- Climbing the Truth and Reconciliation mountain
- Limited Scope Retainers
- A profession of opportunities
- LAP: A story of redemption and compassion
- Unbundling revisited
- 25 years of Justicia
- Input sought on law firm regulation
- It’s time for China to respect rule of law
- Congratulations to UVic Law Faculty
- Our work on Bill C-51
Climbing the Truth and Reconciliation mountain
[posted July 4, 2016]
By President David Crossin, QC and staff lawyer Andrea Hilland
The Truth and Reconciliation Commission’s calls to action were the focus of this year’s Law Society of BC Benchers Retreat held on June 3 in Penticton. The Benchers used the Retreat to gain a broader awareness of the issues highlighted in the TRC Report. In addition to the participation of the Benchers, representatives from other law societies across the country attended with a keen interest in what the Law Society of BC will be doing to address the calls to action set out in the TRC Report.
As a first step, the legal profession must acknowledge the truth of the various ways in which the Canadian justice system has failed, and continues to fail Indigenous people. The TRC Report highlights how Canadian law and lawyers played an active role in forcing Indigenous children into residential schools. The intergenerational impacts of residential schools continue to plague Indigenous people, and it is this legacy that the justice system now deals with.
The Law Society has taken heed of advice from Indigenous lawyers: “nothing about us without us.” Our response to the TRC’s calls to action is being guided by a number of Indigenous legal professionals who helped to shape and inform the Retreat.
The Retreat was co-chaired by Herman Van Ommen, QC, and Ardith Walkem, an Indigenous lawyer. Ms. Walkem instructed lawyers to be mindful of how the legal system continues to perpetuate injustices for Indigenous people. She observed that the same concepts that were used to rationalize residential schools in the past continue to inform the removal of Indigenous children from their communities in the present day. She urged lawyers to be conscientious about the philosophies that underlie the current operation of the legal system, stressing that lawyers should not to be complacent with concepts that undermine equality.
Katrina Harry, an Indigenous lawyer who manages the Parents Legal Centre at the courthouse in Vancouver, conveyed her insights about the tragic legacy of residential schools, and the intersecting factors (such as social problems, economic disparity, and philosophical differences) that lead to the ongoing removal of Indigenous children from their communities.
Grand Chief Ed John presented on the importance of the United Nations Declaration on the Rights of Indigenous Peoples as a framework for understanding and implementing the calls to action. Like Ms. Walkem, he pointed out that racist concepts continue to be applied to the detriment of Indigenous peoples. In relation to the UN Declaration on the Rights of Indigenous Peoples, he explained that the concepts of terra nullius and the “doctrine of discovery” continue to be applied to present-day Indigenous land and resource issues in the Canadian legal system. The UN Declaration renounces terra nullius and the “doctrine of discovery,” and endorses the free prior and informed consent of Indigenous peoples as a minimum standard for addressing Indigenous land and resource issues, and Grand Chief John stressed the need for the Canadian legal system to adopt and apply this standard.
Judge Marion Buller presented on First Nations Courts, stressing the need for improvements to Aboriginal sentencing considerations, and the possibility of extending principles from Gladue and Ipeelee to Indigenous child welfare cases.
The Retreat highlighted what many have already known about Canada’s justice system: it is currently failing Indigenous people. We have to address that. We can’t ignore it.
The Law Society understands that relationships are key to reconciliation. It is a challenge to appreciate how best to heal the relationships between Indigenous people and the justice system. It is our task to start that process. This is not something that will take weeks or months, but rather years. It is not going to happen overnight.
We will be working with the Indigenous community to formulate a specific concrete plan of action to guide us toward reconciliation. The Benchers have endorsed the creation of a permanent advisory committee, with the guidance and participation of Indigenous leaders, to help Benchers engage in issues and facilitate discussions regarding the TRC at the Bencher table.
Nationally, the Federation of Law Societies has struck a working group to address the TRC’s calls to action. The Law Society of BC is seen as a leader in responding to the calls to action, and we are both members of the Federation’s working group.
When introducing the TRC Report, Chief Commissioner Murray Sinclair said: “We have described for you a mountain. We have shown you the path to the top. We call upon you to do the climbing.” Confronting the issues identified in the TRC Report is one of the most important justice issues of our lifetime. The TRC provides a crucial opportunity to begin the difficult but necessary journey toward reconciliation, and the Law Society of BC hopes to lead the way.
Limited Scope Retainers
[posted May 17, 2016]
I would like to return to a topic I wrote about a few months ago. A recent presentation to our Bencher table once again addressed a serious inequity in our justice system, one that disproportionately affects women involved in family law proceedings. It reminded me of the need for the Law Society, our members and the public to continue to work toward achieving a comfort zone concerning limited scope retainers.
Our table heard from Jennifer Muller. Many of you are familiar with Jennifer’s story concerning her soul-crushing odyssey through our justice system as a self-represented litigant. She had, of course, initially retained counsel but her savings were depleted in three months and she was quickly on her own. While there are a growing number of resources available online to assist the public, it is exceedingly challenging for individuals without legal training to put generalized information into any helpful context for their own case. Jennifer could not persuade a lawyer to be retained to consult with on a limited basis to assist her to navigate the process. She made dozens of calls to lawyers but was repeatedly turned down. She perceived her appearances in chambers (about 12 in all) were often viewed disparagingly by the court and the lawyer on the other side. After months of desperation, she was given the name of a lawyer through a friend. He was willing to meet with her every few weeks for several hours in the months leading up to the trial. The fact is, he was paid a fair and reasonable fee by Jennifer for this work that he took on from time to time to assist her. Without his services, she would not have been able to proceed with the case.
Despite the fact that most self-represented litigants seek out a limited retainer service, very few self-represented litigants are successful at finding anyone who will provide it. It is a crisis. The numbers of individuals representing themselves in Provincial Court outnumber those represented by legal counsel. As of 2011 (the most recent statistics available), in proceedings in B.C. under the Family Law Act, 57 per cent of parties were self-represented litigants.
I mentioned in my previous blog that in 2008 the Law Society developed a policy framework that allows lawyers to provide advice on isolated aspects of a matter. In addition, changes were made in 2013 to the Code of Professional Conduct for BC addressing concerns lawyers may have about limited scope retainers. Despite the provisions in the Code aimed at facilitating limited scope representation, lawyers remain reluctant to offer the service. As someone commented at the April Benchers’ meeting, “the door was opened but lawyers aren’t going through it.” Those who do offer limited scope retainers appear to do it on an ad hoc basis and very few advertise these services. This makes it very difficult for clients to find lawyers when they need them.
There is a particular gap in limited scope retainers to support families who choose to use mediation to resolve their family disputes. Given that the Family Law Act strongly encourages families to use “out of court methods,” more legal support is required. The Access to Legal Services Committee at the Law Society of British Columbia will be addressing these issues in a more robust way this year.
In addition, the Family Legal Services Unbundling Project, administered by Mediate BC, and supported by the BC Family Justice Innovation Lab, are seeking to encourage more family lawyers to offer unbundled legal services to support families using mediation. Various business models will be explored in attempting to find that balance between affordability for families and financial sustainability for lawyers. While the project focuses on mediation-related unbundled legal services, there will be much learning about unbundled legal services in general. The goal is to increase access to family lawyers providing unbundled services by, in part, creating a list or roster of family lawyers willing and well equipped to provide unbundled services.
The work of Mediate BC’s Family Legal Services Unbundling Project and the Law Society’s Access to Legal Services Committee has the potential to address a large problem. I urge all lawyers to give serious thought to learning about and offering limited scope retainers.
Below are some resources that will help lawyers better appreciate the issues.
Practice advice published in Benchers’ Bulletin (see “Limited Scope Retainer Rules,” p. 15)
A profession of opportunities
[posted April 12, 2016]
Law Week reminds us of the importance, joy and privilege of practising law in this province. Our profession reveals a road of wonderful opportunity. Opportunity of intellectual challenge, of economic comfort and of lasting friendships.
Law Week also reminds us that we must not lose sight of another opportunity on this road we travel. It is the opportunity to see and hear and understand that many of our fellow citizens live in the shadows of our justice system. They are the disenfranchised, the desperate and the dispirited. They are always poor, displaced and without any real opportunity or hope. We are indeed the privileged, but often we are an island of privilege in a sea of need.
Law Week rekindles our obligations as lawyers to offer our skill, our dedication and our hearts to those who cannot pay us a cent. His Excellency, the Right Honourable David Johnston once remarked that lawyers have a social contract with society. He said:
"We enjoy a monopoly to practise law. In return, we are duty bound to serve our clients competently, to improve justice and to continuously create the good. That’s the deal."
Fulfilling these obligations can change a life and it is the fulfilling of these obligations that ultimately defines the spirit and soul of our great profession. As was once said, the moral arc of the universe bends slowly but it bends inevitably towards justice. In the end, Law Week reminds us of our constant opportunity to influence that arc, to guide it and to shape it.
LAP: A story of redemption and compassion
[posted March 22, 2016]
Russ MacKay passed away a few months ago after a short but difficult battle with cancer. Many of the members may not have known Russ. Some decades ago, he succumbed to a whole host of demons, which resulted in him leaving our profession a broken and embarrassed man. Over the course of many years he undertook a healing process and, with the help and encouragement of the Lawyers Assistance Program of British Columbia (LAP), he was ultimately readmitted to our bar.
He proceeded to resume his law practice and help other colleagues in distress, and he was eventually appointed a judge of the Provincial Court of British Columbia. It is a wonderful story of fortitude, forgiveness, and redemption that owed much to the goodwill of his colleagues and the good work of LAP.
I was reminded of Russ and his story last month when Derek LaCroix, QC, attended a Benchers' meeting to talk about the work of LAP. It reminded me why the work of LAP is so important. Based on the basic tenet of lawyers helping lawyers, LAP relies on a network of volunteers from the BC legal community. It offers short-term counselling, practical assistance, referral, assessments, information and ongoing support.
LAP will also reach out to lawyers who are clearly in distress. The approach is always respectful, empathetic and compassionate. The interaction with the staff at LAP is non-judgemental and LAP will work with individuals to help them come up with solutions that work for them.
The nature of our profession can sometimes take a toll. None of us is immune or without flaw. May I ask that if you see a colleague in difficulty, reach out your hand. If you find yourself in difficulty, reach out your hand. We can all assist and support the work and spirit of LAP. Our profession is steeped in adversarial traditions, but also has a history committed to the welfare of our brothers and sisters at the bar. That history reflects the story and spirit of Russ MacKay. Derek LaCroix, QC, reminded us of that.
[posted February 26, 2016]
A family in crisis finds little support in our justice system. It is too cumbersome and too expensive. Recent statistics reveal that of the proceedings in BC under the Family Law Act, 57% of parties are self-represented litigants. Women in particular are victims of our system.
This is not new. In 1992, the Law Society of British Columbia produced a groundbreaking report, “Gender Equality in the Justice System.” It stated in part:
[W]e found the most serious problem facing the justice system is the lack of equal access for poor women, many of whom are single parents with custody of their children. These women see two different justice systems: one for those with sufficient economic resources to hire competent legal counsel, and another for those who do not. Even for those women who have resources to employ legal counsel, the results of litigation are commonly disappointing. For aboriginal women, lesbians, and women of colour, there are also racial, homophobic, as well as poverty barriers to achieving equal access to justice.
In 2008, the Law Society of British Columbia developed a policy framework to approach unbundled legal services (the 2008 report of the Unbundled Legal Services Task Force). It allows lawyers to provide advice on aspects of a matter. The importance of this to families in our justice system cannot be overstated. It can, if promoted properly and effectively, have a fundamental impact on access to justice.
The fact is, however, very few lawyers offer unbundled services to families. There is a particular gap in unbundled services to support families who choose to use mediation to resolve their family disputes. Given that the Family Law Act strongly encourages families to use “out of court” methods, more legal support is needed.
Beginning in January of this year, Mediate BC, supported by the BC Family Justice Innovation Lab, embarked upon The Family Legal Services Unbundling Project. Its aim will be to encourage more family lawyers to offer unbundled legal services to support families using mediation. It will find out more about how some lawyers (particularly in the U.S.) are using unbundling successfully (and build on those experiences), and explore whatever concerns and barriers are inhibiting BC family lawyers from offering these services. It will, as well, develop strategies to alleviate those concerns. It will focus on developing various business models for lawyers. The notion of unbundled services must be both affordable for families and sustainable financially for the lawyers involved.
The Law Society, and in particular, the Access to Legal Services Advisory Committee, support this critical project and look forward to assisting these efforts, and I encourage our members to engage in this very important issue.
25 years of Justicia
[posted February 19, 2016]
It has been a quarter of a century. In 1990 a group of women in the legal profession, including Alison Maclennan, QC, brought the issue of gender bias to the attention of the Law Society. A resolution passed by members at the annual general meeting in June 1990 resulted in a groundbreaking report, “Gender Equality in the Justice System,” completed and tabled in the summer of 1992. It documented the presence and extent of gender inequality in all areas and aspects of our legal and justice systems, including the legal profession. It contained approximately 300 recommendations to assist in directing us toward the goal of gender equality.
The Justicia initiative was created by the Benchers to support the retention of women in the profession and encourage law firms to adopt best practices regarding women lawyers. The first phase of the project has met with tremendous success and I urge everyone to read the report. Seventeen law firms committed to developing and implementing best practices to facilitate the retention and advancement of women in private practice. Diversity officers from these seventeen firms developed recommendations in six areas:
• Improving parental leave policies;
• Enhancing flexible work arrangements;
• Tracking gender demographics;
• Adopting initiatives to foster women’s networking and business development;
• Promoting leadership skills for women; and
• Developing paths to partnership initiatives.
It is truly a significant piece of work and I would like to thank some of the participants who worked so hard in bringing this matters to fruition. They are:
Wendy Baker, QC; Diane Bell, QC; Melanie Bradley; Nicole Byres, QC; Carol Chestnut; Emily Galer; Kent Kufeldt; Joanne Kuroyama; Judith Macfarlane; Bill Maclagan, QC; Karen MacMillan; Rebecca Morse; Jennifer McNaught; Barbara Norell; Helena Plecko; Mary Ruhl; Marion Shaw; Jennifer Vermiere; Lisa Vogt, QC; Christine York; Jean Yuen; and Kareen Zimmer.
I not only extend our thanks to the lawyers who devoted their time and energy to this project, but also the law firms that supported this endeavour:
Harper Grey, Stikeman Elliott, Alexander Holburn Beaudin & Lang, Clark Wilson, McCarthy Tétrault, Dentons, Boughton, Blakes, Gowlings, McMillan, Fasken Martineau, Lawson Lundell, Bull Housser & Tupper, DLA Piper, Borden Ladner Gervais, Miller Thomson, and Farris.
I would also like to recognize the contributions to this project made by Linda Robertson of the CBA Women Lawyers Forum, and Deborah Taylor of the CBA BC Women Lawyers Forum.
The following Justicia best practice guides were endorsed by the Benchers in January 2016, and are available on the Law Society website:
- Career Advancement into Partnership: Associate Guide
- A Guide to Business Development for Women Lawyers
- Executive Summary of Women’s Leadership in the Legal Profession
- Demographic data collection
I applaud these efforts and recognize the progress we have made over the last 25 years. Much work still needs to be done and we will continue to enthusiastically support these efforts. Maria Morellato, QC, chair of the Equity and Diversity Committee will lead this project on to the next phase.
Input sought on law firm regulation
[posted February 17, 2016]
I urge lawyers throughout the province to take part in the consultation currently underway on law firm regulation. Over the next few weeks Law Firm Regulation Task Force chair Herman Van Ommen, QC, will visit 10 cities in BC to gather input from the profession. The meetings provide an opportunity for discussion on this important topic.
Lawyers provide the critical underpinning to our rule of law. Our Canons of Legal Ethics make this quite clear: “A lawyer is a minister of justice, an officer of the courts, a client’s advocate and a member of an ancient honourable, and learned profession.”
The purpose of our regulatory task is to serve and protect the public interest by ensuring there is access to competent, ethical and independent lawyers.
Under the proposed model, firms will bear some responsibility in this regard. For example, firms would be required to have systems in place so that lawyers do not find themselves in a conflict of interest, and protocols in place to ensure an appropriate framework for monitoring and resolving issues relating to privacy and confidentiality. Effective systems and protocols in this regard are intended to be preventative, and to serve to facilitate early intervention so as to avoid pitfalls. The Law Society would not prescribe what those systems or protocols would look like, but would leave it to each firm to devise a system that suits its unique circumstances. It is a model that champions proactive steps. It is a model for the sharing of responsibility to promote more effective and efficient protection for our members and the public we serve.
I encourage lawyers to join one of the consultation sessions. The dates and locations for those meetings are available here.
It’s time for China to respect rule of law
[posted February 4, 2016]
Counsel are the last bastion between the citizenry and an overreaching state. This role forms an integral part of the rule of law. On behalf of the Law Society of British Columbia, I add our voice to the international condemnation of China's detention and intimidation of human rights lawyers.
As reported by Human Rights Watch, China recently formally arrested 11 human-rights lawyers, and charged them with subversion. “The formal arrests of these rights lawyers on subversion charges means that the Chinese government now thinks that using the law to defend human rights is a subversive act against the state,” said Human Rights Watch in a statement.
The 11 are among the approximately 300 lawyers, legal assistants and activists Chinese authorities have detained since last July. Human Rights Watch characterizes the crackdown as “a comprehensive assault on freedom of expression and the rule of law.”
On January 18 a group of leading human rights lawyers from Europe, North America and Australia published a letter in the Guardian calling on President Xi Jinping to end the crackdown by his security forces.
China has publicly acknowledged the value of political freedom and the right to judicial remedy for violation of that freedom. In 1998 it signed the UN International Covenant on Civil and Political Rights -- although it has yet to ratify that declaration, despite repeated promises to do so.
Signatories to that international agreement promise to recognize “the ideal of free human beings enjoying civil and political freedom and freedom from fear,” and to:
- ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; and
- ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State.
Respect for human rights and the rule of law is the foundation upon which modern societies are built. Lawyers must be allowed to represent clients on matters, even if they might be contrary to the interests of the state, without fear of reprisal by the state. In fact, this is one of the United Nation’s Basic Principles on the Role of Lawyers. On behalf of the Law Society, I have sent a letter to the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, urging the federal government to ask China to respect the provisions of the International Covenant on Civil and Political Rights. I also urge members of the legal profession in BC to make your concerns known to the federal government.
Congratulations to UVic Law Faculty
[posted January 20, 2016]
I’d like to congratulate the University of Victoria Faculty of Law for establishing its Access to Justice Centre for Excellence. This marks an important step in addressing a growing problem in our justice system.
Access to justice is increasingly denied not only to the poor and the marginalized, but to an ever broader part of our society. Numerous initiatives have been launched by organizations to address the growing crisis, but it won’t be solved by any one agency alone. The new centre at the University of Victoria, founded by Jerry McHale, QC, promises to fill an important gap in efforts made to-date by turning the attention of some of the province’s best legal scholars to addressing the problem.
I’m honoured to be a member of the BC Access to Justice Committee, formed last year and chaired by The Honourable Chief Justice Robert J. Bauman. That committee brings together leaders from diverse sectors, including government, the judiciary, the legal profession, non-profits, and related sectors such as health and community services.
In our role as regulators, the Law Society has launched a number of initiatives, including amending rules to expand the scope of legal services provided by non-lawyers such as articled students and designated paralegals.
While these efforts address the nuts-and-bolts details of on-the-ground service delivery, the University of Victoria’s Centre for Excellence promises to address an important gap on the level of public policy and planning.
One of the biggest challenges with access to justice is that we don’t know how big the problem is. Most of us have heard stories about people being shut out of the justice system, and many of us have witnessed it firsthand. But before we can address the problem as a society, policymakers, service providers and others need to be able to quantify the problem. The Canadian Bar Association identified this key deficiency in a report it published in 2013, where it noted that “Canada is plagued by a paucity of access to justice research.” The report explained that the result is a self-perpetuating circle of ignorance: a lack of scholarship on access to justice leaves policymakers deprived of the information they need in order to even begin collecting public data, and the resulting lack of reliable public data in turn hampers serious scholarship.
The University of Victoria’s Centre for Excellence aims to address that gap through academic and applied research, while at the same time fostering an awareness of access to justice issues among future generations of lawyers.
I applaud the University of Victoria Faculty of Law for its innovation and its commitment to addressing perhaps the most serious problem facing our justice system today.
Our work on Bill C-51
[posted January 5, 2016]
I’m David Crossin and I have the privilege of serving as president of the Law Society in 2016. Throughout the year, I plan to use this blog to talk about the work of the Law Society and about topics of interest to the public and the legal community.
I thought I’d start the year by addressing what is a matter of importance to everyone in Canada — the provisions of the Anti-Terrorist Act (2015), which most of us know as Bill C-51. As part of our objective to uphold and protect the public interest of all Canadians, the Law Society raised concerns regarding several aspects of Bill C-51 in a submission to the Standing Committee on Public Safety and National Security in March 2015. The Law Society was particularly concerned about the amendments to the Canadian Security Intelligence Services Act that permitted CSIS officials to apply for judicial authorization to violate the freedoms guaranteed by the Charter in the course of taking measures to prevent threats to the security of Canada.
I am encouraged by the news that the new Liberal government pledged to revisit Bill C-51. In November of last year, Past-President Ken Walker, QC reminded the government of our concerns in a letter to the Honourable Jody Wilson-Raybould, Minister of Justice. As part of the work of the Law Society in 2016, I plan to ensure we follow up with the new government to ensure appropriate changes are made that will preserve the rights and freedoms of Canadian citizens guaranteed in the Charter and maintain the rule of law.