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.



Sunday, 2 July 2017

Maybe it's time we dragged our eyes away from the Charter

Manitoba Court of Queen's Bench Chief Justice Glenn Joyal spoke at the Canadian Constitutional Foundation conference in January, 2017 about political culture in the post-Charter era.

I am indebted to Professor Leonid Sirota for news of the talk, thanks to his blog post in which he disagrees with it, here. More about his disagreement later.

Chief Justice Joyal's opening premise is that "Canadian political culture... has now fundamentally changed." (I quote that with confidence thanks to the transcript of the talk being available at Advocates for the Rule of Law). He went on to eloquently and informatively support that claim. I think I am correct in portraying his position as advocating judicial restraint and legislative recovery as the remedy, but I don't like to try to summarize; his position is comprehensive enough that I hope anyone interested will go to the source material, not take it from me.

Remedy aside, his premise forcibly reminded me of a 1969 article by two Yale law professors, Harry Wellington and Ralph K. Winter Jr, who wrote, in "The Limits of Collective Bargaining in Public Employment:"

"What is wrong with strikes in public employment is that because
they disrupt essential services, a large part of a mayor's political constituency
will press for a quick end to the strike with little concern
for the cost of settlement. The problem is that because market restraints
are attenuated and because public employee strikes cause inconvenience
to voters, such strikes too often succeed. Since other
interest groups with conflicting claims on municipal government do
not, as a general proposition, have anything approaching the effectiveness
of this union technique-or at least cannot maintain this relative
degree of power over the long run-they are put at a significant competitive
disadvantage in the political process. Where this is the case, it
must be said that the political process has been radically altered. And
because of the deceptive simplicity of the analogy to collective bargaining
in the private sector, the alteration may take place without anyone
realizing what has happened."

Emphasis in the above quote is mine. Although the term "political culture" is not precisely analogous to "political process," it seems to me that the chief justice's overall message is the one with which Wellington and Winter close the paragraph. What I heard Chief Justice Joyal saying was that something has changed, and it is time we realized what has happened.

But wait. Chief Justice Joyal is talking about the Charter. Wellington and Winter were talking about public sector collective bargaining. Same outcome, different cause. Unless....?

Is it possible that we attribute, in Canada, to the Charter things that are more correctly attributed to groups that have most successfully leveraged the Charter to achieve their objectives? Organized labour, specifically public sector organized labour, is one of the groups that has done precisely that, and that might account for this convergence.

Let's look at the timing. Wellington and Winter wrote in 1969, at which point there was already considerable experience with public sector bargaining in the US - they were not making predictions, but observing what was already going on. Public sector collective bargaining came to BC in the '72-'75 period, and progressed at about the same pace in the US and Canada. The Charter was enacted in 1982; early in the process. So the overlap is close enough that one could mistake the effect of one for the effect of the other.

One can delve deep into case law or into political history (or into union history for that matter) and find support for the thesis that organized labour has gained power continuously since the Charter was enacted, even if interpretations might vary as to whether they have enough of it yet, or not.

But that doesn't mean it was because of the Charter that unions gained power. Even the fact that their project had a Charter-based name - "the constitutionalization of labour" -  does not mean that their litigation work was the source of their power growth. It might just mean that colonizing the Charter was one of the things that organized labour had to do in Canada to get the power they wanted to have. In the US, maybe they had to do different things at different times, in the courts and outside of them. The end result is the same: it's now between tough and impossible for ordinary citizens to outgun organized labour in court or outside of it.

What works for one group is likely to be copied by others - and it has been. Chief Justice Joyal refers more broadly to "the de-facto constitutionalization of political and social issues." Again, these trends cross borders, as Chief Justice Joyal recognizes. During these years, the same forces have come at the courts, at legislatures, at societies from many diverse sources, such as through academe, through NGOs, and via international convention. This too may account for the fact that the US and other Anglo-American democracies are experiencing similar changes in political culture in the same time frame as Canada without having the element of the Charter. It's just that in Canada, getting Charter validation is one of the boxes you have to tick off to, for example, get your assisted suicide movement to a certain point.

There may be many reasons why it is important and timely for assisted suicide to be available. It may or may not be rational to frame it as a right or a freedom. That may simply be what you have to do to have it made into policy in Canada. So to attribute advances in assisted suicide or any other policy changes to the Charter, or to the courts in the time of the Charter, may lead to a flawed analysis.

Professor Sirota does not, if I understand him correctly, take issue with the chief justice as to whether the courts now out-power legislatures. They diverge, rather, on the issue of whether this is a good or a bad thing, Professor Sirota having more faith in the courts as an institution than he does in legislatures.

But I don't think either position fully understands the courts as an institution. Both have made a number of assumptions about the courts, as well as about legislatures, that can be dissected in such a way that a whole new perspective emerges.

What if legislatures have not been out-powered by the courts, but have rather quite happily retired into the background and let the courts do the dirty work of enacting unpopular or divisive policies? What if the courts are not agents of their own growth, but simply reacting to forces and opportunities that are put before them? And what if the public has let all of this happen but can correct it at will when the mood strikes them?

Which brings me to the assertion that the other element that neither combatant in this conversation fully appreciates is the public.

The discussion between Chief Justice Joyal and Professor Sirota is a discussion between experts, and one of the points on which they differ is on the topic of the non-expert view, although it must be acknowledged that the chief justice says less on this topic than the professor does. In the end, their view of the public may be both the most explosive point at issue here, and also, the biggest weakness in both their positions. Professor Sirota views the public as ignorant - the fact that legislatures are directed by idiots is a primary reason why he prefers to trust the courts. Chief Justice Joyal views Canadians rather as either uninformed or, if informed, then powerless.

Both view the court as the actor, the public as either passive recipient, reactive element, or victim. It's my premise, however, that in a democracy, such a view is wrong. The public is always the primary actor. It's just that what motivates the public to act is a bit unclear... until it happens.

The expert/non-expert divide is much discussed these days, post-Brexit and Trump, post-Rob Ford and Vancouver transit referendum, and many experts have weighed in on it (little joke there). But none of them has actually put a finger on the essential difference between experts and non-experts. Experts need to analyze, understand, justify, and seek permission to do things. Non-experts, the public, don't need to do any of this. They simply do what they feel needs to be done. And they don't have to justify it to anyone.

So while I agree that the court-legislature imbalance is a problem and while I do not under-appreciate the gravity of the situation, it is my opinion that in the long run, the people will be able to correct it. A podcast interview with Chief Justice Joyal after his speech at Runnymede Radio even shows one way they could do it: Section 33 of the Charter, the notwithstanding clause. All that is needed is for the public to elect governments that will invoke it.

Comedy again: the people's untrustworthy representatives who had been elected by the ignorant in 1982 put a clause in the Charter that allows legislatures to pretty much bypass the courts at will. That's not to say that's how it will happen, of course. In real life, the mechanism of correction is always a surprise.

The public is dismissed as non-expert, or ignorant, at experts' and institutions' peril. The public may not be able to dissect a fine legal point out of a complicated case or track the legal history of section 7, but they can, to a whisper, detect the moment at which a power imbalance has gone too far and a recovery must be made.

The public also has a reservoir of power that not many people recognize or appreciate. After every election, everyone bemoans low voter turnout, blinded by the belief, of course, that any voters who didn't bother to turn out would have voted with the complainer. But that position fails to appreciate what all those un-cast votes actually represent. They are a reservoir of power that, if mobilized, could change the political scene overnight. They represent a reminder to the institutions of democracy and to the experts in them: you govern with our consent.

So Job One for every political institution, including political parties, is to not disturb that quiescent force. The beauty of the system is that it is actually a very efficient use of the public's time. Very few people actually have to vote in order to decide who governs. Whether a leadership is elected by 48% of the electorate or by 3% of it, their duties and power are the same. They are supposed to govern in the interests of their region and everyone in it: those who voted for them and those who voted against, and also for those who did not vote.

The most useful definition of democracy I've ever heard came from a National Geographic article in which a political agent from a developing nation - one with a history mired in civil war - was interviewed. He identified the orderly transfer of power as the key attribute that differentiated the democratic ideal from what his nation had experienced.

So as I see it, the fact that we enjoy an orderly transfer of power to whoever is elected is more important by far than who we actually elect. I have felt for some time that we over-attribute what governments do to what parties they are or the personality of their leaders. To some extent - as I am arguing that the courts do too - governments respond to the conditions, opportunities, and challenges (and finances!) of their time in office. I suspect that some 3 out of every 5 policies that a government passes would have been handled exactly the same way had the opposing party been elected instead.

In other words, the reason that section 33 has not yet been invoked may not be because the people have not elected governments that will invoke it, or that will otherwise meaningfully override the courts, but because the conditions have not yet arisen that would induce a government to do so. The need has not been felt acutely enough. So the sleeping voters may not even have to mobilize to correct this imbalance - the governments we already have may do so when necessary. Or, I should say, they may do whatever is necessary to assert the authority they are supposed to have.

Just as they got section 33 into the Charter.

Chief Justice Joyal uses the term "ambassadors" for the Charter, taking the term from a speech recently given by the present Minister of Justice, the Honourable Jody Wilson-Raybould, who described herself as "an ambassador for the Charter." But let's keep in mind it was the very architect of the Charter, Pierre Trudeau, who invoked the War Measures Act. Governments do what they have to do when the conditions demand it, and while this government is doing many things that maybe no other government would do, I would submit that if it faces a real threat to its sovereignty, it too would do what has to be done, Charter and courts be damned.

Similarly, the courts, when that time comes, may quite properly cede precedence to the legislatures rather than battling them for it. Judicial restraint is unlikely in the presence of no incentives to exercise it. But on the day that being restrained and saying no to special interests becomes what the courts have to do to survive, they will do so.

But back to Wellington and Winter. Were they right, that the political process has been fundamentally altered? I'd say yes, as would anyone who has tried to achieve a political aim contrary to what organized labour or certain other current forces want. And I believe that is Chief Justice Joyal's essential message, one which Professor Sirota, if I read  him correctly, does not really oppose.

But there may be room for doubt that it happened "without anyone realizing what has happened."

The constitutionalization of labour project suggests that unionists and labour lawyers, at least, know darn well what has happened because it has been deliberate. That impression is affirmed by an article whose title quotes a BC teachers' union agent: "Structuring reality so that the law will follow." And so do all the other groups that have deliberately and successfully used the Charter as a tool to advance their social and political agendas.

And I think the public realizes it too, both unionized and non-unionized. If you tune into conversations among unionized public sector workers, it is palpable that they feel immunized by their Charter wins to the extent that they can articulate contempt for the public. And if you tune into conversations among the public at large, as can now be done in the on-line comments section of any major media story related to public sector labour, it is easy to see that contempt and resentment are more than reciprocated, and that people understand very well that elected officials are apparently powerless relative to organized labour, and that they know this is wrong.

Even, as I've suggested above, legislatures and courts themselves, and all the experts in them including the two whose dialogue is my topic today, may recognize very well that there has been a sea change in power distribution.

But what I think is possible is that even though everyone understands what has happened, no one correctly identifies, exactly, what really happened. That is what the superimposition of the two dialogues - public sector collective bargaining (USA 1969) and the impact of the Charter (Canada 2017) - shows. In Canada, we think everything that happens is because of how the courts have interpreted the Charter. This is particularly likely in a conversation between two experts in how the courts have interpreted the Charter. But if exactly the same outcome has occurred where there is no Charter, then it is likely that we are wrongly distributing both blame and credit. And with blame and credit wrongly distributed, proposed solutions are also going to be wrong.

This is where it becomes important that the element of "the public" is correctly understood.

Experts, analysts, and diagnosticians may argue about what caused what to happen and how it should be fixed. What the public has, however, is an unerring capability to know exactly where it hurts, and to identify the moment when the pain becomes unbearable. When it does, they'll fix it, one way or another. They won't analyze, they won't explain, they won't weigh pros and cons; they won't justify. They will simply act.

Professor Sirota very wisely brings up the issue of incentives as a way to evaluate and predict institutional behaviour. He believes that the courts are better incentivized to make policy that is in the public interest than legislatures are, which are constituted so that they pander to idiots. I would take issue with this view of how the courts are incentivized, but it is not germane to the topic of this post to do so. Suffice it to say that when the public takes action, the courts will be reacting, not acting, and that their incentive structure will quickly change.

I'm not the biggest fan of my fellow travellers in the public realm sometimes, but on the subject of power imbalance, it simply doesn't matter whether the public is ignorant or not. They will prevail to correct a power imbalance in the end, and if the experts are wise and wish to survive the correction, they will put their efforts toward appreciating where the pain is being felt, and relieving it as soon as possible, rather than discussing the colour of the bandaid.

Wednesday, 25 January 2017

What the Chief Justice of the Supreme Court of Canada said

As I've mentioned before, the case that drew me into the legal system as a self-represented litigant was that of the BC Teachers' Federation seeking the power to bargain what it calls "class size and class composition," but what is in fact how public schools are organized and, overall, how much they cost, not to mention controlling families' lives and all that. It is a fundamentally illegal power that the union seeks, but thanks to a bit of linguistic sleight-of-hand, bad precedent law, and political opportunism, the union was granted that power in 3 out of 4 court appearances, including at the Supreme Court of Canada in November 2016.

This last decision has settled the matter as far as the two parties and the courts are concerned, but has created a legal, constitutional nightmare that the citizens are now left to live in, and which we will have to litigate our way out of if we are to rescue our system of governance. I am now engaged in figuring out how to unravel this mess. I am free to call it a mess because I am not an officer of the court, but unfortunately I also lack the litigation capacity that officers of the court have. So fixing it is going to take a lot longer than saying it.

One thing I had to do to begin unravelling this mess is to listen to the webcast of the hearing at the Supreme Court of Canada. This was necessary because there was, in effect, no decision issued by the SCC. The court simply went behind closed doors for 20 minutes, probably all took a bathroom break, and then voted on the decision of the BC Court of Appeal. The Court of Appeal decision was a 4:1 split against the union; the SCC voted 7 to 2 for the sole dissent (that means the BCTF won).

And that is all the SCC has provided by way of reasons.

So the webcast, and particularly the questions that the SCC judges asked of the presenters as things proceeded, was pivotal to understanding what went wrong. It was pretty interesting throughout, barring how disillusioned one quickly becomes about notions of fairness as one watches how these things proceed. For example, some presenters are allowed to take their allotted time, but with others, the judges interrupt with questions and the presenter never gets to make their whole presentation. There is no apparent allowance made for the time taken up by the judges.

This is, of course, because all the utterances of the judges are meant to be regarded with reverence, and the assumption prevails that having the opportunity to directly address a question from a judge is actually a better use of time than whatever remarks the parties or interveners might have prepared. And to an extent, this held true. Some of them asked quite penetrating questions, although the end result shows they were quite gullible in terms of the answers they accepted from the union.

But there was one remark, or set of remarks, from the Chief Justice herself that caught my attention particularly.

It occurred during the presentation of Donald J. Jordan, QC, appearing for the intervener Canadian Association of Counsel to Employers, circa 3:15:00 of the webcast. This is my own transcript of the exchange:

     DJJ: “ I’m going to take my time here today to address the issue which appears to have caught the court’s attention today about assessing the reasonableness of positions under the rubric of pre-legislative consultation. And I think you have to start with a recognition that it’s a difficult thing to do to reconcile things which are often quite competing in the sense that under the notion of pre-legislative consultation trying to reconcile collective bargaining and the legislative function. Collective bargaining is highly adversarial, it’s bilateral, and people act out of their own self-interest. Legislation on the other hand is polycentric and policy-driven with the government having to act in what it perceives to be the interests of all.

     CJ: How does this really differ from a business… we have management, we have labour, management has to take into account, be it government or be it some very complex corporation, or simple, they have to take into account a whole range of activities and then they come up with something so I’m having a little trouble with how we are in this peculiar situation…

     DJJ: Respectfully I think the situations are not parallel at all. Management has no role for anything, no obligations to anything other than the particular enterprise whereas governments have obligations far beyond, for example, the teachers or the paramedics or various other people…

     CJ: Corporations may have a lot of obligations too, under contracts and one thing and another and to shareholders. I’m just saying from the point of view of the structure its not who you have the obligations to it’s the entities that are going to be doing the negotiation and surely the job of government is to consider all the different ramifications and come to the table with - I’m just suggesting this but…

     DJJ: Respectfully I think it diminishes the role of government as a democratic institution to say it is responsible for the same type of reconciliations as a corporation [does]

     CJ(?): [brief, inaudible]

     DJJ: Well, governments are special. Governments are democratic institutions, they’re part of our democratic tradition, they’re how we, ah, are governed. It’s a pretty simple observation. 

     But it is of course in this case it is the case that we are at the intersection of collective bargaining and government’s role and what I want to speak to today is how that relates to the issue which has been apparently front of mind here about assessing the reasonableness of positions. Let’s start with what collective bargaining does…. [remainder of presentation].

~~~~~~~~~~

I'm going to just leave that exchange here for the moment; I hope to post more about its implications at another time.