Against assisted suicide

A few days ago the Canadian House of Commons rejected an assisted suicide bill. The proposed legislation would allow doctors to help terminally ill patients or people in unrelenting pain to end their lives. Currently, doctors or nurses or anyone else who helped someone die would be liable to murder or manslaughter charges and perhaps civil damages. Very few jurisdictions in the world authorize assisted suicide, which seems to be a “victimless crime.” The recent failure of this bill in Canada is a good opportunity to review reasons why society denies us an inalienable right to control our own death.

The dying person certainly has an interest in the right to end own life. First, suicide would stop unimaginable suffering. Second, the debilitating suffering is an affront to the patient’s dignity. Third, the dying person may want to accelerate the transfer of his or her property to the heirs. Fourth, the patient desiring suicide may wish to spare his or her loved ones the mutual torture of the situation. Finally, the patient may want to cap his or her health care bill. That of course is not very relevant in Canada unless your province refuses to pay for a life-saving cancer drug.

Not all public interest is against the dying person’s wish. Respect for private will and the freedom to choose is an important part of the Western way of life. But the difficulty here is that dying patients and people in unrelenting pain may have lower decision-making capacity so the society must take extra steps to ensure it understands the will of the patient correctly and that the patient is capable of forming decisions.

Generally, all issues that the society has with assisted suicide are rooted in the overarching interest to protect human life. Death is irreversible, so the risk of mistake is unacceptable even if the risk is small. The harm from assisted suicide based on a mistaken conception of the true will of the patient is enormous. People in great suffering are vulnerable and may have a lower capacity to make decisions or to communicate their true will. It is reasonable to speak of a slippery slope where we take less and less precautions or where our precautions are not enough in harder cases, which we cannot recognize. That path will take the society to where it may kill people who do not really want to die but simply cannot tell us about it.

That’s why, incidentally, the death penalty should be abolished: unless we can guarantee guilt, every time we kill a convict we risk killing an innocent man. Unless a convict’s life is less valuable than a patient’s, our highest duty to preserve life must make any risk of unjustified killing, including in the death penalty, unacceptable.

Another slippery slope argument is that the society will be seduced into tolerating more relaxed requirements for assisted suicide to lower the high cost of caring for the dying. The flip side of this argument is that we should prohibit assisted suicide to protect our standards of caring for the dying.

Our society is extremely complex and it is far from perfect. We make mistakes all the time. Sometimes, politics, ideology, or emotion influence decisions that should be exclusively technical. The risk of killing a dying patient who may not really be willing to die is too high given our paramount social duty of preserving life. Besides, modern science can certainly come up with means of reducing or eliminating suffering on the death bed, if not push the death farther away. Authorizing assisted suicide (just like authorizing the death penalty) is not a good idea.

Pulat Yunusov

(Post sponsored by AdviceScene)

Why Québéc Cannot and Should not Ban the Niqab

An article jointly written by David Shulman and Lawrence Gridin

Last week the government of Québéc announced that it would restrict female Muslims from covering their faces with the niqab.  This article is about the fundamental freedoms that we enjoy as Canadians and human beings, and the power of the government to encroach upon those freedoms.

The legislation proposed in Québéc will prevent a woman wearing a niqab from being able to access public services, including consulting doctors at a hospital or attending classes at university. It also prevents all government employees from wearing a niqab, including those employees who have no contact with the public. More details can be found here.

Prime Minister Harper and Liberal Leader Michael Ignatieff have announced that they support the ban, and a large (if not overwhelming) majority of Canadians agree with them.

A Primer on Freedom

Let’s begin our discussion with a review of the Ann Coulter affair, which bears some analogues to the Québéc niqab issue.

We cannot think of another person whom we personally disagree with more on virtually every dimension than Ms. Coutler. We have difficulty thinking of anyone else who spews out as much vile hate, ignorance and prejudice as Ms. Coulter. We’re bothered by the fact that there is any demand — outside of perhaps morbid curiosity — for her wares at all.

Here are three pieces, taken from Ms. Coulter’s repertoire, that support our opinion:

“They’re [Democrats] always accusing us of repressing their speech. I say let’s do it. Let’s repress them. Frankly, I’m not a big fan of the First Amendment.”

- University of Florida speech, October 20, 2005.

“I have to say I’m all for public flogging. One type of criminal that a public humiliation might work particularly well with are the juvenile delinquents, a lot of whom consider it a badge of honor to be sent to juvenile detention. And it might not be such a cool thing in the ‘hood’ to be flogged publicly.”

- MSNBC, March 22, 1997.

“I think [women] should be armed but should not vote…women have no capacity to understand how money is earned. They have a lot of ideas on how to spend it…it’s always more money on education, more money on child care, more money on day care.”

- Politically Incorrect, February 26, 2001.

Despite our profound disagreement with her views, we would fight vigorously to protect Ms. Coulter’s right to express them. The right to freedom of expression is guaranteed by our Charter of Rights and Freedoms.  We would proudly defend her right to freedom of expression in any court with every ounce of our ability and integrity, just as vigorously as we would defend our own right to criticize and disagree with her views.

Why?

Read more

Access to Legal Services: Lessons from the Medical Profession (Part 3 of 3)

This is the final instalment of a three-part series on access to legal services. In Part 1, I argued that the crisis facing access to legal services is precipitated by a fundamental mismatch between supply and demand: we simply can’t increase the number of practising lawyers fast enough to meet the rise in demand for legal services. In Part 2, I contrasted lawyers’ professional monopoly on providing legal services with the health sector, in which a myriad of different kinds of doctors, nurses, pharmacists, physiotherapists, and other service providers all have a role to play in delivering health services to the public. The model adopted in the health sector has been successful because it enables more service providers to be trained and hired at a lower cost, increasing access to service. At the same time, a robust but flexible model of training, accreditation, and disciplinary oversight ensures that access does not come at the cost of quality of service.

Today, I would like to close the loop by examining some ways in which the legal profession can learn from the health sector. First, I will argue that the legal profession is already losing its monopoly on providing legal services through a series of domestic and international examples. Second, I will posit some possible emerging new job categories in the legal profession that could, if supported by law societies, allow non-lawyers to offer an extensive range of legal services without compromising quality of service. Finally, I will address some possible objections that might be raised against my proposals and consider some pragmatic barriers to moving forward.

As I have argued throughout this series, the legal profession must reject the long-held proposition that lawyers are or ought to be the exclusive providers of legal services. While some argue that only a lawyer can properly identify and address a client’s legal issues, there are already a considerable number of non-lawyers providing high-quality legal services both at home and abroad. To that end, I want to discuss the following examples:

• paralegals;
• student legal aid lawyers;
• social benefit advocates;
• patent agents and trade-mark agents;
• real estate agents and financial professionals; and,
• Japanese shihō shoshi and gyōsei shoshi.

Examples of Non-Lawyer Legal Service Providers

Paralegals

The most salient example in Canada of non-lawyers working in the legal services sector is that of the paralegal. In Canada, paralegals typically work as assistants to lawyers in order to support the lawyer in providing services to clients. In Ontario, paralegals are regulated by the Law Society of Upper Canada under the authority of the Access to Justice Act and are subject to prescribed educational prerequisites and a professional code of conduct. Paralegals undertake a wide range of legal work under the supervision of a lawyer, requiring a thorough understanding of both substantive and procedural laws in their jurisdiction. However, paralegals are not authorized to provide legal advice or representation to clients directly.

Student Legal Aid Lawyers

In part to help meet the demand for legal aid services in Winnipeg and in part to give courtroom experience to law students, Manitoba Legal Aid operates a student legal aid clinic at the Robson Hall Faculty of Law. Working under the supervision of lawyers and faculty, second and third year law students handle criminal matters in which jail is not likely, as well as some civil files. Students handle the file from intake to disposition, including making court appearances and even conducting trials. Every year, the centre handles hundreds of criminal files for defendants who would not otherwise qualify for legal aid representation. The students are regulated by the Law Society of Manitoba.

What is interesting about this clinic, from my perspective, is that it implicitly acknowledges that the full qualifications of a lawyer may not be necessary to handle simple criminal defence matters. By definition, none of the student lawyers has graduated from law school, completed an articling year, or been called to the bar. In fact, the only prerequisite for volunteers is the successful completion of one year of law school (students cannot handle trials on their own until they have completed a second year course in the law of evidence). This means that most of the volunteers at the clinic have only taken a single credit course in criminal law. Implicitly, the Law Society seems to be acknowledging that the completion of law school and articling are not necessary in order to provide defendants with adequate representation in minor criminal matters.

Social Benefits Advocates

The advent of the welfare state brought with it a myriad of new social benefits that qualifying citizens can obtain by application to the government. Unfortunately, ambiguities in qualifying criteria and complexities in application processes sometimes make it difficult for citizens to obtain the benefits to which they are entitled. In many cases, the value of social benefits is small compared to the fees that would be required to hire a lawyer. This creates a vacuum in which there is a need for advice and advocacy, but few lawyers willing to work for the remuneration available in the area.

Increasingly, this vacuum is being filled by non-lawyers who, for whatever reason, have specialized expertise in the workings of a particular area of government social benefits. As an example, I point to local Winnipeg company Brematson & Associates, Inc. which provides services to persons living with disabilities in accessing government disability benefits. Company founder Susana Scott advises clients on the ins and outs of disability tax credits and provides assistance in obtaining the medical documentation required to qualify. In carrying out these services, Scott’s job includes elements of statutory interpretation, providing legal or practical advice to clients, and even representation and advocacy.

This is just one specific example, but it is indicative of a broader trend in relation to the welfare state. As the scope of government programs and benefits increases, so too does the public’s need for interpretation, advice, and assistance in relation to obtaining government benefits. Yet in many cases, hiring a lawyer to provide these services would be tantamount to killing a fly with a sledgehammer. This is fertile ground for non-lawyers to provide much needed legal or quasi-legal advice to the public.

Patent Agents & Trade-mark Agents

Patent agents are individuals with specialized qualifications relating to patent laws and the procedures related to obtaining patents. In Canada, registered patent agents must complete a series of qualifying examinations and practice in the patents field for at least one year. Under the authority of the Patent Act, registered patent agents can represent clients applying for patent protection from the Canadian Patent Office.

Trade-mark agents, under the authority of the Trade-marks Act, provide similar services for clients in relation to registering trade-marks with the Trade-marks Office.

Real Estate Agents & Financial Professionals

There are also numerous professions in which specialized knowledge of a particular area of the law is necessarily incidental to the job. Real estate agents, for example, must be able to foresee possible legal issues and provide practical advice to clients in relation to their rights and obligations when buying or selling a home. Similarly, accountants and other financial professionals must have a detailed knowledge of the legal implications of their work. In particular, extensive knowledge of the Income Tax Act is an essential prerequisite for the job.

Japanese Shihō Shoshi and Gyōsei Shoshi

The Japanese legal system has gone a step further than Canada in recognizing two categories of legal service providers other than lawyers. Shihō shoshi, or judicial scriveners, perform a role similar to that of a solicitor. They represent clients in real estate and commercial transactions, prepare documents for filing in court, and may even represent clients in summary courts or in alternative dispute resolution proceedings. However, they are not permitted to represent clients in the higher courts. Like bengoshi (attorneys at law), shihō shoshi are professionally regulated and must pass a series of exams prior to admittance to the profession which test knowledge of key areas of Japanese legislation. Once admitted to the profession, shihō shoshi must maintain membership in the judicial scrivener association in their prefecture.

Gyōsei shoshi, or administrative scriveners, are responsible for preparing filings with government agencies and may even provide legal advice to clients in the preparation of such documents. Like other legal professionals in Japan, they must be registered to practice and are subject to professional oversight.

Brainstorming New Kinds of Legal Professionals

The above examples make it clear that the proposition that lawyers have a monopoly on providing legal services is at most a myth. There are already a diverse number of professionals providing legal interpretation, advice, and representation to clients. In jurisdictions such as Japan, these service providers are considered part of the formal legal system. In Canada, we have chosen to maintain the myth that lawyers are the exclusive providers of legal services. This attitude has two significant consequences. First, it creates barriers to entry into the legal services market. Second, it means that non-lawyers who do provide legal services are not subject to the kind of oversight, regulation, and educational pre-requisites that would be possible by bringing them under the auspices of the formal legal system.

In terms of the challenge of increasing access to legal services, fragmenting the legal services sector has a number of advantages over the strategy of simply increasing the number of practising lawyers. First, lawyers’ training is extremely expensive from the government’s perspective (as noted in Part 1), which in turn limits the capacity of the government to actually increase the supply of lawyers. In contrast, creating new professions with limited areas of competence saves the government money insofar as the educational requirements are more focused and specialized (unlike a lawyer’s training, which typically requires at least seven years of university). Second, non-lawyer legal professionals will presumably require less remuneration than lawyers, meaning that legal aid dollars can be stretched further to hire more people. Third, since lawyers’ fees are cost-prohibitive for the middle class, new service providers would enable the middle class to access a greater range of legal services than are currently available to them (as discussed in Part 1, those in the middle class often make too much to qualify for legal aid, but not enough to actually hire a lawyer). Finally, by pretending that lawyers are the exclusive providers of legal services, we are failing to bring professional oversight to bear on many existing legal service providers. By recognizing and formalizing new kinds of legal professionals, we could ensure high quality of service through professional oversight bodies.

What I envision are a multitude of new legal service professions, the practitioners of which are authorized to provide legal advice or representation within a clearly-defined area of competence. Each new profession would have educational pre-requisites, a registration process, a code of professional conduct, and oversight by a professional disciplinary committee. Some of these professions might work under the supervision of lawyers, while others might be authorized to work independently.

The possibilities are endless and while it is not my intention to provide a comprehensive set of possible new legal professionals, I would like to proffer a few suggestions where I believe that the need is most critical.

Criminal Defence Advocates

I will begin with the problem that gave rise to the entire discussion: the capacity of legal aid to provide services to criminal defendants. As indicated earlier, the existence of student legal aid lawyers implies that obtaining a law degree, articling, and being called to the bar are not necessary in order to provide criminal defence services, at least for relatively minor charges. We can drastically increase the capacity of legal aid by creating a new category of specially-trained criminal defence advocates. These new professionals could handle routine matters such as remands and dispositions, as well as handling entire trials for minor charges. Rather than spending seven years in university mostly studying content that is not germane to the practice of criminal law, they could pursue a shorter course of study that emphasizes criminal law, rules of evidence, procedure, and constitutional principles. These criminal defence advocates would work under the supervision of lawyers, either for legal aid or in private firms.

Social Benefits Advocates

As noted earlier in this post, the emergence of the welfare state brought with it a need for legal services related to understanding and accessing government benefits such social assistance, disability benefits, workers compensation, etc. This need is not being adequately met by lawyers, in part because prospective clients are typically lower income people. By creating formal qualifications, we can establish a new category of social benefits advocates who are empowered to give advice and represent clients who are attempting to access certain social benefits. These professionals could supplement the work of poverty law centres as well as serving middle class people in private practice.

Judicial Scriveners

As the Japense shihō shoshi demonstrate, there is room for non-lawyers to perform services in relation to real estate, corporate transactions, and related matters. There is a significant demand for legal advice and document drafting in these areas, yet the services of a lawyer are often cost-prohibitive for small businesses and middle-income individuals. Formalizing a new kind of legal professional to provide these sorts of services would not only promote access to new legal services, but could reduce the future volume of litigation down the road. I envision these sorts of professionals working in full-service firms that include lawyers, accountants, and others who would provide an extensive range of services primarily to small business clients.

Wills & Estates Professionals

Every year, a large number of Canadians die intestate, in part because lawyers’ services are cost-prohibitive to middle class individuals. It is notable that most Canadian law schools do not prescribe a required course in will and succession, implying that completing law school is neither necessary nor sufficient to enable a person to provide advice in relation to estate planning. Someone with specialized training in succession, property law, trusts, and related areas may indeed be better placed than most lawyers serve clients’ estate planning needs. Increasing access to these services would have the effect of reducing the number of people who die intestate each year, while also potentially reducing the future volume of litigation.

Domestic Violence Certificates

Partner abuse and child abuse are the most pervasive forms of illegal violence in Canada. Creating a qualification that allows social workers or employees of women’s shelters to assist women in obtaining prevention or protection orders would provide a tremendous resource to a lot of people living in very precarious situations. Moreover, this is a fairly narrow area of the law that can be taught very quickly.

Possible Objections

I foresee two central objections that might be raised against the proposals in this series. Specifically:

1. that ending the lawyers’ monopoly on legal services will lead to a decrease in the quality of service; and,
2. that introducing greater competition in the legal services sector will lead to a decrease in lawyers’ remuneration.

In relation to the first objection, I raise two counter-arguments. First, as I have taken pains to emphasize in this series of articles, I envision these new legal professions as being subject to the same kind of professional oversight as nurses and lawyers. Specifically, there would be a clear delineation of the areas of competence of non-lawyers, coupled with educational pre-requisites and disciplinary oversight commensurate to the responsibility. All legal service providers would be subject to a code of professional conduct and oversight from a governing college or society. It might even be appropriate to include provisions in the empowering legislation that requires a quota of lawyers to serve on the boards that govern the colleges or societies. Second, since these new job categories are designed to meet needs not currently being served by lawyers, it can be argued that the level of service provided by a non-lawyer is preferable to a complete lack of service in the status quo.

In relation to the second objection, I again have two counter-arguments. First, a decrease in lawyers’ remuneration might not be such a terrible thing, and competition may very well prove to be a positive force in the legal services sector. Besides, as professionals we are ethically bound to put the public interest before our personal interests: if ensuring that the public has adequate access to legal services means taking a pay cut, we are ethically obliged to take a pay cut. Having said that, my second counter-argument is that I don’t think that my proposals would decrease lawyers’ remuneration anyway. Again, remember that these new professions are practising in areas that are currently under-served, and serving clients who cannot afford a lawyer under the current system. The new professionals would not be “stealing business” from lawyers because they will be serving clients who do not, at present, constitute a lawyer’s business. In fact, having a greater number of service providers could lead to an increase in business for lawyers insofar as non-lawyers will have to refer clients to a lawyer in cases where the client’s legal issue falls outside the non-lawyer’s area of competence, much like the medical services model. Finally, a significant number of these non-lawyers could be hired by private law firms in order to expand their business into new areas (albeit, areas that return a lower fee than those covered by lawyers). Since the partners are taking a cut off the top of all of the fees coming in to the firm, this would be a low-cost way for firms to increase their legal business.

Moving Forward

I have argued in this series that the time has come for lawyers to reject their professional monopoly on providing legal services, following the model of the health services sector. By creating new kinds of legal professions with circumscribed areas of competence and professional oversight commensurate to their areas of responsibility, we can drastically increase the public’s access to legal services without compromising on the quality of service. This has immensely positive benefits, especially for low- and middle-income persons who cannot afford legal services in the current legal market.

There are two major pragmatic barriers facing such a project. First, there will be costs associated with training new professionals that must be borne by the state. However, as I have argued, the cost of my proposal is relatively small compared to the cost of training enough new lawyers to meet the public’s demand for service. This is because non-lawyers would be able to specialize their training in a particular area and, therefore, might not require seven years of university education (as is the norm for lawyers). As the crisis in access to service worsens, governments will be forced to address the situation in one way or another. I would argue that my proposal provides a more cost-effective way to do so than simply increasing the number of law school graduates.

The second major barrier is the legal profession itself. For centuries, lawyers have closely guarded their role as the exclusive providers of legal services. Driven in part by a concern to ensure a high quality of service, and in part by a desire to corner the market, lawyers have gone to significant lengths to prevent any movement in the direction that I am proposing. However, there is reason to be optimistic about the future.

As I have argued, non-lawyers are already providing legal services in a number of different areas. This trend has enough momentum that I don’t believe it can be stopped at this point. Moreover, the drastic inadequacy of lawyers to meet the public’s demand for service is becoming more and more apparent every day. Eventually, law societies and provincial legislatures will need to address this crisis with decisive action. Lawyers have a leading role to play in this discussion. Remembering the ethical duty we owe to the public, progressive lawyers should push their bar associations and law societies to critically re-examine the necessity of maintaining a monopoly on legal services.

Access to Legal Services: Lessons from the Medical Profession

This post is Part 3 in a three-part series. Links to the other portions are found below.

• Part 1: Introduction
• Part 2: History of Nursing
• Part 3: Proposals and Conclusions

Access to Legal Services: Lessons from the Medical Profession (Part 1 of 3)

Back in June, I wrote a reflection on access to justice that evolved out of classroom discussions in a second year poverty law class. Having given further thought to the issue over the summer, I’d like to re-visit the topic in a series of 3 posts. The basic premise is that the legal profession needs an analogue to the roles of nurses and other non-doctors in the health care profession. That is, we need to establish a new categories of legal professionals who are not lawyers, but who have specialized training in a particular area that qualifies them to provide a limited set of legal services.

Before I begin, I must make two notes about terminology. First, this series of posts focuses specifically on access to legal services, which is just one of many components in access to justice. A full access to justice strategy would include, inter alia, increasing the capacity and efficiency of courts, promoting alternative dispute resolution, and a multitude of other initiatives. Such topics will not be covered in this series. Second, when I speak of legal services, I am referring to a category of services that includes, but is not limited to, the work currently performed by lawyers. Certainly legal advice and representation fall under the heading of legal services, but there are other services that can properly be called “legal services” which are not typically performed by a lawyer. Later in the series, I will provide some examples of what I call “legal services” that include providing legal or practical advice based on statutory or case law interpretation, yet would not typically be the job of a lawyer today. As I will argue, we are already beginning to see a proliferation in the categories of legal professions occurring organically in the market.

My thesis in this series is that access to legal services is not coextensive with access to lawyers. Traditional approaches to access to justice over-emphasize the need to increase the pool of lawyers doing legal aid or pro bono work. These are laudable and important goals, but it are not a complete answer to the crisis of access currently facing Canadian jurisdictions. For a more complete solution, we would do well to model our profession after the example set by health professionals.

In particular, we need to abolish the idea that lawyers are the exclusive providers of legal services and advice. Instead, we should create new categories of legal professionals analogous to the medical profession, with it’s myriad of different types of doctors, nurses, physiotherapists, pharmacists, and others. While preserving the current qualifications of a lawyer (analogous to those of a physician), we can supplement the existing legal market with a myriad of professionals with carefully-defined roles and responsibilities, along with specialized training commensurate to those responsibilities. These non-lawyer legal professionals might be analogous to the roles of nurses in the medical profession. Importantly, we can ensure quality of service through an accountability model similar to colleges or associations of nurses.

Before leaping into my proposals, though, it will help guide our discussion to think about the shortfalls of traditional attempts to promote access to legal services. The basic problem is this: there is a demand for legal services that vastly exceeds the capacity of today’s lawyers to serve. As a result, the price of legal services is prohibitively high for many individuals, businesses, and other entities. The end result is that the wealthiest segment of the population gets full access to counsel, while the rest of us get no access. This creates a class-based disparity that has the potential to work injustices in legal outcomes (not just in terms of litigation, but in far more pervasive ways as well).

The traditional response to this phenomenon has been to shift the distribution of legal services away from the extremely wealthy and toward the rest of the population. This happens in two ways. First, state-funded legal aid centres provide limited representation to low income people for the most pressing and essential forms of litigation (mainly criminal and family matters, although very occasionally other types of services are provided as well). Second, non-legal aid lawyers sometimes take on pro bono cases or work for a reduced rate.

This approach suffers from at least three crucial flaws:

1. it only affects the distribution, and not the capacity, of legal services;
2. it is difficult and costly to effect changes in distribution of services; and,
3. it still leaves significant gaps in access to legal services.

The most glaring flaw in the traditional approach is that it fails to address the underlying mismatch between supply of and demand for legal services. Increasing the number of lawyers who choose legal aid or pro bono work only decreases the number of lawyers working in other areas. While the distribution is made slightly more equitable (and only slightly), the inadequacy of legal service providers to meet the needs of the community at large remains. Unless the pool of law school graduates and new lawyers can be increased dramatically (perhaps by an order of magnitude or more), persuading more lawyers to do legal aid is no solution to the underlying problem of inadequacy.

Having too few lawyers to meet the demand for legal services creates a second challenge for legal aid in that it drives up lawyers’ remuneration. As a result, it becomes more and more difficult for the government to hire and retain legal aid lawyers. The issue of inadequate remuneration for legal aid has come to a head in Toronto where the Criminal Lawyers’ Association has been calling for its members to boycott taking legal aid certificates since July. In a sense, the attempt to provide adequate legal aid faces a geometric challenge: how can the government afford to simultaneously hire more lawyers and increase the levels of remuneration for legal aid? The short answer is that most governments either can’t or won’t do both (and in many cases either), ensuring that legal aid will never be adequate to meet the needs of low income individuals.

Finally, even if we were able to drastically increase the capacity of legal aid, we would still face gross inadequacies in access to legal services. Most legal aid centres only deal with a limited set of legal issues and only provide those services to those below an arbitrary income cutoff. While criminal defence and some family matters are usually covered, this barely scratches the surface of the legal services that a low income person might require. Moreover, due to the cutoffs, there is a significant pool of individuals who earn too much money to qualify for legal aid, but don’t earn enough to actually hire a lawyer.

All of the above problems should drive home the point that until we drastically increase the pool of legal service providers, we cannot possibly address the crisis of access. The most immediate inference that can be drawn from these facts is that we need to increase capacity in our law schools and admit more graduates into the profession. This would certainly be a positive step, and I am encouraged to see discussions in both Ontario and British Columbia about the possibility opening new law schools as means to increase the number of law school graduates.

Unfortunately, increasing capacity in law schools won’t be enough. The difficulty in cranking out more law school graduates is that law students are expensive to educate. Although tuition fess (which are, in my view, excessive already) defray some of the cost of teaching, the fact remains governments still subsidize about half the costs of a legal education. In this sense, increasing law school capacity won’t succeed for the same reason that increasing legal aid capacity won’t succeed: governments simply aren’t able or willing to make the investments necessary to complete the task.

From this discussion, it is clear that a new approach is needed. I submit that a more complete solution to the crisis of access to legal services should fulfil the following conditions:

• it should increase the pool of legal service providers in order to address the overall shortage of lawyers;
• is should increase the capacity of legal aid and other entities to provide legal services free of charge;
• it should ensure access to legal services for people of all income levels, including low and middle income people;
• it should not be cost-prohibitive from a government viewpoint; and,
• it should ensure a high quality of legal service as well as competence and integrity among all legal professionals.

In Part 2 of this series, I will examine how the medical profession has attempted to address similar challenges in access to health services. In particular, I will explore the emergence of professionally regulated nursing in the early 20th century and other fragmentations of the medical profession. Using this as a template, I will posit some analogous proposals to fragment the legal profession into a number of specialized jobs with specialized training, regulation, and oversight commensurate to job responsibilities.

In Part 3, I will explore some specific examples of how the fragmentation of the legal profession is already taking place, posit some possibilities for new legal qualifications, and address some possible objections to my proposals (including a possible concern about “watering down” the level of competence and integrity required of legal professionals).

Access to Legal Services: Lessons from the Medical Profession

This post is Part 1 in a three-part series. Links to the other portions are found below.

• Part 1: Introduction
• Part 2: History of Nursing
• Part 3: Proposals and Conclusions

STAND Down on Darfur, You’re Making it Worse

Liu Guijin, China’s special envoy to Darfur, is currently in Doha meeting with representatives from Britain, France, Russia, United States and the European Union in a 5-day conference on how to deal with the situation in western Sudan.

U.N. backed negotiations between the rebels and the government are also continuing in Doha, and the rebels have released government prisoners in a gesture of good faith. Meanwhile, the government is making advances in Darfur, capturing several towns.

But the key to these recent gains are that the main rebel group, the Justice and Equality Movement (JEM), indicated that they withdrew to avoid further civilian casualties.

It’s the civilian casualties that have created so much concern from the international community, and estimates range from under 9,000 from Sudanese government sources, to 400,000 by some NGOs.

The discrepancy is explained by Sudan as exaggerations by the media and some western NGOs, a stance that has been given greater validity by other more neutral organizations. The vast majority of people dying in Darfur are from the humanitarian situation, not directly from the conflict. Thierry Durand, director of operations for Doctors Without Borders, said,

The magnitude of violence in Darfur has been huge, but it’s not genocide. The situation on the ground has not been an emergency since 2004. The real problem is the dependency in the camps. But the whole thing has become over-politicized.

Canada has it’s own NGO lobby on the Darfur issue, one of the largest in the world. STAND Canada started right here at my University of Western Ontario in 2005, after things had considerably improved in Darfur, by students with surprisingly little background in African history and conflicts, or humanitarian and civil rights issues. They claim to be the “leading organization in Canada for youth led anti-genocide advocacy and activism.”

And according to at least some, activists like STAND and other like-minded western NGOs with inadequate background are making the situation exponentially worse.

A Race to a Politicized Conflict
Emily Wax highlighted some of the problems with well-intentioned but misled activists in a 2006 Washington Post article, one of the most poignant pieces explaining the misconceptions about the Darfur conflict:

1. Nearly everyone is Muslim
2. Everyone is black
3. It’s all about politics
4. This conflict is international
5. The “genocide” label made it worse

Some activists have unfortunately used the linguistic differences between the Khartoum government and the Fur people as a slur against Baggara (pastoralist) Arabs (from which the Janjaweed come from) in the former murdering black Africans, out of some supposed racial-based animosity between the two, leading to these charges of genocide that would demand Western intervention (presumably militarily).

The reality is quite different.

Abdalla Adam Khater, a resident of Darfur who lost 100 extended family members in 2003, said,

This isn’t like the Nazis or Bosnia or Rwanda. This isn’t about hatred. It’s more about power, money and land.

The Darfur region was one of the earliest in Sub-Saharan African to be introduced to Islam, from the Zaghawa diaspora of the descendants of Uqba ibn Nafi in the 7th c. CE, and more formally through the Tunjur people in the 14th c.

The Nile was ruled by the Christian Nobotia and Makuria kingdoms, until they gradually adopted the Arabic language and the Muslim religion through trade during the 12-15th c. When the Sudan had their anti-colonial Islamic Mahdist revolt against the British during the 19th c., it was largely based out of Darfur, and not the Nile, by uniting both the Baggara and the Fur.

This complex history still plays itself out in the modern conflict.

The Tunjur still inhabit Darfur and speak the Arabic language (and are thus “Arab”), and are just as victimized as others in Darfur despite the linguistic affinities with the Baggara and others. The Justice for Equality Movement (JEM), one of the main rebel groups in Darfur, is Islamic fundamentalist in orientation.

The political origins of the conflict can be traced as far back as 1999, when a man named Hasan Al-Turabi, whose father was a Sudanese judge and legal expert, found himself in a confrontation with Sudanese President Omar Al-Bashir.

Turabi himself studied law, earning a PhD from Sorbonne in Paris, and introduced sweeping reforms that included more rights for women, greater political participation, and most importantly, a coalition that sought to include as many of Africa’s largest country’s 597 tribes and over 400 different languages and dialects as possible.

One of the problems was that the Sudanese South felt alienated by the largely Muslim-dominated government, which led to a civil war for over 20 years. Although the South is largely animist, western groups and NGOs attempted to portray it as a Muslim-Christian clash (only about 5% of Sudan’s population follow these forms of Christianity), and proselytizing groups did arm (and convert) people in the South.

The other problem in this interim period was Turabi’s open immigration policy, an anomaly in the Middle East. He saw a vision for Sudan as a refuge for all those facing political persecution, a political openess that has never been seen anywhere in the region, and will probably never be seen any time soon.

This open approach to political rights did have its disadvantages, as individuals like Osama bin Ladin also found their way to the Sudan. But Sudan was far from a “haven” for terrorists, and after some Egyptian nationalists participated in a failed assassination of their President they were expelled from the country.

The 9/11 Commission Report reviewed the negotiations and tensions that arose between Sudan and other countries during this time,

In late 1995, when Bin Ladin was still in Sudan, the State Department and the CIA learned that Sudanese officials were discussing with the Saudi government the possibility of expelling Bin Ladin. U.S. Ambassador Timothy Carney encouraged the Sudanese to pursue this course.The Saudis, however, did not want Bin Ladin, giving as their reason their revocation of his citizenship.

But these policy tensions led to cracks internally in the Sudanese government when in 1999 Turabi proposed and amendment that would further democratize Sudan, but would reduce the power of Omar Al-Bashir from President to Prime Minister.

Bashir retaliated by placing Turabi on house arrest and disbanding his coalition, which included significant representation from Darfur. Turabi’s followers in Darfur, frustrated by their lack of political participation and representation, picked up arms and helped found JEM, starting yet another civil war.

Bashir’s government, still compelled to fill barracks in the South to enforce a shaky truce, resorted to desperate measures by enlisting the support of pro-government militias from among the Arabic-speaking Baggara. These untrained non-conscript civilian forces, backed sporadically by a thinly-spread military, did engage in the killing and raping of civilians, which led to accusations of war crimes and genocide.

The Most Aggravated Crime Against Humanity

On Sept. 9, 2004, U.S. Secretary of State Colin Powell stood before the Senate Foreign Relations Committee and said that a genocide was occurring in Sudan, specifically invoking Article VIII of the 1948 Genocide Convention, which essentially would give rise to an armed intervention in Sudan (the US is no longer a signatory to the ICC),

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article 3.

Just a year and a half earlier, Powell presented a case for invasion to the United Nations that Iraq unequivocally had weapons of mass destruction that it was hiding from the world.

Unlike his statements in Iraq, Powell’s position on Darfur has not received as much scrutiny. Perhaps the most controversial and contentious position by groups like STAND are their accusations of genocide in the Sudan, one that does not include the very complex political background behind the situation in Darfur.

The Darfur Commission decided in 2005 after a thorough inquiry that there was insufficient evidence for genocide in Darfur because there was no state plan or policy to kill or target an ethnic, national, racial or religious group. What NGOs like stand fail to recognize is that all of these groupings can be found on both sides of the conflict.

Charges of genocide require dolus specialis, or a special intent, according to Article 6 of the Rome Statute. And even if some Janjaweed could be identified as perceiving ethnic differences between the two, there was no proof of motive on behalf of the government that would give rise to the mens rea requirement for what is reserved as the “most aggravated crime against humanity.”

What the International Criminal Court (ICC) was able to conclude was that the Darfur situation did consist of war crimes and crimes against humanity. A specific warrant was issued for Bashir on,

• five counts of crimes against humanity: murder – Article 7(1)(a);
extermination – Article 7(1)(b); forcible transfer – Article 7(1)(d); torture -
Article 7(1)(f); and rape – Article 7(1)(g);

• two counts of war crimes: intentionally directing attacks against a
civilian population as such or against individual civilians not taking part in
hostilities -Article 8(2)(e)(i); and pillaging – Article 8(2)(e)(v).

While government complicity in Janjaweed activity, and the extent of the activities meeting these definitions are not under dispute, the political prudence of using the ICC to resolve this situation is.

Immediately after the warrant was issued, Bashir expelled 10 of the major humanitarian organizations in the region. But Bashir had justifiable paranoia about some of these NGOs, as just weeks earlier he had expelled a Texan-based charity, Thirst No More (TNM), run by an Iraqi war veteran. They describe their mission:

With a history of proven success in distributing bottled water with the “Pure” message of salvation along with other unique products – we’ve become your resource for evangelism and missions. Thirst No More^TM is a faith based ministry, dedicated to honoring and glorifying Christ.

TNM was supposed to be drilling wells in Darfur. Not a single well was built, but plenty of Bibles were discovered in violation of Sudan’s 2006 Organization of Humanitarian and Voluntary Work Act.

In addition to the prosyletizing, there was the arming of JEM and Darfur rebels by foreign powers, some pointing to France via Chad, the same country that armed the Hutu in Rwanda. It’s in this backdrop of that key nations in the region have resisted the ICC charge,

The African Union (AU), the Arab League, the Organisation of the Islamic Conference, and an influential UN bloc of developing nations known as the Group of 77 and China have all backed Sudan’s calls for the ICC prosecution to be dropped, with some officials arguing that it smacks of “white man’s justice”.

They say an attempt to arrest Bashir could destabilise Sudan and endanger international aid and peacekeeping missions…

Sudanese officials say they cannot be held responsible if the UN or foreign organisations become the focus of “public outrage” over an indictment.

Justice Radhabinod Pal of India issued similar anti-colonialist misgivings in his dissent before the International Military Tribunal for the Far East, which was banned from publication until 1952.

“Those bearing the greatest responsibility” (a term coined during the Special Court for Sierra Leone), or founding the conflicts in the first place, are unlikely to be held accountable, despite this statement by the Prosecutor in a 2003 report, Paper on some policy issues before the Office of the Prosecutor,

One important area of investigation will involve financial links with crimes. The investigation of financial transactions, for example for the purchase of arms used in murder, may well provide evidence proving the commission of atrocities…
Such prosecutions will be a key deterrent to the commission of future crimes, if they can curb the source of funding.

So although victims of terrorism may be able to sue terrorists according to a new Bill the Conservatives intend to introduce this week, the victims of state terror or atrocities committed by states using weapons sold to them by Western entities are unlikely to see similar relief.

Canada’s Role in the Conflict

Of course well-intentioned people want to make a difference in the world, and do genuinely care about people dying and suffering around the world. But the best way to prevent these conflicts from happening may be in an entirely unexpected way, through combating climate change.

The socio-economic background to the Darfur crisis that is also often ignored is the displacement of the Baggara from their pastoralist lands into the agricultural holdings of Darfur due to desertification. The Sahara dessert is expanding, primarily due to carbon emissions from the United States and Canada.

The Darfur crisis is just one of many conflicts in the 21st c. that will erupt over food and water due to climate change that will primarily affect the developing world, who are the most vulnerable to these changes. Activists tend to be selective about the causes they take up.

Jan Egeland, head of UN Office for the Coordination of Humanitarian Affairs, has proclaimed that the situations in Congo and Uganda have each exceeded Darfur as humanitarian crises, but the world has not paid it equal attention, even though he noted there is even more of an opportunity to save lives in these other situations. Not even the “leading organization in Canada for youth led anti-genocide advocacy and activism” took note.

Canada also played a much more direct role in creating the backdrop to the conflict when it pulled out Talisman Energy from the Sudan, due to pressure from church groups interested in destabilizing the government further out of their interests to strengthen the (potentially Christian) rebels. Instead, Canada could have used its role and influence over the Sudanese government to observe human rights standards.

This weekend a Canadian envoy could be heading to Doha, with the whole world looking to us for a peaceful solution.

Criticisms by STAND activists about normalized relations with the Sudanese government are easily countered by pointing out that during the Darfur situation Sudan obtained 87 per cent of its arms from Russia, not the Chinese who replaced Canadian commercial interests in the country.

The shift in attitude is best encompassed by the contrast between policies espoused on Darfur by George W. Bush and Bill Clinton at a talk in Toronto on May 29 that I attended with Garry Wise.

Bush disclosed that his reasons for not sending an armed intervention to Darfur was that NGOs more intimately aware of the region and its issues strongly urged him not to invade, given the backdrop of Afghanistan and Iraq.

In an apt mid-20th c. African rendition of Macbeth by Des McAnuff I saw at the Stratford Festival yesterday, Lady Macbeth exclaims this sentiment quite well in Act V Scene I,

Here’s the smell of the blood still; all the perfumes [or oil] of Arabia will not sweeten this little hand. Oh, oh, oh!

Clinton, on the other hand, more acutely captured the notion that although African Union peacekeepers were limited in their capabilities, only countries understanding the local faith and cultures in the conflict should even attempt to mediate it.

Bush still insisted that his (faith-based) NGOs were the solution to all the problems in the world.

The Post-Bush Doctrine

The notion of sovereignty often appears far more disposable when dealing specifically with developing nations, especially in recent years. Yasuki Nesiah highlights this problem in From Berlin to Bonn to Baghdad: A Space for Infinite Justice,

Ian Williams has warned that “we should not let” George W. Bush’s “misappropriation of humanitarian intervention alienate the concept from its natural owners, the left.”[5] Lamenting the Bush-Blair duet regarding the humanitarian goals that guided their policies in the second Gulf War, proponents of humanitarian internationalism are anxiously seeking to formulate universal principles to distinguish illegitimate from legitimate intervention, conquest from protection, and militarism from humanitarianism.

…Michael Ignatieff anguishes that “almost everyone who tries . . . has a bad conscience; no one is quite sure whether our engagement makes things better or worse.”[26]

A more effective approach to dealing with Darfur is encapsulated with a shift from “Save Darfur” to “Empower Darfur.” Richard Haass, currently with the Council on Foreign Relations, said in Sovereignty: Existing Rights, Evolving Responsibilities,

Sovereignty has been a source of stability for more than two centuries. It has fostered world order by establishing legal protections against external intervention and by offering a diplomatic foundation for the negotiation of international treaties, the formation of international organizations, and the development of international law. It has also provided a stable framework within which representative government and market economies could emerge in many nations. At the beginning of the twenty-first century,
sovereignty remains an essential foundation for peace, democracy, and prosperity.

At the same time, sovereignty is being challenged from both within and without. Weak states struggle to exercise legitimate authority within their territories. Globalization makes it harder for all nations to control their frontiers. Governments trade freedom of action for the benefits of multilateral cooperation. And outlaw regimes jeopardize their sovereign status by pursuing reckless policies fraught with danger for their citizens and the international community. We need to adjust our thinking and our actions to these new realities.

The only two other previous cases referred to the ICC before Sudan was with Congo and Uganda, both referred by a non-signatory state for an internal conflict, a situation not envisioned by the drafters of the Rome Statute. These states were struggling with maintaining the civil order, and sought the help of the international community.

Justice Louis Moreno-Ocampo, former ICC Prosecutor for the ICC signaled the role of the court in creating peace in Uganda, a conflict peripherally related to that of Sudan. Others criticized that the ICC was ignoring abuses by the Ugandan government.

The arrest warrants were an important part of the reason why the Lord’s Resistance Army (LRA) came to the negotiating table with the government. In the Fifth Session of the Assembly of State Parties, Moreno-Ocampo said,

This case shows how arrest warrants issued by the Court can contribute to the prevention of atrocious crimes. The Court’s intervention has galvanized the activities of the states concerned. Uganda and the DRC, parties to the Rome Statute and legally bound to execute the arrest warrants, have expressed their willingness to do so. The Sudan, a non‐State Party, has voluntarily agreed to enforce the warrants. Thanks to the unity of purpose of these states, the LRA has been forced to flee its safe haven in southern Sudan and has moved its headquarters to the DRC border.

As a consequence, crimes allegedly committed by the LRA in Northern Uganda have drastically decreased. People are leaving the camps for displaced persons and the night commuter shelters which protected tens of thousands of children are now in the process of closing. The loss of their safe haven led the LRA commanders to engage in negotiations, resulting in a cessation of hostilities agreement in August 2006.

But when U.N. peacekeepers in February 2006 attempted to enforce the warrants and arrest LRA leaders in the Congo they failed, and several were killed.

And when Uganda’s security minister, Amama Mbabazi, asked for the ICC to withdraw the charges because they were in the way to reaching a peace deal, the international community retaliated.

Justice Richard Goldstone,former chief prosecutor for the Bosnia and Rwanda, said,

It would be fatally damaging to the credibility of the international court if [Ugandan President] Museveni was allowed to get away with granting amnesty. I just don’t accept that Museveni has any right to use the international criminal court like this.

If you have a system of international justice you’ve got to follow through on it. If in some cases that’s going to make peace negotiations difficult that may be the price that has to be paid. The international community must keep a firm line and say are we going to have a better world because of the international court or not.

The LRA currently indicate that no peace is possible until the ICC warrants are dropped.

Similar critiques that war crimes by rebels in Darfur are not equally investigated are also being raised.

Similar concerns of peace being stonewalled are being raised now with the talks between JEM and Bashir. Although Turabi has called for Bashir to turn himself in, he has stated he will never surrender.

Discharging the Secrets of Infected Minds

Resolving this dilemma might be possible by better clarifying when a country’s sovereignty can be infringed upon. The relationship between human rights and state immunity was summarized by Lee M. Caplan in The American Journal of International Law:

1. state immunity arises not out of the fundamental right of statehood but, rather out of the concession of a forum state’s right of adjudicatory jurisdiction; and
2. foreign states are not entitled to immunity under customary international law as to most, if not all, activity that constitutes human rights offenses.

Sudan is not a signatory to the Rome Statute, but strangely was referred to the ICC by states that are not signatories either, or states directly involved in arming the respective parties. Despite the absence of any concession for adjudicatory jurisdiction, the ICC may still have a role, given the nature of the alleged crimes.

International lawyer Heny Schermers said,

Under international law we are most often confronted with the idea that sovereignty of a State means that the State has unlimited power and is subjected to only those rules of international law which it has expressly accepted. Neither other states nor the United Nations have any right to intervene in matters which are essentially within the domestic jurisdiction of a State. This aspect of sovereignty has been seriously weakened during the second half of the twentieth century.

…the world community takes over sovereignty of territories where national governments completely fail and that therefore national sovereignty has disappeared in those territories. The world community by now has sufficient means to step in with the help of existing States and has therefore the obligation to rule those territories where the governments fail.

But where the international community, or even those states attempting to intervene, has expressly contributed to the failing of a government, such intervention hardly seems warranted.

Even worse, it could easily backfire.

One of the unintended but easily plausible outcome of this situation is an independent Darfur could be an impoverished and unstable state that really is a haven for terrorists, both anti-American and rabidly Israeli, despite support the latter has extended to rebel groups.

Calls to further weaken Sudan with no-fly zones, sanctions, or even armed troops should be firmly rejected as a tactic that has been tried and failed elsewhere, and at huge expense of lives.

To move beyond the failed Bush doctrine, countries would be held accountable and encouraged to observe human rights using the principle of complementarity. If a country genuinely tries war crimes internally, there is no admissibility of a situation to the ICC according to Article 17. Instead of undermining weak states, peacekeepers could be used in cooperation and coordination of the new realities of a changing world.

Sudan’s Deputy U.N. Ambassador Omar Bashir Manis appeared willing to cooperate with the international community during Security Council meeting 5459 on June 14, 2006,

…we should point out that the Sudanese Government responded positively to resolution 1593 (2005) and has begun the process of consulting with the Prosecutor and his assistants, including through visits by them to the Sudan. We believe that that communication and cooperation has had a number of positive results, some of which we would like to highlight.

The Prosecutor quickly came to an understanding of the situation. He was briefed on the history of the Sudanese judiciary, its independence and its capacity, along with related judicial organs, with regard to establishing the rule of law. The Prosecutor has understood the reasons for the deterioration of the situation in Darfur and the security vacuum which led to attacks on police stations and the ensuing events, including tribal confrontations and conflict among political factions and elements, which led to an escalation of the situation and the consequent widespread violations, of which everyone is aware.

Our police and prosecutors are prosecuting the perpetrators of those crimes. The Prosecutor learned about a great many cases that have been decided and about charges and allegations that have been followed up since a special prosecutor was appointed to look into those cases in Darfur. Special courts have been established and have handed down many criminal sentences, including execution and life imprisonment. The Prosecutor also had the opportunity to better understand how best to deal with security and tribal problems and disputes.

…There have been meetings with many officials from provinces in Darfur with a view to understanding the general situation and to seeking their views on how to prosecute the accused, and on how to establish the rule of law and mend the social fabric.

There is no doubt that a political settlement is the best possible solution and is the key to achieving stability, justice and peace in Darfur…

Mending the social fabric through efforts aimed at reconciliation, amnesty and the satisfactory resolution of problems among the various Darfur tribes is necessary and of fundamental importance if peace is to be established in Darfur. That is an effort that we hope will enjoy the support and encouragement of the African Union and the international community, including the Security Council, in keeping with paragraph 5 of resolution 1593 (2005).

The Government of the Sudan will continue its efforts to establish the rule of law and justice through the courts and other mechanisms set up in Darfur, to put an end to impunity and to hold accountable all those convicted of violations of human rights and international humanitarian law…

We therefore believe that the current political, security and social conditions in Darfur call for the Security Council’s support for efforts towards an internal dialogue in Darfur with a view to achieving peaceful coexistence. That, in line with all that I have said, is the easiest way to establish the rule of law and lasting peace.
[emphasis added]

The Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General on Jan. 25, 2004 agreed that the best way to resolve the Darfur situation would have been the legal process internally,

568. The normal and ideal response to atrocities is to bring the alleged perpetrators to justice in the courts of the State where the crimes were perpetrated, or of the State of nationality of the alleged perpetrators. There may indeed be instances where a domestic system operates in an effective manner and is able to deal appropriately with atrocities committed within its jurisdiction.

But due to the erosion of the rule of law due to civil wars, other nations that have deliberately sought to weaken the country, and impunity of the executive, the Report also noted that this was impossible in Sudan,

586. The Sudanese justice system is unable and unwilling to address the situation in Darfur. This system has been significantly weakened during the last decade. Restrictive laws that grant broad powers to the executive particularly undermined the effectiveness of the judiciary.
[emphasis added]

A Sudanese solution would seek to restore political coalitions that kept the country together, and rebuild a Sudanese judicial system that would try offenders of war crimes.

This approach has been validated by the international human rights community. In 2006 the Human Rights Council of the General Assembly stated,

…the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings,
[emphasis added]

Instead, we have been dealing with an approach to developing nations that would weaken and destabilize them even further.

Lady Macbeth’s physician speaks of the type of guilt that sullies the situations created by the Bush doctrine to this day,

Foul whisp’rings are abroad; unnatural deeds
Do breed unnatural troubles; infected minds
To their deaf pillows will discharge their secrets.

George Friedman, in his book The Next 100 Years: A Forecast for the 21st Century, discloses America’s “unnatural secret” to a primarily American audience: the “War on Terror” makes absolutely no strategic or military sense. It’s impossible to win.

But, he retorts, America does not have to win as long as it can keep predominantly Muslim countries fighting each other. There are some NGOs, including those involved in Darfur, who take a strategic position not substantially different from this as well.

If the ICC is used to help strengthen countries to be willing and able to address humanitarian issues, encourage accountability for their actions, and enforce the rule of law through a domestic judiciary wherever possible, it will have much more buy-in and credibility from the developing world and unstable regions.

But if it is used to target failing states that have been habitually undermined and weakened, especially by directly aiding rebel groups within a country, it will be seen as nothing more than a tool of neo-colonialism as charged by Bashir and envisioned many years ago by Justice Pal.

Yet here’s a spot.

Cross-posted from Slaw

Osgoode Jumps on the JD Bandwagon

The Osgoode Hall community received an e-mail today regarding the “JD or LLB?” debate, that had pretty much disappeared from most of our minds due to the dramatic collective action (or perhaps more fitting, inaction) that’s been going on at York University since the beginning of November.

It must have been a happy day for the York Senate who, for the first time in months, were able to grant approval to a motion that didn’t piss someone off.  They followed the example of US law schools and an increasing amount of Canadian law schools who have dropped the LLB (Bachelor of Laws) handle and pick up the JD (Juris Doctor) in its stead.

About a year ago we all voted on it.  And by “all,” I mean only those of us who bothered to participate in the democratic process.  73% of students voted in favour of the change, while 90% of the alumni surveyed did the same.  I’m somewhat curious as to why more alumni voted in favour than current students.  Perhaps the former have been practicing for a while and haven’t been fully satisfied with their degrees as they were.  I hope I don’t have the same problem.

So why the change?

The main reason given for Canadian and American schools switching to the JD is that it more accurately reflects the “nature” of our law schools.  The distinction is pretty simple:  In some countries people attend law school after at least a couple years of undergraduate studies, and in others they attend law school straight out of high school.  But we all get an LLB in the end.

Actually, I look back to when I was filling out my law school applications and recall reading in many cases something to the effect of “We will take you with two years of undergraduate studies if we have to, but highly recommend you complete the whole degree first.”  Maybe we’re on our way to a strictly post-graduate program.  In fact, because of the incredibly high demand for positions at Canadian law schools, I wouldn’t be surprised if that eventually happened.  Yet another way of thinning the herd.

I myself know several people that have headed down south for their law degrees because the schools are so numerous that some of them are forced to have lower standards, and other people who have headed across the pond to take advantage of the more relaxed substantive admissions requirements.

There will always be the argument that the schools that opt for the JD designation are just elitist institutions seeking to differentiate themselves from schools that will take just about anyone.  While this may in some circumstances be the case, I personally believe that there are true differences in the ways some countries and their law schools operate, and I don’t see anything wrong with the superficial title of the degrees reflecting that reality.

For whatever reason they’ve decided to make the change, I approve.  Not only is it another reason to update my facebook profile, but I also suddenly feel slightly cooler than I did yesterday.  “Juris Doctor.”  Nice.

Professional Conduct and Free Speech concerns

One of my strongest memories of my entering Canada were that the moment I switched on the TV, I saw an advertisement of a personal injury law firm. A few minutes after that I saw the advertisement of a firm specialising in family law and divorce. Needless to say I was amused.

But on a more serious note, I started pondering as to the present state of the common law practice of being a lawyer. There used to be a time when lawyers were considered as professionals at par with doctors. This included the fact that lawyers (barristers and solicitors) could not advertise in public fora and at all times were to remain as ‘gentlemen and officers of the court’. The reasons given for this rule were the nobility of the legal profession and the fact that the power that a lawyer can give to his client, and conversely take away from a person who is not represented, is enormous. As a display of ethics, lawyers were not to be driven by concerns for money but by the manner in which they treated their clients and conduct in the courtroom. In time, this ban was lifted in England for solicitors but Barristers were still strictly bound by it. Such practice extends to other common law jurisdictions like India where even today law firms and lawyers are not allowed to advertise publicly. The rules even state that a lawyer in India cannot give his visiting card away without someone asking for it.

For all concerns of free speech and that the right to advertising is a part of free speech, there is still a plausible case as to why law firms should atleast maintain a strict protocol as to the manner of their advertising. The starting point of this analysis would be a suit brought somewhere in the US by a wife stating that the lawfirm’s advertising was responsible for the fact that her husband now wants to divorce her. The facts that I am somewhat aware of are that after strenously advertising in the television, the firm hired a marriage counsellor for the husband at its expense to tell him that his marriage wasn’t working and that he should divorce. Ridiculous as it may sound, it is true. This has later been dramatised in an episode in the TV show Boston Legal.

But let us fathom as to what we get out of this case. If we acknowledge that a lawyer has a great ability to influence his client, can the nobility of the legal profession and ethical concerns be downplayed by the idea of free speech? Is there still a belief in the nobility of the legal profession ? Gone are the days when barristers in common law countries would wear wigs and Queens Counsel would be appointed with special robes given to them. But splitting for common law practice in that manner cannot justify the manner in which advertising is taken up in Canada and the US. What happens when officers of the court and players in the justice system overtly employ tactics to destroy the institution of marriage, when personal injury lawyers are available at the dial of a single number displayed on TV to reduce the defendant, who may even be your relative to penury?

With this single instance in mind, I do not advocate for a ban in advertising but surely believe in the fact that some standards must exist to do so.I personally believe in the integrity and dignity attached to the legal profession and that such actions destroy it.

what I have written above is with a background of the Common law tradition of being a lawyer and not with any Ontario or Canadian legal provision in mind. If there do exists any standards to that effect, I’d be glad to know.

Cross posted from The Social Blog .

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Articling Contributors

Law is Cool was founded in 2007, when all of the contributors at that time were just starting their first year of law school.

Kashif Ahmed completed a Bachelor of Business Administration at the University of Regina, and is currently in law graduate from the University of Saskatchewan.

Darcy Ammerman is a law grad from the University of Ottawa, and the former Fundraising Coordinator for the Health Law Student Association (HLSA).

Adam Campbell is in his 3rd year of the law program at UVic. He is currently the site curator for two sites: Daily Triathalon and Muddy Socks. He is a mature student with a fairly unconventional background as a former national triathlon team member, who later worked for Triathlon Canada as the national team manager. He competes on the school’s cross-country running team.

Navjot Dhaliwal graduated from the University of Waterloo in 2007, and is a law grad from the University of Western Ontario.

Torwoli S. Dzuali has a Bachelor of Social Sciences degree (B.Soc.Sc.) from the University of Otttawa; with honours in Criminology and a concentration in Psychology. She is a 2010 LL.B graduate from the University of Ottawa common law faculty and was a member of the Ottawa Law Review.

Ahmed Farahat is a graduate of UWO, and former Editor-in-Chief of the law school’s new paper, Amicus Curiae. He is currently articling in Windsor.

Gail Geronimo studied psychology at York University and is a law graduate of the University of Ottawa.

Lawrence Gridin holds a B.Sc. (Hons) from the University of Toronto, having majored in Psychology and History. He is a graduate of the University of Western Ontario. Lawrence volunteers at Western’s Community Legal Services and has participated in the clinic’s outreach program. His diverse interests include social justice, 20th century history, photography, boxing, and politics. Lawrence has a strong blogging, computer and technical background and has helped to revamp the site.

Digal Haio has an extensive background in media reporting, including a staff position with the Somali Press.  She is a graduate of Osgoode Hall.

Omar Ha-Redeye has an educational background in nuclear medicine, health administration, and public relations. He has worked in all three fields for several years before deciding to pursue a law degree at the University of Western Ontario.  He is the founder of the site.

Dany Horovitz is in a graduate of the J.D./M.B.A. program at UWO.  He writes for the Financial Post Executive Blog and cross-posts his entries here.

Devin Johnston has a BA (Hons) in Philosophy from the University of Western Ontario and is currently a third year law student at Robson Hall in Winnipeg. Devin has been the director of the podcasts for this site, and received the 2008-2009 Blawger of the Year Award.

Shane Martinez is a graduate of the University of New Brunswick, who received his BA in Human Rights and Political Science from St. Thomas University. He has over a decade of experience with prisoner justice and anti-imperialist activism. His areas of focus are primarily within criminal defence, human rights and immigration law.

Will McNair is a grad of Osgoode Hall. He has a BA in History from Huron University College at UWO. He is articling in Toronto.

Matthew Nied is a graduate of the University of Victoria. He is clerking for the British Columbia Supreme Court and will article at an international law firm in Vancouver. Matthew is the author of the Defamation Law Blog, a source for defamation news and legal analysis with a Canadian focus.

Logan Rathbone is a graduate of UWO, and is currently articling in Milton.

Daniel Simard is a graduate of the joint LLB and Masters of Environmental Studies at Osgoode Hall and York University. Daniel was the 2007-2008 Student Blawger of the Year for his advocacy work and coverage of topical issues. He is currently articling at Piccin, Bottos Barristers & Solicitors.

Justin Teterault is a graduate of UofT, and is currently articling at Shields O’Donnell MacKillop LLP.  He has an extensive background in political blogging prior to law school, including the now-defunct Northern Ontario Liberal.

Marie Winfield has a BS Engineering & Public Policy, BA French (Washington University in St. Louis) and an MA French Language & Literature (University of Pennsylvania). She is a graduate of McGill University in Montreal.

Joel Welch is a third year law student at the University of Western Ontario. He holds a Master of Arts degree in Journalism from UWO and a First Class Honours Bachelor of Arts degree in History from Brock University. Before pursuing a law degree, Joel served for nearly seven years as a regular member of the Royal Canadian Mounted Police (RCMP). For 2010-11, Joel is articling with Adler Bytensky Prutschi, a criminal defence firm located in Toronto.

Pulat Yunusov graduated with a JD from Osgoode Hall Law School in June. He articling with a Toronto litigation firm. He likes rule-governed conversations with authority, especially if a human life or security are at stake. Pulat’s email is his first name at his last name dot org. He lives in Toronto.

---

Upper Year Contributors

Vitali Berditchevski did his undergrad at UofT in Management with Co-Op. He previously worked in IT, banking, and the automotive sector. His legal interests include Intellectual Property, New Media Regulation and Corporate Law in general and started Law School at the University of Western Ontario in September 2009.

Fathima Cader is in her second year of law at the University of British Colombia. She received a BSc in Life Sciences and a BAH in English from Queen’s University and an MA in English from the University of Toronto. Her legal and academic interests include social justice law, cultural studies, and digital media studies. She freelances as a web and graphic designer.

Claire Devlin holds a B.A. (Hons.) from Queen’s in Psychology and Spanish, and completed a postgraduate program specializing in public relations at Humber College before starting law school at UWO. Her legal interests lie primarily in entertainment and corporate law.

May El-Abdullah is a third-year law student at the University of Toronto.

Rob Evans has a BAA in psychology from Kwantlen University College in Surrey, B.C. He is in the LLB/JD joint program at the University of Windsor and University of Detroit Mercy.

Ajay Gajaria is a second-year student at Osgoode Hall.

Eric Grigg received a B.A. (Hons.) in Political Studies from Queen’s University where he developed an interest in rights, responsibilities, and individual autonomy. Currently, he is a member of the class of 2012 at the University of Western Ontario’s Faculty of Law where he expects to pursue courses in litigation and legal theory.

Milad Haghani obtained his Bachelors Degree in Psychology from York University before entering Law School at the University of Western Ontario. His intention, at the moment, is to pursue a legal career in the area of civil litigation. He is also a Violinist and has recently begun pursuing an artistic interest in Photography.

Christine Kellowan is a third year student at Osgoode Hall. She graduated from York University with a BA (honours) in political science. During her undergraduate studies, she worked for the federal government. She has written for the The Court.

Ryan MacIsaac has a B.A. in Linguistics from the University of Toronto (New College). He started  law school in Fall 2009.

John Magyar received a B.A. in philosophy from the University of Western Ontario in 1990 and completed the Recorded Music Production program at Fanshawe College in 1993. Before returning the UWO to study Law, he held a wide variety of jobs including freelance recording engineer, Operations Manager at Other Peoples Music Inc and Research Director at Technical Economists Ltd., a commercial real estate consulting service in downtown Toronto. Current interests include Municipal Law, Constitutional Law, Copyright Law and Real Estate Law. He is currently completing an LLM at UWO.

Daisy McCabe-Lokos is entering her third year at Windsor, and has a strong interest in international law.

Asad Moten is a public health policy specialist with experience in research and statistical analysis, community engagement, filmmaking and documentarianism, print media and design, strategic planning for NFP/NGO’s, and report writing and editing.  He has focused on a wide variety of issues including disabilities, prisoners’ rights, social indicators, refugee and immigrant health, and youth engagement.  In addition to completing his Master in Public Health, Asad is currently completing his Juris Doctor at Osgoode Hall Law School in Toronto, Canada.

Navraj Pannu is a Canadian entering his third year at Thomas M Cooley Law school in Michigan.  He completed a political science degree prior to this at McMaster University. He is currently pursuing a Masters in Law at UWO Law.

David Shulman holds a B.A. (Hons.) from Queen’s University, having majored in Philosophy and History. There, he founded and was the editor-in-chief of a successful student academic magazine called Syndicus. David also holds an M.A. from École des Hautes Études en Sciences Sociales. His studies and thesis focused on the Philosophy of Language and Logic. He is currently a third-year law student at the University of Windsor. His interests include social justice, analytic philosophy, French language, politics, reading, writing, squash, and travel.

Tom Slade is a second-year law student at the University of Ottawa. He has previously been blogging on his own site, and has joined our team recently.

Amelio Thé is a graduate of Thomas M. Cooley Law School. He received his Bachelor of Arts & Sciences at the University of Guelph in Ecology and in Philosophy.

Ryan Venables is a second year law student at the University of Western Ontario. He holds B.A. (2001) from the University of Western Ontario in Political Science and Sociology. Ryan was also enrolled in a M.A.- Journalism at the University of Western Ontario before withdrawing to attend law school. Before pursuing a formal education in law, Ryan served with the York Regional Police as a police officer for five years specializing in organized crime. He also served in the Special Investigations Section with the Royal Canadian Mounted Police for two years. His legal interests include criminal, litigation, employment/labour, and human rights.

Meagan Williams is a third-year law student at the University of Western Ontario.

Thomas Wisdom is a political science major from the University of Toronto and a graduate from Osgoode Hall.

First Year Contributors

Siena Anstis has worked as a freelance journalist over the past 4 years, primarily in East Africa.  She is in her first year at McGill.

Simon Borys graduated from the University of Waterloo in ’05 with a B.A. in Philosophy and a Legal Studies and Criminology Option and worked for the last five years in policing with a major regional service in Southwestern Ontario.  In December 2009 he quit policing to attend law school at Queen’s because of their focus in Criminal Law, his primary area of interest.

Saron Ghebressellassie is a PhD Candidate in the department of Social and Political Thought at York University and is a law student at UofO.

Jamil Jivani was born and raised in the world’s most multicultural city, Toronto. He is a first generation African-Canadian and York University and Humber College graduate with a BA in International Development Studies and Non-Profit Management.  In addition to contributing to initiatives like the Road to Independence program based in Nairobi, Kenya, Jamil’s interests include combat sports and hip-hop culture.  Jamil is currently pursuing his J.D. as part of Yale Law School’s Class of 2013.

Alex Kerner completed a B.A. in History and American Studies and an M.A. in History at the University of Toronto.  He served as president of the University of Toronto Students’ Union and spent the last five years working at Ryerson University and overseas in Taiwan.  He is part of the 2013 class at UVic.

Yasar Saffie completed a B.H.Sc. (Hons.) at the University of Western Ontario. He is a first-year law student at the University of Ottawa this fall.

Simone Samuels is a graduate of York University and is in her first year at McGill’s Faculty of Law. She has blogging experience at theCOR and Girls in Transition. Her primary research interest is the intersection between law and morality.

Incoming (Pre-Law) Contributors

Carolyn McKeen graduated from the University of Guelph in 2010 with a Master of Public Health degree. She also holds a Bachelor of Applied Science degree in Environmental Health from Ryerson University. She is interested in combining her experience and theoretical expertise in health and international development policy with her legal studies. Human rights law in the international context is her major area of interest. Admitted in 2010, she has deferred her admission to Western Law for one year to gain more experience in the public health field.

We are still interested in taking on more contributors, especially incoming first-years, so please contact us at admin[at]lawiscool[dot]com for more info.

Affiliates

We partner with other legal bloggers who are about to graduate or are articling.

Ainsley Brown has a LLM in International Commercial Law from the University of
Westminster (UK), having earned a diploma in law from London Metropolitan University (UK) and a BA (Hons) in Political Science from the University of Western Ontario. He recently completed most of licensing process for Ontario, with only articling remaining. After Westminster he returned to Canada and completed the National Committee on Accreditation’s conversion process for international law graduates, part of which was spent at UWO law.

Behind Bars

These people once contributed to Law is Cool, but have graduated or otherwise moved on.

Cris Best, Alex Dimson, Adrian DiLullo, Ken Saddington, Aditya Swarap, Jacob Kaufman, Jonathan Kleiman, Sarah Boyd, Diana Younes, Costa Ragas, Vimal Baid.

Alumni Consultation Next for Western’s JD Proposal

by Alex Dimson (from the February Issue of Nexus, Western Law’s Student Newspaper)

Western Law has begun to discuss with alumni the possibility of changing to a Juris Doctor (JD) degree after students voted decisively in favour of switching degrees in a recent referendum.

Western Law’s Dean Ian Holloway told Nexus that in light of a strong backlash from Queen’s Law alumni against a similar plan, he wants to ensure that he has alumni input before taking the proposal to the next formal step.

“Whatever we decide ultimately, I want us to avoid what they didn’t avoid at Queen’s – alumni feeling like they were presented by something a fait accompli,” he said.

Dean Holloway said he could not tell whether alumni would support the plan. “I do have a sense of how lawyers think. Lawyers are traditionalist by nature so my sense is that the majority will not be in favour of the change. How many of those think this is the hill to die for I can’t say,” he said.

Student Legal Society President Banack said that he supports the decision to consult alumni first. “This is a very important step in the process,” he said. “The alumni should get a real opportunity to comment and discuss. The alumni hold the same degree as we’re getting and it has to be a co-operative effort either way.”

The plan to change degrees gathered momentum after Western law students voted strongly in favour of a switch in a late-November referendum. 252 students voted to switch degrees, with only 69 voting against it.

Dean Holloway said that the administration is aiming to present the plan, along with the alumni response to it, to the Faculty’s Program Committee and Faculty Council for approval by the end of the academic year. If the plan is approved by the Committee , it will proceed to UWO’s Senate, which must also approve of the change.

Banack said that he did not have a sense of whether the vote would be approved by the Faculty Council. “I’ve really gotten very little interest from the faculty on this matter. I think they may think it’s a silly issue,” he said.

Meanwhile, a number of other Canadian law schools are also moving along with plans to change degrees. In addition to Queen’s, where the Senate is expected to approve the change shortly, the University of British Columbia and also the University of Calgary are also considering a switch. Currently the University of Toronto is the only law school in Canada to issue the JD degree.

Proponents of the JD say that it more accurately reflects Canadian law student’s education level and that it will make it easier for Western students to get a job at an American firms, as American law schools issue the JD degree. Critics of the scheme argue that it would tie Canadian law schools closer to American schools and do little to improve student opportunities in the US and it could even hurt Canadian students’ chances in other countries, as the LL.B, Western’s current degree, is issued in most common law countries.

Proponents of the JD say that it more accurately reflects the level of education of Canadian law students. It may also make it easier for Western students to get jobs at American firms, as American law schools issue JD degrees. Critics of the scheme argue that it would tie Canadian schools closer to their American counterparts and could even hurt Canadian students’ chances in other countries, as most common law countries issue the LL.B, Western’s current degree.

Western Law’s Alumni Association President (UWOLAA) Richard Morelli told Nexus in an email before the Christmas break that it is important that alumni be consulted.

“As UWOLAA President, one of my principal objectives is to assist in maintaining and strengthening the affinity between our law school and its graduates. So to the extent a change would jeopardize the relationships of our alumni and the school, I would want to think carefully about the change,” he wrote.

To JD or not to JD

In most Commonwealth countries the designation for lawyers is LL.B., for Bachelor of Laws.

The University of Toronto breaks ranks with Canadian law schools, issuing a J.D., or Juris Doctor to its graduates. The J.D. designation is used in American law schools.

However, the UofT J.D. is not recognized by the American Bar Association (ABA), and the designation serves little more than a symbolic function. The distinction, argued by UofT, is that most law students these days already have an undergraduate education (unlike many Commonwealth LL.B. nations), and the J.D. designation better reflects this background. Traditionalists have proclaimed that the LL.B. speaks to a long legacy in Canada that should not be so easily discarded.

Finally, it seems as if other Canadian universities may follow suit.

Recently, Queen’s University did an informal poll on which designation the students preferred. The student body overwhelmingly preferred the JD over the LL.B.

JD versus LLB
Which letters are for you?
JD man. It’s progress. 58.2% 107
I want an LLB. Let’s stick with tradition! 25% 46
Whichever. The degree’s the same. 16.8% 31

Queen’s Law Life has a summary of some of the pros and cons of each designation.

The Globe and Mail is expected to do an article on this subject in tomorrow’s paper.

There are rumblings among other schools of similar considerations, which have yet to be formally announced.

Updates

The Globe story can be found here. See the comments as well for the ongoing conversation on the issue.

The complete report issued by Queen’s Faculty Board is available here.

The University of Western Ontario also had a similar referendum demonstrating overwhelming student support for the J.D. and the issue is now under review by the Programs Committee and Faculty Council.

Queen’s University and the University of British Columbia recently passed motions to adopt the change. Osgoode (York) and the universities of Windsor and Ottawa are also looking into making changes.

Happy, Healthy, and Ethical

Money, Sex and Madness

Maclean’s interviewed Philip Slayton, author of a new book entitled Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession, for the August edition of the magazine.

An excerpt from Slayton’s site:

Are stealing and sexual misconduct a distraction from the grinding boredom that is a characteristic of even the best legal practice? Is there something about practising law that makes lawyers unusually prone to depression, anxiety, social isolation and obsessive-compulsiveness? Does legal training strip lawyers of a value system, and encourage them to be aggressive, judgemental, pessimistic and emotionally detached? Do lawyers believe that their mastery of the legal rules, and their ability to manipulate those rules, carries with it a personal exemption from their application?

Direct link to the interview on the Maclean’s site is here.

Why the misery?
Sathnam Sanghera of The Times provides suggestions on why there might be a deteriorating quality of life for some lawyers:

1. Long hours
2. Repetitive work
3. Becoming disillusioned
4. Nature of the work
5. Poor public opinion
6. Self-inflicted punishment

Aspiring lawyers can use these points to help improve their quality of professional life.

• Flex-time and telecommuting is becoming increasingly common in legal practice. This allows lawyers to work from home and juggle multiple demands such as family and children. An increase number of mothers in law has even led way to specialized flex-time firms. ABC News recently covered a New Zealand firm that won an award for flex-time and even allowing naps on the job.
• One of the beauties of the legal field is that there are so many different areas of practice. Boredom with one area can easily motivate someone to take courses and gain specialization in another.
• All professionals eventually have to deal with the realities of their field, and it’s good to start out with realistic expectations. Law goes where the work is, and most of it is with big businesses. With the emergence of Corporate Social Responsibility, this is increasingly not a necessary evil.
• Do more pro bono work, and encourage your firm to do the same.
• Employ more developed communications strategies to clarify the type of work that lawyers do, and how they better society.
• Find greater work/life balance, for yourself, and set personal boundaries.

Here’s Some Tips

Despite a contentious title and premise, Hon. Patrick J. Schiltz does provide some tips on how to be happy, healthy and ethical.

For further discussion…

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  The contents of this site are intended for educational purposes only and must not be construed as legal advice.

  
  

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