© 2011  Karen Selick

An edited version of this article first appeared in the April 15, 2011 issue of The Lawyers Weekly.
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"Access to Justice" Will Really Mean Access for the Litigious

Pardon my 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 point. 

Lawyers 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.

What 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 and 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 Canadian wage.

The 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 anyhow. 

But let’s 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. 

We could 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. 

For 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.”

But even 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. 

Step back 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.

Many 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.

For those 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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