Bencher and professor Constance Backhouse said the recommendation would threaten law schools' social justice curriculum.
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Despite strong objections from the academic community, benchers of the Law Society of Upper Canada (LSUC) have followed 10 other law societies in approving a national standard for law schools awarding the common law degree.
While approving the final report of the Federation of Law Societies’ Task Force on the Canadian Common Law Degree, the benchers also recommended that the federation committee responsible for implementing the report’s recommendations “include appropriate representation from Canadian law schools” and seek approval from them of law societies’ advance approval of the proposed implementation scheme and “compliance policies, procedures or provisions.”
That wasn’t enough for one member of LSUC’s Licensing and Accreditation Task Force. Bencher Constance Backhouse, a professor at the University of Ottawa’s law faculty, who opposed the recommendation and called for a regulatory regime based on a “consensual, consultative” approach.
Summarizing her minority view, the LSUC task force said her position was that the implications of imposing the new regulatory regime were “extremely serious” and would have unintended consequences.
“The unintended result of the new mandatory competencies is that the social justice curriculum will suffer. Elective courses in poverty law, access to justice, feminist legal issues, critical race theory, disability law and others already face difficult battles for student enrolment. These important public interest areas of the curriculum will be further impoverished to make way for the growth in the list of mandatory competencies.”
Asserting that the law schools “have expressed their willingness to move forward as partners in developing this important new framework,” she said the federation’s report “will create totally unnecessary rifts between the profession and the law schools.”
Perhaps ironically, the LSUC task force was headed by former treasurer Vern Krishna, a University of Ottawa law professor as well, who also represented LSUC on the federation task force.
In presenting the report to Convocation, Krishna traced its origins to 1984 when the late Kenneth Jarvis, as LSUC’s secretary, invited the federation to take over from LSUC its responsibility for setting admission standards. “The anomaly of one province discharging the necessary responsibility of co-ordination and control should be ended,” he wrote. “The time appears to be ripe for the Federation of Law Societies to accept that responsibility and to play a central role in the orderly evolution of legal education in Canada.”
Noting that he had personally been involved in dealing with the issue for 26 years, Krishna portrayed the final report as an attempt to give the law schools flexibility while permitting law societies to fulfill their mandates as regulators by ensuring that graduates of the law schools are competent.
In her brief remarks to Convocation, Backhouse called for rejection of the report. However, when the motions to approve the report came to a vote, it carried with only Backhouse and Paul Schabas in opposition.
The federation established its task force in June 2007 with a mandate to review the criteria in place for establishing the approved LL.B/J.D. law degree for the purposes of entrance to law societies’ Bar admission/ licensing programs. The federation task force submitted its final report to Federation Council last October, and the council referred it to the law societies for approval, asking that they consider it by this March. Convocation was told the only law societies besides LSUC that had not yet approved the report were P.E.I. and Nunavut.
The final report came 15 months after the federation task force distributed a controversial consultation report to the law societies for comment and 11 months after LSUC responded.
The Benchers were told the LSUC task force had reviewed the final report and in developing its recommendations to Convocation had considered both how the report differed from the LSUC’s November 2008 submission and a number of letters and articles it had received commenting on the federation task force report.
“This [LSUC] report and recommendations represent the views of all the Task Force members, with the exception of one member whose minority view follows this report.”
Convocation was told the final report’s recommendations “reflect an approach that balances law societies’ regulatory responsibilities with continued respect for the academic freedom so important to law schools and the profession.”
Acknowledging differences between the report’s recommendations and LSUC’s November 2008 submission, the LSUC task force said it had discussed them “and has concluded that any such differences are best addressed through the implementation process.”
In its November 2008 submission, LSUC supported requiring law school graduates who seek to enter Bar admission programs or licensing processes to have acquired certain “foundational competencies” in law school.
“The final report builds on this competencies approach and recommends that law societies in common law jurisdictions establish a uniform national requirement for entry to their bar admission programs/licensing processes ‘to be expressed in terms of competencies in basic skills, awareness of appropriate ethical values and core legal knowledge that law students can reasonably be expected to have acquired during the academic component of their education.”
Benchers were told the final report went on to set out the basis of an “approved law degree” for the purposes of entry into bar admission/licensing processes, outlining the qualifying academic program and the necessary learning resources that must be present. “This approach is reasonable and balanced and should be approved as the national requirement.”
The Benchers were also told the federation task force “has accurately expressed why law societies must establish a national requirement for entry to their bar admission programs/licensing processes.
“Greater government scrutiny of regulators across Canada has resulted in increasing demand for transparency, fairness, objectivity and consistency in regulatory decision making. The passage of fair access to professions legislation in Ontario, Manitoba and Nova Scotia, the recent amendments to the Agreement on Internal Trade guaranteeing full national labour mobility and the 2009 agreement of the federal government and provincial and territorial premiers to develop a pan-Canadian framework for the recognition of foreign qualifications are clear examples of this governmental scrutiny and priorities.
“Equally importantly, law societies across the country share the same values and responsibilities to regulate in the public interest. Increasingly they are addressing their responsibilities through national approaches. The Federation Task Force’s recommendations reflect this. Its recommendations will not only enhance the approach to entry to bar admission programs/licensing processes in all common law jurisdictions, but will apply as well to the accreditation process for those with international law degrees and will guide schools seeking to establish new law faculties.”
As for criticism of the final report from the Council of Canadian Law Deans and deans of all six Ontario law schools, Benchers were told that despite its concentration on the regulatory perspective, “the final report is replete with references to the importance of ensuring a regulatory approach that respects the role of flexibility and innovation in law school curricula, does not overly interfere with law schools’ ability to design their curricula to meet their institutions’ mandates, and recognizes that law schools are only one part of the legal educational process.”