1. Introduction
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.
4.
Conclusion
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.
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