Legal Feeds Blog
Thomson Reuters and the Toronto Lawyers Association announced a new partnership Jan. 17 in Toronto. Former justice Colin Campbell, Monica Goyal and other speakers discussed improving technology in law firms and in the courts.
Despite much talk over the last decade around boosting diversity and inclusion in law firms, women and racialized lawyers continue to be under-represented in the Canadian legal profession with Caucasian men continuing to far outnumber those two groups in senior leadership roles, according to a study from the Canadian Centre for Diversity and Inclusion.
In fact, the study shows Caucasian men who responded to the survey have the greatest odds of being an equity partner, and they are seven times more likely than racialized women to be an equity partner.
The study, “Diversity by the Numbers: The Legal Profession,” conducted by the CCDI in partnership with the Canadian Bar Association, shows the representation of minority groups in the legal profession has not changed substantially over the last three years that the CCDI has been collecting data. In 2014 and 2015, 73.99 per cent and 76.88 per cent of senior leader respondents were men. In 2016, 75.34 per cent of senior leader respondents to the survey were men and 90.78 per cent of senior leaders were Caucasian.
In 2014 and 2015, 89.28 per cent and 88.91 per cent of senior leader respondents were Caucasian respondents, respectively. Another statistic of note is that 81.9 per cent of senior leaders are equity partners.
“Results from 2014, 2015 and 2016 do not show a shift towards a more diverse and inclusive workforce, particularly in partner and leadership roles,” the report states.
The study, sponsored by Borden Ladner Gervais LLP, Cassels Brock & Blackwell LLP, Dentons Canada LLP, McCarthy Tétrault LLP and Miller Thomson LLP, shows women and racialized respondents are under-represented in equity partner and senior leader roles and over-represented as associates and articling or summer students.
Authors of the report say factors contributing to the perpetuation of these numbers include “inflexible working conditions, rigid firm culture, high client expectations and overall economics of the profession.”
While some might point to a tough economy since 2008, Deanna Matzanke, director, measurement and analytics at the CCDI, says the economy is a “significant red herring” and what the report shows is “a compelling validation” that the current law firm model makes it difficult for women and minorities to rise to equity partner positions.
“ . . . the process of billable hours, the emphasis placed on client relationships, and the hierarchal ‘Old Boys Club’ network in law firms do not support or foster a diverse and inclusive environment.”
The report goes on to say that women find themselves in a difficult position when faced with trying to balance family needs with law firm demands. Also, “ . . . lawyers from minority groups do not have the same social and cultural capital to network and find mentors who relate to them, because the pool is very small.”
That means many leave the law firm culture for more flexible and accommodating environments elsewhere, such as in-house roles or solo practice.
Matzanke, a lawyer herself, says the results of the study are disappointing and show that diversity and inclusion are not being successfully implemented in the legal profession, despite the fact the pool of potential lawyers in law school has increased in diversity and at the associate level at law firms shows fairly high diversity.
The majority of racialized respondents in the legal profession are Asian, while all other groups show very small representation.
A total of 11 firms from nine provinces and one territory participated in the 2016 survey. Firms were invited to participate directly by CCDI via the Law Firm Diversity and Inclusion Network, and the Canadian Bar Association sent a letter to all members.
“There’s nothing surprising here really,” says Level Chan, a partner with Stewart McKelvey LLP in Halifax and the CBA’s representative on the CCDI’s advisory committee.
“As to why we’re not moving the needle much, I think it’s a matter of retention and advancement, and as you see particularly with women, there continues to be over-representation at the associate and entry level areas of the firms, but we’re not keeping them. I think that in turn is translating to having fewer people available for senior roles and as equity partners. That is the ongoing issue we’ve had in the legal profession.”
Chan argues the economy has played a factor as he says “many law firms” have gone through rounds of layoffs and that would impact the ability of people to get into partnership roles as well.
In-house lawyers and their powerful role in the market is also a big factor. With law firms under regular scrutiny by corporate clients on use of the billable hour, the ability to maintain revenue streams has been a challenge.
“My anecdotal observation is that, of course, when there is less work there is less billable hours and less billings that would translate into the numbers admitted to partnership,” he says. “One of the common responses from clients to reduce their legal costs is to hire in-house lawyers and find internal resources to do due diligence or review contracts, so that is driving that change on the in-house side, too.”
There are also more attractive roles for in-house lawyers seeking something different from the usual private practice path.
Chan says from what he has seen, those lawyers leaving big law firms are women and other minorities being drawn to in-house positions offering certain elements not offered in traditional law firm compensation schemes, such as pensions, benefits or other financial incentives.
“So long as you’re not getting racialized lawyers as partners, you’re similarly not really going to get racialized people in leadership roles and that also applies with women,” says Chan. “Certainly, I think firms are making a concerted effort to try and increase representation in leadership and I think there have been attempts to get more women in senior roles. While women are still underrepresented, there are still a larger pool of women to draw on for partners than there are racialized lawyers.”
Kate Broer, partner with Dentons Canada and a member of the CCDI’s advisory committee, agrees with Chan that lawyers have a “broader range of options” other than the traditional path of private practice and many are moving into in-house roles or to other opportunities.
The war on the billable hour may also be influencing who remains at the top of many law firms. Firms are generally taking on fewer students, and Broer says gone are the days of “guaranteed hire-backs.”
But times are changing and if firms are to retain certain talent and appeal to a new generation of clients that want to see greater diversity of talent and for their own staff who want better life balance, firms will have to better address the issue. Broer says these days it’s not only women who want to take time away from their careers to raise children but men, too.
She also points out that women are gaining voice at the top of some large firms. This year, Dentons Canada elected five women to its board of 10 directors in Canada. That is an increase from two out of 10 in the previous year and in 2009 none of the members of the board were women.
Although the CCDI tried to include Canada’s 22 law schools in the survey to provide a comparison of students enrolled against the broader profession, the schools did not participate this year, although it was originally scheduled to be conducted this year.
“My impression is there is a huge importance in getting that law school data,” says Chan. “I know in speaking to deans at law schools they do see it as an issue and are working on it, but no law school has really been particularly open and transparent with respect to that other than programs they would already have in place.”
A well-recognized Canadian judge has another accolade on her list of accomplishments — the fact she’s now been named the global jurist of the year by Northwestern University.
|Justice Rosalie Silberman Abella will speak about international law when receiving an award in Chicago later this month.|
Previous recipients include Gloria Patricia Porras Escobar of the Guatemalan Constitutional Court, Justice Shireen Avis Fisher of the Special Court for Sierra Leone, and Acting Chief Justice Dikgang Moseneke of South Africa’s Constitutional Court.
“Justice Abella has long been recognized internationally as one of Canada’s foremost jurists,” said Adam Dodek, a law professor at University of Ottawa. “This award confirms that long and widely-held view.”
The award is on behalf of the Northwestern Pritzker School of Law’s Center for International Human Rights.
“Justice Abella’s extraordinary personal story and her outstanding professional achievements really make her a compelling figure, someone who is well-worthy of this honour and someone who we are very excited to welcome to Northwestern Law School to have the chance for our students and faculty to interact with her, and hear from her,” says Juliet Sorensen, the centre’s Harry R. Horrow Professor of International Law, who was part of the four-person selection committee who chose Abella for the award. Sorenson says Abella was nominated for the honour.
Abella —who graduated from University of Toronto with a bachelor of arts and a law degree — will speak on January 25 at Northwestern about whether international law has kept up with the world.
“Abella is a pioneer in many ways. She is the first Jewish woman and the youngest person ever appointed as a judge in Canada,” said the news release from Northwestern announcing the award. “She also is the first Jewish woman appointed to the country’s Supreme Court.
Born in a displaced persons’ camp in Stuttgart, Germany, in 1946, Justice Abella is the daughter of two Holocaust survivors.”
A biography on the Supreme Court of Canada’s website notes Abella was appointed to the Ontario Family Court in 1976, and the Ontario Court of Appeal in 1992. She joined the Supreme Court in 2004.
“She was the sole Commissioner of the 1984 federal Royal Commission on Equality in Employment, creating the term and concept of ‘employment equity,’” says the biography. “The theories of ‘equality’ and ‘discrimination’ she developed in her Report were adopted by the Supreme Court of Canada in its first decision dealing with equality rights under the Canadian Charter of Rights and Freedoms in 1989.”
Eugene Meehan, a lawyer at Supreme Advocacy in Ottawa, said Abella is well-known for various decisions, including the recent SCC decision in Daniels v. Canada (Indian Affairs and Northern Development), where Meehan said Abella “wrote the unanimous judgment of the Court that government is to constitutionally recognize the rights of Métis and non-status Indians.”
“Justice Abella is now the second most senior judge on the court,” said Meehan. “Though some try to peg her as being of this or that school of thought, on this or that issue, the reality is she’s a chameleon that’s able to muster majorities among different groups of allies – yet still feel strongly enough on issues of importance to her to write the lone wolf dissent.”
A newly disclosed document sheds some light on how Crown attorneys may have approached prosecuting HIV non-disclosure cases.
|Marcus McCann obtained a report called HIV: The Medicine, The Science and the Law, a guide for Crown attorneys involved in the prosecution of HIV exposure and transmission cases through a Freedom of Information Act request.|
The document discusses the admissibility of an accused person’s statements to public health as incriminating evidence — something human rights lawyers and HIV activists find troubling.
“The risk has always been that the use of an accused’s statements to public health would put a damper on HIV positive peoples’ willingness to be frank with public health, which puts their own health at risk and the population also at risk as well,” says Toronto lawyer Marcus McCann.
McCann says this approach could have a chilling effect on whether people with HIV will seek help from health professionals.
McCann obtained the document through a Freedom of Information request and subsequent years-long legal battle with the provincial government over whether the document should be disclosed.
Karen Shea, an assistant Crown attorney, wrote the document during the 2009 case of Johnson Aziga, an HIV-positive man who was convicted of murder for failing to disclose his status when he had unprotected sex with two women.
In the absence of an official set of prosecutorial guidelines for HIV non-disclosure cases, McCann first requested the document in the hope it could help discussions between the government and organizations that have been pushing the issue.
In November, the Divisional Court ordered MAG to release the document, and the provincial government decided not to appeal the decision.
The document includes a list of arguments against HIV non-disclosure criminalization and responses to them, which McCann says shows the government was aware of those critiques and had discarded them.
McCann says in the past there has been a view among HIV activists that they could push MAG to make meaningful change in the area if they could educate the ministry on current science.
“One of the things this document shows is that MAG knew full well what the concerns were with their approach and they were proceeding full steam ahead,” McCann says.
“It really is a document to my mind that is focused on prosecution at all costs and doesn’t take into consideration the kinds of situations in which a more lenient approach might be justified.”
Clare Graham, a spokeswoman for Attorney General Yasir Naqvi, says the document is not an official set of prosecutorial guidelines.
“The document is the work product of an individual Assistant Crown Attorney based on her knowledge and experience prosecuting HIV exposure and transmission cases,” she said in an email.
“The Assistant Crown Attorney prepared this document not only for her own use but also to assist her colleagues in a difficult and complex area of the law; however, this document is not a Ministry issued policy or guideline.”
In the legal proceedings concerning the document’s disclosure, MAG conceded that multiple versions of the document existed and that it had been shared on an intranet accessible to all Crown attorneys.
The document was disclosed as the Ontario Working Group on Criminal Law and HIV Exposure called for a moratorium on prosecutions in HIV non-disclosure cases, unless they involve allegations of intentional transmission, while discussions take place to develop an official set of guidelines.
The working group and its member organizations have been working for years towards the development of a set of prosecutorial guidelines.
The working group has obtained a commitment in the past from the provincial government, only to never see any guidelines materialize, Peck says.
“Unfortunately the dialogue over the past seven or more years, from our perspective, has not been meaningful,” says Ryan Peck, the executive director of the HIV & AIDS Legal Clinic Ontario, who sits on the working group.
But Peck says the working group is hopeful that it will be able to engage in meaningful dialogue with Naqvi, who has been attorney general since June.
Peck says the guidelines will need to be developed to bring the prosecutions of these cases in line with up to date science and human rights principles.
The group most recently met with Naqvi at a roundtable discussion on the topic on Dec. 5.
The federal government issued its own statement on World AIDS Day in early December acknowledging the effects of the over-criminalization of HIV non-disclosure. The statement, attributed to Justice Minister Jody Wilson-Raybould, committed to examining “the criminal justice system’s response to non-disclosure of HIV status,” saying this could include a “review of existing charging and prosecution practices, as well as the possible development of prosecutorial guidelines.”
Graham says MAG is committed to working with the federal government to “examine the law in this important area.”
McCann says he hopes the disclosure of the document will mean that both CLHE and MAG are starting future discussions on and equal footing.
“My hope is that Yasir Naqvi, the attorney general, and the ministry of the attorney general approach the next phase of this process with honesty and integrity and that they come open to making some changes,” he says.
“I feel like this document is part of a story and the last chapter is yet to be written.”
Nurse accused of killing seniors faces six new charges, Canadian Press
The Law Society of British Columbia has recently discontinued a pilot project which allowed designated paralegals to appear in court. However, that doesn’t mean the LSBC has given up plans to regulate paralegals; legislating the provision of legal services by non-lawyers is still very much on the plate, says LSBC president Herman Van Ommen.
|“I think the profession here didn’t know what they could do with paralegals” in court, says Herman Van Ommen.|
The paralegals-in-court pilot project, which ran from January 2013 until autumn 2015, was part of the LSBC’s “access to justice” initiative. During this pilot project paralegals could independently make procedural appearances in court, for example, and book dates. However, only three members of B.C.’s 1,300-strong bar sent paralegals to court in their stead; this may be because paralegals are less commonly used in B.C. than in a jurisdiction such as Ontario, where about 7,500 paralegals are licensed by the Law Society of Upper Canada.
“I think the profession here didn’t know what they could do with paralegals” in court, says Van Ommen.
However, he stresses, the LSBC’s designated paralegal program continues. In 2013, 345 B.C. lawyers supervised designated paralegals (at a maximum of two per lawyer), and in 2015, 647 did so, says Van Ommen.
The LSBC defines a “designated paralegal” as “a paralegal who can perform additional duties under a lawyer’s supervision” such as giving legal advice to clients and appearing before tribunals, as permitted, or at family law mediations.
The title “designated paralegal” does not affix to the paralegal as a right, and the title does not transfer with the paralegal from job to job or from supervising lawyer to supervising lawyer, according to the LSBC’s website. “Designation is an active process by the supervising lawyer. Even if a lawyer has a designated paralegal, the role requires consideration on a case-by-case basis as to whether a particular matter is suitable to delegate to the designated paralegal.”
“We’ve given lawyers the authority to allow paralegals to do more than they could in the past,” Van Ommen explains, which is expected to lead to the regulation of paralegals. “The [B.C.] government has been very cooperative [and] supportive, and so we anticipate having legislation that will enable us to regulate and create classes like paralegals. Washington state has done something similar [and] we’ll be looking at Ontario when it comes to setting up classes of legal service providers. Ontario has a long history of this,” having been the first jurisdiction in North America to regulate paralegals, in 2007.
Regulation of paralegals, whose fees are much lower than those of lawyers, is “an important component” of access to justice for B.C. residents, says Van Ommen.
“We intend to proceed on that project,” he says: “the creation and regulation of paralegals. Anyone can call themselves a paralegal now . . . We want to create a class of legal service providers that may be called paralegals, with set-out scopes of practice and education requirements.
“Most of the existing paralegals will always remain working under the supervision of lawyers,” he adds. However, “when we create these classes [of legal service providers], hopefully some will take the education and do a lot more.”
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