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!    

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