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

[The content of this article is closely related to five of my previous posts on Slaw, dated: July 25, 2019; April 9, 2020; May 29, 2020; August 6, 2020; and, October 22, 2020. See also the full text on the SSRN.]

Part 1 presented the proposition that the great amount of “emergency relief-type” activity and literature that has been produced by the many access to justice agencies (A2J agencies) in relation to the “A2J problem” of unaffordable lawyers’ services, is: (1) deflecting attention from the great need to solve it; and, (2) it is assisting law societies and governments in the creation of a false appearance of an adequate response to the A2J problem. In fact, Canada’s governments have long failed to fund the justice system adequately, and its law societies say the A2J problem is government’s problem. As a result, here in Part 2, I raise a number of specific issues that should affect the leadership of the A2J agencies as is being very commendably provided by Beverley McLachlin, Canada’s former Chief Justice of the Supreme Court of Canada. Now, to continue where my Part 1 Slaw post of October 22nd, left off:

As a result, governments always respond to justice system problems in the least expensive way, which is usually legislation, the creation of which, majority governments have complete control—such as legislation the federal Minister of Justice and Attorney General of Canada recently alleged would “modernize and simplify the criminal justice system,” which meant “simplifying” by removing safeguards, like the preliminary inquiry.[1] But, most of the evidence now used in legal proceedings, and for legal services comes from complex electronic systems and devices, which includes electronically-produced, stored and transmitted records. As a result, the law must become ever more complex if such sources are to be adequately challenged and regulated as to the quality of their manufacturing, usage, and maintenance. Therefore, the preliminary inquiry is needed more than ever before.

But alas, reality goes its way, and the federal Minister of Justice takes the law in the opposite direction. He said that the preliminary inquiry is not used much any more. Did the survey used to support that conclusion look into the impact of economic factors upon decisions as to whether to use a preliminary inquiry—factors such as Legal Aid’s very low tariff of fees paid lawyers in private practice? But even if true, an Attorney General when acting as the Minister of Justice should not make bad practice into law by so greatly reducing the availability of the preliminary inquiry.

The other argument the Minister used was that a preliminary inquiry is not necessary because the Crown prosecutor now has a duty to make available, “the fruits of the investigation” to the accused—R. v. Stinchcombe 1991 CanLII 45 (SCC). But the Supreme Court didn’t say that, that justified removing the preliminary inquiry. And back in 1991, complex electronic systems and devices were not the majority source of evidence that they are now—electronically-produced records being the most frequently used kind of evidence. But the reliability of evidence produced by the many ways in which the substantial complexities of electronic technology are used is not being challenged.[2] For example, comparing the technical complexity and fallibility of electronically-produced records with that of the world of pre-electronic paper records is like comparing high-end automobiles, crammed full of electronic facilities and conveniences, with bicycles.[3]

The ability of such applications of electronic technology to produce reliable evidence should be examined at a preliminary inquiry. Electronic technology is based upon software source code, all of which has various error rates, depending upon the quality of its manufacture.[4] Also, the police and lawyers, including Crown counsel, are not yet sufficiently trained as to the vulnerabilities of electronically-based systems and devices. Nor are the police trained to be investigators for the defence. And they won’t know what the strategy of the accused’s defence will be. The preliminary inquiry can be used to reveal such inadequacies that show that despite first appearances, the prosecution really does not have, “a case of probable guilt,” and therefore, there should not be a committal for trial.[5]

Trials are too expensive in human resources to be leaving such issues entirely to trials, especially a jury trial requiring the jury to be absent from the court during long “admissibility voir dires.” And without the preliminary inquiry, counsel will be less prepared, trials will be longer, more expensive, less efficient, and more likely to produce wrongful convictions. Nevertheless, the federal Minister of Justice chose to be a good politician.

I’ve seen governments do such questionable “cost-cutting things,” a number of times in my career; see: “No Votes in Justice Means More Wrongful Convictions (SSRN, September 21, 2020). That is to say, governments thereby claiming that they are making the criminal justice system more efficient.

And the civil courts are being over-whelmed by self-represented litigants who cannot afford lawyers; therefore, their cases move more slowly through the courts. Law societies don’t require or help lawyers to modernize their method of producing legal services so as to be able to produce affordable legal services and thereby end the A2J problem. As a result, there exists the National Self-Represented Litigants Project, to help “self-reps” be better litigants without lawyers, and the many other commendable “A2J agencies” (see below). Commendable, but in only a limited way, because it means treating middle- and lower-income people as being no more worthy and successful than to be charity recipients—recipients of “relief type” legal services that cannot deal with the significant legal problems that require lawyers’ skills.

And those recipients will think, if not say, “I don’t want a free lawyer; I want my lawyer—my affordable lawyer!” They are the majority of voters and taxpayers. They pay for the justice system whereat all lawyers directly, or indirectly work and feed their families. But Canada’s legal profession is doing nothing to give that majority affordable lawyers. However, Canada’s law societies, still very much reflecting their 19th century private gentlemen’s club origins and institutional culture, present an appearance of being immune and insensitive to such political vulnerabilities.[6]

Canada’s law societies are as guilty as its governments in their abuse and neglect of the needs of the justice system. During the decades of Legal Aid Ontario’s (LAO’s) existence, the leaders of the Law Society of Ontario (LSO) have publicly emphasized the great public contribution that lawyers make by enduring the very low tariff of fees that LAO must provide because of its very poor government funding. But in fact, if LSO had been doing its job during all of LAO’s decades, by developing a support-services method of producing legal services at a much lower cost, those lawyers would be able to provide more affordable legal services and therefore would not have to depend so heavily upon Legal Aid clients. As a result, Legal Aid Ontario is really a welfare program for lawyers due to LSO’s neglect of its duties.

However, governments may indignantly say: “inadequate funding of the justice system; not true; we fund Legal Aid, don’t we?!” Really? In R. v. Moodie 2016 ONSC 3469, on a “Robotham application,” for state-funded counsel, by an accused person facing trial on serious criminal charges, but earning a little too much to qualify for Legal Aid’s help, and far below not enough to afford a lawyer, the Court pointed out that the upper annual income limit to qualify for Legal Aid Ontario’s assistance, $12,000, was half that which Statistics Canada specified as being the 2014 “poverty line” of $24,324, for a single person in Moodie’s circumstances living in a metropolitan area. Nordheimer J., (now a Justice of the Court of Appeal for Ontario) stated (para. 6): “It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country. … .”[7]

Law societies could solve the A2J problem by transitioning the legal profession from its present very obsolete “cottage industry” production method, to a “support services” method, (see my August 6, 2020, Slaw post). That transition has been made by all of the manufacturing of goods and services for more than 120 years, so as to make better products, and to make more money for the manufacturers of professional services as well as goods.

But instead, our law societies say that the affordability of legal services is the government’s problem. Law societies feel safe in this breach of their duty to regulate the legal profession so as to make legal services adequately available, and therefore they feel free to insist that governments pay for the legal services needed by the victims of the A2J problem. Law societies know that: (1) because “political wisdom” states there are not sufficient votes in bringing about such “expensive justice” as would be created by financing the legal services for people who cannot afford lawyers, governments will never threaten law societies with being replaced; and anyway, (2) governments cannot afford to do to lawyers what they did to doctors by creating the legal equivalent of our government-paid medical services programs, which in themselves take up at least half of a provincial government’s budget.

Deflecting attention from such issues of government and law society conflicts of interest, and the great need to end the misery caused to Canada’s population, and the damage caused to its justice system, are the many A2J agencies such as the Action Committee on Access to Civil and Family Matters, of which Beverley McLachlin, the previous Chief Justice of the Supreme Court of Canada, is the Chair. The Action Committee contains representative organizations (more “A2J agencies”) from: all of Canada’s ten provinces and three territories; and, Public/Equality seeking organizations; and, Justice Sector Institutions. Nor is there reference to such issues in the 2019 Progress Report (45 pages) of Canada’s Justice Development Goals (JDG); (the pdf. download link is at the bottom of the webpage). The Report also describes the work of other major A2J agencies such as: the Access to Justice Research Network (AJRN); Canadian Institute for the Administration of Justice (CIAJ); the Canadian Forum on Civil Justice (CFCJ); The Law Foundation of Ontario; and, The Law Foundation of British Columbia.

But in all of that activity, and all of the literature that the A2J problem has generated, there is no discussion about the actual cause of the A2J problem and solving it, and the related issues referred to above and below. It’s all very commendable work that should be done. But it is not able to prevent the A2J problem from continuing, and growing ever-more damaging. And, such prevention by solving the problem cannot be achieved without challenging the performance of governments and law societies, i.e., holding them to account for their failure to work towards a solution. But that would put at risk the A2J agencies’ popularity among such major institutions of the justice system and perhaps their funding as well. And so, they never “speak truth to power,” by challenging the failure of law societies to make any attempt to solve the A2J problem, nor challenge governments’ failure to enforce the performance of law societies’ duties so as to make them accountable to the political-democratic process, i.e., accountable to the voting public that is Canada’s electorate.

And, as commendable as the A2J agencies work is, the benefits it provides to the victims of the A2J problem are minor when compared to the great benefit that would be provided to: the population; all aspects of the justice system; and, to the legal profession itself, by solving and ending the A2J problem—i.e., if Canada’s majority cannot afford lawyers, the majority of its lawyers is short of clients. That is what Canada’s law societies should have done decades ago. Law societies are the very spoiled brats of Canada’s justice system.[8]

For many years the A2J agencies substantial work and their “A2J presence” has served to deflect attention from the need to solve the A2J problem. It thereby aids law societies and governments to create what is in fact a false appearance of an adequate response to the A2J problem. That is how power structures and systems preserve themselves and are able to remain unresponsive in the face of a desperate need for them to change and innovate solutions. And unfortunately as a result, that is why decisions of the Supreme Court of Canada such as, Thanabalasingham, Jordan, and Stinchcombe are so very necessary. And (as explained in my previous posts), without a solution, all of the young lawyers and law students working with the A2J agencies will have a much poorer future, working in a much smaller and financially depressed legal profession, while the present leaders of, our law societies, those governments, and of the A2J agencies themselves, will be comfortably retired or dead.

Canada’s law societies cannot say that they are an essential part of the legal infrastructure that makes our constitutional liberal democracy possible when lawyers are no longer providing legal services (that are more than simple, routine, paper-work services) to more than half of society, i.e., having willingly ceased to provide affordable legal services and the benefits and safeguards of the lawyer-client relationship to middle- and lower-income people.

Therefore I ask, is former Supreme Court of Canada Chief Justice McLachlin’s Action Committee and leadership of the A2J agencies, avoiding the major issues such as:

1. The cause of the A2J problem and the absence of any attempt to solve and end it in the near or far future. On August 11, 2007, in a speech to the Canadian Bar Association,[9] Chief Justice Beverley McLachlin, quite rightly said that, “access to justice is, a ‘basic right’ like education or health care.” I agree. But in the present circumstances of government and law society failure to provide adequate funding, management, and regulation of the legal profession for Canada’s justice system, it is not going to become an operative “basic right.” Such “circumstances” must be changed.
2. The services provided by the A2J agencies should not be seen as removing the need for a solution, and, efforts to solve the A2J problem should not be seen as threatening the importance of the services provided by the A2J agencies. They should be seen as being two parts of a necessary whole, all of which is necessary to provide adequate access to justice to the whole of Canada’s population. Each of the halves should be an advocate for the other. That understanding and advocacy is missing in what A2J agencies say and do.
3. Ignoring the circumstances that led to the Supreme Court of Canada’s decision in R. v. Thanabalasingham 2020 SCC 18, and the perpetuation of the growing A2J problem, and their consequences for the future of the legal profession and that of new lawyers and law students in the legal profession.
4. The A2J problem is rapidly moving to the stage whereat rich people and the institutions that they own and manage will have lawyers, but middle- and lower-income people will have only, law society simplistic “alternative legal services,” unsupervised paralegals, and the products of the commercial producers of legal services, i.e., they will no longer have affordably available to them the benefits and safeguards of the professional lawyer-client relationship.
5. Such stratification of the quality of legal services and of the qualifications of those who provide them, will have become available only in accordance with one’s income, i.e., the legal profession and its law societies will have created yet another example of the most disruptive force in western societies today—income inequality.[10]
6. The legal profession, by having given up its service to middle- and lower-income people, will have thereby given up its important place in the foundation of Canada’s constitutional liberal democracy, e.g., the Canadian Charter of Rights and Freedoms, and such duties as those in s. 4.2 of Ontario’s Law Society Act, “to protect the public interest,” and, “facilitate access to justice,” and, “advance the cause of justice and the rule of law,” do not exist only for rich people and the institutions that they own and manage.
7. Once the legal profession has given up its service to middle- and lower-income people, no longer should governments accord law societies their traditional position as partners with governments in the management of the justice system, e.g., representation on the boards of directors of Legal Aid organizations.
8. The A2J agencies by contributing to the false appearance of there being an adequate response to the A2J problem, make very much less likely that the legal profession will as a whole convert its method of producing legal services to a support services method, in place of its present very obsolete and cost-inefficient cottage industry method. The greater the number of lawyers participating in a support services method of production, the greater are the economies-of-scale, thus the greater is the lowering of the costs of producing legal services, and thereby, the greater is the income of those lawyers; (see, inter alia, my Slaw post of August 6, 2020);
9. The A2J agencies, by aiding the false appearance of a sufficient response to the A2J problem, are: (a) aiding governments to continue to severely underfund the justice system, and aiding law societies to continue to refuse to perform their duty to regulate the legal profession so as to make legal services adequately available; and, (b) thereby working against the interests of all who serve those A2J agencies as present and future members of Canada’s legal profession.
10. Law societies produce no sufficiently detailed planning for the future of the legal profession or for its law societies. The history of the A2J problem provides proof beyond a reasonable doubt of that. Because law to be effective, must provide an adequate response to the way we live, it will have to become much more voluminous, complex, quickly changing, integrated with technology, and demanding of everyone. As a result, lawyers will become much more necessary to the lives of everyone. As to whether there is adequate planning, download for comparison: (1) the Law Society of British Columbia’s Final Report of its Futures Task Force, entitled: Anticipating Changes in the Delivery of Legal Services and the Legal Profession, September 10, 2020; and, (2) the Law Society of Ontario’s Strategic Plan, Strategic objectives set for 2019-23 bencher term, February 27, 2020.

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 [1] A recent example of false economy (as is achieving economy alleged by a federal Department of Justice webpage) is the 2019 amendments to the Criminal Code restricting the availability of the preliminary inquiry to offences punishable by 14 years imprisonment or more (S.C. 2019, c. 25-former Bill C-75). But the increased complexity of the most frequent sources of almost all evidence due to electronic systems and devices becoming a comprehensive foundation of our lives, makes increasingly necessary a thorough review before trial of such sources’ ability to produce reliable “evidence of probable guilt” in relation to all offences. For example, almost all records now come from complex electronic records management systems, which is very complex technology.

[2] See by Ken Chasse: (1) “Challenging Electronic Systems’ and Devices” Ability to Produce Reliable Evidence,” (SSRN, Jan. 1, 2020); (2) “Electronic Records as Evidence,” (SSRN, Jan.1, 2020); and, (3) “No Votes in Justice Means More Wrongful Convictions” (SSRN, September 22, 2020), at pp. 13-17.

[3] See: by Ken Chasse, (1) “Artificial Intelligence: “Will it Help the Delivery of Legal Services but Hurt the Legal Profession?” (Slaw, November 21, 2018); and, (2) Electronic Records as Evidence,” (SSRN, January 1, 2020).

[4] Software errors cost the U.S. economy an estimated $59.5 billion annually, or about 0.6 percent of the gross domestic product, according to a 2002 study of the Department of Commerce’s National Institute of Standards and Technology (NIST).

[5] For example, mobile phone (cellphone) tower tracking evidence is now very frequently used location evidence for prosecuting many different types of offences, because we all carry and rely heavily upon our cellphones. But it is a very complex technology. See for example these voir dire rulings in the, R. v. Oland murder case: 2018 NBQB 259; 2015 NBQB 245; and, 2015 NBQB 244; and see: Ken Chasse, “Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible,” (SSRN, 2016). Dennis Oland was eventually acquitted on July 19, 2019.

[6] See: Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997 (University of Toronto Press, 1997).

[7] See also Criminal Code s. 684, as to such assistance for court of appeal litigants. 

[8] For example, in 1997 the Law Society of Ontario (LSO) was abruptly removed as the manager of Legal Aid Ontario after 30 years of managing LAO; removed for reasons, that are equally applicable to law society benchers today: (1) conflict of interest; and, (2) refusal to innovate, as was well established by two authoritative reports in 1997: (1) the report by Osgoode Hall Law School (OHLS) Professor McCamus for the Ontario government: Report of the Ontario Legal Aid Review-A Blueprint for Publicly Funded Legal Services; and, (2) the report by OHLS Professors Zemans and Monahan for the York University Centre for Public Law and Public Policy, From Crisis to Reform: A New Legal Aid Plan for Ontario. Both were very critical of LSO’s management. The second report concluded: “… we do not believe that the Law Society has demonstrated the capacity or the willingness to undertake the fundamental restructuring of the Plan that we believe to be necessary if Ontario is to achieve the maximum benefit from the still-considerable funding that is available for legal aid in this province.” (The “Plan” being the Ontario Legal Aid Plan (OLAP), the predecessor of the present Legal Aid Ontario.) The result was the, Legal Aid Services Act, 1998, which reduced LSO’s participation to that of having representation on LAO’s Board of Directors. Similarly, the 2008 report of Professor Trebilcock, of the University of Toronto’s Faculty of Law, Report of the Legal Aid Review 2008, adopted all of the recommendations of the McCamus report.

[9] See Toronto Star newspaper article of August 12, 2007, “Access to justice a ‘basic right’,” by Tracey Tyler, legal affairs reporter.

[10] See: Walter Scheidel, The Great Leveler-Violence and the History of Inequality (Princeton University Press, 2017). Professor Scheidel, is a humanities and history professor at Stanford University, California.