Why law societies must act to preserve university law libraries (updated)

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  A row of books, even ones that are “out of date,” serve to remind the public, as well as judges and lawyers, that even the common law is engraved in modern versions of stone tablets for all to view, not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.

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Is belief in law logical?

Many years ago, I agreed to act for an elder of the Celestial Church of Christ, a religious order based in Nigeria.  A member of his congregation had asked him to be a “character reference” on a bank loan.  It turned out to be a guarantee on a sub-prime mortgage.  To make a long story short, my client ended up on the hook for an amount equivalent to twice his annual gross family income, and he had an aggressive creditor after the mortgage company sold the debt on.  By the time he arrived in my office, the congregant had defaulted, the mortgaged property sold at a deficit, and my client’s own family home was in jeopardy.

After hours combing through the paper, I did notice that the plaintiff’s list of productions did not include a notice of assignment of the debt.  I asked for it.  I received the response from the plaintiff’s lawyer that there was no such document.  That was the divine intervention, my Deus ex machina.

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A Very Canadian “Mexican Standoff” of an American Contest between Executive and Judicial Power

Marbury v. Madison is the considered the seminal decision in judicial review of executive and legislative action.  At least, that is what the U.S. courts have subsequently repeated.  In fact, the 1803 decision of a fledgling American high court represented a Mexican standoff between executive and judicial power in which the limits of the U.S. Supreme Court were sharply defined.  Was Marbury a boundary wall it built to assert its jurisdiction, or one behind which it retreated?

One criticism that can be leveled against the Marbury court was that it institutionalized a mechanical, semi-democratic vision of judicial action.  American governments now operate within a constitution which can enable laws forcing Americans to register for health care but cannot allow the government to require them to register assault weapons.  The Supreme Court of the United States effectively claimed title to the country’s basic law instead of recognizing it as a social contract between the state and its citizens – instead of interpreting it as a working document for all three branches of government.  As a result, the concentration of constitutional power in the hands of the judiciary meant the legal history of a powerful nation was determined more by litigation over the intent of revolutionary “Founding Fathers” than by democratic process.

In the current row between Canada’s Prime Minister and the Supreme Court Chief Justice, no one has drawn the comparison with the landmark 1803 decision.  It is about time someone did.  There are some superficial similarities in subject matter.  William Marbury found himself in the middle of an argument over the technicalities of a judicial appointment by an outgoing president.  In the end, the court ruled against the completion of the appointment.  Those wanting a reminder of the details of Marbury can read the excellent synopsis in Wikipedia.

If we suspend for a moment the lawyer’s proclivity to look for analogies or to pick at differences in specific legal issues, we can see in Marbury a case study of a relatively organic formation of the division of powers in the United States in the 19th-century.  The case study allows us to see the plot structure of the current Canadian drama between the government and the Supreme Court with the aid of X-ray vision.
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Judicial Ethics in Real Time: Commentary D.9 to Principle D.3 of Ethical Principles for Judges

This morning, the Chief Justice of Canada responded to a statement from the Prime Minister’s Office that, last summer, she initiated a call to the Minister of Justice regarding the nomination of Justice Marc Nadon.  Media reports have suggested the eruption of a very public battle of statements.  As lawyers, we respect and honour our Chief Justice, and take her at her word.  As I read her office’s release, I wondered: What could have possessed her?

The press release issued by the Chief Justice’s office described the July 31, 2013, interaction with the Minister thus:

On July 31, 2013, the Chief Justice’s office called the Minister of Justice’s office and the Prime Minister’s Chief of Staff, Mr. Novak, to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.

If an issue is worthy of being “flagged” in this manner, there has to have been some recognition that the controversy might end up in litigation if the candidate so “flagged” was then nominated.  In order to assess the significance, if any, of “flagging” an issue, I turned to the code of conduct for judges published by the Canadian Judicial Council (CJC).  Commentary D.9 to Part 6, Principle D.3, of the CJC’s Ethical Principles for Judgesp. 43, states:

D.9 The duties of chief justices and, in some cases, those of other judges having administrative responsibilities will lead to contact and interaction with government officials, particularly the attorneys general, the deputy attorneys general and court services officials.  This is necessary and appropriate, provided the occasions of such interactions are not partisan in nature and the subjects discussed relate to the administration of justice and the courts and not to individual cases. Judges, including chief justices, should take care that they are not perceived as being advisors to those holding political office or to members of the executive.  (underline added)

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Why Ontario’s next Chief Justice must be able to sell Justice

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.

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A lawyer’s civility is Jim Flaherty’s legacy

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.

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Canada’s Marbury v. Madison? Not quite.

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.

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