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Canada has a crying need to dial back the power of lawyers

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Sven
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Joined: Jul 22 2005

kropotkin1951 wrote:

Sven in your opinion are either the USA or China democracies?

You'd just rather change subject, wouldn't you?


Sven
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Joined: Jul 22 2005

kropotkin1951, the question isn't whether the USA, China, Cuba, or Venezuela is a "democracy" (or which one is more of a democracy than the others).

The question is: Where do rights come from?  Who creates them?  Who decides what isn't a right?

My argument is that it's ultimately not the courts it's the majority of people in a society.

This is true whether we are talking about real-world (i.e., imperfect) democracies or hypothetical pure democracies.  In either case, if the word democracy has any meaning, the majority rules.


kropotkin1951
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Joined: Jun 6 2002

You don't need a lawyers trust account to buy or sell a house.  You could always take cash to the land title office and sign the papers there and physically hand over the title. 

Laughing

 

Otherwise you take on financial risk since the parties never know if the cheque will clear or if the deed is legit.  The lawyer provides the trust account and the self regulating law society provides the insurance that any member of the public can access if a lawyer has defrauded them or been negligent in the conduct of their practice.


6079_Smith_W
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Joined: Jun 10 2010

@ Sven#56

Yes, but the question isn't whether something is democratic, it is whether it is legal, and who is the final arbiter of that.

And regarding your statement in #62 about who decides rights, sure I agree with you that is true in theory - everything does come from the people. But neither this nor any other society decides everything by some sort of direct libertarian system, and it is a good thing too. 

Sure, we built the law over the past 3,000 or so years, and sure we elect a government with some power to change it. But the ultimate body which interprets it, and decides whether something is within the law is the judiciary.

And while I am not sure if you need a lawyer to sell property, I know you do need the next worst thing - a notary public.

 

 


Sven
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Joined: Jul 22 2005

6079_Smith_W wrote:

And regarding your statement in #62 about who decides rights, sure I agree with you that is true in theory - everything does come from the people. But neither this nor any other society decides everything by some sort of direct libertarian system, and it is a good thing too. 

Sure, we built the law over the past 3,000 or so years, and sure we elect a government with some power to change it. But the ultimate body which interprets it, and decides whether something is within the law is the judiciary.

Where do you think the courts gets their power and authority to act as the judiciary?

For example, the federal courts in the United States, including the US Supreme Court, have their authority under Article III of the US Constitution.  That is the constitutional provision that created and confered power on the federal courts.  If a large enough and motivated enough majority wanted to neuter the courts, all that majority would have to do is amend Article III.

Thus, even judicial power is ultimately subject to majority rule.


6079_Smith_W
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Joined: Jun 10 2010

As I said, Sven, I agree with you in theory.  They might - MIGHT - be able to do that. Or it could happen in a much simpler way, by a military coup. I am not arguing that. As I said way upthread, sure, there are ways to overthrow the judiciary; it has been done enough times in enough countries in the past. 

My point is that it is in the interests of a well-functioning system to have a strong and independent judiciary, and as threatened as our system currently is (and I believe there are many threats) our courts still have the power to hold our prime minister at bay in some things.

Also, it is not solely the people who decided the scope of powers of the court, and the body of the law. Much of that is decided by legal precedent, and always has been. In the U.S. the supreme court interpreted the constitution and took the power of judicial review itself. Here in Canada, our supreme court can interpret the charter and decide, for instance, what qualifies and does not qualify for protection under hate crimes legislation. 

So no. in practical terms it has never been the case that everything under the law, and all legal power flows directly from the people.

 


Sven
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Joined: Jul 22 2005

Smith, I agree with much of what you are saying in practical terms.  The brilliance of the American founding fathers back in the late 1700s was the creation of a government of separate powers (the "checks and balances" among the executive, legislative, and judicial branches).  It has been a fairly successful system that has lasted for a quarter millenium.  It's not easy for a majority to dictate laws and rights.  It must be both a significant majority and a determined majority (which is difficult to achieve on any given matter of public policy).

Yet...

What happened today in North Carolina, while I very much disagree with the result, is a case of a majority circumscribing the putative rights of a minority (people who want to enter into same-sex marriages).  I don't think it's the correct policy.  But, that is now the law in that state.  Now, there may be a state constitutional basis for the courts to overturn the will of that majority.  But, if that happens, the ultimate trump card of that majority is to amend the constitution to prohibit the courts from having any authority over the question.

So, this is not such a theoretical issue, is it?


6079_Smith_W
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Joined: Jun 10 2010

Fortunately the tide seems to be slowly turning the other way on that issue. How many times have they tried it in California now? 

And it's not theory? Perhaps. To the same degree that the Queen has the power to not recognize the results of elections, or refuse to sign bills into law, sure it's not theory.

Or in our country it is much simpler. The PM, or any government, for that matter, has the power to invoke the notwithstanding clause on virtually everything the court rules on. But we have not seen that happen in a wholesale way, yet. 

But of course, that concerns those in positions of power, not the public.

Personally, I think if you have an independent and strong judiciary it will not act in a way that will drive the people to rise up in revolt against it, even in times when it makes decisions that many people don't see the wisdom of.

But to use force, trickery, or even bad legal decisions to get around the law? Never a good idea, and never, ultimately any sort of solution.

To suspend habeas corpus or refuse to recognize a human right doesn't destroy it. It just means you refuse to recognize it.

 


Sven
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Joined: Jul 22 2005

6079_Smith_W wrote:

Personally, I think if you have an independent and strong judiciary it will not act in a way that will drive the people to rise up in revolt against it, even in times when it makes decisions that many people don't see the wisdom of.

I think there's a lot of truth to that.  I would only add that in order for the judiciary to play the most positive role in our societies that it can, and to help immunize it from the type of popular challenge we were just discussing, it must be widely viewed as being a fair system (not perfectly fair -- as that will never happen -- but substantially fair).


Sven
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Joined: Jul 22 2005

[THREAD DRIFT]

6079_Smith_W wrote:

Fortunately the tide seems to be slowly turning the other way on that issue. How many times have they tried it in California now?

I'm very optimistic about the trend.  And I am particuarly optimistic because most of the states that have decided to legally recognize same-sex marriage have done so legislatively, rather that via judicial fiat (I think that latter point is very important because the legitimacy of a legislatively-created right is largely beyond question -- which is not always the case with a judicially-created right).   

[/THREAD DRIFT]


6079_Smith_W
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Joined: Jun 10 2010

On the North Carolina question, the fact that they took the step of passing an amendment even though it is already law, just to prevent the courts from forcing recognition of equality, speaks to the fear and attempt to force the situation, IMO. 

And yes, I agree that it is better, and adds more legitimacy  to do it through legislation. But I think that is more crucial in a case of extreme polarization, like the U.S. It didn't go that way here in Canada.

And I think the judiciary is more undermined in the states because they are expected to act in a partisan fashion, so it isn't wrong to accuse judges of being "activist", and question the validity of decisions.  Although it certainly happens here too, I think there is more of an expectation that judtices will try to be more impartial.

And of course there's that whole thing in the states of judges trying to make law based on what they thought the crafters of the constitution intended.

 


Sven
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Joined: Jul 22 2005

6079_Smith_W wrote:

And yes, I agree that it is better, and adds more legitimacy  to do it through legislation. But I think that is more crucial in a case of extreme polarization, like the U.S. It didn't go that way here in Canada.

In an April 2010 post in this thread, I noted the following:

Svenmeister wrote:

There are seven countries (so far) which legally recognize SSM:

The Netherlands passed legislation to permit SSM in 2001.

Belgium passed legislation to permitt SSM in 2003.

Spain passed SSM legislation in 2005.

Canada completed the task begun by courts by passing national legislation in 2005.

South Africa passed legislation in 2006 to permit SSM.

Norway, also through legislative action, recognized SSM in 2008.

Sweden (see post above).

Prior to doing the research for that post, I had no idea how few countries (as of 2010) had legally recognized SSM and that in almost every country where SSM has legal recognition, that recognition has come through legislation, rather than the judiciary.


6079_Smith_W
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Joined: Jun 10 2010

True. 

I am not sure it would have happened that way, and certainly not as fast, in Canada had the issue not been forced by the courts. Same sex marriage was already the law in a number of provinces starting in 2003. Thousands of people were married according to the new rules before the federal government brought its legislation into compliance.

In fact, how it did happen is quite interesting, because the Supreme Court never did examine the question of marriage equality. When the federal government took its draught legislation to the Supreme Court it was accused of having ulterior motives, because the government had already accepted the rulings of provincial courts.

That's why I say it was a de facto court decision.

Really, the government had no choice but to comply and change the law, or invoke the notwithstanding clause. Even though they had no choice, I think Paul Martin's speech in introducing that legislation laid out very clearly the responsibility of legislators  to govern for the good of all, rather than based on partisan personal beliefs.

Nevertheless, I agree with you that it is important that those rulings were backed up by passage in paliament, and that those who opposed it got a chance to speak their mind.

Ralph Klein called for a national referendum, which Paul Martin declined.

Stephen Harper pledged to work to ban same-sex marriage.

http://en.wikipedia.org/wiki/Same-sex_marriage_in_Canada

 


NorthReport
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Joined: Jul 6 2008

Not just Canada either.

Trial by Fire Did Texas execute an innocent man?

 

http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann?curren...

 


bagkitty
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Joined: Aug 27 2008

I really wonder about the reading comprehension skills of some people (yep, "some people" are back). All these wonderful postings about good things we can thank the legal profession for.... NP didn't start off by quoting Act 4 of Henry the Sixth - he was questioning the power grabs and seemingly ever expanding role lawyers are creating for themselves.

We need a new designation (Bagkitty's Law?) to describe threads where the meta-discussion of the misinterpretation of the OP sucks all the oxygen out of the room.


Sean in Ottawa
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Joined: Jun 3 2003

bagkitty wrote:

I really wonder about the reading comprehension skills of some people (yep, "some people" are back). All these wonderful postings about good things we can thank the legal profession for.... NP didn't start off by quoting Act 4 of Henry the Sixth - he was questioning the power grabs and seemingly ever expanding role lawyers are creating for themselves.

We need a new designation (Bagkitty's Law?) to describe threads where the meta-discussion of the misinterpretation of the OP sucks all the oxygen out of the room.

Wow-- seems "some people" have a "presumption of perfection"-- naming an interpretation of the value of others' posts a law named after yourself.

That is pretty funny.

I don't think we actually need one person to interpret the opinions of others to decide if they are worthy enough.

I assume you were trying to make a joke about looking arrogant and all -- right?

I want to assume this dismissal of a lot of people's opinions was not written with a straight face.


bagkitty
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Joined: Aug 27 2008

Hey feline's ain't built for modesty. We are made to sleep, hunt, sleep, eat, sleep, screw, sleep, yowl, sleep, more sleep and then piss on other's personal possessions.

You aren't, by any chance, more of a dog person?

 

ETA: Bagkitty's second law. No cat is ever truly lost, they always know where they are, smack dab at the center of the universe.


6079_Smith_W
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Joined: Jun 10 2010

I saw it as a joke, since we seem to be having a couple of meta discussions  (speaking of "It's baaaaack") at the moment.

 


NorthReport
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Joined: Jul 6 2008
NorthReport
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Obviously some people cannot handle having a discussion of the shortcomings of the legal profession having a stranglehold on our society

Rich against the poor - we know whose side the lawyers are on here.

And then of course there are these major injustices that occur. Just collateral damage I suppose.

http://en.wikipedia.org/wiki/Coffin_affair


kropotkin1951
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Joined: Jun 6 2002

North Report are you saying we don't need any laws?  Or are you saying that individuals must not be allowed to hire anyone else to help them in dispute resolution?  Other than violence what do you think should be the way to settle disputes?  I am truly interested in knowing.

To me seems like a glass half empty or half full problem. There is a good argument to be made that the current aboriginal land claims negotiations are just enriching lawyers.  I tend to agree.  So one might conclude that not having lawyers is the answer. But to me it is not that simple.  The reason why the issue of aboriginal title was not concluded in the courts a hundred years ago is that the federal government passed a law making it a crime to hire a lawyer to argue on behalf of native title.  The pending appeal of the Northern FN's that was to go to the highest court in the Empire thus never got heard.  The reason why the law banning hiring lawyers to defend native title was passed was because the British legal precedents favoured aboriginal title. If it had been decided before the allotment of the majority of BC lands to white settlement the current rip off by lawyers would not be happening and we would live in a very different province.


NorthReport
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Joined: Jul 6 2008

It's getting so it is almost impossible to breathe without a lawyer being involved. For example, why in the world are lawyers, whose only interest is in draging things out as long as they can so they can rake in excessive fess, be allowed anywhere near divorce actions? A simple mediation process would suffice here. and it goes on and on permeand ating every facit of our society. I'm no fan of a police state, but ask any police officer who is just trying to do his job and put the bad guys away, I'm not talking about student protesters btw, who is by far the biggest obstacle to them - it is the lawyers in the jusicial system. Not every person that is arrested is a good guy, far from it, and we all know that.

And of course you are correct, the aboriginal land claims process is a sham. I'm willing to bet more money has gone out in legal fees that in actual land settlements.

Look at Canada's Labour Relations Boards - just another scam by the rich represented by the legal profession to scam working people of their rights and decent wages.

Workpeople Compensation Boards - more is spent on scaming workers than will ever go out to help them 

The list just goes on and on and on.


NorthReport
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Joined: Jul 6 2008

 

B.C. mushroom farm tragedy in hands of coroner's jury 7-day inquest heard often contradictory testimony about farm where 3 workers died

http://www.cbc.ca/news/canada/british-columbia/story/2012/05/15/bc-mushr...


kropotkin1951
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Joined: Jun 6 2002

NorthReport wrote:

It's getting so it is almost impossible to breathe without a lawyer being involved. For example, why in the world are lawyers, whose only interest is in draging things out as long as they can so they can rake in excessive fess, be allowed anywhere near divorce actions? A simple mediation process would suffice here.

Actually I agree that mediation should be the default for all divorces that are contested by the parties.  Most divorces never involve court cases it is only where the parties decide to fight that lawyers get involved. My former wife and I used a lawyer to draft and file the papers.  She did not try to make us fight she drafted the documents according to our instructions and then filed them.  That is the norm. By the way to Crusty Clarke's credit her government entered legislation in the House to make mediation the default in divorce cases except where there is violence in the relationship.

As a retired lawyer I have seen many things including lawyers who work for corporations deliberately prolonging law suits to bankrupt the other side.  However it is my belief that the majority of waste in the court system is caused by people with personality disorder symptoms.  Most disputes are capable of settlement but not ones in which one of the parties is interested in something other than a just resolve.

Quote:

HCPs have predictable patterns of problem behavior. They frequently over-react to situations with all-or-nothing thinking, unmanaged emotions, and extreme behaviors (domestic violence, making false allegations, spreading rumors, abusing children, alienating children, hiding children, hiding money, etc.) If you are a parent facing a possible HCP in a separation or divorce, you may be very worried about what he or she will do: Will they lie and manipulate professionals and the court? Will they take extreme and abusive action toward you as the separation and divorce proceed? Will your child be abused by the other parent or become alienated from you? These are realistic concerns.

 If you are a professional (lawyer, counselor, evaluator, parenting coordinator, mediator, judge), then you may be concerned that other professionals will not really understand the seriousness of one of the parent’s dysfunctional behavior. You may wonder how you can explain what’s going on to other professionals. In high conflict cases, many professionals become focused on one or two events and exaggerate or minimize their significance.

 What parents and professionals often miss is the pattern of HCP behavior, which is so important in making realistic decisions and obtaining effective court orders, if necessary. Fully presenting the patterns of behavior in a case to family law professionals will help the parents (including HCPs) and their children, instead of hurting them further or exposing them to unnecessary risks.

 

Quote:

High Conflict People aren’t just difficult people,  they're the MOST difficult people.

They pick a Target of Blame and assault that person verbally, physically, financially, etc. They promote high conflict divorces, lawsuits, complaints against co-workers, neighbors, friends and family. They sue professionals, gather negative advocates, cost employers lots of time and money. They convince everyone that it's all your fault!   If you're dealing with a situation like this then you've come to the right place to get information, resources and tools to help you.

http://www.highconflictinstitute.com/


JKR
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Joined: Jan 15 2005

Last I checked, lawyers don't make the laws, politicians do. Lawyers are regulated by the laws established by our legislative assemblies.

Good laws create good lawyers, bad laws create shysters.

Wasn't Gandhi a lawyer?

And Mulcair?


bagkitty
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Joined: Aug 27 2008

Actually the "legal profession" are self-regulated. Please check out the section on lawyers (starting on page 61) of this publication on self-regulating professions put out by the Competition Bureau.

Quote:

How the profession is regulated

Provincial and territorial law societies regulate the legal profession in Canada. For example, the Law Society of Manitoba, empowered by the Legal Profession Act, establishes standards for education, professional responsibility and competence, disciplines members and regulates the practice of law in that province. There are 14 law societies in Canada: one for each province (two in Quebec) and territory.

[Emphasis added in bold italics]

Another way of putting it is that our legislative assemblies have abrogated their responsibility to regulate in the best of the citizenry and put the foxes in charge of the chicken coop.

 


Sven
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Joined: Jul 22 2005

NorthReport wrote:

It's getting so it is almost impossible to breathe without a lawyer being involved.

You should blame the lawmakers, not the lawyers, for that. 

That's one of the reasons I like have a Democrat as Governor and the Republicans in control of the legislature here in Minnesota: Very few new laws get passed.  Frankly, if the legislature was in session for three months once every two years, that would be about right. 


JKR
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Joined: Jan 15 2005

Maybe the government should not give any special or formal standing to profesional associations be it for lawyers, doctors, teachers, etc...?

 


bagkitty
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Joined: Aug 27 2008

JKR: There are times I think exactly that. I appreciate that they have the technical knowledge to be the "experts" in their given profession(s), but when someone from outside the profession is forced to turn to the professional governing body to seek remedy for a conflict with a member of the profession (especially since, in several professions, hearings over complaints/conflicts are essentially held in camera) I feel some degree of concern over the fairness, much less the transparency, of the process is warranted.

Consider, if you will, what happens in the preliminary stages of a complaint brought before the Law Society of Alberta (the description is taken from the Society's website, bold italics have been added for emphasis):

 

Quote:

Possible Outcomes

If, after reviewing all relevant information, the Complaints Manager determines that the lawyer has not breached the Code of Conduct, the complaint is dismissed and the complainant will receive a written explanation of that decision along with information on how to appeal the dismissal.

Sometimes, the information provided to the Complaints Manager by the complainant and the lawyer is insufficient to complete the review of the lawyer's conduct. In those cases, the complaint may be formally investigated with the interview of different witnesses and the gathering of additional documents.

Once the investigation has been completed, the Complaints Manager may either dismiss the complaint, in which case the complainant will receive a written explanation, or may submit a report to the Conduct Committee Panel summarizing all of the information that has been gathered with recommendations as to the next steps to be taken in the disciplinary process.

Conduct Committee Panel

The Conduct Committee Panel consists of three lawyers who are members of the Law Society's Conduct Committee. The panel reviews the Complaints Manager's report and all the evidence provided. The panel determines whether or not the complaint should be dismissed. If it is dismissed, a letter with reasons for the dismissal is sent to the complainant and the lawyer.

If the panel determines that the lawyer acted improperly, but doesn't feel a hearing is warranted, the panel has the option of directing a mandatory conduct advisory in which the lawyer meets with a lawyer who is a Board director (Bencher) to discuss the misconduct and ensure the lawyer:

understands that the conduct was inappropriate;
will not repeat the behaviour; and
is apologetic.

If those objectives are achieved, the mandatory conduct advisory is considered successful and the complaint is dismissed. The mandatory conduct advisory is not disclosed to the public.

When a conduct committee panel determines that a breach of the Code of Conduct has occurred and that sufficient information or evidence exists to send the matter forward, the panel will call for a hearing and recommend the charges or ‘citations' that the lawyer will face at the hearing. [...]

Please note that there is no indication in this description if the public (or, by extension, the media) have access to these proceedings, indeed it really doesn't indicate whether or not the complainant(s) themselves have any actual right to witness these "professional" proceedings. Given that the line about "mandatory conduct advisory is not disclosed to the public", I am working under the assumption that there is no right for the public to scrutinize the "self-regulation" of the profession (at least in the case of the legal profession in Alberta). I think it is a fair interpretation to suggest that the profession is permitted to operate as its own little kingdom.

Is this the right time to quote the complete form of the well known adage: "Justice should not only be done, but should manifestly and undoubtedly be seen to be done."?

 

 

 


NorthReport
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Joined: Jul 6 2008

How high a percentage of legislators are lawyers? I'm sure it is at least 10 times higher than any other group. 


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