Tag: law school

Deciding Between a PhD in Philosophy and Law School: A Comprehensive Guide

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When faced with the decision of pursuing a PhD in Philosophy or a Juris Doctor (JD) degree from law school, it’s essential to weigh the pros and cons of each path carefully. Both paths have their unique challenges, benefits, and long-term implications for your career and life. Here’s a breakdown to help you make an informed decision.

1. Career Paths and Goals

PhD in Philosophy

  • Typical Career Trajectory: A PhD in Philosophy is generally pursued by those aiming for an academic career. This often involves teaching and conducting research at universities. However, the job market for philosophy PhDs is notoriously difficult, with limited tenure-track positions available and fierce competition for those that do exist.
  • Job Market Realities: Even graduates from top-tier philosophy programs face a grueling job market. Securing a tenure-track position might require applying to 50-100 jobs and possibly relocating to a less-than-ideal location. The average starting salary for a tenure-track assistant professor is around $60,000, which, while respectable, may not reflect the years of study and the intense competition involved.

JD (Juris Doctor)

  • Typical Career Trajectory: Law school graduates have a more direct and lucrative career path, primarily within the legal profession. This includes roles as lawyers, judges, or legal consultants. The legal field offers a broader range of opportunities across various sectors, including corporate law, public policy, and government.
  • Job Market Realities: While law school is a significant financial investment, often resulting in six-figure debt, the earning potential post-graduation is substantial. Starting salaries for lawyers can vary widely, but in lucrative markets or corporate law, it’s not uncommon to start at six figures, making the financial burden more manageable over time.

2. Financial Considerations

PhD in Philosophy

  • Cost and Funding: Most decent philosophy PhD programs offer full tuition remission and stipends through teaching assistantships or fellowships. These stipends can range from $14,000 to $30,000 per year, depending on the program’s rank and location. The upside is that you won’t graduate with debt, but the downside is the opportunity cost—spending 5-8 years in a program that leads to a highly competitive job market with limited financial rewards.

JD (Juris Doctor)

  • Cost and Debt: Law school is a considerable financial commitment, often requiring students to take on significant debt. Depending on the institution and financial aid, students might graduate with $90,000 to $300,000 in debt. However, the potential for high earnings in the legal profession can offset these costs. Moreover, there are public service loan forgiveness programs that can alleviate some of the debt burden if you work in qualifying public sector jobs.

3. Educational Experience

PhD in Philosophy

  • Academic Focus: A philosophy PhD involves deep immersion in philosophical texts, theories, and extensive research. The program typically includes comprehensive exams and culminates in a dissertation that contributes new knowledge to the field. It’s a rigorous intellectual journey, best suited for those with a passion for philosophy and a desire to contribute to academic discourse.

JD (Juris Doctor)

  • Practical Training: Law school is more about acquiring practical skills in legal reasoning, understanding doctrines, and preparing for the bar exam. It involves a mix of coursework, internships, and sometimes clerkships. While intellectually demanding, the focus is on applying legal principles in real-world situations rather than developing an independent research agenda.

4. Combined JD/PhD Programs

For those with intersecting interests in both law and philosophy, combined JD/PhD programs might be the ideal solution. Schools like NYU, Yale, Stanford, and Harvard offer joint degrees that allow students to delve into both fields. These programs are particularly beneficial for those interested in legal philosophy or who aspire to academic positions that bridge both disciplines. Joint programs also offer the advantage of reducing overall time and debt compared to pursuing both degrees separately.

5. Making the Decision

PhD in Philosophy:

  • Pros: Funded programs, intellectual fulfillment, potential for academic career.
  • Cons: Lengthy duration, highly competitive job market, limited alternative career paths.

JD (Juris Doctor):

  • Pros: Shorter duration, high earning potential, broader career opportunities.
  • Cons: Significant debt, intense academic and professional environment.

Combined JD/PhD:

  • Pros: Interdisciplinary expertise, broader career options, reduced overall debt.
  • Cons: Still a significant time investment, requiring careful management of dual commitments.

Final Thoughts

Ultimately, the decision between a PhD in Philosophy and law school comes down to your career goals, financial situation, and passion for the subject matter. If your primary interest is in the academic study of philosophy and you’re prepared for a tough job market, a PhD could be rewarding. However, if you’re looking for a more stable and lucrative career path with a wider range of options, law school might be the better choice. For those who want to blend both worlds, exploring a joint JD/PhD program could provide a balanced approach.

Sample Cover Letter: International Law Firm

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I am a second-year law student at Osgoode Hall Law School and I am writing to express my interest in a summer position at [●]. My desire to join [●] is driven by the opportunity to join a passionate team at a leading, global law firm. I am immediately drawn to [●]’s dedication to fostering the growth of its employees through mentorship and professional development programs. With an academic curiosity in business law, I am interested in the cross-border, interdisciplinary nature of the firm’s mergers and acquisitions and transactional practice groups. I am especially drawn to the flexible structure of [●]’s summer programs, which will allow me to explore these areas further, while simultaneously exploring other practices.

I believe my ability adapt to changing environments, my attention to detail, and my comfort with solving problems under pressure will be an asset to [●]. During my graduate studies, I worked closely with faculty, authors, and peers to development new research projects in philosophy, and this resulted in my thesis focusing on ethics. I was further given the opportunity to be a Teaching Assistant for a pilot program that taught the fundamentals of ethics to business students. I enjoyed guiding students through dense philosophical texts and learned how to breakdown abstruse ideas into more manageable pieces. In my capacity as a Senior Associate at the Ontario Medical Association, I developed a technical expertise in business intelligence tools, especially in database management and data visualization through reports, summaries, and dashboards. I was entrusted to oversee the nominations and election procedures for over 40,000 medical professionals across the province. This role involved interdepartmental collaboration with respect to reviewing governance documents to ensure their compliance with governing statutes, stakeholder satisfaction, and risk management. From this experience, I learned how much dedication and scrutiny is required to produce high-quality work under strict time constraints and advancing corporate strategy.

During my time at Osgoode Hall Law School, I have started to build practical legal skills through my extracurriculars. As the Business Manager of the school newspaper, Obiter Dicta, I was tasked with auditing and consolidating their finances to ensure that student fees are used effectively and ethically. It was crucial to negotiate with the rest of the staff how an agreeable way to spend funds can be achieved. Such communication skills were also key for my Head of Sponsorship role in the National First Generation Network, particularly in securing funding and curating new partnerships with firms for all school chapters across Canada. As an Associate Editor of the Osgoode Hall Law Journal, I developed strong legal research, drafting, and editing skills. In order to diversify competency, I additionally took on editorial role for the Intellectual Property Journal and the Transnational Legal Theory Journal. Moreover, during my summer, I had the opportunity to work with four Professors to assist with each of their research projects. I enjoyed the challenge of undertaking increasingly complex tasks and juggling multiple projects. I intend to expand on my skills through participation in the Advanced Business Law Workshops in Corporate Finance and Mergers and Acquisitions, and I hope to further grow under the mentorship of [●].

Thank you for your consideration. I believe I can make a valuable contribution to the team at [●], and I look forward to hearing from you.

2L Moot Script Sample: Council of Canadians with Disabilities v British Columbia (Attorney General)

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We are seeking to allow the appeal in favor of the Attorney General and reverse the ruling of the BC Court of Appeal. While we agree with the general reasoning of the Appeal’s court as it sets out the legal analysis for the public interest standing and the first Borowski factor, we submit that the Appeal’s court erred in interfering with the discretion of the trial judge. More specifically, the CCD being denied a public interest standing is well within the discretion of the trial judge and the judge’s discretion is defensible on the grounds of the distribution of federal powers. We are particularly worried about judicial overreach and activism that encroaches on the powers of the legislature and creates inefficiencies in the judiciary.

I want to start by looking at the BC Court of Appeal’s analysis of the rationale behind the public interest standing and Borowski. The Appeal’s court correctly notes that courts have used their discretion to generously grant public interest standing while respecting concerns about overburdening courts. The main balancing considerations are between fairness on one hand (i.e., access to justice for the vulnerable and marginalized) and efficiency on the other (i.e., screening out “busybody” litigants). In this case, we are concerned with questions of justiciability, or, in terms of the first Borowski factor, whether there is a “serious justiciable issue.”

The question of justiciability, the Appeal’s court identifies, quoting Lorne Sossin, is “if a subject-matter is held to be suitable for judicial determination, it is said to be justiciable; if a subject-matter is held not to be suitable for judicial determination, it is said to be non-justiciable.” We are not arguing that this matter in itself is not suitable for judicial determination, but we are arguing that this matter in its factual matrix–namely, its use of the public interest standing doctrine–is not suitable for judicial determination.

Our argument relies on a closer look at both Downtown Eastside and Canadian Bar Association. The trial judge’s reliance on Canadian Bar Association (instead of Thompson) is well within the trial judge’s appropriate discretion. We must appreciate that judicial discretion is holistic and reasonable people may disagree with the outcome. The CCD may disagree with the assessment of the fact that, say, third parties may materially advance an identical claim. However, this disagreement fails to appreciate, say, efficiency concerns or the strength of the Charter claim as a whole, which go into the final discretionary deliberations of the trial judge. Considerations of efficiency or being selective about Charter claims is not unreasonable, nor is it arbitrary; rather, it is well within the discretion of the trial judge.

We also agree with Justice Cromwell in Downton Eastside and the Appeal court’s characterization [“that courts should not refuse to determine an issue on the basis that it would be better addressed by the legislative or executive branches of government simply because it arises in a policy context or has policy implications.”] (para 92) Indeed, our position is not that the issue in this case is of a policy nature and therefore ipso facto must go to the legislature; rather, we are arguing that the one may reasonably come to the conclusion that the issues in this case could be more effectively dealt with outside of the courts (viz., in the legislature.)

Of course, the discretion of the trial judge is not unfettered, especially when it comes to constitutional rights. We also agree that the impugned provisions are problematic and need to be addressed. We are not claiming that it is frivolous or that the CCD are busybodies, but rather that considerations of efficiency must be taken seriously as they are also considerations for facilitating access to justice. Where we disagree with the Appeal court is that the CCD and the public interest standing doctrine ought not to be the tools to address the issues of the impugned provisions. This could open the floodgates to social activist groups swarming the courts instead of going through the proper legislative channels for change in a democracy.

In conclusion, we submit that the BC Court of Appeal failed to appreciate the trial judge’s concern for efficiency, and the Appeal court erred in interfering with the trial judge’s reasonable discretion. We appreciate that persons with mental disabilities may find the justice system particularly uncomfortable, but we urge the court to respect the trial judge’s discretion and the considerations for the possibility that the public interest standing doctrine may burden the courts and present further access to justice issues. Subject to any questions, these are my submissions. Thank you, Justices.

2L Exam Summary: Commercial Law

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PPSA apply?

Is there a completed security agreement?

Ellingsen v Hallmark Ford Sales: motor vehicle purchase agreement; bankrupt and trustee is appointed; held: no security agreement, so PPSA doesn’t apply

  • 11(2)(a)(i): the debtor has signed a security agreement that contains a description of the collateral

Does the wording suggest a security interest?

356447 British Columbia v CIBC: syndicate loan; security interest created; no magic wording needed

Caisse Populaire v Canada: term deposit agreement for a line of credit, went insolvent, and Crown claimed to be beneficiary; held: yes, parties intended security interest; look at the cumulative terms of the agreement; rationale: function rather than form; dissent: (Deschamps) too expansive notion of security interest

  • s 2(a): every transaction without regard to its form and without regard to the person who has title to the collateral that in substance creates a security interest including…

What is personal property/collateral?

Saulnier v Royal Bank of Canada: fishing licenses; rationale: (traditional) akin to profit a prendre, (regulatory) little discretion to refuse license makes it stable, (commercial realities) too broad in scope; held: yes, intangible property: s 2(a)

Sugarman v. Duca Community Credit Union: nursing home license; rationale: neither transitory or ephemeral  

DaimlerChrysler Services Canada Inc. v. Cameron: motor vehicle lease; true lease or security lease: look at factors in American jurisprudence; held: security lease

Crop & Soil Service Inc. v. Oxford Leaseway Ltd: Ontario and 2(a)(ii) lease; motor vehicle lease with option to purchase, else auction off (open-ended lease)

Is there an exception? 4(1)

Commercial Credit Corp ltd v Harry D Shields: landlord right of distress and arrears of rent; lien given by statute per 4(1)(a); held: distress gives right to hold possession, so no registration required

Case specific:

  • lease over one year: 2(c)
  • assignment, leases or consignments that secures an obligation: 2(a)(ii)
    • Adelaide Capital Corp v Integrated Transport Finance: test for lease instruments is whether the transaction as a whole in substance creates a security interest
  • Present after-acquired property: 12(1)
    • exceptions: crops and consumer goods: 12(2)
    • Holroyd v Marshall: PAAP grants equitable right not legal right
    • Tailby v Official Receiver: applies to accounts receivable
    • Joseph v Lyons: equitable right can be defeated by bona fide purchaser

Attachment?

Test: S 11

  • value? 11(2)
  • right? 11(2)
  • signed security agreement sufficient to be identified? 11(2)(a) OR possession? 11(2)(b)

i Trade Finance Inc v Bank of Montreal: two innocent creditors; victims of security fraud; attachment required to protect against third parties, else third-party wins

Problems with attachment?

Atlas Industries v Federal Business Development Bank: delivery of security agreement per s 10 within 10 days

Kinetics Technology International Corp. v. Fourth National Bank of Tulsa: sent materials to combine into new product; debtor’s right in collateral per s 11(2); no control/authority, then no attachment

R. v. Canadian Imperial Bank of Commerce: debtor fraudster proceeds forfeited to Crown; CIBC attachment questioned; held: customer gave money voluntarily, not a high threshold to meet that the debtor had rights in the collateral

Case specific:

  • floating charge: 11(2)
    • Credit Suisse Canada v 1133 Yonge Street Holdings: “It does not contemplate, nor require, any further act of crystallization [of a floating charge].”
  • Business Development Bank of Canada v. D’Eon Fisheries Ltd: security agreement and license with fishing quota; description of collateral include quota; held: unperfected, “unreasonable and unrealistic” to expect parties to infer additional collateral of fish quota
  • D’Eon Fisheries Ltd. (Re): court of appeal disagrees that the licence and quota are separable and the registration did not capture the quota; quotas are always attached to licences; references fishery regulations instead of commercial practice argument

Perfection?

Test: s 19

  • Attachment
  • Possession (s 22) OR registration (s 23)

Problems with possession? [see s 22(1) limits]

RE Darzinskas: manufacturing equipment too big to remove, let debtor use it; chattel mortgage improperly registered, so question of perfection by possession; no constructive possession; holding: no physical possession, so no perfection

Sperry Inc v Canada Imperial Bank of Commerce: competing claim for farm equipment; “reasonable, clear, and actual possession”

Problems with registration? [S 46(4); amendments in 46.1]

Re Lambert: wrong name but right VIN; reasonable person would check both; objective test of reasonableness: likely to materially mislead

GMAC Leaseco Ltd. v. Moncton Motor Home & Sales Inc: non-Ontario, disagrees with Re Lambert; truck serial number was accurate, but wrong name; question of seriously misleading; held: yes; close match may give rise to an obligation to search further

Fairbanx Corp v Royal Bank of Canada: incorrect spelling in name left security interest unperfected; objective test of reasonable person; other party got the spelling right, so not materially misled

Coates v General Motors Acceptance Corp: incorrect VIN; misleading, but reasonable person should discern same model year and manufacturer; test: cause reasonable person to conclude search not revealing same chattel

Case specific:

  • Unperfected security interests: s 20
    • Looses out to insolvency trustees
    • Loses to innocent third parties
  • Registration specifications: 42.1
  • Bank of Nova Scotia v Clinton’s Flower: error made by registrar does not invalidate registration; 1 million assurance fund: 44(20)
  • RE Haasen, CIBC v Melnitzer: debtor’s name in search; birth certificate, passport, etc.
  • Financing statement: 45(1)
    • Collateral classification: 46(2.1)
  • Registration is not notice: 46(5)(a)
  • Multiple security agreements: 45(4)
    • Adelaide Capital Corp v Integrated Transportation Finance Inc: holding revised 45(4)(a)
  • Keep info current: 48
  • Deemed knowledge/notice: 69

Priority?

Test: s 30(1)

  • Between registered: first to register: 30(1)1
    • Regardless of order of perfection
  • Between registered and other perfected: registered 30(1)2
  • Between other perfect: first to perfect30(1)3
  • Between unperfected: first to attach 30(1)4

James Talcott Inc v Franklin National Bank of Minneapolis: dump truck lease to acquire $1; first to file rule s 30(1)1

The Robert Simpson Company v Shadlock and Duggan: doctrine of actual notice; irrelevance of knowledge and notice; objective criteria leads to less cost and more certainty

In the matter of Bruce A Smith: race to filing; irrelevance of good faith

PMSI? Test: s 33

  • Definition: (a) secure payment, (b) allow debtor to acquire rights), (c) lease of more than a year
  • Inventory? 33(1)
    • [a] perfection at the time of possession AND [b] notice with description to other SP before registration and possession
  • Non-inventory? 33(2)
    • Tangible: [a] perfected within 15 days of [debtor’s] possession
    • Intangible: [b] perfected within 15 days of attachment

North Platte State Bank v Production Credit: US case; claimed PMSI, but did not fit definition; not for the purpose of acquiring rights

Agricultural Credit Corp of Saskatchewan v Pettyjohn: cattle security agreement, breached term by selling cattle and buying new cattle; PMSI test: lender takes security interest in property; lender gives value for the purpose of debtor acquiring rights to property; value used to acquire those rights

Unisource Canada Inc v Laurentian Bank of Canada: sale leaseback printing press; PMSI because debt financing enabled them to acquire further rights that debtor previously did not have

Clark Equipment of Canada v Bank of Montreal: mixes PMSI and non-PMSI; security interest can cover more than PMSI collateral

Brodie Hotel Supply Inc v US: USA restaurant equipment; possession of collateral as a debtor

Case specific:

  • PMSI attaches at the same time? Equity rule of first in time and first in right applies: s 72
  • Conflicting PMSI: s 33(3)
    • Vendor has priority over lender

Priority exceptions?

Fixture?

  • Test: s 34(1)
    • (a) security interest attaches before goods become fixtures, then security interest has priority
    • (b) security attaches after, then priority over anybody who subsequently acquire interest but not those who already had interest (unless the previous interest holder agrees in writing to hand it over)
    • Exception: s 34(2) subsequent purchase or advance without knowledge of security interest or fixture notice is registered in land registry office
      • rationale: SP didn’t have any expectation of goods, so removal by other parties still gives SP what they bargained for

Cornier v Federal Business Bank: land owner with installations for business; severable even if part of land; used caselaw for what counts as fixtures; context sensitive

85987 Ontario v Starmark: spray paint booth sold under conditional sales contract; landlord right to distress does not apply to fixtures

Accession?

  • Test: s 35
    • Same as fixture

Industrial Acceptance Corp v Firestone Tire: truck tires; utility of the principal chattel would be destroyed

Co-mingled?

  • Test: s 37
    • perfected security interest
    • goods a part product
    • manufactured such that identity is lost
    • remedy: each security interest pro rata

Subordination?

  • S 38

CIF Furniture Limited (RE): inter-creditor agreement; circularity problem; complete vs partial subordination; Laskin argues complete subordination would give windfall of leapfrogging, so partial subordination is more equitable

Chiips Inc v Skyview Hotel: conditional sales to refurbish hotel floors; “PMSI shall rank in priority” and parties intended subordination to subsequent PMSI; implicit subordination is possible; dissent: purpose and intention was just to allow PMSI without breach; wording should have been clearer

Engel Canada Inc v TCE Capital: adoption of Chiips into Ontario; moulding machines, but didn’t register PMSI in timeframe; subordination can still occur without explicit mention of “rank” or “priority”; look at security agreement then other suggestions of intention

Kubota Canada v Case Credit: PMSI registration lapse but fixed; no wording suggests implicit subordination

Ordinary course of business?

  • Test: s 28
    • Buyer vs purchaser: buyers do not have s 28 exception
      • Purchaser must not know of security agreement: s 28(6)
      • Also “goods” not “inventory”
    • Security interest must be “given by seller”
    • Ordinary course of business: advertising, nature and significance of transaction, not resembling a liquidation of assets, reasons for transaction
  • Priority of tangible chattel paper: 28(3)
    • Test: 28(4)
    • Motor vehicle: 28(5)

Camco Inc v Olson Realty: kitchen appliances sold in condos and conditional sales agreement; yes ordinary course, they regularaly sold condos with kits; may not be limited to inventory and may apply to some cases of equipment, but not one-off sales

Splittlehouse v Northshore Marine: 90% of purchase price paid for boat but conditional sales contract that stipulated title would not pass until paid in full; moot: s 28(1.1) irrelevant whether title passes

Tanbro Fabrics Corp v Deering Milliken: US case; possession was with SP; court said debtor sometimes sold goods, but infrequent is still ordinary course

Re Perimeter Transportation: leased 3 buses; trustee argued ordinary course extinguished security interest; lease comes first, and leasers should not have to worry about prior security interests 

Agricultural commodity Corp v Schaus feedlots: security interest in crop sold; ordinary course determined by conditions of the sale

Other Rights: proceeds, enforcement, conflict of law

Proceeds and tracing?

  • S 25(1): perfection extends to proceeds unless otherwise specified
    • Creditor can follow or trace collateral
    • Same registration date: s 30
    • Non-registration perfection: 10 days and s 25(4)

Flintoft v Royal Bank of Canada: tracing proceeds is not contingent on agreement; includes second generation proceeds overlapping with after acquired property

Agricultural Credit Corp of Saskatchewan v Pettyjohn: old cattle sold to buy new; cannot trace back to debt and re-create debt, but possible fictional subrogation; tracing concerned with fairness between creditors; 50% PMSI; close and substantial connection

Bank of Nova Scotia v. IPS Invoice Payment System Corporations: factoring agreement; security interest recovery limited to amount of debt; rationale: give each party what they bargain for, so no windfalls

LSUC v TD Bank: misappropriate funds and mixed in trust account; no Grey lowest intermediate balance rule because no trust relationship; pro rata distribution of funds

Graphicshoppe Ltd. (Re): deducted funds from employee held in trust; mixed funds and account fell negative; not trust funds under s 67 of insolvency act; no tracing allowed, but not bound by lowest intermediate balance rule

Boughner v. Greyhawk Equity Partners: defrauded investment scheme; tracing; considered last in, first out rule; applied lowest intermediate balance rule, but said it’s not applicable in some cases

Flexi-coil v Kindersley District Credit Union: farm equipment dealer and drew on cheques; no fiduciary but can trace anyway; bank-customer relationship is debtor-creditor; equity: no tracing if bona fide purchaser for value

Massey-Ferguson Industries v. Bank of Montreal: s 30(5); registration extends to proceeds

Enforcement?

  • Part V: s 57.1 onward
    • Remedies can be cumulative: s 58
    • Remedies can be waived or contractually negotiated: s 59(1)

Waldron v Royal Bank: limits on enforcement: notice before enforcement; reasonable time; Lister v Dunlop principle: seizure under security is entitled to receive notice as is reasonable in the circumstances; notice per 63(4)-(7)

R v Doucette: seizure of collateral by force; illegal means not permitted

Angelkovski v Trans-Canada Foods: voluntary foreclosure satisfies debt and waives right to deficiency; right to keep collateral for cancellation of debt: s 65(2); if collateral is worth more, see 65% rule in 65(1); held: foreclosure requires notice

Copp v Medi-dent services: two dentists; disposal of collateral; reasonableness: appraisal and commercial price

Bank of Montreal v Featherstone: deficiency claim: 64(3); difference between debt owing and net amount received

Bank of Montreal v Maple City Ford Sales: Ontario and trucks; enforcement without notice and consenting to receiver is waiver of notice; reasonable notice overcome by bad faith, depreciating assets, or no difference since debtor has no means

Case Specific:

  • Redemption: 66(1)
    • Prior to disposition or foreclosure
    • Tendering all obligations and reasonable expenses to SP
    • Satisfaction of security obligation
  • Reinstatement: 66(2)
    • Consumer goods can reinstate the security agreement by paying arrears (monies owed)
  • Receiver: 60(1)
    • persons put in place to control and manage the collateral
    • Power to receive income and operate the business
    • Ostrander v Niagara Helicopters: unlike court appointed, privately appointed receivers are not fiduciaries
    • Standard Trust co v Turner Crossing Inc: statutory right to receiver; private receiver should be specified in security agreement

Choice of law?

  • S 5-8
    • 7(1): Lex situs: apply the law where the collateral is at the time of attachment
      • Exception: mobile goods rule uses debtor location
    • Putative proper law: if no attachment, use the law anyway
    • 6(1) Destination of goods rule: intended for another location
  • 5(2) contemplates perfection before relocation
    • Continuation of perfection: registration before goods brought in, 60 after goods brought in, 15 days upon notice, or before expiry (whichever of these three is earliest)
    • Rationale: allocation of risk

GMAC Commercial Credit Corp Canada v TCT Logistics Inc: registered in Alberta but not Ontario; OPPSA does not apply, still use OPPSA conflict rule: yes; s 7(1) applies for choice of law and not confined to Ontario security interest

Cardel Leasing v Maxmenko: Ontario and BC law conflict; parties choice law in contract is not aboluste: cannot avoid laws most closely related to the transaction; contra proferentum rule of contract interpretation

Re Claude A Bedard: functional equivalent of registration will be considered perfected and granted equivalent to PPSA protection; deemed perfection s 8(2)

Miscellaneous

Acceleration provisions: s 16

Care of collateral: s 17

Request for info: s 18

Short term financings for temporary (day 10) perfection: s 24

2L Exam Summary: Restitution

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MISTAKE

FACT

Test: (Goff in Barclays Bank [affirmed by SCC in BMP Global])

“(1) If a person pays money to another under a mistake of fact which causes him to make the payment, he is prima facie entitled to recover it as money paid under a mistake of fact. (2) His claim may however fail if… (a) the payer intends that the payee shall have the money at all events, whether the fact be true or false, or is deemed in law so to intend; or Unintended gifts? recoverable Lady Hood of Avalon: rescinded unequal deed to equalize inheritance shares to two daughters  (b) the payment is made for good consideration, in particular if the money is paid to discharge and does discharge a debt owed to the payee (or a principal on whose behalf he is authorised to receive the payment) by the payer or by a third party by whom he is authorised to discharge the debt; or Receiving binding consideration?  a good defense to a mistakeKrebs v World Finance: chattel mortgage paid on stolen car (worthless security interest since no property passes); fact that it was valueless consideration is not relevant, but perhaps contract can be set aside  
(c) the payee has changed his position in good faith or is deemed in law to have done so.” Modest improvements? reasonable evidence lowered bar (Philip Collins Ltd)  

BANKS

  • Stop payment order? illegitimate debt can be charged back; bank has no authority and failed to follow instructions
    • Barclay’s Bank: mistake of the bank, acted without mandate; payee gave no consideration to bank for payment; possible subrogation, from Sinclair, for Canada for banks to chargeback
  • NSF cheque? bank considers insufficient funds a request for credit; not recoverable (Lloyd’s Bank Plc)
    • Good recovery for computer data entry errors (RBA Dominion Securities)
  • Forged cheque? two innocent parties, bank and recipient, and must figure which innocent party must suffer, so leave the loss with the bank (Price v Neal: banks should know the signature of customers)
    • BMP Global: false representative made deal for forged 900k cheque; mistake of fact implied in the contract; Simms test (mistake caused payment; defense if payment is irrelevant, contractual, or change of position); no finality of payment (recipient is not a holder in due course or detrimental reliance)

LAW

  • Reform: Started with Dickson dissent (in Hydro Electric), adopted by La Forest (in Air Canada v British Columbia)
    • Test: causation (but-for) test for mistake leading to moneys paid
Traditional rule defended (no recovery): Interpretation of Contract (Rogers v Ingham: no recovery based on finality in dispute resolution)Interpretation of Case Law Interpretation of Legislation (R v Beaver Lamb & Shearling: fur tax; must challenge the fee instead of voluntarily accepting authority’s interpretation; legislation must be possible to challenge)   Any party assume risk of error?Exceptions (understood as mistake of fact): Marital or other personal status (Eaglesfield)Mistake on the existence of law is a mistake of fact (George (Porky) Jacobs Enterprises)Payment to an officer of the court (Ex p. James) and vice versaPrivate rights (Cooper v Phibbs) Payment to a public authority under duress: really no alternatives? (Eadie v Township; ultra vires bylaw tax)  
Modern Ultra vires legislation (Kingstreet Investments) La Forest denies to protect public treasury (Hydro Electric):Denied if subsequent legislation Calls for reform; internally inconsistent policy by punishing lawful actors”Passing on” the burdens of taxes may also apply (Air Canada v British Columbia) Not applicable to public authorities Rejected (Kingstreet Investments), but needs reform Mistake in transfer other than direct payments? (MacFarlane and Wellington Hotel v Kennedy: paid your taxes)Swap transactions (Kleinwort Benson Ltd. v. Lincoln County Council: no “passing on” defense available)  

GOODS/SERVICES

Test: (Third Restatement) Canadian adoption of Restatement (Re Central Guaranty Trust v. Dixdale)

[Benefits Other Than Money] A person who confers on another, by mistake, a benefit other than money has a claim in restitution as necessary to prevent the unjust enrichment of the recipient. Such a transaction ordinarily results in the unjust enrichment of the recipient only to the extent that:

(a) specific restitution is feasible;

(b) the benefit is subsequently realized in money or its equivalent;

(c) the recipient has revealed a willingness to pay for the benefit; or

(d) the recipient has been spared an otherwise necessary expense

Discharging another’s obligation by mistake (Carleton v City of Ottawa)Discharge of debt by creditor (Central Guaranty Trust Co v Dixdale) Improvements to another’s land (Montreauil v Ontario Asphalt)Problem of forced investment (Olchowy v. McKay; owner saw trespasser making improvements without interfering; acquiescence) Uncertainty: possible problem of forced investment (Estok v Heguy: tended land without request, so no benefit; bad result)Improvements to chattel (Greenwood v Bennett)Change of position and estoppel available (Kenora Hydro Electric Commission v Vacationland)  

Defenses

Change of Position (Restatement [affirmed by SCC in Storthoaks])

The right of a person to restitution from another because of a benefit received is terminated or diminished if, after the receipt of the benefit, circumstances have so changed that it would be inequitable to require the other to make full restitution.Change of circumstances may be a defence or a partial defence if the conduct was not tortious and he was no more at fault for his receipt, retention or dealing with the subject matter than was the claimant.  
  • Negligence does not preclude recovery for mistaken payment (Kelly v Solari)
  • Estoppel? (all or nothing) relies on statement or representation inducing conduct and detrimentally relies due to material change in circumstances (R.E. Jones v Waring)
    • SCC: switch from estoppel to change of position (General Dairies)
    • Estoppel perhaps inappropriate for mistaken payment (RBC Dominion Securities)
  • Criminals? change of position not allowed (Garland) but allowed for innocent third parties (Karpnale)
    • Negligence may also preclude change of position
      • Clark v Eckroyd: initiating the mistake bars the change of position defense
      • look for good faith or moral turpitude

 

Benefits Conferred by a Third Party upon the Defendant

(Restatement Third: 48): If a third person makes a payment to the defendant to which (as between claimant and defendant) the claimant has a better legal or equitable right, the claimant is entitled to restitution from the defendant as necessary to prevent unjust enrichment.

Test? Consideration/bona fide purchaser? Change of position? Breach of fiduciary duty? Constructive notice? (Citadel General Assurance v Lloyds Bank: third party must not be participant to the breach or have knowledge of misconduct)

  • Direct recovery? Allowed in America, not yet established in Canada
    • Argue from English case (Clarke v Shee and Johnson: lottery ticket)
    • Case law suggest physical tracing of money, but this seems too onerous (Re Diplock)
    • Possible equitable subrogation without knowledge requirement
  • Marriage dissolution and insurance? good recovery (Moore v Sweet: insurance goes into the wrong hands)
    • Pettkus analysis fails: legislation should not be a good juristic reason (Roberts v Martindale)
  • Proprietary interest: courts track title, but no link necessary
  • Tax benefits and consistency with statutory scheme
    • James More & Sons v U of Ottawa: buildings contract and tax refund on building material 
  • Money stolen for gambling: expansion of change of position to include reasonable expectation (Lipkin Gorman v Karpnale; playboy)
    • Third party disgorgement: change of position available (Karpnale)

Necessitous Intervention

Good restitution for services and supplies in intervention (Matheson v Smiley)

Four conditions to assume power: practical impossible to get the principal’s instructions; necessary to act for the principal’s best interest; bona fide concern for the principal; reasonable in the circumstances

  • Preservation of property? less favorably treated: unclear if owner truly requests and whether policy reasons are strong (Nicholson v Chapman; timber carried away by tide)

Restitution from Public Authorities

Kingstreet: Monies paid under ultra vires is recoverable, but unclear on defence; Bastarache J

  • Other monies paid maybe recoverable through mistake or compulsion (Woolwich)
    • Ultra vires contract (PNI)
  • Overpayment of an entitlement like license, service, etc. (Roxborough)
  • Overpayment for tax; “no taxation without representation” (Kingstreet Investments; passing-on not a good defense)
    • Narrow reading by SCC (Elder Advocates of Alberta Society)

Remedies

  • Constructive trust? (Lac Minerals)
    • Give priority in case of bankruptcy; accounts for value accrual; (Soulos) frustration of acquiring specific property; moral quality of the defendant act; impossibility of an accurate evaluation; uniqueness of property
  • Subrogation? fictional (type b subrogation) E.g. Sinclair, illegal contract cases, incapacity
    • Pay money to a defendant, problem getting money to get to a defendant because they paid off debts; payer stepping into the shoes of the payee (Banque Financiere)
  • Tracing? a device to get a remedy; race into the substituted asset or follow assets to a third party (Chase-Manhattan)
    • When does tracing arise? In English law, fiduciary breach and third parties; in America and Canada, any restitution case
    • Mixing limitation (LSUC v TD)

Ineffective Transaction

Illegality Traditional bar on restitution by Lord Mansfield in Holman v Johnson; must separate restitution issue from unenforceability of contract (St John Shipping)McCamus: doesn’t like Birks’ illegality as a defense; shouldn’t the burden be on the plaintiff (Kim v Choi)   Modern Test: (McCamus)
(1) the claimant is a member of the class of persons that the prohibition or policy rendering the agreement unenforceable is designed to protect, or,   -protected class? (Kiriri Cotton Co: Denning: recover illegal “key money” from landlord)   -remedy options? rescind agreement to the effect of restitution (Sidmay) OR allow illegal agreement to stand to protect innocent party  (2) the claimant’s conduct can be excused by the fact that the claimant’s decision to enter the agreement was made under a mistake or as a result of duress, fraud, oppression or other forms of wrongdoing by the other party, or,   -Mistake of fact? (Idle-O Apartments Inc; tenant under illegal lease made improvements)   -Not in pari delicto? fraud, oppression, duress, etc.  (Mohamed v Alaga; Somali translator in illegal fee splitting) -Ontario (Koliniotis; Sharpe: not guilty of sufficient “moral turpitude”) and Austrailia (Equuscorp)  (3) the claimant made a decision to withdraw from the transaction before its illicit object has been achieved, [locus ponenitentiae?] or,   -Patel v Mirza: insider trading; illegality never materialized -What counts as a change of heart? Does it apply to impossibility? (Bigos v Boustead; frustration of contract is not repentance)  (4) although the claimant is a perpetrator of the unlawful conduct, (a) the granting of restitution would not significantly undermine, frustrate, stultify or conflict with the policy underlying the rule or prohibition that renders the transaction illegal, or -St John Shipping v Rank: Devlin; overloaded cargo contrary to Merchant Shipping Act; however, fails to recognize independent restitutionary claim   (b) the withholding of restitutionary relief would constitute a disproportionate sanction for the wrongdoing committed by the claimant. Nelson v Nelson  
Collateral claims? meritorious exceptions on policy grounds (Tinsley; lovers contributing and welfare fraud; Goff: unclean hands, but she doesn’t have to mention illegality in claim)Find an alternative claim: tort (Saunders v Edwards) or property (Bowmakers v Barnet; no need to mention illegality; Denning allows property passage)Imply collateral contracts for illegal contracts Property passage? protects third party as long as policy objective compliant (Singh v Ali; rationale to protect innocent third-party purchasers) Perpetrator: unintentional, trivial, barely guilty? Ponzi scheme? restitution from net winners to net losers (Den Haag Capital v Correia)
Mistake/Misunderstanding and Uncertainty Test: did any party assume the risk? (Re Hall and Hall) Look at facts   Operative mistake, “common fundamental misapprehension” then equitable recission (Goff in Grist v Bailey) Pettkus tripartite analysis is inadequate in address problem of forced investment  
Mistake in assumption (term problem): severable term?Integration; (bad writingres extinction; existence (Strickland v Turner) res sua; ownershipMisunderstanding (formation problem)Unsuccessful acceptance? (Boulton v Jones)Mistake as to the nature of the transaction induced by the other party: non est factum, or mind of the signor did not accompany the signature (Marvco Color Research Ltd v Harris)Mistake of identity induced by the other party? (Lewis v Averay) Agreements which fail for ambiguity: limited to quantum meruit at market price or equitable lien (Raffles v Wichelhaus)    CertaintyCommon law sufficient certainty; equity insufficient certainty because common misapprehension of fact/right, so voidable in equity (Denning in Solle v Butcher: leased flat assuming no rent control)Equity preferred: common mistake in fundamental assumption (The Great Peace; oddly rejects equity; ship 410 miles away instead of 35 miles; narrow and unsatisfying “impossibility” test)Canada prefers equity over common law (Miller Paving v G. Gottardo Construction) Proprietary relief? (in flux) Common law mistake will render property transfer ineffective (injures innocent third-party) equity better protects third-parties (bona fide purchaser)  
Informality Contract for interest in land, but no writing?Deglman: good claim for quantum meruit; however, unenforceable contracts would block implied contract claimsRepudiated contract set a limit on quantum? Look at intention and whether restitution undermines policy (Pavey & Matthews v Paul)Instrumental to maintaining property or expectation to acquire property interest Possible constructive trust (Palachik) Possible restitution without recission (Abella in Rick v Brandsema)    Frustration Doctrine: benefits (not work done) conferred before frustration are recoverable (Parsons v Shea) but obligations after the frustration vanish; prima facie case for recovery, then rebuttable claim for any loss of value from frustration   Fact Trigger: English law gives courts discretion to assign loss (Frustrated Contract Act)Ontario follows thisBC statute splits losses, unless a party agreed to burden risk   Specific Cases: Is it impossibility of performance or change of purpose?
Incapacity (ultra vires contract) Traditional bar (Sinclair v Brougham) on restitution can be overturned on policy grounds; denying restitution would harm protected class (e.g. corporations acting in excess of power given by statute harming shareholders); Canada can arrive at this by unjust enrichment analysis, but this tripartite analysis is not sufficient (flesh out policy rationale) Not sure about monies lent Goff obiter in Westdeutsche: interest rate swap; overruled Sinclair; Somewhat favorable about goods and services PNI v Victoria; ultra vires promise to downzone; recovery of value of improvement, even if subjectively valuelessPossible collateral relief and proprietary relief (property passes under ultra vires contract)  Want of Authority third party acting on behalf of a principal but beyond the scope of their authorityHazlewood:agent induced mortgage invested from client to reduce debt to employer; two innocent partiesDebts: fictional subrogation (Sinclair)Goods and servicesCraven-Ellis: unrequested but necessary; claimed quantum meruit Necessary services, fiduciary obligation and undermining policy of fiduciary Guinness v SaundersIf they give to principal, then good change of position defence
Discharge for Breach failure to perform obligations – of sufficient severity and must be condition rather than warranty – can give rise to render contract void ab initio; innocent party’s alternative way of remedy (expectation damages can be lower or harder to prove) Fact trigger: Requested but unprofitable serves: quantum meruit (Planche v Colburn: abandoned book project) Release fee and price of a right/obligation (Morris-Garner; rights can be characterized as an asset; notional release fees and Wrotham Park damages) Case specific: Contract price as a limit: innocent party completely performed unprofitable contract for supply of goods/services, and defendant refuses to pay contract price, and plaintiff prefers to recover true value in restitutionary claim Party in default? recovery of value absence liquidated damagesForfeiture clause must not be penal; unconscionable that seller retains money (Denning in Stockloser)Partial performance? restitution should be available Possible problem: doctrine of “entire” contracts (value is the lump sum not partial work); doctrine of substantial performance trying to patch restitution problem (Fairbanks Soap Co.)Material benefits retained at the plaintiff’s expense is unjust (Kemp v McWilliams)Contract price as a limit on partial performance (Restatement Third)  Anticipated Contracts and Gifts belief in good contract but actually future contract Check: objective intent, reasonable expectation, requested/beneficial services   Offeror communicates offer with a benefit attachedOfferee confers benefit in anticipation Shared expectation is often sufficient even if terms are vague   Case Specific: Retracting gifts? no restitution If plaintiff withdraws from negotiation, then weaker claim Reasonable expectation of a gift for value: good claim (Rowe v Public Trustee)  

Recovery of Profits of Wrongdoing

Criminal and Quasi Criminal Acts Possible revision on traditional bar: (American) disgorgement for intentional crimes but perhaps not unintentional crimes (Gray v Barr) Alternative: harmful effect, aim with obtaining some benefit (public policy: disincentive of crime) Fact Triggers: Intentional killing and slayer rule (Re Johnson)Extension of slayer rule to other crimes and quasi-crimes; must be linked to crime (Rosenfeldt v Olson: info leading to arrest for dead kids) Profits being claims by victims (Ontario’s Prohibiting Profiting from Recounting Crimes Act)Criminal Code s 738 provides restitution but not disgorgement Case specific: Contractual insurance in slayer case is overcome by policy and implied term (Schobelt v Barber)NCR or proceeds separate from crime should not deny recovery (Dhingra) Breach of contract? Material and opportunistic; legitimate interest test (AG v Blake)Waiver of Tort  elects for a claim in restitution (disgorgement may give more than tort damages); analysis should focus on benefit of wrongdoer than punishment Cannot prove tort damages (Atlantic Lottery)May allow a “leapfrog” claim by indirect purchase (Pro-sys v Microsoft)Measure of recovery? at plaintiff’s expense or general benefit (may lead to windfall)? American answer depends whether intentional or unintentional; Canada may be moving this wayNegligence is questionable Unclear which torts apply: injury? Profit? McCamus: nature of conduct that is discouragedProperty torts? (e.g. trespass): good grounds for disgorgement (Olwell v Nye & Nissan Co)Punitive damages as a placeholder for waiver of tort
Breach of Fiduciary Duties Undertaking and reasonable expectation to act on someone’s interest or loyal conduct (Galambos v Perez: secretary at law firm advancer her own funds) Test? (Hodgkinson v Simms) is there a fiduciary relationship? (looking after property, positions and office, vulnerability)Is there a duty? scope of duty (McLeod and More v Sweezy: agreed to stake minerals, but found other goods and returned later) Is there a breach? (conflict between personal interest and principal’s interest; no profit from info) Is there liability from breach? (e.g. added risk to principal; but not so far as being the insurer for the principal) Fact Trigger: Principal need not suffer loss (Reading v AG)Confidential information and constructive trustee/proprietary restitution (Lac Minerals Ltd)Abuse of Confidence equity provides sui generis relief absent fiduciary or contractual duty; damages are main remedy (disgorge exceptional) Test? (Lac Minerals) information must be of confidence, circumstances generate obligation, and unauthorized use of info to detriment   Agreement never formed but used info during negotiations (Saltman Engineering Co)Paparazzi (Campbell v MGN)Commercial valuable (Coco v Clark)
Compulsion duress vitiates consent by coercing will Practical (economic) compulsion (Knutson v Bourkes)Canadian law is in flux, but mistake of law coupled with compulsion is good recovery (Eadie v Township of Brantford)No disgorgement award yet (Peele v Canada)Threaten property rights or seizure of property (e.g. government) or compulsion by mistake (George (Porky) Jacbons Enterprises)Refusal to Share Spousal Assets on Separation reasonable expectation and the causal connection to SUPLUS WEALTH Fact Trigger: Domestic services and contribution to assets of family enterprise (Peter v Beblow)Joint family venture (mutual effort, economic integration, actual intent, priority of family); remedy may be personal or proprietary (Kerr v Baranow)

 

 

SCC

Test: “an enrichment, a corresponding deprivation and the absence of any juristic reason for the enrichment.” (Dickson in Pettkus)

Test for juristic reason: (McCamus 2-step; Iacobucci in Garland) absence of juristic reasons establishes prima facie case, then the burden moves to the defendant.

  • To show an absence of juristic reason, PLAINTIFF must show there’s no gift, contract, “disposition of law” (i.e. statutory entitlement, like paying certain taxes or expropriating land), and no other “common law, equitable, or statutory reason for the transfer”

To rebut prima facie case, DEFENDANT must then establish reasonable expectation or public policy for why they should keep it.

Freestanding Cause of Action

  • Starting points for unjust enrichment are quasi-contracts and restitution authorities. Beyond this are consistency with principles underlying the authorities.
    • SCC understands it as a gap filler and law reformer, but judges and lawyers understand it as a new rule.
    • Peel v Canada (McLachlin): category approach: does the case fit any previous categories for recovery?
    • Bhasin v Hrynew: existing liabilities are not replaced by the unjust enrichment principle.

Revision

  • Eisenberg’s criteria: satisfy social conduct, stability and exceptions, criticized by academics and judges, new inconsistent doctrine
  • RA Samek (1969): A legal conceptual scheme should be judged based on simplicity and utility
    • three functions: systematizing, developmental, and social

Mechanics

Issue Identify the topic and general doctrine skeleton Frame the issue Traditional bar? Novel or issue in flux? RuleTreatment of issue: jurisdiction and authoritydistinguish issue on the facts Contextualize doctrine and policy rationaleidentify gaps or problematic jurisprudence ApplicationArgument based on facts ambiguities and alternative explanationsProfs views and agreeing jurisprudence quote and explain ConclusionAddress alternative and assess argument strength possible remedies argue both sides  STAY CALM, else MEDITATE   1.preliminary notes and identify issues (refer to short summary and cases)   2.answer the question, use long summary >note gaps and counterarguments   3.final hour: note gaps, read facts again, patch >read out loud and edit

1L Study Material: Criminal Law Summary

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The Principles and Purposes of Sentencing

Criminal law in Canada comes from three main source: the constitution, statutes (primarily the Criminal Code), and cases (which provide a new way of understanding existing rules).

Let’s have a quick look at the fundamental principles of sentencing. Canadians are nice. We have some nice ways of punishing bad guys. Drawing from the Ouimet report, we only want to punish things that are “substantially damaging” or “manifestly evil” to society. Additionally, instead of criminal prohibition, it is often better to use social forces, like legislation relating to mental health or social/economic disparities. Finally, laws shouldn’t give rise to more social and personal damage than it was meant to prevent.

The Law Reform Commission of Canada had similar suggestions. They said punishment is a “blunt and costly instrument,”  and suggested three conditions. First, it must cause harm to people, society, or those needing protection from themselves; second, the harm caused  is serious in nature and degree; third, the harm caused is best dealt through the mechanism of criminal law.

There is some discretion around sentencing, but in R v Arcand we learn that, “Unfettered discretion invites arbitrary decision-making.”

S. 718 “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives…”

First, proportionality is the idea that you get what you deserve.

Whatever punishment you get, it needs to match how bad it was, how responsible you were, and how harmful it is. We see in R v Priest, that the sentence “must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence.” In Priest, a 19-year-old with no priors stole 2,700 worth of goods; he subsequently confessed, returned all goods, and pled guilty. The crown suggested 30-60 days, and the judge gave 1 year; the accused appealed, and the turned it into time served, 5 weeks, and one year probation.

S. 718.1 “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Second, parity is the idea that similar offences serve the same punishment — it’s not fair that I get five years for stealing a cookie while you only get 1 year.

s. 718.2 (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances

Lastly, restraint is the nicest principle of sentencing. It’s the idea that you shouldn’t be deprived of liberties if other sanctions are appropriate — so you probably shouldn’t get hard time for stealing a cookie, but maybe I should get hard time for murdering you for stealing my cookie.

s. 718.2 (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances

Sentencing Indigenous Offenders

Canada had a problem. Parliament tried to address it. Looking at the statistics for incarceration, indigenous people are overrepresented by a long shot. There are many circumstances which are unique to indigenous factors that have to be addressed — things like intergenerational trauma, differing conceptions of law, and the history of colonialism.

718.2 A court that imposes a sentence shall also take into consideration the following principles: […] (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

 R. v. Gladue paved the way for addressing this problem and execute the principles of trying to understand the circumstances of indigenous offenders. In Gladue, a 19-year-old stabbed her boyfriend and was convicted of manslaughter. The court took into account her youth, status as a mother, and quoted a study that argued amount of young native people in persons is equivalent to residential schools. A side note: judges can already take into consideration the circumstances of an individual (this is called “judicial notice”), but additional measures can be set for indigenous offenders. In Gladue, this modification came in the form of a report — now, it’s called a “Gladue Report”. It’s applied for violet crimes and the report is meant to outline the  circumstances around the individual.

For instance, in R. v. Ipeelee, the Gladue report outlined the childhood history of the defendant. “…courts must take judicial notice of such matters as the history of colonialism, displacement, residential schools and how that history continued to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.”

Sentencing Black Offenders

The Gladue Report sparked further reports, like the Cultural Impact Report, which started with R v Borde.  In R v Morris,  a black was pursued, had has foot run over, and found on gun charges. Here, while the said that the distinct colonial history of Indigenous offenders cannot be analogized to Black Canadians, the judge could consider the social context for sentencing decisions.

Sources of Criminal Law

In R v Sedley, we see that there wasn’t a law prohibiting his behavior, but they just charged him on a trumped up charge of “violating the king’s peace.”

Something similar happened in Frey v Fedoruk, where “peeping tom” wasn’t an offense, so they had to let him go; however, parliament added it shortly after. They wrote, “…no one shall be convicted of a crime unless the offence with which he is charged is recognized as such in the provisions of the Criminal Code, or can be established by the authority of some reported case as an offence known to the law. I think that if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded, such declaration should be made by Parliament and not by the Courts.”

Since 1955 (see Section 9 of the Criminal Code) common law isn’t a source of criminal offenses, except contempt of court. There is a worry of the state having too much power to punish the individual.

Statutory Interpretation

The Modern Principle of Statutory Interpretation, taken from Rizzo & Rizzo,  states that “… the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

Constitutional Limits

The purposive approach (from Hunter v Southam Inc.). “The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for government action.”

The “double threshold” asks two questions: is it within the scope of power, and is it consistent with the charter?

R v Malmo-Levine suggested a new principle of justice: the harm principle. This caused a criteria for the principles of justice: it has to be a legal principle, there needs to be a consensus (and not contentious), and it must have sufficient precision to yield a manageable standard.

The current principles of justice for section 7 of the Charter are as follows: vagueness, overbreadth, arbitrariness, and gross disproportionality.

We can look at two examples of this: section 43 of the Criminal Code and

Bedford v Canada.

Presumption of Innocence and Burdens of Proof

In Woolmington v DPP, there was a clarification that in “the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners’ guilt […] If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given be either the prosecution or the prisoner […] the prosecution has not made out the case and the prisoner is entitled to an acquittal.

In Canada, section 11 (d) of the charter made this concrete:

“Any person charged with an offence has the right […] to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

In R v Oakes, there was a case of a charge of an intention to traffic. Once the prosecution proved the possession of narcotics, then the onus was on the defendant to prove they weren’t trafficking. The judge assessed the violation of section 11 (d) and this reverse onus was struck down because it failed to meet section 1.

R v Lifchus established that reasonable doubt is not “an imaginary or frivolous doubt” or “based upon sympathy or prejudice”. It is based on “reason and common sense” and it is logically “derived from evidence or absence of evidence”. In R v Starr, it was established that reasonable doubt is “something less than absolute certainty” but “something more than probable guilt”.

We see the W.(D.) formula in R v S.(J.H.):

“First, if you believe the [exculpatory] evidence of the accused, obviously you must acquit.

Second, if you do not believe [all of] the testimony of the accused but you are left in reasonable doubt by [any part of the accused’s testimony], you must acquit.

Third, even if you are not left in [reasonable] doubt by [any part of the accused’s testimony], you must [consider all] of the evidence which you do accept, [and ask yourself whether that evidence proves] the guilt of the accused [beyond a reasonable doubt].”

The Principle of Charity

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There’s a trope that law school self-selects for people who like to argue. Let’s assume that’s true. Even if you like to argue – or, pedantically, you might call it “debate” – you may not be going about it in the most productive way. If law school is all about education, the way we go about disagreements and conversing about opposing views needs to also be about education. This is where we need The Principle of Charity.

The Principle of Charity concerns the way we go about assessing an argument or particular viewpoint: in essence, before we attack or disagree, we must seek the most charitable interpretation, or looking at it from the most persuasive light. It’s about our methodology and entails suspending our own beliefs while seeking a sympathetic understanding of the idea in question before evaluating it.

This sounds easy, but it is especially difficult when we feel our views are being attacked and we recoil almost instinctively. We ought to avoid our initial reaction to disagree and tolerate any trivial mistakes in order to understand the larger context; the larger aim, here, is a cooperative enterprise at understanding the other’s views and trying to get at the truth together instead of emphasizing contradictions or contentions.

Why is this necessary? For one, communication is imperfect – often, things go wrong. As W.V.O. Quine wrote, “assertions startlingly false on the face of them are likely to turn on hidden differences of languages.”[1] Maybe people fail to convey exactly what they have on their mind, or maybe they do and others interpret it the wrong way. Second, we have various cognitive biases which can create blinds spots in our reasoning. Instead of getting defensive at the possibility of being wrong, we should exercise humility and be more sensitive to the possibility that we misunderstood something. We are fallible and we are generally not very good at getting at the complete truth by ourselves.

We should forget about trying to look right (or avoid being wrong) and actually care more about learning from each other. Does this mean that we shouldn’t be skeptical? No, the idea is to be skeptical in the right way – specifically, jettisoning intellectual arrogance or being overly obtuse.

I want to close with a couple of everyday examples of cognitive mistakes we make to underscore the necessity of intellectual humility:

A driver cuts you off and you label them a jerk. It’s equally possible that they didn’t see you or had a personal emergency. You’ve probably cut someone off before and didn’t label yourself a jerk – perhaps you blamed it on your lack of sleep or the fact that you are late for class.

You wait until the last minute to do your essay and you do really well. Perhaps you might attribute your success to the last-minute pressures, but correlation does not infer causation. You might have done just as well or better if you started your essay earlier.

Going to Google and typing in something like “my views” and “correct” to see what others have to say. This way of selectively searching to confirm your own views is particularly dangerous with modern personalization algorithms that conjure up views matching your own. The resultant echo chamber is the worst sort of partiality and fails to be critical in any meaningful way.  

[1] W. V. O. Quine, Word and Object (Cambridge, Mass: The M. I. T. Press, 1960), 59.