The decision by British Columbia to approve the creation of a new law school - the first in Canada in 35 years - at Thompson Rivers University in Kamloops is a small, but significant, step in the fight for access to justice.
As increasing numbers of litigants are unable to afford legal counsel and an aging population is drying up legal services in smaller communities, we need to turn our attention to constraints on the supply of lawyers.
The price of legal services is essentially a function of the demand for services and the supply of persons qualified and competent to render them.
The demand for legal services escalates as governments and regulators get bigger and enact volumes of legislation to cope with complex problems. Governments rarely simplify laws; more frequently, they complicate them.
Complying with the enlarging body of law and regulation increases the demand for competent lawyers in civil, quasi-criminal, criminal, regulatory, and transactional proceedings. We cannot expect much relief on the demand side.
The supply side of legal services is within our control, but regulators, educators, and provincial ministries function in separate silos to constrain the number of lawyers.
Law societies - essentially the modern version of medieval guilds - must govern in the public interest. The role of the regulator is to ensure the competence of lawyers and regulate their conduct within the parameters of the law.
However, law societies effectively control all aspects of the supply chain of potential lawyers: the number of law schools, academic requirements of domestic and foreign law degrees, articling, evaluation of foreign lawyers, and bar licensing examinations.
There are 16 common law schools in Canada. With the exception of the University of Ottawa, Canadian common law schools have not meaningfully increased their intake of students in 30 years. Thus, the supply of domestic law students has been fairly constant for an entire generation.
The Federation of Law Societies of Canada has an ad hoc committee that advises on creating new law schools in Canada. In 2008, the FLSC effectively blocked the approval of a new law school at Lakehead University in Thunder Bay. It is reconsidering the decision.
It will also soon recommend the requirements of approved domestic law degree programs for entry into the legal profession.
Thus, the domestic supply of lawyers is constrained by the stagnant number of places in law schools. Some legal educators resist the creation of new law schools because they are concerned that they will have to share the government’s financial pie with more participants.
The two existing B.C. schools - the University of British Columbia and the University of Victoria - previously opposed the creation of a law school in the province. Thompson Rivers, however, quite astutely, linked with an existing law school at the University of Calgary and finessed the regulators.
The shortage of spaces in domestic law schools forces many qualified Canadians to go abroad to study law. Although this is a useful route for potential law students, they must go at a substantial cost to their families. There are now nearly 500 Canadians studying at foreign law schools.
They will have to requalify, at additional cost, when they return to Canada. Clearly, this is an option only for those with economic flexibility in their family budgets.
Of course, law societies rightly control the bar admission program that all law graduates must undergo in order to be called to the bar and the terms of the mandatory articling
program. They also control the accreditation of internationally trained law graduates. Thus, the regulators effectively control the entry of all domestic and foreign law graduates into the legal profession.
Access problems are likely to become even more critical as we endure a prolonged recession. Legal aid funding will diminish substantially as it relies on interest from lawyers’ trust accounts.
The Law Foundation of Ontario, for example, must remit 75 per cent of its revenues to Legal Aid Ontario. As commercial activity slows, so will the interest on trust accounts. Legal aid funding will feel the pressure.
We need a viable long-term economic solution to promote access to justice. We need more law schools, more law students, more law graduates, and more competent lawyers to increase the supply of service providers in order to reduce costs.
We must lower the barriers of entry without compromising competence and serve the public interest by increasing the supply of legal services to cope with ever increasing demand. Absent a coherent economic model, two-thirds of Canadian society will never benefit from “equal justice for all.”
Vern Krishna is tax counsel with Borden Ladner Gervais LLP and executive director of the CGA Tax Research Centre at the University of Ottawa. His e-mail is [email protected].
