In my last blog posting I highlighted some of the
important high level principles for justice system reform contained in two
recent reports – The CBA’s Equal Justice
report, and the Cromwell Action Committee’s Roadmap
for Change. My brief overview did
not begin to do justice to the breadth and depth of the thinking in these two
reports, but in the interest of continuing to prod this important discussion, I
want here to make two further points.
I
First is the question of the role of courts within the
overall civil justice system. Here is what the
Cromwell report has to say about that:
Access to justice has often been
thought of as access to courts and lawyers.
However, we know that everyday legal problems mostly occur outside of
formal justice structures. This insight
should lead us to fundamentally re-think how we approach legal problems in
terms of preventing them from happening where possible, and when they do occur,
providing those who experience them with adequate information and resources to
deal with them in an efficient and effective way.…To borrow Richard Susskind’s
observation, “it is much less expensive to build a fence at the top of a cliff
than to have need of an expensive ambulance at the bottom.”
The phrase “fundamentally re-think” pretty well nails it, in
my view. If we took this statement
seriously as a guide for action, the civil justice system would be radically
transformed. Courts and adjudication would
have a role, but only one role, and by no means the central role, in a
comprehensive continuum of services that actually addressed public needs for
legal information, advice and problem solving.
The phrase used in the Cromwell report is “court if
necessary, but not necessarily court.” There’s
a nuance here that needs emphasis. That phrase, in my view, is not the
equivalent of saying (as some do) that the courtroom should be the forum of
last resort. I don’t think it is the
role of the courts to stand as the last bastion of access to justice only when
all other avenues have been pursued and exhausted. Rather, I would suggest that
there are some kinds of legal disputes and issues that properly belong, from
the outset, in the court process. And
there are others – a great many others – that do not, and should never be there.
If you want to speak in terms of metaphors, I would reject
the image of the funnel, which places courts at the bottom end of a bounded
system into which all cases are poured, and choose instead the image of a toolbox,
where the right tool is chosen to meet the different needs of different kinds
of situations.
To be plain, I choose this metaphor not just because it
reflects the reality that different kinds of issues and disputes are better
resolved through different processes, it also “de-privileges” the courtroom as
the cultural focus point of the justice system. Instead of being the centre around which all
else is designed, and to which all disputes, sooner or later, are headed, courts
are “just” another tool (albeit a profoundly
important and necessary one) in the toolbox of the justice system.
For a generation, lawyers have been trained to consider
alternatives to court adjudication as a way of addressing their clients’ legal
needs. The catchphrase is Alternate
Dispute Resolution, or ADR. It
encompasses processes like mediation, conciliation, arbitration and so on. As a catchphrase it has served its purposes
for a long time, because it has helped legitimize these other processes. But I think it’s outlived its usefulness. A truly fundamental re-think of the civil justice
system would not see these other techniques for dispute resolution as “alternatives”
to the courts. Rather, we would re-orient
the page from a vertical, hierarchical model of the justice system, with courts
at the top, to a horizontal, linear model, where all options have equal
stature. Sounds a bit radical? Well it is.
That’s what a “fundamental re-think” is all about.
II
My second point is this.
Most of the focus in justice system reform reports is on process and
institutions. This is enormously
important. But I would say that if we
truly do want to make the justice system less “slow, complex and expensive” we
also need to re-think our approach to substantive law-making. At the risk of a gross over-generalization,
let me suggest that laws are not often made with an eye to the practicalities
of how they will actually operate in the real world. This is particularly true of judge-made
law. When, for example, the Supreme
Court of Canada decided in the Quebec Secession Reference (in 1998) that our
constitution contained certain enforceable “unwritten principles”, it
contributed inexorably to the increasing complexity, inefficiency and cost of
the legal system. There was no readily identifiable,
closed list of these principles - how could there be? after all, they are “unwritten”
- and no meaningful guidance on their application or effect, thereby making it
impossible for lawyers to advise their clients and for citizens to govern their
affairs. There is no better way to drive up the cost of the justice system than
to make substantive law which is uncertain.
Of course, judge made law – and legislature-made law – is usually
created to do justice. But justice that cannot
be obtained because the law cannot be applied is a poor sort of justice. So as justice system reformers, let’s have an
eye not just to our processes and institutions, but also to the laws themselves
and see if it is somehow possible to make them simpler, clearer, and more
easily applied.
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