In the Spotlight—Gerry Ferguson

Practice Point

In the Spotlight—Gerry Ferguson

This month’s spotlight shines on Gerry Ferguson, University of Victoria Distinguished Professor

You’ve been an active member of CLEBC’s Board of Directors since 1990. What are some of the major changes and impacts that you’ve seen at CLEBC over these past 30+ years?

[Actually] my first involvement was in May 1980 as a presenter at a CLEBC course on Recent Developments in Criminal Law. Then in 1981-82 and again in 1988-89, I was appointed to the CLEBC Board of Directors as the UVic Law representative. In 1990, I was reappointed to the Board and I have remained as a Board member for the past 32 years, officially retiring on July 1 this year.

Over the past 40 years, I have observed many epic changes and positive impacts with respect to continuing legal education in BC. The two most striking changes have been the remarkable increase in the sheer nature and scope of CLE services now provided and the amazing changes in technology that CLEBC has enthusiastically adopted with great vision and skill. That technology now allows CLE services to be delivered to you whenever and wherever you want.

In 1979-80, CLEBC offered 7 courses, all in Vancouver. For those unable to attend due to distance or scheduling conflicts, the only option was to purchase a copy of the speaker’s papers, or speaker’s notes, after the course was presented. But even then, CLEBC was trying to innovate. As I recall, the May 1980 criminal law course I participated in was, the first attempt to broadcast a CLEBC course live via satellite to other parts of the province. If memory serves me right, it was a rough and ultimately unworkable foray into a new world of technology. Today, CLEBC offers 80+ courses a year of varying length on a wide spectrum of topics, virtually all of which are available in person (COVID permitting), or live and interactive by webinars wherever you have access to the internet. And when your schedule does not permit live participation, you can obtain the course by rebroadcasts and by “Courses on Demand” from CLEBC’s vast archive of courses.

Today, courses are only one form of CLEBC services. Equally important are CLEBC’s wide range of books and practice manuals, case digests, and CLE Online. CLEBC first moved into the publication of books and practice manuals in 1987. Canadian Criminal Jury Instructions was its first book, together with two practice manuals, published that year. Today CLEBC has over 50 books and practice manuals which serve as essential tools for practitioners.

In short, the legal profession has experienced a virtual sea change in CLE services and resources in the past 40 years. And the legal profession is further blessed by CLEBC’s continuing enthusiastic commitment to staying on top of the technological revolution in producing the most reliable, relevant, and technologically accessible CLE resources possible.

Along with the late Mr. Justice John C. Bouck, you worked together to create a comprehensive book of criminal jury instructions that judges could count on to be legally accurate, reliable, and up to date. Commonly referred to as CRIMJI, this book was first published in 1987. How has the book evolved since then? And what do you hope its lasting legacy will be?

Yes, the late Justice John Bouck approached me in 1984 to co-author with him a set of model jury instructions for judges to use in criminal jury trials. I willingly agreed and CLEBC then agreed to assist us in this large undertaking. Justice Bouck strongly believed that model jury instructions were an essential reform to making criminal jury trials more effective and efficient. He believed that model instructions would help take pressure off trial judges who were expected, often overnight, to prepare jury instructions that explained all the relevant law and trial evidence presented in a case. He also believed that model instructions could assist trial judges in making fewer jury instruction errors which would mean fewer appeals, reversals of judgments, and costly orders for new trials. And I firmly believed that jury instructions needed to be both legally accurate, but also written and delivered in plain language that lay jurors could understand.

After three years of hard work, and with wonderful assistance from CLEBC, the first edition of CRIMJI was published in 1987. And for the past 35 years, the authors and CLEBC have published a new edition of CRIMJI each year, ensuring that it remains accurate, updated, and relevant. Justice Bouck and I co-wrote CRIMJI together until 2004, shortly before his retirement. In 2005, Justice Elizabeth Bennett and Justice Michael Dambrot from Ontario joined me as co-authors. Justice Bennett resigned in 2014 and Justice Dambrot and I have continued as co-authors. Professor Michelle Lawrence from the UVic Law Faculty has now joined us as I transition into retirement.

Like other CLEBC products, CRIMJI has significantly evolved in both the scope of coverage and the technology used in its publication, distribution, and use. In 1987, CRIMJI had 114 individual instructions with detailed annotations on each instruction amounting in total to nearly 1600 pages published in two loose-leaf volumes. Today, with rapid changes in criminal law, CRIMJI has grown to 156 individual instructions amounting to over 2400 pages. And as technology changed, CRIMJI also became available first on floppy disks, then on CD-ROMS, and now online as a fully-searchable publication. This technological evolution has greatly assisted judges and counsel in effectively accessing information in CRIMJI. I foresee a continuing need for a product like CRIMJI well into the future, provided it is kept relevant and up to date, and delivered in the most effective technological fashion.

What led you to write your most recent publication, Global Corruption: Law, Theory, and Practice?

As many lawyers and judges will recognize, what we do, and how we use our legal education, can often be “an accident of circumstances” rather than a well-thought-out career plan. That, at least, is how I viewed my career and my entry 15 years ago into the field of global corruption, a topic that extends well beyond my traditional criminal law interests. Let me explain. In the 1990s and early 2000s, the Canadian government (via CIDA) was providing international human rights and rule of law education to many foreign countries, including China. The International Centre for Criminal Law Reform (ICCLR) in Vancouver was delivering some of those courses. I was a Board member and associate at ICCLR. When ICCLR was asked by CIDA if they could deliver a course to Chinese prosecutors on international norms against corruption, none of the ICCLR associates volunteered. Perhaps that was due to the fact that corruption was not a topic traditionally taught in law school and not a topic that arose very often in legal practice. So, in a rash moment, I said “Okay, I will give it a try!” As I immersed myself in the topic, I began to realize how extensive global corruption is – it is literally everywhere. All you have to do is look! More importantly, global corruption is a cancer that causes death and poverty for the most marginalized members of society, while at the same time it erodes public trust in legal institutions, results in violations of basic human rights, allows kleptocratic leaders to ravage their own countries, fuels gender inequality, provides funding for terrorism, contributes to climate and environmental degradation, and much, much more! How can that not be an interesting and challenging topic to pursue and one that clearly calls for law reform on a global basis? If you are not convinced, then read Chapter 1 of my Global Corruption book.

My ICCLR courses and lectures on global corruption in China and elsewhere led to an invitation from the UN Office of Drugs and Crime to join a new committee on Anti-Corruption Academic Development (ACAD). ACAD was being formed to promote more education and educational materials for lawyers and students on corruption and its prevention. With ACAD’s encouragement and an army of research students working with me over a three-year period, my first edition of Global Corruption: Law, Theory and Practice was completed in 2015 and posted on leading anti-corruption websites free of charge for all to use. Simultaneously, the first course on global corruption in a Canadian law school was taught by me at UVic. Since that time there are at least five or six other law schools who have started teaching global corruption in their schools. The first edition of my book in 2015 was followed by a second edition in 2017 and the third edition in 2018. The fourth edition was just published a few months ago and is a new and significantly expanded version. My newfound expertise in global corruption has provided me with many opportunities to offer anti-corruption lectures to judges, lawyers, and law students in Canada and around the world. I have also had the honour of providing advice from time to time to the Cullen Commission on the closely connected topic of money laundering.

Looking back at your varied history and involvement with teaching and legal education, is there anything you would have done differently?

As I already said, my life in the law has been shaped more by a series of accidental events, than a well-planned career path. Fortunately, those accidental events were all good. In law school, I never thought about becoming a law teacher. I planned to be a criminal defence lawyer and in fact, after second-year law, I secured articles in Toronto with a very prestigious criminal lawyer. But then in third year, I was offered a “full load” scholarship for an LLM in criminal law at New York University’s Centre for Criminal Law Education and Research. That seemed like too interesting an opportunity to turn down. With encouragement from my intended articling principal in Toronto, I accepted that offer. It was both an eye-opening and mind-expanding year, which introduced me to studying law in action, rather than merely law as written in statutes and cases. Ever since graduate school, I have been greatly influenced by the famous quotation by American jurist, Oliver Wendell Holmes, who stated: “The life of law has not been logic. It has been experience.” Once you study criminal law as it is actually experienced by those caught up in it, you see the unquestionable need for its reform. Law in action and law reform go hand in hand and became my two passions in law long before I consciously noticed.

Another series of events affected my career decisions after New York, including very nearly accepting a teaching position in law and criminology at the University of Sydney, and seriously considering articles with a criminal law firm in Ottawa. That same year, Justice Minister John Turner set up the first federal law reform commission in Ottawa and the new Commission was looking for junior associates like myself. I was offered a handsome salary compared to articling salaries, and the Law Society agreed to recognize my year with the Commission as articles. What an easy choice it was to accept the Commission’s offer! In addition to articling, my road to criminal law practice had yet another bump in it – the mandatory, eight-month, full-time Bar Admission course offered only in Toronto. While I pondered how to financially leap that hurdle, with a wife and two children under four, the Law Faculty at Ottawa U invited me to join the Faculty full-time and the Law Society had a policy that waived the requirement of the Bar Admission Course for persons who taught three years or more at an Ontario law school. Again, joining the Law Faculty as an assistant professor was a choice that seemed easy to make. In my third year of teaching, I was called to the Ontario Bar and started to investigate how I could combine teaching and the practice of criminal law in Ottawa. But before I got very far down that path, there was another accidental event. Had I not, three years earlier, been at the Law Reform Commission, I would not have met and worked with Murray Fraser and Keith Jobson. Had I not worked with them at the Law Commission, it is unlikely that they would have invited me to join them in the great adventure of building a new and innovative law school in Victoria. My wife and I agreed that this was a marvelous opportunity not to be missed. So we signed on for a three-year term in Victoria. Three years came and went, and went and went! Forty-five years later, I am finally retiring from the Law Faculty.

I discovered at Ottawa U and then at Victoria that law teaching was a perfect way to combine the joy I got out of teaching and my passion for law reform. Over the past 45 years, I have had the great pleasure of teaching several thousand law students while also enjoying wonderful opportunities, far too many and too varied to mention here, to work with the bar, the judiciary, and governments on law reform projects and initiatives both in Canada and around the world.

Looking back, is there anything I would have done differently? I feel very blessed to be able to say “no”. Other choices may have been great too, but my accidental path through law has been extremely rewarding!

Your last day on the CLEBC Board of Directors is June 17. What are your plans for the future?

Although I have had many years to think about it, I have made no definite plans for my retirement years. Instead, I will do as usual and wait and see which accidental events knock on my door and then trust my instincts to choose those that are interesting, and challenging and offer hope of improving the lives of those who most need it.