Law Times

Page 6 June 17, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Embracing reform G iven the slow pace of change to the structure of the legal profession so far, it was good to see the Canadian Bar Association take the issue on with the release of a discussion paper as part of its CBA Legal Futures Initiative last week. Over the coming months, the CBA will consult with the profession on issues ranging from alternative business structures to ethics and regulatory issues and the education of lawyers. The goal is to help the profession change in the face of trends such as globalization, technological advances, liberalization of markets, deregulation, and challenging economic conditions. The CBA's work is necessary given what it identifies as the profession's conservative tendencies. "Because of its relative success in the past, the legal profession in Canada is generally conservative," the discussion paper released last week states. "Psychological studies of lawyers have found that they are generally skeptical, autonomous, and not resilient." As a result, the profession here has lagged behind other jurisdictions that have allowed for reforms such as non-lawyer ownership of law firms. In the meantime, it faces significant pressures, including the fact that the number of lawyers is increasing faster than the general population. The added supply of lawyers would normally be good when it comes to access to legal services, but as the discussion paper notes, many potential clients are turning away from the profession due to cost. A key theme of the discussion paper, then, is the need to look at how lawyers and law firms do business to address those cost pressures and what it calls the latent market for legal services. As such, Fred Headon, CBA vice president and chairman of the Legal Futures Initiative steering committee, is predicting big changes. "We're actively exploring alternative business structures," he says. "I'll boldly predict they're coming." In addition, he notes clients want greater involvement in their legal matters with a view to having greater cost predictability and a consideration of cheaper alternatives. The issues present a big challenge to lawyers faced with a high cost of doing business. Inevitably, the changes would mean significant disruption with some people coming out on the losing end. Nevertheless, Headon insists a bright future lies ahead. "We think there are some great opportunities for the legal profession in all of this," he says. That may be a bit optimistic and the profession is probably late in tackling the issues, but it's good to see the CBA taking them on. Of course, as Headon points out, the profession doesn't really have a choice. "I think it's going to mean a very big change in how we do the work. The risk is to those who don't recognize that." — Glenn Kauth Critique of SCC judges' patriation interventions a house of cards F rédéric Bastien's book La Bataille de Londres has been causing a stir since its recent release with its allegations of back-channel contacts between former Supreme Court chief justice Bora Laskin and justice Willard Estey and the federal and British governments while the court was deliberating over its opinion in the patriation reference. In contrast to the Quebec media, which treats this story as the equivalent of the WikiLeaks scandal with Bastien as Julian Assange, the English media has mostly greeted it with a yawn. No one in the English media so far has challenged the interpretation Bastien puts on the documents he obtained from the British archives. A full critique isn't possible given space limits, but here's a preliminary reaction. Bastien's nationalist perspective drives his analysis and he does so right over the cliff at times. He hates the Charter of Rights and Freedoms, deplores multiculturalism, and fulminates against minority language rights because they affect Quebec's power to limit English education. Bastien is entitled to his views, but they lead him to distort the historical record in bizarre ways. Estey, for example, is charged with having conveyed confidential information to the British government before the Law Times Only one of the charges reference landed in court. (Full against Laskin appears, on the disclosure: I was Estey's clerk That's surface, to have substance. A in 1979-80.) In a conversation History telegram dated July 2, 1981, with British high commisfrom foreign secretary Lord sioner John Ford in October Peter Carrington states that 1980 — before the matter was Laskin had told attorney genin the courts — Estey appareral Sir Michael Havers in conently opined that the legality of fidence that there was a major former prime minister Pierre disagreement among the memTrudeau's unilateral patriation bers of the Supreme Court and resolution would be put into that the decision was unlikely question and that the Supreme Philip Girard to appear before the end of AuCourt would need two months gust. It was extremely unwise to decide it. For Bastien, this was a "warning" to the "imperial govern- for Laskin to speak to anyone about the ment" that the court was going to become case while the judges were still deliberatinvolved in the affair and an impermissible ing. But Lord Carrington stated later in the telegram that this information wasn't to violation of the separation of powers. The trouble is the British government be shared with the Canadian government didn't need a warning that the court might because it was divulged in confidence. It's become involved. As Bastien himself thus hard to see how this indiscretion had shows, the first thing Margaret Thatcher any impact on Canadian affairs. The context to this exchange was that asked when former external affairs minister Mark McGuigan met with her on Oct. the British government was waiting for 5, 1980, was whether Trudeau's unilater- the court's decision before introducing alist resolution would be subject to court Trudeau's resolution into Parliament. challenge. There was nothing confidential Trudeau's plan for the new constitution in what Estey said and not the slightest im- to be proclaimed on July 1, 1981, was propriety in his conversation with Ford. clearly impossible, and the British ParAnd as for his estimate of the time frame, liament would rise after the wedding of Charles and Diana on July 29. Laskin was he was only out by 250 per cent. Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . . . . . . . . . . . Sandy Shutt ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com circulations & subscriptions $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns www.lawtimesnews.com advising the British government that it wouldn't have to deal with the Canadian resolution that month. Was that so terrible? The British government wasn't a party to the reference. Laskin probably thought he could rely on the discretion of the British attorney general not to share this information with the actual parties. Another problem with Bastien's "revelations" is that they stem from summaries of conversations and events passed on from one diplomat to another. Typically, A is reporting on a conversation between B and C as reported by B to A. With notes reported in indirect speech, it's impossible to know exactly what was said or how the context of the conversation affected the meaning the parties gave to it. Historians have to deal with the evidence in whatever form it has survived, but they also have to be aware of its limitations. Bastien admits none but instead piles assumption on assertion until the whole house of cards comes crashing down. LT Philip Girard is a legal historian and professor at Dalhousie University's Schulich School of Law. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is philip.girard @dal.ca. and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com advertising Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt...... sandra.shutt@thomsonreuters.com

• Cover