Category: Slaw Columns

Systemic racism is a reality in Canada. At many junctures in life, a person’s access to opportunities and fair treatment will be affected by their race, skin colour, or indigineity. The legal profession, in order to do its essential work in our society, must recognize and confront systemic racism.

So far, most formal efforts to do so have focused on racism’s effect on lawyers, law students, and others who work in the law. (See for example the action plans from the law societies of BC and Ontario, as well as Alberta’s “My Experience” project). These are worthy and very important efforts. But something might be missing: attention to the effects of systemic racism on actual and would-be clients.

What might a client-centric systemic racism agenda look like? First, it would have to focus both on actual clients who are racialized, and on the much larger number of individuals who would like to receive (and need to receive) legal services but never get the chance. Second, such an agenda would consider the quality and accessibility of legal services for individuals, but also for corporate clients exposed to systemic racism. This includes First Nations, equity-seeking nonprofits, and businesses owned and operated by racialized people.

Here are a few issues that might come into better focus with client-centric lens on systemic racism:

• Cultural Competence is the idea that professionals must be able to work respectfully and constructively with people from different backgrounds. For decades it has been a core requirement for practitioners in fields such as health care and social work, but it is still not mentioned in the professional codes governing lawyers in Canada.
• Most law societies collect demographic data on their licensees. This allows identification of racial disparities, and the potential for remedial action. However most make little if any effort to ask the same questions about people who receive, or need, legal services. One exciting exception is the Law Society of Saskatchewan’s support for a recently published Legal Needs Survey which includes analysis based on race and indigenous status.
• A large proportion of racialized Canadians are immigrants or refugees. Recent newcomers are not generally served well by our legal services regulators, including the federal College of Immigration and Citizenship Consultants. For example, many are defrauded by crooked or incompetent immigration practitioners. The regulators’ generally complaint-driven approach to discipline has significant limitations when it comes to protecting these vulnerable people. Unjustly deported people, and people who are struggling on the margins of Canadian society, have little incentive to report to law societies, which can do little or nothing to remedy the consequences of unauthorized or incompetent legal services. A more proactive approach is needed.
• One manifestation of systemic racism is lower incomes for those who are subject to it. And yet most Canadian legal services regulators have extremely strict rules regarding forms of practice that would likely be more affordable. These include paralegal practice, alternative business structures, and reasonably quick licensing of foreign-trained legal professionals.

The Challenge of Client-Centricity

Maintaining a client-centric stance is a recurring challenge for our law societies, and for the profession more broadly. The law mandates us to act in the public interest. This phrase is emphasized in the legislation and case law because it’s often easier to talk among ourselves about lawyers’ interests. After all, our regulators and professional bodies are led almost exclusively by lawyers who are accountable only to other lawyers. This is a consequence of self-regulation of the legal profession, a principle which remains essentially iron-clad in Canada.

Law societies have led a conversation about systemic racism that was scarcely happening 15 years ago, and that’s a very good thing. It may be time to expand that conversation in a new direction. It is time to ask how we as a profession can better meet the needs of racialized and indigenous clients.

Canada has one of the world’s better justice systems, according to the World Justice Project Rule of Law Index. We are ranked 12th out of 140 world countries by the WJP. Delay, however, is a major Achilles’ Heel. (1)  

• When it comes to providing timely justice in civil matters, Canada ranks only 56th worldwide according to the WJP Index. We received a failing grade of 47% for this, the lowest among 44 sub-factor scores for Canada. In Ontario, for example, the average civil trial occurs over five years after the Statement of Claim was delivered. 
• Some administrative tribunals provide very timely justice, but many do not. In Ontario, it has recently taken over 7 months to get a hearing at the Landlord and Tenant Board, and years to get before the Human Rights Tribunal. 
• On the criminal side, 27% of Superior Court cases nationwide had been open for more than 18 months in 2017-2018. Timeliness has improved somewhat as a result of the Supreme Court of Canada’s imposition in 2016 of hard timelines on criminal prosecutions in R. v. Jordan. However, that success has come at a price. Already by 2019, over 800 criminal cases had been thrown out due to delay. At least half of these would probably have resulted in a finding of guilt, (2) but instead they were dismissed for delay. The public lost the chance in each of those to deter, rehabilitate, denounce, and accomplish the other legitimate goals served by conviction and sentencing of guilty people. 

Where Does the Fault Lie? 

The state bears fault for this situation. Governments have not always kept courts and adjudicative tribunals staffed up, which inevitably creates backlogs and delays. Judges and adjudicators have themselves been accused of unreasonably delaying the release of judgments, or being indifferent to parties’ delaying tactics. 

But what about individual lawyers and paralegals, representing clients in contested matters? Delay, I believe, is a legal ethics issue as well as a public policy and systemic issue. It should be clearly understood that advocates, as officers of the courts and tribunals before which they appear, have an obligation to help the system do its work in a timely way. What makes this challenging is that both client interests, and lawyers’ own interests, can push us away from this duty. 

When Clients Gain from Delay 

Some clients have reasons to delay litigation. Defendants and respondents often know that they will give up money, or their freedom, or something else of value to them the end of the case. The longer the matter takes, the longer some defendants get to keep something they value. Police officers accused of misconduct, for example, are often suspended with pay, at a six-figure salary, pending the final hearing of their matters. If an officer in this position expects to be terminated after that hearing, then every month that it can be delayed produces a benefit worth thousands of dollars to them. In criminal matters, some observers suggest that some defendants engage in “tactical delay.”  

In civil or family matters, delay places pressure on plaintiffs or applicants to settle for pennies on the dollars that they are actually owed. Think here of a critically injured personal injury plaintiff, or a homemaker spouse in a family law case. If you are in a bad financial situation, can you hold out years to get what you are actually owed? Or will you take the lowball offer cheque that you can cash tomorrow? 

Legally experienced defendants know this, and the unscrupulous ones are not afraid to take advantage of it. While courts can punish intentional defence delay with cost awards, such consequences are often very mild. A similar dynamic is seen in administrative tribunals that deal with benefits (such as BC’s Civil Resolution Tribunal or Ontario’s License Appeals Tribunal for automobile accident benefits).  

In any type of litigation, a lawyer or paralegal will have opportunities to help their clients out by slowing matters down if that’s what the client wants. However, doing so is unethical and may constitute professional misconduct. The Rules of Professional conduct state that “in civil proceedings, a lawyer should avoid and discourage the client from resorting to …. tactics that will merely delay.” (Model Code Rule 5.1-1, Commentary 8). It is interesting that this provision explicitly excludes non-civil matters. Regulators might want to reconsider whether lawyers of any kind should engage in encourage delay tactics. 

In any case the Rules already say that all lawyers acting as advocates must “promot[e] the parties’ right to a fair hearing in which justice can be done.” (Rule 5.1-1, Commentary 1). This seems to mean that a lawyer, including a defence lawyer, must promote not only their own client’s interest, but rather the interest of all parties in a fair hearing. Delay makes it harder for justice to be done, among other reasons because evidence tends to become less reliable. 

Lawyers’ and Paralegals’ Own Incentives 

In some cases, it is the interests of advocates themselves, not those of their clients, that might tempt them to exacerbate delay. Those who bill by the hour may be rewarded with higher fees if their cases drag on. Successful professionals who have plenty of other things to work on may not be swayed by this. However, the perverse financial incentive to delay is not insignificant for those who might not have other sources of income once a certain big case ends. One attraction of contingency and flat fee billing models is that they align the lawyer’s financial incentives with a reasonably quick resolution. 

Another temptation for advocates, which contributes to delay, is taking on too many clients. The busier you are, the more likely it is that you will be the reason why court dates, mediations, etc. cannot be scheduled for months or years. In one September 2023 criminal hearing in a southwestern Ontario courthouse, the accused was incarcerated, having been denied bail. The Court was seeking to schedule a defence Charter motion to exclude evidence, as well as a five-day jury trial. The Court and the Crown had dates available as early as the next month (October). However, the defence lawyer had an extremely busy schedule – just on that morning’s 9am docket he had five separate clients.  

He had to refuse dates offered going well into next year, due to other trials he had scheduled. They finally agreed upon a date in June 2024. However, it seemed to at least one experienced observer that, with a less busy defence lawyer, the accused might have had his Charter motion heard within a month and, if successful, he might have been free in two months. 

The Rules require lawyers to “make every effort to provide timely service to the client.” If a lawyer foresees “undue delay in providing advice or services,” the lawyer must inform the client of options including retaining new counsel (Rule 3.1-2, Commentary 12). You might have to talk them out of the idea that you are the only one who can do a good job for them.  

Declining retainers when you lack the capacity for timely service is not just a duty to clients, but also part of the duty to the legal system itself identified above — promoting fair and substantive hearings in which justice can be done. Having colleagues who can take over for a date if necessary is one way to say “yes” to a would-be client without letting your other obligations slow down the resolution of their matter. These colleagues might be members of your firm, but they might also be on a “locum” contract that lets them help temporarily without taking over the matter.  

Improving the timeliness of Canadian justice is essential. Governments, courts, and tribunals must step up. But advocates who work in contested matters should also recognize that contributing to timely justice is an ethical imperative, not only for clients but also to promote the functioning of the legal system itself.  

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(1) Achilles, according to Greek mythology, was a mighty warrior who had one critical weakness. As a baby, Achilles had been dipped by his mother in the River Styx, which made him invulnerable. However Mom had to hold him by the heel, above the water, when she did so. And so any blow to the back of his foot could kill him. An “Achilles’ Heel” is a vulnerability in a person or thing which is otherwise very strong. 

(2) Of all the cases that were actually completed in 2020-2021, one half resulted in a finding of guilt according to Statistics Canada: https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2023/mar1.html  

So, you need a lawyer. Who are you going to call? There are more than 50,000 to choose from in Ontario. Each one is officially licensed to handle any and all legal needs, but most are not competent to help with your particular need, and an even smaller number would be ideal for you. It can be very difficult to sort the wheat from the chaff, especially if you haven’t worked with lawyers in the past.

If a would-be client is confused by the options, and doesn’t have someone knowledgeable they can ask, it would be sensible to look at official designations. And Ontario, for the time being, has not one but two official designations that purport to mark out especially excellent lawyers.

The Specialists are In

The Law Society of Ontario’s Certified Specialist Program, established in 1986, allows about 800 Ontario lawyers to advertise themselves as specialists in one of 17 areas. To do so, these individuals had to prove to the Law Society’s satisfaction that they have mastered, and practiced consistently, in a niche such as family, immigration, or estate law.

And yet in May 2022 Convocation (the LSO’S elected board of governors) voted to abolish all of the certified specialist designations except the one for Indigenous Legal Issues. After some significant resistance, including from the Certified Specialists themselves confronting the abolition of a distinction they felt they had earned, this was put on hold in September 2022. A subcommittee is seeking feedback from the public and will report back to Convocation later this year about whether to continue, abolish, or reform the Program.

Counsel to the King

Even if the LSO’s list of Certified Specialists does disappear, the Office of the Attorney General has chipped in its own list of 91 elite lawyers. The new King’s Counsel designation was born without warning or fanfare in a press release on Friday June 30. The presser was issued on the eve of the Canada Day long weekend, which is the best possible moment to minimize media attention. There was no oral announcement, either inside or outside the Legislature.

Why would a government that has identified 91 especially wonderful lawyers, and bequeathed a noble honour upon them in order to celebrate the coronation of King Charles III, not want to make a bigger public splash? Those scrutinizing the list of 91 quickly found out why. While it contained a few who have genuinely done extraordinary things, the majority were distinguished only by their connections with the governing Progressive Conservative Party of Ontario. Every lawyer in Cabinet was included, most lawyer MPPs in the government caucus were included, and so were a number of the government’s most prominent political allies and appointees.

A Farce for Lawyers

For Ontario lawyers and insiders, the King’s Counsel designation is simply a joke. It’s amusing that such a grand-sounding title — imagine being a lawyer who counsels the King himself! — could have been created in this way. There is no evidence of any structured process to identify these worthies. Questioned a week later, Premier Doug Ford said he had never seen or approved the list. If this is true, then it must have been approved by the Attorney General, or someone in the AG’s office.

Someone in that office probably tried to think of and write down all of the lawyers who are government MPPs, political staffers, or party insiders. Maybe they sent out a few email inquiries to allies, asking who among the party faithful might feel tickled to add a KC to their business cards and website bio blurb. It wouldn’t have taken more than an afternoon or two. For lipstick on the pig, a few non-politically-aligned eminences were added to the list.

It’s amusing to think of the Attorney General deciding to confer such a title upon himself. It’s not quite “Lord of All the Beasts of the Earth and the Fishes of the Seas,” as Ugandan dictator Idi Amin once dubbed himself, but it’s a gesture in the same direction. It’s funny that this was presented as a way to honour the coronation of the new King, when putting his name on something so old-fashioned and malodorous can only undermine the Crown’s reputation in Canada.

Caroline Mulroney simply had to be included on the list as a Cabinet minister and Tory blue-blood. However, she had never actually been called to the bar despite having served as AG herself. It would have been a bit too much to confer the title King’s Counsel on someone not even allowed to practice law in Ontario. And so, it was arranged for Mulroney to be called to the bar “administratively,” without having to take any tedious bar exams, pay any fees, or even swear an oath at Roy Thompson Hall. This happened just three days before she was elevated to the august ranks of KC.

A Tragedy for Clients

But this is a tragedy, not a farce, for the clients whom these lawyers may go on to solicit. For inexperienced people who need legal help, choosing the right lawyer can be very difficult. Well-connected people can get high-quality referrals, but the average person phones the name they know or searches on Google. If this were not the case, then personal injury, family, and criminal defence firms wouldn’t spend the millions they do on advertising.

For a lawyer seeking to attract inexperienced clients, a King’s Counsel designation would be manna from heaven. It’s an official recognition from the government which seems to suggest you are better than other lawyers. The fact that a few genuinely elite, non-politically-aligned names were put on the list add lustre, because we are judged by the company we keep. Prospective clients can be truly told that Joe Shmoe, who worked in politics before hanging out his shingle, is “King’s Counsel, just like Marie Henein.”

Prospective clients in Commonwealth countries with genuinely meritocratic King’s Counsel designations are even more likely to be duped by Ontario’s phony imitation. In the UK, King’s Counsel designations are apolitical and objective. They are made on the basis of recommendations from an independent panel of lawyers, somewhat like the panels that recommend judicial appointments in Canada. An Ontario KC who practices in England, or seeks to attract clients from England, will be in a good position to attract clients who take it as a mark of quality but don’t know the embarrassing truth about how such things are done in Ontario.

There is, of course, one class of client for whom KC will be a helpful and meaningful sign of quality. Those retaining lawyers to lobby this provincial government will know that, apart from the apolitical minority on the list, these are the government’s very best friends in the Ontario bar. That is helpful information, especially given how receptive this particular government is to lobbying.

The Law Society should preserve the Certified Specialist Program, after reforming it to ensure that it graces more of the best lawyers, and none who are mediocre. As for King’s Counsel, there is a compelling argument for an objective, meritocratic designation, open to the entire profession. However, I think it will need to have some name other than “King’s Counsel.” That phrase has been permanently poisoned in Ontario.