“I think the main obligation, constitutionally, for tackling this major problem rests with the federal government and the provinces — but courts are part of the picture because the [Charter s. 7] right to life, liberty and security of the person is something that all of us are entitled to, and climate change may tie into that,” Canada’s former top judge suggested in a wide-ranging LexisNexis Canada webinar on access to justice Oct. 10 (“A Conversation with Beverley McLachlin on Access to Justice” is available on demand here.)
Against the backdrop of climate change lawsuits launched by youths against governments in Canada and internationally, McLachlin commented that “courts have long been used to monitor environmental processes and vet developments that may have a negative impact on the environment. Now we’re seeing people starting to bring lawsuits on a broader basis to protect the environment — it will be very interesting to see how the courts deal with them.”
Speaking generally, the chair of the national Action Committee on Access to Justice in Civil and Family Matters said that the Charter is a vehicle for change and enhancing access to justice.
She pointed, for example, to the Supreme Court of Canada striking down court hearing fees that obstructed people from getting their day in court: Trial Lawyers Association of British Columbia v. British Columbia (A.G.) 2014 SCC 59.
“Justice is a basic right and the courts have said so under the Charter,” said McLachlin, who wrote that majority ruling. “So I think the Charter can be used to provide access to justice, and beyond that it can be used — and we’ve seen this — to help people gain more control over their lives, to get rid of injustices in the law that are holding them back or keeping them down.”
McLachlin addressed a host of diverse questions, with access to justice dimensions, that were posed to her by The Lawyer’s Daily and by the lawyers who registered for the one-hour LexisNexis webinar conversation.
Among other things, she expressed her views that: an Indigenous jurist will be appointed to the Supreme Court of Canada “soon and I look forward to that day”; it’s “usually a mistake to eliminate judicial discretion in sentencing”; the Criminal Code “shouldn’t be jigged” every time the federal government changes; mandatory arbitration clauses are sometimes being “misused”; and using artificial intelligence (AI) to decide cases risks incorporating racial or other biases.
Asked what she thinks of predictions by legal futurists that AI, competition and the lack of affordability of legal services will eventually decimate the legal profession, particularly lawyers in small non-specialized firms, McLachlin was skeptical.
“I have a personal point of view, which not everybody may share, but I think the best chance for justice is when lawyers are involved, at least at critical points,” she explained.
“Futurists may have evidence I’m not aware of, but I have a hard time accepting that … an increasingly complex society is going to need fewer lawyers. Because whenever you have a complex situation, you have complex disputes; you have complex interweaving of interests. And you know who’s best at sorting those out? Lawyers,” she responded. “Because lawyers are trained to take messy situations, be they small ones, large ones, in-between ones, and sort out rights and wrongs, and sort out arguments, and put some sort of form on these difficult situations. That is what lawyers do better than anyone else.”
“Will they do it in the same little corner office?” she queried. “I don’t know. But I think those skills that lawyers bring , including upholding the justice system, are going to remain vital to our society.”
Asked whether lawyers, as beneficiaries of a monopoly, are doing enough — and should be obliged to do more — pro bono work to help those who can’t afford their services, McLachlin replied, “quite frankly, I’ve been very impressed at the amount of pro bono that individual lawyers and law firms are providing; at how they have built pro bono into their practices; and how this has increased over the last decade or so. I find that very, very impressive.”
As for mandatory pro bono, she suggested rather that “what we need to do is change the culture — and we are changing the culture, I believe — so that every lawyer says: ‘I have this great privilege of practising law. I can make a living with it. … I and my fellow lawyers are the only people who can do this. With that comes a responsibility to make sure that people get legal representation when they need it.’ ”
“And I think that is more and more accepted by the legal profession and that’s what we can do, is make that acceptance a general rule,” she advised. “And then we won’t have to worry about the word ‘mandatory’ — or how we’re going to police it — and all of those other difficult issues.”
McLachlin suggested lawyers can contribute to improving access to justice in various ways, whether or not they have the resources or ability to perform pro bono work in their particular circumstances.
For example, a busy parent raising children can go to her children’s school and talk about the importance of the justice system. She can work within her profession to increase access to justice. “And if she has a little time she can go to a pro bono clinic, or she can go to a meeting where fellow lawyers talk about it,” McLachlin said. “She can contribute to a [non-governmental organization]. She can give some money, if she has sufficient, to some group that is working with Indigenous people, or the needy people, in our jails — to keep kids out of jail and keep them on the right track,” she said. “And best of all, she can just say ‘I’m there for access to justice, and I’m going to practise it as much as I can in my day-to-day work, and do whatever I can to promote it outside my day-to-day work.’ ”
McLachlin expressed solidarity with new lawyers who are working all hours to pay off their law school debts and who may find pro bono work out of reach. “You do what you can, and I completely understand that not everybody is in a position to give money to support an NGO, or to work, or to give their evenings and actually do on-the-ground work,” she said. “There may be times in your life when it’s very difficult. There may times when it’s easier. But I think you should always do what you can to support better justice for everybody.”
McLachlin invited lawyers to send in their proposals and ideas, and law firms to contribute financially, to the Beverley McLachlin Access to Justice Fund that was launched in September. The capital fund dedicated to improving access to justice is aiming to raise $10 million.
“I have long felt that we have a need for more sustained funding for access to justice projects,” she said. “Most of these projects are underfunded. Many of them lurch from crisis to crisis, and this makes it very difficult to develop sustained models of helping people and to do research into how we can improve access to justice. So we’re hoping that different groups who care about access to justice will put their proposals forward and that the independent panel that will vet the applications will be able to provide funding that will really help to advance access to justice in Canada.”
In the light of persistent underfunding of legal aid, including a 30-per cent cut this year by the Ontario government, McLachlin reiterated her strong view that “it is really part of their constitutional responsibility for the administration of justice that provinces provide adequate legal aid, particularly in cases where a person’s liberty is at stake, but also in family cases. ... I’d like to see provinces take these responsibilities really, really seriously.”
She acknowledged that the Canadian Bar Association and others in the legal profession have been pressing governments for decades to provide stable and adequate funding for legal aid — without great success so far.
Still, the profession should continue to speak out to the public and to governments, she urged. That includes continuing to make the strong business case (legal aid spending saves money) and that it is “essential to having our courts run well,” in addition to legal assistance being constitutionally required in cases where the liberty of the accused is at stake. “It actually makes good economic sense,” she said. It’s a matter of convincing citizens because citizens will then tell the politicians ‘This is important for our country. You’re wasting our money … if you don’t provide legal aid.’ ”
McLachlin agreed governments should also undertake substantive law reforms that promote access to justice — even when such reforms may not be popular or vote-getters. Reforms to enhance the quality and efficiency of the law and justice system used to be recommended federally by the law reform commission, which was abolished in the mid-1990s as part of deficit-slashing.
“The same arguments I make for legal aid on economic savings probably work for law reform,” McLachlin suggested. “Our law needs to be as clear and effective as it can, and I think that requires looking at the law on an ongoing basis and saying, ‘Oh there’s a problem, it’s surfacing there. We need to fix that up.’ … They’re often very minor fixes and it … makes it easier for everybody to do business, everybody to get justice and simplifies the administration of justice — reducing costs ultimately.”
If the law is opaque to citizens, and sometimes even to judges, “there’s a failure of access to justice,” she added. “So we need to have, I think, some dedicated way of looking at where revisions to the law are necessary.”
Asked whether the justice system strikes the right balance in providing justice and fairness to both complainants and accused in sexual assault prosecutions, McLachlin said “it’s much better now” than the “pretty grim” situation that existed before reforms in the 1980s which aimed to bar the rape myths and “massive invasions of privacy” that (largely) women have had to contend with.
“In the ’80s Parliament did a whole revamp and it’s a great revamp and it works pretty well,” McLachlin said. “Could we do more? I’m sure we could.”
She continued, “we should do everything we can to ensure that complainants can come forward in the knowledge that the system is understanding them [and] that the system is there to support them. And that starts with the first … encounter with the law and the police. … And all the way along, the whole system should be geared to provide encouragement and support because no matter how many rules we have to try to make it easy and fair, the fact is it’s going to be really tough, and people will want to opt out, or give up, at a certain point. So I believe that if we provided that kind of supportive mechanism, it would really help.”
McLachlin also praised the #MeToo movement. She urged women to speak out about what has happened to them and how it hurts them.
“This whole area was cloaked in silence and there was this unwritten social rule that women couldn’t talk about violence done to them, whether it was in the home or outside the home,” she noted. “The young women today are saying: ‘Enough, we can talk about the wrongs that are done to us in this area of sexual conduct, just as we can talk about the wrongs done economically, or by a car that strikes me on the road, or somebody who says something bad about me through the law of defamation.’ ”
“I think that’s a really important development,” McLachlin stressed. “So I am hopeful that with those efforts, we will be able to make the needed improvements in this area of the law.”
Asked whether repealing or softening mandatory minimum penalties penalties (MMPs) — which disproportionately affect Indigenous offenders — would improve Indigenous peoples’ access to justice, McLachlin responded: “I think it’s probably evident from my rulings when I was on the bench that I think it’s usually a mistake to eliminate judicial discretion in sentencing. And it impacts particularly hard on juveniles and Indigenous youth, because when you set up a mandatory minimum … what you’re basically doing is preventing the judge from looking at the background of that person, from looking at why they got where they were, from looking at how serious a threat they are to society. You say to the judge: ‘You’ve got to approach the sentence with total blinkers on. You have no say.’ And so all the other things the Criminal Code says to do, like take into account the Gladue provision, take into account the Indigenous background, the judge can’t do it. Well you know, there’s a blatant contradiction there in our Criminal Code. That can’t be good.”
She added that effectively condemning many young people to a lifetime of revolving prison doors “can’t be good for society; costs a lot of money; it wastes tremendous potential. So I am very concerned about this situation.”
Asked whether ideology should be kept out of the Criminal Code, McLachlin replied that crime can’t be divorced from morality. However the Code sets the aims of the criminal justice system as rehabilitation, deterrence and a degree of retribution. “I think [the Code] should be as neutral a document as possible, and it certainly shouldn’t be jigged every time you have a change of government, to represent this view or that view,” she remarked. “Ultimately the goals of the criminal justice system should be pretty consistent. … I think most judges would say it’s really, really important to have the Criminal Code … work in a way that results in convictions for wrongdoing, but doesn’t unnecessarily condemn young people to a life sentence in jails.”
McLachlin expressed her hope and confidence that an Indigenous jurist will “soon” be appointed to the Supreme Court of Canada. “We need to have a Supreme Court … that reflects … the diversity of Canadian society,” she reiterated.
The ex-judge said it is fair to raise questions about the risks involved — such as racial and other biases creeping in — as tribunals and governments start to use AI in their decision-making processes. Calling AI “an interesting idea,” she observed “so far I’m not convinced that we … will replace human judges. … Perhaps I’m prejudiced because I was one, I still like the idea of a human judge.”
McLachlin spent 37 years on the bench, sitting at every level, before retiring in 2017 and joining Toronto’s Arbitration Place as a mediator and arbitrator,
Asked whether the frequent use of mandatory arbitration clauses (e.g. in consumer contracts and in some personal service contracts) — is throwing up a new barrier to justice, McLachlin answered “definitely it can be misused.” As an example, she cited the scenario of a multinational company requiring a customer to resolve his individual dispute about its service privately, in a foreign jurisdiction chosen by the company.
“No individual is going to do that, even if they had the money, because for the small amount involved in their particular contract dispute, it doesn’t make sense,” McLachlin remarked. “So mandatory arbitration clauses have been used in that way, and the courts are finding ways to get around that.”
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