Canadian Legal Information Institute Research Articles

Quality improvement lessons from Canadian thyroid and parathyroid surgery legal decisions

BackgroundThis is the first study of Canadian thyroid and parathyroid surgery legal decisions, and the first study of surgical malpractice using the Canadian Legal Information Institute (CanLII) database. The objective was to identify quality improvement opportunities in surgical practice, to increase patient safety and satisfaction. MethodsLegal decisions relating to thyroid and parathyroid surgery in the CanLII database were screened. Cases were included if a surgeon was listed as applicant or respondent; they related to pre-, intra-, or post-operative management of thyroid or parathyroid disease; and malpractice was alleged. Cases were excluded if surgery was mentioned incidentally or for non-surgical focus. ResultsOf the 347 unique legal decisions screened, 14 met inclusion and exclusion criteria. Surgeries occurred between 1976 and 2012, with 13 thyroid surgeries, 1 parathyroidectomy, and 4 mortalities. ConclusionsQuality improvement lessons include communication, pre-operative patient education and documentation of risks discussed, and in-person assessment of complications.

The effects of the socio‐demographic factors on judgement building in arbitration

AbstractThis study examines how the socio‐demographic characteristics of arbitrators and of plaintiffs affect arbitrators' judgement bases for arbitration decisions. Two research questions are tested quantitatively based on a data set of arbitration decisions in the Canadian university sector collected from the website of the Canadian Legal Information Institute. We created two models of independent variables related to the socio‐demographic characteristics of arbitrators and plaintiffs. Multinomial logistic regression is used to examine the possible impacts of these variables on the justifications used by arbitrators to explain their decisions. The results indicate that both models significantly influence how arbitrators justify their arbitral decisions. The following variables significantly contribute to the models: arbitrator's age, arbitrator's professional experience in management, plaintiff's gender, and support of the plaintiff by a collective entity (union or association). Young arbitrators are more likely to use “laws” and those who have professional experience in management tend to cite “evidence” to justify their arbitral decisions. Also, arbitrators are more likely to use “evidence” as their judgement basis for male plaintiffs who are supported by a collective entity. The details of these findings, limitations of the study, and future directions for research are further discussed.

A taxonomy of groomer profiles: Comparisons of in-person, online, and mixed groomers through the examination of Canadian judicial decisions

BackgroundSexual grooming in cases of child sexual abuse (CSA) has captured the attention of researchers over the past decades. While early research focused on offenders who groomed children in person, our knowledge of online groomers has begun to increase. However, there has not been a concomitant increase in understanding of groomers who use both in-person and online grooming strategies (i.e., mixed groomers); it is not clear if mixed groomers more closely resemble in-person groomers, online groomers, or if they are their own distinct groomer type. ObjectiveThe current study creates the first taxonomy of in-person, online, and mixed groomer profiles through the empirical analysis of Canadian judicial decisions. Participants, setting, and methods180 Canadian judicial decisions from 153 cases of CSA involving grooming were extracted from the Canadian Legal Information Institute and coded for information related to grooming strategies, the accused, the complainant, and the alleged offence. ResultsMixed groomers used more grooming strategies per case than in-person and online groomers. Mixed groomers initiated contact online with complainants less often than online groomers, but identified more vulnerable victims, engaged in more non-sexual yet inappropriate conversations, and used more gain cooperation strategies than in-person groomers. Online groomers were older and had shorter delays to criminal proceedings than mixed and in-person groomers. Complainants groomed in person were younger and abused for longer durations than mixed and online complainants. ConclusionsThe proposed taxonomy of groomer profiles can inform education and prevention programs about the heterogeneous nature of grooming. Those who groomed children in-person, online, or using a mixture of both methods varied greatly in their grooming strategies, victim age preferences, relationship to the child, and pathways to disclosure.

LEGAL AND POLICY APPROACHES TOWARD REALIZATION OF THE RIGHT TO ACCESS LEGAL INFORMATION IN TANZANIA

The beginning of 2000 witnessed rising of the Free Access to Law Movements (FALMs) which aimed at encouraging nations to publish and make available all primary legal information in their countries. The FALMs resulted in the promulgation and adoption of the Montreal Declaration on Free Access to Law (MDFAL) of 2002 and the formation of the Legal Information Institutes (LIIs), which began in Europe and then spread to America. There are various lines in Europe and America like the British and Irish Legal Information Institute (BAILII), the Australian Legal Information Institute (AustLII), and the Canadian Legal Information Institute (CanLII). Africa joined in the move in early 2003 by forming the Southern African Legal Information Institute (SAFLII). Tanzania although joined late, is not far from realizing the importance of free access to legal information and LIIs. This is signified by the fact that Tanzania has joined in the FALMs, beginning by subscribing to the MDFAL of 2002, joining the SAFLII in 2013, and of late, establishing her own LII which is the Tanzania Legal Information Institute (TANZLII) in March 2019. The basis of Tanzania to join the FALMs is from the fact that the country is a member of the international instruments which guarantee the right to information. Again, the right to access information is enshrined in the Constitution of the United Republic of Tanzania (CURT) of 1977. More importantly, there is specific legislation providing for enforceability of the right to access information, one of which is legal information. The objective of this article is to analyse legal and policy strategies that are taken by the government of Tanzania in ensuring that access to legal information as one of the human rights is realized in the country.

The Consideration of Indigenous Peoples in High Stakes Evaluations of Risk

While Indigenous peoples account for a small portion of the Canadian population, they are overrepresented in the Canadian Criminal Justice System. Research and case law suggest culture should always be considered in violence risk assessments (VRAs), but it is unknown whether this recommendation is followed. The present study examined the role of Indigenous versus non-Indigenous culture in judicial opinions regarding evaluators’ VRA and expert witness testimony in Dangerous Offender and Long-Term Offender (DO/LTO) hearings under Canadian Law. 214 DO/LTO hearings from 2009-2016 where judges commented on VRAs submitted to the court were systematically identified via the Canadian Legal Information Institute database. Judicial comments were analyzed in cases with Indigenous and non-Indigenous defendants for discussions of culture and the prevalence of comments regarding qualities of the evaluator(s), qualities of the VRA(s) completed, and qualities of the evaluators’ expert testimony about the VRA. Judges considered culture meaningfully in 64% of Indigenous offenders’ cases. Discussion of VRA tools’ content was significantly more frequent in non-Indigenous cases; otherwise, frequency of non-cultural themes did not vary between case groups. Given the importance of considering culture in VRA, it is concerning that culture was considered in just over half of cases; improving this deficit is discussed.

Judicial decisions regarding expert evidence on violence risk assessment.

In Canada, there are legal provisions called Dangerous Offender and Long-Term Offender designations available to apply severe restrictions on individual liberties for persons who engage in serious offences (often repetitive) and who pose a substantial risk for violence. Since establishing the presence of a risk for violence is central to decision making in these cases, an evaluator’s violence risk assessment (VRA) and expert witness testimony play a vital role in hearings for these offenders. The present study examined judicial decisions regarding expert evidence on VRAs submitted to the court in 214 Dangerous Offender/Long-Term Offender hearings identified through the Canadian Legal Information Institute database. Written judicial decisions were analysed for any comments regarding factors related to expert evidence on VRA. The commonalities that were identified, including qualities of: (1) the evaluators, (2) the VRAs completed, and (3) the evaluators’ expert testimony about VRA, offer key considerations for professionals working in the mental health and criminal justice fields. They may also contribute to the development of guidelines for professionals conducting VRA used by courts.

Respecting students: Abusive classroom teacher verbal behaviour

Our qualitative study sought to illuminate via examination the behaviour of Teachers in the classroom, with a focus on verbal abuse. This was accomplished by reviewing a sample of the decisions of the discipline committee of the Ontario College of Teachers (OCT). Data were collected from the Canadian Legal Information Institute (CANLII) online database, which provided a record of all the OCT discipline committee decisions, with supplementary data from Professionally Speaking, the magazine of the OCT, as well as the OCT’s website. Data revealed that verbal abuse is ongoing and omnipresent in Ontario classrooms, and that our measured response and related methods of dealing with teacher misconduct are derisory at best and slowly evolving. Investigated cases of verbal abuse in the classroom were reviewed and illuminated the progress that has been made in dealing with Teacher verbal abuse in schools, while providing suggestions for improvement. Male Teachers are often offenders and the impact on all stakeholders is both life-changing and serious we have discovered. Overall, we concluded, that the delay in effectively dealing with complaints and disciplinary matters is unacceptable as it stands, and must be fixed in order to protect a greater number of students from abuse.

Assessing the content and comprehensiveness of provincial and territorial indoor tanning legislation in Canada.

Canadian provincial and territorial governments have enacted legislation in response to health risks of artificial ultraviolet radiation from indoor tanning. This legislation, which differs from jurisdiction to jurisdiction, regulates the operation of indoor tanning facilities. The content and comprehensiveness of such legislation-and its differences across jurisdictions-have not been analyzed. To address this research gap, we conducted a systematic, comprehensive scan and content analysis on provincial and territorial indoor tanning legislation, including regulations and supplementary information. Legislative information was collected from the Canadian Legal Information Institute database and an environmental scan was conducted to locate supplementary information. Through a process informed by the content of the legislation, previous research and health authority recommendations, we developed a 59-variable codebook. Descriptive statistics were calculated. All provinces and one of three territories have legislation regulating indoor tanning. Areas of strength across jurisdictions are youth access restrictions (n = 11), posting of warning signs (n = 11), penalties (n = 11) and restrictions on advertising and marketing targeted to youth (n = 7). Few jurisdictions, however, cover areas such as protective eyewear (n = 4), unsupervised tanning (n = 4), provisions for inspection frequency (n = 4), misleading health claims in advertisements directed toward the general public (n = 2) and screening of high-risk clients (n = 0). All provinces and one territory have made progress in regulating the indoor tanning industry, particularly by prohibiting youth and using warning labels to communicate risk. Legislative gaps should be addressed in order to better protect Canadians from this avoidable skin cancer risk.

Exploring the “Demand Side” of Online Radicalization: Evidence from the Canadian Context

We examined whether and how social media play a role in the process of radicalization, and whether and for what purposes extremists use social media after they become radicalized within a sample of fifty-one Canadian extremists. Differences between converts and non-converts in terms of their radicalization process, involvement in terrorism, and social media usage were also investigated. Data were collected from a combination of media reports via an in-depth LexisNexis search and court records obtained from The Canadian Legal Information Institute database. The results confirm that social media played a role either during or after the radicalization process of the majority of the sample and converts are more vulnerable to online radicalization than non-converts.

Restraint related deaths and excited delirium syndrome in Ontario (2004–2011)

Restraint related death in individuals in excited delirium syndrome (ExDS) is a rare event that has been the subject of controversies for more than 3 decades. The purpose of this retrospective study was to retrieve data on all restraint related deaths (RRD) that occurred in Ontario during an 8-year period and compare them with an earlier study on RRD in ExDS covering the period 1988–1995 in Ontario. The Office of the Chief Coroner of Ontario website was consulted under verdicts and recommendations. The Canadian Legal Information Institute website was used to consult verdict explanations and coroner's summary of evidence. During the period 2004–2011, RRD occurred in 14 individuals in ExDS, a 33% reduction. Psychiatric illness as a cause of ExDS decreased from 57% to 14%. Cocaine was the cause of ExDS in 11 (79%) individuals. The number of RRD following a violent encounter in cocaine-induced ExDS (8) was identical in the 2 periods. RRD occurred in 6 individuals without ExDS following a violent encounter. Final restraint position preceding cardiorespiratory arrest was available in 36% of individuals with ExDS and 83% of individuals without ExDS. In both groups, cardiorespiratory arrests could be classified as immediate or delayed. All 4 individuals without ExDS who had immediate cardiorespiratory arrests were restrained in the prone position. Delayed cardiorespiratory arrest occurred in the non-prone position in both groups. Although many hypotheses may be put forward to explain changes in the epidemiology of RRD in ExDS in Ontario, multiple warnings and recommendations from coroners' inquests cannot be ignored. There is probably not a unique pathophysiological pathway leading to cardiorespiratory arrest in RRD. The death rate in RRD in ExDS is so low that drawing any conclusions based on statistical studies or on isolated case report could be hazardous.

Disciplinary and Legal Actions Against Dermatologists in Canada.

Dermatologists face a litany of professional and legal risks in practice. To review cases of disciplinary and legal action against dermatologists in Canada. The Canadian Medical Protective Association, all 10 provincial medical colleges, and the Canadian Legal Information Institute were contacted to obtain data on legal or disciplinary action taken against dermatologists in their records. A literature review was performed regarding litigation against dermatologists in other countries. Six dermatologists in Canada faced disciplinary action in the last 5 to 30 years. Seven dermatologists and 5 other specialists in Canada faced lawsuits relating to dermatology in the last 1 to 144 years. Procedures and therapy are the most frequently sources of lawsuits against dermatologists both at home and abroad. Dermatologists need to remain vigilant to avoid disciplinary action and lawsuits from their increasing and varied interactions with patients.

Access to Justice: A Critique of the Federation of Law Societies of Canada's Inventory of Access to Legal Services Initiatives of the Law Societies of Canada

Canada's unaffordable legal services problem: The Federation of Law Societies of Canada's text, Inventory of Access to Legal Services of the Law Societies of Canada, contradicts the law societies' duty to maintain affordable legal services. It considers the problem of unaffordable legal services as being one of mere gaps in the availability of legal services. And in the province of Ontario, in an expressly blunt contradiction of its statutory duty to facilitate access to justice, the Law Society of Upper Canada's website states that the law society does not set fees for legal services, and it cannot reduce a lawyer's bill. Such publications tell the population that the law societies disassociate themselves from the problem of the unaffordability of legal services. If as a result, people were to think that the problem of unaffordable legal services must be the government's problem, the law societies would be quick to reject that solution as a violation of the principle of the independence of the legal profession. Then apparently, it's nobody's problem and duty.And therefore, in place of lawyers' affordable services, the Inventory of Initiatives text summarizes the law societies' greater use of programs of costs by cutting competence by way of, self-help, law students and paralegals, unbundling of legal services, and lawyers' pro bono charity.The problem is causing four types of damage: (1) to the many thousands of people whose lives have been severely damaged for lack of legal services; (2) to the courts clogged with the very slow moving cases of self-represented litigants; (3) to the legal profession, shrinking instead of expanding to meet the ever-increasing need of the population for lawyers' services; and, (4) to legal aid organizations who provide free legal services to poor people, but whose funding governments fear to make adequate to meet the need for such services while the majority of the taxpayers cannot afford legal services for themselves.A democracy does not have to accept such poor performance and neglect from its law societies, nor the loss of its ability to make effective use of the rule of law and constitutional rights and freedoms. Therefore, to forestall the inevitability of government intervention, Canada's law societies have immediate need for some program in place that makes persuasive their claims that they are doing something of substance, beyond mere vague expressions of concern, to solve the problem. Now, they have nothing. But undertaking to improve the Canadian Legal Information Institute (CanLII) to become a support-service providing legal opinions and related services to lawyers nationally, as has LAO LAW provided to Ontario's lawyers successfully for 35 years, would immediately show that they are taking action that will definitely have a substantial impact upon the cost of legal services. Otherwise, they will do nothing, or little, too late. Then government intervention will be needed, to impose a new form of management structure that is more responsive to the absence of affordable legal services than is the self-regulation of the legal profession as presently provided by Canada's law societies.

Access to Justice Support Services or Government Intervention A Solution for Canada's Unaffordable Legal Services Problem

The solution to the “access to justice” problem that the majority of the population cannot obtain legal services at reasonable cost, is to enable the Canadian Legal Information Institute (CanLII) to provide the support services to all lawyers in Canada, that the LAO LAW division of Legal Aid Ontario (LAO) provides to lawyers in Ontario who do legal aid cases. In contrast, all of the literature and conferences that this most serious of law society problems has generated, recommend solutions that involve treating the symptoms of the problem but not the cause. For example, the solutions put forward by the Federation of Law Societies of Canada involve cutting the cost of legal services by using: (1) self-help solutions; (2) people of lesser competence than lawyers; (3) pro bono services. This article discusses the inadequacy of those solutions to cope with: (1) the ever-increasing volume of laws, (2) complexity of those laws; (3) technology to be understood; and, (4) the greater volume of e-records to be reviewed. Such increasing legal infrastructure creates an ever-increasing need for lawyers to interpret and apply it, which means increasing time to deliver every legal service so as to maintain its high quality. In that sense, legal services are under constant pressure to improve. The failure of Canada's law societies to produce the innovation that enables a product or service to be improved without increasing its price, has caused legal services now to be unaffordable for the majority of the population. Therefore, society and reality are going forward, but the law societies are taking the legal profession and the availability of legal services backward. The long history of law society failure to solve this problem, and chronic inaction, is due to a lack of understanding of its cause. As a result, the solutions that have been recommended are meant to improve the existing system of providing legal services. That is the cause of the problem, the preservation of the existing system — the “handcraftsman’s method of delivering legal services whereby the same lawyer, or group of lawyers, does all of the work necessary to deliver each legal service. Instead, LAO LAW enables the use of a “support services” method of delivering legal services — like the family doctor referring patients to specialists and the rest of the medical world's infrastructure of support services; and like the car manufacturers using "special parts companies." There is no equivalent in the legal profession to the specialist that is the family doctor. If the legal profession in Canada does not make that transition, the problem will never be solved. It has to be solved, otherwise the small and middle-sized law office will disappear, and government intervention will be necessary — either by: (a) a program of socialized law by way of government-funded and cost-recovered legal services; or, (b) enabling the free enterprise competitive marketing of legal services by: (1) allowing law firms to be owned by non-lawyer commercial entities; and, (2) allowing such entities to provide legal services directly to their customers, by employing lawyers from all the disappearing law firms. That appears to be the only way in which the necessary innovation that creates the necessary cost-efficiency that drives down the price of legal services, will occur. Or, improving CanLII as a support service for all lawyers in Canada is the only way to escape government intervention. Otherwise, “Being without a lawyer means being without power in our society,” which means, the Canadian Charter of Rights and Freedoms is a "paper tiger," which means, Canada is no longer a constitutional democracy; merely a parliamentary democracy.

Access to Justice Canada's Unaffordable Legal Services <i>CanLII</i> as the Necessary Support Service

The solution to the “access to justice” problem that the majority of the population cannot obtain legal services at reasonable cost, is to enable the Canadian Legal Information Institute (CanLII) to provide the support services to all lawyers in Canada, that the LAO LAW division of Legal Aid Ontario (LAO) provides to lawyers in Ontario who do legal aid cases. In contrast, all of the literature and conferences that this most serious of access to justice problems has generated, suggest solutions that involve treating the symptoms of the problem but not the cause. For example, the solutions put forward by the Federation of Law Societies of Canada involve cutting the cost of legal services by using: (1) self-help solutions; (2) people of lesser competence than lawyers; (3) pro bono or “low bono” services. This article discusses the inadequacy of those solutions. The long history of law society failure to solve this problem is due to a lack of understanding of its cause. As a result, the solutions that have been recommended are meant to improve the existing system of providing legal services. That is the cause of the problem, the preservation of the existing system — the handcraftsman’s method of delivering legal services. Instead, LAO LAW enables the use of a “support services” method of delivering legal services. If the legal profession in Canada does not make that transition, the problem will never be solved. It has to be solved, otherwise the small and middle-sized law office will not be preserved, and government intervention will be necessary — either by: (a) a program of socialized law by way of government-funded legal services; or, (b) enabling the free enterprise competitive marketing of legal services. LAO LAW has a 35-year history of success in supplying fact-specific legal research services, and several other support services developed from that initial research service. It has solved a smaller version of the very same problem. It has saved LAO millions of dollars that would otherwise have been paid out on lawyers’ accounts for legal research. The Federation of Law Societies of Canada is the sponsor of CanLII, which is “funded by Canada’s lawyers and notaries for the benefit of all.” At present, CanLII provides free online access to court and tribunal decisions and to statutes from all jurisdictions in Canada. It is a national service available in both English and French, with an impressive record of accomplishment. But its present service cannot provide a solution to the problem. All legal services are based on legal research. Therefore CanLII could substantially reduce the cost of legal services provided by lawyers if it could provide the support services at cost that LAO LAW provides. Therefore the solution lies in the hands of the law societies. But such innovation will not happen if there is not sufficient fear of the interaction among: (1) the consequences of not solving the problem; (2) the power of the internet, the social media, along with the news media to quickly turn those consequences into a major public issue — particularly so by the publication of the sad stories of the high percentage of unrepresented litigants caused by unaffordable legal services; (3) the well established progress of the loss of self-regulation by law societies in other countries; (4) the fact that the consequences of the unavailability of legal services at reasonable cost will motivate the many non-lawyer legal services providers to offer to people desperate for a lawyer’s services, which they cannot afford, legal services that should be provided by lawyers; and, (5) the attention brought to these factors by publicized reports and discussions as to: (a) whether there should be an official regulator of non-lawyer providers of legal services; and, (b) if so, should that regulator be the law society in each jurisdiction. If a law society cannot regulate the provision of legal services in its own profession, how can it be expected to adequately regulate the provision of legal services by other professions?

Access to Digital Legal Information: Focus on the English-Speaking Caribbean Countries

The Internet and various digitization initiatives have opened up immediate access to legal materials such as statutes, bills, law reports etc. through government websites and the Legal Information Institutes. There is a dearth in the legal information that is free and openly accessible for countries in the English-speaking Caribbean even though there has been relative progress in the last ten years. A number of these countries have Freedom of Information or Access to Information legislation which requires that government must make information openly accessible to its citizens. This paper reviews developments and government efforts in providing free and accessible legal information in Belize, Jamaica and Trinidad and Tobago. It discusses and highlights observations over the last ten years, developments and trends including the role of commercial publishers in the region. It concludes with a recommendation for a collaborative initiative in the region using the Canadian Legal Information Institute model.

Physician Perspectives on Legal Processes for Resolving End-of-Life Disputes

In order to understand how to effectively approach end-of-life disputes, this study surveyed physicians' attitudes towards one process for resolving end-of-life disputes, namely, the Consent and Capacity Board of Ontario. In this case, the process involved examining interpretation of best interests between substitute decision-makers and medical teams. Physicians who made "Form G" applications to the Consent and Capacity Board of Ontario that resulted in a decision posted on the open-access database, Canadian Legal Information Institute (CanLii), were identified and surveyed. This purposive sample led to 13 invitations to participate and 12 interviews (92% response rate). Interviews were conducted using a prescribed interview guide. No barriers to the Consent and Capacity Board process were reported. Applications were made when physicians reached an impasse with the family and further treatment was perceived to be "unethical." The most significant challenge reported was the delay when appeals were launched. Appeals extended the process for an indefinite period of time making it so lengthy it negated any perceived benefits of the process. Benefits included that a neutral third party, namely the Consent and Capacity Board, was able to assess best interests. Also, when decisions were timely, further harm to the patient was minimized. Physicians reported this particular approach, namely the Consent and Capacity Board has a mechanism that is worthwhile, patient centred, process oriented, orderly and efficient for resolving end-of-life disputes and, in particular, determining best interests. However, unless the appeal process can be adjusted to respond to the ICU context there is a risk of not serving the best interest of patients. Physicians would recommend framing end-of-life treatment plans in the positive instead of negative, for example, propose palliative care and no escalation of treatment as opposed to withdrawal.

The Canadian Legal Information Institute - a Model for Success

AbstractIn a paper presented at the 39th Annual BIALL Conference held in Dublin in June 2008, Janine Miller described the development of CanLII by Canadian law societies from its earliest incarnation to the huge free legal resource that it now comprises.