A Proactive Practitioner’s Guide to Section 11(b) of the Charter

While reading A Proactive Practitioner’s Guide to Section 11(b) of the Charter, I was struck by a parallel between the criminal justice system and the modern corporate legal department. As I read about the "unresolved issues" of delay that continue to plague the Crown, I couldn't help but wonder about our own industry. If judicial efficiency is a constitutional mandate, should a corollary duty exist for in-house counsel, or are their commercial priorities fundamentally distinct?

The Supreme Court’s decision in Jordan established strict time ceilings for justice. It famously rejected "institutional delay," such as a lack of court staff or resources, as a valid excuse for violating an accused's rights (p. 117-119). The post-pandemic reality has only heightened this tension. Just as the authors describe a system struggling with "scheduling issues" and administrative bottlenecks, corporate legal teams face their own unreasonable delays (p. 98-102). The difference is that while the Crown battles for public confidence, we battle for revenue recognition. Like the courts, our stakeholders are no longer accepting "lack of resources" as a justification for stalling the business.

This pressure creates a new ethical imperative. The Law Society of Ontario has adopted the Model Code commentary regarding Technological Competence (Rule 3.1-2). This rule requires lawyers to maintain a reasonable understanding of relevant technologies. While this does not yet explicitly mandate the use of AI, the standard of care is rapidly shifting. AI-driven support transforms the speed of legal assessment, preempting the corporate equivalent of a 'Section 11(b)' delay and ensuring the legal function keeps pace with the business. Failing to utilize such tools risks looking less like a resource constraint and more like a failure of competence.

In the Jordan framework, the Crown bears the burden to justify its timelines (p. 19–20). For the proactive in-house practitioner, AI offers the "administrative resource" necessary to meet that burden. Integrating AI as a layer of rapid support allows us to clear the institutional friction and 'deductible' delays that typically congest the drafting process. This allows us to focus on the substantive, high-risk issues that require human judgment. The goal is measured efficiency: utilizing 'Spec' to delineate the boundaries of 'good enough' and free our resources for higher-value legal assessment.  By adopting the Jordan mindset, we become true proactive practitioners who ensure that neither justice nor business is ever denied.

A Proactive Practitioner's Guide to Section 11(b) of the Charter Kozlowski, Tracy,  2025, Book , 201 pages; 9781487568924 1487568924