CALE/ACEJ Feedback to the Law Society of Ontario Competence Task Force Consultation

The Law Society of Ontario is currently asking for comment on its regulation of post-licensure competence for legal professionals. This Call for Comment, found here, closes on November 30, 2021 and the relevant background report prepared by the Law Society of Ontario’s Competence Task Force can be found here.

There are many topics and issues addressed in the background report. CALE/ACEJ has submitted feedback today on the topics of (1) CPD and (2) Technological Competence. Our feedback in full can be found here:

CALE/ACEJ Lifetime Achievement Award 2021

CALE/ACEJ is delighted to announce that Justice Alice Woolley has been chosen as the recipient of the CALE Lifetime Achievement Award for this year.

Justice Woolley was one of the founding directors of CALE/ACEJ in 2012, which held its first official meeting at ILEC IV in Banff in 2012. In 2012, she was appointed Vice-President of CALE/ACEJ, a position she held until 2015, when she became President. Justice Woolley resigned from her role as President in January 2019, following her appointment to the bench.

In her roles with CALE/ACEJ, Justice Woolley helped to promote and connect the Canadian legal ethics community to the broader international legal ethics community. Her hard work and skillful leadership led to the successful hosting in 2012 of the fifth biennial International Legal Ethics Conference in Banff, Alberta – the first and only time this conference, which attracts hundreds of legal ethics scholars from around the world, was held in Canada. Her participation in international conferences and workshops, in addition to her role as President of the International Association of Legal Ethics built further bridges between the Canadian and international legal ethics communities.

As an academic, Justice Woolley’s contributions to legal ethics scholarship are quite significant. In addition to numerous law journal articles, Alice is the author of the important text, Understanding Lawyers’ Ethics in Canada and the co-editor and co-author of the leading casebook on legal ethics in Canada, Lawyers’ Ethics and Professional Regulation. As one of the authors of a supporting reference letter to her nomination for this award stated: “Only a very few scholars on the international scene have comparably broad and ambitious research interest” and described her “scholarship to be sharp, rigorous, and above all utterly intolerant of platitudes and lazy thinking.” As another referee summed up: “In terms of ‘re-defining’ the field, Justice Woolley is recognized as the most prominent, influential and prolific modern legal ethics scholar in Canada.”

In her role as a legal educator, Justice Woolley was a leader in bringing problem-based learning to the teaching of legal ethics and in innovating with a “flipped classroom” model. Her dedication and skill in teaching was recognized institutionally at the University of Calgary, with her two-time receipt of the Howard Tidswell Memorial Award for Teaching Excellence.

Importantly, Justice Woolley did not confine her public service and intellectual contributions to only the academic sphere. While an academic, she wrote 100 blog posts on ABlawg and Slaw between December 2007 and July 2018 which engaged with a variety of legal ethics and judicial ethics questions and were widely read by lawyers and lawyer regulators in addition to academics.

On more personal notes, her referees wrote, among other things “one of Alice’s signal qualities as a scholar, which is her lack of ego and her unfailing generosity regarding the work of others” and that “through all of her incredible professional efforts and accomplishments – Justice Woolley has remained a grounded, modest and reliable friend.”

This award is meant to “to recognize sustained accomplishments in the field of legal ethics and professionalism by a member of CALE/ACEJ”. Through her leadership with CALE/ACEJ, her academic scholarship and public service, Justice Woolley is extremely deserving of this recognition. To use the words of one of the referees for this award: “I cannot imagine a member of CALE, or in fact any member – past or present – of our Canadian legal ethics community who better fits this description.”

Conference Recap 2021

This year’s annual conference was held over Zoom, as public health conditions continue to make in-person gatherings difficult. We had intended to gather at Lakehead University but instead its planning team, led by Jula Hughes and Wendy Parkes, enabled us to meet online. The conference was held October 22-23, 2021. A full agenda for the conference is available elsewhere on this site. The conference featured a more formal opening than in some prior years, including a welcome from Elder-in-Residence Gerry Martin and greetings from Chief Peter Collins of the Fort William First Nation and Deputy Chief Anna Betty Achneepineskum of the Nishnawbe Aski Nation.

One highlight was the session on legal regulation which looked at what several law societies are doing in response to the Truth and Reconciliation Commission’s Calls to Action. Initiatives include mentoring programs for Indigenous lawyers and new continuing professional development programs with Indigenous content and perspectives. There are ongoing debates about what level of competence should be required of the profession and whether particular aspects, such as educational courses, should be mandatory. As an example, Alberta has made the completion of an online course about Indigenous cultural competency training mandatory. Other provinces and territories are considering how to proceed.

Another highlight was a special session on the new Ethical Principles for Judges adopted by the Canadian Judicial Council earlier this year. Several commentators with expertise in the area of judicial ethics offered their perspectives on the most important changes. One of the key themes of the session was the need to update and develop the Ethical Principles on more of an ongoing basis rather than once each generation or so.

The session on teaching legal ethics considered the benefits to students of exposure to real-world discipline cases and ways to address curriculum gaps relating to particular groups. It also featured a debate about the importance of instilling certain ethical values in students. All presentations fueled the notion that teaching legal ethics to the next generation of lawyers is an important responsibility that involves difficult choices in structuring and delivering the course.

The conference featured five presentations about recent research activities by CALE/ACEJ members. These were about (a) ethical issues facing in-house counsel in the Canadian context, (b) the duty on Attorneys General to encourage respect for the administration of justice (and how that relates to potential criticisms of judicial decisions or processes), (c) making decisions to take on litigation clients in cases that are highly unpopular, (d) adopting a modified resolute advocacy model for transnational environmental and human rights litigation involving extractive industry clients and (e) what lawyers should know about the obligations on psychologists concerning the release of patient files for use in legal proceedings.

As usual, the tone was largely informal, allowing for significant debate and disagreement without animosity or hostility. The 40 or so attendees found the material rich and engaging. The obvious drawback was the inability to connect in person and relax in a social setting after the sessions. Lakehead University has generously volunteered to host again in 2022, this time in person in Thunder Bay. CALE/ACEJ members very much look forward to it.

Annual Meeting 2021

On October 23, 2021, CALE/ACEJ held its annual meeting of members as an online Zoom meeting. President Amy Salyzyn highlighted CALE/ACEJ’s active role in providing feedback to both the Canadian Judicial Council (for its new version of Ethical Principles for Judges) and the Federation of Law Societies of Canada (for its ongoing revisions to aspects of the Model Code). She provided an update on the status of some of the proposed changes to the Model Code relating to discrimination and harassment, ex parte communications and proceedings, and the return to the practice of law by former judges.

Treasurer Basil Alexander reported that the financial position was not significantly different from the prior year and that CALE/ACEJ is current with its corporate and tax filings.

Elected as directors of CALE/ACEJ for 2021-22 are Basil Alexander, Brent Cotter, Richard Devlin, Jula Hughes, Sonia Lawrence, Gillian MacNeil, Andrew Flavelle Martin, Pooja Parmar, Stephen Pitel, Alain Roussy and Amy Salyzyn. Marie Claude Rigaud, having been appointed to the Superior Court of Quebec in May 2021, did not return as a director. New to the board is Gillian MacNeil, an Assistant Professor at the University of Manitoba.

At a subsequent meeting of the directors, the following officers were appointed: Chair of the Board Richard Devlin, President Amy Salyzyn, Vice-President Stephen Pitel, Corporate Secretary and Treasurer Basil Alexander, Chief Information Officer Amy Salyzyn and Conference Coordinator Jula Hughes.

The directors discussed the Law Society of Ontario’s ongoing consultation about competence issues and agreed that a submission by CALE/ACEJ should be drafted.

Lakehead University agreed to host the 2022 CALE/ACEJ conference, very much hoping that gathering in person in Thunder Bay will be viable. The aim for 2023 is to hold the conference at the University of Victoria.

CALE/ACEJ extended thanks to Amy Salyzyn for her leadership, to Brent Cotter for his significant role in developing the new Ethical Principles for Judges and to Jula Hughes, Wendy Parkes and their team at Lakehead University for their successful organization of this year’s online conference.

OBA Foundation Chief Justice of Ontario Fellowships

Congratulations to CALE/ACEJ Board member Andrew Martin and CALE/ACEJ member Daniel Del Gobbo for receiving fellowships this year! Official statement from the OBA Foundation follows below.

https://www.oba.org/OBAFoundation/Fellowships

The OBA Foundation administers and funds The OBA Foundation Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism (the “Fellowships”). 

The 2021-22 Fellows are Prof. Andrew Flavelle Martin of Schulich School of Law, Dalhousie University (Fellowship in Research) and Daniel Del Gobbo (Fellowship in Studies).

Prof. Martin will be researching the meaning of the professional duty to encourage respect for the administration of justice.  Mr. Del Gobbo will be studying the professional duty to promote respect for human rights law and equality.

CALE/ACEJ’s Reaction to the Updated Ethical Principles for Judges

After several years in development, the Canadian Judicial Council (CJC) has published its updated Ethical Principles for Judges (EPJ).  The updated EPJ can be found here: https://cjc-ccm.ca/en/news/canadian-judicial-council-publishes-new-ethical-principles-judges.

CALE/ACEJ has followed the revision of the EPJ with considerable interest and has offered comments and suggestions to the CJC along the way.  Now that the updated EPJ have been released, it is time to take stock.

1.  Key Positive Changes

First, the previous version of EPJ did not impose any obligation of confidentiality on judges.  No matter how implicitly obvious such an obligation might seem, it is not appropriate to have such an important matter “go without saying” in a document of this nature.  It is laudable that the EPJ now includes the express obligation of confidentiality (2.B) and, notably, specify that “[c]onfidentiality and discretion extend past a judge’s departure from judicial office” (2.B.3).

Second, the updated EPJ contain greater discussion of judges’ obligations concerning access to justice.  The recognition that “judges have a responsibility to promote and foster access to justice” (2.D.1) is a welcome addition, as is the direction to judges to assist self-represented litigants by providing “information and reasonable assistance, proactively where appropriate, on procedural and evidentiary rules” (2.D.2).  Including discussion of these topics will contribute to a more context-sensitive judicial system.

Third, the EPJ now mention an obligation on judges to “develop and maintain proficiency with technology relevant to the nature and performance of their judicial duties” (3.C.5). Technological competence is essential in the current context in which judges work. Having relevant technological skills such as the ability to competently navigate virtual hearing platforms is now a key part of the judicial role. Judges also increasingly need to be acquainted with technologies and technological tools in relation to evidentiary issues.  Relatedly, judicial activity on social media is undeniably an area where additional ethical guidance is important.  The updated EPJ contain new discussion of how social media impacts a judge’s ethical obligations (1.B.2, 2.A.5, 4.B.2, 5.B.15 – 5.B.18).

Fourth, in discussing judicial duties, the EPJ now provide guidance to judges in relation to their work in settlement conferences and the judicial mediation of disputes.  It discusses specific objectives that judges should have in mind when engaging in non-adjudicative dispute resolution, including ensuring informed decision-making by the parties, transparency of processes and appropriateness of outcomes (i.e. ensuring that “the outcomes are not coercive, unconscionable, or illegal”) (5.A.10).  As noted in the EPJ, non-adjudicative dispute resolution is “[a]n expanding aspect of judicial responsibility”.

Fifth, with an increasing number of former judges returning to the practice of law, particularly as counsel to private firms, the EPJ have added guidance to address this phenomenon.  An important general statement is that “former judges should be attentive to the ways in which their post-judicial actions or activities could undermine public confidence in the judiciary” (5.E.2).  The EPJ also provide that “former judges should not appear as counsel before a court or tribunal in Canada” (5.E.2).  This is more restrictive than the current ethical rules for lawyers in most provinces.

In addition to the major changes noted above, the updated EPJ also provide enhanced and modernized guidance in multiple areas. For example, in discussing judicial wellness, the document explicitly references that judges should “take advantage of judicial assistance programs as appropriate” (3.D.2). Other examples include a new reference to an obligation for judges to “refrain from any form of harassment in the workplace” (2.E.2), the inclusion of references to “gender identity and expression” in sections addressing professional development (3.C.4) and equality in proceedings (4.B.1) and clarifying appropriate interactions between Chief Justices (and other judges with administrative responsibilities) and the executive branch of government (5.B.4).

It is also worth noting that although the updated EPJ retain the structure of the previous 1998 version in discussing judicial ethics under five main principles, there are differences in the wording of two of the five principles: the principle of “Integrity” is now called “Integrity and Respect” and the principle of “Diligence” is now called “Diligence and Competence”.  While these changes in wording are subtle, they reflect a more robust view of the ethical issues surrounding the judicial role. While a recognition that judges must act with respect and with competence was implicit in the previous version, it is helpful that the EPJ highlight these important ethical obligations.

Finally, the previous version of the EPJ contained several instances where the English version and the French version differed.  Some of these differences were in tone or emphasis but some went to the content.  Accordingly, it is very positive to see that the CJC has gone to considerable lengths to achieve consistency between the French and English versions (Introduction 11).

2.  Key Concerns

The CJC has maintained its longstanding approach that the EPJ do not constitute a binding code of conduct but rather is aspirational and advisory (Introduction 4).  It has done this despite the fact that much of the judicial conduct addressed in the EPJ is in no way what the best judges should hope to possibly achieve but, in reality, is a required standard which all judges should be routinely expected to meet.  Treating the EPJ as binding would in no way undermine the core principles of impartiality and independence.  CALE/ACEJ remains committed to the position that the EPJ should be explicitly binding and mandatory.  This would best enhance public confidence in the judiciary and the administration of justice.

The CJC has declined to explicitly reference Reconciliation and the judiciary’s role in establishing and maintaining a mutually respectful relationship between Indigenous and non-Indigenous peoples in Canada. Language has been added to provide that “Judges are expected to be alert to the history, experience and circumstances of Canada’s Indigenous peoples” (Introduction 8) and to note the importance of judges “studying the history, heritage and laws related to Indigenous peoples” (3.C.4).  These acknowledgements are important.  However, they are largely inward-looking, relating to conduct judges can perform on their own in isolation from Indigenous peoples.  The EPJ should explicitly refer to Canada’s commitment to actively pursue Reconciliation with Indigenous peoples and to the role of judges in so doing. CALE/ACEJ also reiterates its previous feedback to the CJC that referencing “Canada’s Indigenous people” may be perceived as having a possessive connotation, thereby generating concerns about ongoing implicit colonization, and should have been reworded.

3.  Thoughts for the Future

The update of the EPJ has been described as a generational event.  Indeed, the previous version (1998) was released in the previous millennium!  But as the pace of societal change increases, it is troubling to contemplate that another two decades could pass before any other revisions are made to the EPJ.  Most ethics or professionalism codes are not developed in this manner.  Rather, they are ongoing documents that are amended as needed.  The CJC should move in this direction.  It should be prepared to make incremental changes to the EPJ.  The experience in other professions, certainly not least with the Federation of Law Societies of Canada, is that appropriate consultation and reflection remains possible even while developing the document on an ongoing basis.

CALE/ACEJ Board Member Appointed to the Superior Court of Quebec

CALE/ACEJ is proud to announce that CALE/ACEJ Board member Marie-Claude Rigaud was appointed as a Judge of the Superior Court of Quebec for the district of Montréal on May 26, 2021. An official announcement of the appointment and a brief biography of Justice Rigaud can be found here.

As a result of her appointment, Justice Rigaud will be stepping down from the CALE/ACEJ Board. We thank her for her many years of service and for all of her many important and collegial contributions to the Canadian legal ethics community. Congratulations Justice Rigaud!

Recent Legal Ethics Columns on Slaw.ca

In recent months, CALE/ACEJ members have continued to write columns on legal ethics topics at Slaw.ca.

In relation to the Law Society of Ontario’s approval of a Regulatory Sandbox for Innovative Technological Services (see, here, for more information), both Brooke MacKenzie and Amy Salyzyn wrote columns that can be found here and here.

Additionally, Deanne Sowter has written about the perils of over-identifying with a client when acting as a family law lawyer and Noel Semple has written about “the accountability gap” in our civil justice system.