Dear Justice Abella: you created the problem. You can fix it. This is a good start.

In an April 24th piece published in the Globe and Mail (pasted below), Supreme Court of Canada Justice Rosalie Abella argued that “It’s time to think about designing a whole new way to deliver justice to ordinary people with ordinary disputes and ordinary bank accounts.” In support of her thesis, she expressed incredulity that civil trials have not changed much since 1906.

I would argue that she has this backward: the legal system has changed too much, not too little, from 1906.

Justice Abella raises so many flawed assumptions in her 1000 words that it would take 5000 to effectively rebut them all, but what rises most clearly from her essay is the devoutness of her belief that improving the legal access of ordinary people requires massive redesign.

She made that point more explicitly in a 2011 speech at the University College of London. Justice Abella closed that speech with:

“So there you have it, a brief sketch of how judges live in the house of justice,
and a plea for renovating every floor in that house so the public gets better and
more effective access to it and the rights it protects. Now all we need are the right
architects . ..”

Justice Abella is so wrong. The house doesn't need redesign; it needs shrinkage. She may not realize this because she has been one of the architects who have built the modern house of justice, and like most, doesn't realize that her work may actually be the problem. The house of justice is so much bigger than it was in 1906 that I would suggest, before they start renovating all the floors, they consider whether they added too many, and if they built on ground that was solid enough.

Of course, law is not really a physical presence, and it is built on a foundation of relationships. Judges and the public remain connected in a direct, immediate, even visceral way when the courts' day-to-day work consists of applying their high legal principles to the mundane cases we bring to them as civil litigants. That is the basis for calling it "justice."

The courts are meant to stay in step with their constituency this way: hearing about, and resolving, the actual problems that people actually have. 

But this relationship is foundering. What judges do today, driven by lawsuits brought by organizations that purport to speak on behalf of people, in a moral framework created by utopian professors, is to seek to resolve what rights and problems the public has in theory. This sea change, from reality to theory, is at the root of the access-to-justice crisis. Judges don't know who we are any more, so their judgements are becoming increasingly irrelevant to us.

It's like the 1906 house of justice had about three floors, with public on the ground and judges at the top, with lawyers occupying the middle. Now, they've inserted floors in between, the lawyers have sorted themselves out into multiple stratified layers, and there are also floors for law professors, law activists, big law firms, law bloggers, and all the accumulated bureaucratic detritus that supports and networks them.

Once organizations supplanted individuals in courtrooms, the deterioration toward impractical law and tone-deaf judging was inevitable. As with Vancouver city council, which has started taxing air rather than buildings, once one enters the realm of the imagination, it is hard to know where to stop.

Because judges never see the public any more, the public has become, to them, an abstract concept, not a reality. This makes the jurisdiction of the court itself an abstraction whose boundaries are fluid, leading judges to self-identify as quasi-legislators, intellectuals, bureaucrats, royalty, or even saviours. 

At the same time as judges have lost their focus and begun making more arbitrary and capricious decisions, the public hears less of what occurs in court because less of it is reported, and understands less of it because it does not affect us immediately.

The lost role of the press in brokering the relationship between judges and the public is barely noted. In 1906, the public heard more, and responded more. Is this always a good thing? No. But every downside has an unexamined upside, and vice versa. Avoiding public outrage might be a healthier incentive to induce judges to uphold the rule of law relative to, let’s say, an incentive to avoid criticism from law professors.

Because, when no one was watching, some floors were added to the house of law above the judiciary, to which the judiciary, which is supposed to be paramount & independent, is now subservient.

All in all, I applaud Justice Abella for having heard that the public is angry. But she has taken the wrong message from her insight. It’s not the anger that matters, but that she heard us. And it’s not just that she heard us: she also heard us instead of tuning in to the usual suspects, the other elite residents of the house of law.

A wonderful 1975 children’s book by Jack Kent, “There’s no such thing as a dragon,” is about the importance of being acknowledged. This is the message that I would send back to Justice Abella, that we don’t need a grand system redesign. We just need judges to notice us – every day, in every case, whether we are physically in the courtroom or not.

The best thing that Justice Abella can do, having now noticed us, is to continue to consider us in her day-to-day work, sending an elevator shaft through all the floors between her and us to make sure she acknowledges us in every case she hears. Applying the acknowledgement principle to questions as basic to civil litigation as “who has standing?” would do more to achieve the redesign she seeks than a team of architects could do.

Judges in 1906 weren’t perfect, but they knew who they were and what their job was. They may have been frustrated with their processes even then, but they upheld the principles on which all the legal advances of the 1900s were subsequently achieved.

We need today’s judges to reduce the house of law back to its original size, and send the elite rentseekers packing. Judge should be no higher than the third floor: above the riff-raff, but not so divorced from us that they cannot discern what is justice, and what is not.


The text of Abella's speech as published in The Globe and Mail on April 24, 2020

Our civil justice system needs to be brought into the 21st century
Rosalie Silberman Abella is a Supreme Court of Canada justice. This is an excerpt from a recent lecture at Harvard Law School.

I graduated from law school in 1970. North America had just experienced the social turbulence of the sixties, but I entered a world where there seemed to be a consensus about how to deal with justice issues – expand rights, respect differences and reduce disparity. We were all, I thought, on a unifying trajectory towards fairness. But then we discovered that too many people couldn’t afford us.
When I was in first year university, everyone told me to take philosophy with professor Marcus Long. In the very first class, he asked: “If a tree falls in the middle of a forest and no one hears it, does it make noise?” I turned to my best friend Sharon and said: “I’m outta here. Who cares?!”
Now that I’m older and don’t have the answers to everything the way I thought I did when I was 18, I realize what a wonderfully instructive metaphor Marcus Long’s question is. If you can’t hear something, you don’t know about it, and if you don’t know about it, then it possibly doesn’t exist for you. And if it doesn’t exist for you, there’s no need to do anything about it.
But that doesn’t mean the tree didn’t fall and make noise. And it doesn’t necessarily mean we can ignore it. It may have caused a lot of damage, and the longer you leave that damage, the harder it’ll be to fix. And what’s the noise we’ve been ignoring? The sound of a very angry public.
And it’s a public that’s been mad for a long, long time. Like the character from the movie Network, I’m not sure they’re going to take it any more. And frankly, I’m not sure they should.
I’m talking of course about access to justice. But I’m not talking about fees, or billings, or legal aid, or even pro bono. Those are our beloved old standards in the “access to justice” repertoire and I’m sure everyone knows those tunes very well. I have a more fundamental concern: I cannot for the life of me understand why we still resolve civil disputes the way we did more than a century ago.
In a speech to the American Bar Association called The Causes of Popular Dissatisfaction with the Administration of Justice, Roscoe Pound criticized the civil justice system’s trials for being overly fixated on procedure, overly adversarial, too expensive, too long and too out of date. The year was 1906.
1906 was three years after the Wright Brothers’ maiden flight at Kitty Hawk, 10 years after Plessy v. Ferguson told African-Americans that segregation was constitutional, eight years before the most cataclysmic war the world had ever fought, a generation before rural North America became urbanized and two generations before its governments became decidedly distributive.
But consider what’s happened to the rest of our reality since then: The horse and the buggy of 1906 have been replaced by cars and planes; morphine for medical aesthetics and the surgical knife have been replaced by the laser; caveat emptor has been replaced by consumer law; child labour has been replaced, period; a whole network of social services and systems is in place to replace the luck of the draw that used to characterize employment relationships; the phonograph has been replaced by Spotify; the hegemony of the majority has been replaced by the assertive diversity of minorities; and adoring wives have been replaced by exhausted ones.
And yet, with all these profound changes over the last 114 years in how we travel, live, govern and think, none of which would have been possible without fundamental experimentation and reform, we still conduct civil trials almost exactly the same way as we did in 1906. Any good litigator from 1906 could, with a few hours of coaching, feel perfectly at home in today’s courtrooms. Can we say that about any other profession?
If the medical profession hasn’t been afraid over the last century to experiment with life in order to find better ways to save it, can the legal system in conscience resist experimenting with justice in order to find better ways to deliver it?
Justice may be blind, but the public is not. And the public doesn’t think it should take forever and thousands of dollars to decide where their children should live, whether their employer should have fired them, or whether their accident was compensable. They want their day in court, not their years.
We can’t keep telling the public that this increasingly incomprehensible complicated process is in their interests and for their benefit, because they’re not buying it any more. When we say, “It can’t be done," and the public asks, “Why not?” they want a better reason than, “Because we’ve always done it this way.”
We can’t talk seriously about access to justice without getting serious about how inaccessible the result, not the system, is for most people. Process is the map, lawyers are the drivers, law is the highway and justice is the destination. We’re supposed to be experienced about the best, safest and fastest way to get there. If, much of the time, the public can’t get there because the maps are too complicated, then, as Gertrude Stein said, “There’s no there there.” And if there’s no “there there,” what’s the point of having a whole system to get to where almost no one can afford to go?
So let’s be bold and acknowledge that the public has judged our relationship with incremental change to have been largely Sisyphean. The tinkering at the edges, with reforms like mediation and arbitration, may have been a necessary rehearsal, but it hasn’t exactly been the hit with the public we thought it would be.
It’s time to think about designing a whole new way to deliver justice to ordinary people with ordinary disputes and ordinary bank accounts. That’s what real access to justice needs and that’s what the public is entitled to get. Justice must be seen to be believed. And getting people to believe in justice is what the legal system exists for. It’s time they got what they’re entitled to.
Keep your Opinions sharp and informed. Get the Opinion newsletter. Sign up today.