Mix of the best
27 August 1996
When asked what he thought of Canada a laconic Texan once replied that he tried not to. Sadly, that attitude exists in the UK too. The Canadian province of Newfoundland was England's first overseas colony, Nova Scotia was Scotland's first, Canada was the first colony to become a self-governing dominion and the country stood by the UK in two World Wars when the US was neutral. And yet most Britons know far less about Canada than they do about the US.
Among lawyers there is a tendency to talk about reform of the English legal profession exclusively in terms of comparisons with the US, ignoring the experience of Canada and the rest of the Commonwealth. Hopefully the Commonwealth Law Conference, being held in Vancouver this week (see box), will stimulate some interest in a legal system which has managed to combine many of the best features of English and American experience.
In Quebec, governed by French civil law, there are two legal professions - avocats and notaries - but in the rest of Canada all lawyers are both barrister and solicitor. However, lawyers who work regularly in the courts tend to describe themselves simply as barristers while lawyers working in commercial, property etc regard themselves as solicitors.
Many 'barristers' are instructed by other lawyers to appear in court, particularly in complex trials, although there are no rules requiring this and Canadian barristers expect to deal directly with clients and interview witnesses. From my observations this does not lower the standard of their advocacy, which is as good as that of English barristers.
This spirit of unity does not always prevail, however, and there is one area where a distinction between solicitors and barristers is made. The qualification requirements for appointment to the judiciary refer to lawyers only as barristers but a lawyer disciplined for misconduct is referred to solely as a solicitor.
Although the structure of the Canadian fused profession is similar to that of the US, Canadian courts are distinctly British in style. Barristers' gowns, wing collars and bands are worn (but not wigs), and opposing lawyers are honoured "my friend". Judges sit under the royal coat of arms, senior judges are "your lordship" and the judges of the Canadian Supreme Court are resplendent in ermine and red. As one Canadian judge commented: "We do not allow OJ Simpson nonsense in Canadian courts."
But the Canadian profession has its problems and they are familiar ones: concern over the number of trainees, cuts in legal aid, a need to speed up court procedures, increased competition and arguments over multi-disciplinary partnerships. Rights of audience, at least, is never going to be an issue.
The Canadian system of government means these problems are being tackled on a provincial rather than a national basis: in British Columbia legal aid for criminal cases seems to be moving towards a public defender system, with firms paid a block sum to provide defence work rather than claiming case-by-case; in Quebec a range of legal aid-type services are provided by salaried lawyers, and this idea seems likely to catch on in other provinces.
National stereotypes can be misleading but they are often revealing. Canada and the US share the same continent and hold similar values but in their history they are worlds apart. American national myth enshrines the Wild West cowboy, six-shooter at his hip, gunfighting at the OK Corral. Canada honours the disciplined, red-coated mountie, bringing peace to the prairies by force of will not gunplay. Canada never experienced a revolution or a "Wild" West and its peaceful history may explain a major difference between the American and Canadian characters.
Unlike the US, the Canadian constitution does not aspire to "life, liberty and the pursuit of happiness" but settles for "peace, order and good government". Canadians do not have the right to hold and bear arms, and weapons are strictly controlled. Consequently, perhaps, Canadian cities are welcoming and relatively crime-free.
Criminal legislation is the responsibility of the federal parliament and is set down in the Canadian Criminal Code, which combines all criminal law and procedure, from treason to drink-driving offences, in a single Act. It is an Act which is simple, coherent and comprehensive, and makes you wonder why the UK seems incapable of producing an equivalent.
Enforcement of the criminal law is a provincial responsibility. The Royal Canadian Mounted Police are technically only the Federal Police of Canada, similar to the American FBI. But in all the provinces except Quebec and Ontario they operate as provincial police on contract to the provincial government and also operate as municipal police on contract to several town councils. Sadly, unlike Due South, they do not patrol in their famous red jackets and stetson, preferring instead a more practical khaki. The red coats are strictly reserved for VIP occasions.
One problem Canada faces is political instability generated by the growing prospect of French-speaking Quebec seceding from the federation. In 1980, 40 per cent of Quebecois voted for secession but by the 1996 referendum this had risen to nearly 50 per cent. In the Ottawa-based federal parliament the Separatist Bloc Quebecois is now the official opposition.
Whatever the future holds for Canada, it is unlikely to be violent - that is not part of the political culture. But the end of the federation would still be an international tragedy.
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