A quarter century ago, I sat in an official examiner’s chambers across Jim Flaherty (still a senior motor vehicle litigation lawyer) as he questioned my client, the surviving mother of an accident victim who had perished at the hands of a drunk driver. He hadn’t exactly over-prepared for the encounter. There were none of the usual probing questions. He entered the room, offered my client his condolences, asked some standard discovery questions, and left. In retrospect, he knew what I had advised my client he should know: that it did not serve his insurer client’s interests to be on the wrong side of justice.
Last year, those who witnessed Flaherty’s response to Toronto Mayor Rob Ford’s disgrace saw a Ford family friend, federal politician and former provincial attorney general grapple with the right thing to do and say when asked to comment. “At the end of the day,” Flaherty said, “he [Ford] has to make his own decision about what he ought to do.” In hindsight, this terse statement was the most measured and meaningful. Ford’s reported response to Flaherty proved a rare moment of genuine contrition from the mayor.
As reported in the Globe and Mail, Justice Colin Westman has joined a chorus of Canadian judges refusing to apply the law, as a protest against the federal government’s criminal sentencing legislation. Whatever the merits of their political views on the subject, the rebellious judges threaten a constitutional showdown which they will not, and should not win. As lawyers and law students, it is important for us to understand why judicial rebellion is not judicial independence. Judicial rebellion harms judicial independence. To see this, one has to understand the source of judicial power.
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.
The Ontario civil litigation bar will now be abuzz for a while with the Supreme Court of Canada’s decision in Hryniak v. Mauldin, released yesterday. There was a clear departure from the Court of Appeal for Ontario’s 2011 decision in the decision in Combined Air Mechanical Services v. Flesch, whose “full appreciation” test has been seen in some quarters as an attempt to preserve the sanctity of the civil trial and a setback to the efficacy of the summary procedure. The judgment of Justice Karakatsanis is steeped in the language of access to justice as the driving force for opening up summary judgment as a means for parties to have their civil disputes adjudicated without the delay and expense of trials. There will be a lot said about the “#A2J” policy behind the decision, and rightly so.
More often than not, referral of a legal problem to lawmakers, or to rules committees for broad consultation, is manifestly preferable to making up procedural law on the fly. In the Ontario Superior Court decision released this week in Moore v. Getahun, 2014 ONSC 237 (CanLII), the trial judge issued an injunction against the practice of litigation counsel reviewing draft reports with expert witnesses.
The relevant paragraphs from the ruling appear at paragraphs 50-52:
 For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.
 If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.
 I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.
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.