Law Times

Law Times • June 9, 2014 Page 7 www.lawtimesnews.com COMMENT Current Senate debate echoes Confederation-era arguments about upper chamber onstitutional law is the most historically oriented of all legal subjects. Yet when the Supreme Court of Canada has recourse to constitutional history in its judg- ments, legal historians tend to cringe. Scholars often hotly contest the interpre- tation of historical events, but in the end the judges must come to a decision. The courts sometimes display a tendency to cherry-pick the historical evidence and slot the messiness of history into neat le- gal categories. So it's with some pleasure that this historian can report that, in his opinion at least, the Supreme Court got history right in its recent decision in the Senate reference. The court decided the Fathers of Confederation meant for the Senate to play second fiddle to the House of Com- mons. Thus, the proposed changes to the mode of selecting senators were contrary to the architecture of the 1867 Constitu- tion because they would endow the Sen- ate with greater legitimacy. This might be a desirable goal in 2014, but it's not what the framers intended. This isn't to say the Constitution can't be updated by interpretation, but fundamental chang- es, such as those proposed by the fed- eral government, require constitutional amendment. In a country without a hereditary aris- tocracy, the design and even the existence of the upper chamber of our legislatures have been perennially contro- versial. As Christopher Moore reports in his excellent book on the Confederation debates, the argument over the Senate in Quebec in 1864 was "the longest of the conference and the one which brought it clos- est to breakdown." The role the Senate should play in a fed- eral state and the mode of ap- pointment of the senators were highly contentious issues. The Maritimes wanted the Senate to play the role it played in the United States as a guardian of the interests of the states. Thus, each province should have an equal number of senators. The Canadian delegates would have none of it, thereby alienating Prince Edward Island, which decided not to join the new dominion. The decision to allocate Senate seats by region — as in Ontario, Quebec, the Maritimes, and later the West — meant the institution only weakly represented the provinces. Ideas about whether to appoint or elect senators were in a state of f lux in the 1850s and '60s. With the achievement of responsible government in the 1840s, it was clear the elective chambers of the provincial assemblies were now the pri- mary seats of power. The Reformers, for the most part, didn't want to make the upper chamber elective because they feared election would enhance its legitimacy. It was primarily the Conservatives (with some help from the radical Clear Grits) who had managed to pass a law in 1856 making fu- ture appointments to the up- per house of the legislature of the United Province of Cana- da elective. By 1864, the Reformers were clear that they wanted ei- ther no upper house at all (the choice for the new province of Ontario) or to retain their appointed upper houses (the preference of the other three prov- inces). After much discussion, a Reform delegate, Jonathan McCully, moved that the federal government should appoint all senators for life. Tellingly, it was a Conservative mem- ber of the legislative assembly, Christo- pher Dunkin, who was most critical of the new Senate when he called it " just the worst body that could be contrived — ridiculously the worst." Some Conser- vatives looked longingly at the powerful elected Senate in the United States. But even among Conservatives, Dunkin was somewhat out of step as McCully's mo- tion at the conference had passed unani- mously. Mainstream opinion, among both Conservatives and Reformers, was solidly anchored on the tenets of re- sponsible government. That meant an appointed, non-threatening Senate. The Fathers of Confederation thought the Senate could function as a chamber of sober second thought but should have the good sense to get out of the way if the Commons was strongly on the side of a particular course of action. That's why our Constitution has very little to say about possible impasses between the Senate and the Commons compared to, for example, the Australian Constitu- tion. Simply put, they weren't supposed to happen. The Senate may now seem like a vesti- gial organ in the body politic. But it was designed to be precisely that. If we want to change it, we need to go big or go home by making it a more powerful institution or getting rid of it. In that debate, the ar- guments of the 1860s still resonate. The NDP's position on abolition is closest to the one espoused by the Reform politi- cians with their fear that an elected Sen- ate would challenge the Commons. The Conservatives want a powerful body more like the U.S. Senate as their ances- tors did. And the Liberals appear to want something new, the outlines of which aren't yet clear. LT Philip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. Personal injury lawyers' duties include pro bono after-care By Bernard gluCKsTein For Law Times n the role as a competent representative of cli- ents, the personal injury lawyer performs vari- ous functions. As an adviser, the lawyer provides the client with an understanding of their legal rights and obligations. As an advocate, the lawyer advances the client's position fearlessly and with vigour. As ne- gotiator, the lawyer seeks a result that is advantageous to the client relative to the realities of the case and the requirements of fair and honest dealings. As an in- termediary, adviser, and evaluator, the lawyer seeks to reconcile the interests of both parties. Competent representation, then, implies that the lawyer takes on a case with sufficient legal knowledge, skill, and train- ing to properly perform these numerous functions. It appears as if these functions involve only the le- gal process and end at a settlement agreement, as con- ventional wisdom may have it. In a modern context, best practices in advocacy re- quire a lawyer to do more. The advocate's obligations to secure justice for clients require the lawyer to have ongoing involvement with clients after the settlement concludes or they recover the amount of the judgment. As an advocate, and more generally as a public citi- zen, counsel should seek positive change in the law and in the way lawyers practise it and should apply their knowledge of the law beyond its usefulness as a vehicle for reaching an agreement between disputing parties. This works not only to strengthen lawyer-client re- lationships but also, within the legal profession itself, promotes better relationships among counsel and thus better client results. We believe that in order to nurture these relationships, it is necessary to work beyond the settlement phase of a case and provide continued guid- ance and advocacy to injured people and their families as they find themselves in unfamiliar environments. It is a well-known fact in the helping professions that when people suffer a serious injury in a motor vehicle accident, their needs become overwhelming. Clients need not only competent legal representation of the highest calibre but also a tremendous amount of support on a number of levels. This need for support does not end when a case settles. For the client who has suffered a severe injury, the recovery process and the needs associated with achieving maximal recovery are life-long endeavours. The personal injury lawyer should therefore continue to perform certain func- tions even after settlement, namely to act as advocate, adviser, and evaluator. When performing functions beyond the settlement phase, the lawyer may consider this a contribution to the public interest, an act pro bono publico. The provi- sion of free legal services to those unable to pay rea- sonable fees is a moral imperative. Ensuring the prop- er reintegration of clients who have sustained a serious injury in a cost-effective way is one option for provid- ing free services to them. Although most lawyers feel a duty to perform pro bono work, few know how to start. For personal injury lawyers, the simplest way is to look to their own clients. Few lawyers ever follow up with their clients to see if they require assistance after the case is over. In fact, many former clients who may need assistance are reluctant to ask for help for fear of incurring additional expenses. Since settlements and even judgments are typically the product of a balancing of interests and a result of compromises and the recognition of contingencies, seldom are they sufficient to satisfy the rehabilitation, attendant-care or other expenses incurred in a seri- ous injury case. This is where the lawyer can help the most. Finding and negotiating for services, both gov- ernment-based and private, can be a painstaking job for families already burdened with the care of a fam- ily member. However, the procurement of appropriate and cost-effective services may make the difference between a permanent or intractable disability and a restorative function. For various reasons, few clients are prepared, motivated or able to spend their settlement monies on rehabilitation at the same level they did prior to the settlement or judg- ment. They must be encouraged to continue with their rehabilitation and should prepare a financial plan to ensure there will be sufficient funds to do so. That is why the lawyer should assist in seeking out and ob- taining government assistance for clients, where pos- sible, in order to preserve the settlement fund in a way that will prevent them from exhausting it too early. Given the continuing erosion of first-party ben- efits, the notion of advocating for your client after the settlement or judgment has risen to the level of obli- gation. The basic responsibility for providing legal services to those unable to pay ultimately rests upon the individual lawyer; however, the continued involve- ment with clients after settlement can be one of the most rewarding experiences in the life of a lawyer. It is pointless to secure a just result for clients bur- dened with a serious injury if they are unable to use the money paid pursuant to a settlement or judgment to achieve the benefit of the goods and services that are the basis of the claim for compensation. If lawyers are to assist people in obtaining access to justice, this objective presupposes that at a practical level, they will ensure clients obtain the best possible goods and ser- vices for the money available. This noble and worthy cause is consistent with the values of Canadian soci- ety that promote and protect the right to life and se- curity of the person. These values include the right to reasonable and effective health care in a manner that promotes the dignity of all people but, in this context, especially the dignity of those with disabilities. LT Bernard Gluckstein of Gluckstein Personal Injury Lawyers is the 2014 King Clancy Humanitarian Award winner. This article includes contributions from his col- leagues Dianne Henderson, David Lackman, and Joe Colangelo. u SPEAKER'S CORNER I C That's History Philip Girard

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