Canada’s Next Top Judge: Solicitors Need Not Apply

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Most of Canada’s legal system is rooted in the tradition of the English common law and equity law. In England there is a distinct difference between barristers and solicitors. A distinction whose remnants remain in Canada to this very day.

In England a barrister “is a member of one of the Inns of Courtand who has the privilege of pleading in the higher courts,” whereas a solicitor “advises clients on matters of law, draws up legal documents, prepares cases for barristers, etc, and who may represent clients in certain courts” (Dictionary.com).

In the End of the Charter Revolution, Peter McCormick writes that originally Supreme Court judges were patronage appointments, rewarding political loyalties. However, Prime Minister Trudeau in the 1970s transformed the accepted profile of a Supreme Court appointee. “What was favoured within a candidate’s credentials was not partisan political service or connections but public service…not limited trial judge experience, or none at all but appellate experience, and usually for a fair period; not a “lawyer’s lawyer” active in the trenches but an academic lawyer, who had spent at least some time in the university faculty of law.” Trudeau’s appointed court was described as one of the most learned and scholarly groups of judges ever appointed to the Supreme Court.

Trudeau’s transformation established a pattern that subsequent prime ministers followed to this very day: “appellate experience, trial experience, public service experience, and law school teaching.”

This pattern leaves out lawyers that perform only solicitor work. Trial judges and appellate judges need to be diverse to push the law forward. How can we properly advance the law if we automatically disqualify half of the practicing profession from judgeship?

Diversity in the court system injects the common law with new ideas. As stated in Carter v Canada, “stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations:  (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”.

Solicitors should be considered for judicial appointments. They would bring a unique perspective to the bench, including the ability to recognize when stare decisis is arbitrarily condemning the law to stasis in matters of business based on their experience in the trenches.

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