Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | APRIL 1, 2019 7 www.lawtimesnews.com COMMENT BY BILL TRUDELL THIS bencher election is a sig- nificantly important one. A self-regulating profession needs regulators who represent a mix of experience, balance, compas- sion, energy, engagement and a concern for its members. The emphasis on transpar- ency, protection of the public, accountability and punishment with no pardon results in huge costs to individual members. Transparency, however, is too of- ten lacking internally. It is time to review the Proceedings Authori- zation Committee process. PAC is a small group of bench- ers handpicked by the treasurer of the day. Much like a grand jury, if you will, the members meet in a bubble impenetrable by any licensee being investigat- ed or their counsel. They func- tion within a closed system in- formed exclusively by what Law Society of Ontario staff choose to provide. There is no direct ac- countability to Convocation, the profession or the public. PAC receives the results of the LSO's investigation into the alleged misconduct. The memo (PAC memo) upon which it acts is confidential. Licensees never see it. Their deliberations are confidential. Their reasons for a decision to authorize a conduct applica- tion are confidential and not reviewable. There is no record available. Moreover, and of real concern, no one is there tasked to represent and speak for the li- censees whose future is at stake. PAC's powers and impact are enormously important. Attempts to litigate and exam- ine the PAC memo or examine the reasons for a decision to au- thorize have been futile to date. The bylaws prescribe that the PAC process is confidential and the licensee is not a participant in this process. Licensees cannot make sub- missions to PAC as part of its process. The argument is that PAC does not adjudicate. This seems wrong to me. Once an authorization is made, the allegations are pub- lic. They appear on the tribunal website. They can be the topic of conversations in the local Tim Hortons or be exposed in the media. The taint of guilt is al- most assumed. No matter what the result, even if the charges fail, the damage has often been irreparably done. Lending institutions routinely arbitrarily cut off the use of law- yers facing discipline, potentially destroying livelihoods. Licensees accused of misconduct are un- able to hire articling students. There is no legal aid coverage and no funded duty counsel, so financial ruin is potentially real. A finding against a licensee, no matter how young or old, lasts forever. There is no par- don in this profession. Does that sound a bit ironic? We can only hope but never know whether politics, person- alities or selective prosecutions were factors in a decision to au- thorize a conduct application. It has historically been per- ceived that PAC is there as a buffer to an overzealous pros- ecution, yet PAC, in some cases, has rejected a recommendation against a conduct application and authorized one. We never know whether PAC received all the information it should have received on behalf of a licensee, especially the self- represented, including those with mental health issues. It makes no sense to rely on the investigative branch to argue a licensee's cause. In this light, the PAC process must come out of the dark. There may be simple solu- tions. There must at least be a record of PAC's reasons for au- thorizing a conduct application. There should be an indepen- dent members representative at PAC proceedings to ensure that the licensees' voice is heard, to probe the memo where appro- priate and, if necessary, assist in providing further information. This is an extension of an ombudsman for the members idea that has been proposed over the years — someone in the law society funded by the law society but not of the law society. Moreover, it is time for a duty counsel system at the tribunal paid for by our regulators. Currently volunteer and pro bono, a group of colleagues as- sist at the Proceeding Manage- ment Conferences, the first ap- pearance after an authorization by the PAC. In certain cases, especially where there may be mental health issues, these volunteer duty coun- sel assist at Pre-Hearing Confer- ences (akin to a judicial pretrial held before a single adjudicator and in camera). The Advocate's Society pro- vides pro bono duty counsel for summary hearings and in some substantive hearings. However, naturally, duty counsel lawyers do not have the benefit of know- ing the entire background of the client and, indeed, the issues that will be raised. A review of the reported tri- bunal proceedings in the On- tario Reports shamefully reveals that too many licensees are un- represented. How can this be in our pro- fession that we do not have a sys- tem in place so that no licensee who cannot afford counsel, who genuinely requires assistance and asks for it, could be left on their own? Financial constraints cannot be rolled out as an excuse for no duty counsel system. Self-represented litigants are often unable to focus and misun- derstand the issues and lengthy expensive hearings result. Early consultation with counsel will surely assist in earlier resolutions, identifying the strengths and weaknesses of the allegations, as- sisting in rehabilitation and ad- dressing risks to the public. Many lawyers and paralegals who face discipline proceedings lack mentors and structures and are often depressed, overworked and in crisis. I suggest that Convocation establish and fund a duty coun- sel office at the law society. A clerk, two lawyers, a paralegal and a senior lawyer in charge could make an incredible differ- ence. Moreover, that same senior lawyer could be the ombudsman or mentor in residence, referred to above. The law society motto has been "Let right prevail." The secretive PAC discipline process and far too many unrep- resented licensees just doesn't seem "right" to me. LT Bill Trudell is a veteran criminal lawyer in Toronto who often repre- sents licensees at the Law Society of Ontario. BY PHILIP GIR ARD O ne of the issues at the heart of the SNC-Lavalin affair has been the re- lationship between the roles of attor- ney general and minister of justice in the Canadian system of cabinet government. In England and some other Common- wealth countries, the attorney general is not a member of the cabinet, although they may attend cabinet meetings. Controversies arising from the union of both offices in one person are by no means new in Canadian legal and politi- cal history. The prime minister has now ap- pointed former deputy prime minister Anne McLellan to examine this ques- tion and report by June 30. She will likely read the following books closely: John Edwards' The Law Officers of the Crown: A Study of the Law Offices of Attorney-General and Solicitor-Gen- eral in England; Jonathan Swainger's The Canadian Department of Justice and the Completion of Confedera- tion,1867-1878; and Paul Romney's Mr Attorney: the Attorney General for Ontario in Court, Cabinet, and Leg- islature, 1791-1899. This column draws on all three to outline the historical roots of current practice. The king's attorney emerged in the 13th century as an official who would protect the Crown's interest in the courts of the land, mainly in civil proceedings. As the vast majority of criminal trials re- lied on private prosecution by the victim or a family member, the attor- ney general traditionally ap- peared only in trials involving high crimes against the state, such as treason or sedition. While the attorney general is not a member of the British cabinet (although they were so between 1912 and 1928), they work very closely with the cabinet, and the extent of the attorney general's indepen- dence from cabinet has given rise to controversies in Britain not that different from the cur- rent one in Canada. It is sometimes for- gotten here that the head of the judiciary, the lord chancellor, is also a member of the British cabinet, which poses its own problems. Some but not all aspects of the office of the attorney general reappeared in the British North American context. Before 1849, the office was in the gift of the im- perial government. The attorney general's role in criminal prosecutions was much more prominent than in Britain, however. Either personally or by a deputy, the attorney general prosecuted most crimes in British North America, but their role as legal advisor to the government tended to be overshadowed by that of the judges, es- pecially the chief justice of a given colony. Only with the decline of the judges' advisory role in the 1830s did that of the attorney general become more promi- nent. But the law officers were still not, as a rule, members of the executive council, did not necessarily hold seats in the Legislature and were not heads of a government "department." The rebellions in Upper and Lower Canada and the move to responsible government in the 1840s completely altered the position of the attorney gen- eral. There were efforts by re- formers in the 1830s to exclude the law officers from the Legis- lature, following the American doctrine of separation of powers, but these did not succeed. Responsible government required that heads of departments be members of the Legislature in order to be accountable to the people. Thus, the attorney general was re- sponsible for the administration of jus- tice — in effect, minister of justice and, thus, a member of cabinet. In this role, they became responsible for the consti- tutionality of public administration in general. Moreover, in the Canadas (though not elsewhere), the premier often took the position for themself. In Upper Canada/Ontario, there were few years between the union in 1841 and 1899 when the premier was not also the attorney general, and Sir John A. Mac- donald continued the tradition at the federal level after 1867. The first Department of Justice Act in 1868 expressly vested the two roles in one person. But how could the attorney general independently ensure the constitutional administration of public affairs while also being a member of the cabinet (or indeed the leader of government)? The suspension of disbelief required by the union of these two roles was tested a number of times. In 1878, the government of Prime Minister Alexander Mackenzie intro- duced a bill drafted by Ontario Premier Edward Blake that would have split the functions of minister of justice and at- torney general and vested them in two persons. The bill passed the Commons but died in the Conservative-dominated Senate. In 2006, the creation of the Pub- lic Prosecution Service of Canada added another layer of insulation between the attorney general and federal prosecu- tions, but it did not otherwise change the minister's dual role. Removing the attor- ney general from cabinet may be a step in the right direction, but the incumbent's relationship to the government of the day will continue to be a tricky one to navi- gate successfully. LT Philip Girard is a legal historian and profes- sor at Osgoode Hall Law School. He is also associate editor at the Osgoode Society for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca. Speaker's Corner Let right prevail Controversy over AG role not new That's History Philip Girard

• Cover