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Galati questions appointment of law prof to appeal court

|Written By Shannon Kari

Should members of the bar who haven’t been practising law for some time be eligible to join the bench, including the Ontario Court of Appeal?

Justice Grant Huscroft

That’s one of the questions following the recent appointment of a constitutional law professor to the appeal court.

The government appointed Grant Huscroft, a law professor at Western University in London, Ont., to the appeal court last month after a nearly 25-year career as an academic in Canada and New Zealand. He’s the first professor, since the appointment of noted jurist Bora Laskin, named directly to the Ontario Court of Appeal in 50 years.

Huscroft was called to the bar in 1987 and for five years paid full fees while a lawyer with the provincial Ministry of Labour. Since 2004, after returning to Canada, he has paid 50 per cent of the annual fee, as permitted by the Law Society of Upper Canada, for members who don’t practise law or perform legal services, according to a spokeswoman for the regulator.

The federal Judges Act states that to be eligible for an appointment to a superior court, an individual must be a “barrister or advocate of at least ten years standing” at the bar of a province.

That provision excludes professors or other members of the bar who don’t practise law, according to Toronto lawyer Rocco Galati. “It is reserved for people who are barristers. Otherwise, why would you need a 10-year rule? That is in place for the lawyer to get experience,” says Galati.

He adds that the French version of the Judges Act refers to “avocats.” “An avocat in Quebec is a barrister,” says Galati, who successfully challenged the appointment of Justice Marc Nadon to the Supreme Court of Canada and a Federal Court practice that permitted deputy judges to preside beyond the age of 75.

The Act Respecting the Barreau du Québec, which governs lawyers in the province, classifies law professors who don’t practice as solicitors. They can’t assume the title of advocate or attorney.

Galati says the exact meaning of the section hasn’t, to his knowledge, been litigated. But he believes there are also good policy reasons for limiting judicial appointments to those with at least a decade in the practice of law. “If a city is hiring a plumbing inspector, would you want them to hire someone who had never done any plumbing?” asks Galati.

The eligibility requirement in the existing Judges Act uses the exact same language as the Supreme and Exchequer Court Act of 1875, when barristers were classified as lawyers who appeared in court.

The Law Society Act in Ontario doesn’t define barristers. Instead, it says members are individuals licensed to practise as a barrister and solicitor.

While the language may not have changed since the 19th century, the accepted meaning is that all members of the bar in good standing are barristers and solicitors, says Adam Dodek, a professor at the University of Ottawa Faculty of Law.

The Judges Act “does not say that they must have been actively practising law,” says Dodek.

“Mr. Galati’s suggestion reads a requirement in to the act that is not there. The same would go for suggesting that a solicitor who had never set foot in court was somehow ineligible for appointment because they had not practised as a barrister,” says Dodek, who notes that the bench in the province has benefited from a number of past appointments of academics.

“These include the likes of Louise Arbour, Louise Charron, Robert Sharpe, James MacPherson, Katherine Swinton. The list goes on,” he says.

Lorne Sossin, dean of Osgoode Hall Law School at York University, agrees with Dodek’s interpretation of the Judges Act. “There is no distinction in Ontario” between a barrister and solicitor, says Sossin. “There is no requirement that you actually practise.”

In addition, Sossin feels that even members of the bar who are in good standing and have never worked in the legal profession or at a law school are likely eligible as well.

The appointment of Huscroft has also attracted scrutiny because he’s part of the “originalism” school of constitutional law that believes courts should defer to the accepted meaning of a statute at the time of enactment.

The newest member of the Court of Appeal has edited a number of legal texts on constitutional law, including one with Ian Brodie, Prime Minister Stephen Harper’s first chief of staff.

Huscroft has also written a number of opinion pieces for newspapers that were critical of the courts for not showing sufficient deference to Parliament and of the judicial appointment process itself.

“The system is secretive, elitist and profoundly undemocratic,” he wrote in the Toronto Star in November 2005.

The “fundamental problem,” wrote Huscroft, was the power of the prime minister and the justice minister and lack of public scrutiny of appointments to the top courts.

Huscroft’s appointment was among a slew of new Ontario judges named to the bench in mid-December. They included fellow Western law Prof. Bradley Miller to the Superior Court as well as notable Ontario lawyers such as Michal Fairburn, a former general counsel with the Ministry of the Attorney General and more recently a partner at Stockwoods LLP. The appointments filled a long list of vacancies in Ontario that had sparked concern among the bench and the bar about the need to have a full judicial complement.

Update Jan. 12: Since Laskin, the government has also appointed another law professor directly to the appeal court. Walter Tarnopolsky, a law professor and noted human rights advocate, joined the Court of Appeal in 1983.

  • Stephen Scott
    Had Mr, Galati simply expressed his opinion as a matter of suitability for appointment, I would not have bothered to comment, despite my complete disagreement. But he he was purporting to construe the Judges Act: "That provision excludes professors or other members of the bar who don’t practise law." It is this that I consider extravagant, an interpretation having not the slightest possibility of being accepted by the courts.

    Is Mr. Budgell proposing the appointment of people other than experienced jurists? Who does he have in mind when he speaks of non-lawyers?
  • Chris Budgell
    [quote name="Stephen Scott"]Is Mr. Budgell proposing the appointment of people other than experienced jurists? Who does he have in mind when he speaks of non-lawyers?[/quote]
    That's a question worthy of a serious debate: one I'd like to see happen, but that I'm sure the legal establishment would not. I served on a jury once (for $20 / day if I remember correctly) and I observed that everyone on that jury served with distinction. I suspect I could handle the role of appellate judge as well as many members of the bar, though it's not a role that appeals to me. To answer the question from a different perspective, that is who would we want with specific expertise, I would nominate someone like John Ralston Saul, who in addition to being a master of language is a respected skeptic regarding the use and abuse of power.
  • Stephen Scott
    I am sorry to say that I once sat through a lengthy talk by Saul, expecting it to be stimulating, but (to my regret) finding it shallow.-- In times gone by one could be admitted to the legal profession by apprenticeship. Someone, like your jurors for instance, if they developed long experience by working through hundreds of trials (which of course the system does not permit) could develop the necessary expertise for the bench.
  • Chris Budgell
    [quote name="Stephen Scott"]I am sorry to say that I once sat through a lengthy talk by Saul, expecting it to be stimulating, but (to my regret) finding it shallow.-- Someone, . . . by working through hundreds of trials . . . could develop the necessary expertise for the bench.[/quote]

    Saul who?

    How many trials have you worked through? Hundreds? I prevailed in my first appearance as a self-represented litigant in court - on a very challenging issue and facing counsel for three powerful institutional parties. No lawyer was willing to assist me. They evidently held that either the case couldn't be won or it wasn't worth pursuing. I believe the lawyer (a member of the labour law bar) who took the lead in arguing against me also had no prior experience arguing cases in court. How many law school graduates these days anticipate working through hundreds (or even scores) of trials?
  • Stephen Scott
    You miss my point. I'm using attending trials simply as one way of gaining enough experience, because you mentioned trials.

    It could instead be working as an apprentice in a law office for a suffiecient period. One day you might work on a claim for damages for personal injury. Another day on drafting a will. A third day working on a claim for breach of contract. Another day drafting a contract. Sometimes you might be preparing or attending a trial. Or an appeal.

    All added up it would be hundreds of days and hundreds of tasks, all building up experience.

    I congratulate you on your guts and obvious ability representing yourself. Your inexperienced adversary was no more ready than you were to be appointed to the bench at that time. If you developed long enough, and varied enough, experience you could, assuming other qualities, be fit for appointment You would de facto have become am experienced jurist by your apprenticeship.
  • Karen Selick
    One does not need to have spent a lot of time in the courtroom in order to decide cases at an appellate level. One needs to be able to think in principles. Judges who are doing trial work would benefit from having plenty of experience in the courtroom, but that's not what Justice Huscroft is going to be doing.
  • Chris Budgell
    If appellate deliberation depends largely on an understanding of (and respect for) principles then I suggest there's a very large pool of candidates who would be better qualified than lawyers.
  • Stephen Scott
    Fitness for appointment can and should be asseesed on the bais of a candidate;s experience and other qualfications. Mr. Galati's thesis is that the requirement that one have been a barrister or advocate of ten year's standing limits appointment to those who have also engaged in some undefined and undefinable kind and amount of professional practice. This thesis is devoid of the slightest shred of plausibility.
  • Chris Budgell
    So Mr. Huscroft spent ten years paying LSUC dues as a non-practising member, then applied for an appointment to the bench, which he was granted.

    This is the minumum, under the existing regime, that one has to do to qualify for an appointment to the superior courts. On this one I'm inclined to think that Dean Sossin is right regarding how the legislation should be interpreted. However, it also suggests to me that our elected representatives should be reviewing the legislation. They might want to consider who besides members of the bar might be excellent candidates for appointment to the bench.
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