Criminal Law

More lawyers needed in political office: Dale

By Staff

More lawyers are needed in political office so the government can draw on their legal expertise and “weigh in on the legality” of laws, Toronto criminal and civil litigator Laurelly Dale writes in The Lawyer’s Daily.

Since "the role of the cabinet is to set the policies, laws and priorities for Canada,” extensive consultation with lawyers is "crucial," she says.

Dale, principal of Dale Law Professional Corporation, says that while appointing people from all professional backgrounds and walks of life to cabinet brings unique perspectives, lawyers, in particular, can help “at the front end” in drafting legislation.

“The government seems to be relying less and less on lawyers in drafting bills,” she says. “This is apparent in Bills C-75 and 51. Are these recent half-baked bills the government’s way of saying that they are more concerned with winning votes than passing laws that can survive Supreme Court of Canada (SCC) scrutiny? Apparently so."

Dale notes the decision to "uphold, strike down or read down a law" is done using the Oakes test from the Supreme Court of Canada decision and s. 52 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11.

She points to how, at the time she wrote the article, only eight of the 30 federal cabinet ministers have law degrees.

“The official MPP election results for Ontario are not yet posted; however, it is known that none of the provincial party leaders has a law degree,” she says. “According to the Ontario Bar Association, the number of lawyers in the legislature continues to decline.”

This trend is not isolated to Canada, Dale says.

“In a study conducted by professors at the law schools of Yale and Harvard, researchers found that the percentage of lawyers in the United States Congress has fallen drastically over the years with nearly 80 per cent being lawyers in the mid-19th century, to less than 60 per cent in the 1960s and less than 40 per cent in 2015,” she says.

“Compare that to 1890 when one out of every 265 lawyers were members of Congress and now the ratio is one in 6,000.”

Of the eight federal Canadian cabinet ministers with law degrees, not one was a criminal defence counsel before entering politics, Dale says.

“The deprivation of liberty facing those in the criminal justice system is unparalleled,” she says. “Sections 7, 15 and 24 of the Charter were enshrined to protect an accused from the power of the state.

“Had the Charter been drafted today would we have the same supreme protections for those accused of crimes?" Dale asks. "It causes me stress thinking about that answer. Lawyers, particularly defence, are needed to ensure that these bills conform to the standards demanded by our Constitution.”

Dale says a poignant example is found in Bill C-51.

“In support of the legislation, Justice Minister Jody Wilson-Raybould testified that trial fairness will be achieved by virtue of her meetings with victims’ advocacy groups,” she says.

“How can victims’ advocacy groups provide meaningful input on the issue of trial fairness for the accused facing sexual assault charges? The very thought is perplexing."

"It is not surprising that key stakeholders such as the Criminal Lawyers’ Association have not been consulted at the drafting phase. Further, the proposed introduction of Charter statements in Bill C-51 is an empty gesture,” she says.

Dale says it’s important for more criminal lawyers to become involved in law-making.

“Lack of involvement at the front end will necessitate judicial invention to read down or declare these offensive laws to be of no force and effect,” she says. “We are seeing this now with the remnants of Harper’s tough-on-crime laws from 2012. It has taken six years to clean up many mandatory minimum sentences. The tough-on-crime laws were ill-advised. Many still exist.

“It will likely be decades by the time Bills C-75 and 51 reach the SCC. Our system of checks and balances relies on our supreme law," Dale says. "Adding more lawyers to the front end may be the only way to avoid waiting years to have sound input on the legality of these laws and stop the government from passing the buck to the next generation.”

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