Law Times

Law Times • December 5, 2016 Page 7 www.lawtimesnews.com Professional conduct rules need to be satisfied BY ALAN SHANOFF T he Law Society requires pract- ing lawyers to complete a mini- mum of 12 hours of continuing professional development activi- ties during each calendar year. It's easy to satisfy this requirement. Only the three professionalism hours must be accred- ited by the Law Society. Substantive hours may be satisfied by activities that include teaching, writing and editing. There's no requirement to pass any tests or fill out any questionnaires to es- tablish having paid attention to or learned anything from the continuing profession- al development hours. As a requirement of being on part-time staff at a communi- ty college, I am required to achieve a per- fect score on various tests to establish pro- ficiency in various subjects. It is hard to understand why the Law Society doesn't require anything other than a statement that the continuing professional develop- ment activity has been undertaken. Perhaps there also ought to be a com- pulsory requirement for practising law- yers to review and be tested on various as- pects of the Rules of Professional Conduct each year. I suspect most lawyers rarely, if ever, read the rules. The rules remind us that lawyers are members of a privileged group. In ex- change for membership in this group, we have "special responsibilities" and "duties." Regrettably, not enough is said concerning how we are to fulfil these re- sponsibilities and duties and little appears to be done to enforce fulfilment of these responsibilities or duties. Access to justice remains a problem for many Cana- dians. This is apparent from the large numbers of self- represented litigants who daily appear in court. For many self-represented liti- gants, this is a function of the high cost of legal services. It isn't surprising that the rules have something to say about the cost of legal ser- vices. Lawyers have a duty to perform all functions in a "cost-effective manner." We should not undertake a matter unless we can do so without "un- due delay, risk or expense" to the client. We are to provide "efficient service." Yet lawyers acting in adversarial pro- ceedings have a duty to "raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case." In this era of proportionality, this rule requires some serious re-thinking and reformulation. Fees for services must be "fair and rea- sonable." Since lawyers operate under mo- nopoly powers, we must be careful that our fees are fair and reasonable, yet fees for some legal services remain beyond the means of many Canadians while lawyers are free to set fees as they wish with little oversight. Contingency fees are allowed save in family law or criminal or quasi-criminal matters, but even contingency fees must be fair and reasonable. Referral fees must also be reasonable. It seems little is done, however, to rein in unfair or unreasonable contingency or referral fees. Lawyers have a duty to in- form clients about "their rights to have an account assessed un- der the Solicitors Act." I suspect this duty is rarely followed. Lawyers are encouraged to provide services to persons of "limited means," whatever that means. While there is no posi- tive duty to do so, we are encouraged to "reduce or waive a fee when there is hard- ship or poverty or the client would other- wise be deprived of adequate legal advice or representation." Aside from the Law Society's limited lawyer referral service, it seems this rule merely pays lip service to the crisis in access to justice. Lawyers who decline to act on a matter have a positive duty to assist in obtaining the services of another qualified lawyer to act. Lawyers have a positive duty to en- courage compromise or settlement of dis- putes "whenever it is possible to do so on a reasonable basis." This duty includes con- sideration of the use of alternative dispute resolution. Strict adherence to this rule would assist clients in lowering the cost of accessing the legal system. The duty to encourage compromise or settlement appears to be in conf lict with some aspects of our adversarial system, but it is a positive duty that applies to ev- ery lawyer and every dispute. Lawyers have a duty to communicate with clients in a "timely and effective manner." Our knowledge of matters of law and procedure place us in a superior position to most clients. We have a duty of candour as well as a duty to communicate effectively to allow clients to reach truly informed decisions. There are many other topics covered by the rules, but I have chosen to focus on the rules that seem to make an attempt to address the legal monopoly and access to justice. That's because I don't believe lawyers appreciate the privileges granted them under the monopoly we enjoy. In other areas where businesses enjoy a state- sanctioned monopoly or near-monopoly, procedures are in place to ensure regu- lated fees. Basic economic theory tells us that monopolies inf late prices and fees. Yet lawyers are free to provide services and set fees with no or little fee regulation save for a small number of assessments. At some point, our monopoly along with our self-regulatory regime will be successfully challenged unless we take significant action to address the growing crisis in access to justice. In the mean- time, we'd do well to review and liberally satisfy the rules under which we are gov- erned. LT uAlan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. COMMENT Time to challenge counterterrorism programs BY FATHIMA CADER U nited States president-elect Donald Trump's Islamophobia-fuelled ascendancy is a chilling reminder for Canadian lawyers to review our own government's assump- tions about terror, especially in relation to Bill C-51. Bill C-51 became the Anti-terrorism Act 2015 last year. First proposed by the Conservatives in 2014, Lib- eral support ensured the bill's enactment, defying vocal public opposition. Among other fatal f laws, the ATA creates a new Criminal Code provision (s. 83.221) that criminalizes speech that "advocates or promotes the commission of terrorism offences in general" when aware someone else "may" commit such an offence. The new provision is stringent — it lacks any exemp- tions for private conversations or legal defences. And it's gratuitous — s. 83.01(1) of the Criminal Code already defines terrorism offences so broadly as to include a wide array of non-violent acts. The fallout? The ATA makes what is vague even vaguer, and it leaves lawyers with no clear sense of how courts will apply these new provisions. And, as many have wryly observed, the ATA's free speech chill undermines the government's own anti- terrorism efforts, including RCMP counter-violent ex- tremism programs. But critique of the ATA cannot rest with simply noting this absurdity. We need to examine the substance of CVE programs — and they are disastrous. CVE programs tear at the very fabric of social life. Just as they have already been exposed as junk science in the United Kingdom and the United States, they need to be denounced here. When critique of the ATA fails to also explicitly criticize the programs themselves, we risk perpetuating the programs' core racist myths. CVE programs — targeted predominantly at Mus- lim and especially Somali communities — expand counterterrorism efforts beyond law enforcement to involve civil society, including teachers, social work- ers and clergy. In the ways they surveil, stigmatize and harm marginalized communities, CVE programs mir- ror the community policing programs inf licted on broader black communities. Both models of surveillance exemplify racial profil- ing. They involve embedding police forces in civilian space, normalizing the state militarization of civil soci- ety. Community housing, neighbourhood centres and even playgrounds have become sites of fear for racial- ized civilians. Imagine being afraid to send your child to school because teachers are referring youth to po- lice. Imagine avoiding medical appointments because health professionals are working with the police to watch for threats that don't exist — and the deadly irony meanwhile that people with disabilities are dispropor- tionately vulnerable to police violence. And rather than providing solace, the deep infiltration of mosques by spies and informants has become a blasé inside joke among Muslims. But underneath the gallows humour ripples the real fear that those who refuse to en- gage CVE programs will be classified as terrorists. While the ATA's definitions of terrorism may be vague, the social contract underpinning CVE programs is clear: Terrorism is violence by Muslims and terror the fear of Muslims. Terrorism, according to this implied definition, does not include the systematized torture, killer drones or chemical warfare that has so characterized the War on Terror. And unless it's committed by Muslims, it doesn't even include premeditated attacks on the general public. Last year, Justice Minister Peter MacKay described Randall Steven Shepherd, Lindsay Kantha Souvannara- th and James Gamble — who attempted to attack a busy Halifax mall — simply as "misfits." This week, when asked why Thomas Mair — who last year assassinated British Labour MP Jo Cox in the name of white power — hadn't been charged under UK's terrorism laws, West Yorkshire Police responded that Mair had received a life sentence, "so what would that [a terrorism charge] add?" Apparently nothing — and yet here we are spend- ing millions of tax dollars on a new federal Office of the Community Outreach and Counter-radicalization Coordinator. As Hitler salutes begin to proliferate in the main- stream, let's recall that CSIS has long known about the dangers of neo-Nazis: between 2000 and 2015, 59 per cent of so-called "lone wolf attacks" were ideologi- cally motivated by the white supremacist movement. In contrast, CVE programs have spawned a lucrative and highly ideological industry of so-called security experts whose theories about political violence committed by Muslims are ahistorical and homogenizing. The normalization of distrust, fear and paranoia within and of Muslim communities is unbearable. As the stakes for racialized communities in post-Trump North America grow ever starker, to be silent on this point is to deepen the injury — needless and traumatic — done by CVE programs. We also have to break free of the racialized coding of counterterrorism rhetoric to better see how the ATA's over-breadth could be applied to curtail activism. Prime Minister Justin Trudeau's recent approval of controversial new pipelines promises a resurgence in indigenous and environmental resistance. But news broke last month of the mass RCMP surveillance of 313 indigenous activists, 89 of whom were placed on an RCMP watch list. As the national security consul- tations draw to a close, we cannot accept the Liberal premise that the ATA can be reformed into legitimacy. Legal experts have already noted that the only constitu- tional response to the ATA can be its repeal. And as Trump's election heralds an era of newly heightened fear, we must resist the seductiveness of a national security rhetoric that leaves far too many of us living in a state of terror. LT uFathima Cader is a civil and human rights litigator in Toronto. She can be reached at http://caderlaw.ca. u SPEAKER'S CORNER Social Justice Alan Shanoff

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