University Legal Education in Canada is Corrupt Beyond Repair

By Robert I. Martin

Journal

Sep 25, 2009

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1.         INTRODUCTION

            Right at the top of my ever-lengthening list of "things about Canada which I cannot understand" is the fact that, every year, we spend billions of dollars on institutions which we are pleased to call universities.

             People arrive at university after completing lengthy processes, which we call education, of idiotisation and moronification. [1] They have also spent years immersed in a barbarous popular culture which is, in my view, vulgar, coarse and infantile.  The universities, thus, face a severe challenge,[2] one which they largely fail to meet.

             Each fall a horde of illiterate, ignorant cretins enters Canada's universities.  A few years later, they all[3] move on, just as illiterate[4], just as ignorant[5] and rather more cretinous[6], but now armed with bits of paper, which most of them are probably not able to read, called degrees.[7]  There are two major factors which have contributed to this dismal result.  We will address each in turn.

   2.        THE CORPORATE UNIVERSITY[8]

            Canadian universities have generally adopted the corporate model.  This model has necessitated certain transformations.  Students have been metamorphosed into consumers and, correspondingly, professors into customer service representatives.  The primary responsibility of the customer service representative is to keep customers happy.  Thus, a professor who does not keep students happy has failed and he or she will be savaged in the customer satisfaction surveys sometimes described as "student course evaluations".[9]  Making intellectual demands or seeking to apply standards would tend to make consumers unhappy and both have, therefore, been abandoned.

             Students are as pathetic as one might expect.  The typical North American university student is an uninspiring blend of monumental sanctimoniousness and near-incomprehensible ignorance.  Two examples will suffice.

             Dr. Terry Castle teaches literature at StanfordUniversity.  Her primary academic interests are lesbian literature and the Great War and its literature.  In one article she noted that, in a term paper, a student asserted that Virginia Woolf was "traumatised" when she saw the damage that trench warfare had wreaked on the English countryside.[10]

             Between 1975 and 2005 I taught in the Faculty of Law of the University of Western Ontario.  My main teaching responsibility was Constitutional Law.  One year a student concluded the final examination with this statement:  "George Eliot was imprisoned for being a homosexual".

3.         REPRESSION

            The other defining characteristic of today's universities is repression.[11]  One might assume that the essence of a university is openness in thought and expression.  Such an assumption would be utterly wrong.  Canadian universities are closed and fearful institutions which actively enforce uniformity on their members.  Free thinking is neither encouraged nor tolerated.  Universities have imposed regimes of repression on themselves.[12]  Repression reached unprecedented depths under the government of the Honourable Robert K. Rae, P.C., O.C., Q.C. which ruled Ontario from 1990 to 1995.  In October of 1993 that government issued two secret ukases: Framework Regarding the Prevention of Harassment and Discrimination in Ontario Colleges and Framework Regarding the Prevention of Harassment and Discrimination in Ontario Universities.  These were to apply to all conduct both on and off university and college campuses and defined "Harassment" as "one or a series of vexatious comments . . . that is known or might reasonably be known to be unwelcome/unwanted, offensive, intimidating, hostile or inappropriate".  The two "frameworks" would effectively have prohibited the discussion of anything involving human beings at Ontario universities and colleges.  Neither document was made public, so there was no opportunity for discussion of them.[13]  The people of Ontario freed themselves from the Rae government, but repression still thrives in the universities. 

      Queen’s “University”, towards the end of 2008, revealed a plan to take thought control to unimagined depths.  It announced that it would establish a cadre of students to spy on other students.  These weasels, to be given the chilling and vacuous title, “dialogue facilitators”, would eavesdrop on the conversations of other students and, were anything blasphemous  or heretical to be said, intervene to steer the conversation in an acceptable direction.  I had thought thirty pieces of silver was the going rate for this kind of work, but the “dialogue facilitators” were to do much better than that.  Each was to receive free tuition, room and board and other benefits.[14]

 4.         LEGAL EDUCATION IN CANADA

            A.        Historical Overview

            The education of Canadian lawyers began in imitation of English models.  The basis for such education as occurred was apprenticeship supplemented by lectures from practitioners.  Control over legal education was firmly in the hands of the profession. 

             From early on, universities had been free to offer degrees in law.  The only question was whether the profession would recognise these degrees.  In the 1940s, legal academics, all of whom had studied in the U.S., began to challenge the profession's control of legal education.[15]  The profession was eventually forced to recognise university law degrees.  The kind of legal education offered in the university law faculties was a slavish imitation of American models. Even after making this concession, the legal profession in Ontario continued to play an active role in legal education.  The profession operated a law school from its Toronto headquarters at Osgoode Hall.  For some reason, Canada seems to have decided to follow the American approach of producing lawyers in the thousands.[16]  By 1970, six Ontario universities - Ottawa, Queen's, Toronto, Western Ontario, Windsor and York (in 1968, the profession abandoned legal education and the OsgoodeHallLawSchool moved to YorkUniversity) operated law schools.

             At this moment, there are, in Ontario,  40,000 lawyers.  That number grows by about 1,000 per year.   In 2008 serious consideration  was given to opening a seventh law faculty at LakeheadUniversity.

             Even after it surrendered control and bid farewell to its in-house law school, the Ontario legal profession continued to play a role in legal education.  Legal education began at a university law faculty.  Having received a law degree, the aspiring lawyer enrolled in the profession's Bar Admission Course (B.A.C.).  The B.A.C. had two components:  a period of articled clerkship and, then, formal instruction offered by the profession.  At the end of the B.A.C., candidates wrote qualifying examinations.  Those who passed, and met other criteria, were then formally admitted to the practice of law.

             For many years, the Law Society of Upper Canada, the governing body of the Legal Profession in the Province of Ontario, had been under pressure to complete its withdrawal from legal education, that is to say, to abandon the taught component of the Bar Admission Course.   In 2001, the Law Society set up something called the Task Force on the Continuum of Legal Education.  This body, which reported in 2003, did not review the entire continuum of legal education.  Its purpose was to provide cover for the profession's complete abandonment of legal education.  This has been achieved.  Legal education is now entirely the province of the universities, the profession's role being restricted to the administration of licensing examinations.

             B.        Decline

            As we will see, University legal education has sunk to astonishing depths.  When one observes a dismal current reality, there is a tendency to assume that there once existed a golden age.  The best that can be said is that there was, in the 1950s and 1960s, a bronze age.  During this period, some Canadian law faculties managed to reach the level of second-rate American law schools.  Since it began in imitation of American legal education, Canadian university legal education was much affected by changes in fashion emanating from south of the border.  In the 1960s, the members of the U.S. legal academy began to persuade themselves that teaching law as a coherent and articulated body of  knowledge to be mastered and assimilated by prospective lawyers was no longer sufficiently exciting.  They began to study and to teach law as if it were a social science.  There were those in the Canadian legal academy who believed that the new fashion had not been embraced on this side of the border with sufficient alacrity.  Professor Harry W. Arthurs, a former Dean of the Osgoode Hall Law School and future President of York University, chaired a committee set up to investigate these matters.  In its report[17], the committee argued in favour of a fuller and speedier adoption of the latest American fashion.

             For many years the exportation of American approaches to legal education was an element of U.S. foreign policy.[18]  I assume that the many Canadian law professors who are mindlessly[19] and reflexively anti-American are unaware of this history.

             The final, fatal fashion began to develop in American universities in the 1970s; this was post-modern feminism.  It, like the other fashions, inevitably seeped across the border.

             C.        And Fall

            The starting point in understanding post-modern feminism is its nihilism[20]. Every existing institution, relation, idea or precept was seen as fatally tainted by patriarchy and, thus, cried out to be extirpated.  The nihilism became fused with an obsessive solipsism based in pseudo-science[21].  Nihilism and solipsism were merged in a poisonous cocktail that spurred feminists to an all-out war on the law and on legal education.  Legal education suffered terribly during this assault.  A small industry, dedicated to making vicious and idiotic attacks on legal education, developed.  The Canadian Bar Association set up a "Task Force" to study gender equality in the legal profession.  The task force was chaired by Bertha Wilson, the first female judge of the Supreme Court of Canada.  Its report[22] presented a paranoid fairy tale version of Canadian legal education.

             As might be expected, feminist writing spurned the accepted norms of scholarly behaviour[23].  A vast literature of ideology masquerading as scholarship was produced. As is generally true of the work  emanating from  the Canadian academy today, writing by law professors tends to be abstract, parochial and trivial.  Canadian legal "scholarship" reached its post-modern nadir in an article[24] written by Professor Alan Hunt of the Department of Law, Carleton University.  In this article, Hunt openly attacked truth, logic and objectivity.  In her magisterial work, Who Stole Feminism? How Women have Betrayed Women,[25] Christina Hoff Sommers demolished many feminist fairytales.  Prominent amongst these was the "Rule of Thumb" fraud.  Feminists convinced themselves, and many others, that, up until the 19th century, English law allowed a man to beat his wife with a stick, provided the diameter of the stick was no greater than the diameter of his thumb.  The law school where I taught ordained that any male professor who used the phrase "rule of thumb" in a class would, thereby, be guilty of sexually harassing female students.

             For general criticism of feminist pseudo-scholarship, the reader may consult my The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined our Law and our Democracy[26].  Legal education stumbled along, getting worse and worse, until the Faculty of Law at the University of Toronto decided to finish it off.

             D.        The Commodification of Legal Education

            In 2001, the Dean of the University of Toronto Faculty of Law decided to transform it into a "truly great global law school".  As part of achieving this goal, annual tuition fees were to be raised to $20,000.00 and beyond.[27]  The decision of the Law Faculty to pattern itself after a Wal-Mart outlet had certain, predictable consequences.  Once committed to selling its product, the first hurdle along the path to becoming a lawyer, for the highest price possible, the Law Faculty found it necessary to divide the plunder amongst its proprietors.  At the same time as the outrageous increase in fees was announced, it was also announced that the enhanced revenue would be used to offer higher salaries to professors.

             Showing themselves to be equally lacking in integrity, the other Ontario law faculties brought their fees into line with those at the University of Toronto.  Given the wretched quality of the "education" being offered, fees at this level are both extortionate and fraudulent.  If tuition fees were to bear any resemblance to the inherent quality of what was being purchased, they would likely be set at the level of $12.00 per year.  As befits organisations modelled on Wal-Mart, the demands of marketing began to shape the work of the law faculties.  Once again, the University of Toronto took the lead.  The Faculty of Law decided to change the name of the first law degree from the traditional LL.B. (Bachelor of Laws)[28] to the American J.D. (Juris Doctor).  The other law faculties tagged along.

             For more than half a century, the University of Toronto Faculty of Law made its home in Flavelle House, a handsome  Edwardian structure on Queen's Park Crescent.  This site provided one of the few vistas in Toronto that might have been described as graceful.  But, by 2008, Flavelle House was no longer good enough for a "truly great global law school".  In an act reminiscent of the architectural vandalism which ravaged much of Toronto in the 1950s and 1960s[29], the old building was to be pillaged and replaced.  Drawings of the proposed new building can be found on the Law Faculty's website.[30]

             The new building will be, in my opinion, contrived, pompous and arrogant and, thus, an ideal home for the Faculty of Law of the University of Toronto.

             E.         How low can you go?

Freedom of expression is a universal human right. . . .

Freedom of expression is the primary freedom, an essential precondition to the exercise of other freedoms.  It is the foundation upon which other rights and freedoms arise.[31]

That is definitely not a formulation with which Canadian law professors and law students would agree.

             Richard Moon is a law professor at the University of Windsor.  He recently published a book called The Constitutional Protection of Freedom of Expression.[32]  One might have thought that a person who would take the time to write a book about freedom of expression would support it, but apparently not.  Moon emphasised the "social character" of freedom of expression and warned of the dangers that might arise from its exercise.

 Expression can cause fear, it can harass, and it can undermine self-esteem.[33]

 I have difficulty accepting the idea that those words could have been written by someone over the age of five, let alone by a professor at an institution which calls itself a university.

            Towards the end of 2007, a group of students at the Osgoode Hall Law School joined others in complaining to a number of "human rights" commissions that certain articles published in MacLean’s were "islamophobic".

            Christie Blatchford and Peggy Wente are the only Globe and Mail writers for whom I am able to feel respect.  Wente expressed her shock at the fact that law students would attack freedom of expression.[34]  She revealed, unfortunately, a complete lack of understanding of law students, a group generally hostile towards freedom of expression.  The complaints percolated along, reaching a dismal apotheosis in April of 2008.  Barbara Hall, who chairs the Ontario Human Rights Commission, dismissed the complaint to her commission, on the ground that the Commission lacked jurisdiction to deal with the content of MacLean’s.[35]

            The law students were not satisfied.  Three of them wrote a triumphal letter to the editor of the National Post.[36]  They whined that the Ontario Human Rights Commission had dismissed their complaint on a "technicality".  The signatories to the letter identified themselves as "OsgoodeHallLawSchool graduates".  As one might expect, the letter demonstrated that these graduates knew no law whatsoever.  Only a person absolutely ignorant of Canadian law could describe want of jurisdiction as a “technicality”.  The letter showed clearly that the Osgoode Hall graduates were not capable of constructing an argument.  The only intellectual facility they had mastered, it appears, was that of repeating slogans.

            The leading figure amongst the law students was one Khurrum Awan.  On the weekend of 7 and 8 June 2008, he attended a conference in Toronto organised by the Canadian Arab Federation and took the opportunity to issue a declaration of war against freedom of expression in Canada.[37]  As one might expect from a "graduate of the OsgoodeHallLawSchool", the declaration was long on passion and the shouting of slogans and short on knowledge of the law.  It would be tedious to address anything other than the more egregious errors. 

 i.         Section 319 of the Criminal Code establishes the offence of "wilfully promoting hatred".   The section was carefully drafted so as to minimize restrictions on freedom of expression.  In particular, a prosecution may not be instituted without the consent of the "Attorney General".[38]  Khurrum appeared to believe that "Attorney General" meant the Attorney General of Canada, whereas,  in fact, it means the Attorney General of the province.

 ii.        Khurrum Awan criticized MacLean's for not belonging to the Ontario Press Council, whereas membership in the Council is open only to newspapers, which MacLean's is not.  He appeared to believe that the Ontario Press Council has the power to "... condemn the journalist, condemn the publication, direct them to publish a letter to the editor.”,  when, in fact, the council has no such powers.[39]

 iii.       Khurrum Awan appeared not to understand that the law of civil libel in Canada does not recognise group defamation.[40]

            For many years I taught a course called "Media Law"[41]; the central concept in this course was freedom of expression.  Students were hostile towards freedom of expression.  Whenever I argued in favour of it, the students’ reaction was exactly what I would have expected had I been advocating sexual relations between adults and children.

            Canadian law recognises two broad categories of libel -- civil libel[42] and criminal libel[43].  The Criminal Code[44] sets out three forms of criminal libel: seditious libel; blasphemous libel and defamatory libel.  On the final examination in one year, students were asked to assess the constitutionality of the three criminal libel offences.  One carried out this analysis and concluded with the deathless observation that, if a criminal offence is successfully to withstand judicial scrutiny based on the Canadian Charter of Rights and Freedoms, it must be "carefully circumcised".

            Anyone wishing to get a sense of the true awfulness of law students may visit a website[45] operated by Osgoode Hall students.  The content of the website, as might be imagined,  consists largely of incoherent, self-serving whining.

 5.        CONCLUSION

           There are two phrases which can be used to describe every law faculty in Canada.  The phrases are: "feminist seminary"[46] and "psychotic kindergarten"[47] It is outrageous that public funds continue to be spent on feminist seminaries and psychotic kindergartens. Why have Canadian law faculties been transformed into feminist seminaries and psychotic kindergartens?  The answer is straightforward.  Many in the legal profession and in the legal academy have allowed themselves to be persuaded that  lawyers should be actively involved in the pursuit of a chimera called  “social justice”.   Consequently, the work of the law faculties has been reoriented towards the production of a cadre  of “social justice” activists.  This will explain why indoctrination has become the primary activity in the law faculties.

   Canadian Lawyer  is a monthly magazine for lawyers.  Each issue contains a section called  “4 Students”.[48]  A recent issue contained a report on a symposium on  “innovation in legal education” which had been held at Ryerson University in Toronto.  One prominent lawyer/activist  observed,  “I believe that the law schools can be a pawn (sic) for social transformation”, and continued, “… the first is that we in law school do not teach perhaps the single most important skill  in learning  –  relative to becoming transformative to society”[49].   And you wondered why law students are illiterate.                                                                                                                                                                           

           Current levels of homelessness are a disgrace in a country as wealthy as Canada.  I have a two-step plan for freeing Canada at once of two major social ills.  This is the plan. 

            Step One:        Close every law faculty in Canada; and

           Step Two:        Hand the premises of the former law faculties over to homeless people.

            The books in the law libraries would serve a much more socially useful function as cooking fuel than they do being gawped at by illiterate students.