A report in the Saskatoon StarPhoenix that the University of Saskatchewan plans to eliminate its law library and integrate the collection with three other campus libraries into the main university library prompted protest from many in the legal academy. One of the requirements set by the Federation of Law Societies of Canada (FLSC) is that a law school maintain a law library (2009 FLSC report pp. 5, 11 and 42).
The argument that many students and practitioners now gain access to legal resources online ignores the importance of the tangible written word on the rule of law. A row of books, even ones that are “out of date,” serve to remind the public, as well as judges and lawyers, that even the common law is engraved in modern versions of stone tablets for all to view, not suspended in an oral tradition guarded by a few oracles.
Four months after Chief Justice Winkler’s retirement, the chair of the Chief Justice of Ontario remains unoccupied. Most chatter on the topic of his replacement has focused on names. Will it be so-and-so from the Court of Appeal? How about an appointment straight from the practising Bar? Will it be a woman or member of a visible minority this time?
In every other walk of life, we don’t fill positions by hiring a star and hoping he or she will do well. Rather, we draw up a job description around the purposes of the organization, and recruit the candidate who can best accomplish those purposes.
The Law Times reported that an Ontario Superior Court Justice is facing a complaint by an oil sands advocacy group to the Canadian Judicial Council for his role in a public mock trial of environmentalist David Suzuki at the Royal Ontario Museum this past November 6. The basis for the complaint is that the judge’s participation in a political event compromised his judicial impartiality. Another judge of the same court had originally agreed to participate, but later withdrew in the face of a similar objection.
Judges have long been criticized for “judicial activism,” especially since the advent of the Canadian Charter of Rights and Freedoms. Whatever one’s view of this subject, it is important to differentiate the judge’s role in representing community values, when interpreting law, from use of the judicial office to support a personal view on a political issue. Judicial power resides in the authority to state what the law is and the limits of how the law can be applied. The easily-understood reason for discouraging judges from partisan politics is that interference with constitutionally valid legislative and executive power generates a perception of bias. It is for this reason that courts, even when they strike down laws or set aside administrative actions as ultra vires, do not formulate amendments or suggest more appropriate courses of actions. A Canadian judge taking the stage in a political event broadcasts a personal opinion outside the context of a properly constituted, pleaded and justiciable dispute. A perception of bias, in turn, diminishes the rule-stating authority which allows the judiciary to function.
The following anecdote illustrates a message that is more difficult to explain: why judges’ self-restraint is also important to lawyers’ function as clients’ trusted advisers and representatives.
In a much-anticipated research paper on training lawyers to be ethical professionals, Shelley M. Kierstead of York University’s Osgoode Hall Law School and University of Toronto’s Erika Abner have published groundbreaking work in “Learning Professionalism in Practice.” How and where do lawyers learn to be professional? What are the modes of learning? Is professional ethics the responsibility of law society regulators, the legal academy, or the profession? Can ethical lawyers bring “swimmers” onto their lifeboat?
The paper, funded by a fellowship grant from the Chief Justice of Ontario’s Advisory Committee on Professionalism (now the OBA Foundation Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism), explores the occupational setting of lawyers as an environment replete with “micro-ethical moments”:
“Mindful practice, which incorporates self-awareness and critical reflection on these micro-ethical moments, is learned through apprenticeship models that allow for on-going modeling, close observation, reflection and feedback. In particular, new learners learn to develop a certain level of comfort with uncertainty – a hallmark of professional practice.”
To review the abstract and paper, click here. For more information regarding the fellowships, visit the OBA Foundation Chief Justice of Ontario Fellowships site.