Contributed by: Jeffrey Wang
Canadian society is becoming more polarised; this is an undeniable reality. The Canadian Election Study thermometer scores show that during the 2019 Federal elections, Canadian voters were the most polarised since records began in 1988. For those less statistically inclined, there is that unshakable and all-pervading feeling that we agreed more in the past, and that the issues were not quite as divisive in yesteryear. This polarisation has political ramifications, but it also represents a serious ramification to the principle of access to justice for the legal profession.
Access to justice is a serious issues facing the Canadian judicial system. In 2011, Chief Justice Beverley McLachlin remarked that “access to justice is the greatest challenge facing the Canadian justice system.” Traditionally, proponents of greater access to justice have focused on reducing court and legal costs and waiting times. Yet, greater rancour in political and social debates has also created a new risk—the politically or socially unpopular risk underrepresentation.
It was once taken for granted that the cause of the client and the counsel representing that client were distinct things. The defence counsel for an alleged rapist was not a supporter of rape; just as counsel for an alleged murderer was not a proponent of murder. Likewise, the civil litigator who argued for a mining permit that would impact an Indigenous community need not necessarily believe that the laws enabling said permit were just. Instead, an advocate provides counsel not out of personal conviction in the correctness of their client's cause, but rather because they and their client believe that they are learned in that area of law and can best represent their client's case. In short, the lawyer is an advocate but not a partisan. Consider how, despite the nature of their clients, Sergeant Alexander Martin Sullivan and Clarence Seward Darrow were not tainted by the odious acts of their clients, Roger Casement and Leopold and Loeb.
Yet today, beyond considering their competency, and their client’s ability to provide remuneration, lawyers must increasingly consider the potential reputational risk of taking on a client. A lawyer could be driven by their morality in refusing a client, or they could feel that some clients are simply not worth the risks. These positions are not entirely unreasonable, given the high personal costs that attorneys face for defending unpopular clients. Marie Henein, a famed criminal defender, saw multiple universities cancel speaking engagements after defending Jian Ghomeshi.
However, for those seeking access to justice, it matters little why an attorney declines representation. What matters to them is that they are incapable of receiving the best possible representation.
Consider the case of Ibrahim Ali, who was charged with murdering Marrisa Shen in December 2023. His counsel, Kevin McCullough, was threatened with ‘having his teeth knocked out’ alongside dozens of other threatening messages. The threats became so severe that McCullough told reporters, "I am fearful for my safety, the safety of my co-counsel, Mr. Lynskey, and the safety of Mr. Ali at all court appearances.” An acquaintance in the legal profession in Vancouver shared that, in their opinion, it was well-known that any Chinese lawyer who might have taken the case would have faced worse, as the victim was Chinese.
This consideration also applies to civil matters. The 2020 #DropExxon Student Pledge, where over 600 law students threatened to boycott working at Paul, Weiss, Rifkind, Wharton & Garrison LLP, unless the firm dropped ExxonMobil as their client, as part of an “Environmental, Social, and Governance’s drive,” could signal similar developments in Canada.
As society becomes more polarised, and certain acts take on particular importance to one faction or another, advocates who defend these actions are placed at risk. Indigenous laws are developing in Canada; more nations are making claims to Indigenous titles, leading to clashes with the Crown over access to natural resources and land. LGBT and religious groups are clashing over issues of family and personal dignity. Murderers, such as the “Toronto Thot Slayer,” are finding new and reprehensible ideologies to justify their atrocity. These are all Canadian issues which have divided society. Yet, despite the rightness or wrongness of one party or another, access to justice demands that they have a competent attorney who will defend them to the high standard of zealous advocacy.
This right to zealous advocacy is at risk. Both reputational, and life and limb, considerations are seeping into the legal profession. At a recent moot trial event at law school, regarding the Crown’s duty to consult re Indigenous nations, participants described their parties not as “the Indigenous nation” and “the Crown,” but rather as “the good side” and “the bad side.” Some participants openly lamented that they had to represent “the bad side.” It is frightening that, even in a situation where there are no true hazards to reputation or safety, future lawyers imprint their own morality onto a case and show disdain towards a party due to their alleged position of immorality. This early internalisation of “some clients are good, and some clients are bad” is a sign that some socially and politically unpopular groups are at risk of lacking adequate representation.
In casual conversations with my peers, I found it remarkable that some would find it morally impossible to defend a company that defrauds the elderly or a murderer who kills trans people out of hatred. In a sense, this is morally righteous conduct. An ordinary person who assists a terrorist is a terrorist, and one who assists a scam centre is an accomplice. Yet, when these people are judged under the law, representing them is the sacred duty of the attorney. To refuse them zealous advocacy is to deny them access to justice.
What is to be done? How can we protect the right of access to justice? In a time where politics seems rancorous, and debate toxic, it is helpful to look at history to see how others handled trying times.
In 1820, British society was as divided as ours today. Public anger, which had built up due to the reign of the mentally feeble George III, and the extravagances of then prince-regent George IV, had reached boiling points. Society split along antagonistic lines, cumulating in the “trial” of Queen Caroline for adultery. The masses, who adored Caroline and hated George, had become progressively violent, threatening revolution and insurrection. It was in this context that Caroline’s counsel, Henry Brougham, delivered the address now seminal to legal ethics:
[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty, he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.
The passage of time has served to obscure the truly dire circumstances of the time. Law students read this quote and think it nothing more than idle musings. Yet when Brougham delivered this address, it was to justify his involvement in the “right of recrimination,” where the defendant in an adultery trial could present evidence of the other party's infidelity. This action would have exposed George’s earlier marriage to Maria Fitzherbert, a Catholic, which would have disqualified him from the throne under the Act of Settlement of 1701, provoking a constitutional crisis.
When Brougham remarked that an attorney must discharge his duty at all hazards, he said so, knowing how dangerous his actions had been; in essence, he was threatening to overthrow the royal authority of the British Crown. Brougham was aware, as a lawyer, that being hung, drawn, and quartered was still a legal punishment for traitors and enemies of the Crown. He was also cognizant that invoking this right would anger much of British high society and could doom his social and legal career.
The memories of the first English civil war between Charles and the parliamentarians likely also hung in the back of Brougham’s mind. Then, as in 1820, an unpopular king, famed for his extravagances, was established against his citizenry. This situation led to nine years of civil war, which saw hundreds of thousands killed and the monarchy overthrown.
When Brougham remarked that an attorney must discharge his duty, though it should be his unhappy fate to involve his country in confusion, he must have realised how close he was to driving his country to civil war. On June 7th, 1820, as the King’s counsellors debated their case against Queen Caroline, a radical printer, Mr William Benbow, posted flyers calling on the people to “illuminate for the queen this night.” That day, before being broken up by royalist soldiers, a mob formed, blocking off several streets and pelting passers-by with mud and insults if they would not support Queen Caroline. Regiments of soldiers had also begun taking sides, with some cavalrymen vowing to "fight up to their knees in blood for their queen."
Perhaps ironically, Brougham did not want to defend Queen Caroline or invoke the right of recrimination. Indeed, before the trial, Brougham remarked, "I [represent Caroline] involuntarily and after having done all I could to avoid it.” He also strongly advocated settling the matter privately and without public notice. Brougham was also personally convinced that Caroline was likely guilty of the crime. In all his dealings, it would appear that Brougham was not inclined to personal fame or to overthrow the government through Caroline. Yet, when it came to trial, Brougham was willing to forgo his convictions and sense of patriotism to defend Caroline zealously.
On the one hand, this historical example teaches us that an important part of preventing social polarisation from limiting some group’s access to justice is that lawyers must be willing to take personal risks. To risk the ire of society, the damage to their reputation, and their own life and limb to represent an unpopular client is personal heroism.
Yet heroism alone is insufficient. Polarisation is a problem that requires institutional solutions. Indeed, one major legal development resulting from Brougham’s representations of Queen Caroline was the “Cab Rank Rule” of legal ethics. As the Bar Council of the United Kingdom puts it, the rule is that “ barristers cannot discriminate between clients, and that they must take on any case provided that it is within their competence and they are available and appropriately remunerated.” Under Canadian legal ethical guidelines, there are no such requirements, and attorneys are free to decline a retainer because they disagree with a client’s cause or conduct. This is a fundamentally flawed position, with the consequence of reduced access to justice.
The Cab Rank Rule can do much to protect access to justice. An attorney must take on a client, even if they disagree with their case, or disapprove of them, if the subject matter is within their competency. It would formalise the ancient principles of the legal system, stemming from the days when attorneys were known as “Sergeants [deriving from middle Latin for servant] at law,” that an advocate's role is not to judge but to serve and that the right to judge is for judges and juries alone.
The Cab Rank Rule would also protect attorneys who willingly represent unpopular clients. Today, a layperson could point to an attorney who represents an incel murderer or polluting oil company and say: “You are a reprehensible person for representing a reprehensible party.” The Cab Rank Rule would allow the entire legal profession to respond: “This attorney is representing them because it is their ethical duty to do so.” This response would shield attorneys from public blame for carrying out a public good and necessity.
As society becomes more polarised and rancorous, looking to the past may provide succour. It shows us the great personal risks that are involved in practicing law. It also provides a solution, the Cab Rank Rule, to ensure that the legal profession does not face criticism for doing its job—the duty of being an advocate, not judge, jury, and executioner.
