On April 23, 2018, a group of public sector lawyers and attendees gathered to discuss the practical and ethical challenges of acting in the public interest within the broader public sector. The program was organized by the Ontario Bar Association’s Public Sector Lawyers Section and was chaired by Marlene Costa, of the Ontario Securities Commission, and Alexia Brystrzycki, of the Public Prosecution Service of Canada.
The program’s three panelists – Michael Morris, of Justice Canada, Dean Lorne Sossin, of Osgoode Hall Law School, and Sunil Gurmukh, of the Ontario Human Rights Commission – began the discussion by describing what attracted them to a public sector career. Dean Sossin said he was drawn by the opportunity to work with interesting and compassionate people to solve important problems facing modern society. The others agreed, adding that the public sector allowed them to combine their interests in law and policy while working for the greater good.
When asked to define what the “public interest” means to them, each panelist had their own interpretation. Mr. Morris said that he saw two competing definitions of the public interest: the democratic view and the restraining view. Under the democratic view, the public interest is defined by the democratically-elected government of the day and a lawyer’s role is to facilitate that government’s decisions. The restraining view, in contrast, believes that lawyers play a key role in ensuring that governments respect the requirements of the constitution and the rule of law. Mr. Morris said that he sees the value in both conceptions of the public interest, and that the key is to keep the role of politicians and lawyers separate. Lawyers should bravely provide advice to support the decision-making process, while leaving the final decision to politicians.
Dean Sossin rejected the idea that there can be any one definition of the public interest; rather, “public interest” is a contested terrain where different interests compete to determine what best accords with broader public values in a given moment. Mr. Gurmukh brought yet another perspective, focusing on the meaning of “public interest” for statutory bodies that can rely on a legislative framework to provide a definition. He said that the Ontario Human Rights Commission had supplemented the broad public interest defintiion in its enabling legislation by developing a more specific strategic plan to guide its work.
The panel next considered whether the ethical obligations of public sector lawyers differed from their private sector counterparts. Each agreed that while the Law Society does not impose different ethical obligations, in practice, public sector lawyers are held to a different and higher standard. Mr. Morris said that in many ways, zealous advocacy doesn’t comfortably fit within the confines of modern public sector legal work. Dean Sossin spoke about the ethical issues raised by outsourcing large public interest litigation cases to private firms on a contingency basis, noting that this can potentially raise concerns about accountability and transparency in the litigation decision-making process. He indicated that New Brunswick entered into this type of agreement for its tobacco litigation, and when the agreement was challenged, the court upheld it in part because of the substantial oversight that the province maintained over the ongoing litigation.
The panelists also debated how a public sector lawyer should resolve matters that involve competing public interests. Mr. Gurmkh highlighted several cases where the Ontario Human Rights Commission needed to carefully consider its public interest mandate in determining whether and how to intervene. He spoke about the Gallant case that is currently on reserve at the Ontario Human Rights Tribunal, which involved amateur hockey teams in Mississauga with Indigenous-based names and logos. In determining whether and how to intervene, the Commission undertook extensive consultation with First Nations and determined that there were substantial differences in views of the issue. Ultimately, the Commission chose to bring forward the perspectives of Indigenous youth, a group that is most directly affected by the issues in this case, as well as the evidence of an expert witness who researches the psychological impact of the use of Indigenous-based logos and names on youth.
The program concluded with numerous questions from the audience, including a discussion about how lawyers working in a political capacity can support the work of non-political lawyers in the public sector.
If this summary piqued your interest, you may be interested in “The Orphans of Legal Ethics: Why government lawyers are different – and how we protect and promote that difference in service of the rule of law and the public interest” by Michael Morris and Justice Sandra Nishikawa in the Canadian Journal of Administrative Law and Practice (2013, v 26, iss 2, p 171-181).
ABOUT THE AUTHOR
Robin Bates is counsel at the Office of the Ontario Ombudsman.
The views expressed are those of the writer and do not necessarily represent the views or opinion of the Ontario Ombudsman.