Canada versus the USA: a 5 round bout for aspiring lawyers (a law student perspective)

PRE-FIGHT

As an American-turned-Canadian, I still find myself adjusting to the differences in culture, particularly now that I’m a law student in the latter. All the law that I had absorbed over the years thanks to John Grisham and Aaron Sorkin has alas fallen by the wayside. But just because my earlier exposure to American law laid the foundation for where I am today, doesn’t mean that my current residence doesn’t offer as much—if not more—than my place of birth.

To test this theory, I thought it best to have the U.S. and Canada square off, in a 5-round battle, to determine which country has the more attractive prospects for aspiring lawyers.

Each round will focus on an issue (Rd.1: Legal Education; Rd.2: Criminal law; Rd.3: Torts; Rd.4 Constitutional law; Rd.5: Judiciary), while examining the strengths and weaknesses of both countries.

At the end of each round, a score will be given. And because this is head-to-head combat, I think it most appropriate to utilize the “10-point must” scoring system (utilized in mixed martial arts and boxing), where the winner of each round is awarded 10 points, the loser 9 (or 8 if overtly dominated).

Let’s get it on!

ROUND 1: LEGAL EDUCATION

USA

When people think of rich and powerful lawyers, their attention automatically gravitates towards the U.S. After all, it’s the home of Wall Street and multi-billion dollar lawsuits. But before one can dream of collecting his or her seven or eight-figure payday, one has to go to school first.

PROS

North, south, east, or west—there is only one Haaavahd!

Home to some of the most prestigious law schools in the world. Those who gain acceptance into any of these elite schools have an impeccable record for landing future gigs that allow them to do virtually anything in leadership. Everything, from running countries to Fortune 500 companies, is at their disposal.

Virtually anyone can go to law school in the U.S.

Sometime around the early 90s colleges realized law schools were a real cash cow. Not only were some charging as much as medical schools, but their profit margins were far greater, with law school requiring minimal overhead expenses; all that’s needed is an instructor, classroom, and white board (markers are not included at Robson Hall).

Nowadays, schools don’t even require classrooms, as accredited low residency programs, and unaccredited online schools, continue to emerge.

In fact, law school in some states is optional, as admission to the bar does not require a law degree.

No Articling

That’s right, as soon as you finish your three glorious years of law school, you can enter the workforce. Unfortunately, the U.S. Bar exam is a killer.

No Ph.D., SJD, or Master’s degree required to become a Professor

While an additional doctorate may not be required to be a professor in the U.S., it used to be the rule, more than the exception. Rather than having to settle in for another 4-5 years of intense study after the JD, hopeful scholars would complete judicial clerkships. The research and knowledge gathered during that time would then serve as a foundation for later scholarship.

Unfortunately, more schools seem to really value the doctorate and obtaining it appears to be the direction American law schools are headed. But the good news is that I’m sure this preference has more to do with the desire to increase scholarship, not tuition. After all, for a one-year Master’s degree at Harvard, one only has to shell out about $90,000. Before you laugh, keep in mind, this includes room and board.

CONS

Incredibly high tuition.

The competition for a top-20 school in the U.S. is fierce. Many aspiring lawyers dream of attending a big school, where the likelihood of obtaining a lucrative position at a big firm is increased. But is the increased chance of landing a Wall Street or Fortune 500 gig worth shelling out $150,000-$200,000 to learn the same think being taught at Suffolk night school?

Anyone can go to law school!

Yes, I also listed this as a positive. For some, it’s the opportunity to pursue a lifelong dream. For many others, it’s a chance to rack up insurmountable debt, while never finding a job in their chosen field. Because admission standards are so relaxed, anyone can attend a law school, somewhere. As a result, the job market is oversaturated

Fun Fact: there are more people in law school than there are practicing lawyers. And 70% of the world’s practicing lawyers do it in this country.

CANADA

PROS

“Dude, I got accepted to a top-20 school!” –Me, phoning my mom after my early offer.

Because there are only 19 law schools that teach Common Law in Canada (unless, in the last ten minutes, Ontario decided to open another location to deal with their rural shortages (too soon to jab?)), every school here is top-20!

As such, the job market is NOT saturated…unless, you refuse to leave a major city…and work less than 40 hours a week. But regardless, if you need a job and are willing to travel, work can be found.

Tuition costs

I know the wonderful people of Toronto may disagree with me on this one, but despite their increases (what is it now, just over $30K/year?), it’s still a bargain compared to many state schools in the U.S. that hover in the $40-$50K range per year.

But Toronto is the exception, not the rule. Manitoba, for instance, barely cracks the $10K mark. And with one of the best bursary programs in the country (dare I say—world?), some students nearly make a profit for going to Robson Hall.

(Disclaimer: this—in no way—should impact this year’s tuition negotiations. The writer, who shall remain anonymous, in no way represents the views or opinions of any other student attending Robson Hall).

Articles

While I listed absence of articles in the U.S. as positive, the reality is it still takes 7 years to become a lawyer (4-year bachelor’s, plus 3-year JD). The same is pretty much true in Canada, with many schools accepting a 3-year bachelor’s, plus the 3-year JD, plus 1 year for articles. The difference, however, is that in Canada one usually gets paid during one of those 7 years (articling).

Articles may also have something to do with the fact that the bar exam isn’t quite the same animal as it is in the U.S.

CONS

“Dude, I gotta retake the LSAT…” –Me, phoning my mom after falling short of the Canadian standard.

Sure, the high standards of Canadian law schools are great if you can meet them, but if you can’t, then it may mean having to move to Australia. Or South Dakota. While the former sounds more appealing in terms of climate, the latter offers better scholarships and job opportunities for people looking to hang their shingle in locations with fewer than 50 people.

ROUND 1: CANADA-10, USA-9

ROUND 2: CRIMINAL LAW

USA

PROS

No Double Jeopardy

This principal, ingrained in most Americans I know, is right up there with “innocent until proven guilty.” And no, I’m not talking about the Ashley Judd/Tommy Lee Jones movie (although, maybe I should be). I’m talking about the 5th Amendment clause that prevents accused persons from being tried more than once for the same crime. In other words, once acquitted, the state (Crown) cannot appeal.

Can you imagine if the OJ trial happened in Canada? The Crown would have had two more attempts to incarcerate the beloved star of The Naked Gun trilogy. On the other hand, can you imagine the TV ratings during the appeals?

As much as I like overtime, especially when stakes are at their highest, I agree with the notion that the burden should remain on the prosecution. And what better way to emphasize this than to give them one chance to make their case.

(In the interest of full-disclosure, I did happen to appreciate the Crown’s appeal—and subsequent victory—with the Guy Turcotte case.)

Miranda, can I get that number…for a court-appointed attorney

Many of us are familiar with these rights. Fans of Cops and/or other legal dramas may even have them memorized. Right to silence. Right to a lawyer. And if you can’t afford one, the court will appoint one—at the public’s expense.

Naturally, I assumed the same thing was true in Canada. After all, we love our government funded programs here. But much to my surprise (and virtually everyone in my Criminal law class), that is not the case in Canada. Yes, we do have duty counsel to assist with some basics of pre-trial, and if your income doesn’t exceed the poverty threshold, you might qualify for legal aid. But for everyone else, if your case heads to court and you can’t afford a lawyer, you’re out of luck. Either shell out $200-$300 an hour for a lawyer (this may get you a lawyer with few years’ experience), or represent yourself. After all, the average person knows as much about criminal law as an veteran prosecutor.

This trial was filmed before a live studio audience

What could possibly be more entertaining than hunkering down in the old recliner, gorging oneself with a tub of popcorn, while watching the latest and greatest murder trial? And if you’re a fan of the oldies, it’s nice to be able to access footage of cases that existed decades ago.

Not only do televised trials help satisfy our morbid curiosity with notorious criminals (Bundy, Dahmer, Casey Anthony, to name a few), but having them filmed is also a way to hold the courts accountable. What better way for the public to keep the legal system in check than by witnessing what happens behind closed doors of the courtroom?

Plus, as a law student trying to learn, it’s nice to be able to pause, rewind, and use my computer (for notes, not Facebook) while watching justice in action.

CONS

Excessive punishment and run-on sentences

Prisons are filled with individuals who are serving more time for crimes like robbery and Marijuana trafficking than some Canadians convicted on multiple homicide charges. Sentencing guidelines in the US are known for being excessive and punishing targeted minority groups. Minimum imprisonment for many crimes, as well as harsher sentences for multiple felonies have prisoners serving lifetime sentences. And not the 25-year kind, like in Canada.

Private prison-plans

Not pension-plan, but prison plan. That’s right, in the “land of the free, home of the brave,” one can own a prison. And with that, comes the ability to have your own domestic sweat-shop!

In the U.S., corporations can outsource their manufacturing to prisons. In addition to the millions of dollars prisons collect in government funding, they are also allowed to have their prisoners work for pennies per hour, while collecting a healthy sum for the cheap labor.

This cost-effective means of production is what many point to as the reason behind the U.S. having the world’s largest prison population. Couple that with the fact that judges, lawyers, politicians, and law enforcement authorities have had financial interests in many of these institutions, and it becomes clear that conflicts of interest are ubiquitous.

CANADA

PROS

Life sentences

25 years for 1st degree murder, along with no death penalty, seems far more reasonable than sending persons suffering from drug addiction to prison for double that. Plus, 25 years max allows prisoners to be rehabilitated and reintegrated into the world. It gives them a reason to strive for improvement and behave while in custody. Throwing people away for half a century…

Gladue Reports

In Canada, courts are supposed to take into consideration the background and surrounding circumstances of Aboriginal offenders (filed in a Gladue Report) during sentencing. In theory, this principal makes sense—courts should consider alternatives to incarceration for this targeted population. This is especially true of the vast majority of offenders, who suffer from mental and physical disabilities (as well those from abusive backgrounds) that make it incredibly difficult (if not impossible) to fully appreciate the nature of their actions, as well as their consequences.

CONS

No mill? No mine? No factory? No problem.

While Canada isn’t quite as successful as the U.S. in terms of using their prison system to generate profit, it certainly relies on it to boost local economies, particularly in smaller cities with large Aboriginal populations. In northwestern Ontario, for example, a certain small – not far from Winnipeg- city’s Aboriginal prison populations are notoriously high…boosting the local economy by keeping social services, law enforcement, corrections, and the legal profession busy.

Double (possibly triple) jeopardy

For reasons mentioned above, this seems to go against the default position of “innocent until proven guilty”.

“You have the right to be an attorney.”

This line from the 21-JumpStreet remake was supposed to be a play on the Miranda right “to an attorney”. But here in Canada, for reasons mentioned above, the right to counsel too often materializes as one representing herself.

Gladue Reports

Yes, these can and should be a good thing for the Aboriginal population. In theory (notice how I previously italicized that), it sounds great. But in practice there are many who claim having their background laid out for the court has the opposite effect, with judges assigning harsher penalties in order to keep repeat offenders behind bars for longer.

ROUND 2: USA-10, CANADA-10

ROUND 3: TORTS

USA

PROS

Home of the Rainmaker

Who doesn’t love a great story about how a group of little ole ladies, duped out of their retirement, band together to take on the nefarious corporate giant responsible? Or the small southern communities, whose towns were devastated by cancer-causing chemical companies, finally getting compensated for their suffering?

If one wants justice—in terms of astronomical damages—there’s no better place than here.

Accountability

We’ve all heard of the seemingly crazy suits and damages being awarded for claims that involve everything from hot coffee spills to injured burglars - hurt while in the midst of a break-in. While some of these at first glance may appear frivolous, oftentimes they are legit claims resulting from negligence and breached standards of care.

A prime example of where accountability comes into play involves the trial of the 20th century. And I don’t mean OJ’s trial. No, the trial I’m referring to involved the family of Rev. Dr. Martin Luther King Jr. taking the U.S. government to court and demonstrating…its involvement in the assassination of Dr. King!

So, if you thought James Earl Ray acted alone, well perhaps you weren’t paying attention. The King family had long suspected foul play and a conspiracy to take down the beloved civil rights leader, but with very limited avenues to demonstrate their claim, the civil courts came through.

CONS

In Trusts…We Trust

Because of the prevailing fear of lawsuits in constant circulation, family trusts in the USA serve as a virtual necessity for many. In my hometown alone I estimate that roughly 40% of the homeowners have put their property in a trust, as a proactive means of protection from lawsuits.

“In torts, you sue everybody for everything!” -Dr. JS

One of the main differences I noticed when moving to Canada is that I could go months—if not years—without hearing people threatening to sue one another. When I return home to visit, it doesn’t take long for the atmosphere of torts to soak in. Whether it’s stories in the news, local gossip, or the heated exchange at the gas station (with the feuding parties masquerading as civil litigants, trying to intimidate the other with claims of negligence), the pursuit of torts appears to be an—almost—automatic response for many.

Even as I write this I write this—literally—a story regarding civil litigation dominates American headlines. Former NFL star and convicted murderer, Aaron Hernandez, recently committed suicide for reasons that point to two things: 1. He did this as a way of having his murder conviction vacated (thanks to a Massachusetts law that allows for this during an appeal), which would then entitle his estate (4-year old daughter) to recoup some of the millions lost in signing bonus as the result of the conviction. And 2. To protect his estate against lawsuits stemming from the conviction.

Whether Hernandez’s daughter will ever see any of this money is uncertain, but one thing is for sure: only in America can a convicted killer become a pillar of nobility—all in the name of protecting his estate from civil litigation.

And let’s not forget, when phrases like, “I’m gonna sue you”, and “Oh yeah, sue me” become part of the everyday vernacular of a culture, you can almost guarantee there’s good reason for it.

CANADA

PROS

“If you want the ultimate, you’ve got be willing to pay the ultimate price.” -Bodhi

One of main reasons I’ve found for the difference in why other countries are less inclined to sue, has to do with a lack of deterrence in the U.S. In Canada plaintiffs are more reluctant to bring civil cases to court, simply because they run the risk of being on the hook for the defending party’s legal costs (if the plaintiff loses).

Imagine how many frivolous suits would disappear in the U.S. if claimants could be found responsible for the other side’s legal costs… dare to dream.

It’s not your fault, my fault, or the San Andreas fault—it’s NOBODY’s fault!

I’m not sure if this is entirely a good a thing, but the no-fault automotive insurance system we have here in Manitoba (MPI) is sort of comforting, particularly during those icy months in January, where a momentary lapse in judgement could result in a nasty collision. But rather than having to worry about court battles and the endless injury claims that the victim’s lawyer is surely to raise, the no-fault system bypasses this and awards damages/costs to the victim, according to its payout structure.

I know this system is specific to Manitoba, but it falls under “Canada” because there’s no way a system like this, with all the auto-insurers, would exist south of the border.

Tort reform…ed

Tort reform is a big issue in the U.S., especially for larger corporations looking to curtail the cases brought to court. But this concern also extends to average citizens, who prefer not be overwhelmed with stepping in unforeseeable duty.

In Canada there is talk about tort reform, and of course there’s always room for improvement, but in terms of comparing the 2 countries, Canada seems to be several time zones ahead. Plaintiffs get compensated, tortfeasors pay, and if someone brings you to court and loses—your legal costs are covered.

As much as like rain, it’s nice to have an umbrella.

CONS

Slight chance of rain

Unfortunately, for those suffering from debilitating and costly injuries, there’s very little hope that the setback will materialize into anything resembling a windfall.

There may be a few rainmakers here, but for many plaintiffs, after being dragged through the courts over the course of a decade, the most they can hope for is drizzle. And with a decade long drought, that doesn’t tend to go all that far.

ROUND 3: CANADA-10, USA-9

ROUND 4: CONSTITUTIONAL LAW

USA

PROS

The grand past

There’s an idealistic portrait many Americans are subjected to in elementary school. It’s centered on a western utopia. One that our forefathers imagined as they drafted the document that would ensure the very freedoms that were suppressed under the British regime would now be enjoyed by all, in our newly discovered land (America was discovered by Americans, right?). The reality doesn’t quite live up to this image, but the timing of the document kind of does. It was drafted and signed at the country’s inception. And the provisions outlined in that document serve as the foundation for the rights many Americans have today.

The Constitution serves as the basis of protection for citizens against its government, particularly the 2nd Amendment. We also know it, we all love it (well, mostly in Texas). But many confuse this right as the justification for purchasing semi-automatic weapons for hunting, when in fact it’s actually a provision that allows citizens to form their own militia, as a defense against the government, if it becomes tyrannical and infringes on their rights.

I’m not a not a gun owner, nor have I ever even fired one, so I’m not endorsing (or condemning) the exercise of this right. The point is that the Constitution was designed in a way that people were supposed to come before government. Either by law, or by force.

So, at least on paper, the Constitution looks pretty good.

CONS

Alanis, isn’t it ironic…that the Patriot Act usurps the very freedoms that the early patriots fought for?

As wonderful of a document as the American Constitution is, complete with all its rights and protections, all took it took was the stroke of a pen (or several) to arrest it. Under the Patriot Act, no more illegal search and seizure, right to an attorney, or presumption of innocence. Hundreds of years, filled with war and strife—all in the name of freedom—down the drain.

I remember hearing the word “fascism” many times after this controversial bill was passed. I thought it was rhetoric and hyperbole; after all the term “fascism” is reserved for Hitler and Mussolini, right? Evidently, not. The basic meaning of the f-word is, simply, a nation whose population has chosen to forego certain rights and freedoms in exchange for an authoritative government’s protection.

Translation: Americans were willing to surrender their Constitution-protected rights in exchange for the government’s authoritative “protection”. And for the government to be truly effective in the task of protecting, it needed the authority to bypass any of the things that usually get in the way while conducting investigations, namely, our rights. But thanks to the Patriot Act, that’s no longer an issue.

The good news is that everyone’s Constitutional rights are still intact… unless you’re a suspected terrorist, at which point, the Patriot Act comes into play. The bad news is that anyone whom the government says is a suspected terrorist loses her rights, and there’s no way to know who qualifies as a suspected terrorist (that’s for the top-secret algorithm to decide). Those of you reading this could be suspected, and you wouldn’t even know it. That is, until you wake up in Guantanamo.

CANADA

PROS

The older Canada gets, the Charter it gets

I’ve often heard of the Charter being reduced to nothing more than a tool for upper-middle class white males to get away with bad behavior. While it is certainly true that an imbalance in access to justice remains ubiquitous, it’s also true that the Charter has improved many of our rights, particularly the rights of minority groups. Certain groups, while lobbying for recognition over the years, have been successful. There have also been some ground-breaking cases that, in connection with the Charter, have redefined certain principles in criminal law and afforded citizens more protection against investigative authorities.

CONS

Canada’s Rodney Dangerfield

The Charter gets little respect (and acknowledgement) from everyday Canadians. Perhaps it has something to do with the fact that this little document, outlining our rights and freedoms, was nothing more than an afterthought. The Charter is only 35 years old, and before that, the Canadian Bill of Rights came into being in 1960. That means for roughly a century, citizens of this great nation weren’t all that concerned with having their rights and freedoms codified, in a centralized document, readily available to the public.

This approach is in stark contrast to the U.S., where rights were drafted in the beginning.

Yes, Canada had the Constitution Act of 1867, but that dealt more with governmental division of powers, not provisions that protected our freedoms.

I know Canadians have a world-renowned reputation for being laid back, but did everyone seriously just have better things to do?

The real reason probably had more to do with our British ties, and the fact that Great Britain does not have a codified (written) constitution of their own. We also probably weren’t in a hurry to break the news that we were finally old enough to move out on our own, and ditch their influence. But after century, I’m glad we thought it was finally time.

The Queen trumps jokers

Although it was thoughtful of the Queen to sign our Charter into law, let’s not forget that her executive power, although ceremonial nowadays, is still in effect. She could cause quite the stir if she wanted to, so that may be something we might want to have a look at in the future. But then again, Prince William is waiting in the queue to be our King, in the not so distant future. And based on the reception he and Kate received while visiting Canada, maybe we could hold off another hundred years or so.

ROUND 4: USA-10, CANADA-9

ROUND 5: JUDGES

USA

PRO

Even the town clerk, dog catcher, and grass-cutter get elected

In the U.S., with some exceptions (such as the U.S. Supreme Court and some state appellate courts), judges are elected to the bench, rather than appointed. Some really enjoy this privilege, particularly communities that like to have say in who does what in their locale. If that’s you, or you have a real fervor for the democratic process, then this is a nice option to have. Plus, if you don’t care for the person waiving the gavel, you can always wave goodbye at the next election.

CONS

Justice may be blind, but if she were elected, you can bet she’ll hear from her campaign donors

Impartiality is difficult enough for a judge, particularly since each one comes to the bench equipped with a world view, and biases. But when you add the dimension of politics, it makes the difficult task virtually impossible. If a judge is required to run for office and woo voters, how can she objectively apply the law when outside interests swarm about, seeking to replace her if she strays from the party’s agenda. For example, imagine a candidate runs on a “tough on crime” platform. Many invest copious amounts to ensure this initiative is carried out and that more people are put behind bars. As cases come across her desk, that initiative—or slogan—will likely influence her decision-making going forward.

Justice may be blind, but under the election system, if a judge isn’t appeasing her campaign donors, you can bet she’ll hear from them.

In the U.S., judicial campaigns can sometimes run in the neighborhood of several million dollars to put someone on the bench (think deep-south appellate courts), who will make barely over $100k. More often than not, the person with larger budget gets elected, which also means that the more qualified doesn’t necessarily win.

While not all states function the same way when it comes to judicial selections, it’s common for elections to become highly politicized and expensive. Depending on the jurisdiction, a victory can net the successful candidate 6-10 years before their next campaign begins

Judicial moonlighting

As I mentioned above, many circuit and trial judges barely break six-figures in the U.S. As a result, many have outside ventures. Everything from investments to operating small businesses are the usual side gigs. Unfortunately, some of these ventures conflict with their obligations to bench. There have been multiple instances over the years where judges were found to have financial interests in detention facilities (prisons, criminal health centers, youth facilities). In some cases, incarceration rates rose dramatically, with the presiding judge sending these convicted persons to a facility that either benefited the judge, or her campaign donors, financially.

I can’t necessarily blame the judges for trying. They should be paid a wage that will serve as an incentive to focus on the courtroom.

CANADA

PROS

In Canada, it pays to be the judge

As it should. Aside from the years of academic excellence and craft commitment it takes for one to reach—arguably—the pinnacle of the legal profession, once there, it requires utter dedication and focus to responsibly decide cases. As such, it only makes sense to allow these officials to wholly immerse themselves in their work so that they can treat this as a lifestyle, and not just another income stream.

I’m also all for comfortable pensions and other perks. If we expect people to dedicate their lives to the public service they’re providing, particularly one as specialized and important to our society, then it makes sense that we compensate them in a way that allows them to do so.

Selection, not election

As discussed under the American system with election and the special interests that accompany an elected official, I prefer the system of appointment. While politics are still involved—the party in power does the selecting—once appointed, it’s for life. No worries of being ousted at the next election if you didn’t appease your campaign supporters by bending to their will, or having to decide cases based on public perception. The judge is free (or more free) to decide cases based on their merit, rather than for her own. And while impartiality in its truest form is still unlikely to be realized, considering world view and political affiliations factor in, judicial appointments at least bring us closer to that goal.

CONS

He said what?!

While being appointed for life does have its advantages, it also has its drawbacks. Without the threat of being removed and the need to be accountable, some judges take liberties and say outlandish, offensive things. Is it because they’re ignorant to the fact that they’re comments will generate outrage? Or is it simply because they can, with little recourse? I’m inclined to say the latter.

But is it really all that bad? Isn’t it kind of nice to know that every once in a while there’s a maverick on the bench, a person who’s willing to swim against the stream and speak his mind? In some circles that trait is valued. In some instances, it can even get you elected president.

Overall, having a judge saying outrageous things may not be all that bad. It could be a sign that a change is necessary, or the sign of a healthy system, one in which a judge can speak freely. If it’s the former, and a change is necessary, then there is a protocol for removing a judge.

No judge is totally immune from the consequences of her conduct, even in appointed systems. But when life appointments are handed out, there’s definitely a greater risk for colourable comments.

ROUND 5: CANADA-10, USA-9

DECISION: CANADA-WINNER

After five grueling rounds, we go to the judge’s scorecard. The U.S. appears to have the edge in some areas, particularly when it comes to high-risk/high-reward situations. The stories that come out of there are more interesting as well. But what Canada lacks in those areas, it more than makes up for in overall prospects for legal practitioners. The advantages here begin with law school, carry throughout practice (and into society), and extend to the bench. I’m blessed to be here and thankful I am. And given the choice to practice here or below, I have to say Canada’s higher on my map.

Who would have thought Canada’s not just the better place for hockey players, but for lawyers as well? Eh?