The People’s Court
Doctors are paid for through our taxes. Why not lawyers? Alex Hutchinson examines a case for universal legal care
It’s been an unusually invigorating year for legal reform activists. After more than a decade of neglect, what they like to call the “silent crisis”—the increasing inaccessibility of the justice system to average Canadians—has finally begun to tug at the edges of the public conscience. Newspapers are writing urgent stories about people like the Vancouver single mother who was forced to represent herself in an ultimately unsuccessful six-year custody battle with an abusive ex, because the $750 a month she earned as a part-time teacher, supplemented by subletting rooms in her house, disqualified her from legal aid. Canada’s chief justice, Beverley McLachlin, has sounded the alarm about the “epidemic” of self-represented litigants clogging the courts. And a pair of cases arguing that civil legal aid is a constitutional right have recently made it all the way to the Supreme Court, albeit with uniformly disappointing results so far. Most surprising of all, however, was conservative US radio personality Rush Limbaugh’s modest proposal, delivered during a rant about universal health care: “[If] it’s going to be mandatory, the government is going to make us go the doctor, then I have an idea,” he spluttered. “I think the government should make every American have access to a lawyer.”
In drawing this parallel, Limbaugh (who should know a thing or two about doctors and lawyers) might have inadvertently made the best case for putting “universal legal care”—an idea long resisted in Canada—on the political agenda. After all, if we think universal health care is such a bright idea, why wouldn’t the same arguments apply to the legal system? In both cases, the issue of basic access to a fundamental human right collides with the crippling cost of unforeseeable, low-probability calamities. You may not die from the negligence suit brought against you by the mailman who slips on your icy steps, but it can certainly ruin your life. Surely the least you deserve is a fair crack at defending yourself, even if you can’t afford the $60,000 tab for a typical three-day trial.
But lofty moral arguments don’t cut much ice in these efficiency-loving, tangible-results-demanding times. Those fighting to maintain medicare know that their strongest arguments come from the fact that Canada (like every other country in the world, save the Marshall Islands) actually spends less of its gdp on health care than the US does, and by many measures produces better outcomes, thanks in part to a broadly applied focus on prevention and early intervention. As strange as it sounds, legal reformers can make a similar case for universal legal care (let’s call it ulc)—one that rests as much on pragmatic considerations as it does on any national sense of altruism. That’s because a growing body of evidence suggests that letting someone’s minor legal problem go unresolved for the lack of a brief consultation with a lawyer is just as foolish—and, ultimately, expensive—as neglecting to treat a mole until it has metastasized into a gigantic, life-sucking, budget-busting ER job.
You may be under the impression that Canada already has a reasonable approximation of ulc. After all, we spent $659 million on legal aid programs in 2006–07. It is true that if you’re accused of a criminal offence that could put you behind bars and you earn less than, say, $13,000 a year (depending on where you live), you will be provided with a lawyer. Otherwise, you’re on the hook for lawyer’s fees that can average over $300 an hour, until your money runs out—which, if you inhabit the vast middle ground between dirt poor and Conrad Black, won’t take long. And if your case falls under the umbrella of civil law (you’re being sued or evicted), family law (you’re fighting for custody of the kids), or administrative law (you’ve been unjustly fired), your chances of qualifying for assistance are even slimmer. As a result, somewhere between 40 and 70 percent of trials now feature overmatched laymen bumbling through labyrinthine court procedures without the help of a lawyer.
These problems are now considerably more widespread than they were in the 1960s, when Canada’s legal aid system was created from the informal patchwork of pro bono services offered by lawyers at the time. The system gradually expanded until the 1990s, with the federal and provincial governments splitting the costs roughly fifty-fifty. In 1995, the federal government stopped matching provincial spending on civil legal aid, causing it to dwindle across the provinces. More generally, program cuts in the past decade and a half have pushed even criminal legal aid toward the bare minimum set out by court decisions.
One consequence has been an increasing reliance, once again, on pro bono initiatives, a noblesse oblige approach that critics say subjects justice to the whims of market forces; studies have found, not surprisingly, that pro bono activity increases when the legal profession is flush with cash. The number of private lawyers willing to accept legal aid cases, which pay about $80 per hour, is also dropping precipitously—a serious concern given that they outnumber staff lawyers by almost ten to one in our system. Even if the money was there, though, it’s not clear that simply jacking up fees is the right solution. A study conducted in the US last year found that private lawyers on hourly fees took longer to resolve cases, were more likely to go to trial, and once at trial were more likely to lose, earning sentences for their clients that were eight months longer, on average. And each case handled by private lawyers cost taxpayers an additional $5,800.
Of course, the current crisis is not just about cuts. “Over the last three decades, the role of law has steadily increased,” says Melina Buckley, a Vancouver lawyer and legal researcher specializing in access to justice. To a greater extent than ever before in history, our relationships with one another and with the state are regulated by law, and that carries with it an inevitable complexity that prevents us from turning back the clock to simpler, pre-legal aid days. “Just look at family law, which was virtually non-existent in the ’60s,” Buckley says. “It’s very positive that we have family law that sets out obligations upon marital breakdown. But if you can’t understand it on your own and you can’t get the assistance you need, then it’s meaningless.”
Buckley’s soft-spoken demeanour belies a fierce crusading streak that has most recently found expression on a four-person legal team assembled by the Canadian Bar Association to file a test case arguing that the failure to provide minimum levels of civil legal aid in British Columbia is a violation of constitutional rights. In late April, she and other members of the team gathered at the law offices of Camp Fiorante Matthews, a calm, carpeted oasis on the fourth floor of a modest brick building in downtown Vancouver, for an eleventh-hour strategy session. J.J. Camp, a prominent litigator (think hepatitis C and its $1.6-billion settlement) and the senior member of the team, summed up the situation: “We’ve gone down to ignominious defeat at every level,” he began, smiling wryly, “except one.” After dismissals by the BC Supreme Court and the BC Court of Appeal, the team had three days left to fine-tune its written arguments to persuade the Supreme Court of Canada to hear the case.
First filed in June 2005, the case alleges that the exclusions and restrictions in BC’s civil legal aid constitute “a systemic denial of access to justice to and systemic discrimination against Poor People.” Approaching the issue from this moral high ground—as a public-interest test case rather than a suit based on wrongs done to a specific individual—is one of the reasons the lower courts have thus far refused to hear the case. But attempts to bring individual cases to court to argue for the right to legal representation have also failed to get a hearing.
In 2003 and 2004, the BC Public Interest Advocacy Centre litigated on behalf of four clients, none of whom could afford a lawyer, who were being sued by the government for alleged overpayment of disability and income assistance benefits. One was a single father of three who was suffering from leukemia and who had developed a permanently disabling condition after undergoing a bone marrow transplant; the others were in similarly difficult situations. The government’s response: it simply dropped three of the suits and settled the fourth out of court, rendering any arguments about the constitutional right to counsel moot. “And then they wrote a letter saying, ‘Well, if you have any more clients like this, just give us a call,’” Buckley says, shaking her head. “We couldn’t believe it.”
It was a perfect Catch-22: to demonstrate the injustice suffered by people who can’t afford a lawyer, you’d need to give them a lawyer—at which point the injustice would disappear. With this in mind, Buckley, Camp, and their colleagues filed their arguments with the Supreme Court of Canada on May 1; they expect a decision this fall. But even they admit the odds aren’t good. If universal legal care is ever going to get on the agenda, it seems increasingly clear that it won’t be thanks to abstract appeals to our sense of justice.
Afew blocks away from the Camp Fiorante Matthews offices, it’s business as usual at the BC Supreme Court Self-Help Information Centre. This bright, glass-walled room in one of the Law Courts buildings is where you come if you have a legal issue but no lawyer—or if you had a lawyer but ran out of money, or if you’re trying to figure whether you really need a lawyer, or whether you might qualify for help from legal aid or a pro bono service. In the three years since it opened, the centre has served close to 15,000 people. While a couple of clients browse through the pamphlets on the wall and use the computer terminals to search for information, the woman behind the reception desk helps an elderly man with a thick accent figure out which form he needs to file to reschedule an upcoming court date. On the other side of the room, another employee looks over an affidavit with a Filipino woman who is trying to get a divorce. “You need to send it back to the Philippines,” the staffer says apologetically, “and get him to redo everything.”
The centre is one of a number of programs launched in BC since 2002, when harsh cuts all but wiped out what had been one of the most comprehensive civil legal aid programs in the country. That scorched-earth policy, for all the havoc it wreaked, seems also to have cleared the ground for some of the most innovative approaches to broadening access to justice. Unlike the mostly minor tinkering proposed last year in the eighty-one recommendations of a Coulter Osborne report on civil justice in Ontario, a major review in BC in 2006 came up with three recommendations that could fundamentally reshape how a case moves through the system. One was the creation of “justice hubs,” access points that build on the triage model demonstrated at the self-help centre. “You don’t want your surgeons to be doing blisters,” explains Rick Craig, executive director of the Law Courts Education Society of BC, one of the groups behind the centre.
The other two recommendations are more radical. The first focuses on proportionality: the resources devoted by the courts and the parties in a case should be proportional to the value of the case (measured in dollars, complexity, and human rights). From the beginning of every case, a judge will exert control over how long a trial will last, how many expert witnesses will be permitted, and so on. Second, these and other changes will be enshrined in new “rules of court” that will be completely rewritten to simplify and accelerate the progress of cases through the court. The new rules would even eliminate the statement of claim and statement of defence that have signalled the start of legal proceedings for centuries. The amendments have been under discussion for a year now and are scheduled to take effect in January 2010. Other provinces are watching very closely to see the results—though, as Diana Lowe of the Canadian Forum on Civil Justice notes, “it’s impossible to say what impact these changes will have, because they haven’t been tried anywhere, really, in the world.”
These initiatives may seem like a bit of a diversion, but they are in fact a crucial step on the road to ulc. Part of the reason lawyers are too expensive is that court proceedings are too complex and take too long, so any attempt to expand legal aid coverage will have to be accompanied by measures to make the entire legal machinery more efficient. The system simply can’t afford to waste time dealing with cases like that of the divorced St. Catharines couple who were barred from returning to court earlier this year after a gratuitous seven-year custody battle that reportedly chewed through a dozen judges, a dozen lawyers, twenty-five court orders, and 2,000 pages of court filings, and cost the father alone more than $200,000 in legal fees.
Perhaps even more significant, hubs that provide self-help resources and easy entry into the system are one way of casting a wider net over legal issues that might otherwise go unaddressed. And as recent research conducted by the federal Department of Justice suggests, some of the greatest failings of our existing system—and the most compelling arguments for ulc—can be found outside the courtroom. In a pair of studies whose results are being released this year, principal researcher Ab Currie found that nearly half of all Canadians had experienced at least one “serious and difficult to resolve problem with legal aspects” in the previous three years, in fifteen categories ranging from employment, debt, and housing to personal injury and police action. Of those people, just under 12 percent sought legal assistance, which wouldn’t be a concern if other ways of solving these issues (through community organizations or unions, for example) were working. But only about half of the problems were resolved during the study period, and that has serious implications.
Currie traced a series of trigger effects that create clusters of problems: for instance, a relationship breakdown with legal complications tends to be followed by further legal problems relating to debt and employment. The consequences can also extend beyond legal issues: Currie found that after experiencing a legal problem, 37 percent of people reported associated emotional or mental health complaints, and 24 percent reported associated physical health complaints, leading to increased doctor visits. The implication, of course, is that failing to resolve people’s legal problems efficiently results in higher health care costs.
“We can’t say, okay, if you spend this much on legal aid, you’ll save this much later,” Melina Buckley admits. But an early effort to remedy that can be found in a paper by British researcher Pascoe Pleasence, in the June issue of the Journal of Empirical Legal Studies. He and co-authors Nigel J. Balmer and Alexy Buck calculated that each legal problem reported to cause physical illness costs Britain’s National Health Service about £650, while stress-related effects cost about £30 each. That money doesn’t show up in the ledgers of the legal aid service, but it certainly has a place in discussions about how to fix a broken system.
When we talk about ulc, what we’re really talking about is coverage for a wider array of problems, made available to more people. This could look something like the popular reforms enacted in Finland in 2002, which raised the proportion of households eligible for assistance with their legal costs to 75 percent, with cost sharing on a sliding scale. (The figure is below 30 percent in most English-speaking common-law countries.) This coverage encompasses criminal and civil matters ranging from simple estate inventories to complex litigation. The main criteria are the seriousness of the matter and how well the applicant can handle it on his or her own, rather than the branch of law the problem falls under. All of this has been made possible by what could be, proportionally, the largest salaried legal aid staff in the world.
Most proponents of universality, however, are quick to point out that access to legal representation is only part of the equation. “What happens when people get lawyers,” Rick Craig observes, “is that they tend to fight.” In some types of disputes—family law is an obvious example—clients are often poorly served by an adversarial approach, and may benefit from such options as mediation. Integrating legal services more closely with other social services, including health clinics, is another way of trying to address the issues underlying a legal problem. These sorts of innovations, along with court reforms like those in BC, are already being considered across the country.
This is good news, not only for the “Poor People” whose case the Supreme Court may or may not decide to hear this fall, but for everyone: those who come into direct contact with the justice system; those who experience a justiciable problem but don’t bother spending the time and money needed to access the unwieldy current system; and, more broadly, those whose tax dollars fund both the system and the societal costs incurred by those whom it fails. But the reforms are meaningless unless they’re accompanied by steps to ensure that everyone has access to the new system.
In a 2003 special issue of the Journal of Law and Society, Pleasence and colleague Richard Moorhead wrote about the gradual retreat of legal aid services around the world from the agenda of equal access for all. “The focus is on efficiency and effectiveness rather than equality and ideals,” they wrote. In fact, this is a false dichotomy. Even if the old moral arguments about equality fail to sway us, “efficiency and effectiveness” point us to the same conclusion: a system that aspires, with the broadest reach possible, to catch problems while they’re small makes sense both for the wallet and the heart. So if we keep ulc’s admittedly aspirational goals in mind, we may end up with a legal system that is frequently criticized, both at home and by our neighbours to the south (all of whom will claim to have an aunt in Winnipeg who once wanted a divorce and had to wait eight months before one of those government-appointed lawyers was able to see her), but that actually works a hell of a lot better than the alternatives. Kind of like our medical system.