to Justice" Will Really Mean Access for the Litigious
cynicism, but I can’t help suspect a certain lack of objectivity when
lawyers beat the drum about an alleged lack of “access to
justice”. Car dealers no doubt think people need greater access
to vehicles. Massage therapists probably think people need
greater access to massages. Accountants think…well, you get the
are able to ennoble an otherwise brazen appeal to self-interest by
weaving the word “justice” into their spiel. But it’s the courts
that are supposed to dispense justice, and from the litigant’s
perspective, court services are already just about free.
Litigants in most provinces don’t pay for the judge’s time, except for
token fees upon issuing pleadings or motions. It’s taxpayers who
foot the bill, whether they themselves litigate or not.
lawyers and judges really seem to mean when they say the public lacks
“access to justice” is that some members of the public appear to lack
access to lawyers.
more litigants—especially in family law—have been appearing in court
unrepresented. Judges dislike this because self-represented
litigants tend to take up more time. Okay, that’s
understandable. But judges should at least be forthright enough
to say that what they want people to have more of is lawyers, not
justice. It’s actually rather alarming for judges to imply they
cannot dispense justice to anyone except persons accompanied by
lawyers. They may have to work harder at it, but every job has
its challenges. That’s why we pay them five or six times the average
recent flood of self-represented litigants may not be a reflection of
lawyers’ services being too expensive, but rather of judges’ services
being too cheap, relatively speaking. Think about it. When
people have a choice between seeking justice with an expensive sidekick
or seeking justice for free, a significant proportion of them (those
who are greater risk-takers, those who have little at stake, or those
who are just as smart as the average lawyer) will make the perfectly
rational decision to select the cheaper route—especially if they’re
convinced that getting justice from our courts is a crapshoot
accept, for the sake of argument, that the cost of lawyers is “too
high”. Economics 101 tells us that one or both of these things
must be true: either the supply of lawyers is too small, or the
demand for lawyers is too large.
increase the supply of practitioners by expanding the law schools or
even abolishing lawyers’ monopoly on practicing law. But, oh
no—this is not what you hear lawyers recommending. Instead, they
generally advocate subsidizing litigants.
instance, the Doust commission in B.C. recently recommended that legal
services be considered an essential public service and that government
supply more funding. This echoes retired Supreme Court of Canada
Justice Claire L’Heureux-Dubé who told a legal conference back in 2005:
“Legal services, like health care, should be free in an ideal society.”
the dullest storekeeper knows that if you mark down the price of a
product, people will buy more of it. If you give it away for
free, they’ll snatch up every last morsel and ask for a
rain-check. This is not a sign that the product was overpriced or
“inaccessible” originally. It just means that economists have
correctly described demand curves as downward-sloping; in other words,
people’s desire to purchase things varies inversely with the price.
So if we
followed the advice of Mr. Doust or Madam Justice L’Heureux-Dubé, the
problem would get worse, not better. The demand for lawyers would
rise. People would suddenly want to litigate over relatively
minor grievances. If it’s free, why not give it a shot?
There would soon be a shortage of lawyers. The cost of lawyers
for the unsubsidized would go up, not down. Court backlogs would
grow. It would be the medicare mistake all over again.
a moment and look at the bigger picture. Who can really believe
that a more litigious society is a more desirable society—or an “ideal
society”? A more litigious society would be a hellish place, not
a paradise. Litigation should be discouraged, not encouraged, and
having to pay for it does precisely that.
Canadians go through life without ever setting foot in a
courtroom. For others who behave prudently, litigation is
something that comes only rarely—once or twice at most. It’s the
sort of emergency that people should be able to pay for out of their
savings. But the nanny state has already taken it upon itself to
discourage us from saving for emergencies by “insuring” us against just
about every vicissitude life might throw at us: job loss,
illness, and even routine healthcare expenses. No wonder
Canadians live these days with the idea that they can spend every penny
of their monthly incomes that same month, oblivious to future
predicaments. With government debt soaring, it’s time to start
reversing this mindset, not reinforcing it.
who believe there are important legal principles crying out to be
adjudicated, organizations exist to which they can donate voluntarily
in support of such causes. (My employer, the Canadian
Constitution Foundation, is one of them.) But citizens in
general should not be forced to pay through our taxes for private
individuals to litigate over which spouse gets the furniture and which
has the kids on Christmas day. And I can corroborate, from the
many years I spent taking Legal Aid matrimonial cases, that that’s
precisely the sort of thing people want to spend their lawyer’s time on
when the service is “free”.
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