Access to Justice

Chief Justice of the Supreme Court of Canada and all around kick ass human being Beverley McLachlin is on the front page of the Toronto Star a few days ago calling for a review of access to the justice system. According to the article McLachlin "has issued a call to action to governments, lawyers and judges to find solutions to the access-to-justice "crisis" imperilling the country's legal system, which is now too expensive and complicated for the vast majority of Canadians."

 

I wholeheartedly concur. And for those of you waiting for one of those Cicero moments where I set up up just to knock em down, this isn't one of those articles. I find no fault with what the Chief Justice said. I'm just scratching my head trying to take up her call to action and figure out ways to solve this intractible problem. She has called governments and lawyers to action. Well, I'm a lawyer who works for the government doing public policy so I think I'll try to answer her call. I'll fail utterly of course. But hell, better to die on our feet than live on our knees, right, brothers and sisters?

 

Like most things in the world, the justice system is the way it is for rational, reasonable reasons. It does no good to just wag a finger of blame at slow moving judges or overpriced lawyers. Tweaks to the present system won't change some basic truths of access to justice.  Let's break down a few of these truths and see what we could maybe do about them. First let's look at how slow the wheels of justice turn. Why is that? Well. The Justice System is a government program.

• Government programs cost money.
• That money usually comes from tax dollars.
• There are only so many of those tax dollars available.
• There are lots of competing priorities for those tax dollars.

We don't have enough tax dollars to pay for everyone's lawyer AND everyone's doctor - and we're already paying for everyone's doctor. only way to lower the costs of the justice system is to make it a little less...well... just.  Litigation of all types could be very inexpensive if it justice was doled out by Judge Judy clones and no lawyers were present.  (Some might suggest that for a while we almost had this model with the financial list and Justice Farley, but I digress.) Litigation worth any amount of money is just the opposite. The procedural fairness provided is so exhaustive that it is getting in the way of substantive fairness. Wrong decisions get reached AND people can't afford to defend themselves.  No one I know could afford to defend a lawsuit.  Could you?  I have friends who are being sued for libel currently, by some rich guy, for things that got posted on an internet message board. This causes them a great deal of worry - not because they believe they did anything wrong - but because it doesn't matter if they did anything wrong once the cost of defending a lawsuit is involved.  So the answer here is to simplify process as much as possible. I don't know where the sweet spot is, but part of it is likely removing some of the procedural safeguards from the civil procedure rules and loosening up the laws of evidence. We're headed in that direction already with some simplified civil procedure for cases up to a certain value and streamlining of hearsay rules and the like, but more could probably be done. (At the cost of some procedural fairness of course.)

 

The second thing we could do to make things cheaper for litigants is to bring the practice of law into deeper disrepute. Is that even possible, you might ask? Well - if we removed all marketing restrictions from lawyers they could compete based on price. It would lead to awfully tacky looking Cellino and Barnes ads but prices might drop a bit. We've done some of this already by loosening the rules on contingency fee payments for personal injury lawsuits but the payouts are still too low in canada for a real sleazemob of ambulance chasers to afford to blanket our tv with ads. Probably a good thing.  

 

A third idea might be to have the government court system privatise part of itself with an increased focus on private arbitrators for corporate disputes. When corporation with eight zillion dollars A sues corporation with eight zillion dollars C why does the taxpayer need to get involved. Create a giant private arbitrators list. Give their decisions the authority of judicial decisions. But make the corporations pay 100% of the arbitrators costs and find their own private venues. Honestly, I don't know if that would make anything cheaper for anyone, but it might help to speed things up in the section 96 courts.

 

All of those ideas above, are, likely stupid ideas. They all give rise to problems that may outweigh the one they are trying to solve... especially since we may not even want to encourage people to access that much justice. We call that a litigious society and we frown on the Americans for it. But I hope it gives you some idea of the intractability of the problem. I'm sure Justice McLachlin is open to your own suggestions, dear reader.