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Dalhousie Law Journal

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DLJ Podcast – Ep 29 – Nayha Acharya – Mediation as an Alternative to Litigation

Join student editor, Danielle, and Nayha Acharya, an assistant professor at the Schulich School of Law, as they explore the topic of mediation as an alternative to litigation in a civil justice system.

Danielle and Nayha discuss arguments about mediation made in two of Nayha’s recent papers: “Mediation, the Rule of Law, and Dialogue,” published in the Queen’s Law Journal; and “Exploring the Role of Mandatory Mediation in Civil Justice,” which is forthcoming in the Alberta Law Review.

Resources:
Nayha’s Faculty Profile: Nayha Acharya – Schulich School of Law – Dalhousie University
Nayha’s Bepress Profile: SelectedWorks – Nayha Acharya (bepress.com)

Spreadsheets Are Necessary for Equitable Justice

By: Jon Khan, Osgoode Hall Law School.

For more on this topic, see Jon’s article in issue 45:2 of the Dalhousie Law Journal.

We often hear that the legal system was designed by lawyers for lawyers or by legal actors for legal actors. But I think that this common idea is wrong.

No one would intentionally “design” a legal system to operate like Canada’s currently does.

Really, most of what we do in Canada’s legal system organically evolved. When change is needed, reformers don’t use a comprehensive “design” process. Their method relies on central values, traditions, anecdotes, and intuitions.

How I’m using the word design and why Canada’s legal system largely lacks it

To be clear, I’m using the word “design” in the technical sense—like, for example, computer designers do: “to create, fashion, execute, or construct according to plan.” Those designers couldn’t build the software or hardware I need to communicate these ideas today without a comprehensive design process and deliberate, tested designs for their products. In designing my computer, for example, those designers had two goals:

  1. truly understand users like me; and
  2. provide me the best possible user experience that meets my needs and solves my problems.

Canada’s legal system should be no different. It is a public product and service with many users.

Yet we don’t and can’t understand the user experience of most individuals in it—not the experience of courts, judges, litigants, or lawyers:

  • Comprehensive data about Canada’s legal system, including comprehensive insights about courts, judges, litigants, and lawyers is either non-existent or not public.
  • Basic facts remain mysteries—like, how many accused plead guilty each year; how long an accused must wait to hear whether they’re going home or to jail; or how many accused address their guilt or innocence without adequate help. The civil justice system is no better: we don’t even know the national Canadian divorce rate.

Despite this deficit, we do know that individuals in Canada’s courts are also not getting the best user experience—one that meets their needs and solves their problems. One where every litigant gets the same access to justice in any Canadian court regardless of who they are, where they come from, what they did, or how much money they make.

Individuals in Canada’s courts unfortunately don’t access such uniform justice. For example, the little data we do have suggests that Canadian accused don’t experience uniform, impartial justice. Judges and courts make herculean efforts, yet most criminal accused face a lottery they didn’t sign up for. Some likely get better results simply because of where they live; who they can or can’t hire; who their decision-maker is; or many factors that shouldn’t matter.

And the why might be simple. Actual laws and practices change.  But how we reform Canada’s legal system mostly doesn’t. Canada’s incredible legal data deficit persists: we still know more about sports teams than we do about our legal system. And the traditional approach to legal reform and its organic, evolutionary method still dominates.

Rejecting the traditional approach to legal reform

My recent article in the Dalhousie Law Journal—”If I Had More Time, Would I Have Written a Shorter and Faster Decision? An Empirical Examination of the Evolution of Trial Court Decisions”—seeks to persuade readers to reject the traditional approach to legal reform. Instead, it advocates for a comprehensive, user-focused, data-driven approach to legal reform.

The article draws from my 2019 LL.M. thesis where I sought to understand two things:

  1. how current approaches to judicial decision-writing may impact access to justice;
  2. how decisions could be a better source of data and more timely, concise, accessible, and consistent.

It presents the results and analysis of an original empirical study of the evolution of British Columbia trial decisions over 40 years (1980-2018). If you want to learn more about the study’s conclusions, they’re visualized here. In short, the study suggests two main things:

  1. The current process for writing Canadian judicial decisions likely does not further the goals of access to justice and may even hinder them. Further study and targeted reforms are urgently needed to address delay, timeliness, accessibility, and consistency in Canadian judicial decisions.
  2. Reforms must not be based on anecdote, intuition, one-off examples, or single empirical studies. Instead, proposed reforms should be based on more deliberate design strategies such as those that human-centred design employs. For example, courts could and should generate extensive, transparent data on judicial decision-writing, judicial decisions, and the judicial process; rely on interdisciplinary methods to better understand current problems; ideate new ways of writing decisions that respond to that research; prototype and iterate those new ideas; and finally, extensively consult users about writing and reading decisions.

Epilogue: Doing empirical legal research in Canada is difficult  

I must mention a final point. Empirical legal research—like the study in my recent article—is surprisingly difficult in Canada. The data needed to do such research and generate successful reforms is either not gathered; poorly gathered; not shared; not accessible; or housed in commercial and information monopolies. As my recent article suggests, most of what we hear and know about the criminal justice system “is anecdotal – descriptions rather than measurements.”

Gathering the most basic information about our justice system is a basic task. The decisions that Canadian judges must issue in criminal justice cases hold incredible historic and current data. They’re the “primary mechanism by which judges account to the parties and to the public for the decisions they render.” The same is often true in our civil justice system.

Judges don’t issue their decisions for the corporate or information monopolies that currently house them (who then largely preclude bulk access while generating profits and monopolies). Judges issue these decisions for all Canadians, including taxpayers. They’re the work product that any Canadian has the legal right to review—to “satisfy themselves that justice has been done, or not, as the case may be.”

Democratizing free, open access to all judicial decisions—and the anonymized court records accompanying them—is essential to unlocking desperately needed criminal and civil justice data. It could invite far more empirical evaluation and reform in Canada’s legal system.

Both the United Kingdom and United States recently recognized this truth. The UK committed to provide democratic, open access to all judicial decisions—free of monopoly—by 2022, and it’s achieved its promise, including to provide machine readable decisions. The US has largely committed the same for anonymized court records (but with a slower timeline).

Nothing indicates that Canada’s criminal and civil justice system is about to get such a basic or imperative reform. Almost every Canadian court is chronically underfunded by the provinces and understaffed by the federal government. Modernizing the court system garnered almost no attention during Election 44 (the current federal government was the only party to commit any money ($50m) to modernizing courts) or since (the current federal government contributed no money to modernizing courts in its last budget).

In reality, spreadsheets are necessary for equitable justice. I hope governments and courts agree and dedicate the money and resources to gather and democratically release more data about Canada’s legal system.

DLJ Podcast – Ep 28 – Jamie Baxter – Open Legal Casebooks

Join student editor, Elyse, and Jamie Baxter, an associate professor at the Schulich School of Law. They discuss Jamie’s work developing an open property law casebook for his first-year class, as well as their article proposing a new model of developing open casebooks. The article is entitled “Exit, Voice and Disloyalty in Open Casebook Development” and is forthcoming in Canadian Legal Education Annual Review.

Resources:
Jamie’s faculty profile: www.dal.ca/faculty/law/faculty…y/jamie-baxter.html

Jamie’s open source casebook project: www.opensourcelaw.ca

 

 

Private Search and Seizure: The Constitutionality of Anton Piller Orders in Canada

By: Dimitrios Valkanas, McGill University, Faculty of Law.

For more on this topic, see Dimitrios’ article in issue 45:1 of the Dalhousie Law Journal.

Unlike a search warrant [Anton Piller orders] do not authorize forcible entry, but expose the target to contempt proceedings unless permission to enter is given. To the ordinary citizen faced on his or her doorstep with an Anton Piller order this may be seen as a distinction without a meaningful difference.

– Binnie J in Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36 at para 28.

 

The modern world, with its perpetual technological progress and ever-growing list of international and domestic threats, seems to be rife with new methods to intrude into citizens’ privacy, in addition to providing the justification for such infringement.[1] Ordinarily, the citizens of liberal democratic societies, such as Canada, would turn to the law for protection from such infringement of their most basic rights; and yet, as the peculiar case of the Anton Piller order serves to illustrate, that is not necessarily the case.

For those not familiar with the Anton Piller order, it is essentially a type of injunction granted in civil cases to allow a plaintiff to search the defendant’s premises for evidence and to seize it, where there is legitimate cause for concern that the defendant might destroy or otherwise conceal the evidence in question.[2] Notably, an Anton Piller order is granted ex parte, which is to say that the party seeking such an order can ask a court to grant it without giving the defendant a chance to oppose the motion—or even notice that such an order has been sought.[3]

To most people, this sounds awfully like a search warrant—which is why a very common definition of the Anton Piller order is a “civil search warrant.”[4] The Supreme Court itself noted this similarity.[5] Thus the obvious question arises: How can Canadians be expected to sacrifice their privacy, without a chance for a prior hearing, for a mere civil dispute—that is, a private matter? And how can Canadians who refuse this intrusion be expected to sacrifice their liberty without having committed a crime? One would assume something like this to be blatantly unconstitutional.

Unfortunately, constitutional challenges of the Anton Piller order are few and far between. Despite its very real potential for abuse—and the very real examples thereof[6]—the order is most often used by large corporations against itinerant street vendors over the sale of copyright-infringing merchandise.[7] It is of little surprise, then, that Anton Piller defendants typically lack the means to challenge the order.[8] Moreover, even in those rare few instances where a judicial challenge has been mounted, courts have generally chosen to uphold the Anton Piller order, most often finding that the Charter does not apply it,[9] or that the order meets all the criteria of constitutional scrutiny.[10] Courts have not even been willing to strike down a more pernicious and uniquely Canadian variant of the order: the “rolling” or “John (or Jane) Doe” Anton Piller order, which is issued without a named defendant, and which may thus be used to conduct searches and seizures against multiple defendants![11]

With this in mind, opponents of the Anton Piller order must look to alternative paths in order to constrain the Anton Piller order. One such path is the re-examination of the jurisprudence underlying these orders, with a view to restating forgotten or commonly ignored criteria for their issuance, or to adopting novel criteria. One notable example is the proposed criterion that no “real harm” should result to the defendant—something which was stated in the original British decision that created the Anton Piller order.[12]

Another path would be to seek to impose additional safeguards and restrictions on how Anton Piller orders are executed, in addition to various protections for harmed or severely disadvantaged defendants. Such proposals may include a requirement for an impartial third-party lawyer to be present,[13] or for an indigent defendant to be provided with a lawyer in order to challenge the order.[14]

Whichever path for reform one chooses, the Anton Piller order seems poised to remain part of Canadian law for the foreseeable future. Hard as it may be to believe, Canadians can indeed be forced to open their door to a private party over a civil case—and a refusal to do so can land them in jail, just like a refusal to obey a search warrant would. For now, at least, it seems that all Canadians can do is make sure that such “private search warrants” are granted as rarely and executed as painlessly as possible.

[1] This issue has been recognized by even the highest orders of the modern international political order. See e.g. Office of the United Nations High Commissioner for Human Rights, “Digital age: Is our privacy under threat?” (19 November 2018), online: United Nations Human Rights <www.ohchr.org/en/stories/2018/11/digital-age-our-privacy-under-threat> [perma.cc/68N3-5U3M].

[2] See “Resource: Anton Piller Orders” (16 December 2021), online: Fasken <www.fasken.com/en/knowledge/2021/12/anton-piller-orders> [perma.cc/UJ3R-KJB2].

[3] See ibid.

[4] “What is an Anton Piller Order?” (last modified 7 September 2022), online: Courthouse Libraries BC <www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/what-anton-piller-order>.

[5] See Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36 at para 1 [Celanese].

[6] In the landmark Federal Court case of Netbored Inc v Avery Holdings Inc, 2005 FC 1405, the party served the order in a careless and callous manner toward the defendant’s teenage daughter—much to the dismay of the judge (at paras 63-64). A more common issue is the issuance of such orders without any real proof that the defendant is likely to destroy the evidence or has a tendency to act in a dishonest manner. See Viacom Ha! Holding Co v Jane Doe, 2000 CanLII 15260 at para 66, [2000] FCJ No 498 (QL) (FCTD) [Viacom].

[7] See CED 4th (online), Injunctions, “Anton Piller Orders: ‘Rolling’ Orders” (V.2) at § 270-271.

[8] See Jeff Berryman, “Thirty Years After: Anton Piller Orders and the Supreme and Federal Courts of Canada” (2007) 2:3 J Intl Commercial L & Technology 128 at 128-129.

[9] See e.g. Viacom, supra note 6; Ontario Realty Corp v P Gabriele & Sons Ltd (2000), 50 OR (3d) 539, 2000 CanLII 22697 (ON Sup Ct).

[10] In Celanese, supra note 5, the Supreme Court explicitly upheld the legality of such orders.

[11] See Viacom, supra note 6.

[12] See Anton Piller KG v Manufacturing Processes Ltd & Ors, [1975] EWCA Civ 12. This criterion has also been stated in long-standing Canadian jurisprudence, such as Viacom, supra note 6.

[13] See Daniel S Drapeau, “Anton Piller Orders: The Latest Word from the Supreme Court, the Federal Court of Appeal and the Federal Court” (2006) 20:1 IPJ 39 at 40-41.

[14] Though it might sound like a radical proposal, courts have gone so far as to even order a defendant to pay the costs of a plaintiff’s constitutional challenge in other contexts. See e.g. British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71.

Online Hearings and Open Courts

By: Jérémy Boulanger-Bonnelly, University of Toronto, Faculty of Law.

For more on this topic, please see Jérémy’s article, “Public Access to Online Hearings,” available in issue 45:2 of the Dalhousie Law Journal.

The “Freedom Convoy” of February 2022 made its mark on Canadians by blocking the streets of the country’s capital for weeks. Charged with various criminal offences, the convoy’s leaders were arrested and, like any other accused, brought before a judge for their bail hearing.

Those hearings, however, were anything but normal. Held via Zoom, they attracted hundreds of observers and convoy supporters who—despite repeated warnings from the presiding judge—disrupted the proceedings, refused to turn off their cameras and microphones, and live-streamed the proceedings on social media. In the words of one commentator, it was a true circus.[1]

Online Hearings: The Good, the Bad, and the Ugly

This experience illustrates the pros and cons of online hearings, which have become commonplace in the wake of the COVID-19 pandemic.

On the one hand, online hearings have opened our courts more than ever. In a traditional courtroom, it would be unthinkable to see public galleries filled with hundreds of observers for a simple bail hearing. While in-person hearings are technically as open as online hearings, they usually proceed in “practical obscurity,” as many obstacles—including a lack of time, transportation, or financial resources—prevent many observers from attending them. As Cory J once wrote: “Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court.”[2] These barriers are largely absent in the online context. In that sense, the shift to online hearings has given new life to the open court principle.

On the other hand, the convoy bail hearings have shown that without carefully crafted measures, online hearings can quickly degenerate and lead to abuse. Studies suggest that the anonymity provided by the online environment disinhibits people and encourages disruptive behaviour that is seldom observed in person.[3] In online hearings, this anonymity can make members of the public more prone to disrupting the proceedings. It can also jeopardize the privacy and security of litigants and witnesses, who can more easily become the targets of threats and violent actions.

The question is this: How can we leverage online hearings to make our courts more accessible to the public while protecting competing interests such as the proper administration of justice, privacy, and security?

The Courts’ Response

In March 2020, courts were faced with this very question when they transitioned to online hearings. One year later, curious to see how they had addressed that challenge, I decided to review the open-access policies of 53 courts in Canada, the United Kingdom, Australia, and the United States.

This study revealed, first and foremost, that courts had adopted many different responses, which suggests that courts need clearer guidance. The study also identified three main flaws in the courts’ current approaches:

  1. Lack of information. Before they can access a hearing, online or in person, members of the public must know when and where it will be held. Traditionally, court lists were posted in courthouses for everyone to see, but the online environment makes it more difficult to access that information. While some courts post online hearing lists weeks or even months in advance, others never provide that information or only do so a few hours before the hearing. Members of the public must also know the procedure for accessing those hearings. In person, they could simply enter the courtroom, but online, they need links to access the virtual rooms. While some courts provide their access procedure in a section of their website specifically designed for the public, others provide no information at all or only do so in lengthy “Notices to the Profession” that members of the public are unlikely to read.
  2. Barriers to access. Courts also impose various barriers to limit access to their online hearings. While some of them, mostly at the appellate level, broadcast their hearings on YouTube or similar public platforms, others reluctantly provide access at their discretion and only after a person calls the clerk’s office to obtain the link. A middle option adopted by several courts, especially at the trial level, is to ask members of the public to fill out a form and confirm that they will abide by the rules of court before they gain access to the hearing.
  3. Inconsistent approaches. The third flaw identified in the study is the inconsistency of the courts’ approaches. Sometimes, even within one single court, different procedures govern access to online hearings in different districts. This inconsistency makes things more confusing for the public.

To be sure, not all courts suffer from these shortcomings to the same extent. Their practices fall on a spectrum from the most accessible to the most restrictive. However, most courts could improve their practices with respect to at least one of these points.

Building Better Online Courts

This analysis reveals three main conclusions that court administrators should consider as they adjust their online hearing policies for the future.

  • First, they should ensure that their websites are user-friendly and allow members of the public to quickly find: (1) the schedule of hearings; and (2) the procedure for accessing online hearings. These changes, which would require relatively little effort, would go a long way toward improving the courts’ informational transparency.
  • Second, courts should adopt access policies that appropriately balance open justice with competing interests. Appellate courts should consider broadcasting their hearings on public platforms, while trial courts should consider imposing some minimal limits upon access to counter anonymity and disinhibition. For instance, they could ask members of the public to fill out a form with basic personal information and to confirm that they will agree to abide by the rules of court. These measures should not become so burdensome as to unduly restrict public access to online hearings.
  • Third, courts should collaborate to adopt a consistent approach to the accessibility of their online hearings, at least in each jurisdiction. This would make it easier for members of the public to access hearings in multiple courts and districts without having to follow different procedures each time. An existing working group can provide such coordination at the federal level but extending that collaboration to the provinces would be beneficial.

Online hearings are here to stay, but many policies governing their accessibility remain inadequate. As we prepare to integrate online hearings more permanently into our justice system, we should make sure that they appropriately balance open justice with competing concerns. My hope is that court administrators will tackle this significant challenge in the near future.

[1] See e.g. Aedan Helmer, “‘It’s not meant to be a circus’: Convoy bail hearings testing virtual court capabilities and courtroom decorum,” Ottawa Citizen (7 March 2022), online: <ottawacitizen.com/news/its-not-meant-to-be-a-circus-convoy-bail-hearings-testing-virtual-court-capabilities-and-courtroom-decorum> [perma.cc/78QE-VDQR].

[2] Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326 at 1340, 64 DLR (4th) 577.

[3] Jane Bailey & Jacquelyn Burkell, “Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information” (2017) 48:1 Ottawa L Rev 143 at 170, online: <rdo-olr.org/2017/revisiting-the-open-court-principle-in-an-era-of-online-publication-questioning-presumptive-public-access-to-parties-and-witnesses-personal-information/> [perma.cc/9PM7-NCMX].

DLJ Podcast – Ep 27 – Sarah Frame – Sinking Mink

Join chief student editor, Thomas, and recent Schulich School of Law graduate, Sarah Frame, as they explore Sarah’s DLJ article, “Sinking Mink: An Argument for Ending the Mink Industry in Nova Scotia.”

Sarah and Thomas discuss the history of fur farming in Atlantic Canada, the animal suffering and environmental damage caused by the fur farming industry, and potential paths to abolishing mink farming in Nova Scotia.

Resources:
Sarah’s DLJ Article: “Sinking Mink: An Argument for Ending the Mink Industry in Nova Scotia” by Sarah Frame (dal.ca)

 

Law, Pregnancy Loss and Grief

By: Gillian Calder, University of Victoria, Faculty of Law.

Gillian’s forthcoming article, Legislating Emotion, Reading Grief: Bereavement Leave for Miscarriage and Stillbirth in New Zealand Law, will appear in issue 45:2 of the Dalhousie Law Journal.

 

You will grow up differently, in the love I will always have for you. You will grow up elsewhere, among the murmurs of the world, in the Mediterranean, in Sasha’s garden, in the flight of a bird, at daybreak, at nightfall, through a young girl I will meet by change, in the foliage of a tree, in the prayer of a woman, in the tears of a man, in the light of a candle, you will be reborn later, one day, in the form of a flower or a little boy, to another mother, you will be everywhere my eyes come to rest. Wherever my heart resides, yours will continue to beat.

Valérie Perrin, Fresh Water for Flowers[1]

 

Amongst the many transformations that the COVID-19 pandemic has wrought, one that is likely to leave a lasting impact on us all is the way that grief has become an almost constant companion. Loss is everywhere; in the profound experience of the death of a loved one, at the heart of cherished novels,[2] as well as in the simple and the day-to-day of missed celebrations and events. For those of us working within legal structures, this has also been an important moment for witnessing the role that law has been asked to play in addressing the shifting contexts of crisis.

So, it is as a form of meditation on grief that I turned my attention to a 2021 news story, out of New Zealand, asserting they had become only the second country in the world to offer bereavement leave for pregnancy loss.[3] As I watched the story being picked up by mainstream media throughout the world, I became curious about what might underlie the fascination with this tiny change to a tiny law in a tiny country. And I began that exploration[4] wondering what I might learn about this new law through a perspective grounded in the “law and emotions” literature.[5]

In March of 2021, New Zealand’s parliament passed amendments to their employment standards legislation, the law that governs annual leave entitlements for all employees working in New Zealand.[6] These amendments changed entitlement to bereavement leave, that is the time away from work that employees have a right to access at the death of a family member. The new provisions broaden what it means to suffer a bereavement; they are inclusive of pregnancy loss, for the employee whose pregnancy has ended by stillbirth or miscarriage (their partners and other intended parents).

For most jurisdictions in the world, including Canada, the definition of bereavement leave is tied to a much narrower and normative understanding of the nuclear family. On a first and simple glance, thus, this new law in New Zealand is a good and compassionate change; one that makes visible a life event and human experience that is too often shrouded in secrecy, silence and stigma.

What a lens that centres law’s capacity to script emotion also makes visible, however, is that this is on its face a gendered law. It is inclusive of miscarriage and stillbirth, but it does not include abortion, nor specifically address the impact of the law on trans men or non-binary people. Its chosen mechanism for offering benefits for pregnancy loss creates a hierarchy of losses, and pulls questions about the relationship between women’s bodies, choice and law into the mix.

As well, bereavement leave in New Zealand is brief (three days). This raises the issue of the different mechanisms available to address pregnancy loss. If we see miscarriage, stillbirth and abortion as matters of health or mental health, we might legislate differently than if we view pregnancy loss as an issue of grief.

Finally, the pandemic has shone a light on structural health inequities; in particular the burdens that have fallen onto racialized, Indigenous and people living with poverty in disproportionate ways.[7] A law that recognizes pregnancy loss as worthy of bereavement looks—on the surface—like the kind of law that would apply to all equally. But what we know is that the benefit flows only to people with certain forms of employment, and that pregnancy loss has been exacerbated by a health system in crisis.

Carol Sanger, a noted American legal scholar, has written extensively about the intentional use of reproductive health law initiatives, like New Zealand’s, that aim to “produce or satisfy a specific emotional state in those subject to the law.”[8] For those of us who research the ways that governments provide familial benefits through law, Sanger’s method of enquiry offers emotion as a distinctive means through which to navigate what is a profoundly altered world; the interaction of law and emotion is a prescient lens through which to appreciate those changes.

In this context—one in which law is arguably forcing a particular narrative of grief onto those to whom it applies—the absence of abortion in the New Zealand law is startling. Even more so given that the United States Supreme Court has reversed the decades-strong precedent on abortion in Roe v Wade.[9] To offer the benefit in a way that demarcates deserving and undeserving ways for a pregnancy to end calls into question the law’s value.

The first law in Canada has emerged, somewhat surprisingly, out of Alberta.[10] It is heartening, however, to read the debates in Hansard and to see the compassion, attention to gender, and the diverse approaches to health that lie behind this law. Importantly it offers the benefit to all employees (partners, and intentional parents) when a pregnancy ends without a live birth. A law that is inclusive of the complexity of reproductive health issues that impact gender-diverse communities is a good stepping stone for other forms of meaningful activism and change.

The Canadian poet, rupi kaur, has written: “what is stronger/than the human heart/which shatters over and over/and still lives.”[11] Indeed. As Canada begins to attend to grief and loss as mental health considerations, there will be more moments to pay attention to the interrelated issues of law, grief, gender, and caregiving. A careful exploration of Canada’s response to bereavement leave for pregnancy loss is hopefully a catalyst for more conversations that centre embodied, systemic and inclusive approaches to law and its power.

 

[1] Valérie Perrin, Fresh Water for Flowers (New York: Europa Editions, 2020) at 313.

[2] Ibid. Fresh Water for Flowers, set in a cemetery and centring a haunting story of loss, became one of Europe’s most popular “lockdown” reads at the height of the COVID-19 pandemic. See Robert Gray, “Fresh Water for Flowers in a Time of ‘Lockdown Reads’” (9 April 2021), online: Shelf Awareness <www.shelf-awareness.com/issue.html?issue=3961#m52048> [perma.cc/34Q3-GTSE].

[3] See e.g. “Miscarriage bereavement leave bill passes unanimously in Parliament,” New Zealand Herald (24 March 2021), online: <www.nzherald.co.nz/nz/miscarriage-bereavement-leave-bill-passes-unanimously-in-parliament/NUDXHJRTZBMUXQAMTTTQPFJJCU/> [perma.cc/7YJE-XBL2].

[4] See Gillian Calder, “Legislating Emotion, Reading Grief: Bereavement Leave for Miscarriage and Stillbirth in New Zealand Law” (2022) 45:2 Dal LJ [forthcoming].

[5] For a recent exploration of law and emotions scholarship, see Susan A Bandes et al, Research Handbook on Law and Emotion (London: Edward Elgar, 2021).

[6] See Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021 (NZ), 2021/10, online: <www.legislation.govt.nz/act/public/2021/0010/latest/versions.aspx> [perma.cc/C7JU-G3M3].

[7] See e.g. Barbara Chmielewska et al, “Effects of the COVID-19 Pandemic on Maternal and Perinatal Outcomes: A Systematic Review and Meta-Analysis” (2021) 9:6 Lancet 759, DOI: <10.1016/S2214-109X(21)00079-6>.

[8] Carol Sanger, “Legislating with Affect: Emotion and Legislative Law Making” (2013) 53 Nomos 38 at 47, online: <www.jstor.org/stable/24220329> [perma.cc/3UEM-ERFK].

[9] See Dobbs v Jackson Women’s Health Organization, et al, 142 S Ct 2228 (2022), online: <www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf> [perma.cc/PR9V-33KJ].

[10] Bill 17, Labour Statutes Amendment Act, 2022, 3rd Sess, 30th Leg, Alberta, 2022, online (pdf): <docs.assembly.ab.ca/LADDAR_files/docs/bills/bill/legislature_30/session_3/20220222_bill-017.pdf> [perma.cc/9TPQ-NZCH].

[11] rupi kaur, the sun and her flowers (Toronto: Simon and Schuster, 2018) at 109.

On the Operation of the Quieting of Titles Act in Newfoundland and Labrador

By: Gregory French, Mills, Pittman & Twyne.
For more on this topic, see Gregory’s article in issue 45:1 of the Dalhousie Law Journal.

For over ten years, I have practiced law in rural Newfoundland, and I deal with the challenges of Newfoundland and Labrador’s complex and distinct system of real property law on a daily basis. My recent paper, “On the Operation of the Quieting of Titles Act in Newfoundland and Labrador” is borne of this experience and the avenue of resolution created by the Quieting of Titles Act.

The Quieting of Titles Act was once described to me by a Justice of the Supreme Court of Newfoundland and Labrador as “a relatively obscure act.” It was historically the option of last resort to solve title issues that could not be rectified by other means. In a province where a significant percentage of land is held on possessory title alone, evidence of historical possession becomes harder to get with each passing year. Practitioners of property law will find recourse to the Act increasingly necessary in the coming years. In recent years, the Supreme Court of Newfoundland and Labrador has come out more strongly in favour of the use of the Quieting of Titles Act to resolve boundary and property disputes between neighbours, criticizing the inter partes litigation route for the limited remedies it can provide in the context of title disputes between litigants: Barron v Osmond, 2020 NLSC 131; Knudsen v Williams, 2021 NLSC 85; Jefford v Eason, 2022 NLSC 84.

For those researching the Quieting of Titles Act to understand its operation, there is little information to go on. Unlike traditional litigation, the majority of quieting proceedings begin and end ex parte, without building a body of case law to guide practitioners. The Quieting of Titles Act most often operates within the shadows of the common law, but in these unreported and undiscoverable decisions lies the true operation of the Act for the practitioner. This article is intended to assist legal practitioners in using the Act to its full potential to resolve land disputes. The judiciary may also find this discussion useful to understand the invisible body of jurisprudence that is built upon the operation of the Act in the unreported ex parte context.

DLJ Podcast – Ep 26 – Sara Ross – Intangible Cultural Heritage and Cities

Join chief student editor, Tom, and Sara Ross, a tenure-track Assistant Professor at the Schulich School of Law at Dalhousie University and Banting Postdoctoral Fellow. They discuss her book “Law and Intangible Cultural Heritage in the City” published in 2020. Sara uses cases studies highlighting the tension between Toronto’s music venues and urban development while describing the role that law does, doesn’t, but potentially should influence intangible cultural heritage.

Resources:
Book Information: www.routledge.com/Law-and-Intangib…ok/9780367727444
Sara’s Twitter: twitter.com/Sara_G_Ross

 

Book Review of Andrea Quinlan’s “The technoscientific witness of rape”

By: Heather Lawson, J.D. Candidate 2023

Book Review of Andrea Quinlan’s The technoscientific witness of rape: contentious histories of law, feminism, and forensic science (Toronto: University of Toronto Press, 2017).

The technoscientific witness of rape: contentious histories of law, feminism, and forensic science situates and contextualizes the failure of the so-called “greatest rapist trap”[1]: the Sexual Assault Evidence Kit (SAEK). Sociologist Andrea Quinlan analyzes the history of Ontario’s SAEK from the factors leading to its creation, to its current status in trials for sexual assault. Quinlan masterfully maps the history, controversies, and advancements in forensic science that brought the SAEK to life.  This is in service of her overarching thesis: the failure of the SAEK to deliver on its promise is owed to the kit’s design and, ironically, its perceived credibility. The technoscientific witness of rape contributes importantly to two bodies of feminist scholarship: critiquing the effectiveness of SAEKs, or “rape kits”, and challenging the patriarchal assumption that science is neutral and objective, rather than imbued with societal beliefs and biases. Unfortunately, Quinlan’s concluding vision of reforms and alternatives to the kit, and sexual assault trials, are unsatisfying due to the comprehensiveness of her analysis.

Quinlan frames the creation of the SAEK as a response to feminist anti-violence movements of the 1970s, effectively using the kit’s history to illustrate its deficiencies. Given the low rate of convictions for sexual assault compared to other crimes[2], it is unsurprising that SAEKs have not lived up to their assumed potential. The strength of Quinlan’s contribution lies in her illustration of how the network that created, administers, and interprets rape kits incorporates certain myths about sexual assault. This network includes Rape Crisis Centre advocates, lawyers, politicians, and medical professionals. Interviews with these actors are used to convey the historical controversies surrounding the SAEK, and how it became a credible ‘witness’ of sexual assault in the medicolegal community.

Analyzing the history of Canada’s Criminal Code, Quinlan discusses the rise and fall of the requirement for sexual assault complainants to have corroborative evidence.[3] Technically, corroborative evidence is no longer necessary to establish a sexual offence.[4] SAEKs, however, act almost entirely as corroborative evidence. Overreliance on forensic evidence manifests in the difficulties complainants face when they cannot, or will not, undergo a sexual assault evidence exam. The lack of an SAEK is viewed by investigators and the courtroom as a sign of dishonesty or unreliability.[5] This begs the question of whether the SAEK’s assumed credibility, over that of someone who states that they have been sexually assaulted, effectively revives the corroborative evidence requirement.

The effective revival of such a requirement brings with it the myths of sexual assault that Quinlan describes as built into the design of the rape kit. One of these myths is that sexual assaults are most often perpetrated by strangers.[6] Through scientific advancements in DNA, the kit is able to identify perpetrators through trace fluids and hairs. This evidence, however, is often irrelevant and inadmissible at trial because the identity of the alleged perpetrator is not usually a legal issue. What is left of the kit, then, is solely evidence corroborating the ‘unreliable’, subjective ‘story’ of sexual assault. The book adds that this overwhelmingly works against complainants. For example, inconsistencies between something in the SAEK and a complainant’s testimony are regularly used to target credibility.[7]

A central argument of The technoscientific witness of rape is that the SAEK becomes a witness of sexual assault. Such a witness is deemed necessary to make up for the inherent untrustworthiness of those disproportionately impacted by sexual violence: those marginalized on the basis of their gender, sexuality, race, age, class, and ability. In a courtroom, however, a rape kit is not a witness. It requires human actors to animate the evidence from the time of collection to interpretation. At trial, this is put to the court through expert witnesses. An apparent risk of expert evidence at sexual assault trials is that it will be used to discount, or even exclude, the testimony of the actual witness of the assault. In R v Parrott, for example, a trial judge improperly admitted expert evidence about the testimonial competence of a sexual assault complainant who had Down Syndrome.[8] The judge accepted that the complainant was not capable of describing the events of the alleged assault in a reliable manner, despite the fact that she never answered questions in the presence of the trial judge. On appeal, it was held that the expert evidence was unnecessary. The lower court should have determined the ability of the complainant to testify based on witnessing her answers to questions firsthand and avoided stereotyping those with disabilities.[9] The case demonstrates the inclination to privilege testimony that is ‘neutral’ or ‘scientific’ over that of a seemingly unreliable witness.

An analysis of the dangers posed by expert evidence in sexual assault trials would complement Quinlan’s analysis and critique of those administering and interpreting SAEKS. Quinlan’s interviews with doctors and nurses demonstrate that medical professionals dread administering sexual assault evidence exams due to their arduousness and the concern it will later require testifying at trial.[10] The focus on the flaws of SAEK interpretation at trial in The technoscientific witness of rape is on how criminal defence lawyers question the qualifications of sexual assault nurses.[11] Quinlan could have expanded on the interpretation of SAEKs by focusing on the experts themselves. That is, how does the attitude medical professionals have towards administering the SAEK inform their interpretation?

The technoscientific witness of rape leaves more to be desired in its concluding discussion of potential improvements to the SAEK and the criminal justice system’s treatment of sexual assault. This discussion is informed by the perspectives of Rape Crisis Centre advocates, displaying Quinlan’s deference to their expertise in addressing the SAEK’s problems. The alternatives and reforms posed seemingly succumb to the same inadequacies that Quinlan carefully explains in prior chapters. For instance, Quinlan includes one advocate’s suggestion that the SAEK be performed on alleged perpetrators, rather than victims of sexual assault. The point is fair enough, but it does little, if anything, to improve one of the key flaws that Quinlan takes up: that identity is rarely an issue at sexual assault trials, rendering the kit useless to prosecutors, and helpful to defence attorneys that can exploit inconsistencies. As Quinlan notes, while a kit to be used on alleged perpetrators rather than complainants may shift the practice of collecting evidence, it may have little impact on the sexual assault rate and case outcomes.[12]

Quinlan’s analysis of the SAEK’s frailties is fascinating and thorough because it is situated in a cultural and sociological context. A true service to the depth of this analysis would involve changes that apply to the network and system that created and interprets the SAEK. Quinlan suggests that many of the SAEK’s faults lie in the view that the criminal justice system requires an objective witness to sexual assault; something a complainant is incapable of being. By suggesting mainly incremental, kit-specific reforms, Quinlan succumbs to the very idea she carefully dismantles: that justice for sexual assault complainants hinges on the effectiveness of ‘objective’ forensic evidence.

The technoscientific witness of rape effectively, and systematically, deconstructs the perceived credibility of the SAEK. By documenting the tensions and controversies between advocates and professionals creating the kit, Quinlan unveils how it evolved to work against, rather than for, sexual assault complainants. If Quinlan’s analysis were less sharp, there may be more hope for the reforms she discussed. Quinlan demonstrates that a rape kit is not merely a piece of objective forensic evidence. It is a composite of beliefs held, usually incorrectly, by its creators and interpreters. In light of these findings, it is clear that a better vision for sexual assault trials takes account of the network that creates tools for evidence-gathering. A feminist analysis of the criminal legal system demonstrates how compelling reforms must grapple with the current system’s understanding of neutrality and objectivity.

[1] Andrea Quinlan, The technoscientific witness of rape: contentious histories of law, feminism, and forensic science (Toronto: University of Toronto Press, 2017) at 107.

[2] Quinlan, supra note 1 at 134.

[3] Quinlan, supra note 1 at 36.

[4] Corroborative evidence is evidence strengthening or confirming existing evidence. In the 1970s, the Criminal Code required that corroborative evidence strengthen or confirm evidence for sexual assault (“rape” at the time) convictions. An absence of corroborative evidence implicated the accused. In the 1990s, the corroborative evidence requirement was removed from the Criminal Code. Section 274 now states that no corroboration is required and a trial judge must not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.

[5] Quinlan, supra note 1 at 164.

[6] Quinlan, supra note 1 at 80.

[7] Quinlan, supra note 1 at 166.

[8] R v Parrott, 2001 SCC 3.

[9] R v Parrott, 2001 SCC 3 at para 80.

[10] Quinlan, supra note 1 at 40.

[11] Quinlan, supra note 1 at 99.

[12] Quinlan, supra note 1 at 184.