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.
What would Caesar Wright have said? The question ringed in my ears after I walked back to my office this week from Osgoode Hall. It was there that the dean of all Canadian law deans started his career and then departed, in order to found the first modern Canadian law school at the University of Toronto. I had just left one of those hour-long after-lunch discussions in the lawyers’ dining room which could have lasted all afternoon. Our topic: the jurisdiction of Ontario’s Law Society to consider the application of Trinity Western University’s (TWU) application for accreditation of a law school. The more the ghost of Wright haunted my thoughts, I reflected on the wider implication of the TWU Community Covenant beyond the debate over its discriminatory admissions policy. Wright’s reason for leaving Osgoode Hall remains at the core of the controversy over TWU. He would have said: No, this is not the way to start a law school.
A decade from now, after the dust of court challenges has settled, a Canadian law society president near you may be calling to the bar a graduate from the Trinity Western University Faculty of Law (TWU). TWU is a faith-based private college requiring its students to sign a “Community Covenant Agreement” banning “sexual intimacy that violates the sacredness of marriage between a man and a woman.” Considered a thinly veiled exclusion of members of the LGBT community, the document’s previously litigated antecedent required students to refrain from “biblically condemned” conduct, including “homosexual behaviour.” The prospect of law societies conferring licences on TWU graduates frightens and angers many in the legal community.
The outcry represents a broadly-based—although not unanimous—negative reaction to TWU’s application to the Federation of Law Societies of Canada (FLSC) to have its law program accredited for students applying to become lawyers. The TWU contract offends the constitutional and quasi-constitutional Canadian values expressed in our Charter of Rights and Freedoms, Bill of Rights and human rights codes, but those statutes do not reach the academic policies of a private school. The TWU application therefore challenges the resolve of the Canadian bar as the legal sector stumbles to catch up with the rest of society on the diversity file. (Lawyers are far away from being able to claim a moral high ground.)
Not all lawyers oppose the TWU bid for a law school. The dissenting camp falls into two general groups.
The first group express a desire to absent the bar from the debate. They preface their comments saying they disagree with the discriminatory conduct. Their message is that bar regulators are ultra vires of their statutory mandates to refuse to admit TWU graduates to the bar if the graduates (1) are competent to practice law and (2) do not violate the human rights of clients and others once they enter legal practice.
The second group of dissenters argue that a significant sector of higher education in Canada has been founded by religious orders. They say TWU is no different, say, from Trinity College, the Anglican school founded by Bishop Strachan where I studied for my B.A. and next to which I attended law school at the University of Toronto. (Strachan, a Loyalist believer in political influence through education rooted in Church of England doctrine, founded Canada’s other university named Trinity, in 1851, after King’s College was secularized as the University of Toronto.)
What is still missing from the discourse, especially on the side of the majority reaction to TWU’s application for accreditation, is a jurisprudential response to the grounds the university has raised. This is a problem for the majority because lawyers and law societies must uphold the law. If the bar is to debate the issue constructively, its members must do so qua jurists, not as an ad hoc protest party.
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.