Law Times

www.lawtimesnews.com Page 6 January14, 2008 / Law Times "F irst thing, let's kill all the lawyers." Or jail 'em at least. Back in November, the world gaped at the sight of street protests in Pakistan led by dark-suited lawyers. Even after the assassination of Benazir Bhutto, in December, the military government's crackdown seemed aimed as much at the judiciary and the legal profession as at the threat of extremist violence. "How can you be a lawyer when the law is whatever the general says it is?" asked a leader of the Pakistani bar. In Canada, it has been a long time since lawyers who stood up for the rule of law risked their careers. But at the legal history conference that the law society hosted last fall to mark Osgoode Hall's 175 th anniversary, participants heard about the experience of lawyers in Canada at a time before lawyers were independent of the state. The 175th anniversary marked the moment in 1832 when the Law Society of Upper Canada plunged the small legal profession of the province into an alarming state of indebtedness in order to build Osgoode Hall, a citadel and symbol of the independent Ontario bar. At the conference, law professor and historian Jim Phillips described the travails of two Nova Scotia lawyers in 1788. Jonathan Sterns and William Taylor, both refugee American loyalists, concluded that the old Tory judges of the Nova Scotia Supreme Court were incompetent and biased. They said so in court, and urged the legislature to investigate. The judges responded promptly. To criticize a judge was to criticize the court, they declared; it subverted the constitution. Sterns and Taylor were summarily disbarred. Similar ejections of politically active lawyers occurred in Prince Edward Island, in 1811 and 1816. In Nova Scotia and P.E.I. back then, there was no self- governing bar. Lawyers there and elsewhere were regulated and disciplined by the courts, and the judges, as members of the colonial governing council; they were government functionaries more than an independent judiciary. Lawyers who criticized the policies and personnel of the state got short shrift; they were swiftly told they were no longer lawyers. In most of the Canadian colonies, it was the mid-19 th century before separation of the courts from the executive branch was complete, with self-government for lawyers coming in its wake. Only in Upper Canada had lawyers been empowered to govern themselves very early — that is, since the foundation of the Law Society in 1797. And, indeed, Upper Canadian lawyers used that freedom from state control. Lawyers were at the forefront of Upper Canada's reform movements throughout the first half of the 19 th century. In Quebec, control of lawyers shifted from the judges to the lawyers themselves in 1849. Within a few years the bar launched a successful campaign that had previously been impossible: to reform the stagnant judiciary of the province. Self-government by the profession is mostly out of fashion in the 21 st century. Academics, politicians, and the public unite in seeing professional self-government mostly as an antiquated and monopolistic conspiracy. Canadian legal scholar Harry Arthurs years ago described professional self- regulation as "a dead parrot." They make a strong case, and governments have been listening. New South Wales in Australia has already replaced professional self-government with a state-run tribunal. In Britain, the Clementi Report has recommended similar changes. Amidst the lurid stories from his book Lawyers Gone Bad — inspiration for Maclean's "Lawyers are Rats" cover last year — Philip Slayton takes a moment to advocate the same thing for Canada. Well, it probably would not be dangerous; threats to the rule of law are hardly imminent here, and no one thinks of law societies as our first line of defence. But bar associations in Pakistan still have substantial functions. You have to wonder if those very un-ratlike lawyers facing down the riot police in Islamabad would be quite so staunch if all they had to back them up was some tribunal of civil servants. Christopher Moore is the author of The Law Society of Upper Canada and Ontario's Lawyers, McCarthy Tétrault: Building Canada's Premier Law Firm 1855-2005, and other works in legal history. His website is www. christophermoore.ca A lot can happen in four short weeks. Apparently. Why, it was only mid- December when Law Times went on annual hiatus — normally a slow time of the year legal-news-wise — but this season, much has happened since we last climbed upon our vertically challenged soap box. So, with no further ado, we present Musings Muzzled 'Til Now. Who better to start us off than Conrad Black and his former cohort David Radler (aka Badler, à la the celebrity-couple name game) who learned their fates and are preparing to step into their respective prisons. The score for fraud: Black — 6.5 years. Radler — 29 months. Ahem. Now, we assume everyone's up to date on the gory details, given the acres of trees sacrificed to provide newsprint for the endless stories, so we'll focus on what caught our attention: Has anyone else noticed frequent and breathless references to orange jumpsuits in said accounts? Those of you on the criminal side must scratch your noggins at the fixation on the bright prison wear that all the cool cons are sporting this season. (We're told it might in fact be khaki for Black). It's like writing, "They were led away in handcuffs." Isn't it a story if they're weren't? Anyway, from way out here in the fringe, when it comes to Badler, we caught a whiff of schadenfreude. Could some be deriving pleasure from the misfortunes of others? But heck, in our book, when you're a reporter snuffling for good quotes, how can you not like a guy like Black, who for example said of Radler, via email to the Toronto Star, "He was a good partner for a long time. I don't know what went wrong with him." That chestnut came after Radler got less time in a plea deal that saw him testify against Black. But more importantly, gosh, what if Badler's really destined for denim and we all missed it? Then, there was the weird December verdict in the Robert Pickton trial. Due to restrictions under s. 649 of the Criminal Code, it's a punishable offence for jurors to give out any information related to deliberations. In other words, we're never going to know for sure how on earth jurors arrived at a second-degree murder conviction, instead of a first-degree. At least the lethal pig farmer was sentenced to the max: life with no parole for 25 years. We can speculate until the cows come home about how they got to second-degree, but aren't we at a point where we can open jury room doors and find out? I think we can take it. Bring the American style of openness to Canada. Once again, scribes were busily typing their fingers to the bone speculating, but to what end? None of them really knows the so-called truth here. We're not aware that the system south of the border has fallen into disrepute when jurors have 'splained themselves. In fact, it can be cathartic for them to tell all — and if ever there was a case for that, it's this horror show. Meanwhile, there was some happy news this past month: Osgoode Hall's crack team won awards at the International Criminal Court Trial Competition at The Hague. The future is bright. But our favourite story is the one about Ottawa lawyer Adriana Doyle. For close to 100 street kids in Hohoe, Ghana, Doyle is their version of Santa Claus. She has spent the past three weeks volunteering to build an orphanage in the tiny village, after raising $10,200 through donations — largely from the Ottawa legal community. Kind've puts it all into perspective. — Gretchen Drummie Editorial Obiter Editorial Obiter Why lawyers govern themselves Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca circuLATiONs & subscriPTiONs $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign address- es. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. 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Law Times Inc. 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. COMMENT That's History By Christopher Moore LT From Badler to Hohoe LT-Jan 14 08.indd 6 1/10/08 8:06:59 PM

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