2012: The Year of Access to Justice in Canada?
This could be The Year of Access to Justice in Canada. Whether it is a good year or a bad year for Access to Justice is TBD. The fate of Access to Justice is to be determined by governments, by the courts, by the legal profession and yes, by lawyers ourselves.
Dark Clouds on the Horizon: Justice Budgets 2012
In 2012, we are likely to see serious fiscal pressures on Access to Justice through budget freezes or cuts to legal aid plans, courts and other justice programs. Serious cuts to legal aid have already been proposed in the UK and there is job action in British Columbia protesting against a decade of cuts. With massive budget deficits at the federal and provincial levels, justice budgets are likely to be on the chopping block. For example, in Ontario the latest figures for 2010-11 show that the Ministry of the Attorney General (MAG) had expenditures of almost $1.44 billion. The largest single expenditure consisted of transfers to Legal Aid Ontario of $320 million or a whopping 22% of the MAG budget. If each Ministry is asked to find 10% in savings, Ontario’s MAG will have to come up with $144 million in savings. Where is this going to come from? Not from fighting crime or from victims services in all likelihood. Ministry of Finance officials always target legal aid for savings precisely because it is the single largest expenditure in the justice budget.
Thus, Government is not going to be the answer to Access to Justice in 2012. But neither are the courts likely to provide much in the way of solutions. The courts have contributed more in the way of rhetoric than in concrete solutions to the access problems.
Solutions: Lawyers – Heal Thyselves . . . and the Justice System
Solutions – if they are to be found, must come from the legal profession itself. As the Governor-General implored us in August at the CBA’s National Legal Conference in Halifax:
We in the legal community have a responsibility to take the lead in reforming the court system for the public good; remember our oath to “improve the administration of justice.” Justice delayed is justice denied. Or, as Joseph Howe pointed out: “He who delays or withholds justice excites discontent and sedition; [the King] would tell them that they were the rebels.
In further posts, I will discuss potential solutions from the courts and from the profession. Welcome to 2012!
Interesting piece Adam, but in my thoughts it is pipe dreams without fundamental change in thinking within the judicial palaces that run the system. Their simple answer is always dollar signs and throwing money at the problem. If the courts and various provincial ministries of the attorneys general were serious about access to justice, they would look at adopting common technology platforms (not creating their own) and moving out of the arcane paper world in which they live. We need to make the system easier to access from the counter desk on (How about filing documents online? What a novel thought.) We need to allow people other than lawyers to advise clients on some matters, because most law firms have priced themselves out of the market when it comes to basic legal issues impacting the public, such as no-fault divorces and small claims. We need to change the infrastructure and platform that the justice system plods along on. Justice officials couldn’t spot innovation if it was under their nose. I worked for an Ontario AG in the ’90s that wanted to automate the courts and had a mandate to do so through the Integrated Justice Project, which, from my viewpoint, got caught up in the internecine politics between judges and bureaucrats. Same in the province of New Brunswick. Had those projects come to fruition, our justice system in those two provinces would be healthier and further advanced than today. We should be embarrassed at how antiquated our court system is, which in an Internet and increasingly digital world is unacceptable. One need only hang out at the court filing office on University Avenue in Toronto to see the public’s total frustration with the system. Two public computer terminals; total lack of customer service at the counters. It’s a farce. By my estimates, we spend between $5-$7 billion a year on the justice system in Canada. Spending isn’t the problem. I would argue leadership among the judiciary and bureaucrats is. They fear true access because it exposes the system and its weaknesses. I have spoken to judges and bureaucrats and heard their silly fears about making documents available online to the public or allowing reporters to use technology to report from courtrooms (a microcosm of the greater access issue). If justice officials can’t get their heads around such basic access questions, then I have no faith the system can improve anytime soon. The Supreme Court of Canada had no trouble letting reporters blog during the BCE-bondholder fight over attempts to take the company private. The lower courts should take a cue. The public learned a lot about shareholders and corporate law during that fight, because reporters could freely report on it and some lawyers and company officials were busy briefing journalists about developments behind the scenes. They educated reporters so the reporting on what was a highly technical legal matter was much improved over usual court coverage. Access to justice is not simply about spending. It is about educating the public on our laws and how those laws and the system work. It’s about the public’s ability to touch the system, see it operate and participate meaningfully in it. Right now, justice is controlled by lawyers, judges and judicial bureaucrats. If you what to fix it, turn it over to a public body that will make decisions in the interest of those who use the system, not those paid by the system. Let some entrepreneurs have a go at fixing the underlying processes and technologies at play (if any). The fact that our corporations are increasingly looking at using private courts as an alternative to the civil justice system because of its slow pace and higher costs (among other reasons) is a testament to the underlying problems.
In my opinion, a great first step towards improving acess to justice, at least in Ontario, would be to remove HST on legal fees. When the HST was introduced last year, it applied to legal fees, as did the GST before it. However, the harmonized sales tax includes a PST component of 7 per cent. Prior to the introduction of HST, PST did not apply to legal fees.
The effect has been an increase in the tax payable on legal fees from five per cent to 13 per cent – a very hefty addition to your legal bill, particularly if you are an individual struggling to pay the fees in the first place! This issue has received next to no public attention, as far as I can tell, but has considerable impact on ordinary people who are faced with large legal bills. In my opinion the legal community should rally round this issue.
good comment Jim. Moreover can anyone understand on any rationale basis why the most sophisticated court rooms are on Bay north of Queen where they sit empty much of the time awaiting human rights hearings. Completely wired many quite large etc etc.
How do you bring the stakeholders (Court Administrators, AG’s, Tax Authorities, Law Societies, Law Foundations, non-profit legal agencies, the profession and rich benefactors) to the table, without an initiative or proposal which outlines some common goals: reform and streamline, access and sustainability, shared responsibility and accountability (legal and fiscal) and better public education?
Will 2012 be the year our ailing access to justice system gets some real first aid?
As a concerned citizen and taxpayer, I look forward to reading the potential solutions which might help address the current system of Legal Band Aid in B.C.