RSS FeedBilingualism and the Supreme Court
As reported by the Globe and Mail, a bill requiring that all future Supreme Court justices be bilingual was passed last week and now awaits Senate approval. The private member’s Bill C-232, tabled by NDP language critic Yves Godin, was harshly criticized by former Supreme Court puisne judge John Major on CBC’s “The Current” radio show.
Major argued that the only way to uphold the Rule of Law in Canada is to have the most competent people in the Supreme Court, not to put the emphasis on linguistics. Since there is far more bilingualism in the East, requiring bilingual Justices from the West would lower the grade of the talent pool. Major noted that both Parliament and the UN use translators. He said that in his 13 years on the Court there was never a single case where he didn’t fully understand the case, between translators and extensive case preparation. Major argued that “fluently bilingual” is a very high threshold to achieve, and most justices only learn French after they are appointed. Interestingly, Major criticized several times former justice minister Irwin Cotler and former lawyer Bob Rae for their support of the bill.
While Godin argued that Harper broke a fully bilingual Court by appointing Rothstein (who is currently taking language lessons), Major countered that it’s actually only two or three current Justices who are truly bilingual. Godin’s primary concern was that someone arguing a case before the Court would not be fully understood, a concern that Major effortlessly debunked.
Phil Fontaine, former National Chief of the Assembly of First Nations, called the bill is “elitist” because it does not fully reflect the diversity of Canada. I would call it elitist because it is only a small subset of Canada’s English-speaking population that has access to quality French-language instruction at a young age.
Women in the Legal Profession
It’s 2010. Twenty-eight years ago, Canadian lawyers helped draft the Canadian Charter of Rights and Freedoms, guaranteeing, among other things, gender equality before and under the law. Canadian lawyers have also drafted provincial and federal human rights acts, and each of the law societies’ professional regulations, all of which prohibit public, non-governmental gender discrimination.
But like the old saying goes, “If you see smoke, don’t forget to check the fire station.”
Last year some classmates and I researched the issue of gender inequality in the legal profession. We were saddened to find that it does indeed exist, though it appears to be on a belated decline.
We interviewed two law professors at the University of Windsor on the issue. Here’s what they had to say:
To get involved in this important issue in Ontario, check out the Women’s Law Association of Ontario (WLAO), which has been “Speaking out for Women Lawyers Since 1919″. Or, help spread awareness and ideas online here, here, here, here or elsewhere.
And yes, “don’t forget to check the fire station” is not actually an old saying. However, once you abandon tradition you can find meaning in lots of new places.
Don’t jump to conclusions on Asian-perpetrated gun violence
Commenter Lynne rightly points out that even we perhaps jumped to conclusions in the case of Philadelphia law student, Gerald Ung. In January, we linked to Above the Law coverage of Ung, who had been arrested after shooting a man six times in the wee hours of the night. The story had described the incident as “(If true), not the first time an Asian-American law student in Philadelphia has gone on a shooting spree.”
This description perhaps buys into the stereotype of the crazed Asian student who suddenly explodes. Certainly, Virginia Tech is called to mind. Unfortunately, in Pennsylvania, the Ung case coincided with the sentencing of another Asian law student, Joseph Cho. In 2007, a schizophrenic and bi-polar Cho had shot at his neighbour’s front door because he had thought they were terrorists.
Above the Law has since redacted its article in the face of the possibility that the Asian-American shooter in this case has a potentially viable justification and legal defence. As details of the incident emerged, Gerald Ung has appeared less and less likely to fit the mold of the “typical”, mentally unhinged Asian.
First, security video that captures the shooting paints a picture far removed from the image of a crazed law student who snapped. The video shows Ung and a female friend being pursued by the shooting victim and a group of others. Ung is seen drawing the gun after the female friend is shoved – all the while, still retreating. When the victim rushes Ung, the gun discharges and continues to do so as both tumble to the ground.
After the shooting, reporters say the video depicts Ung remaining with the victim and calling 911 from his cell. As such, the video at least arguably portrays a justifiable act of self-defence rather than criminally condemned conduct.
Next, details of Ung and the victim themselves came to light.
On one side, a spokesperson for the victim’s family has said that the victim is considered a hero who stepped in front of the gun to save the lives of his two friends. He was a varsity lacrosse player who considered himself invincible. He has since been cleared of life-threatening injuries.
On the other hand, friends of Ung have also spoken out, insisting that the portrayal of Ung as a disturbed individual is simply inaccurate.
The Facebook group supporting Ung has 520 members. Ung’s fellow law students at Temple have also established a defence fund.
Nevertheless, Ung has been charged with criminal attempted murder, aggravated assault, carrying a firearm without a licence, possession of a weapon with intent, assault, and reckless endangerment. As the case proceeds towards trial, no doubt we’ll be hearing much more about both Ung and the victim. The preliminary hearing is schedule for April 16th. However, what is already clear is that this story is much more complicated than just another crazed Asian gunman.
Two AIG Subsidiaries Agree To Settle Racial Discrimination Case
This is part of the Middle Passage Law Series and is cross posted on Commercial Law International .
American International Group, better know by its acronym AIG, it seems these days can rarely catch a break. It just seems negative news follows negative news for this company. This time the negative news for this too big to fail company – deeply wounded by the global credit crunch and later recession – has two of its units being accused of racial discrimination in their lending practices.
It is important to note that AIG has not been found guilty of anything; in fact it wasn’t even accused of any wrong doing.
WHAT?
I know, I know, it seem like I am saying that AIG is involved yet not involved in this case. And yes that is exactly what I am saying.
All of this may seem totally contradictory but let me assure you it is not. What we have here is a classic illustration of legal reality vs. public perception of a company’s brand. In order to be successful companies have to be mindful of the differences between these two concepts and effectively manage their interrelation.
The Department of Justice (DOJ) allegations were never directed at AIG, the parent company, but were instead directed at two of its subsidiaries –AIG Federal Savings Bank (FSB) and Willmington Finance Incorporated (WFI). Both banks were accused of not sufficiently monitoring the activities of mortgage brokers who sold mortgages that they funded. The brokers were, according to the DOJ, offered African-American borrowers less favorably borrowing terms than similarly financially situated whites. The two have agreed to settle the case with the DOJ and have agreed to pay at least $US6.1 million without admitting liability as part of the terms of settlement.
The case broke no new ground as far as banks in the US being accused of racial against minorities, namely African-American and Latino-Americans, in fact similar settlements or even full blown litigation involving other US banks will surely be making the headlines in the near future. The case however did break new legal ground in that for the first time US authorities held a lender directly responsible for the racial discriminatory acts of brokers. As a consequence, from now on banks will have a positive duty to monitor the activities/policies of brokers that they fund, to the best of their ability, in order to ensure that they are not using race to determine borrowing terms. This duty also of course carries with the co-duty to take positive action whenever a bank believes that a broker is using race.
From a strict legal perspective AIG, the parent, hands remain totally clean is this matter. It is important to reiterate that AIG was never accused of anything; the allegations were solely directed at the two subsidiaries. And no this is not a simple matter of splitting hairs, while related all three companies are separate. The legal concept of the corporate veil - the independent legal identity of companies, even if related – is a fundamental one in corporate law. The corporate veil is best understood as a shield that is used to protect all the right that come with incorporation. This is not to say that it can never be lifted/pierced, for it can, but this is only done in rear and specific instances where for example fraud is alleged or where for some reason the directing/controlling mind of a corporation needs to be identified.
However, these allegations go beyond strictures of the corporate veil and this is where public perception of the brand and effective management of that brand become important. AIG and its army of brand management specialists both know that the general public are often not so discerning as to make the distinction between parent and subsidiary; as far as the public is concerned AIG is AIG. This is the reason I believe that there was such a quick settlement – the last thing AIG, the parent, needs is a protracted legal battle involving accusations of racial discrimination, albeit involving subsidiaries. This would be a public relations nightmare.
Speaking of getting “tough on crime”, how about “hate”?
When a local Georgian Township man, Trevor Middleton, was convicted of assault and criminal negligence in December, 2009, friends and family of the victims were hopeful that justice was served.
The Toronto Star
During the case, the jury had heard how Middleton and his friends had engaged in the practice of “nip-tipping” – that is, they would push into the water individuals who were fishing and who were of visibly Asian descent. This would be on the pretense that such people were fishing illegally, without licenses, or catching more fish than they were allowed to.
As well, the jury had heard how, after this altercation, Middleton had pursued the victims in his F-150 pick-up, how he had rammed their Civic with his truck, and how the victims were forced off the road and into a tree. The jury also had heard how one of the occupants, Shayne Berwick, suffered severe brain injury and is now confined to a wheelchair.
As a result, the jury had taken all of three hours to find Middleton guilty.
An Interview with Quebec’s first black lawyer
Anthony Morgan, a McGill law student and president of the Black Law Students’ Association of Canada, interviewed Frederick Phillips, McGill’s first black law grad and Quebec’s first black lawyer.
You can read the interview on inFocus online, McGill’s news magazine.
Criminal Defence Lawyers Need Not Apply
Newsflash – the Ontario Government is looking for outstanding members of the public to sit on 27 separate police services boards throughout the province. Criminal defence lawyers need not apply.
What? Did I read that right?
Strangely yes. On the Ontario Government Public Appointment Secretariat’s website found at: http://www.pas.gov.on.ca/scripts/en/upcomingVac.asp, there are nearly 200 postings for various positions on provincial agencies, boards and commissions.
But in the requirement section for the police services board postings, it states, “No judge, justice of the peace, police officer or person who practises criminal law as a defence counsel may sit as a member of a board.”
Presumably this restriction is present because of a perceived conflict of interest by the enumerated professions. But in the case of criminal defence lawyers, I don’t see it.
Is it suggesting that criminal lawyers are blindly partial to criminals and that they do not want to live in safe communities? Or perhaps they are too inclined towards Charter rights, fairness and the rule of law?
Unlike the police and members of the judiciary, the defence bar is not paid through government salaries. If they are paid government money at all, it is by piecemeal legal aid certificates. But if you think about it, it is in everyone’s best interest including defence lawyers for the police to do a good job.
Let’s be clear, police services boards exist for effective administration of police organizations. They do not, or at least should not, direct or participate in police operations. Their role is to set administrative and fiscal policy.
Accordingly, a defence lawyer serving on a police services board is not in any conflict of interest.
Neither is it a general conflict for other professions like chartered accountants, business owners, or Commedia dell’Arte clowns for that matter to serve. The question that should be asked is who best can serve in the required capacity.
To say that criminal defence lawyers are in conflict because they make their living representing “criminals” is to miss the point. Having a thorough understanding of the criminal justice system is an asset and indubitably would be a positive influence on the effectiveness of police services boards.
The Life and Times of Ivan C. Rand
From Volume III, Issue II of Amicus Curiae, Western Law’s Student Paper
Canada was a different place before Trudeaumania swept the nation, and the man we know as Ivan Rand, founding Dean of this law school and former Justice of the Supreme Court of Canada, was a product of his times. It would be easy to dismiss Dean Rand as an intolerant bigot, but as William Kaplan explained to an audience at Western Law on Nov. 11, [2009,] Rand was complicated character.
“Canadian judicial biography has been, with a few exceptions, mostly uncritical and largely celebratory, written by unabashed admirers,” Kaplan writes in his new book, Canadian Maverick – The Life and Times of Ivan C. Rand. “To my great surprise, this book turned out to be different.”
Ivan Rand was born and raised in the Maritimes and graduated from Harvard Law in 1912. It was his exposure to the American Bill of Rights that, according to Kaplan, differentiated Rand from other Canadian lawyers. And it’s Justice Rand’s decisions as a Justice of the Supreme Court that make his legal legacy so difficult to reconcile with his private views, which have been largely hidden until now.
By 1951, the court in Noble v. Alley assessed a restrictive covenant against selling property in the Grand Bend area to Jews, blacks, or those with “coloured race or blood.” It was Justice Rand who interrupted oral submissions by the respondent saying,“If Albert Einstein and Arthur Rubinstein purchased cottages there, the property values would increase, and the association should be honoured to have them as neighbours.”
Despite his position on restrictive covenants in this case, he was a member of two restrictive clubs that excluded Jews. He defended the right of Communists to hold elected positions, and famously opposed the internment of Japanese citizens, all the while refusing to meet his sister’s Acadian husband for 30 years because of his background.
“It’s this hypocrisy – because he did know better – that ultimately leads me to conclude: first-rate mind, third rate temperament,” said Kaplan, noting that the most influential judges are rarely collegial consensus builders. “Not such a bad combination.”
What, if anything, changed during his lifetime?
Kaplan suggests that Rand’s exposure to Jews in the Palestine Mandate may have led him to develop a more favourable impression of Jews. Rand was impressed by the largely secular, often highly educated and industrious, and was sometimes even disdainful of the religious establishment of the Holy Land. He believed that rational law could resolve all human conflict, and was a social engineer at heart.
Robert Mackay, one of Rand’s colleagues at Western who would eventually succeed him as Dean, recalls Rand’s rants against Jews and people with ethnic names that ended with a vowel: “Rand would declare he had enough of them.”
Yet he continued to donate to Hebrew University in Jerusalem for the rest of his life. A forest in Israel was named after him, and he would tour the country receiving awards.
So what is Rand’s legacy for this school?
Kaplan tellingly notes, “Almost all of his great civil libertarian decisions reversed the actions of state authorities in Quebec.” Mackay explained, “Rand had to decide who he hated more – the French-Canadian Roman Catholics, or Jehovah’s Witnesses.”
Rand believed that ethics could not be taught – either you had them or you didn’t. Western is now known as a pioneer in legal ethics education.
The Ivan Rand window in the Moot Court Room looms menacingly above all those who dare try their hand at advocacy. Rand himself believed that mock trials courts were entertaining, but not educational. He preferred his old 1909 Harvard law texts for the students.
Rand felt that women were good as solicitors but did not have the fortitude for criminal law, a notion that would not bode well for our classes in which women outnumber men , the legal aid clinic, or our struggling criminal law program.
Dean Rand defied utilitarian economics by taking surplus budgets and returning them to the university, much to the chagrin of his staff. He abandoned the administration of the law school only months after its opening to attend to a coal crisis in Cape Breton.
Yet the students loved him.
The Rand formula, where workers pay union dues irrespective of membership, is still one of the hallmark characteristics of Canadian labour law. One of Rand’s recommendations (which was never adopted) was that unions be recognized as legal entities that could sue and be sued [directly, and not through agents]. Another was abolishing picketing altogether.
Overall, Kaplan describes Rand’s own hand at labour relations as nothing less than “disastrous,” with nearly every stakeholder and political party expressing strong criticism. “Reforming labour law,” Kaplan said, “is best done incrementally.”
As our own Dean Holloway acknowledges, “it’s difficult to write fairly about Ivan Rand… What emerges is a picture of a principled man, who thought deeply about the best way to enhance the standards of this profession.”
Kaplan suggests that what makes Rand impressive is his ability to draw bright lines between his public and private life, especially when on the Court. And for a man whose vision in many ways may have been ahead of his time, perhaps that is the most we can ask for.
Legal Profession has not Adapted to Realities
Donna Nebenzahl writes in today’s Star,
Despite the gains of recent years, women in the workplace are still taking it on the chin, according to several wide-ranging studies.
A report released last year for the Law Society of Upper Canada’s working group on the retention of women in private practice indicated that the legal profession has not adapted to the “reality” of child rearing and its effect in the workplace…
This is not the only place where disparity shows up. According to a 2004 Law Society report, fewer women make partners than men and they seem to earn less across the board in comparable jobs – 32 per cent less in sole practice, 11 per cent less in law firms and 3 per cent less in government jobs.
Those who “nip-tip” Asian anglers guilty on both sides of the border
In 2007, Chinese language media in Ontario began coverage about an interesting phenomenon: in and around popular Lake Simcoe fishing spots, reports of incidents where anglers of Asian decent were targeted for assault. Most commonly, Asian anglers or their equipment were thrown into the water. An inquiry by the Ontario Human Rights Commission found evidence of racial harassment that ranged from the use of racial slurs to stone-throwing.
Coverage of the issue increased when at the end of one incident, a car accident left a young man in a coma. Today, the defendant charged in that Sept. 16, 2007 incident was found guilty of assault and criminal negligence.
Toronto Star
Canadian Lawyer asks Why Diversity Matters
Does diversity matter in the legal profession? And if so, what is the current status of diversity in major Canadian law firms?
Canadian Lawyer is focusing the subject in the October issue.
Gail Cohen looks at the experiences of several diverse lawyers, and addresses the business case for diversity.
But firms are still not disclosing their numbers, and we know why. The number of visible minorities at the upper tiers of large law firms are abysmally low.
Recruiting is not the issue – it’s retention. And the use of “corporate fit” is just an euphemism for exclusion, and diverse students recognize this when they hear the terminology during interviews and promotional materials. Rather than adapting firm culture to reflect our increasingly diverse society, firms are still expecting lawyers to adapt to their monolithic ideals.
Meanwhile, some of the best legal talent is siphoned elsewhere, to other areas of law or even other careers. They taken their diversity experiences about law firms with them wherever they go, and they can impact business and recruitment.
But the problem isn’t just in law firms – the judiciary is probably even worse. And the problems begin much earlier in the legal career, as early as in law school, where a monolithic and exclusive culture permeates almost every institution.
Cohen suggests that firms come clean and show their figures. If their figures are low, they can show progress over time. Big firms have the resources to take the lead, and the financial incentives to do so.
By recognizing that diversity provides them a competitive business edge and actively seeking to rectify the situation, more opportunities will open up for diverse lawyers. And if that happens, other sectors of the legal industry, including law schools, will likely follow.
Canadian Lawyer will be posting weekly stories related to diversity for the next month.
As an extra cookie, how many Law is Cool contributors can you find on the cover of this month’s magazine?
Link to Precedent Magazine Article
I have written an opinion piece on the relationship between police officers and lawyers for Precedent Magazine.
It can be found on page 17 of the Fall 2009 edition or via this link:
Please check it out and we welcome comments. Thank you.
