Canada’s lawyers broadening their horizons


Canada’s lawyers broadening their horizons
Canadians are seeking opportunities for legal education in other countries — notably England, Australia and the United States.

Reuters Files

Canadians are seeking opportunities for legal education in other countries — notably England, Australia and the United States.

Vern Krishna, Financial Post · Wednesday, Feb. 9, 2011

What a difference a generation makes in the composition of the Canadian bar and the international competencies required of Canadian lawyers, who are broadening their horizons and becoming increasingly international in outlook and scope of work. More foreign-trained lawyers are immigrating into Canada; more Canadians are going to study abroad in foreign law schools; and law firms are looking at forging international partnerships in Europe and the Middle East.

Canadian law schools in the early 1970s were parochial institutions focused on provincial law. With a few notable exceptions, law students read foreign (English) texts and case law. Canada was a net importer of foreign-trained professors.

The Law Society of Upper Canada (LSUC) was the de facto arbiter of law school curricula, having first set academic standards in 1957 for the “approved LL. B.” degree, which all other law societies followed religiously so that their graduates could practise in Ontario. Provincial law societies were insular and protective of their territorial monopolies. The Supreme Court of Canada struck down admission barriers in three leading cases ( Andrews, Black and Mangat) on the right of “foreigners” to practise in Canada.

In Andrews, the Supreme Court struck down British Columbia’s requirement of Canadian citizenship as a condition to practise law in Canada. In Black, the Supreme Court ruled against Alberta’s restrictions on law firms trying to expand onto their provincial turf. In Mangat, the Law Society of British Columbia attempted to restrict individuals entitled to practise before federal tribunals. Each of these cases were attempts by law societies, under the guise of public protection, to protect their monopolistic power over licensing and, hence, protect their territorial turf.

Law societies must balance the interests of the public and ensure the competence of providers of legal services. However, the restrictive attitude of provincial law societies is entirely understandable. Monopolies increase the earnings of monopolists even though they are not necessarily in the best interests of the public. Monopolistic practices also increase the cost of legal services.

Prior to 1975, the provincial law societies would accept legal credentials only from the white commonwealth countries. Law schools were equally insular and even more elitist. Dalhousie Law School, for example, was aristocratic: it accepted foreign law degrees — provided they were from Oxford or Cambridge–and conferred a Canadian LL. B. on such graduates upon completion of only one additional year of studies.

Two principal factors account for the changes in legal education and the internationalization of Canadian lawyers. First, immigration patterns into Canada have changed and we now have an influx of lawyers from the United States and the non-white commonwealth.

Ontario was, once again, the reason for the second major change when it enacted the first Fair Access to Legal Professions Act. The statute requires LSUC to evaluate internationally trained professionals objectively and in a transparent manner that is defensible from judicial review. The law societies insisted on having some say in determining the academic qualifications of those who choose to be licensed as practitioners. The debate on appropriate academic content is animated, at times hostile, and epitomizes the clash of egos between the town and the gown.

As more foreign-trained lawyers are moving into Canada, we are also sending more Canadian students abroad. Canadian law schools have several joint degree programs with their American counterparts and are looking at exchanges with countries such as India, an area of increasing interest in international trade.

Also, as Canadians find it increasingly difficult to enter into Canadian law schools, they seek opportunities for legal education in other countries — notably England, Australia and the United States. Bond University Law Faculty, a superb private institution, in Australia, for example, is host to nearly 250 Canadians studying there who intend to return to Canada when they complete their education.

To be sure, the debate in the law societies on diversity is divisive and, characteristically, provincial. The new regulatory requirements that approved law degrees should ensure competence in specified areas of law is vague and as helpful as Lord Cockburn’s 1868 explanation that literature was criminally obscene if it tended to “deprave and corrupt,” a phrase about as illuminating in 2010 as it was 150 years ago.

However, regardless of regulatory edicts, which are generally dated by the time they are pronounced, the practice of Canadian law and the composition of the Canadian bar will be influenced more by global business than by profound statements on competencies. – Professor Vern Krishna, CM, QC, FCGA, is Tax Counsel with Borden Ladner Gervais, LLP, and Executive Director of the CGA Tax Research Centre, University of Ottawa.

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