After about 20 years of studying the Canadian legal sector, I’ve reached a couple of conclusions:
- The Canadian legal system is in the process of breaking down.
- No single group within the Canadian legal community can fix it.
To the first point, I’d cite the following:
- Self-represented litigants are swamping and damaging the court system
- As many as four-fifths of all family law litigants are self-represented
- Further damage is done by shortages of Crowns, judges, and immigration judges
- It’s not just court: More than 50% of Canadians don’t even have a will
- Stagnant legal aid funding is causing havoc across the country
- Lawyers have disproportionately poor mental health, especially in big firms
- Women continue to stream out of the legal profession at disproportionate rates
- The articling crisis in Ontario and BC could spread to other provinces
- The rising cost of law practice suggests we need a new regulatory model
- Lawyer self-regulation is widely seen as self-serving and protectionist
I could go on, but you already know most or all of this. You only have to look around at your local bar or courthouse to know how bad things have gotten. These are the chronic symptoms of a seriously ill justice system, and the fact that it’s probably worse in other countries shouldn’t make us feel any better about what’s going on in this one.
To the second point, I’d simply state what seems obvious: These problems are beyond the control of any single participant or stakeholder in the legal system. Lawyers alone can’t solve these problems. Judges alone can’t solve them. Governments alone can’t solve them. Regulators alone can’t solve them.
But together, maybe, they can try.
Here’s my proposal: It’s time to convene what I would call a Legal “Council of Elrond.” If you’ve read The Lord of the Rings or seen the movies, you know that the Council of Elrond was an emergency summit to which representatives of all the free peoples of Middle Earth were called, to address and resolve the crisis of what to do with the One Ring.
Note that the Council of Elrond wasn’t a conference or think-tank or brainstorming session. It was a meeting called to resolve a specific crisis through a specific action. Everyone who was summoned to the council was expected to contribute to the solution, and nobody was allowed to leave until a solution was achieved and a binding decision had been taken to implement it.
The Council’s decision, in LOTR, led to a worldwide war and immense personal sacrifices on the part of everyone who agreed to it. It was not a collaborative exchange of ideas. It was meant to save the world, and it accepted widespread violence and destruction as a probable side effect.
What would be the purpose of a Legal Council of Elrond? To resolve the crisis of the impending failure of the Canadian justice system, which is a destination towards which we’re surely headed. The Legal Council would convene for only one purpose: to come to a decision — I don’t say “consensus,” because not everyone who attends will like what gets decided — that will arrest the collapse of our justice system with drastic, probably self-sacrificial action. Nobody leaves until that decision has been reached and until all the attendees have committed to its implementation.
Who would attend? At a bare minimum, the Council would require the presence of four high-ranking representatives of the following organizations:
- The Federal Department of Justice (ideally, the Deputy Minister)
- The Canadian Judicial Council (its President or his/her delegate)
- The Federation of Law Societies (its President or his/her delegate)
- The Canadian Bar Association (its President or his/her delegate)
These are four federal organizations — they command the largest share of the Canadian legal and judicial sector, and their remit includes the broadest swathe of the Canadian legal system’s user base. Provincial, territorial, indigenous, private-sector, and other public-sector groups are welcomed to participate as well, although they might want to also consider convening their own Councils — as Legolas said to Gimli, “They have no need to come to war; war already marches on their own lands.”
But — here are the conditions for everybody’s attendance at the Legal Council of Elrond. Nobody gets to attend, not even the four organizations listed above, unless they agree to the following two conditions:
1. You must be willing to give up something significant that you now possess to help resolve the impending collapse of the legal system. What might that be? Make a list of your sacred cows — it’s one of them.
2. You must be authorized to bind your organization to whatever the Council decides to do — none of this “conditional agreement pending organizational approval” stuff. You are the authorized agent of those who sent you.
If you can’t promise to meet these two conditions, then you cannot attend. You are welcome to submit relevant data for the Council’s consideration, and/or an implementable solution with a fully costed roadmap or blueprint. But unless you’re willing to put your own skin in the game — to place your own crown jewels on the table — you stay outside the door.
A Council this serious and significant needs serious and significant leadership. We don’t have any elf lords hanging around, but we have, I believe, two individuals uniquely positioned right now to co-chair this council and drive it to a successful conclusion.
- The Right Honourable Beverley McLachlin, soon to be the former Chief Justice of Canada; and
- The Right Honourable David Johnston, a lawyer and the former Governor-General of Canada
The federal government, through the Department of Justice, can choose the location of the Council and can pick up the tab for its expenses. The ultimate responsibility for Canada’s justice system lies with the government, and specifically with the DoJ. They will be held responsible for the failure of the justice system; they should shoulder the lesser responsibility of organizing and hosting this Council.
I’m certainly in no position to make this happen by myself. But I am in a position to write about it, and to issue this call for the parties above, to reach out to each other and strive to make it happen within the next nine to twelve months. For myself, I’ll commit to play whatever role in a Legal Council of Elrond that I could usefully play.
That’s my proposal. What say you?