For many lawyers, December is a month filled with anticipation as most of the provinces announce coveted Queen’s Counsel (QC) appointments prior to Christmas. For federal government lawyers, they waited for an announcement that never came.
In 2013, the Harper government revived the federal QC after a two-decade hiatus. In 2015, the new Trudeau government appears to have quietly abandoned this practice. Or it may simply not have been a priority for a busy new government. Whatever the explanation, if the Trudeau government wants to recognize the value of public service, it should continue the practice of awarding QCs to federal lawyers.
Historically, Queen’s Counsel (or King’s Counsel when the reigning monarch is male) have been awarded in the United Kingdom and some Commonwealth countries to senior members of the bar. In Canada, both the federal government and the provinces have the constitutional authority to award QCs. Perhaps not surprisingly, this issue was decided in 1897 by the Judicial Committee of the Privy Council when the federal government challenged upstart Ontario’s power to award QCs. It is so Canadian to have a Privy Council division of powers decision on this issue.
Over the years, there were highs and lows to the Canadian QC. One of the highs was the 1934 appointment of Helen Alice Kinnear as the first female King’s Counsel in the British Empire. The list of QCs and KCs includes many past greats of the Canadian legal profession: John Robinette, Newton Rowell, John Diefenbaker, Louis St. Laurent, Lincoln Alexander and Bora Laskin. I enjoy the idea that Bora Laskin likely received his QC in 1956 at least partially on the strength on his Constitutional Law casebook.[i] Of course, many worthy lawyers never received QCs. And others of questionable merit received their designation more on the basis of service to the party in power than service to the profession. Because of political patronage, some provinces overhauled the process of appointing QCs and others (Manitoba, Ontario and Quebec) abandoned it altogether. The federal government fell into this latter category, abandoning the process altogether in 1993.
The Government of Canada revived the QC in 2013 but decided – rightly in my view – to restrict the award to lawyers who are literally “the Queen’s Counsel”, i.e. federal government lawyers. Minister of Justice Peter MacKay revived the practice in December 2013 on the occasion of the anniversary of the Statute of Westminster and the end of Queen Elizabeth’s Diamond Anniversary. In December 2013, Mackay awarded QCs to Simon Fothergill, Deputy Secretary to the Cabinet (Legislation and House Planning, and Machinery of Government) and Counsel, Privy Council Office; Colonel P.K. Gleeson, Deputy Judge Advocate General Operations, Military Justice and Administrative Law, Department of National Defence; Claude Joyal, Senior General Counsel, (Quebec Regional Office), Department of Justice; Urszula Kaczmarczyk, Senior General Counsel, Ontario Regional Office, Department of Justice; Sandra Phillips, Associate Assistant Deputy Attorney General for Tax Assessments; Donald K. Piragoff, Senior Assistant Deputy Minister, Department of Justice; Brian J. Saunders, Director of the Public Prosecution Service of Canada. In December 2014, seven federal lawyers were awarded the Q.C. designation: Robert Frater, Senior General Counsel with the Office of the Assistant Deputy Attorney General of Canada; Colonel Vihar Joshi, Deputy Judge Advocate General in the Canadian Armed Forces; Guy Laurin, Senior General Counsel, Legislative Services with the Department of Justice; Liliana Pecorilli-Longo, Senior General Counsel with the Department of Justice’s Legal Services for the RCMP; Croft Michaelson, Senior General Counsel, Ontario Regional Office of the Public Prosecution Service of Canada; and William Pentney, Deputy Attorney General of Canada and Deputy Minister of Justice of Canada.
I am privileged to know several of these lawyers and they rank amongst the best legal minds and talents in the country. However, you won’t find their names listed in any directories of top lawyers in their field. Neither will you find a single government lawyer listed among Lexpert’s Rising Stars. Government lawyers are the Rodney Dangerfield of the legal profession: they get no respect. However, as I have written elsewhere, government lawyers are important and underappreciated members of the legal profession and of our justice system.
There was much to criticize in the Harper government’s justice policy and in the job that Peter MacKay did as Attorney General and Minister of Justice of Canada. Prime Minister Harper and the PMO often sidelined the professional legal advisers in the Department of Justice. Minister of Justice Peter Mackay proved all too often unable or unwilling to stand up for the Constitution and the rule of law. However, these are not reasons to abandon the public recognition of government lawyers that begun under Tory stewardship. Ultimately, awarding federal QCs to deserving federal government lawyers is in the interests of the public service, the Department of Justice, the legal profession and of the government of the day.
[i] Philip Girard, Bora Laskin: Bringing Law to Life (Toronto: Osgoode Society for Canadian Legal History, 2005) 180.