To the twenty-seven clerks of the Supreme Court of Canada
Dear Clerks,
When I was a young law dean making my welcoming address to new law students, I often posed this question: “Is law just?” To answer it, we need both to know the law and to possess a sense of justice. I would encourage students always to ask whether the particular law they were working on was just. And, if it was not, I would ask, “What will you do about it?” I would then remind these new students that soon, each of them would swear an oath to “improve the administration of justice.” To sharpen their understanding of the distinction between law and justice, I would ask these first-year law students to watch the film version of To Kill a Mockingbird. Set in Jim Crow Alabama, the film hinges on the trial of Tom Robinson, an African-American field hand accused of raping a white woman. All the mechanics of a criminal trial under English common law and the state of Alabama’s legal system are followed scrupulously. Yet the trial is a shameful exercise in justice denied – a fact that is visible to all who participate in and attend the trial. The trial and the entire justice system are tools to maintain a racial hierarchy in the state and not a means to strive toward justice.
With this example in mind, I would point out to students that to understand whether a specific law is just, they must know that law well; they must know its history, its reason for being, whether the circumstances of its application have changed, whether its interpretation has altered, and, if need be, what they would do to fix it. To ensure that they measure the law against an appropriate standard, I would urge them to work wisely over the next three years of their studies, and through their entire professional life, to know the law well but also to refine their sense of justice, the yard stick they use to “measure” a specific law. That, after all, is why each of us embarked on the study of law in the first place. The pursuit of justice is noble, idealistic, demanding, and compellingly important for a good society.
I love the law. In my forty-five or so years as a teacher at five Canadian universities and a public servant working in the context of the law, the legal profession has given me many things: a fulfilling career; a way to connect and interact with succeeding generations of Canadians; a medium through which to explore human nature, the state of my country, and the condition of the world; and a method by which to measure and realize justice. I have a strong feeling you love the law, too. You don’t become a clerk to a justice of the Supreme Court of Canada without unflagging energy, high intelligence, and, most of all, an intense passion for the law as a discipline, profession, and wellspring of order, fairness, and justice in our country.
When I was asked to serve as governor general of Canada, I had much to learn. Despite my background as a student, professor, and dean of law, I had to relearn the legal principles and conventions of our constitution. My re-education enabled me to develop a deeper admiration for how precious the rule of law is in our country, and how thin and vulnerable its veneer can be. And by rule of law I mean the prevailing legal system in Canada centred upon the constant, relentless pursuit of justice. Law without the striving toward justice is a hollow pursuit. The rule of law married to the constant search for justice is what makes us as citizens free. Indeed, as the old saying goes, law is the rules that make people free. When we think of the law as a way to strive toward justice and serve the good of citizens, we need to ask ourselves an obvious question: How do we improve the law to make justice more abundant and pronounced, and freedom more secure and widespread?
When I consider the need to constantly strive for justice through improvement, Hugh MacLennan’s analogy comparing gardens to civilizations comes to mind. His words – from his novel Voices in Time – are worth quoting in full: “In the relatively rare periods in the past that we call civilized, people understood that a civilization is like a garden cultivated in a jungle. As flowers and vegetables grow from cultivated seeds, so do civilizations grow from carefully studied, diligently examined ideas and perceptions. In nature, if there are no gardeners, the weeds that need no cultivation take over the garden and destroy it.”
As gardeners in the field of law, we must always be looking for ways to improve the quality of our profession and ourselves as lawyers. A good place to start our work is by looking at the current definition of professionalism in the law. I am a member of the Ontario Bar, so let’s begin here. In Ontario, new members swear an oath: “I accept the honour and privilege, duty and responsibility of practising law as a barrister and solicitor in the Province of Ontario. I shall protect and defend the rights and interests of such persons as may employ me.” It continues: “I shall neglect no one’s interest….I shall not pervert the law to favour or prejudice any one….” and, of overwhelming importance, “I shall seek to improve the administration of justice.” We see important duties reflected here to the client, justice, and the public interest. This series of duties is consistent with the principle of peace, order, and good government that underpins our concept of the good society in Canada.
One of the best modern reformulations of professionalism in the law is the American Bar Association’s Model Rules of Professional Conduct: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” The ABA’S Professional Committee is even sharper: “A professional lawyer is an expert in law pursuing a learned art in service to clients and in the spirit of public service, and engaging in these pursuits as part of a common calling to promote justice and public good.” These obligations – to clients, the public, and justice – constitute the social contract that legal professionals have with their fellow citizens and country. All professions have their own social contracts, and each is made up of three principal elements. First, the profession is characterized by specialized knowledge that is taught formally and obtained by experience and under supervision. Second, the state gives the profession a right to have a monopoly and to control entry and exit standards and competence and, to some degree, fees. Third, the profession has a responsibility to society to serve beyond the needs of specific clients. Ours is no different. As legal professionals, we enjoy a monopoly to practise law. In return, we are duty bound to serve our clients competently, to improve justice, and to work to fulfill the public good. That’s the deal. What happens if we fail to meet our obligations under the social contract? Citizens, through their elected representatives, will change that social contract and redefine professionalism for us. Regulation and change will be forced upon us – quite possibly in forms that diminish or remove our self-regulatory privilege.
This is not an abstract discussion. As lawyers, we face a profound challenge to our profession. We live in rapidly changing and increasingly complex times. Information is instantly available and in vast quantities via multiple media, making our decisions increasingly difficult. I like to illustrate the pace of change today with the following comparison: it took three centuries for the printing press in Western Europe to reach a majority of the population and reinvent that society; it took the Internet only ten years from the turn of the century to reach a majority of the world’s population. The legal profession is not immune to changing conditions and, most of all, changing demands and expectations from the Canadian public. In this light, we must be willing to embrace and adapt to change. To put our test more clearly, we must scrutinize our social contract to ensure that we continuously strive for justice and the public good. You are a key member of the generation that must confront and overcome this challenge. I’m confident you’re up to the task, applying the same energy, smarts, and passion that have taken you so far already. As you take up this challenge, let me suggest and explore six key relationships that lawyers have. Each of them causes some friction; I will dwell mainly on those instances of friction – sometimes as stories – in the hope that they will be a catalyst for the good. Remember, the oyster requires the irritation of a grain of sand to produce a pearl.
First, what should be the relationship between the lawyer and justice? One of Canada’s early and significant chapters in the story of law clashing with justice took place in Halifax. In 1835, Joseph Howe won a landmark case in the struggle for a free press in Canada when he successfully defended himself against a seditious libel charge brought by members of the powerful Halifax Family Compact. In his newspaper, The Novascotian, Howe had publicly accused the ruling class of profiting at the expense of the people. Although he had broken the libel law of the day, Howe was acquitted after he presented proof of his assertions in his famous five-hour defence in the Nova Scotia Legislature. John Ralston Saul recounts this episode in his book on Lafontaine and Baldwin, noting that Howe’s argument tackled the question of loyalty versus treason. Howe was called a traitor for telling the truth, and were it not for the strength of his argument, he would have been found guilty under the law. Fortunately for us, Howe persuasively made the case for justice and reform, telling the court, “The only questions I ask myself are: What is right? What is just? What is for the public good?” Howe asked himself the same question I used to ask new law students – “Is the law just?” – and he concluded that it was not. His history-making stand reminds us that we must continue to ask ourselves this question throughout our careers.
The pursuit of justice isn’t the stuff of history only. A contemporary instance in which the administration of justice cries out for improvement is the administration of our courts themselves. The Ontario court system has been slowed by an inordinate number of unproductive appearances and some of the longest court delays in the country. In his study of court processing times across Canada, criminologist Anthony Doob found that in cases where no bench warrants were issued, Ontario had three times as many cases lasting more than eight months than did Alberta. And Alberta doesn’t exactly stand at the top of the list of expeditious standards of court administration. Ontario has made progress in reversing this trend, with the Justice on Target program and initiatives such as Streamlined Disclosure, Meaningful First Appearances, and Dedicated Prosecution, but the pace is still woefully slow.
Although I have focused on court delays in Ontario, wide discrepancies exist all across Canada, both in our criminal and civil justice systems. A recent World Justice Institute study ranks Canada ninth out of the twelve European or American nations surveyed on access to civil justice. Anthony Doob suggests that reducing these delays would require a hard look at what he calls “court cultures”; that is, “shared expectations about how things should work” among judges, the accused, defence counsels, Crown attorneys, and legal aid. In addition to understanding these cultures, we need a shared willingness to work toward ensuring a fair, equitable, and speedy end to each case, for the benefit of the individuals involved, the legal system itself, and society as a whole. We need to bring a sense of urgency to that shared culture and redefine professionalism. We in the legal community have a responsibility to take the lead in reforming the court system for the public good; remember our oath to “improve the administration of justice,” and that justice delayed is justice denied. Or, as Joseph Howe pointed out, “He who delays or withholds justice excites discontent and sedition; [the King] would tell them that they were the rebels.”
The lawyer also has a relationship with trust. Trust occupies several dimensions – for simplicity’s sake, I want to focus on the micro and macro levels. At the micro level, trust is determined by how fairly, effectively, and efficiently an individual lawyer serves his or her client. That level of service includes the terms of payment. Trust implies that we are paid for value-added only and not for monopoly rents, and that we constantly seek the most cost-effective solution while striving to make our practices as efficient and fair as possible. At the macro level, trust requires each of us to have an abiding concern for how we are regarded by the public – our partners in our social contract – and how we cultivate our unique professional responsibilities toward the public good. A powerful illustration – albeit a negative one – of the importance of trust is the 2008 economic collapse and the extraordinary collateral damage it caused to Main Street in America and around the world. This debacle reflected poorly not only on financiers but also on lawyers. How many lawyers “papered” the deals that involved fraudulent statements of assets, liabilities, income, and valuations? How many lawyers “sounded the alarm” about conflict of interest in the web of financial transactions and creative financial instruments? How many lawyers were silent in the face of a pattern of deregulation that left the U.S. economy naked to excessive leverage – and which any thoughtful observer knew was bound to have its inevitable pendulum swing? And what is especially surprising is that we had a precursor seven years earlier: the dot-com crash of 2001 involving Enron and WorldCom and others, which brought in the Sarbanes-Oxley regulating framework of mind-numbing rules as opposed to principles for judgement. This framework was very costly and of questionable effectiveness at the micro level. At the macro level, it encouraged an even greater system of excess to fall into place. A principal reason why fiscal discipline is so hard in places such as Greece and Italy today is because trust between lawmakers and the public has eroded. Many ordinary citizens believe it is the greed of lawyers, bankers, and accountants that has brought their economies to their knees. Trust must also exist between the lawyer, the public, and institutions such as the Canadian Bar Association and provincial and territorial law societies. Citizens must know effective and transparent measures are in place to resolve their complaints; they must trust in these institutions to govern the legal profession and be responsive to public need. That’s the deal.
The third key relationship is between the lawyer and education, both at the entry level to the profession and throughout a professional lifetime. Here I rely heavily on William Sullivan and his co-authors, who wrote Educating Lawyers, as well as Work and Integrity, his parallel book on the five professions of law, medicine, engineering, nursing, and clergy. In these works, Sullivan describes the three apprenticeships of the professions: cognitive, practical, and ethical-social. The cognitive is the intellectual aspect of the law – meaning knowledge of the law, its thinking and doctrine. The practical refers to the competent practitioner, while the ethical-social refers to identity and purpose: who are we and why do we do what we do? For lawyers, education formally begins at university. Let me focus only on law school. In my judgement, we have allowed too great a divide to develop between academia and the profession. We don’t cure this problem by forcing the profession back in, but rather by making the compelling case that the three years at law school mark the beginning of the journey of preparing professionals with all three apprenticeships. We should not leave the practical and the ethical apprenticeships to the end – articling and the bar admission course. We should start with how we choose an entering class. Beginning in law schools, we need to integrate these three apprenticeships – cognitive, practical, and ethical-social – as one mutually reinforcing continuum. Let me illustrate with two stories from my younger years, during which I struggled to integrate these three apprenticeships and lacked the clarity and wisdom to see then the generalized principles that I see today.
When I was a young law dean almost 40 years ago, we chose an entering class of 150 from more than 2,000 applicants based largely on demonstrated academic merit through undergraduate grades. Since then, the Law School Aptitude Test has been added. These intellectual criteria are essential but should not be exclusive. A better system would continue to use demonstrated intelligence as one filter to select perhaps 600 or 700 potential students from the 2,000 applicants. To select 150 students from this pool of 600, extensive interviews should then be conducted and additional criteria employed to identify qualities for professional responsibility: wisdom, judgement, and leadership; demonstrated excellence in any field; relationships with people; ethical sensibility and depth; and capacity to engender trust. Canadian medicine has evolved in this way. In two of the medical schools I know best (McGill and McMaster), applicants once screened to a final list visit 21 different interview stations over two days. Each station is staffed by two interviewers, who present scenarios for each interviewee’s response, which can last anywhere from five to ten minutes. Using this method, the admissions committee has 42 different points of view on choosing each student for an entering class. This approach recognizes that the teaching of professional responsibility begins on day one of the university-based M.D. degree. The medical school is also close to the teaching hospitals, and students see patients early on in their education. On top of that, as student members of the profession, they participate in the “white coat” ceremony in their first term, underlining the fact that they are responsible for and to their patients right from the beginning.
As to curriculum in law, I would integrate the bar admission course with the university degree course similar to what medicine does. I would place a broad and extensive focus on ethics in law school to help aspiring lawyers develop a greater understanding of the ethical implications of a proposed course of action and to see their role as public trustees. I would also intersperse internships or articling throughout the academic years and would pair academic and practising lawyers co-teaching each course as much as possible in the curriculum to integrate the three apprenticeships. Let me illustrate what I’m driving at with another anecdote. Perhaps the best experience I had as a law teacher was to help develop a cluster in corporate law and finance at the University of Toronto Law School in the early 1970s. Frank Iacobucci and I were young law teachers. We were lucky enough to pair with Jack Blaine at McCarthy’s and with Purdy Crawford and Jack Ground at Osler’s. Frank, as I’m sure you know, went on to distinguish himself in many law-related spheres. Jack Blaine was then counsel to the committee to reform the Ontario Business Corporations Act and completed his career as a leader of the corporate bar. Jack Ground also was a leader in the bar admission course, later a Bencher and an Ontario Supreme Court justice and, though retired, continues in the field of alternative dispute resolution. Purdy Crawford had been counsel to the Kimber Committee to reform Ontario securities law and then continued on as a leader in corporate law and business. His most remarkable and last entrepreneurial task was to successfully resolve the claims of holders of Canadian asset-backed securities following the collapse of that market. As young law teachers, Frank and I profited enormously from this experience. And so did our students. This cluster helped establish the University of Toronto in corporate law teaching and practice and in law reform. Frank, Purdy, and both Jacks are the finest of role models. They all lived the three apprenticeships, with the third role – that of public trustee – especially pivotal in their extracurricular law reform work.
I raised medicine a little earlier as a source of guidance. Medicine has many lessons to teach us about the redefinition of the professional. By marrying the professional and academic experiences and by combining theory and practice, the framework for lifelong research, continuous evidence-based education, and professional renewal has been established. All these responsibilities are assumed by the medical school itself, which is built around the hospital and clinical practice. And bear in mind, the first of the three elements of professionalism in the law is specialized knowledge constantly enhanced to improve justice. The symbiosis of the university and the profession is close.
The fourth key relationship is between the lawyer and social need. The law is not accessible for many people today, save for large corporations and desperate people at the low end of the income scale charged with serious criminal offences who receive legal aid. We must engage our most innovative thinking to redefine professionalism and regain our focus on serving the public. We can achieve this goal in many ways. Four come quickly to my mind: avoid the tort law morass of U.S. law; simplify legal procedures and render them more cost-effective; examine the scope of practice to unbundle activities that do not require legal professionals and work with paralegal associations to enhance their competencies; and move the industry standard of pro bono work, including cases, teaching, and law reform, from the current rate of less than 3 per cent to 10 per cent, and build these “honourable hours” rigorously into the firm’s revenue structure. If we wish to avoid having change forced upon us, we must embrace such new ideas and innovation.
Let me illustrate this point with a medical story that is set out in Richard Cruess and Joseph Hanaway’s history of McGill medicine in the nineteenth century. All Canadians should know of Dr. Thomas Roddick, for whom the McGill entrance gates are named. After studying medicine at McGill, Roddick went to Scotland where he graduated in surgery at the University of Edinburgh. There he studied under Joseph Lister, who was a pioneer in the use of carbolic acid to disinfect the operating room. Lister was so convinced of the medical benefits of carbolic acid as disinfectant that he damaged his hands and lost his ability to operate. Roddick returned to McGill to open a third operating room alongside the two senior professor surgeons who had taught him at McGill before his Edinburgh enlightenment. In his first two years of practice, his patients’ mortality rate from surgery was less than 2 per cent annually, all because of the disinfecting power of carbolic acid, with which he bathed his operating room. The two senior surgeons – who refused to use carbolic acid in their operating rooms – saw mortality rates of more than 20 per cent among their patients due to cross-infection. At this point, Dr. William Osler, then a young McGill professor (who later wrote Principles and Practice of Medicine – which went through more than forty editions – and became the Regius Chair of Medicine at Oxford), intervened and threatened to publish the comparative statistics in the local newspapers if the two senior surgeons persisted in their refusal to use carbolic acid. They relented, and mortality rates dropped accordingly.
As legal professionals, we can learn several lessons from this anecdote that we can apply to our own profession. First, the story illustrates clearly the importance of using best practices from other jurisdictions and of being open to the ideas and energy of younger members of the profession. As I frequently say, minds, like parachutes, work best when open. Second, the most senior and respected members of our profession must be prepared to intervene to ensure the public good. Third, we must create a culture of constant renewal and continuous improvement in practice and evidence-based learning. Fourth, we need to ask ourselves what the public expects and what members of the public would say if they really knew what was going on in our profession. And fifth, we have a compellingly urgent need to keep the public good foremost in our minds.
The next relationship the lawyer has is with the firm. Earlier, I mentioned the internal social contract within the profession. This contract also speaks to how firms treat their members and staff. Let me illustrate a key aspect of this contract, of which there are many. Our first obligation as professionals is to ensure that a firm allows for its people to enjoy a reasonable balance between work and life beyond work. We shouldn’t penalize those with families; we should support them so that they are able to succeed in the field while supporting the most important aspect of their lives: their spouses and children. If we wish to draw from the entire nation’s talent pool in attracting our most promising young people of both sexes into our profession, we must find a better balance and strive to keep employees motivated and fulfilled. I am the father of five daughters, of whom the eldest three are lawyers and parents with seven children among them. I have witnessed their courage with amazement and, at times, incredulity as they have built both their careers and their families. And they have done so in spite of their firms. In my professional lifetime, I have seen the shift from having one woman in my graduating law class to a majority today, largely because of the ability, tenacity, and application of women. Yet something happens in firms just as many women are contemplating families, with or without supportive husbands (and the firms are hard on supportive husbands, too); the harsh scorecard is how few firms count women among their senior partners. The women lawyers in firms simply disappear along the way. The good news is we’re seeing progress in law schools. Last time I checked, seven of the nineteen Canadian law school deans are women.
I believe the lawyer also enjoys a relationship with public service. Lawyers are particularly well prepared for public service and yet we’re substantially under-represented in it. Let me illustrate with my own case. I was all set to commence articling for a career in law in 1965 when my dean asked me to join the law faculty as a teacher. I took a one-year leave of absence from my law firm; this leave of absence is now in its fiftieth renewal! Purdy Crawford, to whom I was to be articled, once ended a letter of reference for me by saying: “You’ll be lucky if you can get this man to work for you.” The reality is, I’ve never worked! I enjoyed university life so much I never left until I was in my seventieth year, when I was asked to join the public service. I often say that all of the important things in life I have learned from my children, and all five are in the public service. So I followed their example. And I am very grateful I was given that one-year renewable leave of absence.
We as a profession have traditionally done well in our appointments to the Bench. For the most part, we have an extremely high level of competence and trust and – to the credit of our profession – our most accomplished colleagues are prepared to reduce their level of compensation to join the public service. We must guard and build on this precious tradition of competence and integrity on the Bench. It is a precious and fundamental responsibility requiring constant vigilance and only the most worthy among us are elevated to the courts. However, we must do much more to ensure that all other areas of Canada’s public service are able to draw from our profession. And we must ensure that the quality of the work, the opportunities, and the function of all professional levels are rewarded and appropriately respected in these areas. Part of the trick is to ensure that prospective law students and lawyers are fully aware of opportunities in the public service, and that we encourage movement back and forth, as Frank Iacobucci, for example, has done. He has served in the academy (professor and dean of law, university provost and president), the judiciary (Federal Court of Appeal and Supreme Court of Canada), public service (deputy minister of Justice), and practice early on with Dewey Ballantyne in New York and now as counsel with Torys. Frank would say each of his experiences enhanced his ability to function on the others.
I referred earlier to William Sullivan’s Work and Integrity, which discusses the Carnegie Foundation for the Advancement of Teaching’s study of the professions of medicine, nursing, law, engineering, and clergy. Think of the magic of that title: Work and Integrity. Sullivan issues a clarion call for renewing the social contract between the professions and the wider public they serve. He envisions a new model of professionalism that aims at humanizing modern work and improving the equity and quality of contemporary life. We need our own Carnegie Commission on creating a new model for professionalism in law. To borrow a saying from a sister profession: lawyer, heal thyself. We can do this. Our country has a long history of innovation in the law, dating all the way back to Samuel de Champlain, the first governor – in all but name – of what we now call Canada. In 1608, four members of Champlain’s crew staged a mutiny, plotting to murder him. Upon hearing of this treachery, Champlain laid a trap for the four conspirators and captured them – good detective work and law enforcement. Champlain then established a tribunal to act as the court. A formal trial took place. Evidence was heard. The accused were represented and, following due process, were found guilty of their crimes. They were sentenced to death. Although the ringleader was hanged, Champlain tempered justice with another idea for the rest of the mutineers. He recommended they be sent back to France for the King’s court to review the sentences; they were eventually pardoned, which was common in those days. In this way, Champlain showed not only swift justice but also mercy. Evidence was heard and a tribunal was convened to decide on the prisoners’ fate. In a place where there were no courts, lawyers, or civilization, as they knew it, they were able to handle these crimes with ingenuity and, most importantly, fairness.
The challenge that Champlain met so adroitly is the challenge I set before you, the young leaders – the emerging gardeners, if you will – of our profession. Applying your profound ingenuity and deep sense of fairness – qualities that have taken you so far already – I urge you to scrutinize the social contract of the legal profession with the public and also internally so that our profession is always striving toward justice and always working to serve the public good.
Yours professionally,
David Johnston
Each of the nine justices of the Supreme Court of Canada has three law clerks chosen from among the very top graduating law students around the country. They carry out research, draft bench memoranda, and help justices draft judgements. Their service with the court meets in whole or in part the articling requirements of Canada’s provincial law societies as a condition of admission to the Bar. These clerks are an ideal representation of the emerging generation of legal professionals in the country.