Canadians do not have access to justice. Access to justice is of foundational importance to Canadian society; access to justice is essential to the social and economic wellbeing of civil society. The civil justice system is too complex, too slow and too expensive. It is too often incapable of producing just outcomes that are proportional to the problems brought to it or reflective of the needs of the people it is meant to serve. The system is in crisis. The reforms to date are inadequate; change of a fundamental nature is required. An overhaul of the current system is required.
These propositions, all drawn from recently published reports on access to justice, have been advanced so often and restated by so many academics, researchers and leaders of the bench and bar that they have become truisms of justice in the twenty-first century. The breadth of their scope and significance of their implications has, however, has overshadowed two collateral observations: that none of the federal, provincial or territorial governments have thus far committed the magnitude of resources necessary to adequately support the effort needed to achieve fundamental change; and, that insufficient impetus has thus far emerged from the bench and bar to compel such a commitment.
The present situation is, with the greatest respect, staggering. We have at hand a crisis on a national scale, affecting a system that costs governments billions of dollars a year to maintain, and yet we as a society are unwilling to allocate the few millions of dollars that are necessary to tackle the problem as aggressively as it requires. To be sure, there are individuals and groups engaged in justice reform across the country, however the groups are poorly funded, poorly supported and reluctant to engage in a foundation-up reimagining of the justice system, and the individuals are on the verge of burnout as they struggle to carry projects off the sides of their desks. Why are justice reform initiatives not better resourced?
There are, I suggest, three main causes of our apparent reluctance to meaningfully address access to justice and the present crisis within the system.
Firstly, lawyers are largely invulnerable to the sort of traditional capitalist forces that impel change. Although the effects of the 2008 economic downturn were felt sharply by the corporate lawyers of Bay and Howe Streets, most civil litigators barely noticed the recession. Those of us who charge by the hour continued to charge by the hour and experienced none of the competitive market conditions that would have encouraged a reduction in our rates or a reevaluation of our billing models; indeed the legal fees surveys published by Canadian Lawyer show that our rates have continued to increase, often at a pace beyond that of inflation. With no shortage of clients willing to pay our rates, what possible motivation could there be apart from altruism to adopt the alternative service structures known to promote access to justice, such as flat-rate and limited-scope retainers, or work on a barter basis? Behaviour, after all, follows incentives.
Of course it deserves to be mentioned that lawyers are not actually engaged in a traditional capitalist market: we enjoy a statutory monopoly over most legal services and our potential competition is artificially suppressed. This arrangement is, in essence, a social compact in which the quid pro quo for exclusive rights is the provision of reasonably sufficient services such that society’s reasonable legal needs are reasonably met. I suspect that the consequence of failing to hold up our end of the bargain will be deregulation and the introduction of much more affordable competitors, whether we greet such measures with grace and magnanimity or not.
Secondly, although most judges and lawyers would agree that the efficiencies of the civil justice system have deteriorated over the past ten years as the number of cases and litigants without counsel have skyrocketed while budgets and the rate of new judicial appointments have stagnated or declined, few would likely say that the system has become intolerable. Our judges are at or reaching their maximum capacity; the continued decline of the system is not going to have much more of an impact on their workload despite its impact on their job satisfaction. Most lawyers are continuing to make a very good living and are turning away new clients. Apart from the aggravation of increasing delays in the time required to take a matter to hearing or trial, we are little inconvenienced by the deterioration of the system.
Although the decline of the justice system is causing some degree of discomfort for the two critical groups with the greatest power to promote change, it has not yet become so uncomfortable that the Bastille is in danger of being stormed. (On top of this, the senior lawyers who are the most influential among the bar are doing quite well under the current system, are least inconvenienced by the status quo and are, as a result, are singularly without motivation to pursue change.) As so often happens, the people who bear the brunt of the problem – court staff, legal aid agencies, front-line advocates and justice-serving agencies, never mind the actual users of the system – are the least empowered to effect change.
However, it seems to me that change is about to be thrust upon us whether we rise to meet the challenge or choose to sit on our hands. The flood of litigants without counsel shows no sign of abatement and the research tells us that such litigants are more likely to adopt unreasonable positions and as a consequence are less likely to resolve a dispute other than by trial. These litigants have difficulty with the rules of court, the rules of evidence, the legislation governing their dispute and court processes; they need longer trials and are more likely to require multiple adjournments to properly present their case. If the system is choked now, it is going to become absolutely impassable if current trends persist unaltered, much to our own inconvenience and that of our clients.
Thirdly and perhaps most importantly, although the future state of the justice system is eminently foreseeable, the precise date when the crisis will reach a point of climax and become intolerable remains indeterminate. It seems to me a function of human nature that whenever a grave problem impends and we have the choice of either
- undertaking painful, costly measures in the present in the hope of avoiding or mitigating disaster in the future, or
- deferring the discomfort of acting until the point of climax is upon us, and the pain and cost required to mitigate is ever so much greater,
we choose inaction over action. We are most certainly taking the second route with respect to the justice system, just as we are with climate change; we are trading our present, tolerable discomfort against the exponentially worse discomfort we are almost certainly going to suffer at an unknown date in the future.
Regardless of why so few resources have been allocated to the twin tasks of reform and reinvention, or of why the status quo carries so much inertia among those with the power to promote change, we are headed toward a watershed moment. We can continue to rearrange the deck chairs and proceed as if tinkering around the edges will resolve the crisis, or we can take the ship into drydock and take it back to the keel. The fact of the matter is that there is no shortage of good ideas and we likely have the answers necessary to address the access to justice crisis, or at least enough of them to make the critical difference. What we need are the resources and the will required to pilot, evaluate and implement them.
To get back to drydock, two things are necessary: the unflinching commitment toward fundamental change of the bench and bar, expressed through the chief judges and justices and the executives of the law societies and bar associations, and the commitment of government, expressed through a far more appropriate allocation of resources and funding. Without both, I fear that the momentum toward change encouraged by the work of the Action Committee on Access to Civil and Family Justice and the CBA’s Access to Justice Committee will be lost and the status quo will prevail until change is rudely forced upon us.
John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary.