Thursday, 20 February 2020

Transitioning 500 foster kids can't possibly be right

Yesterday, I posted about my participation in a court case in which a series of trusted occupations - school counsellors and teachers, psychologists, endocrinologists, and lawyers - had joined forces to oust a concerned father from his legal duty to protect his child from a conspiracy to lure the child into believing she was born in the wrong body and needs medical procedures to alter it in order to be happy.

I know that sounds stupid. It is stupid. But not only do these trusted occupations appear to believe this improbable narrative themselves, but also, they expect the public and families to believe it, and they have induced judges, on more than one occasion, to believe it.

During the hearings in this case, frequent reference was made to a public speech given at a library branch by a BC psychologist, in which he claimed to have "transitioned" as many as 1001 juvenile patients in the province of British Columbia. Of these, he claimed that 500 were foster kids, being raised in the care of the government.

The speech was cited in court to underline how over-the-top this transgender belief system has become, and how unlikely it is that any of the children being "diagnosed" and "treated" really belong to this vanishingly small demographic for whom their biological sex generates significant emotional distress.

It was also cited because the court had initially bought into the transgender narrative out of an apparent fear of suicide risk for the child, and in the speech, the psychologist advises his audience, who he presumes include some people who want transgender services, to threaten suicide to enhance their chances of a referral to a transgender clinic and to their drugs or surgery of choice. The point being made was that threats of suicide are not to be taken as factual evidence of suicidality.

When the transcript of the speech became publicly available, I had read it with interest, and very quickly became concerned about the competence of the psychologist giving the speech, Wallace Wong. I am a former health care practitioner who is very familiar with professional standards of practice, and with the medical diagnostic process, and I was not impressed with what I read.

The speech was more of a sales pitch than an information session, and the information that was provided left me with plummeting confidence in the BC medical system and in the licensing process of the College of Psychologists of BC.

So, I made a complaint to the College of Psychologists of BC about this psychologist, asking that his work be investigated for whether it met the standards of practice for their licensing requirements.

The processing of this complaint has become another of those ghastly comedies often described as Kafka-esque. I don't think a single child's file has been reviewed, although it is 9 months since I complained. Heaven knows how many more children have been put through this toxic process while the College has dithered and doubted and delayed.

My most recent communication from the College states that, under their enabling legislation, the Health Professions Act, if they have not yet completed their investigation within 255 days, they are required to pause the process for 30 days to give the parties an opportunity to appeal the delay to the Health Professions Review Board.

I very much doubt that such an appeal would be worth my time. None of these organizations is in the business of saving foster kids. They are all in the business of preserving and growing their bureaucratic empire, and securing their income and pensions.

This is a severe disappointment to me, and I will tell you why. When I worked as a dietitian in the 1980s, we were not a fully self-regulated profession. As we could not carry our own liability insurance, we could not work independently; we worked under doctor's orders. We were one of several occupations known as a semi-profession, or para-profession.

Through our association (it was not a College) we were lobbying for self-regulatory status. We wanted to be able to open our own practices, or work for a more diverse selection of employers, and we wanted to be responsible for our own work. Although dietetics already took continuing education and standards of practice quite seriously, we needed enabling legislation to put us in control of our own destiny.

There were about 8 other occupations treading the same path, such as dental hygienists, physiotherapists, and psychologists. I didn't remain a member of the dietetic profession past 1990, but the group finally got its wish with the 1996 passage of the Health Professions Act.

Because I know that we had such high hopes for self-regulation, it is a real disappointment to me to experience how, in response to complaints, the College of Psychologists has little to offer the public interest except, apparently, protectionism. It is actually even more of a disappointment that being an autonomous, self-regulating profession did not endow the College of Psychologists with the capacity to autonmously resist the onslaught of transgender ideology into its collective psyche.

As I wrote to the College, I should never have had to write my complaint after hearing that 500 foster kids, and 1000 kids in total, had been put through this toxic "transition" process. The College is empowered, under its enabling legislation, to ensure that dangerous emerging practices are nipped in the bud. The College should have reacted with clinical practice reviews after 200 kids... or 100. Or maybe even 50. What number should have alarmed an organization that is mandated to manage licensing & practice of psychologists in the public interest?

If dietitians started recommending a koolaid and poptart diet, and mandating that it be served in provincial foster homes, how long do you think it should take before the College of Dietitians investigates the competence of the dietitians who are working on those files? Should it be when 10 foster kids become obese and ill with related conditions, such as high blood pressure? Or should it be when 100 foster kids are affected? I would argue that by the time FIVE HUNDRED foster kids are obese under the supervision of dietitians, without a collective occupational response, that some severe incompetence is at play in the regulatory body.

Of course, the fact that foster kids are involved also exposes a problem at the responsible ministry in the provincial government. How this is getting past the minister responsible for foster kids, and the minister of health, without alarm bells is a mystery to me. But they may be milking political currency from appearing to be "trans-affirmative," and thus may not care about the kids. By the time the lawsuits begin and the ritual government apology has to be offered for this Sixties Scoop 2.0, they will probably be long out of politics.

But my concern at the moment is the failure of the professional self-regulatory body for psychologists to, well, self-regulate.

It is not a secret that these bodies have trouble keeping their eye on the public interest, even though they are mandated to exist only for that reason. From time to time, scandalous events force political attention to these institutions, and that actually happened just last year in BC. The College of Dentistry reached a state of apparent non-functionality, and the Minister of Health, Adrian Dix - to his credit - requested a detailed review from a British professional regulations expert, Harry Cayton.

The resulting report, published in December 2018, the Cayton report, showed that the flaws in these organizations are structural; that their very make-up precludes attention to the public interest and enables cronyism and corruption.

Most of the Colleges in the health profession have taken notice of the Cayton report. The College of Psychologists is not one of them. There is no more evidence of serious self-awareness in their responses to me than there would have been had the Cayton Report never been written.

Here is a nice little summary of the Cayton Report: https://www.sml-law.com/wp-content/uploads/2019/05/Greyar236.pdf.

The speech by Dr. Wong can be found here: https://www.docdroid.net/E9rCRzD/dr-w-wong-transcript-feb-28-19.pdf.

I am not entirely comfortable publicizing the contents of my complaint. What I will do is relate the sequence of events:

June 2019
- complaint submitted
- College sends me a form to fill out

August 2019
- College sends me a "to ensure that the College adequately understands your concerns" letter, asking me to provide line and page references to each of the allegations in my complaint, on a 2-week deadline.
- I write back declining to spend additional time reading the transcript again for them.
- a further two letters are sent by the College affirming that they are proceeding without additional information from me.

October 2019
- College sends me a response to my complaint from Dr. Wong, and a separate one from his lawyer, with an option to reply by November 5th.
- College also sends a statement of intention to complete its work by December 24th, 2019.
- I send my response to the responses (!) at the end of the month.

January 2020
- I send some supplementary information to the College, since I have not heard from them and presume the deadline has been missed.
- the College responds with two letters. In one, they explain that under the Health Professions Act, they now have to pause the investigation for 30 days in case I or Dr. Wong want to appeal to the Health Professions Review Board. In another, they ask for more information about the supplementary information I've sent in.

At this moment, I have written back to the College to say I will think about appealing, and declining to send them more information. The inquiry (if any has been started) is on pause until March.

More news when I have it!












Wednesday, 19 February 2020

Ex turpi causa non oritur actio

(lightly edited February 20th, 5 pm)

Laura Lynn Tyler Thompson is being persecuted for allegedly violating court orders that seek to keep a hermetic seal on information about an explosive BC case about a transgender child legally emancipating herself from her father in order to take cross-sex hormones.

This case, as prominent child advocate Jenn Smith has said, is the most important case in Canada right now on the transgender file. But its importance far exceeds transgenderism itself.

I am not overstating the matter when I say that the stakes include the credibility of the legal system itself. Because in the course of hearing this case, the courts have dispensed with objective reality. And when the courts lose contact with reality, they can no longer be relied on to seek truth in the settling of disputes, the interpretation of laws, or the trying of persons accused of crimes.

I say this with considerable grief, because as readers of this blog will know, I love the law; I love good judicial reasoning; I love that the full intellectual prowess of the judiciary is brought to bear on the needs and disputes of ordinary people with, so often, results that rest in the common fundamental humanity that unites us all. We're losing all that, because the courts are sacrificing their own integrity to kowtow to a destructive and delusional cult known as "transgenderism."

How far gone are the courts? Beginning with a decision by Mr. Justice Bowden heard almost exactly a year ago, this child was described to the court as "a transgender boy." Now, there is no such thing as a "transgender boy." Once a judge will believe that there is, all bets are off as to what else they can be made to believe.

What has been done to this child - in short, it's been the grooming and recruitment of a vulnerable girl to trust predatory adults rather than to trust her parents - is also a wrecking ball for all of family law. What is a parental right worth, or the legal protection of liberty in parenting, if teachers, school counsellors, psychologists, or doctors can waltz into a child's life & take over ad litem guardianship to legally oust her parents from her care?

We assume that because these people have credentials and a professional license, that they cannot possibly be harmful for a child. But professional licensing means nothing any more; the regulatory bodies are only protectionist, and they too have fallen victim to the same cult.

It is staggering to consider how much of the legal framework of democratic life is under threat. After all, how much of the concept of parental duty can survive if a parent exercising his duty to perfection loses his legal position as parent when he does so?

If you have not heard about this case or read the decision, you may think I am talking gibberish. So here is the super-condensed version:

a) child of recently-divorced parents exhibits signs of social distress at school, and is talked into identifying as the opposite sex by school counsellors without her parents' knowledge.

b) counsellors get child into the hands of a psychologist and an endocrinologist who put just one treatment option in front of her, and when the father objects, jointly take custody of the child for legal purposes. They hand the girl over to a lawyer who has her own tortured history with sexual identity, and who is on record as believing that parents pose a danger to children who are anything but perfect ordinary heterosexuals. She is quoted to that effect toward the end of this article: https://www.straight.com/life/652381/vancouver-school-boards-lgbtq-policy-sparks-debate

c) this lawyer works tightly with the lawyer for the girl's mother, and with lawyers for the psychologist, the endocrinologist, the hospital, the ministry of education, and for the parent-hating lawyer herself, and as a phalanx, they descend on the court and demolish the case the father's lawyer is able to put forward on short-notice preparation & a shoestring budget.

d) while dizzying the father and his legal team with a never-ending onslaught of procedural shenanigans in front of duped or complicit judges, the parent-hating lawyer engineers the child's legal name & "sex" change.

e) in the BC Court of Appeal, these measures are presented to gullible judges as "irreversible" reasons why they cannot back the child away from her toxic drug regime, and despite being three smart judges, all of them sing from the same song sheet as the court below, and they keep the drug regime in place.

f) the father is not only denied his parental right to protect his daughter from these vultures, but also, he is prohibited from talking to his daughter about his opinions, from talking to anyone about his experiences, and finally, there is a publication ban even on the names of the medical professionals who have done this twisted thing to this child.

g) when the father does talk to the few media who want to interview him (most from outside the country), the phalanx of opposing lawyers complain to a sympathetic judge, Madam Justice Marzari. When one lawyer says she is reluctant to exercise the full force of the court order, which says the father will go to jail if he refers to his daughter as a girl or talks to the press, Marzari says, yes, it would be hard on the child if her father goes to jail. When the lawyer demurs that it would be hard on the father for his own sake, the judge doubles down on saying that the father's fate matters only on the basis that it might pain the child.

This, to me, was the single most self-degrading moment for the courts in all the hearings I heard (and I heard all but the first one). The judge flat-out denied a Canadian man his fundamental humanity, to the point of not acknowledging that he could feel pain.

We treat food animals better than this.

A judge who does not believe in the humanity of men does not belong in a Canadian courtroom. I am normally not a "heads should roll" kind of problem-solver, but there is no prospect of recovery for a judge from an error like this - not in 2019. That she did this immediately after denying a motion that she should recuse herself due to having been president of an organization that lobbies to promote the transcult is further testament of her spectacular lack of self-awareness.

At the very least, she should never hear cases involving men, and male lawyers should refuse to appear before her, especially if they represent male clients.

OK, so that wasn't super-condensed. But it brings us to today where we have:

- a formerly healthy, if suffering due to family breakup, girl now taking testosterone for nearly a year, her voice gone raspy and facial hair growing, along with all the other toxic side effects that are so far invisible,

- the case possibly en route to the Supreme Court of Canada, if the resources can be mustered for the father, while the unwitting public purse pays endlessly for the opposing phalanx of lawyers,

- a father growing increasingly restive from having his ability to tell his story - the story of a parent whose child has been kidnapped - constrained,

- a growing body of support for the father, and public alarm about the power of the transcult's "long march through the institutions," and

- growing frustration with the courts for being both inaccessible, and unresponsive to ordinary people who do manage access, and uncaring about law.

Similar to the Alberta citizens who finally dismantled the environmental activist blockades today in frustration with the federal Liberal government's incoherent paralysis, the father has decided to publicize the case in frustration with the court's inability to apply the law correctly. When institutions fail, the people will do what they have to do to keep society going. He began speaking out last week, and did interviews with some Canadian on-line personalities, among them Laura Lynn Tyler Thompson, Frank Vaughan, and Jenn Smith.

The phalanx of lawyers, no doubt seeing another opportunity to siphon some money from the public purse and to intimidate disobedient parents, began spraying C&D letters at anyone involved, and that resulted in some court appearances by Laura Lynn, Jenn, and the father.

The comedy, if only it were funny, thus continues.

I am writing this post in part to talk about a small part that I played in the case - I applied to intervene in the BC Court of Appeal hearing. I did this because something like 5 trans-promoting organizations were applying to intervene, and having watched all the lower court judges succumb mindlessly to transgender propaganda, I felt the appeal court judges would need an interpreter to cleanse those submissions of their embedded mind games.

I am ideally placed to do this interpretation, having a health care background and having watched the transcult since its infancy make its way into public schools. It was honestly torture listening to lawyers and judges trying to make sense of the medical information before them, and my instinct was to try to help the poor creatures. As for the propaganda, which is just a thin veneer over a gaslighting and parental alienation objective, it is easy enough to decipher: remember pig-latin? You just have to know the code, and the real messages quickly become clear.

I also applied because I have some expertise in the issue of professional malpractice, a possibility the court simply did not factor in. Credentials seem to dull the court's critical thinking faculties, so that it simply never occurred to them to question whether a psychologist or an endocrinologist might be either incompetent, or might have malign intent, even if what they were recommending on the basis of their credentials was nothing less than the mutilation of a child's body.

Given the courts' history of trustingly believing the unlikely parent-hating pathologist Charles Smith in Ontario infant death cases, a guy who was subsequently shown to be literally making stuff up, one would think judges would be suspicious of a couple of medical types who were trying to transition a kid within hours of meeting her for the first time. But the only suspicion the courts seemed to have was reserved for the medical experts who sent in affidavits supporting the father's reluctance to put his daughter on this road while she was still a minor, and while the idea was still pretty new for her.

The appeal court judge who heard the intervener applications heard them all out with deference, except for mine. I got about five minutes in, and he suddenly realized it was almost break time, so he asked me a couple of questions, taking me totally out of sequence relative to my planned notes, although I did get most of my points made in the end.

In the end he granted intervener status to six organizations, four of them representing the transcult, and two representing the rule of law in Canada. He denied my application, as well as that of one of the transcult organizations. Mr. Justice Goepel's decisions on the intervener applications is here: https://www.canlii.org/en/bc/bcca/doc/2019/2019bcca297/2019bcca297.html.

And the points I had wanted to make as an intervener were precisely the traps that the appeal court panel that heard the appeal subsequently fell into. They were made to believe that testosterone is "therapy," when in fact it is poison for girls; they didn't perceive that parental alienation is a feature of trans recruitment, not a bug; and finally, they failed to be properly untrusting of medical and psychological licensing.

They also catastrophically failed the girl when they judged her to have been mature enough to consent to having her body altered to mimic masculinity. A parent activist in Burnaby later shared with me some very useful materials on the topic of maturity, which should have been before the court:



I am also writing about this case because I am alarmed at the courts' conversion into an Inquisition. The courts are unique as an institution because they are designed to detect and correct THEIR OWN errors. The existence of the appeal mechanism recognizes that errors occur, and recognizes also that to protect the courts' credibility, justice must be done even if it means that errors made by judges must be exposed - and really exposed: they must be acknowledged and picked apart in open court.

And courts have made catastrophic errors, often. The increasing remoteness of the appeal process is one of the more alarming aspects of the Access to Justice crisis. The whole wrongful conviction genre stands as proof that judges are tragically fallible (and that all the other parts of the system are too). But the errors are not the problem. It's pretending they didn't happen and sweeping them under the carpet that degrades the institution of the judiciary - because to hide mistakes, they have to become increasingly draconian.

The Court of Appeal did dial back some of the restrictions on the dad. But they failed as an institutional error-correction mechanism because they did not correct the basic mistake that Justices Bowden and Marzari made in believing that the whole transgender phenomenon is not a farce and a delusion of money-making advocates.

They failed on the precautionary principle, because they kept the girl on the drugs while the matter remains in doubt, rather than taking her off them until the father was satisfied.

And they still referred to the girl as "he."

Which is why I think it is now open season on how we refer to judges. We can call them:
Madam Justice Bowden.
Mr. Justice Marzari.
Madam Chief Justice Hinkson.
Madam Justice Goepel.
Madam Chief Justice Bauman.
Madam Justice Groberman.
Mr. Justice Fisher.

Because sex is no longer verifiable in law, there is no way to prove that that's wrong.

For anyone who has read this far, I want to say one other thing: this is not the first case of its kind. There was a nearly identical case in Prince George in 2016, which as far as I recall received little reporting, barring the little article below. There too, the judge fell fully into line with the nonsense about sex being "assigned at birth."
https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc744/2016bcsc744.html

And you think 14 is too young to decide whether to mutilate your body? The kid in Prince George was ELEVEN. And the drug the judge left that girl on was not testosterone. It was Lupron.

The courts are now actively confiscating children and poisoning them. And then keeping everyone quiet about it, and upholding each other's decisions as if each were a brilliant piece of jurisprudence.

Oh, and the title of my blog post? "The latin maxim ex turpi causa non oritur actio refers to the fact that no action may be founded on illegal or immoral conduct." The courts are not supposed to lend their credibility to thieving knaves the the like.

A "thieving knave" may be comparatively harmless relative to lawyer Barbara Findlay. It turns out she was the child's lawyer in the 2016 case as well, also overriding the father's objections to his daughter being damaged with drugs. I wonder how many other children she has legally kidnapped.
















Wednesday, 9 October 2019

Access-to-Justice, Legal Aid: Federal Election Perspective

Yesterday, the Lawyer's Daily published a call for the funding of Legal Aid to be a federal election issue. 

As I am presently a candidate in the federal election, running for the People's Party of Canada in Vancouver East, and since legal reform is one of my primary reasons for running for office, I submitted a response. 

Here is the piece: 

My statement here is not an official position of the People’s Party in Canada, but rather represents my own analysis. However, I chose to run for the PPC in part because I judge it to be the only federal party under which any hope exists of meaningfully reforming the justice system, and these are the ideas I plan to put forward for development within the party, whatever the electoral outcome. 

I come to this issue having self-represented in court and having supported other SRLs, to the point of being granted a privilege of audience to appear for an SRL in the BC Court of Appeal. In addition, I am an analyst of expert-centred complex systems, and have applied my lens to education, health care, law, academe, and the self-regulating professions. 

It is far more productive to consider why the demands on legal aid are so high, rather than to reflexily deem legal aid to be underfunded. Legal aid is a small piece of the Access-to-Justice puzzle, and the puzzle is best addressed as a whole. The biggest component of the puzzle is the judiciary itself, as I put it in a recent essay on loss of public confidence in the courts: 

"In 1971, Parliament ceded its authority over judicial conduct by creating the Canadian Judicial Council. This was the cornerstone of what has become a massive bureaucratic edifice that institutionalizes the judiciary and mires it in cronyism, rather than ensuring its independence.

With the introduction of the Charter of Rights and Freedoms in 1982, case complexity increased. On the criminal side, the Charter led to the quadrupling or more of case duration and an exponential increase in the demands on Legal Aid. It also boosted demands on lawyers to do pro bono work. On the civil side, various special interest groups immediately began to test the Charter provisions that would benefit them.

So complex have all types of cases become that each Supreme Court of Canada judge now has four clerks. Provincial level judges, meanwhile, process these same cases with at most one clerk, or none at all.

These are just some of the ways the Charter has taken legal resources, such as lawyer time, away from the retail level and made them part of an increasingly inaccessible and expensive law empire that serves itself first, and best. More funding will not resolve its dysfunction; rather, it will incentivize further pointless growth.

It is widely agreed that the Charter completely changed the job description of Supreme Court of Canada judges. Until 1982, the top court’s job was to develop the law, as needed, to facilitate cohesive decision- making by the lower courts, rather than directly resolving disputes.

Thirty-five years after the Charter, the court now views its role as “deciding legal issues of public importance.”But there is no process to determine what is really publicly important, other than to choose from the cases brought before it.

Since those who can bring cases are overwhelmingly groups and corporations, or criminals defended at public expense, this conception of the court’s role has functioned to elbow the ordinary individual out of public law, and has allowed activists to use the courts to advance their purposes. New groups have been formed by lawyers for the specific purpose of shaping the law, using their legal expertise to do an end- run around the political process and the electorate – often opposing the interests of ordinary people.

So powerful have these special interests become as a result of their litigation successes that the courts themselves do not dare to offend them. The result is a body of common law that panders to ideology, and fails to uphold the fundamental doctrines of law.

The Supreme Court of Canada has been credibly described as “Governing from the Bench,”and the more it views its role as “pronouncing upon values,”the more the quality of law in Canada deteriorates in a way that neither the appeals process nor the complaints process can curtail. The public perceives that the law is becoming increasingly arbitrary, and trusts the judiciary less as a result."

What should be an issue in the federal election is not simply legal aid, but the modern edifice of the judiciary, and the legal system that the judiciary has allowed to grow around itself. Reform of the legal system is needed at all levels of government, but the lead must come from the federal level.

I have listed a tentative package of proposals that I feel would, in aggregate, address the four most obvious symptoms of legal system malaise: the quality of judging, the handling of self-represented litigants, the complexity and volume of family law disputes, and the grey-area status of administrative tribunals.

At the end of implementing all of these proposals, Legal Aid would still be necessary. But expenditures would be at the level of what is necessary, rather than utopian, because cases would be less expensive for everyone whether they are funded by Legal Aid or not.
  • Abolish the Canadian Judicial Council and the National Judicial Institute.
  • Establish a system of judicial quality assessment audits.
  • Reduce funding for judicial clerks.
  • Relieve the structural inequity and risk involved when individuals pursue grievances against agencies that defend themselves at public expense.
  • Disallow awards of costs in such cases.*
  • Make funding available to appoint amici curiae for affected interests that are not represented by groups in public law cases brought by interest groups.
  • Reduce room for conflict in family law: redraft the Divorce Act to:
o make 50:50 custody the default option, and
o revisit the “best interests of the child” standard to give divorced people equal rights and  protections relative to intact families.
  • Establish a new federal court, if necessary, to expand federal appeal capacity, especially for cases involving self-represented litigants.
  • Lower any federal barriers to Alternative Business Structures for the practice of law and alternative dispute resolution.
  • Take administrative tribunals out of their legal grey area by upgrading, downgrading, or abolishing them.
  • Defund universities that do not uphold freedom of expression  [already in platform, under Freedom of Expression] to protect the quality of legal education.
*edited to add



Tuesday, 1 January 2019

Mirror Mirror on the Wall: What the legal system's A2J work really looks like so far

The access-to-justice industry has gotten big: I would venture a guess that the legal system jobs generated by the access-to-justice problem now number in the hundreds. By this I don't mean just actual identifiable jobs, but overall FTEs (full time equivalents). A lot of other jobs have proliferated because an A2J component has been added to so many of them.

Yet the quality of work being done on A2J remains pretty sad.* Almost none of it rises above the category of "rent-seeking," including the work being done at the very top.


A recent article in The Lawyer's Daily featured two people at the very top talking with each other:

https://www.thelawyersdaily.ca/articles/9271, and it merits a contemplative pause at the beginning of 2019.

If you read this sycophantic, self-aggrandizing interview (and here I am referring to both participants), you would think the A2J problem is well on its way to being solved. But the real state of affairs is nowhere near being solved, and if you know that, as almost anyone on the street does, you cannot help but notice how utterly tone deaf these people are. Their own pronouncements sound wise to them, and negative information to the contrary is simply inaudible.


These people clearly have very low expectations of themselves and others, and are therefore far too easily satisfied, with both themselves and each other.


The public expects better. How much better? Well, how about if we start with an accurate depiction of exactly how bad these people's work is instead of participating in the big lie that their work has some merit. I'll try to put this into a metaphor that everyone can understand: medical system wait lists.

Here is what most law reform and A2J initiatives look like if you transfer them into the medical sector:


There are 100 people waiting for immediate hip joint replacement operations, all of whom are in excruciating pain. 

The status quo has 2 people being operated on per day, with one of them experiencing catastrophic outcomes ranging from death to extreme leg length discrepancy. 

Each day, 3 new people join the waiting list as their pain becomes so intolerable that they become willing to take the risk of being operated on.

The medical system says "wow, we have a problem with wait times. What shall we do? First let’s evaluate just how many people really have hip problems, including any and all problems, not just operable issues. Then, let’s launch a public education program so that people know what a hip problem is. First, though, we better inform them about "what is a hip."

Millions of dollars are spent on this public education campaign. 

Five years out, the status quo is:

1925 people are now on the public waiting list. 
3650 hip replacement surgeries have been done. 
1825 people are dealing with catastrophic effects of their surgeries, or are dead.

The public education campaign is evaluated by doing surveys to test the public's knowledge about hip joints, and whether or not they can distinguish their hip joint from their knee.

In the course of the surveys, it is noted that most people on the waiting list are people with grey hair. That seems discriminatory. Several doctors who do not do hip operations are very worried about this discrimination and want more people with red hair to be getting hip replacements. These doctors form a non-profit society and get funding from the Medical Foundation to fight this discrimination. They hire one of the doctors who currently does hip operations to operate only on red-headed people, independent of their pain level, rather than on whoever is next on the public waiting list. 

The doctor they hire is the one whose patients rarely experience complications. The only doctor now working on public wait list patients is the one whose work usually produces bad outcomes. 

This metaphor is simplified, but it is not exaggerated. If anything, it omits a few sources of idiocy. But as I have been trying to convey on this blog for some time, inside reformers may be smart people - hell, they are LAWYERS - but the quality of their work on access-to-justice is fatally compromised by their assumption that other people are dumb.

Having now spent nearly six years in the grassroots among unrepresented litigants, I can tell you that the people experiencing B2J (barriers to justice) are anything but dumb. Some of them may have been naive, but as their cynicism sets in, the quality of their insight and understanding - to both the legal system and the law itself - is blistering.

In contrast, the current state of insider self-awareness in the legal sector is equivalent to the medical sector looking at the scenario above and saying "aren't we doing a great job." I'm not here to say the medical sector isn't prone to this kind of thinking - people in all these expert-centred complex systems are prone to enhanced self-regard. But the legal system is engaging in mutual self-congratulation to an extreme degree, and one reason is that they ARE doing a great job - just, they're doing great for themselves and each other, not for the people who don't have access-to-justice.


Like the public school system, which for decades has not been about education for kids but about jobs for adults, the legal system is not about access to justice for peons, but about access to elite circles for lawyers. And those elite circles meet in rooms that have really bad acoustics: everyone in them becomes tone deaf.


The longer we peons rely on the people in those rooms to solve the A2J problem, the longer we will wait. Political solutions are starting to look like our only hope.





*With important exceptions. You can tell who they are because they don't get defensive when someone says the A2J industry is doing a crappy job.

Saturday, 7 July 2018

Mistrial in the Court of Public Opinion: the strange case of Robin Camp

My latest writing about legal events, "Mistrial in the Court of Public Opinion: the strange case of Robin Camp," has been published on The Lighthouse Project at https://www.thelighthouseproject.ca/mistrial-in-the-court-of-public-opinion-the-strange-case-of-robin-camp/.

I have previously written about the case from other perspectives here on this blog, but the Lighthouse piece focusses on the behaviour of the media.

Wednesday, 9 May 2018

Why is there no lawyer for the kids and the parents?

As I explain in my bio, my entry into the legal reform/access-to-justice arena was via a public law case concerning schools, and the competing interests at war within them. I spent some 20 years investigating power dynamics in public schooling, in real time and historically, and continue to watch the education system carefully. My legal applications on the matter spanned the 2012-2016 period.

A really fascinating element to study is the parent representative bodies. As documented in Parents and Schools: 150 years of struggle for control of public schools, by William W. Cutler, III, cultivating parent approval is a task that is assiduously undertaken by school personnel, and the challenge to parents has always been to avoid becoming lapdogs; to rather remain vigilant about their children's interests. In effect, parent organizations are an important illusory technique for sustaining compulsory enrolment and its corrupting effect of creating a rent-seeking executive class. If there were no parent organizations "for sorting and controlling"* parent response to schooling, there would be protests and revolts (those occur sometimes anyway, rarely organized by the official parent organizations). Compulsory school laws could not have survived this long without creating some channels through which parental energy can be collected, given an outlet, and then ignored. 

Parent organizations have been so effectively managed that most are fundamentally complicit in rent-seeking (ie, in fostering the abuse of institutional power for the benefit of paid stakeholders and against the interests of unpaid stakeholders). In my province, British Columbia, this state of decay is more advanced than in most places, partly because our teachers' unions have so relentlessly cultivated public belief in their agenda, and parents who buy into it have established themselves as parent leaders. 

As a result, our parent representation infrastructure is long past its best-before date to the point of actively supporting non-consensual psychological experimentation with other people's children. As a result, I've now made a public call for the provincial parent organization to be dismantled, and for it to be replaced with a legal office that gives unpaid stakeholders an equal voice in the place that matters most: the courts. 

My presentation suggesting this legal office, as a new independent office of the legislature, is now posted on my education blog: https://edrogue.blogspot.ca/2018/05/why-is-there-no-lawyer-for-kids-and.html

The full citation for the book mentioned above, with some links where you can get a better flavour of the contents, is here:

Parents and Schools: The 150 Year Struggle for Control in American Education. By William W. Cutler, III (Chicago: University of Chicago Press, 2000. xiii plus 290 pp.). 

https://muse.jhu.edu/article/17984/summary

https://www.thefreelibrary.com/Parents+and+School%3a+The+150+Year+Struggle+for+Control+in+American...-a082066762


*I'm not sure this is verbatim; it's from memory

Monday, 11 December 2017

Banned from Slaw: Response to The Legal Council of Elrond

A recent post on Slaw.ca by law system consultant and chronicler Jordan Furlong has generated a conversation that brings out many meritorious points about legal system reform. I am really happy both at the nature of the comments that have been made, and that the site moderator has decided to post them.

I can't post on the site because I was banned from commenting there (the timing suggests it was because I filed Code of Conduct complaints about Jennifer Koshan and Slaw denizen Alice Woolley in the Robin Camp matter). But even if I could, one of the reasons I started this blog was to have room to say more, so here is my response to "The Legal Council of Elrond."

Mr. Furlong's piece is a fairly generic proposal for top-down change in the tradition of letting the foxes decide how to reform the henhouse. I'm not going to patronize Mr. Furlong here by pretending the proposal is better than it is, partly because his post wasn't actually about his proposal, so much as about the fact that the system needs to get serious about having the conversation. So it seems to me that he took the risk of putting his own ideas on the table in the interests of generating other, possibly better ideas.

And for that purpose, really any ideas will do. In landscape design, one is sometimes advised to put up anything, just a stick or a broom, in an empty landscape, just to give the designer's eye a reference point; something to respond to. There is no need to criticize the stick because everyone knows it is just a stick. It helps to say things like "the stick is too short," or "the stick needs to be further west," but doing so is more a definition of what the ultimate design should look like, not a suggestion to get a taller stick.

And that is pretty much what the ensuing conversation on Slaw looks like. It is, to be honest, one of the best conversations I have seen on Slaw, so I think Mr. Furlong succeeded in his objective. And one of the themes that emerges most strongly from the comments is that people both inside and outside the legal system are now fully cognizant of the reality that the solutions to any of the crises now facing the legal system are not going to come from the people who are successful inside the system as it is now.

Both the hens and some of the foxes are clear that foxes and head foxes and the farmer are not going to build a henhouse that is better for hens.

Yet it may still not be totally clear to lawyers & judges why experts from outside law need to be involved in the legal reform process. There are a number of reasons, but one of the most compelling is that the task of accurate problem identification – the first step required for any rational problem-solving process – requires complete freedom of speech. Lawyers do not have freedom of speech about the legal system. They have too many relationships. They also do not have the expertise in system design to identify and solve problems they are part of, but the root problem is that even if they do see what needs doing, they cannot say it.

Let me illustrate by saying two things in response to the thread on Slaw that no lawyer or law professor or judge or legal librarian or anyone in law can say or will be able to say in the foreseeable future, whether they think them or not.

1) The faster Ms. McLachlin rides off into the sunset, the better it will be for the legal system. Not only must her successor be able to seize the reins and operate free of her shadow, but also, her term has been far too long and her strengths and weaknesses are too strongly imprinted on the system as it stands. While I appreciate the chaos in the chief justice role that preceded her appointment and made it seem the right one, it was a grievous error to appoint anyone so young, whose term could be foreseen to be so atypically long. Leadership renewal is sometimes necessary not because a change of leadership is needed, but because a system recalibration is needed, and leadership change coincidentally accomplishes this. Due to Ms. McLachlin’s long tenure, the entire legal infrastructure has been deprived of any renewal impetus for nearly twenty years; it has simply grown, without even random correction, due to stagnation in the leadership role.

2) Mr. Cromwell was an outstanding judge, and the loss of his services to the bench 10 years before he was due to retire was a tragedy for the administration of justice in Canada. However, an outstanding judge is not automatically an outstanding leader of legal reform. Mr. Cromwell is entirely out of his wheelhouse on this topic, and is flailing badly. The utter irrelevance of the “Action Committee” to which he refers on this thread makes the point.

I do not say that my statements on either of these points are gospel truth. My point is that these views need to be capable of being articulated in whatever assembly is discussing legal reform. If these things can be said, then so can anything else that needs saying.

Once everything that needs saying can be put on the table, then accurate problem identification can be achieved. For what it's worth, my statement of the problem the legal system faces would be: excessive institutionalization and the concomitant intellectual ossification of the experts within it.

But the solution does not automatically emerge from naming the problem. For that, one needs much more understanding of the system, of its component organizations and the relationships between them. One needs to understand precisely what is happening to the people who enter the system as litigants or SRLs, as individuals or as powerful agencies - and to those who enter it as lawyers. One needs to understand the flow of money, and of information. One needs to understand the barriers to justice before one can create access to justice.

Much of this is management skill, which lawyers and judges universally do not have and should hire. But legal knowledge is still necessary to heal the legal system, partly because many of the barriers to justice are embedded deep within the practices of the law itself: the rules of standing, stare decisis, the adversary system and the principle of party autonomy on which it rests. The law, as a very articulate lawyer said on Twitter the other day (and I paraphrase), was not made for peasants; it was made for the aristocracy. To which I would add: to now make it accessible to peasants, its very bones need to be examined.

But there is one more component that is necessary, I would argue, for the constructive reform of the law, and that is a love for the law itself. When I first became aware of the legal framework of life, which had somehow eluded me for my first 50 years, I was entranced; its emergence made me feel like Luke watching Yoda lift the spaceship out of the swamp (sorry, I know that spoils the Lord of the Rings theme). And as I explored how that framework of law has been designed, tweaked, and finessed to remain relevant century after century, and adapted from nation to nation, I was hooked. The breathtaking capacity for nuanced thought and the articulation of it of which judges and lawyers are capable is a source of endless delight. That may be one reason why the legal system's tethering of that capacity into a growing and inelegant institutional form is so distressing to me.

In a way, the law needs nothing more at this point than to be set free: free of the massive economic enterprise that it has become, free of the stifling network of relationships it imposes on all its practitioners, free of the expectations that lawyers need to change the world rather than just to help their individual clients.

Legal education should be about the law, not about the professors and the schools, and the courts should be about the law, not about processes and rules. A fairly reliable species of justice is inherent within the law, and somehow that has gotten lost under layers and layers of bilge.

The problem here isn't so much that the emperor isn't wearing any clothes, but rather that he is wearing too darn many. He is suffocating in layers and layers of velvet and ermine, can't see where he is going, and is now easily mis-led.

Bringing our poor over-swaddled emperor to a summit meeting of similarly overdressed ensigns for a game of strip poker could be fun. But they might be less stressed if they could divest themselves of their excess trappings in a more relaxed environment.