COVER

JUDGING CANADIAN LAW SCHOOLS

ANN DOWSETT JOHNSTON October 6 1997
COVER

JUDGING CANADIAN LAW SCHOOLS

ANN DOWSETT JOHNSTON October 6 1997

JUDGING CANADIAN LAW SCHOOLS

COVER

Law is almost unparalleled in its flexibility—a passport to power, or a ticket to lobby for societal change

ANN DOWSETT JOHNSTON

It’s Monday, barely 9 a.m, but the parade of wouldfly in from Ottawa to preside over their Grand Moot, gazing be lawyers has already filed down the marble down from the bench through her bifocals to scrutinize stairs and assumed their positions. Shirts crisp, their performances. The entire law school will be watching, hair spiked into submission, highlighters and a standing-room only crowd. But for the moment, Gabrielle coffee at the ready: the class of 2000 is armed for Pop-Lazic Schappert, having taken a final swig of her Five instruction—and a lively discussion of foxhunting. Alive, is rising, in green jeans, to make her submissions in Welcome to Karen Knop’s first-year property class her first practice run-through. She has 20 minutes to make at the University of Toronto, where, on this her appeal on behalf of the Crown, asserting that the golden September morning, the professor will fictional Mark James had committed an assault on the focus her fine mind on the famous case of Pierson v. Post, fictional Kathleen Allen by infecting her with HIV through 1805. At issue: the ownership of “a wily quadruped” that unprotected intercourse. Standing before her mock judges, Mr. Post has pursued with his hounds, only to lose the her hands shake slightly as she makes her opening

animal to “a saucy intruder,” farmer Pierson. statements, but her voice is clear and sure. “Good

Confident as a drill sergeant, Knop leads her group evening, milord, milady,” she begins, through the case, steering them through sticky issues of Like most of her third-year classmates, Pop-Lazi ownership, through historical precedents from Justinian Schappert already knows where she will be articling come to Grotius. “What is possession and what do we want to June. As one classmate jokes: ‘You’re looking at the highest

reward by that meaning? Was it fair to let Pierson win?” concentration of people under 30 who know they have jobs

she asks them. Silence, as ivy winks at the window. ‘We 12 months in advance.” But Pop-Lazic Schappert, now 33,

all know that life isn’t fair,” ventures one. “Isn’t the judge already had a master’s degree and a satisfying job when she

making a class-based decision?” asks another. Knop grins: chose to apply to law school, and she aspires to more than

“If ever there was an act to engage discussion of class mere employment. “I find the whole notion of advocacy

distinctions, it is foxhunting.” A raised hand. “I know appealing,” she says, “of being involved in identifying and

we’re just in our second week, but is there an accepted supporting people’s rights. This may be somewhat

rule that judges use to decide what liberties they can idealistic, but I hope that there will be a moral high ground,

take?” Knop pauses. ‘The short answer is no.” whatever I end up doing.”

As Knop’s students make their first attempts at cracking Cynics, scratch your heads. Yes, the public’s opinion of the legal code, members of the graduating class are being lawyers is at an all-time low: in terms of respect, only

groomed for the courtroom. In just one week, Justice politicians rank beneath them. And it would seem that

Beverley McLachlin of the Supreme Court of Canada will even lawyers themselves don’t like new lawyers. In a recent survey conducted by the Angus Reid Group on behalf of the Canadian Bar Association, lawyers agreed that the two greatest issues confronting the legal profession were the number of new lawyers and the downward pressure on legal income.

‘The good news is that the demand for legal services is going to grow over the next 20 years,” says Reid.

“The bad news is that cost will become increasingly important. A handful of super-lawyers will earn more money than God, but the average graduate faces a somewhat bleak future.

Let’s face it, when you can do your own will on a computer program, law is pretty accessible.”

But is that such terrible news? In David Johnston’s opinion, the demystification of what he calls “fairly pedestrian legal activities” represents a liberation of sorts. In fact, the former principal of McGill and chairman of the federal government’s Information Highway Advisory Council, argues that there has never been a more exciting time to begin a law career. “Yes, i t’s possible to get information on the Line Fences Act over the Internet and not pay an exorbitant fee,” says Johnston. “Lawyers should be very quick to give away that activity and move upscale in how they function in our society. As legal professionals, we have a choice of leading this transformation from the information society to the knowledge society—or becoming increasingly redundant.”

In fact, what no computer program can replicate is the zeal that Pop-Lazic Schappert is bringing to her career.

Harry Arthurs, former dean of Osgoode Hall Law School and president emeritus of York University, believes that zeal is one of the most precious commodities in the legal world—and one that is hard to preserve. Chastising the profession for its “unwillingness or inability to accommodate the terrific minds and good spirits” of new graduates, Arthurs is scathing about the articling tradition, which he describes as “the acquiring of suitable attitudes— aggressiveness, consciousness of money, deference to hierarchy— all the things you need to succeed.”

Not surprisingly, Arthurs is unsympathetic to the financial woes of the profession. “There is a God,” says the professor, “and right now he is punishing rich lawyers.” So, what is right about the system? “Law schools are performing a critical function in keeping the profession off-balance so that they don’t forget that

To the class of 2000: become leaders in a more civilized world

what they’re doing has big social consequences. The schools see it as their mission to transform attitudes and behaviors, to get lawyers to focus on the important issues: how do the rules work and how can you cushion their adverse impact on people?” Pop-Lazic Schappert could do worse than speak to John Harvie, a Winnipeg defense lawyer who mounted a oneman crusade on behalf of an 18-year-old aboriginal woman last spring. After a night of drinking and drugs, she and a local gang member had held up a Winnipeg corner store, y During the robbery, she had I held a paring knife to the g cashier’s neck. When the ¡5 gang member yelled, “Slit her ï throat!” she had indeed pulled the knife across, using the dull side. The Crown charged her with robbery and asked for three years. ‘This would have meant sending an 18-year-old, with no previous record, who grew up on a northern reserve, to Kingston,” said Harvie. “It’s no place to start a life—she would have come out of there a creature.” Harvie believed that a sentencing circle was the most appropriate way to deal with the case, but the Crown was vehemently opposed. He spent weeks applying to the court to hear his motion. “TTere are recent amendments to the Criminal Code that say that particular attention has to be paid to the circumstances of aboriginal offenders,” says Harvie. “But there’s a fair amount of resistance in putting those changes into procedure. I had to fight for a day in court to make my point.”

In May, the Crown reduced the sentence it was seeking to two years less a day, and the one-day circle was held. Based on the notion that the circle of a community is broken by crime, its aim was to reincorporate the accused to make the circle whole again. The accused, her family and police— acting as representatives of the Victims’ Assistance Program—appeared for what Harvie calls the most gruelling, emotional day he has ever spent in court. In the end, she was spared a jail term, and was sent back to her reserve, on an 18month conditional sentence, to be followed by two years of probation. “If there’s any chance we’re going to break out of the jail-as-warehouse model,” says Harvie, “we have to use different tools for restorative justice. But it took me years to understand that I could make this happen. If something rankles you, you can actually do something about it.” For the class of 2000, those are words to live by. □