I have a New Year wish.
Please can we stop repeating these hackneyed excuses for not including the public – “not now, not yet, not those members of the public, not like that…” – in discussions over justice system reform and improving access to justice in Canada in 2015?
No one is suggesting that we appoint a panel of (gasp!) “non-lawyers” to overhaul the justice system. All that we are asking for at NSRLP is that those people now working very hard at planning justice system reform please make space to listen to what SRLs and other members of the public have to say about both their own experiences and about access to justice (see Trevor Farrow’s recent article at http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=2761&context=ohlj
Before we (hopefully) bury them in the history of 2014, here are the 5 excuses that I heard countless times last year.
Excuse #1 The Public is Not Concerned about A2J
This was references frequently – including in the press – during 2014. It was never related to any data, just made as a blanket assertion. When challenged, some proponents asserted that it was “proved” by the fact that A2J has not yet made its way to prominence on political agendas (this takes time, and it may also take some courage for ambitious politicians to stand up to the legal establishment).
The facts are that with more than half those appearing in family court representing themselves because they cannot afford counsel, access to justice is now a problem affecting large and growing numbers of Canadians. Aside from those with direct experience – who know first-hand that the impact of going through a legal process without access to expert assistance is even more devastating than they anticipated – there are far greater numbers of people who know someone else directly affected by this issue.
Our natural risk aversion means that we tend not to anticipate something bad happening to us – such as finding ourselves in court trying to assert our position without a lawyer. But more and more Canadians recognize in the stories they hear from their friends and acquaintances that there, but for grace, go I. And they do care – a great deal – about what this means for A2J in Canada.
Excuse #2 The Public does not Understand the Legal System/ the Problem/ the Complexities (the way “we” do)
In contrast to Excuse #1, this one is evidently true as a matter of fact. The problem with this excuse is that is neither a fair nor a compelling reason to exclude the public from discussions over A2J reform.
“We” do not (and should not) have control over how to define “the problem.” That is arrogance (only “we” know what the problem is what to do). Moreover such an approach inevitably creates a closed system – and every system theorist you can find will tell you is a limited and inadequate approach to system change.
Obviously, the public can be engaged in and contribute to, say, health care reform without having to be doctors? (put this way, this seems like rather a silly question, doesn’t it?).
As well, we know plenty of very intelligent SRLs to whom we can introduce you or your organization who bring “other“ systems perspectives (running a business, providing other forms of professional services, advocating for a cause, creating effective working relationships with clients, marketing and efficacy….the list goes on) that are useful to discussions over system change in the justice system.
Excuse #3 Members of the Public Cannot Add Anything to the Discussion (that insiders already at the table do not already know)
Yes, really – I was given this excuse by a number of people in 2014.
Clamping down on my strong urge to respond with just one word – “seriously?” – just look at the impact that the lived experiences of SRLs from our speakers bank made on audiences during 2014. We have files full of testimonials.
We cannot know what we shall learn from hearing someone without a legal background describe their experience in the legal system until we hear it. To imagine that we “have it covered” / “get it” already is a sad reinforcement of one of the major complaints made by SRLs – that the paternalistic culture of the justice system does not value their point of view. It makes a difference to hear directly from people – both with and without experience in the legal system – because what we think we already know is not what we learn when we listen to people directly.
Excuse #4 Hearing a SRL Talk about their Experiences May be Uncomfortable for Professional Audiences
Another excuse that I have fought with my impulse to respond to impolitely. Like, cry me a river. But I am asking us all to try harder, so let me do the same myself.
If the input of a (articulate, composed, insightful) member of the public creates some discomfort, maybe this is an important dynamic? Maybe we could take the next step of asking ourselves, why is this making me feel uncomfortable? Is it the raw emotions? Is it the lack of knowledge that makes us feel pessimistic about this person’s chances in the system? Is it the disconnect between the confident suits in the room and the needy, desperate person?
Radical system change is inevitably uncomfortable. We cannot expect to achieve real change unless we are willing to have our personal comfort (ideas, values) challenged at least a little.
Excuse #5 We Do Not Want to Invite the Public in until We Have Our Act Together
This may be the most honest rebuttal. And it is one that I have some sympathy for. I doubt that anyone who works in the legal system relishes the idea of revealing how dysfunctional our justice system has become and discussing this in front of members of the public. Especially members of the public who care, deeply (Excuse #1).
But consider the alternative. We wait until we have a perfect plan worked out and then present it to the public as a done deal?
This isn’t consultation, it is reform by an elite group. And it is not efficient (have we seriously considered the possibility that such plans might actually be enhanced by public input?)
In 2015, I believe that Canada can and must do better than continually falling back on these 5 excuses for not involving the public in A2J reforms. We live in a country that understands civic engagement as a core democratic value. In many areas of public life, we have already created public fora for consultation purposes where the public can speak with policymakers about what they have experienced, need and want.
We can do that again now in the justice system. And we must.
in this letter I hear a lot of frustration, anger, despair, and disgust. welcome to the world of the self represented. anyone, with any background, approaching the judicial system is going to feel these.. because the system as it is, does not care about the people. does not care about the harm they are doing to the rights of the public. in all of these excuses, I hear, a concern for the judicial community alone. that is how it seems to be, and what is the main problem with how the judicial system operates, it is not there to serve the public. it has no interest in the public. it exists to serve and worship themselves. after I get done genuflecting I will rise and worship, that is how the judicial system likes its public.
excellent article!
An important factor is that when a problem is intermittent in inflicting its pain, it will become a top public and then political issue much more slowly than do problems that inflict severe and continuous pain. When one feels a lawyer has performed inadequately, or been too expensive, one can simply resolve to use a different lawyer next time, which time may be several years away and also not of immediate concern. In contrast, we would all feel continuous concern if a loss of medical services were threatened, even when we are in good health. But the public does not look on the availability of legal services that way, i.e., not one of continuous need.
However, big institutional clients who always have legal problems, have a very different attitude to the availability of legal services. But they can afford legal services and therefore don’t have the same complaints about their “access to justice.” Instead of saying to their lawyers, “we can no longer afford your services,” they will say, “no more hourly billing, and we now expect discounts, or we will find ourselves another law firm.”
But, that cannot be true of SRL’s, nor lawyers who fear that their law firms are failing because of a lack of clients. They feel continuous pain without any source of relief in the near or distant future.
That is why the ABS investors (alternative business structures investors who want to buy-up strings of law firms to enfranchise them to gain control of the legal services market), and their bencher lobbyists, have picked this very opportune time to secure the distribution of a LSUC ABS Discussion Paper, and an agenda for decision on the issue by Convocation, no later than 2016, as to whether LSUC will lobby for the necessary changes in the law and its bylaws to make the ABS proposals lawful. Such opportunism it is that is splitting the interests of the big law firms and their benchers, from those from the smaller law firms. Caught in the middle is the public interest and the duties imposed on LSUC by s. 4.2 of Ontario’s Law Society Act.
That raises an issue as to whether law society regulatory functions should be separated from its representative functions for lawyers’ interests. The Clementi Report (U.K., 2004) said they should be separated, in regard to the administration of legal services in England and Wales.
So, we have to get more attention paid to such issues by the news media and social media and pressure groups, because their pain will become increasingly less intermittent and more continuous for all of us. Particularly so Canada’s law societies because they have done nothing about the unaffordability of legal services problem. They have nothing to point to, to forestall government intervention. So, feeling that vulnerability, their adopting the ABS proposals as a “quickie fix” is likely. That is a fix that cannot solve the problem of unaffordable legal services.
All is explained in this article: “What a Law Society Should Be–A Response to the Law Society of Upper Canada’s Alternative Business Structures Discussion Paper of September 24, 2014,” (pdf copy available free, at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2549960 ).
— Ken Chasse (“Chase”) member, LSUC (since 1966), and, LSBC (since 1978).
In our so called modern world in many places and situations; abortion is legal, some drugs are legal, no fault adultery is law, prostitution is a cost-effective way for both sides of a problem to get some sort of satisfaction…I am not advocating ANY of the preceding however I ask, WHY can the system itself not be fixed,if the barriers were removed first? This seems like a admirable cause especially for so many of you who are smarter and much better educated than I am. Honestly ask yourself am I expecting too much? Why??? Our system is almost godlike in its power however it resists the very people it is supposed to serve at every stage/step of the way…In the old days politicians and judges and many public servants were self-made retired persons who did NOT need the money to survive and so many of these would actually serve the people under them and those not as fortunate as them. Nowadays our public servants are often called officers and officials and other titles and this is evidence of one of the root causes of a serious problem. Anything would be better than what we are currently experiencing…after review of all 5 excuses I would simply challenge every member of the A2J to renovate their own palace/house BEFORE telling me how I must renovate MY barn. When public servants treat me no better than an animal, I will react in kind, sorry! For all of you that think I should exercise patience, forget it! been there, done that!, (it did NOT work) nothing worst than getting kicked when you are down. I actually feel sorry for both sides of this tug of war but since I am just a member of the public and not in power (or empowered) or even encouraged, I have few options but to tell you how I feel and what I think. It makes me sad that I can “only hope” for change…for the better!!! The truth is that respect must be EARNED by those who serve others and no matter how powerful or privileged you are you cannot change this fact. It is hard if not impossible to honor something one cannot respect. So what is expected from SRL like me???
the legal “system” is astonishingly arrogant. if you criticize them, they will black ball you. if you suggest the courts do not hear what they don’t want to hear, they will hear nothing that comes out of your mouth. so now, as a group we are saying, you are not listening,,, and they are once again refusing to hear. there is an arrogance, and a sense that “they” could NEVER be wrong. and good luck to us trying to tell them they are.
I just had another brief encounter with a member of the legal community. his name is peter Schmidt. he took my retainer, accepted my case, then a week later quit, and said my new evidence just wasn’t any good. I have an independent genetics professional stating, that the dna test used in a court of law, is not me and there fore not my child. I don’t know,, this seems pretty good to me. then peter Schmidt, attacked me, verbally for DARING to question the courts, and claimed he had used all but a minimum of my retainer for this exercise, this is vengeful and assault on the public who actually can ask to go back with new evidence, HOW DARE WE!!! if you are wondering why they don’t want to hear from the self represented, maybe it is because sometimes we can actually prove the courts are wrong, and the courts would rather bankrupt you, and then quit and tell you they did it because you wont shut up.
I forgot to mention. I also have documented proof that the dna lab at Vancouver general has been sharing my dna information, illegally, with Calgary childrens hospital lab, and who knows who else, I also have a letter from the privacy commission of bc claiming that if the lab wanted to do this, they could, despite the privacy clause In the contract, I have PROOF that the hla testing vgh claimed to have done, could not have been done as the blood samples were taken 3 days before it was run, and hla cannot be run on blood older the one day. and I have a genuine comment of concern about the sample size that would have been needed from my four month old premature infant in order to run a hla test on her at all. it simply was not fiesable to be run. the lab is lying. and I have proof of this. it would seem the courts would be RUNNING to fix this, not so they are trying to bully me into going away. despite the fact that falsifying data that steals someone s identification, is actually a criminal offense, it seems when committing crimes is being done by the courts, it is ok dokey with them. now how do you trust people like this… we the public, know what we are looking at., that is why the legal system is trying so desperately to get us to shut up. the gig is up for them.