Category: Academic Publications

Does Lady Justice Need a Sword?

Noel Semple

Review of Benjamin Perrin, Indictment: the Criminal justice System on Trial. Toronto: AEVO UTP, 2023.

By Noel Semple[1]

         Lady Justice can often be found, in statute form, in or near courthouses.  This symbol of the Western justice system is blindfolded to show neutrality.  She carries a scale, to weigh facts and arguments fairly. Sometimes she also holds an olive leaf, to symbolize mercy and healing.   A sword is the other accessory that Lady Justice invariably carries. The sword is a ubiquitous part of this symbol because most people believe that justice in general, and criminal justice in particular, necessarily involves inflicting pain upon wrongdoers.

Benjamin Perrin’s provocative new book Indictment is a call to leave the sword of justice in its scabbard.  Perrin, a Professor at the University of British Columbia Faculty of Law, argues that Canada’s criminal justice system is “fundamentally flawed,” because its objectives cannot be met by the painful and coercive techniques that it uses.[2]  Perrin offers a new vision for criminal justice based on healing trauma, recentering victims, abolishing traditional prisons, and empowering indigenous Nations.

         The book opens with a theory of crime’s origins.  Trauma, Perrin argues, is crime’s “cause of causes.”[3]  Painful life events, especially those that go untreated and unaddressed, lead to substance abuse and mental health problems. Those, in turn, are the proximate causes of most criminal acts.  For example, 70% of federal offenders nationwide have substance abuse problems, and three in ten of the calls leading to police dispatch in Edmonton are related to mental health crises.[4]  Adverse childhood experiences such as food insecurity and housing instability are particularly likely to set someone on the path to offending.[5]  “Hurt people hurt people,” as Perrin explained to a journalist.[6]

         Perrin mounts a direct challenge to criminal justice system orthodoxy.  Deterrence, denunciation, and rehabilitation are among the primary stated objectives of the system in Canada.[7]  The basic idea of deterrence is that Lady Justice’s sword scares people into staying within the bounds of the law.  When they don’t, using the sword to inflict a wound proportionate to the offence is inherently the right thing to do, at least according to retributive theories of justice.[8]  The painful punishments are also said to reassure and satisfy victims and members of the public who are offended by the crime. This reduces the chance that people will “take the law into their own hands” through vigilantism.  Finally, to round out the traditional theory of crime and punishment, imprisonment and supervision of offenders give the state an opportunity to rehabilitate them.

However Perrinargues that because trauma is the real root cause of most crime, punishing its perpetrators is no more sensible than using a sword to beat back the ocean’s tide. A person experiencing a psychotic break from reality, who lashes out at someone she believes to be a demon, cannot be deterred from that behaviour by the threat of punishment.  She does not deserve to be denounced, and incarcerating her without proper treatment has no chance of rehabilitating her. 

Perrin argues that the overwhelming majority of criminal acts are fundamentally unsuitable for deterrence or denunciation.  Offences committed by people with mental health problems — even when psychotic delusions are not involved — merit a response from the health system, not the criminal justice system.[9]  The idea that using illegal substances is a matter of personal choice, which can fairly lead to criminal justice consequences, is mistaken in Perrin’s account.[10] In the absence of personal choice, neither denunciation nor deterrence of substance-related offences makes sense.  Rehabilitation through the criminal justice system is also an empty promise, given how overwhelmingly painful incarceration is and how poor a job the system often does of getting people back on their feet.[11]  Perrin sees an uncaring revolving door that moves people with mental health and substance-abuse problems through the system, back onto the street, and then inevitably back inside.[12]

Nor, Perrin argues, is Lady Justice’s blindfold securely attached.  Black and indigenous people are overpoliced, overcharged, and over-incarcerated relative to others.[13]  They are vulnerable to mistreatment by police and prison guards, and they have little recourse when this comes to pass.[14]  Meanwhile punishments such as solitary confinement fall far more heavily on  people with mental health conditions than they do on others, putting the lie to the idea of proportionality in penalties.[15]

The Inadequacies of Criminal Justice Reform

Perrin acknowledges that he is not the first to identify these problems with the Canadian criminal justice system, and he acknowledges that efforts have been made to respond to them. However, he is unimpressed by these efforts.  “Problem-solving” courts – drug court, alcohol court, mental health court – seek to deploy multidisciplinary teams to address the problems that led to offending behaviour.[16]  They waive or reduce punishments for those who acknowledge their problems and commit to addressing them under court supervision.   The basic principle behind these courts is that Lady Justice will offer an offender the olive branch, while still brandishing the sword in her other hand in case her conditions are refused.  However Perrin argues that the commitments to abstinence and treatment demanded in problem-solving courts are unfair and unrealistic.  Moreover, the premise of a problem-solving court is that the “root problem” is a substance or a mental health problem, when in fact, he argues, the root problem is usually trauma.[17]

Nor is Perrin satisfied with the system’s reform efforts regarding indigenous people.  The Supreme Court of Canada’s proclaimed efforts to reduce indigenous incarceration through the Gladue and Ipeelee precedents have had little success, he writes.[18]  Over the quarter-century since Gladue, the proportion of federally incarcerated people who are indigenous increased from 12% to 32%.[19]  Perrin finds specialized courts for indigenous people hamstrung by the insistence on guilty pleas, by a lack of cultural knowledge, and by a refusal to actually apply indigenous law.  He notes that sentencing circles, although much discussed, are extremely rare in practice.[20]

Victims on the Margins

Two insightful chapters of the book are dedicated to crime’s victims.  A Canadian criminal matter is a drama with three stars: the Crown, the accused, and the judge.  Victims are at best supporting actors, as witnesses and as sources of impact statements.  Often, they are not on stage at all, especially in the cases (constituting the majority) in which there is a guilty plea.   

The fact that criminal law puts the Crown in the driver’s seat, even though most offences have little or nothing to do with the government or its interests, is a feature of our system so deeply ingrained as to seem almost inevitable. This book helpfully surfaces it for scrutiny.  There is a victims’ rights movement which produced the 2015 Canadian Victims Bill of Rights.[21]  For Perrin, however, this remains only an “add-on” which sits awkwardly with the basic fiction that crimes are committed against the state, and not against victims.[22]  Perrin tells at length the stories of several crime victims whom he interviewed, finding them befuddled, ignored, and disempowered.   

Undue Process

Every first year law student learns about certain features of the criminal justice system that are meant to safeguard the interests of the accused.  People are presumed to be innocent unless and until guilt is proven beyond a reasonable doubt, and they have the right to remain silent among other procedural rights.[23]  However to Perrin these “due process” doctrines are at best a mixed blessing.[24]   They emerged in England and were grafted into Canada because the punishments are so severe. They would not be necessary if lengthy incarceration terms were not imposed as routinely as they are in Canada today.  Meanwhile, Perrin finds that they disincentivize people to take responsibility for their actions, which in turn undermines the prospects for true reconciliation and healing between victim and offender.

A Path Forward

         Part II of Indictment presents Perrin’s reform agenda.  His starting point is the work of Canadian scholar Ruth Morris on transformative justice.[25] Morris argued, and Perrin agrees, that the only path to collective security is creating a community in which everyone is cared for and included.  Morris called for the abolition of prisons as we know them, and Perrin makes this case as well.  He advocates for the Norwegian approach, in which prisons are dedicated to preparing people for life after incarceration.  The deprivation of liberty is considered punishment enough, and so life on the inside of a Norwegian prison is much less unpleasant than it is in Canada.

         Perrin’s version of transformative justice centers the idea that “trauma that is not transformed is transmitted.”[26] One key way to transform it is restorative justice, which seeks to create dialogue between offenders, their victims, and the community. Restorative justice focuses on healing the breach created by crime, and puts victims in a central rather than marginal position. Perrin would like to see restorative justice become the “primary gateway for addressing harm,” and always tried first.[27]  If it fails, a “conflict resolution committee” could be convened, hear from all interested parties, and then implement a remedy after a crime.  Voluntary treatment and/or acceptance of responsibility would be the preferred options at this stage, with referral to police and prosecution as a fallback.[28]

Perrin calls for the general decriminalization of substances, a case made comprehensively in his previous book Overdose.  Chapter 12 argues convincingly that the state must work harder to prevent childhood trauma; the evidence suggests that doing so would prevent a great deal of violent crime in the long run.   He would allocate significantly more control over policing and criminal justice to indigenous Nations.

Another big idea in this book, reflecting recent scholarship, is that the criminal justice system is asked to do too much in Canadian society.[29]  If preventing and healing trauma is the most important work, then it follows that the caring professions (social work, medicine, education, etc.) should take the lead rather than law-enforcement authorities.  Perrin argues compellingly that doing more and better work outside of the system would reduce the amount of offending and thus the demands on the system.  For example, he thinks that a large proportion of 911 calls should be responded to not by police, but rather by unarmed, un-uniformed mobile response teams trained in mental health and substance abuse issues.[30]

Indictment is a bold and provocative new perspective on Canada’s criminal justice system.  It is an engaging read, thanks to a methodology that foregrounds lengthy interviews with people directly affected by the system.  The background research is plentiful, although this is not necessarily evident on a first read of the book.  Interestingly, the endnotes are not referenced in any way in the body of the text.  Perrin or his editors seem to have decided that even superscript numerals alerting readers to notes would be too distracting, or make the book seem too academic.

Evil and Personal Choice?

Human evil has little place in Benjamin Perrin’s conception of crime and the state’s responses to it. The conventional view is that there is such a thing as evil, and it does play a role in crime.  Evil is not born of trauma or mental health problems or substance use. It emerges from greed, lust, wrath, and other human frailties.  It seems hard to deny (for example) that Ponzi scams, car thefts, and armed robberies are at least partially attributable to the simple fact that some people want money and don’t care whom they hurt to get it.  It seems hard to believe that, if there were no trauma in Canada, there would be no crime.

Acknowledging human evil does not mean denying the existence of trauma, and racism, and other social forces that contribute to crime.  Nor does it require believing that any individual is purely or irredeemably evil.   As Aleksandr Solzhenitsyn wrote, “the line dividing good and evil cuts through the heart of every human being.”

However, if evil does exist, and if it does contribute to crime, then it seems problematic for the criminal justice system to throw away Lady Justice’s sword, abandoning deterrence and denunciation.  Evil acts can be deterred, if people fear punishment more than they crave the fruits of their sins.  To some degree, people can make personal choices to respect the bodies and the property of others.  If they choose not to do so, denunciation may be morally justified. Even if it isn’t, the widespread popular demand for punishment of transgressors might require some response from a democratic state in order to prevent vigilantism.

Indictment is recommended as a bracing and thought-provoking impeachment of Canada’s criminal justice system. The “more compassionate and evidence-based response to harm in our society,” which is proposed here, is urgently needed.[31]  Even if you emerge not entirely convinced by some of the more radical claims in this book, you will see the criminal justice system in a new and clearer light.

[1] Associate Professor, University of Windsor Faculty of Law.

[2] Benjamin Perrin, Indictment: the criminal justice system on trial. Toronto: AEVO UTP, 2023, at page 64.

[3] Perrin, supra note 1 at pages 37.

[4] Perrin, supra note 1 at pages 43, 54.

[5] Perrin, supra note 1 at page 16.

[6] Pippa Norman, “Canada’s criminal justice system put on trial in UBC professor’s new book.” City News, October 8, 2023.  https://vancouver.citynews.ca/2023/10/08/ubc-criminal-justice-system-book/

[7] Criminal Code (RSC, 1985, c. C-46), s. 718.

[8] Michael S Moore, “Justifying Retributivism” (1993) 27:1–2 Israel law review 15–49.

[9] “Deterrence is nonsensical when dealing with people in mental health distress because of their underlying conditions.” (Perrin, supra note 1 at page 65).

[10] Perrin, supra note 1 at page 29

[11] Perrin, supra note 1 at page 73 regarding the very poor employment outcomes of ex-offenders in Canada.

[12] Perrin, supra note 1 at page 53.

[13] Perrin, supra note 1 at page 100 and 129.

[14] Perrin, supra note 1 page 54.

[15] Perrin, supra note 1 page 69.

[16] Sherry L Van de Veen, “Some Canadian Problem Solving Court Processes” (2004) 83:1 Canadian Bar Review 91, online: <https://canlii.ca/t/2cjc>.

[17] Perrin, supra note 1 page 39.

[18] R. v. Gladue, [1999] 1 SCR 688, R. v. Ipeelee, [2012] 1 SCR 433.

[19] Perrin, supra note 1 at pages 107 to 108.

[20] 110

[21] Canadian Victims Bill of Rights (S.C. 2015, c. 13, s. 2). Online: https://laws-lois.justice.gc.ca/eng/acts/c-23.7/page-1.html

[22] Perrin, supra note 1 at page 184.

[23] Canadian Charter of Rights and Freedoms, s. 11.

[24] Perrin, supra note 1 at page 153.

[25] Ruth Morris, Stories of Transformative Justice. Toronto: Canadian Scholars Press, 2000.

[26] Perrin, supra note 1 at page 203.

[27]  Perrin, supra note 1 at page 280.

[28] Perrin, supra note 1 at page 280 to 284.

[29] Laura Huey, The wicked problems of police reform in Canada, Routledge Series on Practical and Evidence-Based Policing (New York, New York ; Routledge, Taylor & Francis Group, 2023).

[30] Perrin, supra note 1, Chapter 15.   Such programs now exist, at least in pilot projects, in several Canadian cities.  See for example the Toronto Community Crisis Service: https://www.toronto.ca/community-people/public-safety-alerts/community-safety-programs/toronto-community-crisis-service/.

[31]  Perrin, supra note 1 at page 197.

Tribunals for Access to Justice in Canada

Noel Semple

Forthcoming, Canadian Bar Review

Tribunals have great potential to improve access to justice in Canada, and the goal of this article is to better understand this potential. It begins by defining “tribunals” and “access to justice,” the key concepts of this article. Because tribunals and trial courts are functional alternatives for the resolution of many legal disputes, the article first reviews the merits of Canada’s trial-level courts in terms of creating access to justice. It then turns to tribunals, reviewing some objective evidence of tribunal excellence in this regard.

Four key attributes of tribunals make them advantageous alternatives to trial-level courts for the accessible and just resolution of many types of legal dispute. First, tribunals are specialized instead of having general jurisdiction. Second, tribunals apply teamwork to dispute-resolution, instead of assigning all responsibility to individual adjudicators. Third, healthy forms of accountability are easier to establish in tribunals than they are in courts. This includes accountability of individual members to the tribunal and accountability of the tribunal to the legislature that created it. Finally, tribunals can be designed for maximal performance in creating access to justice, by contrast to courts which, for good reasons, resist design or reform efforts coming from outside themselves.

The final Part of the article argues that tribunals can advance access to justice not only by taking on dispute-resolution work that courts would otherwise do, but also by offering authoritative legal vindication of rights that would otherwise be abandoned, or resolved in a completely privatized way. The tribunal promise of accessible adjudication can also be expected to improve the quality of settlements, in terms of upholding parties’ substantive legal rights.

Full text (draft) : Tribunals for Access to Justice in Canada

The Inaccessibility of Justice in Ontario’s Adjudicative Tribunals: Symptoms and Diagnosis

Noel Semple

Forthcoming, Toronto Metropolitan University Law Review

Four of Ontario’s highest-volume adjudicative tribunals became seriously dysfunctional in late 2018. Systemic delays of months or years arose, basic procedural rights were abandoned, and substantive miscarriages of justice became common in the fields of residential tenancy, human rights, and entitlement to benefits. This article describes these symptoms, before seeking to diagnose the underlying problem. The proximate cause of the dysfunction was the approach to tribunal appointments taken by the executive branch of Ontario’s government. Members appointed by the previous government were “de-appointed” en masse, and meritorious replacements were not found promptly. Some of these problems began prior to 2018. Shortcomings in the other two branches of Ontario’s government also contributed to the dysfunctionality. The Ontario Legislature’s statute governing adjudicative tribunals, and its committee overseeing appointments, lacked the powers and resources that would be necessary to safeguard them from executive neglect. Meanwhile, Ontario’s courts are not an accessible and proportionate forum to backstop adjudicative tribunals. Moreover, a review of the case law shows that they lack doctrinal tools to hold the Government responsible for systemic delay and counterproductive appointment practices.

Full Draft Paper on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4613080

Better Access to Better Justice: The Potential of Procedural Reform

Noel Semple

Canadian Bar Review, Vol 100, No. 2

Improving access to justice is often identified as a goal of reforms to legal procedure. What does access to justice mean in this context? This article proposes that “better access” and “better justice” should be understood as distinct but overlapping goals. Access improves when procedural costs confronting litigants are reduced. Justice has three qualities—substantive justice, procedural justice, and public justice—which legal procedure can produce to a greater or lesser degree. Although access and justice are sometimes in tension as goals for procedural reform, they are also harmonious. Better access to better justice is a worthy goal for procedural reformers. Welfarism is introduced in the final part of the article, as a way to focus access to justice reforms and make the necessary tradeoffs. This article’s argument is illustrated by three procedural reform trends—mandatory mediation, smaller-dollar procedure, and inquisitoriality.

Full text: https://cbr.cba.org/index.php/cbr/article/view/4772

Civil Procedure and Practice in Ontario, Vol. 2

Noel Semple

I’m delighted to announce that the updated 2022 edition of Civil Procedure & Practice in Ontario is now live at https://www.canlii.org/en/commentary/81787.

We are also grateful to our publishers CanLII, and in particular the team of Sarah Sutherland, Alex Tsang, and Alicia Lazear.  Assistant Editor Sheldon Leung and our Windsor Law editorial team (introduced below) were essential to the success of this project. 

Review of Matthew D. Adler’s “Measuring Social Welfare: An Introduction.” New York, NY: Oxford University Press, 2019, 337 pp.

Noel Semple

Erasmus Journal for Philosophy and Economics, Vol. 13, No. 1. (Spring 2020) https://ejpe.org/journal/article/view/442

My review of a terrific new book, offering a way to make public policy decisions objectively and ethically.  The book is here.

Review:

Continue reading “Review of Matthew D. Adler’s “Measuring Social Welfare: An Introduction.” New York, NY: Oxford University Press, 2019, 337 pp.” →

Good Enough for Government Work? Life-Evaluation and Public Policy

Noel Semple

The Journal of Happiness Studies, 2019, Volume 21, 30 pgs.

A life-evaluation question asks a person to quantify his or her overall satisfaction with life, at the time when the question is asked. If the goal of public policy is to make individuals’ lives better, does it follow that maximizing aggregate life-evaluations constitutes policy success? This paper argues that life-evaluation data provides a solid basis for welfare-consequentialist policy-making. This is illustrated by the successful argument for expanding state-funded mental health services in the United Kingdom.

However, life-evaluations do not always provide a complete account of individual welfare. Policy-makers therefore must sometimes inquire into the extent to which individuals’ preferences would be fulfilled, if different policies were to be adopted. This article proposes synthesizing life-evaluationist and preferentist data about individual welfare, as a basis for rational policy-making.

Full text:  https://ssrn.com/abstract=3397151

Measuring Legal Service Value

Noel Semple

(2019) University of British Columbia Law Review, Vol. 52, No. 3.

This article proposes a theoretical foundation for measuring legal service value. It aims to support efforts to compare the value of offerings from different law firms, as well as alternative legal service providers.

The value of any legal service depends on (i) its effectiveness, (ii) its affordability, (iii) the experience it creates for its clients, and (iv) third party effects (the impact the service-provider has on people other than the client).

These four elements of value can be quantified through various metrics applied to firms or entities that provide a given service. Output metrics evaluate either the actual real-world impact of a legal service, or the written and oral work products of the firm. Internal metrics check for processes or structures within a firm that demonstrably support high value outputs. Input metrics focus on the attributes and credentials of the individuals who provide the service.

This article concludes that measuring legal service value is challenging, and may be dangerous if done poorly. Nevertheless, the rewards justify the challenge. Higher quality legal professionalism, more effective and less burdensome regulation, and consumer empowerment are among the payoffs if we can find better ways to measure legal service value.

Full text: https://ssrn.com/abstract=3144771

Everybody to Count for One? Inclusion and Exclusion in Welfare-Consequentialist Public Policy

Noel Semple

Revised with major modifications, resubmitted June 2020, Moral and Political Philosophy.

Public policy should try to make individuals’ lives better than they would otherwise be, according to welfare-consequentialism. This article asks which individuals should count in welfare-consequentialist public policy analysis. Possible answers to the “who counts” question fall along a spectrum between parochial and inclusive. One relatively parochial answer is that only welfare effects experienced by the living human constituents of government should be considered. At the other end of the spectrum, a highly inclusive answer would be that welfare impacts on all individuals who are capable of having welfare should be weighed equally in a social welfare function.

The paper proposes a two-level theory to respond to the “who counts” question. Two-level theories distinguish between (i) what is ethically ideal, and (ii) decision procedures for humans who want to give effect to an ethical ideal, but have limited capacity to do so. Persuasive arguments support an inclusive approach that encompasses the unborn, foreigners, and animals. However, human predictions of the welfare consequences of policy options are prone to error. Welfare predictions about individuals who are temporally, politically, or biologically dissimilar from the predicting government are especially likely to be wrong. Using a social welfare function with excessive welfare-prediction requirements to make decisions may undermine the government’s capacity to correctly predict and advance anyone’s welfare. The paper concludes by analyzing alternative ways to make welfare-consequentialist decision procedures more parochial, and therefore more practical for real human governments seeking to make life better for everybody.

Full Text Online: https://ssrn.com/abstract=3392370

Mystery Shopping: Demand-Side Phenomena in Markets for Personal Plight Legal Services

Noel Semple

International Journal of the Legal Profession, Vol. 25.

“Personal plight” is the sector of the legal services industry in which the clients are individuals, and the legal needs arise from disputes. This article proposes that competition among personal plight law firms is suppressed by three demand-side phenomena. First, consumers confront high search costs. Identifying competing law firms willing and able to provide the needed services often requires significant expenditure of temporal and psychological resources. Second, comparable price and quality information about firms is scarce for consumers. Both of these factors impede comparison shopping and reduce competitive pressure on firms. A third competition-suppressing factor is observed in tort legal service markets, where offerings are typically priced on a contingency basis. Contingency fees have relatively low salience to consumers, and this reduces consumers’ willingness to negotiate and comparison-shop on the basis of price. This analysis is supported by the author’s empirical research with Ontario personal plight lawyers as well as the existing literature. The article concludes by suggesting possible consequences of this analysis for regulatory policy.

Full text: https://www.tandfonline.com/doi/abs/10.1080/09695958.2018.1490292?journalCode=cijl20

Accessibility, Quality, and Profitability for Personal Plight Law Firms: Hitting the Sweet Spot

Noel Semple

Canadian Bar Association, 2017. Available free online at www.cba.org/PersonalPlight

Personal plight legal practice includes all legal work for individual clients whose needs arise from disputes. This is the site of our worst access to justice problems. The goal of this project is to identify sustainable innovations that can make the services of personal plight law firms more accessible to all Canadians.

Accessibility is vitally important, but it is not the only thing that matters in personal plight legal practice. Thus, this book seeks out innovations that not only improve accessibility, but also preserve or enhance service quality as well as law firms’ profitability. These “sweet spot” opportunities emerged from interviews with 32 personal plight legal practitioners across the country, and from an extensive review of the literature.

The first chapter of this book describes personal plight legal needs, clients, and law firms, and introduces the “sweet spot” frame of reference. The next chapters focus on practical opportunities for personal plight legal practice related to Price Certainty (Chapter 2); Deferred Payment (Chapter 3); Diversifying Services (Chapter 4); Vertical Division of Labour (Chapter 5); and Horizontal Division of Labour (Chapters 6 and 7). The concluding chapter (Chapter 8) compares the prospects for large personal plight law firms, and small ones, to pursue these innovations. Throughout, the book offers practical recommendations for personal plight law firms, and also for regulators and professional groups interested in helping those firms create sustainable access to justice. These recommendations are collected in the Appendix.

Legal Services Regulation in Canada: Plus ça change?

Noel Semple

In Andy Boon, ed., International Perspectives on the Regulation of Lawyers and Legal Services, (Oxford: Hart Publishing, 2017).

In common law Northern Europe and in Australasia, a wave of reform has been transforming legal services regulation since roughly 1980. Old structures and approaches, based on the principles of professionalism and lawyer independence, are being replaced in these jurisdictions by new ones that prioritize competition and consumer interests. In the United States this has conspicuously not happened, leaving intact a regulatory approach whose broad outlines have changed little in the past 100 years.

Thus, I have argued that the legal services regulatory regimes of the common law world today are bifurcated into (i) a competitive-consumerist paradigm apparent in the UK, in Australia, and in their smaller neighbours, and (ii) a professionalist-independent mode which survives in the United States and a few other places.

Where does Canada fit into this picture? With a view to locating the author’s home and native land on the spectrum between the competitive-consumerist and professionalist-independent traditions, this Chapter reviews key characteristics and important recent developments in Canadian legal services regulation. After providing an overview of the Canadian legal profession, the Chapter proceeds in four sections: (i) Governance and the Role of the State; (ii) Professional Organization and Occupational Unity; (iii) Firm Insulation and Alternative Business Structures, and (iv) Regulatory Focus. I conclude that, in Canada’s common law provinces, legal services regulation remains firmly in the professionalist-independent tradition.

Full text online, SSRN: http://ssrn.com/abstract=2833336.

A Third Revolution in Family Dispute Resolution: Accessible Legal Professionalism

Noel Semple

(2017) Windsor Yearbook of Access to Justice, Vol. 34, No. 1. (Peer-reviewed).

Innovation in family law firms can tangibly improve access to justice in Canada. This article develops that claim by drawing on empirical data and scholarship about Canadian family law. Part 1 explains how and why legal needs arising from the dissolution of intimate relationships are so difficult for the parties to meet.  This Part draws on civil legal needs surveys, surveys with lawyers, and data from interviews with litigants. The focus shifts to family law firms (including sole practitioners) in Part 2, using new empirical data about the Canadian lawyers who do this work. Three promising opportunities to innovate for accessibility in family law practice are identified: (i) innovative fee structure; (ii) innovative service variety; and (iii) innovative division of labour. A “third revolution” in Canadian family law is proposed in Part 3.  Our family law doctrine was revolutionized beginning in the 1960s, and family law alternative dispute resolution was similarly transfigured beginning in the 1980s. It is now time to foment a third revolution, in family law practice accessibility, to bring the benefits of family justice to all Canadians who need them.

Full text online: https://ojs.uwindsor.ca/index.php/WYAJ/article/view/5009