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Time for graduated licensing for lawyers

Speaker's Corner

Graduated licensing for drivers in Ontario started in 1994. At the time it was introduced, it was touted that the policy was going to save tens of millions of dollars in accident prevention and lives. The policy is very easy to understand and so intuitively and obviously correct that it really requires no justification. It is apparent why 16-year-olds with no driving experience should not be permitted to drive by themselves before getting some experience on the road with an experienced driver.

In the same vein, a freshly minted lawyer from law school should not handle a murder trial or, for that matter, any trial with any degree of complexity. Neither should a lawyer that has been practising principally real estate law for 10 years while dabbling in criminal law handle a criminal matter. It is my contention that any Ontario citizen without a law degree would be shocked to know that there is absolutely nothing to stop a freshly minted graduate or real estate lawyer from defending an accused charged with murder. This situation is much more dangerous than a 16-year-old driver and needs to be addressed immediately. 

Criminal defence is perhaps the most unique area of practice because we have, respectfully submitted, with by far the best barristers and also the worst. The amount of time we spend doing trials ensures that we have titans of the defence bar, but the low barriers to entry ensure we also have some of the worst lawyers, people that have no business defending a criminal case and making decisions that ultimately impact someone’s liberty and reputation, handling these cases. 

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This matters to the public for a simple reason that is easier to demonstrate by using an analogy to the medical profession. In the medical profession, a person that has a heart condition will find their way to a cardiologist. A general practitioner, for example, will immediately recognize that a person with a heart condition should be sent to a specialist and refer the matter to the appropriate doctor. In law, this is not the case because of a false 18th-century notion that pervades our profession that being a lawyer is some kind of meaningful title in and of itself. It is not. A “lawyer” is an almost meaningless term. Today, a “lawyer” is as much a meaningful title as the term “athlete.” It is an achievement to be an athlete, but in order to determine whether I want to watch you play and follow your career, I need to know what sport you play. Are you a sprinter? A boxer? A table tennis player? Without knowing the sport you play, “athlete” is a term devoid of meaning and context. I need to know the league in which you play. Are you in the North American professional leagues? The European professional leagues? The minor leagues? This is the bare minimum of information that is required to give meaningful context to the term “athlete.”

The problem for accused persons facing criminal charges and others searching for a lawyer is that they have very few means to separate those that are devoted to a particular area of law and those that are not. They also have very few means to separate the inexperienced lawyers that never run complex trials from the experienced ones that do. Virtually every criminal defence lawyer has a website and puts up an impressive self-authored bio page. Lawyers that practise various areas of law do the same. Clients do not know how to drill down on the information presented by asking relatively simple questions (have you run a jury trial is one that I am often surprised at the answer, for example) and have to rely on criteria other than experience to make the decision of whom to hire. The end result for an accused person is that they can be facing the prospect of losing their liberty for years while being represented by a criminal lawyer with no relevant criminal law experience. Most of us in criminal defence have seen this situation with some regularity.

The solution to this problem is to introduce a graduated licensing system that will finally recognize that, though we are all lawyers, our areas of practice are completely different professions with virtually no overlap and that, within the disciplines, there are significant differences in the types of practice and levels of experience. There is as much overlap between the practice of criminal defence and corporate law as there is between table tennis and boxing. There is also as much difference between a criminal lawyer that does principally homicide jury trials and a criminal lawyer that does principally guilty pleas as there is between an NHL hockey player and one that is playing Junior A. The system could be as simple as recognizing three tiers — L1, L2 and L3 — in addition to the certified specialist designation that already exists. 

The three different tiers would reflect different levels of experience within the different areas that the law society could easily drill down on by asking some simple questions. A criminal lawyer that does principally guilty pleas would be recognized as an L1, as would a lawyer that practises mostly real estate law and dabbles in criminal law. A graduated licensing system protects clients from relying on potentially misleading information and will finally allow them to meaningfully understand and make an informed decision about whom to hire to defend their case.  For many of them, this is the most important decision that they will ever make. Right now, those tools are being denied the public for a reason that has its roots in the 18th century.

This model could and should be implemented across all streams of law, but, in criminal law, it is an absolute must because of the lack of barriers to entry into the profession and the number of dangerously inexperienced criminal lawyers. Ask any Crown or defence lawyer about the range of advocacy in a courtroom and it is frightening. 

Every injustice of a rushed or ill-considered guilty plea or an evidentiary application not brought or a defence not raised should be thought of as an accident that is largely preventable just like a car accident caused by an inexperienced 16-year-old driving on the highway the day of passing a test. It is high time the Law Society of Upper Canada recognized this and did something about it.  Graduated licensing is the way to do it.

Ryan Handlarski is a criminal defence lawyer in Toronto. He can be reached at 416-837-4500 or ryan@rhcriminaldefence.com.

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