New Year Wishes: 5 Excuses for Not Involving the Public in A2J Reform to Leave Behind in 2014NSRLP
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.