Law Times

Law Times • November 26, 2018 Page 7 www.lawtimesnews.com Culture of delay is inexcusable BY MATTHEW GOURLAY M ost Canadians' experience of the Peel Region is limited to Pearson International Air- port, where frustrating delays are a fact of life — attributable, in large part, no doubt, to the unforgiving Ca- nadian weather. In the legal community, however, Peel is better known for delays of the man-made variety. On Oct. 18, 1990, the Supreme Court released its decision in R. v. Askov, in which it stayed a conspiracy prosecution originating in the Peel Region. In his ma- jority judgment, Justice Peter Cory noted that Peel had "long been notorious for the inordinate length of time required to obtain a trial date," a situation "said to be caused by lack of facilities." In the after- math of Askov, about 50,000 charges in Ontario alone were stayed for unreason- able delay. When a new Brampton court- house was finally opened in 2000, it was almost immediately recognized as too small to serve the burgeoning population. Fast-forward 28 years to Nov. 19, 2018. Superior Court Justice Peter Daley, the regional senior justice of the region that includes Brampton, invited reporters to what amounted to a courtroom press conference, during which he denounced the provincial government's inaction in building new courtrooms and office space despite serial promises and false starts. The situation he described is truly a dis- grace: litigants and jurors being shipped off to Kitchener or Guelph in search of available courtroom space; judges shar- ing haphazard, cramped offices; a skeletal six-story add-on looming next door, behind schedule once again, with plans to outfit only the bottom two f loors with actual useable space. Daley reported that the criminal courts, op- erating within the Jordan ceilings, are fully booked for the next 10 months. Civil and family litigants need to wait much longer to have their cases heard. The response of the provincial gov- ernment to all this? Silence punctuated by buck passing. Daley pointedly noted that Ontario Attorney General Caroline Mulroney declined to send a representa- tive to receive his remarks. Then, instead of providing a meaningful response in the form of an actual commitment, Mul- roney's predictable response was to blame the previous government. To me, this whole saga reinforces a familiar truth: When partisan politics engages with the machinery of justice, the results are rarely edifying. Provincial governments quickly learn that spending money on court facilities and legal aid pays meagre political dividends, if any. Substantive law-making at the federal level fares no better. The previous gov- ernment gave us mandatory minimum sentences and tough-on-crime bills with cartoonish titles. The current govern- ment has given us marijuana legalization on the one hand but regressive amend- ments to the sexual assault provisions and the abolition of peremptory challenges on the other. Its promises to undertake a more systematic review of the Harper crimi- nal justice legacy have come to nothing. Reactive moves promising quick, crowd- pleasing fixes remain the or- der of the day at both levels of government. The nuts and bolts are neglected. Not too long ago, substan- tive law reform was to a substantial extent the purview of federal and provincial law reform commissions, whose expertise was taken seriously by the governments of the day. Governments were not bound by a commission's recommendations, of course, but acceding to them often gave governments political cover to make sen- sible, evidence-based reforms that may otherwise have been unpopular. Like- wise, the delicate question of judicial compensation has for many years been determined by independent commis- sions, with the government retaining the final say. Daley's remarks got me thinking: Why can't we take a similar approach to the funding of the judicial infrastructure on which our court system vitally depends? If a non-partisan commission were given the mandate to make public recommenda- tions to the government on expenditures for the judicial infrastructure, couldn't this help change the government's normal political incentive to deprioritize and de- fer needed investment? Following such a commission's recommendations could, ideally, become the path of least political resistance. One might have hoped that repeated pleas from the judges themselves would have had a similar effect. But Dal- ey's press conference notwithstanding, judges' ability to inf luence public opinion is limited by their role. An independent commission could be more visible and less constrained. Of course, implementing such a mechanism would itself take some po- litical initiative. It's always easier to pin the blame on lawyers and litigants for court congestion and delay. The Supreme Court, regrettably, has not been immune from this tendency, most notably in Jor- dan. But the Jordan majority's diagnosis of a "culture of complacency toward de- lay" had always rung hollow for me. I've never actually observed such a culture. In my own experience, parties operating in an adversarial context can usually be counted on to get on with a case as soon as is reasonably feasible — that is, if the system can accommodate them. The real question is whether the government will honour its constitutional obligation to ensure a properly functioning system, in Brampton and elsewhere, and whether we will hold it to account if it does not. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. Experiential learning needed in law schools BY YAVAR HAMEED L ately, we have heard arguments suggesting that there are too many law students graduat- ing and that's why there's an articling crisis. Indeed, that's the justification that the On- tario government gave just this week when it rejected funding for Ryerson's proposed law school. But how could there be too many law students when there are not enough lawyers and when there is an access-to-jus- tice crisis? Here's an idea. Maybe, it's not the number of law students that's out of control. Maybe the problem is the burden faced by new lawyers — skyrocketing tuition fees, creeping licensing fees and crippling debt for new licensees. To this end, I would like to suggest that the way forward is increasingly to move toward placing experiential learn- ing within law schools with a view to getting rid of ar- ticling altogether. By incorporating articling into law schools, we could help solve the articling crisis. We could also be responding to the access-to-justice crisis by helping to educate and train more lawyers capable of responding to chronically underserviced, remote and marginal- ized communities. Interestingly, the ongoing LSO Dialogue on Licens- ing has suggested various options for licensing models/ approaches, but none has sought to either rely upon law schools to provide experiential learning or fold arti- cling into law schools. This notable absence epitomizes the legal academic-professional golden handshake that has orphaned articling to be left to the whim of market forces. At a recent debate at the University of Ottawa re- sponding to the LSO's Dialogue on Licensing where I participated as a discussant, one of the really hot button topics of the afternoon was the suggestion that experi- ential learning could happen within law schools. One law school dean categorically insisted that it was not the mandate of the law school to create practice-ready lawyers. Technically, I agree that the law schools don't have that role currently, but I wonder whether it is the re- sponsibility of law schools — in collaboration with the law society and the private bar — to dedicate them- selves to the task. Here, I have three thoughts for you to consider. Firstly, law schools are already set up for this. Some law schools have arrangements with local clinics, firms and even government departments to provide law stu- dents with experiential learning opportunities that will prepare them for practice. These positions are not that different from articling itself. For example, in my own practice, I frequently take on a law student through the University of Ottawa's "Student Proposed Internship" program through which the student receives course credit. They learn to write factums, prepare arguments, in- teract with clients and witnesses, file documents — any number of things that an articling student would also do. Secondly, you have to wonder why the JD is known as a professional program. Students, invariably, expect to go to law school to become lawyers. Not everyone has such a goal, but it is a reasonable conclusion that a very sizeable proportion of law graduates seek to practise law. However, every single articling student I have su- pervised in the last 13 years has noted that law school did not prepare them for practice. Why call it a pro- fessional program if you don't intend to graduate pro- fessionals? What law deans and others are thinking of already exists — LLMs and PhDs. The purpose of a JD program is to produce practice-ready lawyers. Could we imagine any other professional school making a similar claim — a school of social work, nursing, medi- cine or accounting? Thirdly, by using the law school as a platform for experiential learning, the articling crisis is effectively averted by allowing every law student the possibility of entering the practice of law. Innovative, practice- based models of law schools can be used that help to respond to community needs. I know what you are also thinking: Once the f loodgates are open, every existing lawyer, the billable hour and the future of our profession as we know it will be in peril. Reality check — most people already cannot af- ford high-priced legal services and age-old methods of practice are being technologically phased out. Our challenge is to figure out new innovative solutions that incorporate technology, respond to community needs and enhance public access to affordable and competent legal services. And what about the competency of these newly minted "practice-ready" lawyers from law school? Is the LSO going to be up to its elbows in professionalism complaints? I don't think so. Generally speaking, new lawyers are both cautious and conscientious; certainly much more so than the cases we hear about corrupt seasoned lawyers who deliberately exploit clients after years of practice. Under the current licensing model, students who have passed licensing requirements, including the bar- risters and solicitors examinations, are not practice ready because they have written the exams — they are deemed practice ready. The shared responsibility of law schools and the LSO must be to move away from deeming readiness toward ensuring readiness of new lawyers. The current situation that exists, in my opinion, be- tween law schools and our professional regulator that ensures a profoundly self-interested and shortsighted separation of institutional powers between academic and professional law must give way to a collaborative, fair and relevant training method that seeks to truly prepare new licensees in a transparent, standard and effective way. Articling is a dying institution and it is willful blindness for law school brass to think it is not their problem. LT uYavar Hameed is a human rights lawyer based in Ottawa. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

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