The Immunity of the Attorney General to Law Society Discipline

New scholarship from CALE member Andrew Flavelle Marton published in the Canadian Bar Review on the interesting question of whether the law society can discipline the AG.

Abstract:

The Attorney General is both the minister responsible to the legislature for oversight of the law society and a practicing member of the law society. This dual status raises important questions: Is the Attorney General subject to discipline by the law society? Should she be? This article argues that the Attorney General is immune, absent bad faith, both for prosecutorial discretion and core policy advice and decisions, as well as absolutely immune under parliamentary privilege for anything said in the legislature. The Attorney General enjoys no special immunity otherwise, i.e. for the practice of law outside prosecutorial discretion and for policy and political functions outside core policy advice and decisions. (The Attorney General for Ontario enjoys extended immunity under a statutory provision that is unique to that province.) The article then argues that the Attorney General should generally be subject to discipline to enhance the rule of law and the protection of the public. If some immunity is necessary, that immunity should require good faith.

Link to here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2889089

An Inquiry Committee of the Canadian Judicial Council recommends the removal of Justice Camp

Message from Canadian Judicial Council:

 

Ottawa, 30 November 2016 –The Inquiry Committee reviewing the conduct of Justice Robin Camp has presented its report to the Canadian Judicial Council. An Overview of the Report is also available on the Council’s website.

The Inquiry Committee found that Justice Camp committed misconduct while presiding over the trial in R. v. Wagar and placed himself, by his conduct, in a position incompatible with the due execution of the office of judge within the meaning of paragraphs 65(2)(b) and (d) of the Judges Act.

The Inquiry Committee found that during the Wagar trial Justice Camp made comments and asked questions evidencing an antipathy towards laws designed to protect vulnerable witnesses, promote equality, and bring integrity to sexual assault trials. The Inquiry Committee also found that Justice Camp relied on discredited myths and stereotypes about women and victim-blaming during the trial and in his reasons for judgment.

The Inquiry Committee has expressed the unanimous view that a recommendation by the Council for Justice Camp’s removal is warranted.

Council will now consider the Inquiry Committee’s report, after giving Justice Camp an opportunity to make written submissions.

After considering all the issues, Council will decide on a recommendation to make to the Minister of Justice of Canada in this matter.

Information about the Council, including the process for public inquiries, can be found on the Council’s website at www.cjc-ccm.gc.ca.

September Convocation at Law Society of Upper Canada

A number of very interesting issues were addressed at this month’s LSUC convocation, including reports relating to articling and the Law Practice Program as well as the Challenges Faced by Racialized Licensees Working Group.

The following summary of agenda items is taken from LSUC’s webpage.

September 2016 Convocation

New task force to review governance structure
Convocation established a new task force, at the request of the Treasurer, to review and make recommendations in regard to the Law Society’s governance structure. The work of the Governance Task Force 2016 will support Convocation’s strategic priority to ensure the efficiency and effectiveness of the Law Society’s governance methods. Full report.

 Mental Health Strategy Implementation Task Force established
Convocation appointed a new task force to monitor and provide guidance on the implementation of the Law Society’s mental health strategy. The strategy, which was approved by Convocation in April 2016, addresses mental health and addiction issues through both preventive and regulatory approaches. Full report.

Compensation Fund per-claimant limit increased to $500,000
To enhance the Law Society’s public protection measures, Convocation approved an increase in the lawyers’ Compensation Fund per-claimant limit to $500,000 from $150,000. The Compensation Fund helps those who have lost money because of a licensee’s dishonesty. The new limit applies to funds advanced to a lawyer on or after September 22, 2016. Full report.

LAWPRO base premium down $400 for 2017
Convocation approved LAWPRO’s report setting out the Law Society’s professional liability insurance program for 2017. The base premium for professional liability insurance coverage for Ontario lawyers will be $2,950 in 2017, down $400 from the 2016 premium. Full report.

Lawyers’ rules of conduct amended re: short-term pro bono services
The lawyers’ Rules of Professional Conduct respecting conflicts of interest relevant to short-term pro bono services were amended to expand their applicability to services provided under the auspices of a pro bono provider. Previously, the rules applied primarily to services provided through Pro Bono Ontario. The amended rules reflect changes made, in 2014, to the Federation of Law Societies of Canada’s Model Code of Professional Conduct. Full report.

Paralegals’ conduct rules amended
Convocation amended the Paralegal Rules of Conduct to provide for a modified conflicts of interest standard for paralegals who provide pro-bono short term legal services under the auspices of Pro Bono Ontario or another pro bono provider. The rules were also amended to add ‘family status’ to rule 2.03(4), making it consistent with Rule 2.03(3). Full report.

Working group recommends strategies to end systemic racism in the legal professions
The Challenges Faced by Racialized Licensees Working Group presented a report proposing 13 recommendations to address issues of systemic racism in the legal professions. The report is the culmination of thorough study and province-wide consultations, showing that racialized lawyers and paralegals face longstanding and significant challenges at all stages of their legal careers. The 13 recommendations fall within five areas of action: accelerating a culture shift, measuring progress, educating for change, implementing supports and the operations of the Law Society. Convocation will consider the report on December 2. Comments from the profession and public are welcome until November 14. More information.

PD&C Committee presents recommendations re: Pathways Pilot, LPP and Lawyer Licensing Process
The Professional Development & Competence Committee is recommending the Law Practice Program end following the completion of its third year (2016-17) and the enhanced articling program continue, with ongoing monitoring. The committee is also proposing a number of enhancements to the Lawyer Licensing Process. The committee presented its recommendations to Convocation following its mandated evaluation of the Pathways Pilot Project and its consideration of the licensing process in light of the Law Society’s strategic priority to strengthen licensing standards. The committee’s report to Convocation, which includes information on its analysis and recommendations, will be debated by Convocation on November 9. Written comments from the profession are welcome until October 19. More information.

Treasurer sets out direction and priorities for committees
To increase transparency regarding the policy development process, the Treasurer has provided to the chair and vice-chairs of Convocation’s standing committees, memoranda setting out his expectations for work to be undertaken during his term. The work includes priorities under the 2015-19 Strategic Plan and ongoing initiatives related to the committees’ mandates, as well as targets for completion of work. The memorandum are publicly available in the Treasurer’s Report to Convocation

Disclosure policy framework approved
Convocation approved a policy framework to clarify when information about complaints and investigations may be disclosed and to make clear the Law Society’s legal obligations to protect certain information from disclosure. Statutory amendments and operational changes may be required to fully implement the framework. Full report.

Human Rights Monitoring Group intervention approved
Intervention in the following case was approved by Convocation:

  • Yessika Hoyos and other members of the José Alvear Restrepo Lawyers’ Collective (CAJAR) — Colombia

Full report.

Audit & Finance Committee report
Convocation approved the Audit & Finance Committee’s recommendation regarding the Fund Balance Management Policy for the Lawyers Compensation Fund. Full report.

Appointments
Bencher Ross Earnshaw was appointed as the Law Society’s representative on the Council of the Federation of Law Societies of Canada. Bencher Jack Braithwaite was re-appointed as the Law Society’s representative on the Canadian National Exhibition Association. Motion.”