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:, 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.