Law Times

Page 6 SePTeMBeR 28, 2015 • LaW TIMeS www.lawtimesnews.com COMMENT Balance struck on ABS W hen the Law Society of Upper Canada released the results of the bencher elections this spring, it quickly became clear that the profession hadn't embraced al- ternative business structures. Many of the proponents of the idea had gone down to defeat while several lawyers who had openly expressed opposition to it won seats at Convocation. The situation had the potential to be awkward with the law society's working group on alternative business structures in the midst of preparing a report that could have recommended allow- ing for full non-lawyer ownership of law firms. Last week, however, it came out with a report that recommended against majority owner- ship by non-lawyers. "Based on its work to date, the working group does not propose to further examine any majority or controlling non-licensee owner- ship models for traditional law firms in Ontario," the working group said in its report to Convocation this month. The report will be a disappointment to many proponents who want to see a significant shakeup of the legal profession in order to encourage innovation and new ways of offering legal services. But with lawyers having clearly expressed their disagreement with that idea this spring, it's difficult to see how that could have happened. The working group's report does, however, leave open the option of allowing for a minority ownership stake by non-lawyers and talks about exploring "a subset of ABS models which might be applicable in Ontario." Schmidt case sheds light on inner workings of Justice Department T here's a big legal case going on at the Federal Court in Ottawa these days. At issue is nothing less than why, for almost the past 10 years, the Conserva- tive government of Stephen Harper has time after time come up with laws that end up in the courts with judges tossing them right back in his face for violating the Con- stitution, the Charter of Rights and Free- doms or the Bill of Rights. One might think Harper would know better. In fact, his government does have public servants in the Department of Jus- tice who are brilliant at writing laws. They don't like Harper's legislation coming back at them any more than Canadian taxpay- ers who are on the hook for the govern- ment's legal bills. When confronted with his legal fail- ures, Harper blames the courts and the judges. He has made several political speeches in the past blaming judges all the way up to the Supreme Court of Canada. The irony is that he appointed most of the judges on that court. Those nine Supreme Court judges believe they're not there to rubber-stamp all of Harper's legislation as if he were the king of Canada. They're there to interpret the application of the Charter of Rights, the Bill of Rights, and our Constitution in regards to whatever legislation is before them. Some Canadians believe Harper has been a repeat loser because he doesn't have enough legal advisers to help write legislation. That's false. He has more than 900 law- yers and legal experts working for his government. They're among the best in the land and many could earn a lot more in private practice. They know their stuff. And yet that's where the problem starts. One of the best on staff, Edgar Schmidt, a proud, good-natured Mennonite from Manitoba who had been with the federal government since 1998, had had enough of the Harper government. So in Decem- ber 2012, he took the government to court for failing to properly vet proposed legisla- tion before it went to the House of Com- mons for approval. The law requires government legisla- tion to not violate the Charter, the Bill of Rights or other laws. If there's even a risk of a violation that could result in a court chal- lenge, the justice minister is to announce it to Parliament. In politics, that's like hand- ing a loaded gun to the opposition parties. So what happens is the justice minister tells Parliament that he and his legal experts have had a close look at the bill and they believe that if there's a court challenge, the government will likely win the case. But with the Harper government, it has instead been losing time after time, and people have been wonder- ing why it can't come up with legislation that passes legal muster. For a long time, many Ca- nadians thought it was because Harper doesn't know how to take legal advice from the hundreds of legal experts available to him or he refuses to listen to them, think- ing he knows the law better than they do. But now Schmidt is in court trying to prove there's another reason. Maybe it's to Harper's political advan- tage to let people believe the judges and the courts are against him. The Harper government thought back in 2013 that it would teach Schmidt a les- son, so it suspended him without pay. But Justice Simon Noël put an end to that. He said the case could continue and the federal government would have to pay Schmidt's salary and legal costs. This past week, the court heard that the federal lawyers who work on legislation had instructions not to tell the justice minister about potential Charter and Bill of Rights violations in proposed legislation unless the wording was "mani- festly" or "certainly" inconsistent with human rights law. Schmidt and several witnesses said last week that superiors had told some government lawyers that if, in their opinion, there was at least a five-per- cent chance of the government winning a court challenge, they didn't have to tell the justice minister there might be a human rights problem with the legislation. The judges don't care that their deci- sions run against Harper's wishes. They're there to apply the law. And government lawyers who prepare legislation that takes weeks and months to write have no joy in getting their legisla- tion thrown out of court. They would love to have a minister ask them to write legislation in a way that will pass court muster. That would be a lot bet- ter than having their hard work end up in a political speech by Harper railing against the cruel and unusual judges who are all on the side of criminals. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. 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Some op- ponents will still be unhappy, but the report strikes a balance between respecting the democratic will of the profession and letting the discussions and debate on new business models continue. Allowing for full non-lawyer ownership was ar- guably a radical change that opponents expressed legitimate concerns about during the past year. But given the need to spark innovation in the delivery of legal services, it's appropriate to keep the discus- sion alive even if in a more limited form. LT The Hill Richard Cleroux

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