My last blog briefly surveyed some recent and ongoing cases that appear to be refining the principle of independence of the Bar in Canada. A further case, Sidney Green v Law Society of Manitoba (Green), will soon be before the Supreme Court and is scheduled for hearing this November 9, 2016. This matter involves a senior lawyer from Manitoba, who is challenging the imposition of mandatory continuing legal education by that province’s Law Society.
I previously also noted that the refinement of ideas about independence for lawyers has a long interrelation with the development of judicial independence. The simultaneity of similar issues, between the bench and the Bar, is also apparent in current developments in Canadian law. In this respect, questions about mandatory legal education for judges is also an aspect of the current Canadian Judicial Council (CJC) Inquiry into the behaviour of Justice Robin Camp.
This blog examines the principle of independence for judges and lawyers in these cases, as it relates to mandatory legal education. As I previously noted in the context of Bar, ‘independence’ has been a dynamic principle in Canadian law. But, based on the consideration of independence in the context of mandatory legal education set out below, I conclude that for both lawyers and judges, it is also subject to limits justified by its broader public purpose.
2. CJC Judicial Inquiry
Justice Robin Camp is a federal judge and the subject of a current Inquiry into his behaviour before the CJC. The issue underlying the Inquiry involves Justice Camp’s behaviour and language in a sexual assault trial over which he presided prior to his federal appointment. The matter has received considerable national attention, eg see here, and raises a host of questions, particularly with regard to the effectiveness of judicial discipline in Canada.
Questions about the effectiveness of judicial discipline in Canada have recently led the federal Minister of Justice to engage in a public consultation about the process of Judicial Inquires and the role of the CJC. See recent news reports and commentary on this consultation, eg here and here.
The current Inquiry into Justice Camp’s conduct has also highlighted the issue of judicial education. One view is that the judge’s impugned behaviour was based in his lack of knowledge and training about sexual assault law. Such positions raise concerns about the extent to which judges should be subject to mandatory legal education and training.
It could be argued, for example, that imposing a requirement of legal education disrespects the principle of individual independence, in the sense that judges are supposed to be free from interference in their adjudicative roles. As suggested in this news article, which also interviews former Supreme Court of Canada Justice Thomas Cromwell, the imposition of mandatory judicial education could be viewed as a "potentially dangerous incursion on judicial independence".
At the same time that questions about discipline and mandatory legal education are under scrutiny in the Camp proceeding, similar concerns in the context of the Bar are also likely to be important in the upcoming Green litigation before the Supreme Court, examined below.
3. Green v Law Society of Manitoba
Mr. Sydney Green is a senior lawyer in Manitoba who was subject to suspension by the provincial Law Society in 2014 because he did not complete a mandatory requirement for annual Continuing Professional Development (CPD). While expressing some support for the idea of lawyer education, see here, Mr. Green objected to both the mandatory nature of the CPD requirement and to the specific authority of the Manitoba Law Society, as well as the process used, to potentially suspend his licence to practice law, and subsequently brought the issue to court.
Undeterred by his loss at the provincial Court of Appeal in 2015, Green sought to appeal the matter to the Supreme Court, which granted leave last December, see here. The factums of the parties, and the intervener Federation of Law Societies of Canada (FLSC), are publicly available at the Supreme Court of Canada website, here. An interesting question to me in this case is why exactly the Supreme Court granted leave to hear this matter.
As set out in R v Hinse (1995), the Court has a wide discretion to grant or deny leave to appeal, that does not necessarily depend on the correctness of the result at the lower court. Typically leave is granted when one of several issues also arises. These include: whether the case raises a novel point of law; a conflict between courts of appeal in different provinces on a similar issue, the interpretation of a statute that exists in several jurisdictions, or; the presence of an important constitutional issue.
However, in this case the authority of Canadian law societies to regulate the profession in the public interest has been recognized for a long time and recently, for example, in the recent Groia decision from the Ontario Court of Appeal, see my previous blog commenting on this case. In addition, the requirement for continuing legal education and CPD has been largely accepted, in most if not all jurisdictions, as an important aspect of lawyer professionalism, eg para 18 of FLSC intervener factum.
Furthermore, even though there might be technical differences in the various provincial and territorial statutes authorizing legal regulators, they have been afforded a wide and generally recognized underlying authority by courts to self-regulate the legal profession, In the past, this has included authority to regulate and to discipline lawyers for matters not specifically set out, as may be an issue in Green, see eg, the Supreme Court's Jabour decision.
However, I do think that this case potentially raises an issue about the status of the principle of independence of the Bar, that as I highlighted in my last blog, is becoming an increasingly important aspect of Canadian legal culture. Here, I think the distinct role of lawyer self-regulation in Canada, and the relationship between the institutional and individual aspects of independence of the Bar is one that is likely to be more fully articulated in this case.
If the old adage that bad facts make bad law is true, then I think there may be some reason to believe that the relatively straightforward nature of the facts underlying the Green matter may provide the Supreme Court an uncontroversial opportunity to lay down some refinements about an important legal and constitutional principle. Such refinements may useful in its consideration of more complex cases in the future dealing with Bar independence and the role of Law Societies.
Concerns about mandatory legal education raised by the Green and Camp proceedings appear to overlap to some extent. Both deal with independent officials operating in the justice system. Positions opposing legal education and CPD suggest a perspective that the mandatory nature of such programs could inappropriately trench on either judicial or lawyer independence. Both cases also raise questions about the role and function of individual independence and its governance through institutions such as the CJC and law societies. In this respect, the question of mandatory continuing legal education for judges and lawyers is one that appears to have a number of similarities.
I think the issue of mandatory legal education in relation to judges and lawyers is one that is also connected by a common purpose. Ongoing professional education can help both judges and lawyers address gaps in knowledge and skills and keep them apprised of current developments in the law. In this respect, mandatory education for judges and CPD for lawyers, would appear to be in the broader public interest, to enhance the effectiveness of the justice system and its individual officials. While possibly limiting autonomy, the qualification on independence would nonetheless be consistent with the conditional nature of the principle in Canada. Comparing the circumstances in the Camp Inquiry and in the Green litigation also provides a further and modern example of the simultaneity between independence issues for lawyers and judges, and the ongoing connection between the two in Canadian legal culture.