What is meant by Queen’s Counsel?

Queen's Counsel (QC) – known as King's Counsel (KC) during the reign of a male sovereign – are lawyers appointed by letters patent to be one of "Her [or His] Majesty's Counsel learned in the law". Membership exists in various Commonwealth countries around the world and it is a status, conferred by the Crown, that is the government and it is recognized by the courts. As it members wear silk gowns of a particular design, the award of Queen's or King's Counsel is known informally as ‘taking silk’. In order to qualify, a lawyer usually has to serve as a barrister (or, in Scotland, as an advocate) and in Canada, as a lawyer for between five and ten years and he or she must be appointed by the government, be it federal or provincial.

In 1597, Sir Francis Bacon was named as first counsel to Queen Elizabeth I. That position would be similar to the position of Counsel to the President of the United States. Over the years, this became the practice in the British Colonies but not in the same manner that Sir Francis Bacon enjoyed. The letters, Q.C. has for many years, been given to lawyers who have convinced the government that they are lawyers of great distinction.

Queen's Counsel only emerged into eminence and integrity in the early 1830s, prior to when they were relatively few in number. It became the standard means of recognizing that a barrister was a senior member of the profession, and the numbers multiplied accordingly.

In the United Kingdom, the appointment of Queen's Counsel was suspended in 2003 and it was widely expected that the system would be abolished, although existing QCs were not affected by the suspension. However, a vigorous campaign was mounted in defence of the system, including those who supported it as an independent indication of excellence valued by outsiders who did not have much else to go on.

The practice of appointed Queen's Counsel has also fallen into disuse in part of Canada where the two largest provinces, Quebec and Ontario, ceased making appointments in 1976 and 1985 respectively, the federal government ceased the practice in 1993 and Manitoba followed suit in 1999. No substitute distinctions have been implemented in these jurisdictions as it is felt that the practice is a form of political patronage and is best discontinued entirely. However, existing title holders continue to use the QC in those two provinces and in the federal government. Appointment of Queen's Counsel continues in other Canadian provinces however, including British Columbia. (pursuant to the Queen's Counsel Act.)

Personally, I believe that the term, Queen’s Counsel was an accolade that should have continued to be given to lawyers of great distinction in those two provinces and by the federal government but it was muddied when it became obvious that lawyers who were not deserving of the privilege of being able to put the letters Q.C. behind their names were being given the privilege on the basis of political patronage alone. I knew some lawyers who had the appointment who were scumbags and shouldn’t have even been admitted to the bar, let alone been appointed as Queen’s Counsel. Alan Eagleson had been a recipient of the accolade of Queen’s Counsel and he is currently in prison for stealing a great deal of money from famous hockey players. Gordon McGilton, a Queen's Counsel who used to be a fixture on the English Montreal charity circuit, faced 32 charges of fraud and theft and at least six civil suits related to his handling of clients' estates and savings. He resigned from the bar in 2000, following allegations of improprieties.

It was for this reason that Ontario, Quebec and the federal government of Canada chose to abolish the awards. It got to the point where it was almost impossible to distinguish who was really deserving of the award and who was not.

In British Columbia, an applicant for the award must be in practice for at least five years. Each September, the Attorney General calls for nominations from the public. The names of those nominated are reviewed by the Chief Justice of the Supreme Court of B.C., the Chief Justice of the provincial court, the President of the Law Society of British Columbia, a bencher of the Law Society and the deputy attorney general. The Committee also seeks the views of the Canadian Bar Association. The names of those lawyers who are selected are then passed on to the provincial cabinet for the final decision.

In Alberta, applicants are reviewed by a Queen’s Counsel screening committee which includes the president of the Law Society of Alberta, the president of the Canadian Bar Association (Alberta Branch) chief justice and assistant chief justice. The final selection is made by the minister of justice. In Saskatchewan, the selection committee makes recommendations and the decision is finally made by the provincial cabinet. In New Brunswick, a committee comprising of the chief justice, attorney general, and president of the Law Society make the selections. In that province, the applicant must have been in practice at least 15 years with extensive experience before the courts. In Prince Edward Island, the lawyers have to have practiced at least ten years and must be recommended to the Executive Council of the province by the Queen’s Counsel Recommendations Committee.

At one time, the accolade of Q.C. meant something in Ontario but towards the end, there was not sufficient attention paid to the process of selecting those worthy of such appointments. Often those from major firms were chosen over those who were of smaller firms. Controversy over the legitimacy of the use of Q.C. was abandoned by a large law firm in Canada on its letterhead.

A study showed that 84% of lawyers polled were not happy in the way that appointments for Q.C. were made. However, 60% were in favour of the idea of appointments being made to deserving applicants in which they could place the letters SC (senior counsel) behind their names. That is done in Australia, New Zealand and Nigeria. The term, Queen’s Counsel has lost its original meaning so it has become archaic. Obviously, the term Senior Counsel is more appropriate.

I would like to see the term Senior Counsel used in all the provinces and that the selection of nominees be the same in every provinces and those who have Q.C. behind their names, have that term replaced with S.C. instead. Most importantly, I don’t think any lawyer should even be considered as a senior counsel until he has been practicing law continuously for a minimum of 15 years.