Election Day Special: Parties Respond to A2J Questions

As you head to the polls to vote today (please vote!!), we here at NSRLP have some final information to consider.

Over the last several weeks, we have sent a series of questions (in English and French) on SRL and Access to Justice issues to all the major Canadian parties. As of this morning, we have received responses from the NDP, the Green Party, and from a candidate running for the PPC.

The NDP provided the following statement:

“The NDP has a strong history of defending access to justice for everyone in Canada.

To make sure that the most vulnerable have access to the legal support they need, New Democrats will increase federal funding for legal aid programs across the country by $350 million over 4 years. We also commit to work with provinces to find innovative ways to improve access to justice.”

The Green Party and the PPC candidate (Karin Litzcke, Vancouver East) provided specific answers to our questions, as follows. (When we reached out to the People’s Party, we were informed by spokesperson Martin Masse that “the People’s Party has not developed any official position on this issue.” However, we were directed to one of their candidates, Ms. Litzcke. She shared her answers as a candidate; please note that Ms. Litzcke’s responses reflect her own positions, and are not official People’s Party of Canada positions.)

1) Today more than half the people who go to family court now in Canada are there without a lawyer, because they cannot afford to pay for one and don’t qualify for Legal Aid. Many people who are forced to “represent themselves” in court feel that they do not get a fair hearing and are at a big disadvantage, especially when they are up against a lawyer on the other side (and research shows they do not do as well in court as those who can afford lawyers to make their case for them).

What is your position on ensuring that Canadians can have access to affordable legal services?

Green: “Canada seems to have a two-tiered justice system. The rising costs and complexities of litigation mean that only the wealthy have easy access to effective legal representation in our courts. Middle-class Canadians are increasingly unable to adequately defend themselves due to the cost and complexity of Canada’s judicial processes.

Greens understand, however, that we won’t have real justice in Canada until we have justice for all Canadians. This means affordable and accessible courts as well as laws that allow for the protection of our collective rights and the valuable natural resources we all hold in common. A responsible Canadian government can initiate a fresh approach to our justice system and ensure it becomes more fair and equitable.

The Green Party believes we, as a free and democratic society, must increase access to justice for the people of Canada through a range of measures. We also believe a responsible government must support lawyers who offer service to those in genuine need.”

Ms. Litzcke: “The federal government has considerable opportunity to address the problems occuring in family law because the Divorce Act is a federal statute. More than one PPC candidate is in favour of revising the Divorce Act to reduce room for parental and spousal disputes, which would relieve tension in family law at its root.

Affordable legal services are just a stepping stone to the real challenges around access to justice. Even people with lawyers are currently unhappy with their experiences in the courts. There is no point it making it easier to navigate into court if what happens there is going to be unsatisfactory anyhow.

The judiciary should be incentivized to deliver what is expected in the name of justice. This will require some alteration of the institutional structures of the judiciary, and possibly even the creation of a new court at the federal level.”

2) Legal Aid Boards have to work with the federal government on new programming and services. Every Legal Aid Board is facing growing numbers of people who do not qualify for their services – which are only available to those on extremely low incomes – yet cannot possibly afford lawyers. At the same time, provinces have been reducing funding to Legal Aid.

Would you support the federal government policy of standing back while the provinces reduce Legal Aid?

Green: “Greens will stand up against cuts to legal aid. While it is in the provinces’ jurisdiction to cut funding they provide for legal aid, it is not acceptable. We will stand up against unfair cuts that marginalize people who are already in vulnerable circumstances.

A Green government will increase access to justice for all Canadians notwithstanding their financial situation, by working with the provincial governments to establish a comprehensive National Legal Aid Plan that will provide stable, long-term funding.”

Ms. Litzcke: “In my opinion, the federal government must take responsibility for federal action (or inaction) that is escalating the cost and complexity of cases. This escalating complexity causes problems not only for funding Legal Aid, but also for SRLs, for lawyers in solo practice, and on many other fronts.

Merely paying more when the price goes up serves no one – it is necessary to look at why costs are increasing.

Some cases are inherently complex, but others are allowed to become more complex than they need to be. My proposals include several points that, in aggregate, will streamline the work that comes before judges, and  make cases less expensive for litigants, whether they are funded by Legal Aid or not.”

3) The federal government appoints judges, and some appointments have been quite controversial, raising questions about political patronage. These are important and powerful positions – and today more and more judges have to work directly with members of the public who are coming to court without lawyers.

What types of judges with what types of skills do we need for this job? Should the federal cabinet be making this decision, or do you think that the public should have a voice in judicial appointments​?

Green: “It is critical that all judges in Canada, including federally-appointed judges, are representative of the Canadian population. We need more judges from racialized and otherwise marginalized backgrounds, including women and Indigenous people. Fundamentally, we need judges who won’t perpetuate the same kinds of implicit biases created by privilege. We recognize that many improvements have been made, but there is a long way to go. Greens will look to continue improving the judicial appointment process.”

Ms. Litzcke: “Far too much attention is paid to who becomes a judge, and far too little on what they are incentivized to do once in office. No matter who becomes a judge, they should be capable of exercising respect, overcoming bias, and being fully independent of both allegiances and dogma. No, the public should not have a voice. Evaluating lawyers for their potential to be judges requires legal expertise. Lacking this expertise, the public voice will inevitably be co-opted by interest groups that benefit from having judges friendly to their interests. Parliamentarians, working with the benefit of expert advice, should be fully accountable for the choices they make.”

4) There is ongoing and heated discussion in the law societies and the justice sector in general about whether or not professionals other than lawyers (for instance, paralegals) should be able to provide some legal services, or whether all legal service ought to stay strictly within the purview of lawyers. Many argue that lawyers hold a “monopoly” over legal services, especially since they are self-regulated.

What do you think about self-regulation for the legal profession, and restriction on other service providers in the provinces, in light of the unaffordability of traditional legal services?

Green: “Self-regulation has been justified as a means to better regulate the profession given the knowledge lawyers have of their own work. However, we must acknowledge the impact this has had on access to justice. As long as lawyers have sole control of the profession, it is less likely that the scope of practice of legal services will be expanded.Greens are not necessarily in favour of completely changing the process of regulation, but we will work with law societies across the country, as well as other justice professionals, to develop a strategy for improving access to justice.”

Ms. Litzcke: “While this is tempting to see as a solution, it is far more likely to move lawyers even further upmarket than they have already gone, somewhat reminiscent of the introduction of Licensed Practical Nurses to replace BScNs once all RNs were required to have degrees. In the end, the replacement is meaningless; it is far better to deal with the dysfunction in the original profession than it is to add categories. That said, paralegals can make an immense contribute to legal services, but as an antidote to lawyer unaffordability they are are at best a bandaid solution.

The roots of lawyer unaffordability lie within the economic structure of the business of law. Where litigating stands to be a lucrative undertaking, corporations in particular will spend a lot of money to do it, and individuals will not be able to compete with them for lawyers’ time.”

5) There are growing concerns about the accountability of the legal profession to the public, with lawyers effectively policing themselves. More and more individuals are speaking out about experiences of bad lawyering and “sharp practice”, where lawyers take advantage of the lack of knowledge of the many self-represented litigants in the legal system.

Would you support a federal level inquiry into building a fair and truly accountable complaints system, in which lawyers are held to a standard of behaviour that applies to their dealings with everyone they work with in the courts, not just other lawyers?

Green: “Yes. It is important that we have a fair and truly accountable complaints system. We would be open to revisiting existing processes to ensure that bad lawyering and “sharp practice,” which are already unacceptable in the legal profession, are reduced.”

Ms. Litzcke: “No, I would not support an inquiry. We know enough now about complaints systems to know that they invariably become protectionist given the way they are currently structured. And NSLRP’s own projects provide good enough documentation for some decisions to be made about managing lawyer conduct with respect to SRLs.

However, those decisions stand primarily to be made at the provincial level, and provinces face problems with all the self-regulated professions, not just law. In BC, the provincial government recently received the Cayton report on the College of Dental Surgeons of BC and the provincial Health Care Act (described and linked here: https://www.cpodsbc.org/publication-resources/cayton-report/). I am not sure I endorse all of Mr. Cayton’s recommendations, but his analysis and recommendations are instructive for an analysis of lawyer standards of practice and their enforcement.

Lawyer conduct is not only a regulatory issue, however. In court, judges exercise authority over officers of the court, and whether they are sufficiently exercising this authority is something that would benefit from a judicial quality audit.

But ultimately, lawyer conduct has to do, again, with the structure of the business of law. Lawyers do what pays the bills, and judges, knowing well the financial incentives acting on the lawyers appearing before them, perceive their business needs alongside their legal arguments. That is why addressing the access-to-justice issue requires a root-cause analysis.”

NSRLP thanks the NDP, the Green Party, and Ms. Litzcke of the PPC for taking the time to respond to us. We hope these statements have been useful, and we wish you all happy voting!