Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Chisvin owes an explanation W A as Ontario Court Justice Howard Chisvin simply having a bad day last year when he rebuked a Crown prosecutor for being late and dismissed a slew of criminal matters in response? Did he have a bad relationship with the Crown in ques- tion or was he simply fed up with lateness and adjournments in general? Was he exasperated with repeated delays in the justice system? We don't know what was going through Chisvin's mind because he hasn't elected to reveal it. But given the complaint about him to the Ontario Judicial Council, we'll hopefully get a better sense soon of what he was thinking when he took actions that the Ontario Court of Appeal has now label led "illegal and an abuse of judicial authority." That Chisvin went too far is obvious. As the appeal court noted in its ruling in one of the dismissed cases, R. v. Siciliano, last week, Chisvin made his dramatic move in response to the Crown's lateness after it took the judge himself 22 minutes to return from a 20-minute adjournment. The prosecutor ended up being about 10 minutes late. While he apolo- gized and told Chisvin he had been reading a presentence report he had just received, the judge wasn't having any of it. Not only did Chisvin dismiss the case against Mauro Siciliano, who had already pleaded guilty to three charges, he did so for all remaining provincial matters on his list for that day. If Chisvin is frustrated with delays in the justice system, he should find another way to express them other than intemperately dismissing cases for a lawyer's 10-minute lateness. His frustration with someone's tardiness doesn't outweigh society's need for justice in criminal matters and even less so the concerns of the victims of those offences. Of course, appeal court justices David Doherty, Susan Lang, and Gloria Epstein have made their feelings about the matter clear: "The trial judge's actions were high-handed and did a real disservice to the proper administration of justice." In the meantime, the Siciliano matter now goes back to Chisvin for sentencing after the appeal court quashed his dismissal of the charges. Maybe then the judge will offer some idea of why he ruled as he did. If not, let's hope the complaint before the Ontario Judicial Council results in shedding more light on the matter. — Glenn Kauth COMMENT March 26, 2012 • Law TiMes s the Law Society of Upper Canada debates how to address the so-called articling crisis, now is an opportune time to refl ect on the remarkable lon- gevity of this element of lawyerly preparation. Articling crises aren't new in Ontario, but the response of the profession has always been to re- form the institution rather than replace it. Th is time around, abolition is a serious option. Th e history of articling reveals the Canadian legal profession's hybrid identity. Th e United States abolished articling in the early 19th cen- tury, paving the way for university legal educa- tion. In England, learning by doing was consid- ered best. Both English legal professions relied on a form of apprenticeship and condemned university legal education as useless until the 1960s, when they fi nally ceded to public pressure and accepted it. We kept the English tradition of ar- ticling and added U.S.-style legal education to it. All of colonial North America initially followed the English model, requiring articling periods of three to seven years before call. Th e United States diverged in the 1820s and 1830s when articling came under attack as an unjustifi able barrier to entry. State legislatures abolished articling and the bar associations dissolved, leaving the market and courts in charge of the profession. Universities, through professional degree programs unique in the world at the time, fi lled the vacuum in legal training. With the appointment of Christo- pher Columbus Langdell as dean of law at Harvard Univer- sity in 1870, modern legal education began in earnest. We can thank him for the case method, a career professoriate devoted to full-time teaching and research, and three-hour fi nal exams based on hypothetical fact patterns. State and local bar associations re-emerged aſt er the Civil Law Times LT Masthead.indd 1 Philip Girard History That's War. Many wished to reinstitute a mandatory ar- ticling requirement, but the law schools were en- trenched enough to defend their degree privilege from legislative attack. U.S. law graduates can still present themselves for bar exams without any practical training, and the bar exams themselves are heavily infl uenced by what the law schools teach. Th ere is now some pushback by clients, however, at billings for novice associates. Unlike their English brethren, Canadian lawyers demonstrated interest in U.S.-style university legal education. Th is appeared to be the solution to the articling problem of the late 19th century. Th e problem then wasn't a short- age of positions but a perceived lack of quality control and a legitimacy problem for the bar. As other professions such as medicine gravitated to university education, law appeared to provide only narrow rote training. Everywhere outside Ontario, local bars responded by partnering with universities to create law faculties, begin- ning with Dalhousie University in 1883. But no Canadian law school would have a degree privilege. A year of articling was required but for a long time it could be served — outside Ontario — in instalments in the summers aſt er fi rst and sec- ond year such that only a few months were necessary aſt er graduation. Th e Law Society of Upper Canada didn't follow this route and created its own law school in 1889. It settled on half-time articling and lectures until fi nally recognizing university law degrees in 1957. But before then, there had been numerous articling crises. Th e fi rst and longest crisis, although they never offi cially called it one, was the continuing diffi culty for women and minorities in fi nding articles. Eventually, the situation for 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 ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ..................... Katia Caporiccio CaseLaw Editor .................. Adela Rodriguez Art Director .......................Alicia Adamson Account Co-ordinator ............... Catherine Giles Electronic Production Specialist ........Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of women eased somewhat, but members of visible and other minorities and now Canadian entrants trained off shore con- tinue to struggle to fi nd their way into the profession. Th e second crisis was during the Depression, when most lawyers couldn't support themselves, never mind an articling student. Th e law society responded by turning a blind eye to essentially fi ctitious articling arrangements, such as the one Bora Laskin entered into with his fi rst principal Sam Gotfrid in 1933. Th e third was aſt er the war, when enrolment surged with the wave of returning veterans. Th e law society provided fi rst-year practice groups taught by practitioners at Osgoode Hall Law School for those who hadn't found articles. Aſt er a few years, the wave subsided and normal articling resumed as the economy boomed. Articling as a bottleneck for the bar, the variability of the articling experience, and the proper relationship between practical and university legal education have all been issues for the profession for a century and a half. Seen in this light, the crisis has been perpetual with some diminution in good economic times. While everyone agrees that some form of practical transi- tion to the professional world is necessary, it's less clear that articling can or should be the vehicle for it. History shows that there never was a golden age for articling. While many benefi ted from it, many others didn't. Maybe 2012 will mark a turning point in the history of an institution almost as old as the common law itself. LT Philip Girard is a legal historian and professor at Dalhou- sie University's Schulich School of Law who's currently teach- ing 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. Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. 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 $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 2/7/12 3:32 PM inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate 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 Articling has always been a conundrum for Ontario bar

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