Access – it's time for some results
by Gordon Turriff, QC
Last year, the Benchers chose enhancing access to justice as one of their three chief priorities. Some of my Bencher colleagues think I have been hypercritical on this issue, especially concerning revision of the Rules of Court. It is not a secret that I have questioned the reform process.
But, actually, I think I have been quieter about access than I should have been. I don’t want to disparage the honest efforts of the literally hundreds of people who have been working hard to try to provide access to justice answers, but I do ask how much real change has occurred over the last 20 years relative to the very large investments made in exploring new approaches.
Perhaps incremental change is all that can be expected, and perhaps it is the right thing. Perhaps over time a new litigation species will evolve from the little variations. But can we wait for the evolutionary process to unfold?
Isn’t it somewhat astonishing that our method of resolving civil disputes at court is fundamentally unchanged from the regime that was introduced in England in the 1800s? Isn’t life now a little more complicated for most people than it was in Ruskin’s time? Don’t we enjoy a few technological advantages over our Victorian forebears? Aren’t our social arrangements somewhat different from those of our great, great or great, great, great grandparents?
Proportionality? What’s new? Think of the need to apply for leave to appeal from some trial court judgments. Case management by judges? Think of all the years of unused potential for educative interlocutory costs orders. Self-represented parties? Are the numbers larger because fewer people can afford lawyers? It must be so. But aren’t there a lot of Toms, Dicks and Marys with axes to grind who don’t want the rigour that lawyers bring and who have found the way to hold everyone to ransom?
I think there are far too many cooks stirring the access to justice soup. By that I mean that there are too many groups with public interest mandates trying to achieve the same object. The Law Society may be one of them. The Benchers have both an Access to Legal Services Advisory Committee and a Delivery of Legal Services Task Force. Each is very ably chaired by a clear thinker and both are composed of devoted helpers who want to do good. But it is a natural tendency for people who are given separate jobs to do separate jobs; the area of intersection of their work is unexplored territory.
I believe that the access to justice industry has to become more efficient. There are too many rooms full of too many people separately doing essentially the same thing without any coordination of effort. Even a clearing house like the CBA’s Civil Justice Forum is just another division of Access to Justice Inc.
If I got to make all the decisions, I would insist on one-room reform. I would find a neutral foundation with a lot of money it wanted to spend on access to justice and I would put into the same room for a year a top psychologist, economist, ethicist, historian, political scientist, lawyer and techno-wizard. I wouldn’t burden them with researchers. I would direct them to devise the simplest, cheapest and most effective way they could think of for the fair and quick resolution of civil disputes. I would give them a blank slate, except that in whatever they recommended there would have to be a place, somewhere but not necessarily everywhere, for independent lawyers and independent judges. What the proposers might suggest would be limited only by their own imaginations and ingenuity.
That would be my ideal. However, I am a realist, and in real life people don’t like big change. So, realistically, access to justice has to be improved step-by-step. As one small step, I have invited British Columbia’s chief law bodies — the Legal Services Society, the Law Foundation, the law faculties, the BC Law Institute, Access Justice, Pro Bono Law BC, the CLE Society, the Justice Education Society, and others — to meet this fall at a gathering to be hosted by the Law Society as the first of what I hope will become a series of bi-annual sessions. The meeting will be a marketplace for access and other ideas, a means of allowing each to learn more about its neighbours and for all of them to see how they can help others and be helped themselves. It will be an opportunity for the groups to discuss how they might work together efficiently, eliminating duplication of effort, coordinating the use of resources, channelling all the good ideas and learning how to keep the cooks to a manageable number. Happily, I can report that the chief policy makers for all the bodies have enthusiastically supported the proposed meeting. Some of the CEOs will soon begin working up a suitable agenda.
We will see.