Year’s end invites assessment of what has past. For me, that includes reflection on the most significant developments in legal ethics over the year.
As usual, my assessment of significance isn’t one I claim to be objective or right; it is better characterized as, “things that happened in 2015 I thought were especially interesting” (with assistance from Richard Devlin, Adam Dodek, and Amy Salyzyn). Some things drop off the list that could have stayed on it; access to justice remains a crucial and unsolved problem in Canada, but fell off the list because it was more chronic than involving specific developments or discussion, at least this year. Others are on the list for the fourth consecutive year; Trinity Western’s law school was proposed in 2012, remains controversial, and law society decisions in relation to it are before several Canadian courts.
The one thing that constructing this list makes clear, however, is that the ethics and regulation of Canadian lawyers and judges remains an important and fruitful topic for our consideration: there is certainly no shortage of subject-matter.
1. Judges behaving badly
2. Trinity Western University before the courts
3. National competency standard
4. The Supreme Court on money laundering
5. Lawyer advising
6. Truth and Reconciliation Commission
7. Resignation of Quebec’s bâtonnière
8. Regulatory innovation
9. Campaigning in the LSUC election
10. Joe Groia and civility regulation
In August, the Canadian Judicial Council published the new Canadian Judicial Inquires and Investigation By-laws 2015 which creates a new process for the consideration of complaints against judges, and abolishes the role of “independent counsel” to the CJC.
The CJC’s new process is being used to consider the conduct of now Federal Court Trial Division Justice, and former Alberta Provincial Court Judge, Robin Camp, whose conduct of a sexual assault trial in 2014 led to a complaint being filed with the CJC by me, professor Jennifer Koshan (Calgary), professor Elaine Craig (Dalhousie), and professor Jocelyn Downie (Dalhousie) The CJC has struck a review panel to assess Justice Camp’s conduct.
Robin Camp was not the only judge whose conduct was considered by the CJC this year. On Dec. 3, it issued its report in which a majority (with 3 dissenting) did not recommend removal of Judge Michel Déziel for his participation in unlawful financing of a municipal election prior to his appointment. On Nov. 19 the CJC announced that a three-member inquiry committee, with one member dissenting, had recommended the removal of Justice Michel Girouard, even though the committee “could not conclude that the judge had participated in a transaction involving an illicit substance.” Its recommendation was based on its own concerns with the testimony offered by Girouard at the inquiry committee hearing.
And then there were the judges whose conduct didn’t make it as far as the CJC but made the news. In February, a Quebec judge told a woman applying for the return of a seized vehicle that her case could not be heard unless she removed her hijab. And in October, a Halifax judge asked a woman in his courtroom to leave to breast feed her baby.
While some might see these cases as evidence of increased judicial impropriety, I tend not to think so. It is to me more likely that we are simply paying more attention to what judges do, and are less tolerant of some types of judicial behaviour. In either case, however, these issues create serious regulatory challenges for the CJC.
2. Trinity Western University before the courts
At the end of 2014, the status of TWU was that the British Columbia Minister of Advanced Education had revoked consent for its law school, and the law societies of B.C., Ontario, New Brunswick, and Nova Scotia had either declined to approve the admission of its graduates, or had done so only conditionally.
Considering there is or was litigation in at least three provinces, Trinity Western’s case is bound for the Supreme Court. One question that may perplex that court —or at least which perplexes me — is whether the Charter will permit variation between how provincial law societies treat TWU. Does s. 1 permit some provinces to reasonably restrict religious freedom in pursuit of protection of equality rights, while others restrict equality to protect religious freedom? And if so, what would that variability do to the quest for national standards across regulation of the legal profession? Trinity Western continues to raise not just existential constitutional questions, but also challenges for achieving a cohesive national approach to professional regulation.
3. National competency standard
On a related note, the Federation of Law Societies has begun a process of consultation with the provincial law societies to develop a national competency standard for admission to the profession. In August 2015, the National Admissions Standards Project Steering Committee published a document (not available online) seeking to move the provincial law societies toward the development of a national assessment regime which would include written examinations and the assessment of applicants through articling.
The report has been controversial. In October students at UVic initiated a referendum against it.
At this time, however, opposition to the federation’s initiative seems premature. Aspects of the report are concerning. Its reliance of education jargon makes it hard to understand what the FLSC is actually proposing, and some of its discussion hints at a national multiple-choice bar examination, which, while said to be different from the U.S. state bar examinations, sounds a lot like them. The report is, however, aimed at discussion more than concrete proposals, and each provincial law society would have to agree to any proposed change. The process needs to unfold further before it can be reliably critiqued.
In February, the SCC issued its decision on the constitutionality of federal money-laundering legislation in relation to lawyers (Canada (Attorney General) v. Federation of Law Societies of Canada). The court held that, as applied to lawyers, the legislation and regulation violated ss. 7 and 8 of the Charter. The provisions violated s. 8 because providing insufficient protection to solicitor-client privilege, and s. 7 because of the s. 8 issues and also because the provisions imposed duties on lawyers that undermined a lawyer’s commitment to her client’s cause.
While the court’s recognition of the legal significance of a lawyer’s loyalty to her client’s cause is welcome, analytical deficiencies in the decision make its ultimate significance for the regulation of lawyers unclear.
Also in 2015, the SCC issued Guindon v. Canada, which upheld a penalty imposed on Julie Guindon pursuant to s. 163.2 of the Income Tax Act for providing “flawed and misleading” advice to her clients, advice which was “indicative either of complete disregard of the law and whether it was complied with or not or of willful blindness.” The issue at the Supreme Court related to constitutional issues with s. 163.2, but in upholding the severe penalty imposed on Guindon, the court effectively validated a scheme for regulating the quality and content of lawyer advising.
The quality and content of lawyer advising was also before the courts in September 2015, when the Federal Court heard Edgar Schmidt’s request for a declaration that the Department of Justice has not properly advised the minister about when Parliament must be told that proposed legislation is not consistent with the Bill of Rights or the Charter.
The questions of what lawyer advice ought to look like (how it differs from advocacy), and how it ought to be regulated, are complex and, I have argued, ones with which the profession has not sufficiently grappled. The Guindon and Schmidt cases force further consideration of them.
6. Truth and Reconciliation Commission
In June 2015, the Truth and Reconciliation Commission issued 94 calls to action to address the “cultural genocide” created by residential schools. Many of them aim at Canada’s legal system, including its training of lawyers. Recommendation 27 calls upon the Federation of Law Societies of Canada “to ensure that lawyers receive appropriate cultural competency training” in relation to the residential schools, Aboriginal rights, Indigenous law and Aboriginal-Crown relations. Recommendation 28 calls upon law schools to require students to “take a course in Aboriginal law.” The TRC suggests that both will require “skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.”
The calls to action further recommend a variety of changes to the civil and criminal justice systems aimed at reducing barriers to holding the government to account for historical wrongs to aboriginal peoples, ameliorating the significant issues for aboriginal people in Canada’s criminal justice system – as offenders, as accused and as victims – and for the recognition and implementation of Aboriginal justice systems.
In September, Lu Chan Khuong agreed to resign as bâtonnière of the Barreau du Quebec. Her resignation followed a summer of disputes and the filing of lawsuits between Khuong and the Barreau. In July, the Barreau’s board of directors had suspended her because it was revealed that she had been arrested for shoplifting, a matter resolved through a diversion program.
Khuong filed a statement of claim seeking reinstatement, and the Barreau launched a countersuit seeking damages for harm caused to its reputation. Lawyers weighed in publicly on both sides of the issue, with 68.5 per cent of 991 lawyers present at a meeting in August reaffirming their confidence in Khuong.
In September. the Law Society of Upper Canada working group on alternative business structures issued a report advising that it “does not propose to further examine any majority or controlling non-licensee ownership models for traditional law firms in Ontario at this time” but it will continue to explore options for “more limited non-licensee ownership models.”
The Nova Scotia Barristers’ Society is moving towards a new model for regulating lawyers, which is “risk-focused, proactive, principled and proportionate.” This entity regulation will include removing barriers to fee sharing and will require lawyers and legal entities to implement management systems for ethical legal practice.
In November, the Prairie law societies issued a discussion paper in relation to entity regulation, compliance-based regulation and alternative business structures.
These developments are interesting and potentially exciting but also raise questions about how easy it will be to create a truly innovative regulatory structure here. The self-regulatory and provincial nature of the law societies ensures change is slow, uneven and susceptible to interruption. That may not be an entirely bad thing – regulatory change creates risks and only possible rewards – but in an increasingly disrupted legal services market, the status quo also creates risks, ones to which the profession has not yet revealed itself able to respond.
9. Campaigning in the LSUC election
In April, the LSUC had its bencher election. Prior to the election, the Ontario Trial Lawyers’ Association published on its web site a list of benchers who opposed the introduction of alternative business structures, urging its members to vote for those candidates opposed to ABS.
It appears the OTLA campaign had only a limited effect on voting patterns. The campaign brings to the forefront, however, the fundamental tension in the self-regulatory structure of professional governance. On the one hand, in an electoral system it makes perfect sense for voters to promote and vote for benchers based on those benchers’ positions on issues that affect their personal interests.
But on the other hand, the legal mandate of any law society is to act in the public interest, not in the self-interest of lawyers. How do we trust benchers chosen based on the collective expression of lawyer self-interest to discharge that legal mandate?
10. Joe Groia and civility regulation
In the LSUC election Joe Groia was elected as a bencher. In the meantime, however, he continues his challenge to its efforts to discipline him for his conduct of the defence of John Felderhof in the Bre-X matter.
In February, the Divisional Court upheld the LSUC’s imposition of a one-month suspension on Groia, although it articulated a more rigorous approach to the regulation of lawyer incivility than had the LSUC. (Groia v. LSUC).
The Divisional Court’s approach to the regulation of civility is, while still very problematic, the best articulation to date in being both relatively clear and very narrow in scope.
The problem for Groia was the court was not prepared to overturn the law society’s characterization of his conduct as uncivil, even though it is not clear that anything he did or said in the Felderhof trial could reasonably be said to satisfy this high standard. Groia has appealed to the Ontario Court of Appeal, which heard his case this past December.
Alice Woolley is associate dean academic at the Faculty of Law, University of Calgary. This is an edited version of her post that appears on Ablawg.
