After a week in which the Law Society of Ontario moved to repeal a requirement that lawyers and paralegals make an annual private pledge to promote equality, diversity and inclusion (“EDI”), the Bar must now reflect on the root cause of this public policy failure: Asking a privileged group to give up its perch, or even thinking about giving it up in the comfort and privacy of their law offices, is to ask a noble act beyond our ability. Three decades ago, about the time when I was starting in legal practice, American lawyer Daniel Lugo wrote this about the plight…
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The Ethics of Lawyers Recording Conversations
Canadians’ interest in legal ethics continues to remain very high. What, then, are the ethics of a lawyer’s secret recording of a telephone call with a client, including the employees of a client? Rule 7.2-3 of the Ontario Rules of Professional Conduct provides: 7.2-3 A lawyer shall not use any device to record a conversation between the lawyer and a client or another legal practitioner, even if lawful, without first informing the other person of the intention to do so. Chapter XVI, s. 5 of the Canadian Bar Association’s Code of Professional Conduct goes even further by extending the prohibition to conversations with “anyone else”:…
Cabinet Confidentiality: Navigating the Procedural Ins and Outs
What is cabinet confidentiality? How does it restrict what a minister of the Crown can reveal in public discourse? How can a court, tribunal or parliamentary committee compel disclosure, and how can that process be blocked? Cabinet confidentiality is a feature of Canadian constitutional law derived from Part III of the Constitution Act, 1867, in which Executive Power was modeled after the government of the United Kingdom and inherited from the U.K. Crown. U.K. government by cabinet is based on collective responsibility. All ministers, including the prime minister, are responsible for cabinet decisions and the legislative agenda tabled in parliament. Every…
Talking to the Attorney-General about Solicitor-Client Privilege
Out of the blue, solicitor-client privilege is a meme. The subject excites legal ethics nerds but is not recommended dinner-party conversation. Until now. If the public weren’t confused enough by this legal principle, a former Attorney-General hires a retired Supreme Court judge as her legal counsel. The former minister declines comment to reporters on the Hill, invoking solicitor-client privilege. Here is a primer for non-lawyers (and lawyers) on the legal principles at play. Privilege Solicitor-client privilege in Canada is a principle of judge-made law that dates back to the English courts of the 1500’s. The principle developed from the sensible…
Is it time to unshackle law schools from law societies?
On December 10, 2018, the Law Society of Ontario chose to stay the course on its dual streams for lawyer licencing. Apart from a few substantive enhancements such as the requirement for paid internships, a candidate for membership in the legal profess ion must either article under an approved lawyer or pursue an experiential education program called the Law Practice Program. In its report of the decision, the Canadian Lawyer reported that the shortage of internship opportunities is only one problem in the Ontario market for legal services: “By 2025, there are expected to be 29,500 law school graduates but only…
The Myth that Lawyers Believe in Equality, Diversity and Inclusion
In case you missed it, the Law Society of Ontario now requires lawyers to prepare and embrace a ‘Statement of Principles‘ regarding diversity in their practices. I have been critical of the initiative because, at the end of the day, it requires no more than yet another act of lip service to fix real diversity deficits in the senior bar and judiciary of Ontario in relation to the public they serve. At the end of the day, most law firms and public legal institutions already have diversity mission statements and accommodation policies as good as any drawn up by our…
Did Politics Trump Justice Zabel’s Sentence?
Yesterday, the Ontario Judicial Council sentenced Justice Bernd Zabel, a trial judge sitting in Hamilton, to a 30-day suspension without pay for having brought a Donald Trump “Make America Great Again” cap into court the morning after the 2016 U.S. presidential election, and for telling the public assembled in court that he had “voted” for Mr. Trump and that the other judges hadn’t. At his discipline hearing, he testified that he did not actually support Mr. Trump and that the incident was a clumsy attempt at courtroom humour. Justice Zabel admitted the gesture was inappropriate, given the divisive campaign involving the president-elect’s…
Resolving R. v. Jordan linguistically: Why the dissent was right
It was the most significant Supreme Court of Canada decision of 2016, and it continues to dog the justice system. Last July, R. v. Jordan set 18 months as the presumptive ceiling for criminal cases in the provincial courts, and 30 months in superior courts (or cases in provincial courts after a preliminary inquiry). Canadian courts do not have the power to legislate, and these time limits do not exist in the Criminal Code. Rather, the 5-4 majority in Jordan arrived at these ceilings by interpreting s. 11(b) of the Charter of Rights and Freedoms (English / French), which prescribes the right of a person accused…
Why some courts don’t get consent in sex offence trials
Canadian courts have recently come under intense scrutiny over the treatment of complainants in trials of sexual assault offences. From the judicial discipline proceedings against Judge Robin Camp, who asked the assault complainant why she “couldn’t just keep [her] knees together,” and referred to her as “the accused,” to the acquittal of taxi driver Bassam Al-Rawi on the basis that a woman intoxicated to the point of loss of consciousness could give consent, some trial courts seem to have been disregarding the Supreme Court of Canada’s clear ruling in its 2011 decision, R. v. J.A. Since J.A., the law of sexual assault in Canada…
