Aging Gracefully

Recently while sitting in a packed courtroom in Newmarket agonizingly waiting for my brief ‘speak-to’ matter to be called, I began to question one of our statutory traditions and the grace towards our elders that it mandates.

Don’t get me wrong. Since I was a child it has been ingrained upon me to honour and respect my seniors. I’ve crossed my share of streets hand-in-hand with little old ladies and vacated countless seats on sardine-stuffed subway cars but something about watching counsel be called in order of their year of call smacks of anachronism and inefficiency.

Although not applied in most courthouses across the Province, an increasing number of jurisdictions are reverting to reliance on the Barristers Act to bring order from the chaos that is set-date court in criminal cases. The Barristers Act sets out the order of precedence for counsel waiting to have their matters spoken to in courts across Ontario. The Minister of Justice and Attorney General for Canada always jumps to the front of the line followed closely by the Attorney General for Ontario. Next up are lawyers blessed with a Queen’s Counsel designation. Pulling up the rear are the vast majority of lawyers who are given priority based upon their year of call to the bar.

I’m the first to agree that the precious little dignity remaining in our busy set-date courts ought to be jealously guarded and preserved. A gaggle of harried defence counsel jockeying for position like a cloud of buzzing mosquitos doesn’t quite inspire reverence and confidence in the administration of justice. Yet, schoolyard lessons die hard and I strongly favour those courthouses where a return to civilized behaviour has been won by the simple implementation of a printed list. Sign the list when you arrive with your client’s name, and docket details. First-come-first-served. Increasingly however, some courthouses have been invoking a return to the Barristers Act and insisting that counsel be called by their seniority at the bar. FULL DISCLOSURE: As a 2000 call, I fall neatly in the middle of this argument granting me impeccably neutral credentials to discuss the pros and cons of such an approach. While I am rarely the most senior counsel in the room, I rank ahead of many of the wide-eyed bushy-tailed newcomers to the profession.

The Barristers Act unfairly prejudices junior counsel who make the effort to attend court early and organize their practices well. These counsel will often be left sitting for an hour or more as a parade of more senior lawyers lazily breeze into the courtroom at various points throughout the day only to have their cases called ahead of the early riser. The early bird gets the shaft while senior counsel feast on the worms.

The Act can also indirectly inconvenience even senior counsel who have employed articling students to assist in their practices. A primary motivation in hiring a student-at-law is to free up senior lawyers from the black hole of set date court so that they can focus on meeting clients and conducting trials. If a student can expect to sit idle past the morning recess before he or she even has a chance to conduct a brief adjournment, that student’s value to senior counsel is substantially diminished. In an era where many students continue to struggle in the search for articling positions, anything that discourages lawyers from hiring students should be strenuously avoided.

The Barristers Act also harbors some potential for comedy as section 1 grants all current and past Ministers of Justice, Attorneys General, and Solicitors General the right to be called to the bar of Ontario without complying with the requirements of the Law Society Act, its regulations or fee schedules. If your aesthetician happens to get a plum appointment someday, don’t complain when she starts calling herself a lawyer, pays no membership dues and gets called ahead of you in court [since s. 3(1) grants the Minister of Justice precedence over all others]. I also hear the pension is fabulous.

If the granting of precedence by the Act were a mere matter of tradition and respect for one’s elders, I would whole-heartedly support it. The reality however is markedly different. While in smaller jurisdictions it may simply create a pecking order for the dozen or so lawyer who regularly ply their trade in a one-courtroom courthouse, in mega-courthouses around the Province (particularly within the Greater Toronto Area) it can make the practice of law a Kafkaesque nightmare for anyone with less than fifteen years under their belts.

I often hear a defence of the Act that is elegant in its simplicity – “it’s the LAW Prutschi.” Just so. I can’t really argue with that one other than to point out our country’s storied history of laws which we might want to reconsider because they are – to be put it legally – dumb. In Nova Scotia you’re a scofflaw (and have a problem with redundancy) if you water your lawn while it is raining. In Ottawa, it is illegal to consume ice cream on Bank Street on a Sunday (a constitutional challenge on the question of whether one can eat ice cream if it is layered on a Beaver Tail is said to be in the works). In Toronto you can’t drag a dead horse down Yonge Street on a Sunday – this being a particularly egregious prohibition to the city’s vibrant Jewish community who celebrate the Lord’s Day on Saturday (but, in fairness, are more likely to drag their equine carcasses down Bathurst street). The point being, laws (like lawyers) can be stupid and where a law such as the Barristers Act actually serves to muddy the administration of justice, we might want to consider taking our cue from Lady Justice by turning a blind eye to its violation.