The Legal Profession in Canada PDF

THE LEGAL PROFESSION IN CANADA BY OXANA PIMENOVA 1. DEVELOPMENT OF THE LEGAL PROFESSION How did the legal profession evolve over time? The legal profession in Canada has its roots in British common law tradition, introduced during the colonial era. Early lawyers were primarily trained through a...

THE LEGAL PROFESSION IN CANADA BY OXANA PIMENOVA 1. DEVELOPMENT OF THE LEGAL PROFESSION How did the legal profession evolve over time? The legal profession in Canada has its roots in British common law tradition, introduced during the colonial era. Early lawyers were primarily trained through apprenticeship, similar to the English system. Over time, formal legal education emerged, leading to the establishment of law schools in Canada (Osgoode Hall Law School in 1889). The profession has also experienced significant shifts in response to social changes, like the rise of women in law, the inclusion of Indigenous legal traditions, and the increasing complexity of legal issues. The Truth and Reconciliation Commission's Calls to Action emphasized the importance of integrating Indigenous laws and recognizing their role in the legal system. The University of Victoria's joint degree program in Canadian Common Law (JD) and Indigenous Legal Orders (JID) is a notable example of this integration. 2. DEVELOPMENT OF THE LEGAL PROFESSION What factors shaped the development of the legal profession in Canada? Colonial Legacy Federalism Immigration 3. COLONIAL LEGACY British Influence: The structure and principles of Canada’s legal system are rooted in British common law traditions introduced during colonial times. This influence is evident in the adversarial system, the role of the judiciary, and many foundational legal principles. Legal Institutions: Canadian legal institutions, such as the parliamentary system, the use of precedents, and the common law tradition (except in Quebec, which follows civil law for private matters), mirror those of Britain. Canada's foundational legal documents, like the Constitution Act, reflect these origins. Example: Common law practices, jury trials, and the legal profession's self- regulation through law societies are directly inherited from British customs. 4. FEDERALISM Division of Powers: The Constitution Act, 1867, also known as the British North America Act, established Canada as a federation, dividing powers between federal and provincial governments. This has created a complex legal environment where both levels have jurisdiction over different areas, such as criminal law (federal) and property and civil rights (provincial). Impact on Legal Practice: Lawyers in Canada must navigate both federal and provincial laws, leading to regional variations in legal practice and specialization. Regulatory bodies, such as law societies, operate at the provincial level, impacting how lawyers are licensed and practice law in different provinces. Example: Quebec's unique legal system, based on civil law for areas of private law, contrasts with the common law systems in other provinces, necessitating bilingualism and specific legal expertise. 5. IMMIGRATION Federal Framework: The IRPA is the primary federal legislation that governs immigration in Canada. It outlines the procedures for entry into Canada, the criteria for permanent and temporary residence, and the refugee protection process. Provincial and Regional Considerations: Despite federal control, provinces can nominate individuals for permanent residency through PNPs, catering to their specific economic needs and labor shortages. Quebec manages its own immigration programs under the Canada-Quebec Accord, giving the province significant control over selecting immigrants who intend to settle there. Evolving Immigration Practice: Many law firms and non-profits offer pro bono services to assist immigrants and refugees, especially those who may not afford legal representation. 6. DEVELOPMENT OF THE LEGAL PROFESSION What are some of the ongoing challenges facing the legal profession today? Access to Justice: High cost of legal services and limited availability of legal aid. Technological Disruption: Automation and artificial intelligence are impacting some legal tasks, leading to discussions about the future of the legal profession. AI-driven tools like ROSS Intelligence have been used to streamline legal research, allowing lawyers to focus on more complex analytical tasks. However, they also raise questions about the future role of junior lawyers and paralegals. Ex.: Legal Innovation Zone at Ryerson University for legal tech entrepreneurs! Changing Public Perception: Public trust in the legal profession is facing challenges due to issues like high fees and missteps by legal professionals. Law societies enforce codes of conduct and disciplinary measures against unethical behavior, and initiatives like mandatory continuing professional development to ensure lawyers remain competent and ethical. 7. PRACTITIONER CLASSES What are the roles and responsibilities of different legal professionals in Canada? Lawyers: Advocate for clients, provide legal advice, draft legal documents, and represent clients in court. Judges: Interpret the law, preside over court proceedings, and make rulings on legal matters. Paralegals: Provide support to lawyers, conduct legal research, prepare legal documents, and manage client files (under the supervision of a lawyer). Notaries Public: Verify and authenticate documents, perform specific legal acts, and provide legal advice within their limitations.  8. DUAL ROLE OF LAWYERS Unified Bar: In Canada, there is no formal division between solicitors and barristers as there is in jurisdictions like England and Wales. This means that Canadian lawyers are licensed to perform a full range of legal services, from providing legal advice to representing clients in court.. Specialization: Canadian lawyers have the opportunity to specialize in various fields, such as criminal law, family law, corporate law, immigration law, and environmental law. This specialization allows lawyers to focus their skills and expertise on particular areas of interest or demand. Career Paths: Lawyers in Canada can work across different environments including private practice, where they might join a law firm or establish their own; government, where they serve as prosecutors, defense attorneys, or in policymaking roles; or non-profit organizations, where they may focus on human rights, legal aid, and advocacy. 9. JUDGES AND OTHER ADJUDICATORS Judges are appointed senior lawyers with extensive experience. While sitting on the bench, judges are no longer practicing lawyers. Their role shifts from advocacy to impartial adjudication, focusing on interpreting and applying the law, managing court proceedings, and making legal decisions. Appointment processes vary depending on the court and jurisdiction. Justices of the Peace (JPs) play an important role in rural communities. Administrative tribunals handle various disputes and may employ legal professionals. Alternative dispute resolution (ADR) is increasingly used for conflict resolution. 10. PARALEGALS Paralegals can work in a variety of legal settings similar to lawyers, including law firms, corporate legal departments, government agencies, and non-profits. They often provide critical support in legal research, document preparation, and case management. Unlike in many provinces, paralegals in Ontario are regulated by the Law Society of Ontario. They must meet specific educational requirements, obtain a license, and adhere to professional conduct standards. In provinces outside Ontario, paralegals are typically not regulated in the same manner and often work under the supervision of lawyers, performing delegated tasks rather than providing standalone services. 11. PARALEGALS Generally, paralegals cannot engage in activities reserved for licensed lawyers, which typically include: Giving Legal Advice: Paralegals are restricted from providing legal advice directly to clients unless specifically licensed to do so (such as in Ontario within their regulated scope). Providing Undertakings: They cannot offer official commitments or undertakings to third parties, which are legally binding promises generally reserved for lawyers. Representation: Outside Ontario, paralegals are usually barred from representing clients in most courts and tribunals, although in Ontario, they can represent clients in small claims court, traffic court, and before certain tribunals. Independent Practice: In Ontario, licensed paralegals can independently represent clients in matters like landlord and tenant disputes, minor criminal offenses under certain provincial statutes, and matters within small claims court. This distinct role underscores the importance of their regulated licensing structure. 12. EDUCATION REQUIREMENTS COMMON LAW PROVINCES CIVIC LAW PROVINCES Undergraduate Degree: A four-year undergraduate Undergraduate Degree: A four-year undergraduate degree is degree is typically required. typically required. Law School: Completion of a three-year Juris Doctor Law School: Completion of a three-year Bachelor of Laws (LL.B.) (JD) degree from a Canadian law school accredited by degree from a Quebec law school accredited by the Barreau du the Federation of Law Societies of Canada. Québec. Bar Exam: Successful completion of a bar exam administered by Articled Clerkship: A one-year articling period under the Barreau du Québec. the supervision of a practicing lawyer or an alternative program, such as the Law Practice Program. Clerkship: A required clerkship period working alongside a practicing lawyer. Bar Exam: Successful completion of a national bar exam, administered by the Federation of Law Societies French Language Proficiency: Proficiency in the French language is of Canada. typically required in Quebec. 13. KEY DIFFERENCES Law Degrees: Common law provinces use the Juris Doctor (JD) degree, while Quebec's civil law schools typically offer the Bachelor of Laws (LL.B.) degree, reflecting the distinct nature of its civil law system based on the Napoleonic Code. Articling/LPP/Clerkship: Common law provinces typically require a one-year articling period, while civil law provinces have a required clerkship period. National Bar Exam: Common law provinces have a national bar exam, while Quebec has its own bar exam. French Language: Proficiency in French is a mandatory requirement in Quebec, but not in common law provinces. 14. ARTICLING (COMMON LAW PROVINCES) V. CLERKSHIP (CIVIL LAW PROVINCES - QUEBEC) Length and Structure: Articling in common law provinces is typically a one-year program, while clerkship in Quebec can vary in length and structure. Focus: Articling emphasizes practical skills, while clerkship in Quebec places a greater emphasis on theoretical legal knowledge and understanding of the civil law system. Regulation: Articling is strictly regulated in common law provinces, while the clerkship program in Quebec is more flexible. 15. MULTIPLE CHOICE QUESTIONS 16. QUESTION 1 In Roman times, the emerging class of legal specialists who had a recognized expertise in the law were called: a. jurisprudents. b. advocates. c. attorneys. d. lawyers. 17. ANSWER A “JURISPRUDENTS” Jurisprudence is a term that refers to the theory and philosophy of law. In ancient Rome, jurisprudents were legal experts who studied and interpreted the law, developing legal principles and doctrines. They were highly respected for their knowledge and expertise, often consulted by both individuals and the government. Advocates are legal professionals who represent clients in court, arguing their case. While advocates existed in Roman times, they weren't the primary specialists in the law. Attorneys and lawyers are modern terms, not used in ancient Rome. 18. QUESTION 2 Your friend’s practice is centred on arguing cases in Small Claims Court. This is known as: a. solicitor work. b. barrister work. c. attorney work. d. canonist work. 19. ANSWER B “BARRISTER WORK” Barristers are legal professionals who specialize in courtroom advocacy. They are primarily known for their skills in arguing cases before judges, often focusing on complex legal matters. Small Claims Court, while less formal than higher courts, still involves legal arguments and presentations. Solicitors are legal professionals who primarily handle legal advice and documentation, such as drafting contracts and wills. While they may refer clients to barristers for courtroom representation, they typically don't handle courtroom arguments themselves. Attorneys is a general term that encompasses both solicitors and barristers in some jurisdictions. Canonists are legal experts specializing in canon law, the law of the Catholic Church. They have a distinct area of legal expertise and do not typically handle general courtroom cases. 20. QUESTION 3 _________ perform a variety of functions related to the administration of justice, including the adjudication of minor criminal or quasi-criminal matters. a. Justices of the peace b. Arbitrators c. Mediators d. Adjudicators 21. ANSWER A “JUSTICES OF THE PEACE” Justices of the peace are judicial officers who have limited jurisdiction. Their primary role involves hearing and deciding on minor criminal offenses, traffic violations, and other civil matters. They are often the first point of contact for legal issues in many jurisdictions. Arbitrators are neutral third parties who are involved in resolving disputes outside of formal court proceedings. They make binding decisions. Mediators also help parties resolve disputes but do not make decisions. They facilitate communication and help parties reach a mutually agreeable solution. Adjudicators is a general term for someone who makes a judgment or decision. While justices of the peace are adjudicators, the term is too broad to be the specific answer. 22. QUESTION 4 Which of the following is true about adjudicators appointed to administrative tribunals? a. Adjudicators may not be lawyers due to potential conflicts of interest. b. Adjudicators are required to be lawyers under the Constitution Act, 1867. c. Adjudicators are often lawyers, although in some instances they might not be. d. Adjudicators must be former judges. 23. ANSWER C “ADJUDICATORS ARE OFTEN LAWYERS, ALTHOUGH IN SOME INSTANCES THEY MIGHT NOT BE” Adjudicators are individuals appointed to administrative tribunals to make decisions on disputes in specialized areas such as labor relations, human rights, immigration, and other regulatory fields. Not Always Lawyers: While adjudicators are often lawyers due to their legal expertise and skills in analyzing and applying the law, it's not a universal requirement. Administrative tribunals may appoint adjudicators based on their expertise in specific areas relevant to the tribunal's focus, such as technical, industry-specific, or academic knowledge. Varied Requirements: The qualifications for adjudicators can vary between different tribunals and jurisdictions. Some tribunals may require legal expertise, while others may prioritize other forms of professional or subject matter expertise. 24. QUESTION 5 The lawyers and paralegals who are elected to the board of the Law Society of Ontario, and who are responsible for administering and governing its work, are known as: a. barristers. b. attorneys. c. solicitors. d. benchers. 25. ANSWER D “BENCHERS” Benchers are elected members of the board of the Law Society of Ontario (LSO), which is responsible for regulating the legal profession in Ontario, including both lawyers and paralegals. They govern the LSO’s operations and make policy decisions affecting the legal community and the public interest. Composition: The board is comprised of lawyer benchers and paralegal benchers, along with some lay (non-lawyer) members appointed by the provincial government. Together, they steward the governance of legal practices to ensure public protection through setting professional standards, codes of conduct, and handling disciplinary actions. 26. QUESTION 6 You work in Ontario under the direction and supervision of a lawyer. While you attended a law-related college program, you are not licenced by the Law Society of Ontario but provide the lawyer with assistance on basic administrative and procedural matters. You are most likely working as a: a. lawyer. b. paralegal. c. law clerk. d. bencher. 27. ANSWER C “LAW CLERK” Unlicensed Position: Law clerks typically work under the supervision of lawyers and perform a range of tasks to assist with the administrative and procedural aspects of legal work. They are not licensed by the Law Society of Ontario, which is required for lawyers and some paralegals. The duties of a law clerk may include organizing files, conducting basic legal research, preparing documentation, and managing schedules or correspondence. They provide essential support to lawyers, ensuring that matters are handled efficiently. Many law clerks have completed law-related college programs that equip them with foundational skills in legal procedures and documentation, which they apply in various legal settings such as law firms or corporate legal departments. 28. QUESTION 7 The legal services provided by these non-lawyers typically include witnessing affidavits, assisting with passport documentations, and preparing powers of attorney: a. notaries. b. compliance officers. c. law librarians. d. marriage commissioners. 29. ANSWER A “NOTARIES” Notaries are authorized to provide specific types of legal services that don't require the representation or advice of a lawyer. The services that notaries commonly provide include: Witnessing Affidavits and Statutory Declarations: Notaries verify the identity of the signatory and witness their signature on these legal documents to validate them for use in various legal and administrative processes. Assisting with Passport Documentation: Notaries may certify copies of documents and verify identities as part of the requirements for passport applications. Preparing and Attesting Powers of Attorney: While notaries can prepare and certify powers of attorney, it’s important to note that any legal advice associated would still need to be provided by a licensed lawyer.