Wednesday, 25 January 2017

What the Chief Justice of the Supreme Court of Canada said

As I've mentioned before, the case that drew me into the legal system as a self-represented litigant was that of the BC Teachers' Federation seeking the power to bargain what it calls "class size and class composition," but what is in fact how public schools are organized and, overall, how much they cost, not to mention controlling families' lives and all that. It is a fundamentally illegal power that the union seeks, but thanks to a bit of linguistic sleight-of-hand, bad precedent law, and political opportunism, the union was granted that power in 3 out of 4 court appearances, including at the Supreme Court of Canada in November 2016.

This last decision has settled the matter as far as the two parties and the courts are concerned, but has created a legal, constitutional nightmare that the citizens are now left to live in, and which we will have to litigate our way out of if we are to rescue our system of governance. I am now engaged in figuring out how to unravel this mess. I am free to call it a mess because I am not an officer of the court, but unfortunately I also lack the litigation capacity that officers of the court have. So fixing it is going to take a lot longer than saying it.

One thing I had to do to begin unravelling this mess is to listen to the webcast of the hearing at the Supreme Court of Canada. This was necessary because there was, in effect, no decision issued by the SCC. The court simply went behind closed doors for 20 minutes, probably all took a bathroom break, and then voted on the decision of the BC Court of Appeal. The Court of Appeal decision was a 4:1 split against the union; the SCC voted 7 to 2 for the sole dissent (that means the BCTF won).

And that is all the SCC has provided by way of reasons.

So the webcast, and particularly the questions that the SCC judges asked of the presenters as things proceeded, was pivotal to understanding what went wrong. It was pretty interesting throughout, barring how disillusioned one quickly becomes about notions of fairness as one watches how these things proceed. For example, some presenters are allowed to take their allotted time, but with others, the judges interrupt with questions and the presenter never gets to make their whole presentation. There is no apparent allowance made for the time taken up by the judges.

This is, of course, because all the utterances of the judges are meant to be regarded with reverence, and the assumption prevails that having the opportunity to directly address a question from a judge is actually a better use of time than whatever remarks the parties or interveners might have prepared. And to an extent, this held true. Some of them asked quite penetrating questions, although the end result shows they were quite gullible in terms of the answers they accepted from the union.

But there was one remark, or set of remarks, from the Chief Justice herself that caught my attention particularly.

It occurred during the presentation of Donald J. Jordan, QC, appearing for the intervener Canadian Association of Counsel to Employers, circa 3:15:00 of the webcast. This is my own transcript of the exchange:

     DJJ: “ I’m going to take my time here today to address the issue which appears to have caught the court’s attention today about assessing the reasonableness of positions under the rubric of pre-legislative consultation. And I think you have to start with a recognition that it’s a difficult thing to do to reconcile things which are often quite competing in the sense that under the notion of pre-legislative consultation trying to reconcile collective bargaining and the legislative function. Collective bargaining is highly adversarial, it’s bilateral, and people act out of their own self-interest. Legislation on the other hand is polycentric and policy-driven with the government having to act in what it perceives to be the interests of all.

     CJ: How does this really differ from a business… we have management, we have labour, management has to take into account, be it government or be it some very complex corporation, or simple, they have to take into account a whole range of activities and then they come up with something so I’m having a little trouble with how we are in this peculiar situation…

     DJJ: Respectfully I think the situations are not parallel at all. Management has no role for anything, no obligations to anything other than the particular enterprise whereas governments have obligations far beyond, for example, the teachers or the paramedics or various other people…

     CJ: Corporations may have a lot of obligations too, under contracts and one thing and another and to shareholders. I’m just saying from the point of view of the structure its not who you have the obligations to it’s the entities that are going to be doing the negotiation and surely the job of government is to consider all the different ramifications and come to the table with - I’m just suggesting this but…

     DJJ: Respectfully I think it diminishes the role of government as a democratic institution to say it is responsible for the same type of reconciliations as a corporation [does]

     CJ(?): [brief, inaudible]

     DJJ: Well, governments are special. Governments are democratic institutions, they’re part of our democratic tradition, they’re how we, ah, are governed. It’s a pretty simple observation. 

     But it is of course in this case it is the case that we are at the intersection of collective bargaining and government’s role and what I want to speak to today is how that relates to the issue which has been apparently front of mind here about assessing the reasonableness of positions. Let’s start with what collective bargaining does…. [remainder of presentation].

~~~~~~~~~~

I'm going to just leave that exchange here for the moment; I hope to post more about its implications at another time. 

Saturday, 7 January 2017

We have a very serious judicial independence problem in Canada

Part One of Three: #Zabelhat

So, smack in the middle of the still-unfolding drama that was created by law professors around Justice Robin Camp, comes the news that Judge Bernd Zabel of the Ontario courts has been suspended for wearing a hat in court. And who made the #ZabelHat drama happen? Law professors.

Yes, you heard that correctly. A law professor, this time one at Osgoode Hall, who was not even in the courtroom, took offence to Judge Zabel's hat, and made a complaint. With who-knows-how-many complaints in queue made by ordinary people and lawyers who actually appear before judges about substantive matters of judicial conduct, once again a law professor can vault ahead and take down a judge while the rest of us can only fume impotently and vent our spleen writing futile complaints to the bodies that supposedly govern the judiciary.

Yes, I said "supposedly" govern. Because those bodies are now revealed by the two cases of Camp and Zabel to have no authority of their own at all. They crumble at the first sign of disapproval from within legal academe, whether that disapproval is merited or not.

In both cases, the academics' disapproval of the judicial conduct was not only not merited, but also, the conduct was relatively harmless compared to conduct issues that normal people are facing in courtrooms and from judges more generally. For example, there is a Quebec judge jetting around to legal conferences asserting that self-represented litigants are mentally ill. Any action on that file? No, we are more concerned about Judge Zabel's hat.

Legal academe has gone completely rogue. I'm tempted to say insane, but there is too much consistency to the method. Legal academe has gone rogue. And it's gone rogue politically. It's no accident that Judge Zabel's hat was a Trump hat.

In the CBC's story today about the Zabel hat incident, one particularly outraged professor intones that there is "compelling evidence that he wore the Trump hat as a political statement and endorsement of Trump's values and ideology."

Well, maybe he did. But aside from the problem of political opinions being voiced by the bench, there's nothing wrong with Trumpian opinions in particular. Everyone and anyone has the freedom to not just endorse but also to passionately embrace Trump's values and ideology. It's just that Trump's values and ideology give the professoriate the creeps.

Which makes the professor's complaint itself a statement of political opinion by the professor. How suitable is that? To whom do I make a complaint?

A judge wearing Hillary regalia, you see, would have aroused not a word of complaint. For example, there was no academic movement to disbar Marie Henein for her pro-Hilary rant in the Globe and Mail, however inappropriate that was for a lawyer. (There are professors who have, however, damned her for defending Ghomeshi, ie, for doing her job).

The professoriate worldwide is driven absolutely nuts by the Trump victory. They see it, and rightly, as a rejection of their sage advice to the people about what is good for them. It's kind of amusing that this comes in Canada from the American Trump victory and the UK Brexit vote, because you know, before either of those things happened, Toronto thumbed its nose at the publicly funded elite and voted for Rob Ford. And Vancouver thumbed its nose at a multi-million dollar bureaucratic campaign to vote up transit funding with a resounding NO.

The professoriate did not take a hint from those events. Now they are knocked somewhat flat by the evidence from outside the country, and so much so that their high minded democratic equality ideals desert them as they flail about to reconcile those ideals with their hatred of Trump. To a unit, those who try to argue against Trump cannot speak without revealing their contempt for the people who voted for him. Just like the professors who are going after Judge Zabel.

Sorry, people, the high-minded ideal of democracy and the reality of equality means that when Trump wins, you concede graciously or you shut up. You may think that the Rob Ford melt-down shows that you are right, but you are wrong in thinking that, because garbage collection is working better now, no matter what Rob Ford's own tragic back story was. And the people who voted for him knew that it would be.

It's also no coincidence that Judge Zabel was a judge in Hamilton. My take is that he's a judge who knows his people. My guess is that he increased local confidence in the judiciary tenfold when he wore that hat. Local people would be choosing to appear before him if they could. His joke may not have played well in judge's chambers or in academe, but I bet there was a good bit of chortling over the morning newspaper in homes throughout the region when news of it broke.

Neither public support nor my own views make the hat a good idea, of course. I'm not saying a hat can't be problematic. If a judge wore a hat with a logo of a potential litigant, for example, I could see a problem - so, let's say, Toronto Blue Jays, or the Steelworkers union. And I'm not saying it shouldn't be pointed out, even by a left wing law professor. Critique is good: we are always more willing to see our opponents more clearly than we see those who we support. That's why the law is adversarial. But public dialogue should always be adversarial too, and what bothers me about the Zabel hat incident, and the Camp case, is that no one has opposed the professors who complained. Everyone, including media, just rolls over when a professor speaks - they can't possibly be wrong, can they? - and worse, the professors expect precisely that reception.

Part Two of Three: Can the professoriat be reined in?

The belief in the professoriate that they should rule the world, and especially control the judiciary, has been brewing for some time, and it became glaringly apparent through the Ghomeshi file that it is especially prevalent within the ranks of feminist missionaries who work as legal scholars. Tragically, there are actually law professors who treated the outcome of that trial as regrettable, and who are plotting to make sure that something similar - an innocent man evading conviction - cannot happen again.

But the cost of rogue academe truly hit the fan in the matter of the Justice Camp takedown. It is not readily apparent from the news coverage, but if you carefully read the inquiry documents you realize that, after the campaign against him began with four law professors, a veritable chorus of over 50 more law professors bolstered them. There were a couple of dozen individual, perhaps public, letters, but professorial signatures outnumbered them. Most appalling was a petition signed by over 200 law students in various programs at the University of Windsor. What kind of a law education is that? And how confident of their own invulnerability do these 50-plus professors have to be to put their names to a witch hunt?

That they truly feel invulnerable is readily apparent throughout the arenas of discourse in law, including social media. Not only do they merrily tweet out and blog-post about their twisted views of judicial propriety and expectations of the law, but also, when questioned or challenged, they engage in various evasive tactics: they stonewall, they regress even further into their utopian delusions of law, they ridicule opposition, or they leave a ghastly, deafening silence where their respectful response and self-evaluative engagement should be.

Obviously, even when they wield their credentials to gain leverage in the court of public opinion, these professors have absolutely no notion of letting themselves be taken to task here. Academic freedom, right? Not if it's outside the boundaries of peer review. Outside the boundaries of peer review, they are answerable for why they get paid to spout opinion in public while the rest of us don't. And lousy opinion at that.

But however irrational they become, they seem to have a death grip on the judiciary.

So, how can they be stopped? The only thing that will give legal academe pause is if the supply of money dries up. This means that they can be stopped only by government, by the law profession, or by alumni.

University management is not going to do anything. They're too happy splashing around in all that money.

Of the three forces that can turn off the taps of money, government is not going to defund universities. The professoriate is too potent a political force - connected to the union movement and able to mobilize their students too. And willing to do so, as shown by the UWindsor student petition.

That leaves legal alumni, and the legal profession as a whole.

Any alumni, whether they are sending in twenty dollars once in a decade or donating 30 million once in a lifetime, need to think about what they are supporting. Anyone who can still distinguish why it is wrong that a law professor can take down a judge based on a difference of political opinion should realize that the manufactured fear of Trump is blinding us quite conveniently to something much worse being done by the people who hate Trump.

If you are supporting a university or a law school, you are funding the destruction of judicial independence by making judges subservient to law professors.

And the profession of law needs to take the training of lawyers back out of the academy and restore it to the practical realm. Because that guy, the one who  - seriously, think about this - made a complaint about the hat that a judge wore in court without any breath of reference to the quality of work the judge was actually doing, is teaching the next generation of lawyers.

It should be noted that as we speak, the profession and academe are getting more tightly into bed together; blurring the boundary between agencies and making the profession increasingly vulnerable to control from within academe. The profession needs to draw back from that engagement. If the profession becomes complicit with what legal academe is doing, it cannot legitimately evaluate whether programs merit accreditation and whether graduates should be licensed to practice. Robust systems are all about boundaries, so that separate agencies can act as checks and balances on each other. Academe's failure is a sign that certain jobs in the system have been left undone.

As I've said before, law firms are getting bigger and bigger, to the point of being able to do in-house training. It can't help but be better than the training that law students are getting in the halls of academe. From what I see on line, law students are getting progressively dumber and more gullible. Or maybe they were always like this, but their work was wisely kept within the academy where it could be safely forgotten.

And let's not forget how easy it is for new grads to get close to the judiciary. After being indoctrinated by the utopian professoriate, whether with ecological, gender-based, or Trump-hating zealotry, these new grads are quickly absorbed into clerkship positions within the judiciary itself, where they brief judges on cases and may even write their decisions for them (someone, please tell me this doesn't happen, but so far my information is that it does).

So, practitioners: get those students out of the hands of those professors before the damage to the profession is permanent.

Legal conferences and speakers are another avenue by which money flows into schools of law. That's a big industry. I don't say that scholarly speakers can't provide value. But if I were inviting a professor to speak whose work I value, I would want to be sure that no money is going to their colleagues whose work is destructive.

So as benchers, as alumni, and as practitioners, the law profession needs to cut the academics loose. There is no excuse for this deliberate and unrelenting campaign to render the judiciary servile to academe. Of all people, legal scholars should know how wrong this is. The fact that they either do not know, or know and do it anyway, shows that they are not legal scholars at all. They are just really smart people who speak the language of law well enough to disguise their contempt for it.

"Credentialed to Destroy," someone called this within the education discipline. A lawyer, actually.

There are still real legal scholars in academe, by the way. They're just getting harder to hear.

Part Three of Three: Is the judiciary resilient?

This is not to excuse the judiciary from the role it has played in its own destruction. Judges are also really smart people. They can legitimately have been expected to notice when they became slavishly subservient to academe. And they can legitimately have been expected to fix it.

Note that the ensuing historical references are mostly written without checking my notes. So don't quote without fact-checking please.

When the Canadian Judicial Council was formed in 1972 or so, after the Landreville hearings went badly, the intent was to create a forum in which judges would hold each other accountable independent of political interference. It has always been the great fear that justice would be controlled by those with political power - legitimately, because it often has been - and the CJC seemed to be a refuge from that.

But the CJC model had some fatal weaknesses, as current events show. Independence from government meant closer ties to the legal infrastructure itself. Greater loyalty to it, greater reliance on it, and greater vulnerability to it. It's ironic, but as it became less acceptable for judges to be political, judges also became less and less connected to their communities. This actually makes perfect sense: the most underrated quality of politicians is populism. Those who best sense, respond to, connect with, and reflect popular sentiment are the most successful politicians. And it used to be not uncommon for judges to have been, in a former life, politicians.

Not long after I started up this blog, with the name The Court Jester, I came across a series of Canadian books by that name. Written by Peter V. MacDonald, QC, and published respectively in 1985, 1987, and 1990, Court Jesters, More Court Jesters, and Return of the Court Jesters are a very entertaining read but also a gut-wrenchingly authentic collection of snapshots of the history of the judiciary.

People, you may not know it and I did not know it because it is almost outside living memory, but the law used to be alive. Judges used to be Menschen. The courts used to be places of public dialogue.

To read these vignettes is to travel back in time to when public confidence in the courts was a real thing, because the public was sitting in the bloody courtroom reacting viscerally to everything that happened. Or, if the tales in one section are to be believed, they were gathered in the firehall, perched all over the fire trucks, because that was the only place in town available to hold a trial. In any event, court was the only show in town - especially pre-TV - so people went.

Note I'm not saying public confidence was higher or lower. My point is that it was real, not just a rhetorical construct used by judges who haven't actually interacted with a member of the public outside the courtroom since their appointments.

In a gutsy move by the writer and publisher, the third book includes as Chapter 5 a section titled "The judge who knew everything." It recounts three cases heard in a single afternoon by a judge who was able to correct, corroborate, or fill in witness testimony about the people and places the alleged offences involved because they were places he'd lived and people he knew. The judge was Leo Albert Landreville.

In preference to the sanitized, robotic version of the judge that legal academe is trying to create with its dogmatic purification process (reference to Karl Popper) that seeks to purify the human right out of the judge, please give me one of the living, breathing, thinking, fallible, yet striving, funny, and often brilliant humans who populate the pages of these books.

Perfect was ever the enemy of good, and the creation of the CJC after the Landreville affair may be an exemplar of this principle. A précis of Bad Judgement: The Case of Mr. Justice Leo A. Landreville describes among the agents of his takedown "the intolerant attitudes of the élite bar." Apparently the LSUC investigated him, as did a retired judge and a parliamentary committee.

I think the moral of comparing yesterday to today is that the holding to account of a judge for anything is never going to be easy, nor is it going to be pretty. It may be necessary for the process to change from time to time, as it has been doing and promises to do again.

But if the process is to sustain public confidence, then there is one fundamental principle that must be sacrosanct, and that is that any time action is taken against a judge, it had better be against a judge who is at that point in time among the worst offenders, not just one who is the easiest prey or whose take-down best serves a certain political interest. That is the essence of judicial independence, that no political force, whether it emanates from government or elsewhere, can target and take down a judge of their choice.

Watching the Camp and Zabel stories unfold reminds me irresistibly of quests to reduce hospital morbidity and mortality that seize on small mistakes by junior physicians or nurses while studiously ignoring the frequency with which senior elite surgeons don't wash their hands.

Whether Landreville was rightly censured or not, I believe the formation of the CJC was a mistake. Maybe not the organization itself, but the decision to put in leadership positions within it the people who also manage the courts across the country. The provincial equivalent bodies are presently being restructured to involve more public participants. Given the size, diversity, and political polarization of the public, I am not sure this will answer. But even if it does, the behaviour of people within an agency is always a function of the forces that act on the agency, and it is the nature of those forces that may be easier to isolate for examination, and alter.

Given that academe presently poses the greatest threat to the judiciary, both the fact that the political left has captured academe and the fact that scholars have self-assigned themselves to a divine right to act as public intellectuals must be questioned. We do not employ these people at public expense so that they can reach out of their safe perches in the ivory tower and arrange the real world to their liking. Anything that emerges from the tower must either come into the marketplace of ideas or be tested first by peer review - peer review that isn't kowtowing, groupthink, or a popularity thing.

If academe does not heal itself, then, the judiciary needs to distance itself from academe's influence. Not cave to its decrees, as it has so far in both the cases of Camp and Zabel.

Since the CJC's formation, the Charter of Rights and Freedoms has also been enacted, and handed to the Supreme Court of Canada to adjudicate. This totally changed the power dynamic within law, including the role of the Chief Justice for Canada, in ways it is beyond my scope in this post to examine. But I think there are implications for the CJC's capacity to evaluate judicial conduct, and also for the type of influences to which it is vulnerable. A whole industry sprang up around the Charter, and it has deep roots in academe.

And then a very young Chief Justice for Canada was appointed, poised to hold that position for a long time. Maybe a bit too long. No matter how excellent an incumbent, succession is an opportunity for organizational renewal, and the judiciary and the law both have been denied this opportunity for the period of incumbency.

Today, then, as we contemplate the rubble of a once respected, connected, and functionally independent judiciary - never a perfect one, but at least a living thing - we are at the intersection of a number of significant decisions and developments that originated in the 1970 to 2000 period that are either ignored or resistant to scrutiny when we contemplate judicial conduct.

Anyone seeking to make decisions about these two beleaguered judges should recognize the underlying forces that may be in play, and take action where the cause is, not where the effect is playing out.

In the meantime, until the conversation goes to the heart of the matter, I'm calling the case of both these judges a witch hunt - or a lynching. And that being the case, these campaigns cannot be allowed to succeed. I'm calling on the organizations of the law to reassert themselves to recapture their authority, their dignity, and their independence, in the public interest.

Wednesday, 7 December 2016

A. Million. Dollars.

Many, many years ago, the City of Vancouver sent out a notice announcing they were going to pave our back lane, and increase the taxes of everyone on the block accordingly. My husband and I were not too happy about this, since we already had a problem with traffic speeding in the alley and felt it was likely to get worse if the lane was paved, and we couldn't see any benefit at all for the increased cost.

There was a process for objecting, and so I set about carrying it out. The first thing was to get signatures of every resident on the block; if I could get enough people to object, we could stop the paving. This is not as simple as it sounds. Most people are only home in the evening, and it was winter, so getting dark early. Our neighbourhood has a bit of a siege mentality due to a high crime and threat rate, so it's awkward door-knocking (or having your door knocked on) after dark. Then there was a high rate of language barriers. Nevertheless, and seven months pregnant as well, I headed out on a number of miserable consecutive evenings, once my husband got home to take care of our toddler, to get the requisite signatures.

It eventually turned out that the City had advised me wrongly that the signatures were required; in fact, they had wrongly put our alley on the roster for paving. It wasn't slated for paving at all because it was not categorized as a residential alley, but an industrial one. Or something like that. Anyway, I'd totally wasted my time and suffered for nothing.

So I sent the City an invoice for my time. I never got paid.

It was a number of months if not years later that I was wasting even more of my time at a community consultation meeting of some sort, that the city staff person who'd been sent out to placate the masses recognized my name as the person who'd sent in the invoice for my time. He seemed to think it was funny. But I wasn't joking. It struck me as eminently sensible that when two departments of paid functionaries couldn't make enough sense of their work to avoid burdening a citizen with an unnecessary duty, they should pay for that time. Personally, if necessary.

I still never got paid.

The idea that bureaucracies could be motivated to be more effective if their budgets had to factor in the time they cost citizens has been with me ever since. I have spent countless hours conversing with employees of school systems and other bureaucracies while they get paid and I don't. What's more, I don't end up getting what I want after the conversation either: the chat invariably consists of me posing a perfectly rational question, idea, or complaint to the functionary and then having to listen to their raft of excuses, defences, deflections, and distractions. At the end, I go home exhausted to the pile of work I left undone to go to the meeting, while they stride jauntily back to their important office, scrutinize their missed phone calls, and submit a proposal for an assistant to cover all this time they have to spend talking to the public. And this interchange is repeated over hundreds of other citizens and bureaucrats. Not only are the citizens not getting paid for engaging in this process that does not deliver our desired outcomes, but also, we are paying the bureaucrats to stonewall us.

It would all be solved if the departmental budgets had to pay the citizens for their time as well. It would be solved even faster if the salaries of the functionaries had to decrease by a percentage point for every increase in the citizen time paid out.

I thought of this old idea of mine again today when I read a report called "The Cost of Justice," by Trevor Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup, and Lisa Moore. It's published by an agency called the Canadian Forum on Civil Justice. Or, if you prefer, le Forum canadien sur la justice civile.

Now, with my little story about lane paving, it may strike you, as it struck me, that we are fortunate to be living in a place where citizens are told things like "the planning department and the engineering department failed to communicate; there was a misunderstanding, and we won't be paving your lane." There are countries where you either don't get consulted at all and can't object, or your tax bill goes up whether your lane gets paved or not, or if you complain too loudly the officials come and take you away. Where the officials would never admit a mistake. Yes, I realize we live in a little slice of paradise here. And that is why I work so hard to keep it that way.

So I appreciate that this report on "The Cost of Justice" comes right out and announces, on the first page, that the project is "funded by a $1 million grant from the Social Sciences and Humanities Research Council of Canada." I really am grateful that this information is so clearly provided.

But that doesn't mean I have to be happy about it. Think about it for a minute. One. Million. Dollars.

And here, by the way, is what this report delivers: "We hope that the results of this study will help to inform important public discussions around access to justice and our collective legal wellbeing." That's the conclusion; the last line in the report. For a million dollars, all that these authors have delivered is hope. And not hope for better access to justice or "collective legal wellbeing," by the way. Just hope that "this study will help to inform important public discussions" about those things.

See that part about the discussions? First, they're bound to cost at least another million dollars. And you know what? To the extent that they include any ordinary members of the public, we won't be getting paid to take part in them. And you know what else? Those discussions aren't going to net better access to justice either. You know why? BECAUSE THESE PEOPLE ARE MAKING OUT LIKE BANDITS WITHOUT ACCESS TO JUSTICE, THAT'S WHY.

Actually, the last paragraph really has to be taken as a whole for its significance to be fully appreciated.

"In addition to the importance of all of these findings to justice stakeholders,
the results of this study should be of most interest to all of us – the public.
Clearly legal problems affect everyone. The implications of dealing with
them, and of not dealing with them effectively, are significant – financially
and otherwise. Access to justice, and in particular the cost of an accessible
(and inaccessible) justice system, needs to become a topic of widespread
public deliberation. As we have seen over the past several decades with
exercise, nutrition, and emotional and physical wellbeing, for example, when
important social issues become matters of widespread public interest and
concern (often through the media and ultimately to the attention of policy
makers and elected officials), significant change starts to occur. Underlying
and informing those debates needs to be sound research and data. We hope
that the results of this study will help to inform important public discussions
around access to justice and our collective legal wellbeing."

What it's important to understand about any public policy arena is that there are two categories of stakeholders: paid, and unpaid. The interests of paid and unpaid stakeholders are totally at odds: the unpaid stakeholders just want the system to be efficient and effective at what it is supposed to do, while the paid stakeholders are vested in not solving the problems or meeting needs because problems and needs sustain jobs. Whatever any paid stakeholder says about how much they care - and I'm sure they do - that is the basis of the incentive structure, and the outcome always follows the incentive structure.

Now, notice what they've done in the first line: they've conflated paid and unpaid stakeholders into one unified, inspired group: the public. In their minds, they - and they are lawyers, who have the capacity to deal with their legal problems with ease, not that they have as many, because people are less likely to create legal problems for lawyers - are just justice stakeholders like you and me, who are in court totally overwhelmed by the mere idea of case law and completely baffled by legal processes. By conflating the groups, they wrap themselves in the virtue of the marginalized legal system victims, and simultaneously shed responsibility for coming up with any answers by putting the task of responding to their million dollar paper on "the public." Keep in mind, whenever something is everyone's problem, it's no one's responsibility. So, with that million dollars, apparently, came no responsibility. That's back on the rest of us.

The next sentence deserves special mention: "Clearly legal problems affect everyone." Now I know my sarcasm is getting out of hand here, but for a million dollars, you'd think they could afford a comma. But that aside, what a staggering insight. That's what we get for our million dollars.

With the next series of thoughts, the paragraph continues to ensure that not one iota of expectation sticks to the authors or the authoring agency. The problem of access to justice "needs to become a topic of widespread deliberation." If you don't mind my asking, looking at all the other topics that already are topics of widespread deliberation, WHAT THE HELL IS THAT GOING TO ACCOMPLISH? The answer is curiously, and depressingly, simple: it is going to generate a whole lot more million dollar grants. And these authors and this agency, with this report on their resume, are going to be first in line for those grants.

I might add that the examples they give, "exercise, nutrition, and emotional and physical wellbeing," are completely different challenges from access to justice, and also aren't exactly inspiring for the successes they are achieving. Exercise and nutrition are personal choices that people have the power to make, unlike legal system behaviour, and as far as emotional wellbeing is concerned, well, there's this youth mental health crisis you might have heard about. That's going well, isn't it?

The deeper we go into the paragraph, the worse it gets. "As we have seen ...when important social issues become matters of widespread public interest and concern.... significant change starts to occur." 

This might be a good time to look at just who these authors and this agency actually are. The Canadian Forum on Civil Justice is "established by the Canadian Bar Association and affiliated with Osgoode Hall Law School." The authors are all lawyers, law professors, researchers, and the like. They are the legal establishment. Creating access to justice is a simple matter of some minimal reforms of the legal establishment. The people writing this report have the power to directly envision and promote these simple changes. But despite the power they have, these people aren't interested in looking or working inwardly to reform the legal establishment. They are interested instead in generating a "widespread.. usually involving the media... and policy-makers and elected officials" movement that just, by some unknown process under a mysterious and magical impetus, "starts to occur."

In case the full infamy of the thing isn't yet clear: these are the policy-makers. The policy makers have taken a million dollars to write a report convincing the public that we have to spend hours of our time and millions more dollars to mobilize the media and create more data to inform.... them. The creators of this paper.

They could just go ahead and make some policy changes already. Policy that would alter the access to justice equation for millions of Canadians, without also demanding more of our time (as "the public") and our money. They could even have come up with a policy suggestion or two and put them in the paper.

They chose not to do so. They couldn't think of a damn thing to do except to start a public conversation.

But they took the million dollars.

Here's a link to the 22 page paper: http://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf

Friday, 18 November 2016

The BCTF decision

The November 10th decision of the Supreme Court of Canada on the BCTF case merges the topics of my two blogs, Education's Gone Rogue and The Court Jester. The BCTF case is the one that drew me into law in the first place as a self-represented litigant. At the foregoing link to my education blog, I have posted a statement about the Supreme Court's decision that explains my background with the case and my intentions to pursue my cause further.

Wednesday, 2 November 2016

A brief primer on the Access to Justice "problem."

I keep seeing dialogue about improving "access to justice" from within the legal system. It is almost always somewhat wide of the point, but I see no value in rebutting each and every speech or blog post I read. Partly, it is not my ambition to make an enemy of every single person in law who ventures an opinion on A2J even if I disagree with them all. But also, tearing down the efforts of others does not build up understanding. 

But what I am going to try to tear down here are the flawed assumptions that are the basis on which many well-meaning initiatives and perspectives on A2J are put forward. Working with flawed assumptions in systems analysis is a bit like using the wrong test in law: you are not going to get the outcome you seek.

Herewith, then, is a list of less-flawed assumptions about the legal system.

1. The legal system does not have an access to justice problem. The legal system does not have a problem at all. The legal system is doing JUST FINE. 

2. Because the legal system is doing JUST FINE, the legal system is not going to solve the access to justice problem. 

3. Solving the access to justice problem is not difficult. What IS difficult is solving the access to justice problem without disrupting internal fiefdoms, empires, and power dynamics. That is why the legal system is not going to solve the access to justice problem. No one ever unbuilds their empire. 

4. To the extent that there are well-meaning, smart people in the legal system who truly WANT to solve the access to justice problem and who MIGHT unbuild their empire, their efforts will be sabotaged, undermined, or otherwise neutralized by other people inside the system. Even if not immediately, over time the system will recalibrate to its normal power distribution - unless that power distribution is explicitly targeted in an effective way. Naming and criticizing it is not effective. 

5. The longer the access to justice issue is worried over within the legal system without meaningful action, the more bureaucracy will be built around it and thus, the more intractable the access to justice problem will become. Increased bureaucratization creates increased internal unity and loyalty to the infrastructure, rather than to the work (in this case the law). Spoiler: mandatory judicial education will be a disaster.

6. What law does have is a quality control problem. The fact that there is an access to justice problem being experienced by potential, frustrated, disillusioned customers says that many, many people and organizations within law have not been doing very well at what they are supposed to be doing. This is a complex, networked issue concerning organizations and their internal customers, between retail customers and first-line service providers such as lawyers, and with the end-product providers, namely judges.

7. There are formal and informal power dynamics. Problems can only be solved if the real power in a system resides where it is supposed to reside. So Job One in a system that is experiencing quality problems may be to root out the informal power saboteurs and re-establish proper lines of authority. Co-operative, multidisciplinary, "all together now" approaches, in other words, are counterproductive in systems where informal power dynamics have gained the upper hand. Hint: activist law. 

8. The law is not a service system; it is an authority. As such, the relevant profession is the judiciary, not lawyers. But the judiciary is not a profession because it cannot be held liable for its work. For that matter, lawyers can't either, because litigation is a competition. Competition means winners and losers. And hey, if you lose, you may be paying for both lawyers. The entire language of "access" calls up a service model that completely fails to acknowledge these and other realities of law.

9. There are a lot of incredibly competent, well-intentioned, brilliant people in law who can ramp up performance in their domain within the legal system. Each and every one of them has the capacity to act within their domain and to achieve stellar results. None of them has any right, power, or capacity to act outside of it. Much of the relevant conversation, therefore, has to be about boundaries.

I'm going to refrain from providing a recipe for each component organization of the legal system, though I may do so in future. In the meantime, I hope that the above points will provide some language and ideas that are useful, and post some red flags to prevent wrong turns by people who are trying - sincerely, I know - to solve the problems as they see them. 

Lightly edited March 12, 2017

Tuesday, 18 October 2016

Why legal academics are important

In my last post I was pretty hard on legal academe, especially on its tendency to usurp the public's voice. It is perhaps necessary to explain why this is not a personal attack on legal academics.

Legal scholars have an important role in the legal system, independent of teaching incoming lawyers. I don't know the history as well as one might like to, but it is my belief that legal scholarship has functioned, to date, as a sort of quality control function within law.

It has been written in places other than here that judicial accountability is the flip side of judicial independence. But most of what I have seen written on the subject of judicial accountability basically says that judges hold themselves to high standards, and where they do not, the appeal courts step in. In the event of a conduct problem, there too the remedy is entirely internal to the judiciary.

In a change mindset, we are often so busy looking forward that we fail to examine a system for what it is actually doing before we launch campaigns to change it. That is, I think, what happened when the CJC was formed a few decades ago. And that is why, perhaps, everyone missed the importance of legal academe in judicial accountability.

The idea that the judges would hold themselves to relentlessly high standards without any pressures to do so is absurd; as absurd as the idea that doctors would do so without the threat of malpractice suits hanging over them - and growing awareness of medical error is revealing just how ineffective even that threat is. In law, there is no parallel even to the threat of malpractice.

That said, I do think judges have historically taken their work very seriously and have functioned in an intellectual atmosphere that predisposed to excellence. The impetus to do so came, in part I think, from the fact that, like medicine, law was a life-or-death enterprise. Until the death penalty was abolished in Canada, the stakes in law were high. We know, of course, from the Truscott case that the high stakes did not preclude mistakes. Even then, perhaps, hubris and privilege were taking their toll. Perhaps they always have. Idealizing the past is as dangerous as utopian thinking about the future.

But in the many branches of law where the death penalty has never been an option, as well as in criminal law, there is supposed to be some force that can mitigate or even respond to judicial abuses of power. Scholars are the only legal faction that can offer that response.

In law, judges are supposed to have power, even to have almost unassailable power. One mechanism for the sustenance and exercise of that power is "officer of the court" status. The duties of officers of the court include upholding the court. Judges have supervisory powers over officers of the court. Both those stipulations mean that lawyers, even the most experienced ones, cannot be relied upon to mitigate any excesses of the judiciary; to call attention to laziness, corruption, ignorance, or malfeasance that might merit repercussions - repercussions that, in a democratic system, are supposed to emanate from the political realm.

It is for this reason that the margin between sufficient and excessive judicial independence is razor-thin.

Officer of the court status is an essential component of maintaining order in the legal system. To a degree, as far as I've divined so far, it puts the judge in the same position as umpires and referees: themselves subject to rules, but granted near-absolute power to ensure the game played out under their authority is fair (because law is a competitive sport due to the adversary system).

Officer of the court status dampens criticism, which any system needs to stay healthy. In law, the criticism function is addressed by means of the open court principle, which is generally exercised by actions of the media and the public. But media and the public are not experts.

Expert systems are often granted self-regulatory status on the understanding that the work is so specialized that only fellow experts can determine whether avoidable mistakes have been made. That is why aviation experts, and not judges, investigate plane crashes.

Legal scholars are uniquely able to fill the role of experts. The fact that they are not officers of the court relieves them of the muzzle and duty to uphold the courts that limits what lawyers, court clerks, transcriptionists, and even legal regulators can do. The fact that they are experts in the law allows them to analyze even the most specialized level of work.

When legal academics stick to their knitting (as I advised in a previous post that all legal factions should do), they analyze and debate patterns among cases and the finer points of law within individual cases. Their analysis feeds back into the system as meat for practitioners to chew on: for lawyers to take into new cases and even to allow them to select what cases they take, and for judges to factor into their analysis.  Secondarily, legal scholarship informs the political system - both the people and the leaders we elect - so that (a) laws can be made and changed as needed, and (b) the judiciary can be held answerable where necessary and action taken if the third branch of government escapes the boundaries of its legitimate jurisdiction. The political system, however, is meant to function absent the actual voices of legal scholars: the scholars play their role via the analysis and research that they feed into it. They have academic freedom, not public power.

Third and finally, legal academe has an intake function in which the practitioner realm feeds back into academe the problems and weaknesses encountered in the field. These might include, for example, the recent pressures experienced in the field due to the advent of self-represented litigation, changing rape laws, and the application of private sector labour law to the public sector.

But the give-and-take between scholars and practitioners and the political realm takes place across the boundary that delineates their separate realms. It is always tempting to jump those boundaries; everyone likes to expand their empire and their sphere of influence. But when those boundaries are muddied, each realm suffers and the rule of law becomes unstable. The rule of law, in fact, rests on that tripod of realms, each holding the other somewhat in check. When one realm lengthens its leg beyond what the others can respond to, equilibrium is lost.

The boundary is simple and clear: the role of academe is to listen, digest and critique, and then inform. Any academic voice that is opining or pressuring rather than informing is outside its jurisdiction.

One of the things I find amazing about the law is its breathtaking capacity for nuanced analysis, and the capacity to express the finest distinctions between ideas. One of the most neatly articulated distinctions I have come across is that between exceeding jurisdiction, and declining jurisdiction. That really captures the loss we all experience when legal scholars decide to enter the public realm directly with opinions and beliefs rather than staying in their lane with information and knowledge.

Not only do they exceed their jurisdiction by letting their personal belief system override what they know and have tested from a basis in expertise. In addition, they decline the jurisdiction they have to provide expert analysis of the practical functioning of the field and rob us of the best mechanism we have for evaluating judicial performance in the application of the law.

Without that, not only do they crowd others out of lanes they properly inhabit, but also, the scholars' own lane stays empty. And then we are all bereft.

Sunday, 16 October 2016

No one ever unbuilds their empire

One of the reasons I started this blog is because there is too much to say about law decline/reform from a management perspective for me to say it all on other people's blogs.

But other people's blogs help to identify the gaps in legal system self-analysis, and so posts from the legal world are useful as a starting point for posts here.

A recent post on the law blog Slaw had the Dean of a BC law school sharing thoughts on the burden of student loan debt:
http://www.slaw.ca/2016/10/14/student-loan-debt-a-crisis-for-law-students-young-lawyers-and-far-too-many-underserviced-communities/.

The first commenter, to her eternal credit, nails the main problem with the post in her first line: it is not inward looking. It spends hundreds of words on the issue of student debt without putting one apparent iota of thought into how the actual cost of a legal education might be reduced.

To be fair, even if all the Deans of Law put their heads together in contemplation of how to reduce the cost of law training, they would not find the obvious answer and would do little other than design bandaids; I do not believe it is within the realm of human capability to solve the problem when you more or less ARE the problem. No one ever unbuilds their empire, even when it is oppressive, corrupt, and decrepit.

Oh dear, that is not a nice thing to say. And one of the things that prevents people from saying more things like it is that, like the Dean who wrote this post, institutions that need renewal and replacement are still led by and represented by nice, well-meaning, and very intelligent people. But unfortunately, that saves no one from being a brick in the road to hell.

This is what I posted on that thread on Slaw:

If law is bad, consider the plight of graduating dentists, faced with such high debt and set-up costs that they are almost driven to fraudulent practice to make ends meet. 

All the professions are - or should be - facing the question of whether moving their training into the ambit of universities has helped or hindered the quality of practice. While I believe that the Deans of Law are well-intentioned, I would suggest that the point at which the cost of training siphons the entire benefit of having trained is the point at which the whole design of practitioner training needs to be reassessed. But this initiative cannot be expected to come from the university; it will have to come from the profession - which itself may not act unless there is public pressure. 

And that is just one reason why legal academics engaging in the public sphere, some even styling themselves "reasonable persons," is so problematic. Public pressure should reflect public, not academic, concerns.

In one of the most tightly written management books there is, author Jamshid Gharajedaghi puts it this way: "a social pathology is produced when an obstruction to development benefits those who are responsible for removing it. Unfortunately, bureaucracy represents a pathological mode of organization where an organized interest group benefits from the obstructions it has created."

I have put some further thoughts on my own blog at ctjester.blogspot.ca to avoid bogging down the conversation here.

The quote, incidentally, is from Systems Thinking, page 81 of the 3rd edition (2011).

It is my understanding that, not so long ago, lawyers learned their craft under apprenticeship to practitioners, which would mean that judicial decisions functioned as lectures in, and the repository of, legal theory. With the transfer of training to universities, the repository of theory has moved to academe, and I am not sure it is well-housed there.

In control of all lawyer training, legal academe now controls practitioner mindset. In addition, it has created a powerful new faction within law - one that, for the most part, has never practiced, and as such is prone to utopian thinking. One that, furthermore, views itself, and is viewed by judges, as authoritative within law but is outside both market forces and the regulatory paradigm. 

The transition of law instructors from active practitioners to pure theorists and activists has gone unnoticed and unanswered by legal practitioners and regulators, and unchallenged within scholarly circles themselves. Yet with the extent to which academic publishing (far too much of it being "publish or perish" quality) is influencing the common law, I would argue that legal academe poses a greater threat to judicial independence today than government does. Government, at least, is vulnerable to public review. Academe is not.

But given that legal academics are now, in force, entering the public dialogue about law, they are also shaping public perception and dampening public objection as the judiciary increasingly shapes itself in academe's image. Even if the decline in lawyer and judicial performance is noted - as it presently is, where people increasingly prefer to represent themselves rather than pay lawyers, and express clear dissatisfaction with their court experiences - no one ever makes the connection back to academe. 

And that is how easily ideology supplants the centuries of inherited pragmatic wisdom that the common law represents. It need only come from people we trust.

They are all nice, smart people. They all belong in law, without a doubt. They may be really good teachers. But their unassailable position in the ivory tower, secured by tenure and academic freedom, suggests that actions extending their reach beyond the ivory tower, into the realm of practice, are highly inappropriate. They are the only actor in law who is not liable for what they say, do, or espouse. 

Not even for the price of their service; for what they ARE supposed to be doing. Even less for their activism, which they are NOT supposed to be doing. 

Judicial restraint is a thing in law. It is time for academic restraint to become a thing too, and not only in law.

Universities have become one of the most able competitors in the public arena for both public and private resources. They have grown at a pace that any private entity would envy, and have no one to account to for the outcome of our investment in them. They retain just enough of the intellectual cachet that led us to entrust our professional training to them, mainly because they tend to attract smart people, and we are both oblivious and powerless to object as they turn from instilling standards of practice to cultivating future contributing alumni that they can milk for further institutional growth and status. As public, as professions, as students, as alumni, as politicians, or even as faculty, we have no way of curbing their hunger as institutions. 

The Deans of law are not to blame for the overall trend in universities, and it would be unnatural in the canon of human behaviour to suggest that they should identify their own jurisdictions as part of the problem. And in fairness, it is not the Deans but the profession that makes universities its only intake portal. 

And it is having just one intake portal that is the root of the problem that law students, young lawyers, and remote communities face. 

It may not be practical to go back to the days when individual practitioners took on apprentices, but one notes, peripherally, how dramatically law firms are growing. It is not beyond the scope of probability that these firms, now numbering sometimes in the thousands of lawyers, could muster a law teaching program in-house. 

There may as well be some point to all that law firm growth and amalgamation, because in the practice of law itself I don't think there is any.