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Is Former SCC Chief Justice McLachlin’s Action Committee and Leadership of the A2J Agencies Avoiding the Major Issues? [Part 1 of 2 Parts]

[The content of this article is closely related to four of my previous posts on Slaw, dated: July 25, 2019; April 9, 2020; May 29, 2020; and, August 6, 2020. See also the full text on the SSRN.]

The recent decision of the Supreme Court of Canada in, R. v. Thanabalasingham 2020 SCC 18 (July 17, 2020; by a full Court of 9 Justices), demonstrates why the access to justice problem exists, i.e. the A2J problem of unaffordable legal services for middle- and lower-income people (they being the majority of society), is caused by chronic underfunding of the justice system. Putting governments’ actions into words, government spending is guided by the political wisdom that states: “there are no votes in justice,” i.e., there are no significant quantities of votes to be gained by spending significant quantities of taxpayers’ money on the justice system. So, instead of viewing a well-resourced and competent justice system as essential for maintaining our constitutional liberal democracy and the rule of law for everyone, governments always use the least expensive response to justice system problems. As a result, the misery caused to the population and the damage to the justice system (particularly to its courts systems), by the A2J problem and by the underfunding of the system, grows.

How should that fact shape the leadership of the A2J relief agencies as provided by Beverley McLachlin, Canada’s recently retired Chief Justice of the Supreme Court of Canada? Because the A2J agencies are not working towards a solution, their effect upon the misery and damage is minor—but minor only when compared with the effect that could be achieved by solving the A2J problem. But effectively working toward a solution requires challenging and questioning the failure of governments and law societies to try to solve the A2J problem. That would put at risk the A2J agencies popularity with such sources of power, and their own funding. Instead, the work of the A2J agencies does not involve trying to solve the problem, which ensures that they don’t annoy governments and law societies, and it very much helps governments and law societies to maintain the appearance that they are adequately responding to the problem—which, because they too are not trying to solve the A2J problem, truly is a very false appearance. And so, the problem continues to grow. The work and services of the A2J agencies is not so commendable if they fully realize that it is being used to maintain such false appearances and provide justification for not ending the misery, damage, and the substantial risk of a much-reduced legal profession in size and purpose.

That reduction will be speeded along by: (1) the A2J problem; (2) the commercial producers of legal services taking over the markets that general practitioners and unspecialized law firms cannot serve affordably; and, (3) artificial intelligence—the automation of a growing number of legal services. The one important advantage that lawyers can provide that those three forces cannot provide is the benefits and safeguards of the lawyer-client relationship, i.e., the professional devotion of one human being to another, as compared to the risks of the buyer-seller relationship provided by the commercial producers. But the gap between the price of legal services as provided by lawyers, and the price of commercially-provided legal services is too large now to make that professional relationship a sufficiently competitive marketing factor. However, closing that gap requires working towards solving the A2J problem. What the A2J agencies are now doing, the commercial producers will be able to do at least some of it much better, because there will be many of them operating in a highly competitive market, each very aggressively striving for greater market-share, primarily by maximizing the use artificial intelligence (AI that produces automation).

In the U.S., the commercial producers are well on their way to replacing general practitioners. Commercial producers such as, LegalZoom,[1] RocketLawyer, and others, have millions of customers (not clients). An even greater commercial threat to lawyers is the hundreds of small “start-ups”—small groups of computer-knowledgeable people (some are young lawyers—see: MinuteBox Inc.), who are automating many different types of legal services. Their development is being greatly facilitated by many “incubators,” such as the Legal Innovation Zone (LIZ) at Ryerson University in Toronto.[2] There will be lawyers involved, but they will be working for the commercial producers of those online legal services. In the U.S. those two types of commercial producers of legal services have resulted in the de facto de-regulation of the legal services market.[3] This same process has begun here in Canada. But due to the absence of competent leadership provided by its law societies working toward an A2J solution, Canada’s lawyers will become a profession much reduced in size, power, prestige, and purpose.

The deeply entrenched “no votes in justice” bit of “political wisdom” enables law societies never to have to change because the cost of being able to put forward a credible threat by government to replace them, (well justified by their poor regulation of the legal profession so as to make legal services adequately available), is too high for the insufficient number of votes and popularity that it would produce. Law societies have always known that. As a result, Canada’s law societies never have to be more competent than they have always been, i.e., very good 19th century law societies. They want to stay that way so that they can serve their main, but undeclared purpose—career-promotional institutions for ambitious lawyers wanting to be benchers-managers of those law societies. And so, their management concept, and the primary purpose that they in fact serve, and what they are willing to do, has always been within their own control, not in fact subject to the needs of the populations in which they exist. Therefore, Canada’s law societies have been free to decide for their own comfort and convenience that the A2J problem is government’s problem,[4] because solving it would require establishing the “support services” necessary to create the large economies-of-scale that the production of affordable legal services requires. Such “affordability” is not possible using lawyers’ present, very obsolete “cottage industry method,” whereby the manufacturer of the finished product makes all parts of it itself instead of having its various parts made by external, highly specialized, high volume “parts suppliers” –suppliers such as highly specialized, high volume, centralized legal research services (such LAO LAW at Legal Aid Ontario). Such support services can create the large economies-of-scale in the production process that affordability for middle- and lower-income people require. That identifies the cause of the A2J problem: because of the legal profession’s very obsolete “cottage industry” production of legal services, there are no economies-of-scale in the practice of law (see my other posts as listed above, under the title).

The bencher form of management is not capable of establishing such a “support services method” of production. Benchers, who must simultaneously be good lawyers for their clients or institutional employers, do not have the time to bring about such a transition; see my Slaw post of August 6, 2020. But, shouldn’t a law society’s management structure be determined by its legislated duties and purpose, and not by lawyers who want to use “bencher management” for their own career promotional purposes? And “bencher management” means no long-term planning by law societies because such managers are lawyers serving very short-term self-interests by being benchers. That has controlled the whole history and institutional culture of Canada’s law societies.[5] Perpetuating the damaging effects of such 19th century law society management now in the 21st century, are governments’ decisions, based solely upon their vote-getting power. Often, they do not provide good government and leadership—especially so for the needs of a justice system dependent upon the competence of its law society. “Law societies are the lynchpin of the justice system; when they fail, the justice system fails.”

As a result of the “no votes in justice” concept of justice system funding, R. v. Thanabalasingham must, yet again, “send a very strong message” to government about the extremely damaging consequences to the justice system caused by elected governments poorly funding the justice system. In Thanabalasingham, the Supreme Court “stayed” (upheld a stay of proceedings of) a murder prosecution because of the extreme violation of the Canadian Charter of Rights and Freedoms’ section 11(b) right to trial “within a reasonable time.” The Court had previously warned governments in R. v. Jordan, 2016 SCC 27, by setting a presumptive limit to acceptable delay at 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). When such ceilings are exceeded, the burden is on the Crown prosecutor to rebut the presumption of unreasonable delay for reasons of “exceptional circumstances.”

That warning having failed, something much more severe was necessary, as stated by the Court in Thanabalasingham, (paras. 7 and 9):

Here, it bears repeating that the vast majority of the lengthy delay in this case stemmed from systemic delay that had reached epidemic proportions across many parts of this country — a key factor that motivated this Court’s decision in Jordan. … .

… . Jordan sought to put an end to an era where interminable delays were tolerated, and to the complacent, “anything goes” culture that had grown up in the criminal justice system. The clear and distinct message in Jordan was that all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion.

Such statements by higher courts provide a warning to the governments that employ the prosecutors. Be assured, there are not spread across Canada grossly professionally negligent prosecutors, delaying trials for their own comfort and convenience—quite the contrary exists. The real cause of most of that delay is that there are not enough courts, judges, court administrative staff members, Crown prosecutors and Legal Aid funding. But to fix that is deemed to cost “big money,” the spending of which would violate the, “there are no votes in justice,” principle of alleged political reality.

For example, when I was a Crown prosecutor in Toronto (1966-1976), we prosecuted one jury trial after another with hardly a day out of court. You prepared your next jury trial while finishing-up your present jury trial. Limited time and staff meant that we processed cases in bulk, never becoming closely attached to any of them—but more time was allowed for the homicide offences. I once had to make my opening address in a jury trial in regard to a file that I was given ten minutes before the jury panel was brought into court from which the jury would be picked. I’d never seen the file before.[6] It contained a summary and several witness statements. The summary was written in the long sentence form meant to be read; not in the form of short sentences meant to be spoken to listeners. So, standing before the jury, I ran my finger along each sentence, converting it into 2 or 3 shorter sentences, which I then spoke to the jury. It wasn’t a complicated case, nevertheless, no lawyer, or justice system, or community should have to function that way. Justice cannot “appear to be done,” in such circumstances of a very poorly funded justice system.

Such circumstances were due to the introduction of Legal Aid’s assistance for very low-income accused persons who were, and still are very far from being able to afford lawyers. Suddenly, beginning on Wednesday, March 29, 1967, in Ontario—being also the completion of my first year as a lawyer and as an assistant Crown Attorney in Toronto—instead of a half-hour or less, guilty plea by an unrepresented accused person, the accused might have a lawyer who was electing a trial, that would be at least a one-day judge-alone trial. But as a jury trial, it could take three or four days or more. But government didn’t provide more prosecutors, judges, or courts with which to cope with the impact of Legal Aid upon the criminal court system. As a result, it had a large impact upon accused persons waiting in pre-trial custody in jails like Toronto’s Don Jail—instead of weeks, the accused were waiting months for their trials in very poor jail conditions.

Construction of the Don Jail was completed in 1865, on the scale of one inmate per cell. During the ten years that I was “a Crown,” every cell was “double bunked”—two inmates per cell. And sometimes there were three inmates; the third sleeping on a mattress on the floor of the cell, with his head up against the toilet or the bars. I was told that there weren’t enough guards to adequately quell the violence among all of the inmates, most of whom would be young men, much lacking self-control in such circumstances of over-crowding. And there weren’t enough guards to provide the regulation-required half-hour in the open-air quadrangle in the centre of the Don Jail. Judges were stating that such conditions were below United Nations’ standards.[7] “The Don” ceased to be used for such purposes in 2013. It was the site of the last two people hanged in Canada, on December 11, 1962, when I was in second year law school. I remember the radio announcement of that double execution that night, near midnight.[8]

In compensation, “2-for-1 sentencing” developed, for such inordinately long times awaiting trial in terrible conditions, i.e., judges deducted 2 days off the sentences they imposed for every day served in such pre-trial custody.

Such being a very embarrassing situation for governments, finally the federal Minister of Justice and Attorney General of Canada’s response was the Truth in Sentencing Act, S.C. 2009, c. 29, implying that judges were engaged in “untruthful sentencing,” by way of “2-for-1 sentencing.” He told Parliament’s House of Commons, (on Second Reading, April 20, 2009), that the cause of jail overcrowding was inmates’ not applying for bail so as to stay in jail to obtain maximum benefit from 2-for-1 sentencing. Really? In such terrible living conditions, for crimes that most inmates say that they didn’t commit!? That’s a classic government “blame the victim” solution. But it does provide a very inexpensive, albeit grossly ineffective and incompetent “solution.”

So, now, s. 719(3) of the Criminal Code dictates that such credit awarded for such pre-trial custody be limited, “to a maximum of one day for each day spent in custody,” with subsection 719(3.1) allowing an exceptional 1.5 days awarded, “if the circumstances justify it,” plus fulfilling the requirements of the other sub-sections that follow.[9] That’s how legislation is used to create merely the appearance of an adequate response without having to spend the big money for a truly adequate response, which should be jails having humane living conditions, and a sufficient number of judges and prosecutors able to provide more timely trials. And, judges should not have to worry about having enough time out of court in which to write their judgments. There are still not enough judges and Crown Prosecutors.

In R. v. Johnson, 2011 ONCJ 77, Judge Melvyn Green stated (paras. 97-99 and 155), that there was no empirical evidence to support the Minister’s statements, and that the change in the law made by the Truth in Sentencing Act, had had no effect on the congestion in the jails, nor on caseloads and the pace at which cases moved through the courts.

Regardless, R. v. Thanabalasingham, shows now in 2020, that political craftsmanship continues to overrule treating inmates humanely, and providing them with trials within a reasonable time. But to adequately argue those Canadian Charter of Rights and Freedoms violations requires an affordable lawyer, which Canada’s law societies say is the government’s problem, even though the unaffordability of lawyers’ services is caused by the very obsolete method by which lawyers produce legal services. Canada’s law societies thus boldly demonstrate that they are free to pick the problems that they will deal with, so that they do not have to change, as does the management of every other such “utility service” for society. They do so regardless the population’s great and increasing need for lawyers’ services.

But the only way such circumstances change is when top courts send governments stern messages as delivered by, R. v. Thanabalasingham. In turn, governments should hold themselves ready to send such stern messages to law societies to, “solve the A2J problem.” Voters could elect governments that are more ethically and competently responsive to justice system problems and conditions, but they never become sufficiently important political issues for that to happen, except when governments are publicly sufficiently embarrassed. The importance of the justice system to everyone is insufficiently taught in schools, and made known by governments.[10]

Because “there are no votes in justice,” Canada’s law societies have always known that governments would never threaten to replace them, regardless the extent of law society poor performance. To create a credible threat would require governments to know what they would replace law societies with, and how much it would cost, and how disruptive it would be. But thinking politically, one should ask, “how much does the average voter think about his/her need for courts, judges, prosecutors, law societies, and Legal Aid funding?” How many times in one’s lifetime does the average voter use a lawyer? But every voter wants our doctors and hospitals always immediately available, along with the latest creations of medical science. And so the availability of medical services has high political priority. But the availability of affordable lawyers is an issue having at most, very low, if any political priority. The resulting lack of accountability for their performance, has shaped the history and institutional culture of Canada’s law societies—de facto, they are accountable to no one!

[to be continued in Part 2, to be published October 24th]

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[1] LegalZoom began in 2001. In 2011 it carried out 20% of the incorporations of limited liability of companies in California, which has a population bigger than that of Canada. See: Benjamin H. Barton, Glass Half Full-The Decline and Rebirth of the Legal Profession (Oxford University Press, 2015), chapter 5, “LegalZoom and Death from Below,” (pp. 85-103). The author, a law professor at the Tennessee College of Law, states (p. 88): “LegalZoom and RocketLawyer, among others, have already begun to encroach upon, and may eventually cripple, the business of solo and small-firm practitioners. This chapter focuses on LegalZoom as an instructive and well-known example of this phenomenon, but others will also be briefly discussed.” [endnote omitted]

[2] See: Ken Chasse, “Artificial Intelligence: “Will it Help the Delivery of Legal Services but Hurt the Legal Profession?” (Slaw, November 21, 2018).

[3] See: Suzanne Bouclin, Jena McGill, and Amy Salyzyn, “Mobile and Web-Based Legal Apps: Opportunities, Risks and Information Gaps” (SSRN, June 16, 2017).

[4] See the comments of the Law Society of Ontario’s (LSO’s) Treasurer, Malcolm Mercer, following my Slaw post of July 25, 2019, and my response immediately following, and further analyzed in my posts of, April 9, 2020, and, May 29, 2020.

[5] See: Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers 1797-1997 (University of Toronto Press, 1997). As of January 1, 2018, LSUC is now entitled, The Law Society of Ontario.

[6] To relieve pre-trial custody, jail over-crowding, by completing as many trials as humanly possible each day, we took turns being the “trial coordinator,” whose job it was to keep every court conducting a trial every hour of the day. That day, Pat LeSage, (who some years later became Chief Justice of the Superior Court of Ontario) whose turn it was to be the trial coordinator, came into my court and asked, “Ken how’s your case going?” I said, “we just finished.” He said: “good, here’s your next trial; the jury panel will be here in ten minutes.” He then handed me that file about which I knew nothing.

[7] See: in the Ontario Court of Justice: R. v. Permesar [2003] O.J. No. 5420; and, R. v. Smith [2003] O.J. 1782. Unfortunately, CanLII’s reproduction of judgments from that court goes back only to 2004.

[8] Capital punishment was abolished in Canada in 1976 (except for some military offences, also later abolished), resulting in the commuting of many inmates’ death sentences to life imprisonment. Because abolition was a very politically and publicly topical issue throughout the 1960’s and 70’s, no further hangings were conducted after that double hanging in 1962.

[9] The Minister’s full speech is presented, with my commentary, in, “Untruth in Sentencing for Pre-Sentence Custody,” (2010), 15 Canadian Criminal Law Review 75. But see also, R. v. Safarzadeh-Markhali, 2016 SCC 14, concerning the constitutionality of both, s. 719(3.1), and the contents of the Minister’s speech, which is an important precedent permitting such use in relation to deciding issues of constitutional law.

[10] Such recommendations are not new, but should be magnified and multiplied. For example, the November, 1988, Report of the Justice Reform Committee to the Attorney General of British Columbia states in its Recommendation 3 (p. 18): “The Committee recommends the Ministry of Education for its work in developing legal education in all grades. Further initiatives should be taken as needed to ensure that teachers have the information, textbooks and other resources they require to enable them to educate children about our legal institutions and justice system.”

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