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