Looking Ahead…if Only!

I never make “New Year’s resolutions” — I’m too old to think that they will come to fruition — but I have decided to identify five “wishes’ I have for Ontario and Canada more broadly in 2019: 1. stop all the studies and take action re A2J; 2. provide lessons to the premier about what the rule of law means; 3. allow advance directives for medically assisted deaths; 4. don’t diminish existing protection for children and youth; 5. revise the new Law Society of Ontario logo without too much delay.

1. Let’s stop with all the studies already and take substantive action to increase significantly the number of people who have the benefit of the legal system (also known as advancing access to justice). I’m not against studies; if I were, I wouldn’t have served as executive director of the Law Commission of Ontario for eight years and I believe that good studies provide the evidence needed to take action. And let’s face it, we need at least to update studies if action hasn’t followed in a reasonable length of time. Still, we know that too many people do not have access to the legal system at affordable cost, we can’t train everyone to address all legal problems, it’s unreasonable (in my view) to expect the legal profession to shoulder the provision of legal services on a volunteer basis and the use of technology, while in many respects helpful, just isn’t suitable for some people and may have its own flaws (such as the bias too often inherent in algorithms). As with so many things, the answer lies in proper funding for a legal aid system. If only we could come to terms with this in 2019, figuring out a way to make access to the legal system on some kind of equality basis something the public — and therefore government — considers worth funding. (I note, too, that Bill C-75, the Liberals’ massive criminal reform bill, soon likely to come into force, would make this situation worse by excluding law students from representing criminally charged offenders whom they can now represent (see an early Slaw post by Doug Ferguson and a recent statement by Downtown Legal Services on this.)

2. Have someone give lessons to the Premier of Ontario about the meaning of the rule of law. 2018 was dispiriting for those of us who care about the rule of law, whether because of the premier’s own actions or what appears to be the weakness of Ontario’s attorney general (see my Slaw post of December 25th). The danger is that the situation becomes “normalized” (as we say about the situation south of the border) and we stop complaining. The rule of law matters and we need to keep reminding ourselves and each other in 2019 that that’s the case.

3. Allow people to arrange for a medically assisted death in advance. Recent cases have made it clear that requiring people to wait until they are close to death (the length of time might vary) to request and obtain permission to end their own lives in a dignified way of their choosing can be cruel, forcing people to die before they are ready or continue to live until they may not be able to make the decision. (See, for example, the difficult choice that faced a woman choosing to die earlier than she otherwise would, but also see an example of a couple allowed to die together.) This was one of the issues that remained to be determined after the medically assisted dying regime came into force in June 2016 and has been the subject of a recent report (without recommendations). Underlying the regime of medically assisted death is the respect given to people’s own choice about when they die, in this case, when they are facing a severely curtailed life through illness; it is consistent with this recognition that people should be able to control the timing of their own death before it is not possible for them to do so because they are no longer able to consent. Allowing advance directives, with protections to prevent abuse, should be the next step, in 2019, in developing the medically assisted dying regime.

4. Recognize that adequate protection of children is a fundamental given in a country with extensive resources. Although there are a number of actions taken by the current Ontario government over the last six months that raise concerns about its willingness to accept independent oversight of its conduct, one that requires revisiting is the forthcoming abolition of the Office of the Provincial Advocate for Children and Youth to include a sub-office of the Ombudsman. I addressed this briefly in my Slaw post on December 25th, but it’s worth mentioning again: while there are other avenues of protection for children, the Provincial Advocate has a wide mandate to undertake investigations in response to complaints or on its own initiative, among other actions. Its abolition is a sad statement about the commitment to children and youth by decision-makers in Ontario and warrants reversal in 2019.

5. The Law Society of Ontario creates a new logo before too long. I confess I did not take advantage of an opportunity to comment on a new logo for the LSO, but I was horrified to receive a New Year’s message from the Law Society in my Twitter feed this morning: three yellow circles on a black background, not an optimistic look for a new year (albeit perhaps consistent with our expectations?). The logo is on a white background on the LSO website (or it’s made up of white circles, depending on where you see it), but rather than being better, it simply looks insipid. I realize it is meant to represent the three elements of the LSO’s work: the LSO, the profession and the public and to reflect the LSO’s new motto, “Our Society is Your Society”. Without the explanation, the logo is a mystery; it does not show how these elements intersect with each other (even intersecting circles, without looking as if the Law Society is trying to imitate the Olympics would be better). I know that the Law Society has decided to renounce its history and show itself to be contemporary by changing its name and getting rid of its old (imperialist-type) logo, but now its public face is just vapid. Please, LSO, reconsider the new logo in 2019!