The granting of QCs in Canada today is a farce and a fraud on the public. In the result the administration of justice suffers and the
legal profession tends to fall into disrepute.
Why a farce?
The title of Queen’s Counsel is supposed to be an honor conferred
on outstanding barristers, whereas
in fact it is conferred on every Tom, Dick and Harry who has the
slightest political influence, and without regard to his standing in his profession.
Why a fraud?
Where it came from
In effect it tells the public that Joe Doakes, QC. is a competent member of his profession, when, in fact, he may be hopelessly incom-
petent. The common - law provinces of Canada imported the English common law and with it a modified form of the English legal system, including the titles of barrister and solicitor to signify the two branches of the legal profession. In Eng-
land, actually, and in Canada, theoretically, the solicitor does the office work and the barrister only appears in court. In addition to drawing deeds and wills and other legal papers the solicitor advises as to legal rights and draws the papers in connection with a lawsuit. He then engages a barrister to present the case in court. The solicitor interviews the client and the witnesses and the barrister rarely sees them. The training of the solicitor is much more rigorous than that of the barrister since the latter operates in a narrower field and is expected to learn by watching his seniors present a case in court. Barristers in England have been known to wait for years for their first brief.
The title of QC was imported by Canada with the other titles of the legal profession and signifies “one of Her Majesty’s counsel learned in the law.” In England a barrister who feels he is a leader
in his profession will apply to “take silk” or in other words to be appointed as a QC. This appointment carries with it certain responsibilities. The QC is expected to take only important cases and always to have a junior barrister with him to be ready to take over in case the QC is not available. The fees of the QC are higher than those of a junior and since he is engaged by a solicitor who is not going to hire him unless he gets his money’s worth the QC is almost certainly a barrister of competence and experience. By way of contrast, in Canada the courtroom lawyer is engaged by the layman who has no knowledge of whether or not this lawyer is competent.
When judges are to be appointed they are normally appointed from among the QCs. The English judge, therefore, comes to the bench with years of experience and competence behind him and in the result English justice has a very high reputation. The rigid screening that barristers undergo in England ensures that the judges appointed from the group of QCs will at least have a thorough knowledge of court procedure and the rules of evidence.
QCs like rabbits
In Canada we have no such guarantee. There are at present in England nineteen hundred and sixty-eight practising barristers of whom one hundred and eightythree are QCs. In addition there are some thirty-three thousand solicitors so that the proportion of QCs to the rest of the legal profession is about one in one hundred and ninety. When the title was imported into Canada the results were somewhat similar to the importation of English rabbits into Australia, for the proportion of QCs to the rest of the legal profession in Canada is about one to three as the following table shows. The figures are for 1958 unless other years are indicated in brackets.
HENRY L. CARTWRIGHT IS A PROMINENT KINGSTON, ONT., LAWYER.
“A judge could be appointed to the high court though he had never been inside a courtroom”
CANADA LAWYERS QCs
P. E. I. 37
Nova Scotia (1950) 269
New Brunswick 271
Quebec (1950) 1,710
Alberta (1950) 430
British Columbia 1,286
British Columbia shows the lowest proportion of any province because of their system of not appointing more than five in any one year, but even so the proportion is far higher than in England.
In both England and Canada the appointment of both QCs and judges is political, but in England the system produces QCs who are competent in court. In Canada we have no such guarantee of competence and in theory a judge could be appointed to the high-court bench in Canada even though he had never seen the inside of a courtroom.
Again in theory, if a judge is highly competent he can overcome these handicaps, but it is no secret that some of our high-court judges who have been on the bench during the thirty years I have been practicing law in Ontario were not only incompetent, but hopelessly so. This is not a general indictment, but is directed at particular persons. Some of our judges are as able and courageous as those you would find anywhere. I still remember with delight the rap on the knuckles that one of our judges gave to an eminent QC who had exceeded his privileges. The QC was cross-examining a girl and suggested that she was of immoral character. The judge put down his pen and looked ominously at the lawyer saying, “I trust you have some basis for that question.” He was assured that there was such a basis and the cross-examination carried on. No evidence on the girl’s character was introduced. Before he allowed counsel to close, the judge reminded him of his assurance. Counsel got up rather sheepishly and said, "Well, My Lord, I find I was misinformed.” The judge put his pen down and said, "Mr. —, you are one of the leaders of the bar in this county. You stated to me that you had evidence upon which you were basing those questions and I took your word for it. Had 1 suspected for a moment that you did not have that evidence I would not have permitted you to continue. You have done a great injustice to this girl by making suggestions about her that we now find have no foundation in fact. From now on when you appear before me you may take it for granted that I will not take any of your statements without proof.” From then on, Mr. — steered clear of that particular judge.
There are many technical questions that must be answered very quickly in the course of a trial and a judge or counsel who is familiar with these ques-
tions, having handled them and heard them talked about all his legal life, can naturally dispose of them much more easily and satisfactorily than can a judge or counsel who has seldom appeared in court. If, for instance, you are appearing before an inexperienced judge, you must ask yourself “How much does he know?” Does he, for instance, know what a leading question is? I well remember the look of bafflement on the face of one judge when I objected to a certain question being put by my opponent on the ground that it was leading. The judge simply didn’t know what I was talking about. It’s true that you can get a new trial or a reversal of the verdict if the judge goes badly astray, but he must go very much off the track before this can be done and, in any event, it is an expensive and difficult matter to appeal a verdict for the findings of the trial judge are accorded great respect in any court of appeal.
On the other hand it is a delight to appear before a competent judge, particularly if your case has difficult legal questions involved. I remember just such a case where the facts were fairly simple but the legal matters were both technical and difficult. The case was further complicated by the fact that some of the witnesses could not speak English and had to give evidence through an interpreter, but the judge was highly competent and my opponent, an eminent QC, was both competent and experienced. My opponent’s opening of the case was a model of exposition. He did not overstate one fact and those matters that were in controversy he was careful to indicate to the judge. The judge made his notes and then the evidence was called. There was no wrangling over the manner in which questions were put and the judge interrupted only when he was not clear as to what the witness intended to say (the much-talking judge is just as much of a nuisance now as he was in Lord Bacon’s day). At the conclusion of the case both counsel addressed the court, every point being met squarely and fairly and no attempt being made to evade any issue. At the conclusion. the judge said, “I wish to thank you gentlemen and to compliment you upon the orderly manner in which this case was presented. I propose to reserve judgment.” About a month later he gave a judgment twenty-two pages in length in which every point raised was competently dealt with, and every issue of fact was decided. My opponent labored under the disadvantage that his client had, perhaps inadvertently, withheld a vital piece of information from him and so I was fortunate in obtaining the verdict. The part 1 treasure most is the little note that my opponent sent me afterwards congratulating me upon this victory.
In contrast, I have in mind a murder trial that went before an incompetent judge and a jury. I still have the record and it is sprinkled liberally with rulings that are not only wrong in law, but are demonstrably foolish. Fortunately, the jury couldn’t understand the judge’s charge and disagreed so a new trial was necessary. On the new trial I didn’t think it was possible to get a worse judge, but we did. I was a very young counsel at the time and opposed to a highly experienced crown counsel who didn’t hesitate to get away with things which he knew
were wrong, but which he knew he could put over this judge. The case was a wrangle from start to finish, tempers were lost, hard words were said and I fully expected a couple of times that the judge would commit me for contempt of court (I had the greatest contempt for that court). We were fortunate again, however, because the new jury disregarded completely what the judge told them to do and acquitted the prisoner. If there had been a conviction, it would have been very easy to have upset it or to have had a new trial, but in the meantime the
accused person, who could not obtain bail, was being held in jail and subjected to all the anxieties of the pending charge. A competent judge would have instructed the jury that no conviction could be registered on the evidence that was presented.
All this may sound like carping criticism, but it is only by criticism that we can improve our institutions. The institution of the QC has never operated in Canada as it did in England and the number of appointments in recent years has been so great that the title has lost all respect among the profession. On one occasion the Premier of Ontario, Mr. Hepburn, appointed two hundred QCs in one batch and the recent appointments have been almost as numerous. People have been appointed who have never appeared in court and I understand that one librarian and one sheriff are entitled to put the magic initials after their names. A friend of mine was informed by one political organizer (not a lawyer) that he had four QCs to distribute and he could give them to anybody he felt like. As it works out today, all you need to do is to speak to the local member (or defeated candidate if his party is in power) and he will get you the somewhat tarnished honor. To some people, however, the taste of boot polish is nauseating.
It is no use exorcising the devil unless we replace him or his place may be taken by worse. The appointment of both QCs and judges is a political one and it might well be politically impossible to change this system. It is quite possible, however, to erect safeguards and the first suggestion I make is that we set up a committee of parliament similar to the U. S. Senate Judiciary Committee, with power to examine the persons nominated by the government for judicial office. The mere fact that such a committee exists would be a great safeguard, for a lawyer with no qualifications or one who was guilty of improper practices or in default with trust moneys would hesitate even to present himself before such a committee. An occasional judge has abused his position by failing to pay his debts or by appearing drunk on the bench. Such a person would be less likely to get by a judiciary committee.
As to the appointment of QCs. R. M. W. Chitty, the editor of Chitty’s Law Journal, had a good suggestion to offer. He suggested that a lawyer taking the title of QC should be compelled to relinquish his solicitorship and confine himself solely to counsel work. This would have several beneficial effects. First, the QC would have to be a competent counsel or he couldn't make a living. Second, if the QC confined himself to court work and vacated the field of the solicitor, it would reduce the competition young lawyers face in that field. A young lawyer, since he is both a solicitor and a barrister, could derive his main income from his work as solicitor w'hile waiting to receive briefs as a barrister, and gradually work into a barrister’s practice if he had an aptitude for it. In England the budding barrister who cannot do office work because of the separation of the professions may wait years for recognition and may nearly starve in the meantime.
It would be difficult or impossible to introduce the English system into Canada but the safeguards which I have suggested should make the title of QC an honorable and sought-after one and not the farce it is at present. The other safeguard by the creation of a judiciary committee to examine the credentials of judges before appointment would, in my opinion, raise our judicial standards by keeping off the bench the occasional misfit who is appointed, jr
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