events in the Middle East and Europe. Several chapters have been reworked or added since the second edition, including one devoted to prosecutions at the International Criminal Court, which had not been established when the first edition was published. It is interesting to note that earlier editions contained extensive citations from the travaux préparatoires (meeting minutes, transcripts, reports, etc.) of the Convention on the Prevention and Punishment of the Crime of Genocide, at a time when these materials were not widely or easily accessible. This current edition has trimmed down or completely removed many of these citations, since much of that material is now available online.

As genocide is such an important part of international criminal law, Schabas’s book continues to be relevant. This edition’s inclusion of more recent events and developments in legal institutions only helps to strengthen this title’s relevance. Genocide in International Law is an excellent source for lawyers, legal academics, historians, and those with a knowledge of or interest in international law, and it would be a welcome addition to academic or legal library collections.

The post Book Review: Genocide in International Law: The Crime of Crimes appeared first on Slaw.

Ease of access to justice is a good thing but can there be too much access? The Employment Tribunals in the United Kingdom have discovered the downsides of generative Artificial Intelligence (AI) with an inundation of interim applications for relief. The tsunami of recent applications prompted the issuing of new guidance.

Before we get to the tools the employment tribunals have devised to attempt to address the issue, it is worth talking about friction in dispute system design. “Friction” is the effort, steps or complexity involved in completing an action: “Every extra step between intention and action is a moment at which people fall away”. Generally, in access to justice too much friction is not a good thing, because it prevents people from accessing benefits or exercising rights (referred to as “sludge”). As behavioural psychologist Tom de Bruyne states, “understanding which friction to add, which to remove, and which is sludge, is one of the most practically important skills in behavioural design”.

Understandably, ideas on reducing friction have received prominence in the access to justice community – we generally want to eliminate barriers to access to justice. What has received less attention is when some friction might improve access to justice for everyone: “deliberately adding friction to undesired behaviour to make it harder and less automatic”. In digital design, de Bruyne calls these “speed bumps” – slowing down access enough to prompt “a small amount of deliberation”.

Good friction serves the person experiencing it by creating space for reflection, preventing irreversible mistakes, and slowing down automatic choices that do not reflect considered preferences. … The question is not how much friction, but what it is for.

One of the frictions in daily life is effort. Amazon discovered a way to almost totally eliminate that friction when it introduced “one click” shopping. The result was an increase in impulse buying. In the case of consumer purchases, some friction is beneficial as a way of forcing minimal reflection by the potential purchaser. Similarly, when something is “free”, people rarely consider the downsides of obtaining it. This is described as the “zero-price effect”. People are instinctively afraid of loss, so when something is “free” those fears disappear. We usually decide if something is worth obtaining by weighing the cost, the effort to get it, and the benefits it offers. However, when something is “free” we tend to ignore that normal decision-making process, thereby ignoring any potential drawbacks. Putting a price on something – even a non-monetary price of time – can result in a better decision-making process that balances benefits against costs.

AI is a tool that eliminates beneficial friction. A complaint or claim can be generated by typing a question and hitting “return”. A recent study noted the difference between previous technologies that reduce effort (such as washing machines, power steering and spell checkers) and AI:

… First, AI targets intellectual rather than physical or merely clerical work. In our lifetime, we can think of no other developments that so directly target the creative process. And second, AI’s removal of friction is extreme. While washing machines and power steering remove excess friction—tedious or insurmountable obstacles that offer little benefit for learning or meaning—AI also strips away beneficial friction. Working with a chatbot, people can move from ideation to evaluation without exerting meaningful effort, without questioning the output, and without engaging the cognitive processes that foster ownership, retention, or critical thought.

AI also reduces the time involved in articulating a position. This not only means that a complaint might be poorly articulated, but it also feeds the sentiment of “what do I have to lose by submitting this claim?”. This can lead to meritless applications clogging up the tribunal process. This brings us back to the issues facing employment tribunals in the UK, where the number of interim applications has become overwhelming, even where the chances of success are low (although not zero).

The Employment Rights Act in the UK provides interim relief in cases of unjust dismissal complaints. The granting of interim relief prevents a dismissal from taking place (either by way of reinstatement or suspension with full pay) until the tribunal has determined the outcome (after a full hearing). The guidance document notes that because of these effects, there is a high threshold for complainants to meet to convince the tribunal that it should be ordered – most applications are unsuccessful. The test is whether the complainant is likely to win on the merits. The guidance document states that the test is set comparatively high for reasons of policy: Dandpat v University of Bath EAT/0408/09: “It is something nearer to certainty than mere probability”.

There has been a “significant increase” in interim relief applications to the tribunals largely in cases with whistleblower allegations, “often indicating use of artificial intelligence (“AI”)”. The guidance document does not provide total numbers of interim relief applications but does state that in previous years the tribunals would receive about 20 per year, whereas now most tribunal offices are receiving 20 a month. In addition, there has been a significant increase in the amount of documentation accompanying each application. Although not explicitly stated, AI may be behind this as well.

The backlog at the employment tribunals continues to grow. At the end of March this year, there were 64,000 cases open, up from 45,000 the previous March. The impact of this increase in interim applications has had a cascading effect on the ability of the tribunals to manage their caseloads. Because interim applications are an emergency measure, the tribunal must give them priority. As a result, hearings on the merits of other cases are often postponed or delayed. The guidance document explains:

…Because the success rate of applications for interim relief remains low, these trends have an adverse effect on the administration of justice, including causing unnecessary delay to other users. Further complexity is added when, in response to applications for interim relief, parties then make consequential applications (and counter-applications) for costs/expenses.

The guidance document sets out the steps the tribunal will take to manage interim applications (both current and prospective steps):

• Since the tribunal is doing an assessment only of the prospects of success it will not hear oral evidence (unless it directs otherwise)
• The parties must ensure that the material placed before the tribunal is proportionate
• Tribunals will make case management orders that limit the amount of material submitted to them, including page limits for documents or word limits for witness statements or submissions
• There is an allocation of time (only extended in exceptional circumstances): one hour for the judge to read the materials provided, 30 minutes for each side for oral submissions, and one hour for the judge to reach a decision and provide a short oral judgment with reasons.
• If the parties provide the tribunal with material exceeding what can be read and understood in the time allocated, the judge will require them to identify the most important documents on each side and then restrict consideration to those documents.

The guidance document also notes the tendency of AI generated legal submissions to be “too long and complex, contain irrelevant material and fail to focus on the key points in the case”. The guidance states that parties using AI have the responsibility to ensure that what is submitted is “concise, relevant and accurate”.

One is reminded of the adage about bailing a rowboat with a thimble. Although these steps may chip away at the onslaught of applications, it will not significantly address the problems.

Courts in Canada are facing similar challenges with the use of AI by self-represented litigants. In a recent article in the Canadian Lawyer Magazine, Justice Marie-Anne Paquette of the Superior Court of Quebec noted that because AI tools dramatically lower the cost and effort involved in producing documents, the length of filings by many self-represented litigants has increased: “this places an additional pressure on judicial resources, a trend that we can already observe very, very precisely and concretely in my office”. British Columbia Court of Appeal legal counsel Shirley Smiley noted the same concerns:

Because genAI platforms make it easier for a litigant to produce more material, faster, and at little or no expense, litigants may file more applications or apply to review or vary previous decisions even with very little chance of success.

This burdens the court and responding litigants without improving access to justice outcomes.

Tribunals cannot arbitrarily reject applications. They can devise triage mechanisms for applications – but that does not allow them to simply ignore applications.

The solutions to the inundation of AI-assisted claims are, unfortunately, beyond the authority of tribunals to address. The solution lies with AI companies or, if they are not sufficiently motivated, with government regulation.

AI tools need to be trained to be:

• accurate;
• honest (not sycophantic); and
• concise.

We have laws about truth in advertising as well as laws around negligence. If a legal professional can be sued or disciplined for providing inaccurate or misleading legal advice, the same rule should apply to AI bots providing legal advice.

Sycophancy is one of the biggest flaws in AI design. The ideal advisor is one who will give you an honest answer on your likelihood of success in a dispute. A good advisor will tell you if pursuing a dispute is a good use of your time and money – AI is rarely that honest.

AI bots are also notoriously prolix, giving you four paragraphs when one will do. This prolixity adds to the burdens facing tribunals, as decision makers must read all the documents in the file (even if some of the material is just skimmed).

Some AI evangelists will say that you can get results from AI bots that are accurate, honest and concise if you use the proper (and detailed) prompts. First of all, why should it be necessary for consumers to fix the problems of a product? We don’t expect such detailed interactions with advisors. In fact, most advisors would be insulted if you kept going back to them with more and more detailed questions. Secondly, most AI users in the general public do not have the training or the inclination to draft proper (and lengthy) prompts.

AI does have the potential to improve access to justice. Justices Hinckley and Paquette both noted that the quality of submissions from self-represented litigants has improved. Paquette noted that many filings are “clearer, better organized, and closer to the expected structure of legal proceedings than what we would have seen a few years ago.” Hinkley stated that “the format gap has closed. … Materials… now look like what they should look like, and that’s a real change.” He also said that that does not mean that the arguments in those submissions are sound.

Until we fix the underlying flaws of generative AI design, AI is more likely to increase meritless legal filings, thereby decreasing access to justice for all.

The post Push Button Access to Justice: Too Much of a Good Thing? appeared first on Slaw.

The often-blurred lines, as among legal information publishing, legal information technology, legal research tools and beyond, certainly give the impression that the only serious moving and shaking is that which focuses on artificial intelligence, though perhaps almost exclusively at the top end of the legal practice market. It would be safe to suggest, however, that even if law publishing activity is not as we have known it in the past, reports of its death may have been somewhat exaggerated. In recent times, my attention has been grabbed by online soliciting from UK law publishers, among them, for example, Law Brief Publishing and i-Law, for submission of new publication proposals from prospective authors. This might be an indication, perhaps, that demand is exceeding supply, as publishers’ output does not match customer requirements, while the clients of lawyers are not necessarily clamouring for change, and/or that there may yet be untapped market opportunities. Print is more likely to be killed off by price gouging, combined with actions which appear to be purposely intended to increase production costs, and therefore prices, by the publishers, rather than by technology.

I recall, wryly, around a quarter of a century ago, being advised by an accountant in professional publishing, who had a degree of authority but only little knowledge about any aspect of that trade and its markets, that it was time to stop publishing printed volumes, as their time had allegedly passed. That might just have been in a year in which print-related revenues and profits were at an all-time high. The advice was, of course, ignored, and a further generation has passed, with law, tax and professional treatises, other books and periodicals still being published successfully and, some might say, occasionally with the potential to save us all from destruction. The lesson learned is that any fool can predict almost anything, and maybe even by chance be correct, eventually, so long as accurate time frames, financial calculations, performance indicators and every other measurable metric are conveniently ignored. Other than the near certainty that Musk will not die in penury and that Trump will probably not live out what is left of his wasted life in personal dedication to reading, contemplation and self-sacrifice, I can predict almost nothing.

Unquestionably, stories of major and high value mergers and acquisitions, as well as content licensing deals in this market, narrowly viewed, have not been numerous or shocking in their importance and extent, of late, but nor have they been entirely absent, and some may turn out to have great significance. Meanwhile, much of the effort seems to put into market participants suing one another.

Probably the most prominent, though not directly and overtly falling into the category of law publishing, is Clio’s acquisition of Jurisage, whose database covers more than 470,000 Canadian cases; content acquisition remains a critical factor in achieving credibility and success. The objective here is to use the Jurisage acquisition to power Clio Work. Clearly, the huge investment being poured into Clio is being put to use and the results will be seen over time. Still, one has to wonder at what are the true reactions to this, and to similar events, at the headquarters of the market leaders, RELX, Wolters Kluwer and Thomson Reuters. The last of these three is a notably Canadian-based international company, still and endlessly arguing in court with ROSS Intelligence about the alleged misuse of 25,000 of its headnotes. The managements and shareholders of all of them can hardly be amused at the effect on their now-diminished market valuations, as AI deals proliferate around and below them.

Bloomberg Industry Group, within which sits Bloomberg Law, has taken over Regology, a US-based AI-powered regulatory intelligence platform. The acquisition is intended to grow Bloomberg Industry Group’s range of law, tax, and government affairs primary sources, analysis, and editorial coverage by integrating AI-driven regulatory change management capabilities. Regology was founded as recently as in 2017 and was, until the sale, backed primarily by venture capitalists. I am sure that such benefits or effects that might derive from this transaction will be experienced primarily in the USA.

Simultaneously, across the ocean, in Korea, Law&Company has signed a 10-year exclusive supply contract for legal book content with Park Youngsa, Korea’s leading legal publishing house, to advance legal artificial intelligence development. The imperative of the need to source good legal content for legal technology purposes is everywhere.

One almost exclusively publishing deal is that of the acquisition, by Wiley, of Emerald Publishing, the price paid being US$452m. Wiley is a significant scholarly publisher in the USA with a portfolio of print and electronic books and journals touching on law. Many years ago, in the UK, it acquired Chancery Law Publishing from Bloomsbury Publishing, but its efforts in the UK and European legal markets were not successful, as they were not while under Bloomsbury, and it exited, no longer publishing specifically for Irish and British law students and practitioners. Nevertheless, I believe that the now-dormant company, Chancery Law Publishing, is still owned by Wiley. As for Emerald, it has a small portfolio of legal publications, including journals and its Studies in Law, Politics and Society series of books. I do know that, certainly in the latter part of 2025, Emerald was open to the idea of commissioning new titles comprising law content, within its business, economics and finance portfolio. In the past, both publishers made agreements with vLex to license the latter with legal content derived from their publications. Even combined, I doubt if the two will make much more of an impression in legal markets, unless there is some strategic imperative and specific action taken so to do. However, Kate Worlock, of Outsell, writes that the acquisition signals a subscription model comeback, and raises urgent questions for libraries, societies, and anyone in the AI content economy.

Yet, possibly, for some, the most fascinating and telling event is the announcement that, subject to regulatory approval, Thomson Reuters has agreed to sell a 51% stake in its global print business to the investment firm, Kohlberg Kravis Roberts & Co. (KKR), owner of, inter alia, Simon and Schuster, for $500m. Of course, all sorts of caveats are included in the deal, but it certainly indicates the longer-term direction of Thomson Reuters as a business and its, more or less, definitive intention to quit that aspect of its overall activities. As to what are the plans and motivation of KKR, they remain to be seen. Apparently, they describe the global print unit as a “gold standard” in printed reference materials and see potential for it to thrive as a standalone business, which might suggest a further sell-off before too long. It is no less an authority than RELX’s chief communications officer who warns of the perils of “relying on incredibly fickle VC investors”. The sale, ironically, can be seen in contract to RELX (Lexis Nexis) acquiring England’s small and largely print-based Globe Law and Business, though I imagine, but might be wrong, that the deal is more of a favour than a strategic purchase.

The post Meanwhile, Law Publishing Life Goes On 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. Great LEXpectations 2. Canadian Class Actions Monitor 3. Robichaud’s Criminal Law Blog 4. Doorey’s Workplace Law Blog 5. Precedent: The New Rules of Law and Style

Great LEXpectations
New King’s Bench Practice Direction

Where an individual seeks a variation of an order for release issued by the Court of King’s Bench under s. 520, s. 521, s. 522 or s. 525 of the Criminal Code and the Crown consents to the variation, an application may be made in writing, without the necessity of a court appearance, using the attached form “Application to Vary by Consent” (see link: application_to_vary_by_consent.pdf). The form is to be completed by the applicant’s counsel or the applicant, if self-represented, and submitted to the Crown for consent. The form can then be submitted to the court. The judge may require a hearing if not satisfied on the basis of the form that a variation is appropriate. If the judge approves the variation, the applicant and any surety must attend the court office to sign the variation form before it becomes effective. …

Canadian Class Actions Monitor
McCarthy Tétrault Partners Martha Harrison, Raj Juneja, and Michael Rosenberg named among Canadian Lawyer’s Top 25 Most Influential Lawyers in Canada for 2026

McCarthy Tétrault is pleased to announce that Partners Martha Harrison, Raj Juneja and Michael Rosenberg have been selected as three of Canadian Lawyer’s Top 25 Most Influential Lawyers in Canada for 2026. This annual list celebrates leaders who, in addition to being outstanding lawyers, are shaping the profession through exceptional leadership, innovative thinking and meaningful contributions to clients, communities and the broader legal landscape. The Top 25 recognizes lawyers whose work is influencing major business decisions, driving reform and helping shape how the law evolves in response to the issues facing Canadians today. …

Robichaud’s Criminal Law Blog
The Legal Challenge to Ontario’s “Cash Bail” Provisions

On August 31, 2026, Justice Chalmers of the Superior Court of Ontario granted an injunction pausing the effect of the Ontario government’s new law requiring “cash bail”. An Application was brought jointly by the Criminal Lawyers’ Association and the Civil Liberties Association to strike down s. 8.0.1 of the provincial Bail Act. They argued last week that Ontario is infringing on the Federal governments’ jurisdiction to legislate with respect to criminal law. The Criminal Code of Canada clearly holds (and has for decades) that when a person is released on bail, they and/or their sureties will normally not be required to deposit the promised amount (“cash bail”), but if they have reasonable recoverable assets, that they can pledge the amount. …

Doorey’s Workplace Law Blog
Does Canadian Labour Law Protect Concerted Activities by Employees?

David Smith called two of his colleagues at a company called Raven Clinical Research to complain to them about not being paid on time and asked them if they too had been paid late. Another employee heard about this discussion and informed the employer that Smith had been telling coworkers that he is not being paid on time. In response, the employer fired Smith for “HR related discussions with other personnel.”

Precedent: The New Rules of Law and Style
How Akosua Matthews built a social-justice practice

This summer, Akosua Matthews opened a solo practice with a clear mission: to take on a caseload of her own choosing, in her own way, for her own reasons. It’s a calculated bet. Now 13 years into her legal career, she attracts a stable influx of clients in two arenas. The first focuses on cases that hold the state—police boards in particular—accountable for civil negligence or unconstitutional conduct, often on behalf of the marginalized. The second is a niche area within the world of workplace investigations. When an institution hires someone for a role that’s meant for an Indigenous person, she substantiates that the candidate is indeed Indigenous. It’s a unique combination of files. …

_________________________

*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 June 26 – August 31, 2026 inclusive.

Appeal

Civil Litigation: Spoliation of Evidence
SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp, 2024 ONCA 675; 2026 SCC 29 (41543) July 31, 2026

Spoliation is the intentional destruction, alteration, mutilation, or concealment of evidence with a view to subverting the truth-finding process during litigation. It is a creature of abuse of process that comes in various degrees and forms (see Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2023 ONCA 412, 167 O.R. (3d) 321, at para. 22). The common thread unifying all findings of spoliation is a manifest disrespect for the trial process, the truth-seeking function of the court, and the justice system generally. Parties who commit spoliation should not be rewarded for the evidentiary vacuums they create. Rather, as the authors of their own misfortune, spoliators must carry the presumption that the impugned evidence would be unfavourable to their case. To successfully prove spoliation, the alleging party must prove the following elements on a balance of probabilities: (1) the evidence was intentionally destroyed, altered, mutilated, or concealed; (2) at the time of destruction, litigation was ongoing or reasonably contemplated; (3) the evidence was relevant to said litigation; and (4) it is reasonable to infer that the evidence was destroyed to affect the litigation. While the burden of proof rests on the party alleging spoliation, if relevant evidence is unjustifiably destroyed, altered, mutilated, or concealed in the context of reasonably contemplated or ongoing litigation, there should be little difficulty in concluding that this was done to affect the litigation. This test highlights the notion, implicit in the doctrine of spoliation, that at the time the spoliator destroyed the evidence, they were under an existing duty to preserve it. The consequences of the mandatory presumption associated with a finding of spoliation will depend on the facts of the case and the extent of the prejudice to the non-spoliating party. Even where a party successfully proves spoliation, it does not necessarily follow that the party will succeed on its broader claim. Spoliation, as it relates to the civil process, intersects with the rules of court and the court’s inherent power to control its processes, including preventing abuses of process. While the “principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator” (McDougall, at para. 29), this is usually not the end of the story. Trial judges must draw an adverse inference against the spoliating party that is capable of filling the gap left by spoliation, though this does not foreclose the possibility that other remedies are available. In most cases, such an adverse inference works to correct the imbalance created by spoliation, to undo some of the prejudice caused, to ensure the proper functioning of the court’s fact-finding role, and to remedy the abuse of the court’s process that spoliation represents. In crafting additional remedies, the court may find the following non-exhaustive list of considerations relevant: the level of culpability of the spoliator, the intention or reason behind the destruction of the evidence, the prejudice to the non-spoliating party, and the impact of the destruction of evidence on the court’s ability to fairly dispose of the issues.

Constitutional Law/Courts: Review of Delegated Powers
Democracy Watch v. Canada (Attorney General), 2024 FCA 158; 2026 SCC 28 (41576) July 30,2026

By virtue of features of our constitutional system, every exercise of public authority is subject to the courts’ supervisory jurisdiction to ensure that it does not exceed its legal limits. The availability of this “legality review” is constitutionally guaranteed. When read in its historical context, the jurisprudence is clear that the Constitution guarantees the availability of legality review of all aspects of an administrative decision. Section 66 of the Conflict of Interest Act infringes this guarantee by purporting to bar judicial review on questions of fact and law: to that extent, it is of no force and effect. The courts of Canada, like the courts of England, have consistently held that irrational administrative decisions are unlawful, insofar as they exceed the inherent limits of delegated authority. Irrational decisions raise the spectre of arbitrary exercises of public power; the power of the courts to protect against such arbitrariness lies at the very heart of the courts’ constitutionally protected jurisdiction under ss. 96 to 101.

Criminal Law: Police Misconduct Disclosure
Edmonton (Police Service) v. McKee, 2023 ABKB 698; 2026 SCC 24 (41110) June 26, 2026

Under McNeil and in the context of first party disclosure, the police triage misconduct files for “obvious relevance” and transmit them to the Crown. It is the Crown who reviews, assesses, inquires as needed, decides whether the legal standard for relevance is met, and discloses in accordance with its Stinchcombe obligations. The Crown is best positioned to make assessments about relevance because the constitutional disclosure duty rests with the Crown, its quasi-judicial mandate demands fair and principled decision-making, and its file-wide perspective enables a reviewable balancing of trial fairness and residual privacy interests. Police must provide not only misconduct materials that are related to the investigative file but also any information outside the file that is “obviously relevant” — that is, the information relates to the accused’s ability to meet the Crown’s case, advance a defence, or inform defence conduct. Relevance is a low, utility-based threshold. Accordingly, police will generally provide records relating to findings of misconduct to the Crown; withholding such information from the Crown on the basis that it is not relevant is likely to be exceptional. If police withhold information, they must advise the Crown what was withheld and why it was withheld. To satisfy its Stinchcombe obligations, the Crown may require particulars from the police, which must be provided, to ensure the Crown is well placed to conduct an independent review of the relevance of the misconduct materials for disclosure purposes. Thus, as between the police and the Crown, the Crown makes the ultimate determination about what relevant information should be given to the defence. The Alberta Police Service Regulation s. 22 applies only to disciplinary-related proceedings in respect of police officers and does not govern criminal disclosure obligations. Accordingly, s. 22 does not authorize police disciplinary records to be “removed” and “destroyed” permanently and irreversibly. Interpreting “destroyed” as permanent erasure for all purposes would impermissibly allow the regulation to defeat constitutional disclosure principles. If a record is permanently destroyed and becomes unavailable for disclosure in a criminal proceeding, the accused may seek recourse through a lost or destroyed evidence application, including the remedial framework in Carosella.

Intellectual Property: Patents
Pharmascience Inc. v. Janssen Inc., 2024 FCA 23; 2026 SCC 26 (41209) July 17, 2026

Under Canadian law, a physician’s professional skill and judgment cannot be patented because this would be inconsistent with the purpose of the Patent Act. The Act seeks to incentivize desirable inventiveness by granting a temporary monopoly to those who share their new knowledge with the public. Physicians already benefit from a state-granted monopoly to practise and share their skills for the public benefit and do not require the prospect of extracting monopoly profits under a patent to do so. The Court also rejects the invitation to broaden the test for an unpatentable method of medical treatment. A patent impermissibly claims a method of medical treatment only if it seeks to monopolize professional medical skill and judgment. Although some drug-dosing patents may seek to do so, the trial judge’s findings support the conclusion that the 335 Patent does not and, therefore, claims patentable subject matter.

Sentencing: Mandatory Minimums
Denis v. R., 2024 QCCA 647; 2026 SCC 25 (41401) July 10, 2026

The sentence imposed in a given case should tend to be similar to “sentences imposed on similar offenders for similar offences committed in similar circumstances” (s. 718.2(b)). This principle of parity is an expression of proportionality and gives meaning to it (Friesen, at paras. 31-33). In Québec, there is a concentration of sentences at six to eight months, depending on the offenders’ level of rehabilitation, for men, often middle-aged, who communicate with the police for the purpose of obtaining sexual services from a 16-year-old girl. Because of the offender’s youth, a five-month sentence would be sufficient to reflect society’s condemnation of his actions but would still avoid hampering his chances of rehabilitation. This is “the shortest possible sentence that is proportionate to the gravity of the offence” (Hills, at para. 165). Re “the extent of the disparity between [the appropriate sentence and the mandatory minimum sentence] and determin[e] whether that disparity is such that it meets the constitutional standard of gross disproportionality” (Senneville, at para. 41). This analysis must be guided by three crucial components that it is essential to consider: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (para. 44; Hills, at para. 122). After analyzing the three components of gross disproportionality, the S.C.C. cannot conclude that, in the case of the sixth scenario, the six-month sentence would be “so excessive as to outrage standards of decency”, would be “abhorrent or intolerable” to society or would “shock the conscience” of Canadians (Hills, at para. 109). While the six-month minimum sentence is certainly not entirely proportionate, it falls far short of meeting the test for gross proportionality, which, we reiterate, is a demanding standard. Accordingly, the mandatory minimum sentence does not infringe s. 12 of the Charter, and there is therefore no need to consider whether this infringement is justified under s. 1.

Real Property: Riparian Rights
Zardev Inc. v. Dydzak, 2024 QCCA 347; 2026 SCC 27 (41291) July 24, 2026

The general scheme of the deeds herein, including the immatriculation number of the lots, their area and the “Lake . . .” boundary, indicates that the principal object of the contracts — the lots sold — is in fact the riparian lots, without any mention of the submerged lots. That being said, the obligational content of a contract is not limited to its express provisions, but also includes “what is incident to it according to its nature and in conformity with usage, equity or law” (art. 1434 C.C.Q.). Since the accessory rule is a rule of suppletive law in the general law of sale, it can apply when the parties make no mention of the accessory. For the purposes of applying the accessory rule in Québec’s law of sale, an accessory is property that is destined to serve the principal property sold and that, by reason of this destination, is necessary for the agreed use of the latter. This test in fact relies on the concept, well known in Québec law, of the “destination” of property, as established by the parties. Thus, the destination of the principal property sold — here the riparian lots — should be determined in order to ascertain whether the property that is potentially “accessory” — here the submerged lots — is necessary to fulfill this destination established in the deeds of sale. For accessory property to be presumed to be transferred with the principal property, it must be necessary for the use contemplated by the parties, so [translation] “that the buyer is able to derive from it the enjoyment they may legitimately expect” (P.-G. Jobin and M. Cumyn, La vente (4th ed. 2017), at para. 105). In all cases, the characterization of property as an accessory is a contextual exercise that must yield a conclusion consistent with the legitimate expectations of the parties. In summary, what distinguishes the accessory from the principal lies in their respective destinations. The accessory’s purpose is not to serve the user directly, but to serve other property. An accessory isolated from its principal is rendered useless and loses its raison d’être (Goubeaux, at pp. 76-77). This test makes it possible to quickly distinguish accessories from items of property that are merely related, but are independent of the principal. When a chair is placed in a house, serving the house itself is not its direct and sole destination: it has its own destination, utility and value. It serves its owner directly by enabling the owner to rest, and it can be moved outside the home without losing its utility. In contrast, a window’s destination is to serve other property: the house. It complements the house by protecting it from inclement weather, while allowing light to pass through. A window in isolation from the building into which it is incorporated is [translation] “incomplete. It lacks something essential that the principal brings to it” (Goubeaux, at p. 44).

Leaves to Appeal Granted

Administrative Law/Police: Mandamus
Royal Canadian Mounted Police External Review Committee, et al. v. Benison, et al., 2026 FCA 53 (42332) July 23, 2026

Mandamus in administrative law & police context.

Bankruptcy: Contempt
Lymer v. Jonsson, 2025 ABCA 423 (42227) July 9, 2026

Civil contempt issues in bankruptcy.

Civil Litigation/Arbitration: Standard of Review
Buffalo Point First Nation, et al. v. Buffalo Point Cottage Owners Association Inc., 2025 MBCA 72 (42053) July 23, 2026

Standard of review re commercial arbitration.

Civil Litigation: Contempt; Charter s. 11 (c)
Estate of Craig Sutherland, et al. v. Murphy, 2025 ONCA 227 (41818) July 9, 2026

Civil contempt issues in injunctions and Anton Piller.

Professions: Mandatory New Lawyer Oath
His Majesty the King in Right of Alberta v. Wirring, 2025 ABCA 413 (42224) Aug. 6, 2026

Constitutionality of new lawyer oath.

Torts: Future Care Needs; Deductibility of Provincial Payments
H.D v. British Columbia (Ministry of Children and Family Development), 2025 BCCA 457 (42219) July 2, 2026

Future care needs; provincial payments deductibility.

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) : Après l’incident survenu à la fin du procès lors duquel 2 boîtes ont été déposées par erreur dans la salle de délibération du jury, l’enquête menée par la juge était suffisante.

Intitulé : Theus c. R., 2026 QCCA 1107
Juridiction : Cour d’appel (C.A.), Montréal
Décision de : Juges Guy Gagnon, Patrick Healy et Éric Hardy
Date : 14 août 2026

Résumé

PÉNAL (DROIT) — procédure pénale — procédure fédérale — appel — procès devant jury — déclaration de culpabilité — meurtre au premier degré — possible contamination du jury — influence extérieure — preuve extrinsèque — 2 boîtes ayant été déposées par erreur dans la salle de délibération du jury — mesures correctrices — suffisance de l’enquête menée par le juge — directives du juge au jury — urgence de la situation — équité du procès — impartialité du jury — interventions suggestives du juge — absence de crainte raisonnable sur la véracité des réponses données par les jurés — absence d’obligation de tenir un voir-dire — pouvoir discrétionnaire — remède approprié — directives additionnelles — droit à un procès juste et équitable — droit à une défense pleine et entière — norme d’intervention — déférence — absence d’erreur judiciaire.

PÉNAL (DROIT) — infraction — infractions contre la personne — meurtre — meurtre au premier degré — procès devant jury — nouveau procès — possible contamination du jury — influence extérieure — preuve extrinsèque — 2 boîtes ayant été déposées par erreur dans la salle de délibération du jury — mesures correctrices — suffisance de l’enquête menée par le juge — directives du juge au jury — urgence de la situation — équité du procès — impartialité du jury — interventions suggestives du juge — absence de crainte raisonnable sur la véracité des réponses données par les jurés — absence d’obligation de tenir un voir-dire — pouvoir discrétionnaire — remède approprié — directives additionnelles — droit à un procès juste et équitable — droit à une défense pleine et entière — recevabilité de la preuve — preuve d’ADN — mise à jour des calculs de probabilité — expertises en biologie déposées lors du premier procès — déclaration de culpabilité — appel — norme d’intervention — déférence — absence d’erreur judiciaire.

PÉNAL (DROIT) — preuve pénale — recevabilité de la preuve — preuve d’ADN — mise à jour des calculs de probabilité — expertises en biologie déposées lors du premier procès — équité du procès — divulgation tardive — nouveau procès — nouvelle preuve — droit à une défense pleine et entière — absence de manque de diligence de la poursuite — meurtre au premier degré — appel.

Appel d’une déclaration de culpabilité. Rejeté.

L’appelant se pourvoit à l’encontre d’un verdict de culpabilité pour meurtre au premier degré prononcé par un jury au motif que, lors du second procès, la juge a refusé d’exclure de la preuve la mise à jour des calculs de probabilité contenue dans les expertises en biologie et ADN déposées lors du premier procès. Il reproche aussi à la juge d’avoir mal exercé son pouvoir d’enquête auprès du jury après avoir été informée que 2 boîtes contenant des pièces et des documents provenant du premier procès avaient été déposées par erreur dans la salle de délibération du jury à la fin du deuxième procès.

Décision

M. le juge Gagnon: D’abord, l’appelant échoue à démontrer que la mise à jour des calculs de probabilité a eu pour effet de rendre le second procès inéquitable en le privant, notamment, de la possibilité de présenter une défense pleine et entière. Concernant la tardiveté de la divulgation des nouveaux calculs, il revenait à l’appelant de démontrer comment ceux-ci avaient pu influer sur la préparation de sa défense, un fardeau dont il n’a pas réussi à se décharger en première instance. La juge de première instance a donc eu raison de refuser d’exclure cette preuve du dossier.

En ce qui concerne le second moyen d’appel, dès que la juge a été informée de l’incident, elle se devait d’agir promptement en vue de prévenir toute contamination possible du jury ou, le cas échéant, de le protéger contre toute contamination additionnelle. L’urgence de la situation dispensait la juge de consulter plus longuement l’appelant. Par ailleurs, un observateur raisonnable conclurait objectivement que l’enquête de la juge a été menée de manière ouverte et retiendrait que l’intégrité du procès et l’impartialité du jury n’ont pas été compromises par l’incident des boîtes. Plus particulièrement en ce qui a trait aux interventions suggestives de la juge, celles-ci n’ont pu vicier son enquête. Non seulement ces remarques préliminaires étaient nécessaires pour prévenir toute contamination additionnelle, au cas où ce processus aurait été entamé, mais, en outre, elles n’étaient pas de nature à faire naître une crainte raisonnable quant à la véracité des réponses données par les jurés, notamment au regard de la spontanéité de leurs réponses. Enfin, l’enquête de la juge n’était pas incomplète du seul fait qu’elle n’avait pas interrogé le personnel judiciaire pour tenter de comprendre comment les boîtes étaient parvenues au jury et les circonstances de leur découverte. En cette matière, il n’existe aucune obligation de tenir un voir-dire lorsqu’un incident de cette nature survient en cours de procès. Si les circonstances démontrent un risque d’atteinte à l’équité du procès causé par une influence externe, le juge doit conduire l’enquête qu’il estime appropriée. Peu importe la forme que celle-ci prend, ses objectifs primordiaux doivent être axés sur le maintien de l’impartialité du jury et la préservation de l’équité du procès. Cela a été respecté en l’espèce. Comme la juge n’avait aucune raison de douter de la véracité des réponses données par les jurés, elle a obtenu les informations nécessaires à l’exercice de son pouvoir discrétionnaire sans que subsiste d’incertitude à propos de l’équité du procès. Il s’agit manifestement d’une enquête qui peut être qualifiée de «proper judicial inquiry».

Quant au choix du remède, la Cour conclut, à la lumière de l’ensemble des circonstances, que la juge a raisonnablement usé de son pouvoir discrétionnaire en déterminant que des directives supplémentaires constituaient un moyen approprié et suffisant pour dissiper toute crainte raisonnable de partialité du jury tout en préservant l’apparence d’équité du procès. En somme, l’appelant ne convainc pas la Cour qu’il a pu être l’objet d’une erreur judiciaire.

Le texte intégral de la décision est disponible ici

The post Summaries Sunday: SOQUIJ appeared first on Slaw.