Law Times

Law Times • June 11, 2018 Page 7 www.lawtimesnews.com Why Canada and the U.S. differ on articling BY PHILIP GIRARD T he future of articling is back in the news in Ontario with the Law Society of Ontario's recent lawyer licensing consultation pa- per. People sometimes ask why we have an articling requirement when the U.S. has none. The answer is that articling disap- peared against the wishes of the legal pro- fession for broadly political reasons and then proved impossible to reinstate. A mandatory pre-call articling period disappeared virtually everywhere in the U.S. before the Civil War. In a democratic republic, it was seen as an unjustifiable barrier to entry to the profession. Bar as- sociations disappeared, too, creating an educational vacuum into which the U.S. university law schools inserted them- selves. When bar associations re-emerged, they found the field occupied. Leaders of the American Bar Associa- tion, which was founded in 1878, wanted to restore a mandatory clerkship prior to call. In 1913, the ABA formally asked the American Association of Law Schools (founded in 1900) to adopt the idea of a mandatory clerkship. The AALS de- clined, and clerkship eventually disap- peared altogether. Such was the power of U.S. law schools. In Canada, the power balance was reversed: Bar societies held a pre-eminent position and wanted to maintain articling. Canada, thus, retained the system that the U.S. bar would have preferred. The 1928 report by A.Z. Reed entitled "Present Day Law Schools in the United States and Can- ada" provides an interesting comparative vantage point on this issue. It was prepared for the Carnegie Foundation for the Advancement of Teach- ing, which was conducting studies of education in vari- ous professions. These included the famous Flexner Report on the reform of medical education. Reed wrote a report on preparation for the legal profession in North America in 1921, but he devoted little space to Can- ada. In his 1928 report, Canada featured more prominently. In the fall of 1924, Reed visited every Canadian law school and even travelled to Newfoundland, which did not have a law school. His report remains the most compre- hensive piece of research on legal edu- cation in Canada until the appearance of the Law and Learning report of 1984 (known as the Arthurs Report). Reed's views of Canadian legal educa- tion are valuable because he was doubly an outsider, being neither a lawyer nor a Canadian. He obtained a PhD in edu- cation from Columbia in 1911 and was hired by the Carnegie Foundation in 1913. The reports on legal education were the highlights of his career. While Reed regarded U.S. law schools as the norm against which to measure Canadian trends, he was highly critical of some aspects of American legal education, and he preferred some fea- tures of the Canadian model to the American. In particular, he thought the combination of university education and practical train- ing in Canada was highly de- sirable. In the U.S., admission rest- ed purely on the bar exam and what happened earlier was not rigorously structured. Reed also preferred the curriculum at Canadian law faculties. While U.S. law schools had a com- pulsory first-year curriculum, Harvard had a completely elective upper-year cur- riculum from 1886, and many U.S. law schools followed suit. In Canada, owing partly to a short- age of full-time staff and partly to the law societies' desires, almost the entire cur- riculum was compulsory until 1969. Be- sides substantive law, most Canadian law schools required courses on constitution- al history and English legal history. Some offered Roman law as well. The U.S. legal education scene was much more diverse than Canada's at the time. In addition to the Ivy League and other university law schools, there were private law schools offering night and part-time courses. These taught local state law rather than the high-level analysis and theory of Harvard and Yale, and they were more accessible to low-income people and im- migrants. Reed thought this diversity should be encouraged, but his report was not well received by either the ABA or the AALS. They closed ranks in favour of a unified model of legal education based on the Ivy League schools, and any chance of resur- recting articling disappeared. Canadian law faculties came to fol- low the Harvard model in many respects (once Ontario fell into line), and they nev- er had the accessible "night law schools" of the U.S. But in one important way, they featured the diversity that Reed advo- cated. He thought some law schools should focus on local law, and Canada's law fac- ulties, one to each province until relatively recently, tended to teach local law while at the same time providing some exposure to legal analysis and theory. Many still do, though some "nationalization" has taken place. As for articling, it is still with us, for the time being anyway. But before you abol- ish it, however, remember Joni Mitchell's famous line: "That you don't know what you've got 'till it's gone." LT uPhilip Girard is a legal historian and professor at Osgoode Hall Law School. He is also associate editor at the Osgoode Soci- ety for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca. End criminality for surrogacy and gamete donation BY CINDY WASSER A s lawyers, we have a duty to protect the in- terests of our clients. Since December, a large coalition of lawyers has been organizing meetings with members of Parliament and senior bureaucrats, sharing our different perspectives on why they should decriminalize compensation for surrogacy and the do- nation of sperm and ova. With 10 years of experience running one of Canada's busiest fertility law practices representing hundreds of intended parents and surrogates each year, I have been sharing my professional opinion as an expert in my field. I have also been sharing my personal experience as a mother to two daughters created with the help of an egg donor and two surrogates. The conversation we are having is not about com- mercializing surrogacy and the donation of genetic ma- terial, as some have characterized it. We are talking about eliminating the fear of crimi- nality that currently undermines everyone wanting to safely and fairly build families with donors and surro- gates here in Canada. I stood alongside MP Anthony Housefather in March when he first announced his plans to introduce a private member's bill that would abolish the federal prohibitions against compensating gamete donors and surrogates. When he tabled this bill in the House of Commons last month, I was also present. Sitting next to me were hopeful and intended parents, experienced surrogates and other allies from across the fertility industry, in- cluding medical professionals, consulting agency rep- resentatives and fellow fertility law practitioners. I am grateful to live and work in a country where gamete donation and surrogacy are legal and where surrogates and donors may be reimbursed for reason- able expenses. But ever since the Assisted Human Reproduction Act was enacted in 2004, Canadian parents have been at risk of facing 10 years in prison, a $500,000 fine or both for reimbursing donors or surrogates for any ex- pense that might be deemed unreasonable or for pro- viding them with any form of gift or payment. It is outrageous that anyone trying to start a family could face harsher criminal penalties than if they were trafficking drugs or committing certain acts of terror- ism. For the sake of our clients, every one of us practising in this area of law should want to see this changed. No Canadian should have to fear being treated as a criminal for building a family with a donor or surro- gate. And my colleagues and I should not have to worry about whether we are aiding and abetting a crime if we tell a client that it's OK to send f lowers to her donor after an egg retrieval procedure or if we negotiate for a sur- rogate to receive reimbursement for winter tires to help her travel safely to and from medical appointments. Since our laws prohibit Canadian donors and sur- rogates from receiving fair compensation for their time and effort, they remain few in number. As a re- sult, many Canadian fertility specialists have encour- aged their patients to travel south of the border to seek out American donors and surrogates. In doing so, they could be seen as promoting compensation for gamete donation and surrogacy, which means they could also be aiding and abetting a crime. Hopeful parents, donors and surrogates are also weary about the legality of working with fertility con- sulting agencies, which can provide them with invalu- able navigational services and support networks. Due to the prohibitions against accepting payment for matching donors or surrogates with intended parents, they often resort to the Internet to find a match for themselves, rather than utilizing the professional assis- tance of these agencies, out of fear that their consulting fees might be illegal. While only one person has ever been prosecuted un- der the Assisted Human Reproduction Act, the ever- present possibility of an RCMP investigation hangs over everyone involved in the process of building fami- lies with donors and surrogates. Why should they suffer such undue stress during what should be a joyful journey? In contrast, nothing in the federal Criminal Code prohibits Canadians from buying, selling or bro- kering human organs. These activities are governed solely by regulations at the provincial level, where governments are much more equipped to handle health matters. There is no good reason for treating surrogacy and gamete donation any differently. That is why the Canadian Fertility and Andrology Society — the largest body representing fertility spe- cialists within Canada's legal and medical professions — and the Canadian Bar Association have been calling for an end to the federal prohibitions against compen- sation for surrogacy and gamete donation. They for- mally made this recommendation to Health Canada back in the fall of 2016, when the department invited input on its plans to update the Assisted Human Re- production Act with regulations that were promised when the legislation was first introduced. Adding clear regulations might help, but what is truly needed is the removal of the possible criminal penalties. They have created nothing but hardship for the victims of infertility, hopeful LGBTQ parents and other Canadians who need assistance building their families. While intended to protect donors and sur- rogates from exploitation, they have ironically compli- cated their ability to receive appropriate support from intended parents and fertility industry professionals due to the threat of criminality. This is why I am advocating for our government to adopt Housefather's bill along with experts from across the fertility industry who oppose the draconian nature of the current legislation. I hope we can count on sup- port from all of Canada's fertility law practitioners as we continue to call for this change in the interests of our clients. LT uCindy Wasser is the principal lawyer at Hope Springs Fertility Law in Toronto, a firm she founded in 2008 after retiring from a 20-year career in criminal law. u SPEAKER'S CORNER COMMENT That's History Philip Girard

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