It is a summer of discontent for BC legal aid lawyers, a number
of whom have threatened service withdrawal to protest
But funding is only part of the problem for our justice system.
As recent provincial and national reports have made clear, our
justice system is too complex, too slow and too expensive. Not just
for the poor, but for everyone. Fundamental change is needed.
The BC government is responding to the call for reform by
implementing its 2013 Justice Reform and Transparency Act,
convening Justice Summits, creating and supporting a Justice and
Public Safety Council, establishing performance gaps and developing
strategies. And its new Civil Resolution Tribunal, when it finally
launches next year, will provide online dispute resolution for
small claims and strata property cases.
Although these are valuable initiatives, they are also modest.
They are certainly not transformational. And yet it is a measure of
the difficulty of justice reform that even projects as careful and
cautious as these are controversial.
What would real change look like? Well, last month a high
profile multiple murder trial commenced in Prince George. It's
an important, difficult case. It is scheduled for eight months.
Real change would start by asking why any murder trial should take
more than a few weeks. Almost every case, no matter how complex,
ultimately turns a handful of evidence, or the testimony of one or
two witnesses. That's all that's really needed to get to
the heart of the issues that matter.
Take also the Stanley Cup riot prosecutions. The riot was in
June 2011. Nearly every minute of it was captured on video, with as
much instantly available evidence as any law enforcement agency
could ever hope for. And yet three years later, the prosecutions
still grind on. Why is this taking so long?
The usual answer is that the justice system has to work this way
if it is to be fair. But justice interminably delayed defeats
accountability, process endlessly pursued simply drives up cost,
and people will avoid any system that is too complex to understand.
The problem is that we don't really have a justice system but
rather a lawyer's system.
Change is hard partly because some of the most enduring values
of our justice system also cause its problems.
Take, for example, the principle that every lawyer's first
duty is to their client. To state the obvious, clients don't
always want to have their legal problem decided quickly. This is
most obviously so in criminal law, where the defendant's best
hope may be a trial delayed so long that the case collapses. In
civil cases, too, parties may have strong reasons to delay the day
of judgement, putting off accountability as long as they can.
Judicial independence – and the independence of the bar,
police and Crown counsel – protect the justice system from
political interference. And yet independence also fragments the
system, by creating silos and values that foster isolation rather
than the collaboration needed to solve problems.
In a hospital operating room everyone works together to provide
the best treatment for the patient. In the justice system the main
players are usually adversaries. They keep their distance, and look
for the best deal for their client, no one else, and most certainly
not for the system as a whole.
These elements of the justice system help protect us from
arbitrary state power and other legal wrongs. But when a system
founded on these principles becomes too expensive, too slow, and
too complicated, then something needs to change.
Real reform means effective case management, with courts
empowered to require litigants to present their case in days, not
months. Enforcing the rules of relevance, so judges can refuse to
hear evidence that does not directly bear on the issues.
Specialized courts, so judges only hear cases in areas of law they
Create a structure for governance across the justice system that
takes system management and accountability seriously, without
compromising independence. BC's new Justice and Public Safety
Council is a start, but much more needs to be done.
Simplify the law. Cut the Criminal Code and Income Tax Act in
half. Require cost benefit analyses for new legislation, so that
modernizing the law does not add unjustifiable new costs.
Of course, legal aid lawyers deserve to be fairly paid, too. And
the justice system needs adequate funding. But there's no point
in spending more money to feed a broken status quo. Fundamentally,
what citizens want is not legal process for its own sake, but
workable, affordable, comprehensible processes that actually solve
their problems. Putting citizens' needs first, rather than
legal traditions, is the way to justice reform that will actually
make a difference.
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guide to the subject matter. Specialist advice should be sought
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