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.
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.
Last week, was speaking to a lawyer about a document, when I sensed he hadn’t even read it.
It was in French. ‘How’s your French,’ I asked. ‘Awful,’ he replied. ‘I guess you haven’t read it,’ I continued. ‘I expect it says what you say it says,’ he explained. Alas.
In the final article in the Accidental Mentor, I share my memory of the late George Miller, an extraordinary lawyer. He taught me never to interpret a document without reading it first. Simple enough? How many times have you broken that rule? Scan or click on the QR Code above-right, to read the article.
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La semaine dernier, je parlais à un avocat et je me suis aperçu qu’il n’avait pas lu le document dont nous discutions.
Un document écrit en français. ‘How is your French,’ lui dis-je. ‘Awful,’ dit-il. ‘I guess you haven’t read it,’ j’ai reprit. ‘I expect it says what you say it says,’ il m’a expliqué. Hélas.
Dans l’article finale du Accidental Mentor, je raconte mes souvenirs de George Miller, un avocat hors pair qui m’a appris de ne jamais interpréter un document sans le lire. Ce n’est pas toujours si facile de suivre ce règle. Lisez ou cliquez sur le code QR ci-dessus pour accéder à l’article.
Want a break from reading the Law Society of Upper Canada’s 88-page Appeal Decision in Groia?
Consider it a replay of that old Hume v. Kant debate: To what extent can the passions inform ethical behaviour? Or, to extrapolate Sontag’s famous 1963 NYRB book review contrasting Camus with Sartre, the Groia appeal panel confirms that trial lawyers ought to be good ‘spouses’ and not try to be good ‘lovers.’ The Ideal Husband stands as one of the great essays of the 20th Century, and proves that great thought can be a light read.
Malheureusement, l’arrêt Groia n’est pas encore disponible en français. Même le grand débat entre Camus et Sartre, réduit à un contraste entre un époux et un amant par Susan Sontag, doit être capturé en anglais – mais The Ideal Husband est une bonne lecture même après 50 ans.