Canadian Lawyer

16 A P R I L 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m I 've often written about the relationship between ethical principles, the law and the practice of law. When it comes to the law, I've criticized it for sometimes being morally tone deaf. What about bankruptcy rules, for example, that prefer dubi- ous company creditors to retirees relying on a company pension? I've criticized lawyers for not following community ethical standards in their work. What about corporate and tax lawyers who don't care about the effects on distributive justice of what they do? (Much of their work just helps the rich get richer.) Or what about business lawyers who blithely help investment bankers develop schemes that lead to foreseeable economic catastrophes such as the 2008 market collapse? I know a lot of lawyers don't agree with my point of view. That's been made abundantly clear. Emails of outrage have been flooding my inbox for years. But let's all take comfort from this: The relationship between community ethical L E G A L E T H I C S PROVIDING MORAL GUIDANCE By Philip Slayton While the law should be guided by ethics, it can also guide us to be more ethical standards and the law is a two-way street. Com- munity standards should inform the law and legal practice, but the reverse is also true. There are things the law and lawyers can teach non-lawyers. The law and legal practice offer a cornucopia of ethical standards. You just have to look for them. The Globe and Mail newspaper touched on this possibility in an interesting editorial on New Year's Eve 2018. The editorial referred to the legal concept of "the reasonable person," someone who thinks clearly and, most of the time, is honest and sensible. The reasonable person does not easily give in to bad impulses such as anger, resentment, pettiness and knee-jerk dismissal of different points of view. This legal idea — the concept of a "reasonable person" — offers a touchstone for general conduct. And, indeed, in its editorial, the Globe urged politicians to use the reasonable person idea as a guide for their behaviour in these troubled times. More precise legal concepts might be even more helpful to policy-makers and politicians. Here's an example. Like many Canadians, I've been fretting over Canada's 2014 contract with Saudi Arabia to supply that country with $15 billion worth of light armoured vehicles. The Canadian government has described the con- tract as "highly confidential" and the public has never been told its terms. Many think that we should not be doing business with the Saudis, and particularly not by selling military vehicles that could be used against that country's civilian population by a repressive government. Prime Minister Justin Trudeau seems to have taken the position that, like it or not, Canada cannot get out of the Saudi contract without, at the very least, paying a huge and damaging penalty. He says he's troubled by the arrangement — let's take him at his word — but maintains that, as a matter of law, we are stuck with it. Pacta sunt servanda, as lawyers like to say. Agreements must be kept. But take another look, Trudeau. Maybe the law can help you do the right thing. We don't know what law governs the Saudi con- tract's interpretation and application because we haven't seen its terms. But there's a basic principle in our legal system, and in many oth- ers, that says if the fundamental circumstances underlying a contract — particularly a long- term or "relational" contract — change in an unforeseen way, the contract can be terminated. The binding force of a promise can be trumped by principles of justice, good faith and equity. Many related doctrines buttress this rule — mis- take, impossibility, force majeure, fundamental breach, frustration, excessive onerousness, etc. @philipslayton O P I N I O N DUSHAN MILIC

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