The overseers: the legal profession is self-regulating; some think that's a good idea, some think it isn't.

A decade ago, in 1994, there were so many claims against crooked and sloppy lawyers whose actions cost their clients' money that the Law Society, of Upper Canada had to raise $122 million to pay the awards. The Society had such a huge increase in the number of successful negligence claims against its members (mostly on real estate deals) that its errors-and-omissions fund was drained. As a result, Ontario lawyers who contributed $4,350 a year into the fund were asked to pay an extra $5,000 to $6,000 in 1994, and another $3,000 to $4,000 the following year. Between 1977, when lawyers started putting money into the fund, and 1994 there were 32,500 claims, nearly half of them over the previous five years.

If anyone has a complaint about a lawyer, for any reason, the place to go is the Law Society in which that lawyer is a member. It's up to the law societies across the country to serve and protect the public interest, setting and enforcing standards of professional conduct for lawyers, and making sure their members practice law competently and ethically.

Judges are also self-regulated, subject to criticism and censure by other judges. Each jurisdiction in Canada has a judicial council responsible for promoting professional standards and conduct. The council for federally appointed judges is made up of members of the judiciary. For provincially and territorially appointed judges, each province or territory has a judicial council whose members include judges, lawyers, and individuals from the general public.

Judicial councils develop policies and codes of conduct to provide guidance for judges. They may even recommend that a judge be removed from the bench if it becomes necessary, though few judges have in fact been removed in the history of Canada.

The Canadian Judicial Council (CJC), which is responsible for federally appointed judges, consists of the chief justices of all of the federal courts and provincial superior courts. It was created by the federal government in 1971 to promote efficiency, consistency, and good service in these courts.

One of the Council's tasks is to investigate complaints and allegations of misconduct on the part of federally appointed judges. If it finds evidence of misconduct, the Council may either reprimand the judge or recommend to the Minister of Justice that the judge be removed.

The Minister must in turn get the approval of both the House of Commons and the Senate before a judge can be removed from office. (The rules for provincial judges are similar, but they can be removed by a provincial cabinet.)

The 39-member Council also provides continuing education for judges, works with Council members on issues involving the administration of justice, and makes recommendations on judicial salaries and benefits.

But, the Council has been criticized for giving erring judges too much benefit of the doubt and administering exceptionally light discipline, and many say judges ought to be more accountable.

In a report released in November 2002, the CJC announced its plans to appoint people from outside the legal profession to an advisory committee. One of the authors of the report, Manitoba Chief Justice Richard Scott, said the provisions for opening up the Council to outsiders is a dramatic development. The Council has a 30-year history of restricting membership to chief justices and associate chief justices, which has led many to believe that it's out of touch.

Nevertheless, in January 2004 Liberal MP Roger Gallaway, parliamentary secretary for democratic reform, said judges nominated to the Supreme Court of Canada will face scrutiny from House of Commons committees. The plan is part of a package of parliamentary reforms announced in the federal government's Throne Speech in February 2004. Chief Justice Beverley McLachlin opposes the plan because, she says, scrutinizing appointees could politicize the judiciary and create an American-style review system. But, Mr. Gallaway says the government is studying ways to let committees of MPs scrutinize judicial nominees that avoid turning it into a U.S.-style process.

Appointments of Justices of the Peace (JPs) have come under fire too, but for different reasons.

JPs date back to ancient England, where the monarch saw them as near-official agents who represented citizens in outlying areas. They remain lay people: teachers, engineers, former police officers, bankers, and milkmen; and that's the source of the criticism.

According to the Criminal Lawyers Association (CLA), very few people appointed as JPs have law degrees. In 2002, the CLA put the number in Ontario at a mere five percent. Their responsibilities include issuing search warrants, arrest warrants, and peace bonds; hearing pleas at a first appearance; imposing publication bans; presiding over trials involving workplace safety, immigration, environmental protection, and highway traffic act of fences; and granting or denying bail. Qualifications include having integrity, knowledge about and understanding of the judicial system, and sound administrative abilities. But, critics say the selection system has more to do with political favours than qualifications. The critics insist that it makes no sense to have people with no legal experience doing a job that controls the liberty of others.

In January 2003, Ontario Court Chief Judge Brian Lennox said he thought the time had come to formalize the qualifications of JPs and reconsider the selection process. He didn't agree that JPs should all be lawyers though, saying that extensive training is available for those who need it. But, there are plenty of stories about the inappropriate behaviour of some JPs. The CBC Television program Disclosure pointed to two of them on a March 2004 show: Darrell Wells, who drove down the road from his home to a gas station on an expired driver's licence, was expecting a free when he went to court, but was sentenced by the JP to 15 days in jail. In another case, a company agreed to pay a fine of $75,000 to settle the case of Scan Kells, who was killed in a workplace accident. But, when the case went to court "to be rubber-stamped" the JP stunned everyone by lowering the free by a third.

In June 2003, the Supreme Court of Canada heard a case involving an attempt by the Alberta government to mandate that every JP have a law degree. The Alberta Court of Appeal had already said the legislation is a serious infringement on the judicial independence of JPs. Supporters of JPs say their responsibilities demand that they have greater independence; others say their high level of responsibilities accentuate the need for improved qualifications. The Supreme Court ruled that the Alberta government had every right to tighten the qualifications of JPs. Now, all JPs in Alberta must be lawyers with at least five years experience. In 2002, Nova Scotia became the second province to require that JPs be lawyers.

SUGGESTED ACTIVITIES:

1. By researching the Law Society in your region, find out how to lodge a complaint, and some examples of the results of complaints filed against local lawyers.

2. Ontario Attorney-General Michael Bryant condemned critics of the judiciary in January 2004 for endangering judges' independence with plans to make them more accountable. Mr. Bryant is concerned that judges could become the tools of politicians, and says what we need is more checks and balances on government. He said his plan to re-examine the way the courts are administered includes creating an independent agency that would control the court system at arm's length from the government. Discuss Mr. Bryant's view.

FACT FILE

In 1987, there were 47 formal complaints to the Canadian Judicial Council about federally appointed judges; 10 years later, in 1997, there were 202.

FACT FILE

As of November 2003, the number of federally appointed judges totalled 1,035,

ON THE FRINGE 

They offer legal advice for which they charge a fee, but they do not have law degrees. They are paralegals, and for 20 years they have been operating outside the scrutiny of any peer group. The result has been some pretty bizarre goings on. But, regulation is coming. In January 2004, the Law Society of Upper Canada voted to end what was described as a wild and woolly era in which paralegals could simply nail up a shingle and start practicing.

"If you need a license to sell hot dogs," reasoned Ontario Attorney-General Michael Bryant, "then somebody who provides legal advice should also be regulated."

The Law Society planned to draft regulations that would include provisions for accreditation, range of services, a code of conduct, disciplinary procedures, and a mandatory client-compensation fund. Paralegals have long argued that they could offer sire pie legal services more quickly and cheaply than lawyers. But, lawyers complain that they lack qualifications and are not subject to disciplinary action for errors or unethical behaviour.

There are about 1,000 paralegals in Ontario alone, who have gone from fighting traffic tickets to more complicated areas such as preparing wills, handling real estate transactions, divorces, business law, and immigration matters.

THINGS THAT CAN GO WRONG

Here are some examples of complaints law societies will deal with (from the website of the Law Society of British Columbia). You have a right to complain if a lawyer:

* Fails to tell you what's happening in your case;

* Does not reply to your phone calls or letters;

* Is working for opposing sides in the same case;

* Has told other people about a client's confidential matters without the client's permission;

* Is working for a client against someone who used to be a client;

* Acts for a client when the lawyer is in business with the client;

* Is rude;

* Does not appear to be able to handle your case, whether through lack of knowledge or other problems;

* Fails to account for funds held on the client's behalf;

* Has stolen your money;

* Is facing criminal charges.

ONLY HELPING

In December 1999, Justice Robert Flahiff of Quebec Superior Court had the dubious distinction of being the first judge in the history of the Canadian Judicial Council to be convicted of a serious offence: he was sentenced to three years in prison for laundering $1.1 million in drug money. As a practicing lawyer. Justice Flahiff helped a former client and cocaine trafficker by taking bags of cash to a Montreal bank, the first stop in the laundering process.

FACT FILE

The Federation of Law Societies is an umbrella organization comprised of the 14 Law Societies in Canada. One of its goals is to achieve a consensus on critical legal issues among Canadian legal associations.

Websites

Canadian Bar Association-http://www.cba.org

Federation of Law Societies of Canada--http://www.flsc.ca