Cuba 2016 – Challenging Our Thinking about ChangeNSRLP
I have just returned from a week spent driving around Cuba, exploring small towns and big cities, and staying in people’s homes. In 2016, this is a country of enormous deprivation, colossal pride, and bubbling optimism.
This may be an embarrassing disclosure of how preoccupied I am with thinking about access to justice issues – but trying to better understand Cuba, as it emerges from 50 years of isolation and poverty, gave me some new ways to think about our access to justice challenges in Canada.
Everything is not as it appears
There are derelict – some beautiful colonial and art deco, others drab communist-style – buildings everywhere in Cuba. Parts of Havana, in particular, look like a war zone. Roads have the biggest potholes I have seen outside of Southeast Asia (and Detroit). The infrastructure of the country looks, on a first and second glance, chronically impoverished.
But everywhere, behind crumbling and even wrecked facades, there are signs of individual initiative and collective energy. Look past the devastated exteriors and you see lovingly furnished family sitting rooms, schools and daycares full of children in immaculate school uniforms, and all manner of small businesses (the consequence of Raul Castro’s liberalization).
I did not step into a Cuban courthouse and make no comparisons. But I am painfully aware that if I were to bring a lawyer or judge from Cuba, or any another country, to look at our Canadian justice system, a lot would appear chaotic and wretched on first view.
Our courthouses are currently crowded with helpless, confused, and sometimes desperate people without adequate representation or advocacy. Court registries are full of people waiting with little or no idea of what to do next, how to access the remedies they seek, or even what those remedies might be. In the courtroom, self-rep after self-rep stands and tries to make their case – the judge listens patiently, or not so patiently – and so often the process ends badly for them.
Yet we all know of amazing and even heroic efforts to change this experience. Court services staff, individual lawyers and judges, and programs all offer real assistance that recognizes the vulnerability and helplessness of SRLs. We try to showcase these initiatives at NSRLP (click here for examples). And their numbers are growing.
For example – a big uptick in the number of lawyers stepping up to offer unbundled and legal coaching services for SRLs, and the huge increase in the number of enquiries they are receiving following the recent CBC documentary, The New Litigants. Until very recently, this was not something visible from “outside” the system, looking in. This year, perhaps we can achieve a real break-through in both the provision of, and participation in, legal coaching services.
To do so, we need to show people where to look for the hidden gems inside the dilapidated exterior of the Canadian justice system.
Procedural rights and citizen power
After four years of working on what I consider to be the primary access to justice issue – forced self-representation – I can see layers of this complex phenomenon that were invisible to me when I began.
A legal system run and operated by judges and lawyers affords the public procedural rights via their expertise and good offices. Individual rights are facilitated and realized by system insiders or experts. These experts stand between the litigant, and their direct experience of the system.
This is no longer the reality of the majority of litigants in family courts, and a sizeable proportion of those in civil courts. Individual litigant experience is now unmediated. Instead self-represented litigants experience all the unfairness, frustration, complexity, delay and trauma of the process face-on.
The emperor has no clothes, these SRLs are telling me. I hear “how can it be like this?” hundreds of times over.
In Cuba, just as in communist Eastern Europe at the end of the 20th century, citizens are beginning to assert entitlements to procedural rights. Because as one person put it to me, “If the government gives us everything, we have no right to complain. If we give money to the government, we have a right to complain.”
In a similar way, a new consciousness of procedural rights is changing the mentality of many users of the Canadian justice system. For better or worse, access to justice is no longer delivered to users by experts. In 2016 users are directly seeking access to justice.
This changes everything. Many SRLs feel that they have a right to complain if a public system does not allow them practical and effective access. This is not about winning – it is about fairness and access.
And, just as one suspects must be happening in Cuba, the system may take some time to adjust to the idea of citizen power expressed in this way.
Change is hard – and systemic change the hardest of all
Cubans are still reticent to talk openly about politics, but many acknowledge that change is happening and it is welcomed. In these conversations there is also the recognition that change will be difficult, requiring significant new thinking that challenges the old order. This is a society that is just coming to terms with the idea that people can – even should – have differences of opinion. Along with excitement and hope, there is also fear of the unknown and how changes will affect the identity of Cuba and its people, domestically and abroad.
Even once the principle of change is agreed upon, it takes time – and resources, and patience, and copious amounts of both optimism and energy – to implement system change. For example, billing for utilities like water and electricity has recently been introduced in Cuba – but most homes are not metered, so the bills are for trifling amounts.
We have to be ready to embrace significant new thinking about the Canadian justice system as a shared public good. This includes who owns it, and who owes what to whom. The old order is changing and will never return. We must expect our own share of conflict, failures, recriminations and division. But like Cuba, there are already many signs of hope.
In 2016, after 57 years of single party rule and isolation, Cuba is facing its challenges. Surely in a country with enviable democratic traditions and standards of justice, Canada can do the same?