Canadian Lawyers Making a Difference in Cambodia

Cambodia is slowly recovering from the barbarism of the Khmer Rouge regime and the subsequent civil war that devastated the nation during the last quarter of the twentieth century. The current authoritarian government has been in power for nearly three decades. Basic constitutional freedoms of speech, the press and assembly are not fully guaranteed . Corruption is debilitating and rampant in the political, judicial and economic systems: Cambodia has the dubious distinction of being viewed by investors as Southeast Asia’s most corrupt country and the 17th most corrupt in the world. Politically motivated prosecutions and detention of political opponents, journalists and labour leaders are common and often go unpunished, and there are reports of extrajudicial executions.

About a quarter of the population of nearly 16 million live below the national poverty line of U.S$1 per day , while the rich grow richer .Per capita income is increasing rapidly but remains low in comparison with other states in the region. Access to adequate housing has been compromised by forced evictions and dishonest expropriation of land. Ethnic minorities, women and LGBT Cambodians suffer extensive discrimination and violence. Human trafficking and environmental degradation are widespread.

Yet there are also positive signs. A recent deal between the government and the opposition provides a framework for political and electoral reform in the wake of a 2013 election condemned as fraudulent by the opposition. Social media and access to international broadcasting continue unrestricted, unlike the situation in Cambodia’s neighbours, and the English-language press maintains a critical focus on the government’s activities. International pressure has secured the release of some dissidents imprisoned in particularly egregious circumstances. The government itself has taken some progressive steps, including greater recognition of land rights and the establishment of a Ministry of Women’s Affairs to counter gender discrimination and domestic violence. The need for foreign investment and the emergence of a middle class have provided incentives to develop a stable society that respects the rule of law. Of particular importance is the continuing operation of a significant number of NGOs dedicated to social political, labour and legal change.

It is clear that further progress requires the involvement of legally-trained individuals who can formulate and enforce change based on the Constitution and international human rights law (Cambodia is a party to the International Covenants on Civil and Political and Social, Economic and Cultural Rights).This article describes two initiatives in this direction undertaken by a few Canadian lawyers.

Cambodian Legal Education for Women (CLEW)

CLEW is a Canadian charity that provides full four-year scholarships at the Royal University of Law and Economics (RULE) in the capital city of Phnom Penh to deserving young women from rural areas who are unable to afford the cost of a university education. Traditionally these women face a future of arranged marriage in their village, farming a small plot of land to sell produce in local markets. The bright and lucky minority who finish high school might aspire to employment as teachers in local schools, but leaving the village to attend university is almost unheard of. In 2008 the small (five lawyers) Toronto law firm of Bennett Gastle started CLEW, and since then has brought more than 45 of these women to pursue legal studies at RULE. Remarkably, over this six-year period only two have failed to complete the full undergraduate L.L.B. program.

On arrival in Phnom Penh the students live together in their own dormitory. This is important because it reassures parents that their children will live in a supervised setting and get the support they need to adapt to an urban environment that is not always friendly to newcomers from rural areas. It also nurtures group cohesiveness.

It costs less than$2,000U.S. per year to pay the tuition and living expenses for each student. Most of these costs are covered by donations from Bennett Gastle’s clients and friends and the proceeds of an annual golf tournament and dinner-dance, with the firm picking up any shortfall. The firm itself funds all administrative, supervisory and recruitment expenses. Chuck Gastle and Elizabeth Bennett-Martin, the firm’s managing partners, each travel to Cambodia at least once a year to interview prospective students in their home villages and to liaise with the students and review the progress and quality of the program. From five students in 2008, the initiative has expanded to now support about 20 students a year in both English- and Khmer-language L.L.B. courses– at a total annual cost of around $40,000U.S.

The past couple of years have also seen growth in the sophistication of the initiative. Plan Cambodia, an NGO that specializes in health and education issues facing young Cambodian women, now does some preliminary screening of promising students. LexisNexis provides free database access to all RULE law students, donates books to its library, and has produced a video chronicling the impact of CLEW on particular students. Gastle has recently secured a new and larger dormitory and hopes to finance even more students.

The value of CLEW exists not only in the number of young women who have been rescued from poverty through education, but also in the number of graduates who are working in areas vital to their country’s development. Most graduates will not have access to the exclusive club of some 700 lawyers licensed to practise law in Cambodia, since admission to the Bar is restricted and expensive. But many have found other ways to use their legal knowledge and skills in the cause of progress. For example, two graduates are actively involved in improving the status of women, one by directing a women’s shelter and the other as an executive in the Ministry of Women’s Affairs. Two others work on land issues, one helping farmers secure title to property and the other dealing with land reform and property disputes in the Ministry of Justice. Yet another is concerned with the rights of Cambodia’s indigenous minorities and liaises with the United Nations on these issues.

Vis East Moot Foundation Capacity-Building Project

The Vis Moot, inaugurated in 1993, is a well-known law student moot competition centering on international arbitration and the United Nations Convention on Contracts for the International Sale of Goods (CISG). It brings together approximately 300 law school teams from around the world to Vienna in the week before Easter each year. The Vis East Moot, established in 2003, uses the same moot problem for a sister competition involving a maximum of 100 teams from 30 jurisdictions. The Vis East takes place in Hong Kong during the week before the Vienna moot. Any law school in the world can enter either or both of the competitions.

As part of an initiative to provide the knowledge and skills of the Vis Moot to Asian countries that need them most, the Vis East Foundation Board recently approved Cambodia as the location of the first capacity-building project. Facilitated by CLEW’s contacts in the country, the ten-day intensive course was organized and planned by Louise Barrington, a Canadian lawyer and arbitrator who also serves in a voluntary capacity as Director of the Vis East Moot and the Foundation. The 80 hour course was taught in Phnom Penh between September 29 and October 8, 2014. Each of four participating law schools agreed to send seven or eight promising third or fourth year students, along with one faculty member responsible for mentoring the students over the year and assisting with providing a similar program next year. Two of the universities also donated teaching space, but there was no registration fee for either the schools or the students.

Taught in English, the course covered sources of international and comparative law, international commercial law (especially the CISG), legal reasoning and research, international arbitration, conflict of laws, and oral and written advocacy. The faculty consisted of arbitrators, lawyers and professors: three from Canada and one each from the Netherlands, Hong Kong and the United States. The teaching was interactive and included team exercises. The faculty donated their time and expertise, with the Foundation paying their airfare and accommodation in a modest hotel.

The course was clearly an educational success. The students adapted quickly and with enthusiasm to a North American teaching style that is virtually unknown in Asian schools. As the days progressed, they became increasingly confident in their ability to function in English, their understanding of the legal concepts they were studying, and their aptitude to acquire sophisticated legal skills. Exercises involving teams composed from different schools showed students the importance of teamwork in undertaking legal tasks and created an opportunity to establish networks with new colleagues who share similar interests. Students whose schools compete in the Vis Moot will benefit to an even greater extent, though sadly not all schools will find the funding to travel to Hong Kong. Two schools have vowed to continue practising over the coming months and to “compete” within Cambodia with the teams that are able to go. But all of these students, with their fluency in English and new international knowledge and skills, are well-positioned to participate in the development of their country.

It is often assumed that making progress towards democracy and economic and social development requires at least the resources of governments and large corporations and law firms. Yet here a small law firm and a foundation operating on a shoestring have managed to combine their contacts and resources to make a real difference to the 75 or so students who have so far completed these two programs. As both of these initiatives demonstrate, individual lawyers, modest voluntary associations and small law firms and individuals with imagination, commitment and energy can also contribute incrementally to meeting the objectives of alleviating poverty, creating empowerment and promoting the rule of law.

For more information, see and

Legal Business Development: Is a Lack of Confidence Holding You Back?

Confidence. Do you have it? Sure, there are times that your confidence has been shaken… but deep down, are you confident in yourself and your ability? And how important is confidence to your success as a lawyer, a community leader or a parent? A new book by journalists Katty Kay (BBC News) and Claire Shipman (Good Morning America) sheds some light on the subject in… Confidence Code.

Shipman explains in a short TV segment for ABC News, that you can transform yourself from a worrier to a warrior… We can create more confidence by creating better habits. In our brains: practice makes permanent… Embrace failure… Be authentic and listen to your wise inner voice, instead of your critic.

Lack of confidence seems to be a predominately female issue (at least on the surface), but guys listen up, if you aren’t the alpha-male in your firm, there is valuable insight for you as well.

Confidence can be a choice. Shipman writes:

“We all know those familiar, frustrating feelings. We’re afraid to speak up at a meeting because we aren’t sure what we have to say is perfect. And then a few minutes later, a male colleague says exactly what we had in mind.

Perhaps we’ve contemplated taking a larger step – a run for local office or a change of career – but we opt for caution over risk. For most women, such feelings are so commonplace we’ve discount them. But, in truth, they represent a profound confidence gap between men and women, especially in the workplace.

My co-author on ‘The Confidence Code,’ Katty Kay, and I have come to believe that gap is in large measure why we have failed to reach the highest levels in the workplace.

– Women won’t seek promotions unless they feel they have close to 100 percent of the qualifications, while men will go for it if they think they have 60 percent. Hewlett-Packard and others have done these studies, and quickly grasped what this meant in terms of women’s getting ahead.

– Numerous studies have been done in which men and women are given the same test, usually a math or science test, and are then asked how they believe they have performed. The women always predict they’ve performed much worse than they have. The men tend to think they’ve done better. Indeed, the scores are almost identical. Imagine what that self-criticism does to women on a day-to-day basis.

– One Princeton research team decided to study just how much less women speak than men do, when they are in the minority. In some cases, researchers found, up to 75 percent less.

That nugget really caught my attention. For years I’d had an inkling that I wasn’t talking as much as the men on political programs I was on. I was constantly aware of trying to stick to the question, and not take too much time. Although I wasn’t aware of it at the time, it was quite classic “good girl” behavior.

In writing ‘The Confidence Code,’ I did a quick comparison of my appearances on “This Week.” My self-editing got me 30 percent less talk time on average than the men. There’s nothing terrible about that, of course, but it was sobering to have a number put on my hesitation.

In the course of our research project, we dug into the origins of the confidence gap. Our book looks at genetic influences, brain architecture and function and the impact of society. All play a role. But we also discovered that part of our confidence is volitional: it’s something we can control. We can increase our confidence level at any age.

Five Common Confidence Mistakes Women Make:

  1. We think too much. Women are much more likely than men to ruminate. Excessive examination actually inhibits confidence because it can keep women from taking action. Consider this: You’re debating whether to recommend a course of action at work. It’s a tough call, and you dig in to examining both sides in-depth. But your examination takes so long, that you start to lose your ability to make a decision. Frozen, you decide not to weigh in at all.
  2. We believe failure is a failure. Failing is actually cool now. Fail fast is a hot tech buzz phrase. In today’s business climate, failing means you’ve been willing to try, to get in the game. And it means you’ve learned.
  3. We carry criticism around with us far too long.We have to learn to toughen our hides, as Hillary Clinton said last week. Imagining that the rest of the world, or your boss, or whomever, is still focused on that thing involving you is not only a waste of time, but also a confidence killer.
  4. We never leave our comfort zones.Confidence comes from risk-taking, but we are too determined to be perfect.
  5. We don’t speak up, and too often, we use upspeak. It’s a habit we know you’ll recognize, raising the tone of your voice at the end of a sentence in a way that suggests a question rather than a declaration. Try these: “I think we should go with the on-line marketing strategy.” “I think we should go with the online marketing strategy?” One professor told us he thinks women use upspeak in an effort to seek approval. Lose the questioning tone, and boost your confidence.”

Take the confidence quiz, it will only take 5 to 7 minutes. You just might be surprised at what you learn about yourself.

If you would like to discuss how a boost of confidence can kick-start your legal business development efforts, shoot me an email.

CASL Software Provisions & CRTC Interpretation

In addition to the anti spam provisions of CASL, it contains provisions against malware starting in January 2015. It imposes disclosure and consent requirements for software providers in certain situations.

Unfortunately, those provisions are perhaps more ill-advised and unclear than the anti-spam provisions. They have the potential to make life difficult for software companies, create additional record keeping responsibilities where none are needed, and could even hurt Canadian consumers if foreign software developers simply don’t sell their products in Canada to avoid compliance.

The IT law bar is collectively scratching their heads trying to understand what the provisions mean in practice.

When I last mentioned this, the CRTC was collecting questions to help them frame their guidance on the sections.

The CRTC will reveal their interpretation thoughts in an IT.Can webinar on November 11.


New CEO of the Law Society of Manitoba

The Law Society of Manitoba late last week announced to its members the appointment of a new Chief Executive Officer. C. Kristin Dangerfield will replace Allan Fineblit, Q.C. as CEO when he retires at the end of this month.

Ms Dangerfield, who will assume the post on November 1, 2014, is well known both to Manitoba lawyers and lawyers across the country. She has served as Senior General Counsel to The Law Society since 2002, and before that she was General Counsel for several years. She has practiced law in Manitoba since 1983.

Kris volunteers on the national stage with the CBA, currently sitting as a member of the Ethics and Professional Responsibility Committee and on the Ethics and Regulatory Issues team of the Futures Initiative. From 2005 to 2009 she was a member of the Federation of Law Societies Code of Conduct Committee and she currently continues to serve as a member of the Federation’s Standing Committee on the Model Code of Conduct.

She has been closely involved in issues of professional ethics throughout her career; in fact, she was the young lawyer whose move between firms spurred the action in MacDonald Estate v. Martin.

I was fortunate to work with Kris during my years as a Law Society staff member and am not surprised that the Benchers selected her to take the helm of the LSM going forward. I, for one, look forward to seeing what changes she’ll bring to the profession in Manitoba.

Markers Along the Way

Looking at events with a long-term perspective has been a primary strength of library professionals from time immemorial. Preserve the intellectual heritage of the past, protect the information of the future: that has been one of the profession’s purposes. It is a perspective that is seldom fashionable. Change, constant change, is now part of our daily expectations. As former United States President Dwight D. Eishhower supposedly once said, things today are more like they are now than ever. (Someone else said if first, but the image of President Eisenhower pontificating is a pleasant one.) The pace of change in 2014 is so accelerated that it is a challenge to keep up, let alone to attempt reflection. The recent celebration of the 16th birthday of Google not only reminds one of the passage of time, it sets a signpost for the beginning of 21st Century reality. Professor Neil Postman once said that no news that preceded the advent of television would feel real in the modern world. If it was not capable of being televised, an event may as well have not happened. Today that statement must be amended to embrace the fact that real history now begins with a video viewable via the Internet. Though this may become a dominant approach, Information professionals know better. Marking events and stopping to consider what they portend remains a good idea, as does a sense of history and of the long horizon of the future.

Two important items to note for the end of 2014.

  1. As of July, 2014 Thomson Reuters stopped providiing the Boolean-based search system now known as Westlaw Classic in United States law schools. (It was just WESTLAW before it became classic). WESTLAWNext, with its Google-like interface and its artificial intelligence aspirations is now the standard law student platform for use of the WESTLAW database. This event is a marker in time. Thomson-Reuters’ WESTLAW operation, now shed of its cousin, West Academic Publishing, plows forward, merging law ever closer to the rest of the information world. Librarians muse. My generation of librarians taught patrons how to use a computer at a time when not every law student knew how to type. We cajoled them through the obstacle course of Boolean searching, pushed them towards new data bases, tempted them with Natural Language searching and assisted at every turn. Librarians were prophets, preaching that the new ways would prove useful. Sometimes we had to provide pizza to get them to listen.

    Now the library users, and the systems that they employ, outrun us. The law student of 2014 in Berkeley, California, comes to the law school immersed in social media and inter-connected worlds of information. As with all prophets who are proved correct by time, the librarians’ role in introducing the change is forgotten and irrelevant. Time has moved on.

    There will be more for librarians to accomplish in the future. The lawyers of 2014 have no better grasp of real research skills than their counterparts from 1984, but the end of the old Boolean-based systems, and the world from which they sprang, is worth noting. Ancient battlefields should be remembered and the victories cherished, recalling them will steel us against the changes that continue.

  1. The Office of the Law Revision Counsel of the United States announced in July, 2014 that Title 52 of the United States Code, covering all in-force federal legislation on Elections and Voting, has been promulgated. Unlike Title 51, which the U.S. Congress enacted into law as a single measure and which, therefore, stands as positive law, Title 52 is presented as an editorial accomplishment bereft of Congressional involvement. It is a prima facie statement of the law. Force of habit and convenience will lead to its immediate citation.

    Such editorial revisions have proven controversial in the distant past, and stun one in light of the rancor of the contemporary version of the U.S. Congress. Title 51 covered the topic of National and Commercial Space Programs, a subject beyond the ken of most legislators and interest groups. Election and Voting laws on the other hand, are hot button issues that are much in play in the United States’ national discussion. How could a new Title, the assemblers of which had to navigate matters of judgment, placement and categorization, slip so easily into the world of primary legal authority? I believe that the explanation is that almost no one reads pertinent legislation any longer. The Affordable Health Care Act (lovingly deemed Obamacare) was such a massive piece of legislation that many Congress people seemed to relish proclaiming that they had never read it. The careful attention to detail that once characterized the field of legislative drafting and legislative action, has long since left the stage. Most complex legislation is drafted by interest groups and passed on to the legislators for action. Congressmen routinely introduce Bills that they have never even read. This past year has seen instances where the wrong language was used in final drafts and where outright editorial errors have submarined the purpose of the legislation.

    Though I do not wish to appear to be the ancient geezer on the front porch decrying the loss of the higher standards of the good old days, it is hard not to despair of an information system that is built on shaky foundations. What good is the research process if it leads to inauthentic results? None of this to say that there is misbehavior afoot in the Legislative Revision Commission that drafted Title 52. Let us presume good faith and best efforts on their part. But the fact that no one even notices a process that was once fraught with confrontation and the most strenuous analysis barely registers. Perhaps major law revision in the United States has become too big to fail.

Each of these matters may simply be a node on the time-space continuum, but I would be surprised if each does not represent a moment that we might look back on in 2024 with a knowing nod.

Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. Myers v. Peel County Board of Education, [1981] 2 SCR 21, 1981 CanLII 27 (SCC)

MCINTYRE J.—This appeal concerns an accident suffered by a fifteen year old boy in attempting a dismount from the rings in a gymnastic class at his high school. At trial the defendants (the school authorities) were found negligent, as was the plaintiff, the division of liability being eighty per cent to the defendants and twenty per cent to the plaintiff. Damages were awarded and after the allowance for the shared liability the plaintiff, who had attained majority by the time judgment was given, obtained judgment for $64,000 and one-half of his costs. His father, who had been the plaintiffs next friend at the commencement of the action, received judgment for $2,656.30. An appeal was taken to the Ontario Court of Appeal by the defendants. There was no cross-appeal. The Court of Appeal, by a majority, Arnup and Zuber JJ.A., allowed the appeal and dismissed the action. Blair J.A., dissenting, would have dismissed the appeal. The appellant appeals to this Court by leave and seeks the restoration of the trial judgment. No issue arises on the question of quantum of damages.

2. Lipson v. Cassels Brock & Blackwell, LLP, 2014 ONSC 6106

[70] It is important to note that there are two discrete aspects to the first issue. The first aspect is whether the communications between Class Members with Thorsteinssons and with Davies Ward Phillips & Vineberg are relevant, and the second aspect of the issue is: if the communications are relevant, then are they relevant for the purposes of the common issues trial or are the communications relevant to an issue that will be decided at an individual issues trial if the action proceeds that far.

[71] It is, of course, also possible that an issue might be relevant to both the common issues trial and an individual issues trial, but the immediate problem is whether the communications are relevant and should be disclosed and produced at this juncture of the bifurcated proceeding; i.e. should the documents be disclosed and produced for the common issues trial.

3. R. v. McKay, 2014 ONCJ 540

[90] I have applied the 3 pronged test set out in WD in assessing the reliability and credibility of all the evidence. I accept the position and the submissions of the Crown.

[91] This is a classic case of road rage.

[92] On his evidence, Mr. McKay became angry and frustrated by other drivers on the QEW. I conclude that they were driving properly and safely, and in his distorted sense of entitlement to the road, Mr. McKay personalized their driving as an insult to him and he chose to drive with revenge.

The most-consulted French-language decision was Dunsmuir c. Nouveau-Brunswick, [2008] 1 RCS 190, 2008 CSC 9

1. Une fois de plus, la Cour est appelée à se pencher sur l’épineuse question de la démarche qu’il convient d’adopter pour le contrôle judiciaire des décisions des tribunaux administratifs. Au Canada, l’évolution récente du contrôle judiciaire a été marquée par une déférence variable, l’application de critères déroutants et la qualification nouvelle de vieux problèmes, sans qu’une solution n’offre de véritables repères aux parties, à leurs avocats, aux décideurs administratifs ou aux cours de justice saisies de demandes de contrôle judiciaire. Le temps est venu de réévaluer la question.

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

Sponsorship and Sincerity

I recently attended a workshop that was sponsored by several law firms, major corporations and large organizations. The event and the law firms will remain anonymous (for obvious reasons), but the sponsorship implied trust, integrity and commitment by the business community to a contemporary organizational issue.

Event attendees participated in a productive discussion; some were clients of the firms whose logos were included on the promotional material and some would probably be good clients for those firms to have.

There was just one problem. None of the law firms who sponsored the workshop had sent a representative to participate in the workshop or, at the very least, lend credibility and sincerity to their firm’s espoused values. Not. One. And people noticed.

Law firm decision makers are constantly asked to sponsor community events and causes. How can you make the right decision for your budget, your values and your brand? Here’s are some brief, straightforward tips:

  • Look for causes that you have a connection to, not just causes that look good in a proposal. If someone in your firm is on the board of directors, or if you are actively involved in the organization, then sponsorship is a viable option.
  • If you wouldn’t attend an event, don’t sponsor it.
  • Find a cause that reflects the values of your entire firm, not just your leaders. It’s should reflect the common themes in your brand identity.
  • Create decision making guidelines and criteria. This makes it slightly easier to say “no” to requests that don’t fit the bill. For example, some firms will choose to limit sponsorship to an area of need such as pro bono services or an annual event such as a fundraiser. It’s a great way to tie activities to the heritage of a firm because it shows consistency, reliability and trustworthiness over several years.
  • If you engage in a large sponsorship of a non-profit organization where your logo will appear on promotional material throughout the year, ask for a list of upcoming events and ensure that it is updated quarterly. Ensure not only that your firm is represented at events, but that your association with the organization is represented using the standards you’ve agreed to. This includes signage, recognition and logo reproduction. If no one can attend, be considerate and send an apology to the organizer so that you can be recognized in absentia. (This will make you a favourite sponsor among event organizers, who often volunteer their time).

What would you add to the list?

The Importance of Happiness

When I was young I sang in a choir, still do for that matter. One year we performed the Happiness song (YouTube).Perhaps that long ago practice of articulating what happiness is made me particularly receptive to the message from Sunny Grosso this morning. Sunny was invited to Edmonton to talk about Delivering Happiness for the Edmonton Public Library’s Forward Thinking Speaker Series (EPL: 2014 Library of the Year).

My objective in attending was to learn how to inspire passion and purpose in my organization. As someone involved in process improvement, my work should have a direct, positive impact on how people feel about the work they do. An efficient and effective process should be more satisfying to those who perform it than a process that has purposeless steps. Happiness is an objective of my work.

There is plenty of research to support the equation Happy employees = Happy customers = Successful companies. The idea that companies with a higher sense of purpose outperform others by 400% will probably make many law firm partners reading this very happy. A sense of purpose is tied to an organizations culture and, according to Sunny, and the 2010 book by Tony Hsieh, can be influenced by anyone in an organization.

Try this test. Look in the eyes of someone in your office and smile. I bet they can’t help smiling back. Today is a good day to decide to live happy, especially at work.

EPL gave me a happy morning. I am passing it on.

Happiness has been mentioned here at Slaw.

Tips Tuesday

Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.

How to Use Google to Search With a Specific Website*
Dan Pinnington

The search functionality on many websites is dismal, and in sometimes it is non-existent. If you are looking for something on a specific website and can’t find it, don’t despair, Google comes to the rescue….

Watch Your Email
Shaunna Mireau

Jack Newton posted an excellent email tip on Slaw way back in February 2013. He suggested creating an email rule that moved email with the word “unsubscribe” to a Robots folder so that it skipped your inbox and let you concentrate on the most important of your email and no the automated messages (newsletters, alerts from Twitter, etc). …

OBA TECHxpo 2014
Garry Wise

Today is the OBA TECHxpo at Toronto. My good friend Bob Tarantino and I will be presenting “The Ultimate Guide to Being a Mobile Road Warrior:” Track 1 — The Ultimate Guide to Being a Mobile Road Warrior — With the right tools you can work on anything, anywhere, anytime. Come to this session to learn how. • Take your office with you • Tablet versus smartphone • iPhone vs Blackberry vs Android • Essential gear and gadgets • Tips for surviving on the road…

* Editor’s pick

A Godless Charter and Law Society?

If the Canadian Charter of Rights and Freedoms were being drafted today, should there be a reference to God in its opening line as there is now: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”? Assuming that the Charter’s s. 2(a) declaration of “freedom of conscience and religion” includes freedom to be an atheist or agnostic, doesn’t that opening line put atheists and doubters in conflict with Canada’s founding?

Also, we spend coins that are based upon the existence of God. Whereas all American coins state, “In God We Trust,” all Canadian coins now state: “D G Regina” in an arc in front of Queen Elizabeth II’s silhouette, which stands for, Dei Gratia Regina, which means, “By the Grace of God, Queen.”[i]

And by the grace of God, law societies. The “burning bush” question in our law schools today is, why don’t our law societies free our people from this land of unaffordable legal services, and our courts from self-represented litigants? Is it truly better to have one God instead of the panoply of gods of former times? Well what of the days when God supervised the several committees made up of that panoply, as are our law societies in Canada? Because God found that, that management structure doesn’t get anything done, so it is that there are several “access to justice” problems, the worst of which is the “unaffordable legal services problem,” that persists to persist. So you can’t blame that one on God, as do our law societies. They really do, in an expressly undeclared, impliedly-so way. Nowhere in their published declarations as to their alleged devotion to the public interest and to the undeclared constitutional principle of the independence of law societies from the rule of law, do they say that the “access to justice problem of unaffordable legal services” is their problem and their duty to solve it. They have “Access to Justice” committees, and they express “concern” about the problem, but nothing has happened during all the decades during which this problem has been inflicting more damage in one day than have all of the incompetent and unethical lawyers in the whole history of Canada, coast to coast to coast. The latter are obviously “bad for business,” so the law societies are proactive about preventing them. But in regard to the former, their “Access to Justice” committees haven’t got beyond asking their law societies to express more concern. Well so be it because we, and all of our law societies and their committees, have a constitutional right as to freedom of conscience. So the freer the conscience, the more our law societies imply that unaffordable legal services are an Act of God.

You see it works this way for example. The non-lawyer average resident looks at the Law Society of Upper Canada’s webpage in its website, that has the heading, “Your Legal Bill – Too High?” It says first, that you can’t get legal advice from this webpage—well of course not, that’s not what a law society is for. Then it says, “The Law Society does not set fees for legal services and cannot reduce a lawyer’s or paralegal’s bill that you think is too high.” And it ends with this sentence: “If you have a complaint about your lawyer or paralegal that does not involve the amount of the bill, see the Law Society’s page on Complaining about a lawyer or paralegal.” That tells every non-lawyer resident, in three ways of “we’re not responsible” repetition, that the problem of unaffordable and out-of-sight legal fees is not the Law Society’s problem. But in between those statements are suggestions as to submitting a claim in the Small Claims Court against the allegedly gouging lawyer, or having the lawyer’s bill reviewed at the Assessment Office of the Ontario Superior Court of Justice. But to do that effectively, one needs a lawyer, which might result in two additional legal bills being too high.

So the average person then says, “if it can’t be the Law Society’s problem, I guess it must be the government’s problem.” But then the Law Society replies quickly, “we can’t have governments ‘meddling’ into anything as important as our legal fees, and also, it would interfere with the constitutional principle as to the independence of the legal profession from government intervention.” So the average person then concludes quite rightly, that the problem is nobody’s problem, meaning that it is an act of God like the weather, and earthquakes, floods, volcanoes, tsunamis, and the uncontrollable economic forces that make legal fees too high for the majority of population and law society control. That is who the law societies impliedly blame, God, and which therefore puts them above the rule of law—the same law that gives them the powers to regulate the legal profession and the duties to: (1) advance the cause of justice and the rule of law; (2) facilitate access to justice; (3) protect the public interest; and, (4) act in a timely, open and efficient manner (s. 4.2 of the Ontario Law Society Act)—see my August post, The failure of law societies to accept their duty in law to solve the unaffordable legal services problem (also posted on the SSRN, and the Access to Justice in Canada blog). But not to worry, nobody in power reads those sources. So you can see why law society committees don’t work very well, God and the Charter notwithstanding. So maybe to acknowledge the reality of their status above the rule of law, the reference to God in the opening line of the Charter should be replaced with the words, “law societies,” which would therefore appear before the phrase, “rule of law,” and immediately after the words, “supremacy of.” Thus, following the example of our law society committees and their work-product, that would resolve, or circumvent, the issue as to whether “God” should remain in the opening line of the Charter.

Ken Chasse (“Chase”), member of the Law Society of Upper Canada (Ontario) since 1966, and of the Law Society of British Columbia, Canada, since 1978.

[i] Therefore, here’s some Canadian coinage history re invoking God, (courtesy of a Google search, with my God-given better punctuation added): coins minted from 1902 till 1910 under King Edward VII read, “D. G. Rex Imperator,” which is Latin for, “By the Grace of God, King and Emperor.” From 1911 to 1936, under George V, it read, “Dei Gra Rex Et Ind Imp,” which stands for, Dei Gratia Rex et India Imperator, which means, “By the Grace of God, King and Emperor of India.” From 1937 to 1947 under the reign of George VI, it read either, “Dei Gra Rex Et Ind Imp,” as before, or was abbreviated, “D. G. Rex Et Ind Imp.” From 1947 to 1952, still under George VI, after the confederation of India, they read, “Dei Gratia Rex.” From 1952 till 1964, it read, “Dei Gratia Regina,” under Queen Elizabeth II. From 1964 on, it was abbreviated on all coins to the current phrase, “D. G. Regina.”