Search

Although the Canadian legal system has many virtues, it has at least one major weakness – its judicial appointments and promotion systems. The paper begins by identifying six key values that need to be considered in order to assess the legitimacy of a judicial appointments process – independence, impartiality, representativeness, transparency, accountability and efficiency. In the following sections, through the use of three case studies of appointments to the Supreme Court of Canada, the superior courts of Nova Scotia and a promotion to the Federal Court of Canada, we demonstrate that Canada has failed to live up to these values. We conclude by suggesting that recent reforms to the judicial appointments processes by the current government are an improvement, but that more radical reforms are essential to enhance public confidence in the integrity of Canada’s judicial appointments and promotion systems.

This article explores the current state of Canadian legal services regulation and changes that are impacting it. The authors argue that the only legitimate purpose for legal services regulation is the protection of the public interest, and this goal is best achieved through risk regulation. The article discusses four roles risk plays in regulation: as an object of, and justification for, regulation, as an organizing principle, and as a measure of accountability. It includes practical examples and comparisons to other jurisdictions and professions. Finally, the authors recognize that substantial changes will be required to shift to a risk regulation regime for legal services, but that such a change is necessary.

Israeli proponents of the enactment of a legislative override often invoke Canada as a model that Israel should follow. Their proposals would allow the Knesset to ‘override’ a decision of the Supreme Court of Israel that strikes down a law on the ground that it violates a Basic Law. Proponents of an Israeli override seek recourse to various types of argument to support their position. This article focuses on one such argument: the use of Canada as a model to support the Israeli argument for enacting an override. It argues that in order to evaluate both the value of adopting the Canadian override and the likelihood of its transplantation to Israel being successful, one needs to acquire a deep understanding of its operation in Canada. The article contains four sections in addition to the introduction. Section 2 briefly explains what ‘the Canadian override’ is and how it came to be. Section 3 analyses the positive attraction of the Canadian override as a constitutional model, and identifies three different models of the Canadian override. Section 4 focuses on the Canadian experience with its override. It explains why Canadians have come to view it in negative terms – the ‘bête noire of Canadian constitutional politics’– because of the manner in which it was adopted and the circumstances in which it was first used. Section 5 concludes with some thoughts on legal transplants, legitimacy and lessons for Israel from the Canadian experience.

Discussions and depictions of lawyers in Canada largely ignore a significant segment of the legal population: government lawyers. Canada is a modern liberal democratic state with a significant public sector employing a large number of lawyers in many public sector settings. Lawyers who work directly for the executive branch – government lawyers – are a special subset of public lawyers. These government lawyers are ‘unique’ in many respects. They do not have paying clients as do private sector lawyers. Their client is ‘the Crown’ – an abstract emanation of the state. This article explains the unique role of government lawyers in Canada as derived from the historic and legislative responsibilities of the Attorney General. It then addresses questions that arise for government lawyers in Canada in public law litigation.

References are the most political of cases, almost always involving high profile public policy issues. Frequently, references are brought to obtain rulings on the relationship between the federal government and the provinces. Less frequently, references involve questions of interbranch relations, that is, between two or more of the executive, legislative, and judicial branches of government. The Senate Reform Reference was one of the rare cases that featured each of these three elements. This article analyzes the Senate Reform Reference on several political levels. First, it situates the reference in terms of megaconstitutional politics, the long-held Canadian practice of attempting to resolve constitutional issues through formal and often high-profile negotiations between the federal and provincial governments. Such interactions have been anathema to the Harper government which has preferred unilateral political action to negotiated political agreement. The article then examines interparty politics or the relationship between the Harper government and the opposition parties during the period of minority government (2006–2011). This is the period during which one would have expected the government to bring a reference because of its inability to obtain support from the other parties in the House of Commons and the Senate for its proposed legislation on the Senate. However, it did not. This leads to an examination of the third issue: intra-party politics or the politics within the governing party, the Conservative Party of Canada. Finally, the article discusses legal politics and how the government of Québec essentially forced the federal government’s hand by bringing its own reference to the Québec Court of Appeal. The overarching framework of interbranch politics—the relationship between the executive, legislative and judicial branches of government—is examined throughout the article., Les renvois sont les arrêts les plus politiques qui soient, car ils impliquent presque toujours des questions d’ordre publique. Les questions dans ces renvois sont souvent posées afin d’obtenir des jugements sur la relation entre les gouvernements provinciaux et fédéral. Ces renvois impliquent aussi, mais moins fréquemment, des questions concernant la relation entre les branches du gouvernement, c’est à dire entre l’exécutif, le législatif et le judiciaire. Le Renvoi relatif à la réforme du Sénat, cependant, est l’une des rares affaires où figurait chacun de ces trois éléments. Cet article entreprend l’analyse du Renvoi relatif à la réforme du Sénat sur plusieurs niveaux politiques. D’abord, l’article met en contexte le renvoi en termes des mégapolitiques constitutionnelles, cette longue tradition canadienne qui tente de résoudre les problèmes constitutionnels à travers des négociations formelles et souvent très médiatisées entre les gouvernements provinciaux et fédéral. Le gouvernement Harper, cependant, a jeté l’anathème sur de telles interactions, préférant les actions politiques unilatérales aux accords politiques négociés. Cet article s’adresse ensuite aux relations entre le gouvernement Harper et les partis d’opposition durant la période de gouvernement minoritaire (2006 à 2011). C’est durant cette période qu’on aurait anticipé une demande de renvoi de la part du gouvernement, puisqu’il ne pouvait obtenir l’appui des autres partis dans la Chambre des communes et dans le Sénat pour son projet de loi sur le Sénat. Mais cela n’a pas été fait. Ceci mène donc à l’étude d’une troisième problématique: la politique interne du parti au pouvoir, en l’espèce le Parti conservateur du Canada. L’article fait enfin l’étude de la politique juridique et comment le gouvernement du Québec a forcé la main du gouvernement en demandant son propre renvoi de la Cour d’appel du Québec. Le cadre général de la politique résultant des relations entre les branches exécutif, législatif et judiciaire est abordé tout au long de l’article.

When I first discovered this book, my initial reaction was: ‘Another book about the crisis in the American legal profession?' Such books have become popular in recent years.11 See e.g. Steven J. Ha...

This chapter explains the constitutional status of the Supreme Court of Canada with attention to the Court’s composition, jurisdiction, and procedure. The chapter discusses the Supreme Court’s 2014 decision in Reference re Supreme Court Act, ss 5 and 6 and considers whether and how that decision limits Parliament’s authority to make changes to the Court. Both the process for appointing Supreme Court of Canada justices and the process for appointing other federal judges to the country’s superior courts are explained. The authors argue that both appointment processes are inconsistent with democratic ideals of transparency and accountability. They examine the emerging scholarly and professional consensus on the importance of institutional diversity on the bench, and conclude that the continuing lack of diversity in the federal judiciary raises legitimate political and constitutional concerns.

The title of this report would seem to be drawn from the pages of a Jane Austen novel. In actual fact, civility is a top issue for the legal profession in Canada. Contrary to popular stereotypes about Canadians being exceedingly polite and bland, Canada apparently has a civility problem. At least the legal profession thinks that lawyers in this country do. The last decade has witnessed the rise of a civility movement within the Canadian legal profession. It has parallels with the movement south of the border which seems to have run its course. In Canada, the civility movement stands at a crossroads with the high profile discipline hearing of a flamboyant lawyer seemingly putting civility itself on trial. The emphasis on civility risks overshadowing the more important issue of access to justice.

Conflict of interest has been a leading issue in the Canadian legal profession over the last three decades, and it shows no sign of abating. No other issue has so consistently and dramatically dominated both the practice of law and its regulation in Canada. This article describes the conceptual and political battles that have been fought over conflicts of interest in Canada during this time. These battles reveal deeper ontological divisions about the practice of law in Canada. The clash over conflicts of interest exposes competing conceptions of what it means to be a lawyer in Canada in the twenty-first century and how the legal profession should be governed. The conflicts of interest debate increasingly centres on the idea of 'lawyer loyalty' - the duty of loyalty owed by lawyers to their clients.

The challenges to the self-regulation of lawyers that have occurred in many jurisdictions around the world have so far escaped Canadian lawyers. This has not been for lack of scandal; rather, as Allan Hutchinson wrote over a decade ago, it has been due in part to lack of a single defining scandal like Watergate in the United States or the crisis of consumer complaints in England and Wales. However, the Canadian legal profession has not been without scandals of its own. Given the thinness of support for self-regulation outside of the legal profession and the lack of political clout of lawyers, Canadian lawyers should be concerned that they may be one scandal away from the loss of self-regulation. Two seemingly unconnected events provide some insight into the Canadian predicament.

This comment reviews the demise of the iconic Canadian Heenan Blaikie which shut its doors in February 2014 after a storied 40 year history. It was one of Canada's leading national law firms and the first one ever to fail. Founded in 1973 in Montreal, Heenan Blaikie quickly established itself as one of the top law firms in Canada and was home to former Prime Ministers, a former Quebec Premier and retired judges of the highest courts including the Supreme Court of Canada. This comment reviews some of the many explanations and speculations for the firm's demise and asks what Heenan's failure means for the future of the Canadian legal profession.

An Internet sex scandal involving Associate Chief Justice Lori Douglas of Canada's Manitoba Court, her husband Alan King and their former client Alan Chapman, is discussed. The incident occurred when Douglas was a partner in a law firm. The ethical issues regarding Douglas's actions as a lawyer, the suitability of her appointment to the Court and the reasons for her possible dismissal from the position are examined.

This article analyzes the transformation in the scholarship of legal ethics that has occurred in Canada over the last decade, and maps out an agenda for future research. The author attributes the recent growth of Canadian legal ethics as an academic discipline to a number of interacting factors: a response to external pressures, initiatives within the legal profession, changes in Canadian legal education, and the emergence of a new cadre of legal ethics scholars. This article chronicles the public history of legal ethics in Canada over the last decade and analyzes the first and second wave of scholarship in the area. It integrates these developments within broader changes in legal education that set the stage for the continued expansion of Canadian legal ethics in the twenty-first century.

This paper analyzes the Supreme Court appointment process over the 10 year period from 2004 through the end of 2013. It conducts a democratic audit of the Supreme Court appointment process and not an evaluation of the judges appointed through this process.The paper has six parts. Part I is an introduction. Part II presents a short history of the Supreme Court appointments process between 2004 and 2013. Part III introduces the concept of a democratic audit and identifies the drivers of change to the appointments process. It argues that prior to 1992 proposed reforms to the Supreme Court amendment process were motivated by concerns about federalism: incorporating a role for the provinces in the appointment process. However, after the failure of the Charlottetown Accord (1992), the motivation changed to concerns about the "democratic deficit" so that reforming the Supreme Court appointment process became part of a democratic reform agenda proposed first by the opposition Reform Party, then by Liberal leader Paul Martin both in his leadership campaign and during his tenure as Prime Minister and finally by the Conservative Party led by Prime Minister Stephen Harper. This part also addresses an issue that did not factor into the reforms: any perceived deficiency in the quality of past appointments or concerns about the legitimacy of the Supreme Court itself. Since 1992, the key factors that were articulated as the basis for changing the appointment process have been (1) transparency; (2) accountability: and (3) public knowledge about the Supreme Court and its judges. These are the factors that I use for evaluation through this democratic audit.In Part IV, I conduct the democratic audit and find that the reforms have largely failed to deliver on the promised transparency and accountability. Conversely, I also conclude that the reforms have been very successful in serving a public education function about the Supreme Court and the work that Supreme Court judges do. Part V offers my recommendations for "reforming the reforms" in order to achieve the goals of transparency and accountability in the appointment process. I argue that the government should publish a detailed protocol to be styled Guide to Appointment of Supreme Court Justices which would set out the qualifications, consultation to be followed, procedure for evaluation, etc. I propose a revamped advisory committee which would operate in a more open and transparent fashion and produce a report on their work. The public hearings of nominees should continue, but only if the Minister of Justice also appears to answer questions about the process and about why the nominee was selected. Finally, the paper ends with a brief conclusion in Part VI.

In Canada, the regulatory focus of law societies has always focused on the people who provide legal services rather than on the vehicles through which legal services may be provided. The traditional model of the delivery of legal services then was the sole lawyer in private practice. This model has survived for over two centuries. However, law firms of all sizes are now omnipresent in the Canadian legal profession. While law firms are ever present in the practice of law, they are peripheral in the regulation of lawyers in Canada. At the very least, this discrepancy presents a question that should be addressed: should law firms be regulated? Law Societies should regulate law firms. They should do so primarily on the basis of ensuring public confidence in self-regulation and respect for the Rule of Law and only secondarily out of concerns regarding public protection. The proper question is not why should law firms be regulated but why do they largely escape Law Society regulation? It is widely recognized that law firms have their own culture. It is contested whether this culture strengthens or weakens ethical conduct of the firm’s constituent lawyers. Resolution of this issue is not necessary for the purposes of my argument. Once it is acknowledged that the law firm is an independent actor exerting significant influence on the practice of law, the burden of justifying why it should be regulated necessarily shifts. The absence of law firm regulation creates a problem of legitimacy for Law Societies mandated to regulate the practice of law in the public interest. This regulatory gap also raises Rule of Law concerns and may threaten public confidence if the public believes that the most powerful groups of lawyers escape regulation. Bar leaders in Canada have ratcheted up the expectations of self-regulation through the strength of their rhetoric and their actions against perceived incursions of self-regulation. As a result, lawyers in Canada have set the bar for what self-regulation is supposed to accomplish at a very high level. Consequently, the failure to regulate law firms may threaten self-regulation of the legal profession in Canada. This paper presents an argument and a blueprint for law firm regulation. It has five parts in addition to this introduction. In Part I, I detail why Canadian law societies should regulate law firms. Part II undertakes a “regulatory audit” of how Law Societies in Canada currently regulate law firms. In this section and in this paper I focus on the Law Society of Upper Canada as the regulator of the largest number of lawyers in Canada as well as the jurisdiction with which I am most familiar. Then I turn to comparative experience in Part III by examining how law firms are regulated in three comparable jurisdictions: the United States, Australia and the United Kingdom. Then in Part IV, I present a suggested template for law firm regulation. Finally, Part V provides a brief conclusion.

This is a Discussion Paper prepared for the Canadian Bar Association. The context for this Discussion Paper is the need to take stock of the state of Solicitor-Client Privilege in Canada in light of developments internationally and at home. There is no single court decision, government action or event that has precipitated the need for reflection but that should not be an invitation for complacency. The Supreme Court of Canada’s jurisprudence is consistent and predictable in strongly protecting Solicitor-Client Privilege (the Privilege). It generally aligns with the positions taken by the Canadian Bar Association (CBA) before the high court. However, the court’s jurisprudence does not provide an adequate framework for addressing the multitude of issues that currently exist and that are likely to arise regarding the Privilege. Moreover, the Canadian approach to the Privilege is in many ways at odds with how the Privilege is treated in other common law jurisdictions. In an increasingly globalized legal world, the time is ripe to identify issues for the Privilege in Canada and begin to start to think about how they should be addressed. This is the raison d’etre of this Discussion Paper.Over the past three decades, Solicitor-Client Privilege in Canada has been elevated from a limited evidentiary privilege into a quasi-constitutional right. Wigmore’s classic definition of the Privilege continues to prevail: “Where legal advice of any kind is sought from a professional legal adviser, in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the privilege be waived.” In a series of cases between 1999 and 2002, the Supreme Court of Canada greatly strengthened the Privilege. It is now best understood as a quasi-constitutional right o communicate in confidence with one’s lawyer which can be invoked in any circumstances. Solicitor-Client Privilege in law and in practice looks very different in other jurisdictions. In a globalized legal world, international pressures will impact on the Privilege in Canada and Canadian clients and lawyers will engage in transnational transactions or litigation where the Privilege will apply differently. Moreover, Canadian courts are likely to consider the law in other jurisdictions either because foreign law will be directly engaged or because of the need to consider persuasive authority in other common law countries to deal with new Privilege issues for which there is a dearth of Canadian authority.

This paper was submitted to the House of Lords Select Committee on the Constitution by invitation to comment on the proposed Fixed-Term Parliaments Act. It addresses only the Canadian experience with fixed election date legislation.As of September 1, 2010, the federal government and eight of the thirteen provinces and territories in Canada have enacted similar fixed-term Parliaments legislation. Such laws are referred to in Canada as “fixed election date” legislation because they generally set a specified date for elections at four year intervals, rather than imposing a limit on the duration of Parliaments as the proposed Fixed-Term Parliaments Act does. All such laws have limited legal force because they explicitly preserve the powers of the Governor General or the Lieutenant-Governor (in the case of the provinces) to dissolve Parliament. Only a constitutional amendment can alter the Governors’ powers.As a further result of the continued constitutional power of the governors over dissolution and the lack of power to alter this through ordinary legislation, fixed election date legislation in Canada is little more than a statement of political intention. This has been demonstrated most clearly in the federal case where the Prime Minister ignored his own fixed-election date legislation which provided that a general election was scheduled for October 2009. Instead, the Prime Minister sought and received an early dissolution from the Governor General in September 2008 for an election the next month. The legality of this course of action was later confirmed by the courts. At this point, the federal fixed election date legislation is widely considered to be a failure.The experience of fixed election date legislation in the provinces and territories has differed from the federal experience, in large part due to the existence of majority governments in those jurisdictions. As of September 1, 2010, six elections have been held under a fixed election date regime. The conventional wisdom is that fixed election date legislation is working in the provinces/territories but has not gotten off the ground at the federal level. However, I believe that this account is too simplistic. A deeper analysis reveals that proponents of fixed election date legislation overpromised and underdelivered. Moreover, even where they appear to be working, fixed election date laws may be contributing to the continuing degradation of the democratic body politic in Canada.Fixed election date legislation grew out a general malaise with Canadian politics in the 1990s captured in a phrase well-known to observers in this country: “democratic deficit.” Legislation was supposed to increase transparency, level the political playing field, improve governance and increase voter turnout. At best at this early juncture, the results are mixed. The legislation has certainly not increased voter turnout nor has it increased public faith in the electoral system. It creates the potential for future clashes between the Governor General and the Prime Minister, and between their provincial counterparts. For those considering fixed-term Parliaments, the Canadian experience with fixed-election dates produces two questions. What is the problem for which fixed-term Parliaments are intended to be the answer? Might there be other problems created by fixed-term Parliaments?

In 1978, Warren Zevon rocketed to the top of the charts with his song "Lawyers, Guns and Money". Lawyers have always been associated with power. This paper explores the different ways that lawyers exercise power in Canadian society. It divides the analysis into three sections: (1) Lawyers' collective exercise of power as a profession; (2) lawyers individual exercise of power through the lawyer-client relationship; and (3) lawyers individual exercise of power through participation in public life.

This article is a chapter in the book Parliamentary Democracy in Crisis which is a collection of essays analyzing the parliamentary crisis in Canada from the end of November 2008 to January 2009. After the October 15, 2008 election returned a minority Parliament led once again by Conservative Prime Minister Stephen Harper, the opposition parties coalesced to form a proposed coalition to defeat the government on a non-confidence vote and govern in its stead. The non-confidence vote was set for December 8, 2008 but on December 4th, the Prime Minister visited the Governor General and made the unusual request to prorogue the new Parliament until the third week of January 2009. After a meeting that lasted over two hours, the Governor General acceded to this request and the crisis was averted. The Prime Minister did not disclose what transpired between him and the Governor General and she did not provide any reasons for her decision. The authors of this article argue that while constitutional convention circumscribes the role of the Governor General, it does not extend to preventing her from justifying her decisions to the public. In a constitutional culture increasingly tied to an 'ethos of justification', we conclude that is not tenable for the Governor General to remain silent in the face of the parliamentary crisis of 2008.

The participation of judges in commissions of inquiry has been an important part of the public policy process in Canada and elsewhere. However, the use of judges for these and other extra-judicial functions is not wholly positive and the other side of the balance must be considered as well. This paper chronicles the dramatic rise of the use of judges by governments for such policy functions, arguing that it has resulted in a "judicialization of politics" of a different sort from the standard conception of that term. The current political culture of independence and accountability has made judicial independence a highly valued political commodity that is frequently in demand by government officials. This paper argues that what public policy makers are seeking is not simply the expertise of judges but also the political capital of judicial independence which has become an increasingly valued political good in Canadian society (and likely in others as well). This paper analyzes and evaluates this trend from the perspective of judicial independence and argues that the unreflective reliance on judges for various extra-judicial functions has the potential to undermine the bedrock principle of judicial independence if it is not better managed by the judiciary in concert with the executive. This paper analyzes two cautionary tales from the use of judicial independence for public policy purposes: the Gomery Inquiry and the controversy over the Chief Justice's involvement in the award of the Order of Canada to abortion activist Dr. Henry Morgentaler. Finally, this paper ends with the argument that taking judicial independence seriously necessitates that judges develop a framework for the consideration of extra-judicial functions and begin to exercise greater discretion in refusing to take on executive functions at times, lest the political currency of judicial independence become devalued over time.

Between 1999 and 2002, the Supreme Court of Canada transformed solicitor-client privilege from a common law right to a constitutional right of the highest order. Over those three years, the Canadian Court rendered five decisions in cases directly involving solicitor-client privilege. At least two more decisions are on the way and others have been staved off as a result of the ascendance of solicitor-client privilege to the upper level of the constitutional pantheon. In effect, in just three short years, solicitor-client privilege has become a "super-constitutional right". The idea of a "super-constitutional right" reflects the reality of the hierarchy of rights that exists under the Canadian Constitution. It also reflects the dynamic nature of the Canadian Constitution where the strength of various constitutional provisions ebb and flow over time. This paper explores the development of solicitor-client privilege into a "super-constitutional” right through an examination of the "Quintology" - the five solicitor-client cases at the Supreme Court of Canada between 1999 and 2002. It also analyzes the ramifications of the ascendance of solicitor-client privilege to "super-constitutional" status.

Equality is an elusive and often divisive concept. The Supreme Court of Canada has struggled with its interpretation, tacking back and forth between periods of unanimity and division it is interpretation of section 15, the equality clause under the Canadian Charter of Rights and Freedoms. The late 1980s was a period of unanimity in the Court's initial attempts to define the right to equality under section 15. However, within a number of years that unanimity broke down as the Court fractured into at least three different approaches to the interpretation of section 15. By 1999, the Court had returned to unanimity in the Law case, setting out a complicated multi-factor contextual analysis conceptually anchored in the idea of human dignity. However, the unanimity of Law proved to be short-lived and by 2002, Law was beginning to rupture.This paper argues for a revised approach to the interpretation of equality under section 15. The authors assert that the interpretation of equality has become overly contextualized under Canada's Charter resulting in two key negative effects. First, the emphasis on context has made interpreting equality more elusive than ever, losing the sort of certainty and predictability that are important elements of the rule of law. Second, Law's penchant for context has essentially eviscerated any role for section 1, the limitations clause under the Canadian Charter. We propose a simplified, less contextual approach to equality that would return the equality analysis to its origins under the Canadian Charter and shift the burden of demonstrating reasonableness of a limitation back to the government under section 1 of the Charter where it belongs.

This article addresses the issue of succession under the Canadian Constitution when the Prime Minister dies in office. No Canadian Prime Minister has died in office since the 19th century. This article addresses the complex interplay of various constitutional conventions and the roles of party leaders and the Governor General and ultimately concludes that the status quo is wanting. The author proposes a political solution to this constitutional problem.