Sunday, August 26, 2018

Bernier Split From Conservatives Looks Like HH Stevens and his Depression Era 'Reconstruction Party'


Maxime Bernier’s recent split with Conservatives evokes memories of Lucien Bouchard and Preston Manning (and others, see here), both of whom formed and led their own Canadian political parties in the 1980s and 90’s.

Lucien Bouchard, a federal cabinet minister in the government of Brian Mulroney left in 1990, after the failure of the Meech Lake Accord.  He formed the Bloc Quebecois, a national party whose main purpose was to facilitate the independence of Quebec.  Despite only winning seats in that province in 1993, and its separatist agenda, the Bloc formed the Official Opposition, see CBC News clip from 1993.

In contrast to Bouchard, Preston Manning worked for years to organize the Reform Party at a grass roots level.  His success, largely in Canada’s West, directly fractured conservatives, who remained divided until the creation of the modern Conservative Party in 2003.

At this point, neither of these examples appears as a good parallel to Bernier’s recent decision to leave the Conservative fold, on the eve of its 2018 National Convention in Halifax last week (see clip of his remarks, here).

Both Bouchard and Manning had definite regional bases, that concentrated their support.  Bouchard also started with a handful of similarly minded MPs, and could count on the sympathies and skills of provincial separatists.  For its part, Reform's success came only after failed electoral attempts and years of work on the ground, see here.

By contrast, Maxime Bernier appears to have few committed partisans, see here.  No elected officials have joined his revolt, and while relatively popular, his support appears spread across the country.  Organizationally, Bernier has not registered his organization, and has yet to even come up with a name for the new party, see commentary on these & similar points by Andrew Coyne and Paul Wells.

Rather than the Bloc or Reform, Bernier’s exit instead brings to mind the experience of HH Stevens, who broke with the old Conservative Party under RB Bennett in 1934 to form the Reconstruction Party.
 
In the midst of the Great Depression, Stevens new Party favoured increased government efforts in economic policy and trade.  Bernier’s dissent from current Conservative policy is, for now, also centred on criticisms of trade and economics, though he favours less government involvement. 

In the election of 1935, Reconstruction ran candidates across the country, winning nine percent of the total vote, a figure comparable to some current estimates of Bernier’s potential impact:




One difference between Bernier and Stevens may turn out to be the disruptive effects of modern communications technologies.

As Donald Trump demonstrates, sometimes on an hourly basis, politicians can leverage these communicative tools in unprecedented ways to bolster their popularity.  Like the American President, Bernier seems apt to use platforms like Twitter, to enhance his profile and express controversial positions,  as his tweets about "extreme multiculturalism" in the last week demonstrate, see here.  As a side note, there may be a further synchronicity with Stevens own past opposition to Asian immigration, see here.

However, the disruptive effects of modern tech also present another potential parallel. The threat of widespread economic revolt was background to Stevens departure from the Conservatives in 1934.

Similarly, in 2018 much of the world also faces basic democratic challenges, though now it's related to the growing influence of social media.  In this sense, the Depression and online communications platforms may well represent comparable existential crises, that underlie past and present political turmoil within the Conservative Party, and more broadly, in my opinion.

Unlike more recent splits by the Bloc and Reform, the Reconstruction Party’s long-term effects were negligible. Stevens returned to the Conservatives in 1938, but was not subsequently re-elected.  In the end, though he made several attempts, including a leadership bid in 1942, he never again held public office.

HH Stevens defiance almost certainly hobbled Bennett’s electoral fortunes in 1935. But given the social catastrophe wrought by the Depression, they were probably trending towards defeat anyways, and few now remember that moment in Canadian history.  In the present day, Bernier runs the risk that like the Reconstruction Party, his break from the Conservative Party will also later be regarded as little more than an historical footnote. 

If, on the other hand, Bernier can organize and administer a new party structure, gain supporters and money, and maintain his profile, probably by leveraging social media, then he might have a chance to re-shape Canadian politics in the longer term.  At this point though, that seems like a big ‘if’.

Friday, January 5, 2018

My 'Top 10' Canadian Legal Ethical/Professional Roundup for 2017

Introduction

     2017 was a busy year for ethics and professionalism in Canadian law.  I've been tracking multiple issues, which touch on basic questions about the law of lawyering, ethical challenges and legal 'independence'.  My roundup below is an effort to canvass some of the most significant developments of the last year.  There are undoubtedly some I've left out, but I think this list provides a good sense of the wide range of topics front and centre in this subject.  This blog is a bit lengthier than usual, because a lot happened.  If last year is any indication of the future, then 2018 also promises continuing developments in this area for both lawyers and judges.

10.  Ryerson Law School Approval

     In December 2017 Ontario's Ryerson University received the green light from the Federation of Law Societies to establish a law school.  The prospective addition of another Canadian University offering law degrees have some concerned about the state of legal services.  Ryerson intends to address these concerns, and set itself apart from other institutions, by focusing on "consumers" of legal services, and by emphasizing technology, entrepreneurship and innovation, see here, at its existing downtown Toronto campus.

     The recent expansion of the number of law schools has also raised concerns about increasing challenges in the legal job market in Canada.  However, proponents of new schools point out that hundreds of students regularly complete the National Accreditation process every year, after receiving their education abroad (a large portion of whom are Canadian).  The continuing demand suggests increased law school enrollment in Canada may not have much effect on the legal marketplace. With Memorial University in Newfoundland and Labrador also poised to develop its own law degree program, see here, this discussion is likely to continue into the future. 

9.  Organizational 'Independence of the Bar'


     Two developments early in 2017 highlighted the distinct professional challenges of lawyers in organizational settings, particularly in the governmental context.  The first was a strike by Quebec government lawyers and notaries.  The work action started in 2016 and stretched into the first part of last year, before these legal professionals were legislated back to work, see here.  One of the main issues was professional recognition comparable to the role of Crown prosecutors in the province, as well as the important work done by them on things like policy and legislative drafting see here.

     The second development was an appeal at the Federal Court in the case involving former Department of Justice lawyer Edgar Schmidt.  One of the claims made in those proceedings was that the government was not being properly informed of the legal risks, where proposed legislation might be found unconstitutional.  The appeal was heard in February 2017.  Since that time, some of the possible concern about legal risk may have been addressed by the federal government's new practice of releasing Charter statements, to explain how draft legislation is constitutionally compliant.  In any event, 11 months after the hearing, a decision has yet to be rendered in the case.

8.  Changes at Ontario's Law Society

     Canada legal service regulators play a distinct role as governmentally authorized, but putatively independent bodies, led largely by lawyers who are elected from within the profession.  Though rooted in a long tradition, some legal regulators are modernizing in an effort to address current and anticipated future challenges.  Two notable changes in Ontario that created some controversy on this front were the elimination of the historical moniker of "Upper Canada", see here, to rename the provincial regulator as the Ontario Law Society in the Fall.  A second was the requirement that Ontario lawyers adopt a 'Statement of Principles' that included the formal acknowledgement of an obligation to promote equality, diversity and inclusion.

     Both developments sparked considerable debate and some opposition, see my blog comment on the name change here, and op-eds on the Statement here, here, and here. The adoption of the Statement of Principles is proving to be a matter of continued consternation, including a future Court challenge initiated by a Lakehead University law professor.  However, after a December meeting of Convocation, it has been adopted as the official policy of the provincial Law Society, see news report here

     These changes may seem relatively minor.  However, I would argue they are a flashpoint because they touch on important current issues at the leading edge of an ongoing evolution of traditional Canadian legal culture.  In law generally for example, the creation of a Statement of values occurred in the context of new scrutiny, and criticism about how the legal profession treats women and racialized minorities, as highlighted in the widely read Globe and Mail story "Black on Bay Street". Other changes, ongoing and anticipated to the legal marketplace, include those posed by globalization, technology, increased emphasis on access to justice, as well as legal practice reforms to better address modern consumer demands, as others have rightly noted in the recent past, see eg here.

7.  Courts Sanctioning Lawyers

     There's been some past ambiguity in Canada about the judicial role in managing lawyers, see e.g. here.  However the 2017 Supreme Court decision in Quebec Director of Criminal and Penal Prosecutions) v Jodoin reinforced Court authority to impose personal costs on criminal defence counsel who engage in a "deliberate abuse of the judicial system" (para 3), and set up some guideposts as to when such penalties might be appropriate. The Jodoin decision has at least a couple of worrisome potential implications, which I highlighted in a past blog on the case.

     Since then other Courts have applied the ruling, extending the proposition outside of the criminal context (for me unexpected), to for example, a family law matter where the lawyers asserted that privilege prevented them from fully answering allegations.  As I noted in my blog, some of the distinctions drawn by the Supreme Court also initially seemed insufficient.  The resulting ambiguity, and further applications of the Jodoin legal test to sanction lawyers in cases like this BC family law matter, suggests the issue of when and how Courts sanction lawyers will continue to be an issue down the road.

6.  Mandatory Legal Education

     Does 'independence' mean that authorities cannot impose compulsory and ongoing training requirements?  The Supreme Court of Canada 2017 decision in Green v Law Society of Manitoba seems to provide a complete answer to that query for lawyers, since the Court upheld the authority of the Manitoba Law Society to impose and track annual professional development hours.  I wrote both a blog on the potential importance of this decision prior to the hearing, and later a commentary on why the case might be also be important for future jurisprudence, dealing with independence of the Bar and lawyer regulation.

     Related to the question of imposed education for lawyers, is whether judges should also be subject to legal and social context training.  This issue became prominent following the Canadian Judicial Council recommendation last March that a judge be removed from office, following his conduct in a sexual assault matter over which he presided.  In that case, Justice Robin Camp did not appear to have a full grasp of the applicable legal principles, relied on stereotypical assumptions about the complainant, and made some objectionable comments in the course of the hearing, see news report here

     This judicial disciplinary matter also occurred in the context of a growing recognition that the criminal justice system is failing overall to appropriately address the issue of violence against women, see eg here, particularly in sexual assault matters.  The result has been some proposed legislation that would also impose mandatory legal education on judges.  Though compulsory judicial training may not inappropriately trench on judicial independence, I did raise some concerns with aspects of the proposed legislation in a recent  op-ed, see here.  At this time the legislation remains before the Senate at second reading.

5.  Judicial Discipline and the #judgeinahat

     The judicial discipline process in Canada has been the subject of debate in Canada at least as far back as the Judicial Inquiry into Judge Leo Landreville back in the 1960s, see eg here.  The federal government later established the Canadian Judicial Council to oversee judicial discipline investigations in 1971.  Neither before nor since though has any federal judge has ever fully activated the constitutionally recognized removal method of an address before Parliament.  This could be an indicator that the system works pretty well in its early stages.  However, several high profile judicial discipline cases in the last few years have left some questioning the efficacy of the system, see eg here, and has led to some changes in judicial complaint procedures at the federal level, see eg here.

     One of the most notable judicial discipline matters in 2017 occurred at Ontario's provincial Court, when Justice Bernd Zabel wore a "Make America Great Again" cap into Court proceedings.  The result was a hearing into his conduct that garnered international attention, its own Twitter hashtag #judgeinahat, and raised broader issues about the judiciary, their traditional distance from politics and the separation of powers, see eg, blog discussion here.  In September Justice Zabel was sanctioned in a decision by the provincial Judicial Council for his behaviour, which he claimed was intended to be a joke, and suspended from his duties for thirty days. 

4.  Judicial Appointments and the Chief Justice

     In addition to judicial education and discipline, the question of judicial appointments also garnered some attention in 2017.  After a slow start in filling vacancies, the federal government introduced a modified process for appointments, that provides, inter alia, for a focus on diversity and the release of portions of candidate applications.  Recent stressors on Court system, such as the imposition of new timelines in criminal matters resulting from the Supreme Court decision in R v Jordan, have led to calls for increases to the federal judicial complement across the country, see eg here.  Such calls are not new, see eg news report here from 2004, and likely reflect some continued strain in the legal system as between judges and the political branches of government. In one form or another, this tension will likely continue to manifest into the near future, see eg, the current dispute in New Brunswick, here.

     Given the resignation of Chief Justice McLachlin from the highest Court, the question of the appointment of a new Supreme Court judge, and Chief Justice was also in the news.  Here, hopes that the first Supreme Court aboriginal judge would be appointed, see here, were not realized.  However, the elevation of Sheilah Martin, an eminently accomplished and "extraordinary jurist" from Alberta, reassured many about the continuing high quality of the Canadian judiciary.  On this front there was also speculation about who would be tabbed to lead the Supreme Court.  In the end, the federal government elevated Justice Richard Wagner to the Chief Justiceship in December, following an informal tradition of alternation between French and English top judges, see here.

3.  New 'Ghomeshi Rules' in Criminal Proceedings

     Bill C-51 represents an anticipated change to criminal law proceedings that some are saying will fundamentally alter the role of criminal defence counsel in sexual assault matters.  The traditional position is that the defence, unlike the Crown, has no obligation to disclose evidence in advance (I wrote about another aspect of this in 2016, see here).  However, recent legislative changes in Bill C-51, if passed, will impose an obligation to receive Court approval in advance to introduce certain evidence in sexual assault matters, potentially revealing the defence theory of the case and litigation strategy.  The proposed legislation is widely seen as responding to the high profile criminal proceedings in 2016, where defence counsel introduced evidence of complainant inconsistency, and CBC personality Jian Ghomeshi was ultimately acquitted of sexual assault charges. 

     Critics suggest the new law could serve to "tip off a liar that records exist exposing their lie and give them a chance to come up with an explanation." Despite submissions by many lawyers about the risks inherent in the legislation,  the government released a Charter statement defending the Bill's constitutionality, and the Bill has proceeded through the legislative process with few amendments.  As of December 12, Bill C-51 remains at second reading in the Senate.

2.  'Civility' at the Supreme Court

     Though concerns about it may "wax and wane", 'civility' for Canadian lawyers was again in the news in 2017.  Toronto lawyer Joseph Groia's appeal of his professional conduct case at the Supreme Court of Canada is part of a long saga, whose underlying events reach back to the 1990's, see the Court's case summary here.  Though Groia has been largely unsuccessful up to this point at all levels of appeal, at the hearing in November the Supreme Court judges gave what one commentator described as a "bumpy ride" to regulators in questioning the applicable legal tests to determine 'incivility'.

    I've noted before that I think the case touches on some fundamental aspects of 'independence' for both the Bench and Bar.  It also raises broader issues about the 'public interest' role of regulators, their authority to regulate lawyers relative to judges, and possible limits on the traditional 'zealous advocate' role of counsel to advance client interests.  The decision remains on reserve at the Supreme Court, and is expected to be rendered at some point early in 2018.

1.  Accreditation of Trinity Western University's Law School

     Ryerson University's entry into the legal education market (see #10 above) brackets the 2017 legal case of Trinity Western University's law school, which also involves accreditation. At issue in the proceeding is a 'Community Covenant' that requires students to refrain from intimate relations outside of marriage, which is defined as between a man and a woman.  This requirement has met with scrutiny at several provincial law societies, and in the case of Ontario, rejection of an application for accreditation of TWU's law students, upheld by the Court of Appeal.  

      The significance of the issues in the proceeding warrant its inclusion on any list of important cases from 2017.  For example, the litigation involves the application of Charter rights to a private school, questions about freedom of religion, discrimination on the basis of sexual orientation,  legal education, regulation and individual and institutional aspects of independence of the Bar.  However, this case became even more notable last summer because of the controversy surrounding the initial decision to preclude some interveners, followed by a change in that decision by the Chief judge, that I and others questioned., see eg, here, here, and here. These events, and a later media interview by then Justice Wagner, left many puzzled by the Supreme Court's actions and earning it the #1 ranking on my roundup.

     In any event, the matter made its way to the Supreme Court in late November, with the inclusion of additional interveners ensuring that "all voices could be heard", and a decision in the case is also expected at some point in 2018.

Conclusion

     In my opinion, the rich buffet of sometimes daily developments makes legal ethics and professionalism an engaging study.  As may be apparent from the examples above, another of its attractions is that many questions raised cross traditional legal subject areas, which each have their own specific ethical and professional challenges  As I noted at the beginning, there were lots of other cases, events and emerging trends that could have been included, but I just did not have the space.  Nonetheless, I hope this roundup of issues provides some broad perspective on Canadian developments, and gives a few hints as to some things that might emerge as important in 2018. Happy New Year!    

Saturday, November 11, 2017

Remembering Canada's 'Premature Anti-Fascists' in the Spanish Civil War

     A recurrent theme in our law and politics is state concern about individual citizens going overseas to fight in foreign wars, see here.  Though present concerns focus on the radicalization of potential terrorists, even prior to Confederation, Canadians regularly participated in external conflicts.

     One of the best examples of Canadians fighting abroad was Calixa LavallĂ©e, who penned 'O Canada' (with its own "Strange History" ), and who also fought and shed blood for the Union side in the American Civil War, see here. What to do about these individuals has presented an ongoing legal problem for the state, as discussed by Craig Forcese in his 2014 blog, here.

     While many Canadians have participated in foreign wars before and since, see here, one of the least remembered conflicts is the Spanish Civil War. The war started in 1936, after portions of that country's military, dubbed the 'Nationalists', rebelled against the election of a left-leaning government popularly known as the 'Republican' or 'Loyalist' side. As has often been the case, the conflict on the Iberian peninsula appealed to many who saw a chance to fight for a cause. 

      The Spanish Civil War was no different.

      Almost 40,000 volunteers formed an 'International Brigade' of soldiers from countries around the world, including the USA and Canada, who travelled to defend the elected government against the rising fascist menace.  However, suspicious of their political motivations (many were communists), Mackenzie King's Liberal government passed the Foreign Enlistment Act in 1937, designed to criminalize the involvement of Canadian "Renegades" who wanted to fight (a version of which remains on the books, see here).

     Despite this, the Spanish Civil War of 1936 - 1939 attracted more than 1600 Canadian recruits, mostly men, but a few women too - see "My God, Are They Sending Women?"  Canadians formed their own unit, the Mackenzie-Papinou Battalion, (the 'Mac-Paps'), named in commemoration of the leaders of the Rebellion of 1837, who had revolted a hundred years earlier. Almost half of the Mac-Paps ultimately lost their lives in the fight, more casualties than were experienced in the officially sanctioned conflict in Korea a few years later.

     Some combatants, like Canadian Dr. Norman Bethune, became famous around the world.  But many, like George Hill, remained relatively unknown, and until very recently, not well recognized for their time in combat.  Born in 1908, my Uncle George was my maternal grandmother's younger brother.

My great-Uncle George Hill, identified in his POW records as 'communist'
      I had the privilege of meeting him in person once in the 1970s, and have been lucky enough to find some records of his experience in Spain in the 1930's at an excellent site established with funding support from Canada's Social Sciences, Humanities and Research Council, see here.  Given the high mortality rates, my Uncle was lucky to survive, especially so since he was captured in 1938 (on the 1st, April Fool's Day) and held as a Prisoner of War for 10 months. 

      At some point he took the time to write a testimonial about his time in captivity.   In his own handwriting, he tells an extra-ordinary tale of survival at the hands of the Nationalists, who regularly beat the imprisoned men with sticks, in terrible conditions.  He notes, for example, eight of the international prisoners held by the Spanish died for lack of care in the "concentration camp" where they were kept, at San Pedro de Cardena. All were regularly subjected to interrogation by the Nazi German allies of the Spanish fascist regime.  At one point George writes, "yes! It was the Gestapo", as if to dispel any doubt as to the identity of the foe that would shortly menace the whole world.  His entire account is available online, see here.

     Released in a prisoner exchange in 1939, he ended his narrative with a cautionary warning that, within months, proved all too prescient, "they have left an impression on my mind & anything connected with fascism will always be my bitterest enemy."

Battallion poster for Canada's contribution to the Spanish 'International Brigade'
     2017 marks the 80th anniversary of the creation of the Mac-Paps, though I've seen little to mark this important date. As I've noted before, Canadian history unfortunately often seems subject to political sensibilities, see here.  In this case, when the soldiers returned from Europe in 1939, Spanish veterans were distrusted, and watched by the RCMP who deemed them, in language I'm sure George Orwell (who wrote his own account of the war - see here) would have appreciated, as "premature anti-fascists."

      Not much changed for over 60 years.

      Though the veterans of the Spanish War sought recognition for decades, see here, Canadian governments consistently refused to acknowledge these soldiers.  In 2001, Canadian veterans of the Spanish Civil War got a national monument in the nation's capital, though as reported in this CBC clip, it had to be paid for by private donations. One of the very last Canadian veterans of the war, Jules Paivio died in 2013,  see here.   Shortly before his death, the Canadian War Museum in Ottawa finally opened an exhibit that, for the first time, portrayed Canadian involvement in Spain in the 1930s, see here

      For his part, when George Hill made it back to Canada he moved to British Columbia, married and raised a family.  Though I don't recall much from my meeting with him in Vancouver the 1970's, I never forgot the story of how he had fought in Spain and was glad to recently find some of his war records online. Though criminalized by their own government, the men and women who went to fight in the 1930's responded, in many cases with their lives, to a danger that proved all too real with the start of World War II.  One can't help wondering how different things might have been if the world had heeded their warnings.

     On Remembrance Day in 2017, I will give a moment of silence to think of all those who have fought and fallen, but this year I will also include a special prayer for the many Canadian veterans of the Spanish Civil War.  In my opinion, so should we all.




Monday, October 9, 2017

It's Not That Simple, So Find Your Own Wisdom*


"It's actually quite simple. Follow your dreams.” – Justice Ian Binnie
Today is Canadian Thanksgiving, so the weekend has me feeling a little introspective.  Unlike most of my posts about politics and law, this blog is more of an informal reflection - based on my personal experience in life.  If that’s in any way off-putting, you should probably stop reading now.

Fall brings many things, including what I think of as ‘student advice’ season.  Some of it is helpful, see here.  Some seems a little off kilter, see eg here.  Other advice, like the recent message to new law students from former Supreme Court judge Ian Binnie quoted above, may not be as simple as it sounds.

When people ask I sometimes say, “I’ve always wanted to be a lawyer”.  The truth is a little more complicated.

My two earliest dreams involved stars.  I first wanted to be an actor.  The shy, youngest member of a family of five, the stage let me put on a mask.  As ‘Linus’ in my middle school production of “You’re a Good Man Charlie Brown”, I got to make jokes, sing and dance. No one ignored me or yelled to ‘be quiet’ or ‘settle down’. When people instead laughed and applauded, I thought I had found my niche.
My backup plan was to study space. 
A fan of the original Star Trek, back then it seemed like the show’s fictional premise of a bold intergalactic future was coming to life. In 1977 I joined millions amazed by pictures of the surface of an alien world, sent back by the Mars Voyager.  I got a telescope one Christmas and figured I was set.  If acting didn’t pan out, I’d be an astronomer.
On several occasions I shared these childish ambitions with my late father.  His practical response was cautionary, warning that neither acting nor science would make much money and might require a lot of education. A child of the Depression, I suspect he feared economic stress and knew personally the grief of an entire generation’s unrealized dreams.
Later I liked to joke his attitude could be summed up as: "less learnin, more earnin."
I also enjoyed reading and wanted to write.  I later contributed to some school publications, but didn’t think my skills were good enough.  In any event I had no idea how to make ends meet with only a pen.
So I took my father’s admonition to heart.  My ‘part-time’ high school jobs often saw me spending 25 to 35 hours a week as a busboy and a hardware sales clerk at Canadian Tire.  I once worked with a builder who had me digging out a basement by hand with a shovel for an entire summer.  These experiences showed the harsh reality of low skilled labour. 
By the early 1980’s, a severe recession made access to high paying, blue-collar work in short supply, see eg here.  If I was ever going to do more, I thought I had to go to University.
I got the idea to pursue law after an undergraduate experience volunteer tutoring inmates inside Kingston’s 'notorious' federal Penitentiary.  It took a few years to be in a position where I could let that desire take root.  I loved University, but didn’t want to go into more debt.
After my first degree, broke and engaged, I had to find employment.  So I tried my hand briefly in insurance, later as a Child and Youth worker with young offenders and as a teacher (though even there, in high school and college, I taught law - it was a bit of a 'siren song').  It wasn’t until my 30’s that I was in a position to go back to law school.
Sure, sometimes in those years I was following a dream, but more often I was just trying to make a better living. Along the way, some aspirations were achieved, a few abandoned, and new hopes formed.  If experience has taught me one thing, it's that dreams change.
So here's a different opinion.
In his remarks Binnie also said young law students should take care to independently chart their own way, and move on from less than ideal work situations.  He quotes hockey legend Wayne Gretzky with approval, who said that you should always skate to where the puck is going to be.
I agree that everyone should make strategic choices, but sometimes it's also important to stand your ground.
Whatever else the future may hold, make the most of today.  Do what works, but if it doesn't, or it isn't what you wished for, do the best you can.  If you conscientiously address the present with respect, it's a strong message about the integrity of who you will become tomorrow.  
Never forget too, that steady employment and a regular paycheck can buy a lot of freedom to make the life you want.
That doesn’t mean you have to forsake all your ambitions.
I still pursue my earliest hopes, though in ways I never imagined.  Being a lawyer has let me act in many different roles as an advocate, in public policy and (still) in teaching.  My childhood fascination with the planets and stars morphed into a lifelong love of science fiction and physics, which I’ve occasionally even integrated into my writing about the law, see eg here and here.  In spite of my father’s reservations about the practicality of school, a few years ago, I achieved another long-time goal of studying and working in higher education, see eg here.
They might have changed, but I didn't give up on my dreams, and others shouldn't either. But experience tells me people should also be mindful to make room, in law or life, to find their own wisdom.

Mark Twain once quipped that the problem with most free advice is it's usually worth what you paid for it. I’m well aware that sentiment probably applies equally to my own thoughts, as well as to the advice of others, including former Supreme Court judges.  

I also don’t have many followers and I suspect few will have gotten this far.  I’m grateful if you did though, and thankful for the chance to share my reflections.  Happy Holiday to everybody!

*Thomas S. Harrison, Ph.D. is a lawyer and Assistant Professor of law (Adjunct), who still loves the Star Trek and looks forward to one day writing the ‘Great Canadian Novel’.

Sunday, October 1, 2017

What's in a Name? - Facts & Fallacies in the LSUC Debate 2017*

"What's in a name? That which we call a rose
By any other name would smell as sweet."

- Romeo and Juliet (II, ii, 1-2)

Introduction

      The governing body of Ontario's Law Society recently decided to change its name to drop the historical moniker "Upper Canada".  The issue garnered significant media attention, see e.g., here, here and here. Personally I supported the move and anticipated an informed debate about the issue, which I watched by webcast on September 28, 2017.

     It turns out that the discussion was vigorous, but also punctuated by some disconcerting misinformation and rhetoric.  This blog lists and critically comments on some of these points, raised at Convocation.  Given the result, nothing turned on the false, misleading statements of fact and fallacies that I heard.  But many of the statements do highlight some of the myths and conflicting narratives that exist about lawyers and the role of law societies in Canada, which I've been thinking about for the last few years.

My shot from a visit to Osgoode Hall a few weeks ago, at the East Entrance.

1.  The Law Society of Upper Canada predated all other lawyer regulatory bodies (in the Commonwealth).

False:  The Law Society of Upper Canada established in 1797, see here, was one of the first lawyer professional bodies in the world (& well before the creation of the British Commonwealth).  By contrast, the traditional English Inns of the Court have existed for centuries, though they were never authorized by statute, and have always been exclusive bodies for barristers only.

     However, the Law Society, in what has been called Ontario since 1867, was not the first statutorily authorized professional body for lawyers in the British tradition. In England this claim is probably best made by the 'Society of Gentlemen Practisers in the Courts of Law and Equity '. As Philip Girard suggests in his excellent article,** this body was given statutory authority in the 1730's for regulating the solicitors branch of the profession, then went through several iterations to later become known as the Law Society in the 1900's, which still exists today, see here.


Some Society records are held and digitalized by the Cornell Library Archives,
including this image in the public domain.

2.  Law Society 'membership'.

Misleading:  'Membership' is the historic phrase predominantly employed to describe legal advocates subject to Law Society regulation.  To the chagrin of at least some of my colleagues in law, that wording fell into some disuse several years ago.  I suspect the shift in terminology had something to do with the possibility that the term 'membership' might be taken by some to imply a 'private club' kind of mentality, not in keeping with the modern public purposes of legal services regulation.  Though still used, the Law Society more generally now employs the term 'licensees' to describe those it regulates, see the definition in the professional Rules.

     Current 'licensees' in Ontario are arguably members of a broader legal professional group, which has been expanded in Ontario to include lawyers, all barristers and solicitors (and historically attorneys in ON), as well as paralegals, but elsewhere includes notaries (BC and Que). In some jurisdictions it has even been expanded to incorporate recognition of a wide body of additional legal service providers (e.g. England & Wales), see here.

3.  The obligation to consult the 'membership'.

Misleading:  The views of Law Society licensees (see above) are likely an important consideration in any prospective policy change to legal regulation in the province.   However, any such consultation should likely not be considered determinative, since the statutory obligation of Benchers is to act in the 'public interest', especially since the explicit incorporation of this objective in the Law Society Act in Ontario in 2006, see s.4.2 (3).

    On this point, some confusion about the general scope of obligations of law societies may arise from recent and arguably inconsistent jurisprudential characterizations of legal regulators, a point discussed in more detail in my recent paper, see here. Briefly though, one case suggested law societies have an "unqualified" role to manage the profession (see para 108), another that Courts have a complementary authority over lawyer discipline, yet another that Benchers act as elected officials analogous to municipal councillors (see para 21).   As I've described in another previous blog, I think this is all part of the evolution of  the principle of independence of the Bar in Canada, which has been dynamic, so some ambiguity on this point may be understandable given the ongoing changes.

     In any event, I admit to finding parts of this argument disingenuously exasperating.  For example, some asserted the proposed change was both unnecessary and unsubstantial.  This is possibly a fair point, that I discuss in further detail below (under 6).  However, it seemed unnecessarily clever and a little contradictory for some opposed to then later alternately suggest a name change was so consequential that it necessitated further, see here, consultation.

4.  The legal regulator is 'independent' of government.

Misleading:  It really depends on what one means by 'independent'.  I argued in my recent PhD the rule of law likely requires independence of the Bar.  Just as it is for the judiciary, see my recent IRRP comment, lawyer independence in Canada is also conditional and subject to various qualifications.

     Most importantly the institutional independence of lawyers is qualified by the fact that all legal regulators in this country derive legal authority from provincial and territorial statutes (unlike their putative models, the English Inns of the Court).  In a small bit of irony, there was also a contradictory argument posited by some opposed to the motion that, despite its ostensible independence, the Law Society did not actually have power to change its name, since it required provincial government approval to do so.

5.  The Bar has led the emergence of Canada as a 'progressive' state.

Misleading:  This proposition significantly understates the involvement of lawyers, individually and as a group, in events and activities that have sometimes been regressive, illiberal and elitist. 

     Lawyers play an important democratic role, in Canada and elsewhere, see my comment on this in the recent American context here. A more balanced view though acknowledges the connection between what can be called the 'lawyers & liberalism' hypothesis in this country is more tenuous.  I talked about some examples of this lawyer (mis) behaviour, in the context of lawyer involvement in Canadian political scandals, in this previous post.

     Aside from these factual issues, I also heard some arguments that were based on a rhetorical device called the fallacy of reference.  These included:

6.  Changing the name won't solve the 'big' problems in legal services regulation.

Fallacy:  The problem with this proposition is that no one in favour of the motion actually appeared to make it.  This is sometimes referred to as a 'straw man' argument, where a false premise is raised in opposition and then forcefully argued down.   To be fair, I don't think anyone for or against the motion considered it particularly revolutionary.  My understanding is that most who argued in favour thought changing the name, in particular to delete reference to the territory called "Upper Canada" until 1841, was instead a symbolic change signalling the legal regulator's forward looking commitment to diversity and inclusion.

Our horses escaping for a run in the field last winter.
     Variations on this fallacy were that the legal regulator should not waste time with trivialities like a name change (also noted above under 3). Colloquially, this seems reminiscent of the expression about closing the barn door only after the horses have escaped.  To be clear, this is the third time since 1993 this issue has been raised for consideration before the governing body of the profession in the province, as noted in news reports linked above.  On this occasion, by the time Convocation met, resources has already been spent on consultations to study this issue last spring, see here.

7.  Other archaic names aren't troubling, so why should anyone object to "Upper Canada".

Fallacy:  False analogy bolstered by argument ad populum.  This involves deflecting debate on to a superficially related issue, other uses of historical names.  In this case keeping the old name was also justified by the largely anecdotal assertion that preservation of the status quo is either popularly supported, or was of little concern to most.

     First, it's worth noting it's that there is some evidence that other archaic names, terms and phrases do, in fact, bother people, see here.  As a specific example, maybe few are confused about the fact that 'British Columbia' is not British or in Columbia. But there are definitely some who think the name of the Canadian province is a misnomer that should be altered, see here and here

     However, the principal point is that considerations of other historic names are well beyond the authority of Ontario's Law Society.  The regulator had some scope though to address the specific and narrow question it did face.  That is, to what extent was changing the name of the Law Society justified within its statutory mandate to act now in the 'public interest'?

Conclusion

       As I noted at the start, I supported the 2017 motion.  I should also say that for a long time previously, I shared the views of those opposed to a name change.  I was in attendance at the 2012 AGM, for example, and voted to keep the old name for many of the reasons set out well by Ian Holloway, here.  However, in the intervening years my thoughts about this issue shifted. I now believe there is a better argument that the 'Law Society of Upper Canada' is inaccurate, outdated, and not in keeping with the modern purposes of the legal regulator. 

     In the end, the Benchers voted 38 to 11 to abandon "Upper Canada", with the final form of its name to be determined later in the Fall.  On one point at least I still agree with some of those opposed to the name change. Whereas Shakespeare's newly named flower might have smelled the same, the ultimate goal of Ontario's legal regulator is to improve on the original. Ultimately, it's time to turn from symbolic change, to meaningfully enhance access to justice and legal services for all Ontarians. In my opinion, this small name change might help.

*  Dr. Thomas S. Harrison is an Assistant Professor (Adjunct) at Queen's Faculty of Law and a Director of the Canadian Association of Legal Ethics
** See Phillip Girard, “The independence of the Bar in Historical Perspective” in In the Public Interest, The Report and Research Papers of the Law Society of Upper Canada’s Task Force on Rule of Law and Independence of the Bar, (Toronto: Irwin Law Inc, 2007). 

Saturday, September 9, 2017

Law, Star Trek Lawyers, & How We Envision the Future

     Legal precedent has a temporal aspect that makes it inherently both historical and prospective. In the latter sense, while stare decisis relies on the past, it is also an attempt to establish principles that will serve as a future guide.  In this blog, I talk about the connection between law and the future, particularly in light of the recent celebration of Star Trek day on September 8th, as portrayed in a couple of well-known episodes from the show.  

     The program’s treatment of legal issues has attracted scholarly attention in the past, see a 1993 paywalled article here, also described in this press report.  Star Trek provided some great examples of how Gene Rodenberry’s imagined future would still be dealing with basic legal issues.  In celebration of 51 years since the debut of the original series in 1966, the American Bar Association (ABA) also highlighted the connection in this recent humourous post:


     One of the best law episodes in the original series was Court Martial, in season 1.  The story involved an alleged dereliction of duty by Captain Kirk, threatening his Starfleet career.   This episode anticipated numerous legal issues, like the advent of electronic resources, as pointed out in this 2012 blog by Legal Geeks, see here.
     For example, remember all the recent talk about the rise of the robot lawyer?  In fact, Star Trek dealt with the early implications of artificial intelligences more than half a century ago.  In Court Martial, the reliance on computers was significant theme in the plot, where the Enterprise’s captain faced certain conviction on the basis of seemingly incontrovertible electronic evidence.
     The script is also a case study in models of lawyering, and contrasting legal styles.  A highlight is the curmudgeonly character of Samuel P. Cogley played by the late great Elisha Cook Jr.  Though the director was apparently frustrated by Cook’s delivery, the Cogley lawyer has some of the most memorable lines, below, and also seen in this clip:
     “Books, young man, books. Thousands of them. If time wasn't so important, I'd show you something. My library. Thousands of books…. This is where the law is. Not in that homogenized, pasteurized synthesizer. Do you want to know the law? The ancient concepts in their own language? Learn the intent of the  men who wrote them, from Moses to the tribunal of Alpha III? Books.”

     Cook’s character contrasted with that of Lt. Areel Shaw, a senior Starfleet lawyer (pictured in the ABA tweet above). Consistent with the show’s conceit, that Kirk was a 'ladies man', Shaw was a former paramour of the Enterprise Captain.  But that didn’t stop her from bringing him, by the last act, to the brink of a military conviction.
   Most remember that Star Trek had the first televised interracial kiss (on American TV at least), between the characters of Captain Kirk and Lt. Uhura, see the clip here. The Court Martial episode was similarly ground-breaking.

     At the time less than 3 percent of attorneys in the United States were women.  By comparison, a woman would not be appointed as a federal prosecutor until the late 1970’s in Canada, see here.  The appearance of a woman in a position of authority, as a senior JAG lawyer, who comes close to victory, was consequently a daring bit of television for the time.

      The tradition of great Star Trek law episodes continued in the Next Generation with the season 2 episode Measure of a Man. The episode dealt with whether the android character Data had rights.  Its examination of issues both harkened back to the slavery debates provoked by the infamous American Dred Scott decision, and highlighted a growing appreciation in modern times of animal ethics, see e.g. here.  A very good blog about the episode, again by Legal Geeks, is here.

      One of my favourite footnotes to the ‘Data on Trial’ storyline is that it was written by then practicing attorney Melinda Snodgrass.  When her unsolicited script was accepted, she quit her lawyer job and for a time became the executive story consultant for the show.  She is now an accomplished writer, who has recently also collaborated with Game of Thrones author George R.R. Martin.
     There are plenty of other places in the greater Star Trek universe where law and justice have featured prominently as a plot device, see here.    Ultimately, the future orientation of science fiction often makes it a good vehicle for addressing basic legal questions, as others have observed, see e.g. here and here.  (On a Canadian note, Ontario Western University’s law professor Randal Graham has recently published his own creative foray into the genre, see here.) 

      I’ve previously written about the importance of history to legal culture in Canada, see here and here. As I suggested at the start of this blog though, law and the role of precedent are also closely connected to the ways in which we envision the future.  The links to Star Trek highlighted here, but also to science fiction more generally, are built on this connection.  Law is rooted in history, but it looks forward too, so it’s perhaps unsurprising that justice features so prominently in these speculative works.  Hope everyone had a happy #StarTrekDay