Friday, 4 July 2014

How the Supreme Court changed British Columbia - my thoughts on the Tsilhqot'in decision

To understand why last week’s Supreme Court of Canada decision in Tshilqot’in is so important, it is helpful to know what the Court actually decided. 

There were three key issues or questions.  First, what is the test for aboriginal title?  Put another way, where will you find it?  Second, what does it mean to have aboriginal title?  Is it really ownership of land, or something quite different, say, just a right to be consulted about its use? Third, what authority does the provincial government have over aboriginal title lands?  Are they like Indian reserves, where provincial land laws do not apply, or something different?

On the first and third questions, in particular, there were sharply different views taken by the trial court and the BC Court of Appeal.  Those views were based on those courts’ interpretations of prior court decisions.  The Supreme Court has now resolved those differences.  They’ve made clear what has been argued about for a long time.  And that clarity, in my view, will have a profound impact on the use and development of lands and resources in British Columbia.

The test for aboriginal title. 

Aboriginal title is the way our law gives effect to the fact of prior aboriginal presence on the lands of what is now Canada.  It’s not just the right to engage in culturally important practices such as fishing, trapping, hunting and forage - those activities are recognized and protected as aboriginal rights.  Aboriginal title is how the law recognizes the indigenous claim that “this land has always been ours”.  But putting it that way does not necessarily answer the question: what land are you talking about?  Is it the land that has been most intensively and continuously occupied, say, villages and their immediate surroundings?  Or is it larger areas of land, the territories over which First Nations have exercised dominion by using and regulating access for resource use purposes, assigning rights of ownership, and excluding other First Nations?  

In terms which do not do justice to the complexity of the question, but at least make the differences clear, it is sometimes said that this is the debate between the “postage stamp” theory of aboriginal title, and the “mountaintop-to-mountaintop” theory.

The answer could not be more important, at least in a province like British Columbia, where there are over 200 First Nations, and very few treaties.  If it’s the postage stamp theory, then aboriginal title will mostly be found in and around Indian reserves and will hardly affect the rest of the lands of the province.  If it’s the mountaintop-to-mountaintop theory, then large parts of the province will be aboriginal title lands because most First Nations in BC exercised dominion over large territories, with clearly recognizable internal rights of resource use and ownership, and histories of defending their lands against other First Nations.

The Supreme Court of Canada decided it’s not just villages, it’s traditional territories.  I say this not just because of the Court’s statement of the requirements for the proof of aboriginal title, but also because of the Court’s actual decision - reversing the Court of Appeal - that the Tsilhqot’in had established their claim for title over a large part of their traditional territory. 

What made the Tsilhqot’in title claim interesting from a legal perspective is the evidence that they were traditionally semi-nomadic.  Their use and occupation of large areas of land was, or so it was argued, less intensive than is required to support a claim to aboriginal title over a large area.  And yet the Supreme Court found in favour of the Tsilhqot’in claim to some 1700 square kilometres.  Not, it is true, the whole of their traditional territory.  But an area so large that, when you consider what we know of the histories and land use of most other First Nations in BC it is abundantly clear that aboriginal title must exist over vast tracts of the province.  

The content of aboriginal title.  

As the Court makes clear, aboriginal title means ownership largely as we would recognize it.  It includes the right to decide how the land will be used, and to occupy, enjoy, possess, and manage it.  Put plainly, it’s their land. There are limits, of course.  Aboriginal title land cannot be used in a way that would prevent future generations of the group from using and enjoying it.  It is held communally, not individually.  And it cannot be sold, except to the Crown.  But the court also made it clear that aboriginal owners are entitled to the economic benefits of their land, and they can use the land “in modern ways, if that is their choice.”  

There is little that is new law in this, aspect of the court’s decision, but it all means much more once it becomes clear that aboriginal title exists in large parts of the province - and indeed, wherever in Canada aboriginal title has not definitively been surrendered to the Crown by treaty or otherwise.

What about provincial powers? 

The constitution assigns exclusive legislative authority over “Indians and lands reserved to the Indians” to the federal government.  For this reason, provincial land laws generally do not apply on Indian reserves.  What about aboriginal title lands?  Some courts, including the trial judge in this case, have held that aboriginal title lands are federal enclaves, where provincial land laws cannot apply. 

It’s one thing of course to imagine the application of such a principle in a postage stamp aboriginal title context.  But if aboriginal title exists throughout the province, what would happen to the authority over land and resource development that the provincial government has exercised for over a century, and on which our resource economy is founded?

The Supreme Court of Canada has made new law here, by clarifying that a controversial rule of constitutional interpretation known as the principle of “interjurisdictional immunity” does not apply to aboriginal rights and title.  Accordingly, the province still has the authority to regulate land and resource development on aboriginal title lands.  But that authority is severely restricted by requirements that have been established by the courts as they have interpreted the recognition and affirmation of aboriginal rights and title established by section 35 of the 1982 Constitution Act.  In short, government may infringe aboriginal title, but only if the infringement can be justified.  Justification requires consultation with the aboriginal titleholder.  It means that the infringement must be minimal, consistent with government’s fiduciary responsibilities to aboriginal peoples, and backed by “a compelling and substantial objective.”  And it may mean offering accommodations.

This language is familiar to those who know the Supreme Court of Canada’s decisions in cases such as Sparrow, Delgamuukw and Haida Nation.  What the court has consistently been trying to do is to create a balance in which aboriginal rights are given strong recognition, without completely displacing government’s ability to govern in the larger public interest.  What’s important here is that the stakes are higher, once you recognize that large parts of British Columbia are not just territories claimed by aboriginal peoples but, most likely, owned by them. 

The court repeatedly makes it clear that the preferred method of authorizing development on aboriginal title land is to obtain aboriginal consent beforehand.  In simple terms, if you have aboriginal permission, then you don’t need to justify the infringement.  You also avoid the uncertainty that is created by the requirement of justification, particularly where aboriginal title is asserted but not yet proven.  Absent consent, government will not know if it has justified an infringement unless and until it has survived a court challenge.  This is inherently risky: as the court says, “if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.”  Rather than proceed in the hope that the development can be justified, the better course is to obtain consent beforehand. 

There are many circumstances in which a First Nation may be willing to consent to an infringement of their asserted or proven title.  But almost certainly, if the infringement is in pursuit of an economic development objective - a forest licence, a hydro-electric dam, or a pipeline project - consent will come with a price tag.  Aboriginal people are unlikely to agree to the creation of economic value from their land unless they have a share in that value. 

The new law here is the court’s decision that the province still has legislative authority over aboriginal title land.  They reversed the trial judge on this point and ended a long legal debate over the question.  But while the province still has the power to regulate, it’s clearer than ever that it will only be able to exercise that authority if it is willing to share the benefits of economic activity with the aboriginal owners of the land on which it is proposed to take place.

And of course, there is no requirement that First Nations consent to that activity.  They may refuse, either because the price - the benefit - is not high enough, or because the cost - in environmental terms - is too high.  In such circumstances, government may only proceed if it meets the high burden of the requirements of justification.

What does all this mean?

I am in the camp of those who see this decision as transformational both as a matter of legal doctrine and, equally importantly, in its impact. It matters that the Supreme Court has, for the first time in its history, declared the existence of aboriginal title on specific lands outside Indian reserves.  It matters that it has done so by conclusively rejecting the postage stamp view of aboriginal title.  It also matters that it has rejected the enclave theory of aboriginal title, affirming provincial legislative authority over aboriginal title lands.  These are important legal questions, where the court’s clarification has been long awaited, and the judgement is bound to become the leading case on aboriginal title in Canada. 

And as to impact, the decision is of course profoundly important to the Tsilhqot’in, who fought so long for this result.  But only a fool would downplay the significance of this judgement for the rest of British Columbia.  While it is certainly true that the court has not drawn specific boundaries of aboriginal title land anywhere outside Tsilhqot’in territory, it has nonetheless inescapably redrawn British Columbia.  It has raised the stakes for aboriginal participation in economic development and complicated provincial land and resource decision-making in ways that may take years to sort out. 

But to contend that all this is important is not to say that the sky just fell on British Columbia.  There is nothing in this decision that need necessarily increase conflict or halt all development.  It will certainly cause many First Nations and project proponents to take a second look at their plans and strategies.  And in a province where land and resource development is always slow, expensive, and difficult, there’s a risk that it will become even harder to get things done.  But only, in my view, if government fails to recognize that this time out, the rules really have changed, and that now, more than ever, there is a need for real political leadership, provincially and federally, on this all-important file.  Now is not the time for governments to pause while they study their way into inaction.  Now is the time for something quite radically different.

Friday, 20 December 2013

In which I disagree with the Victoria Times Colonist about the function of a criminal trial

An editorial in this morning’s Times Colonist bears this heading: Malodour clings to BC Rail issue.

The editorial is a review of the recent BC Auditor General report on taxpayer-funded indemnities for public servants charged with criminal offences.  My purpose here is not to analyse that report, though it certainly bears reading, because of its key finding that there was no political interference in the decision to waive the defence legal fees in the Basi Virk case.  My concern is with a perspective held by the Times Colonist about the trial itself. 

The Times Colonist expresses frustration that the trial ended in the way that it did. Here is some of what they say:

Most taxpayers, if they had known they were already on the hook for $18 million, would have willingly spent another $2 million to get some answers. Witnesses testifying under oath could have provided some of those answers, but that process was short-circuited. –

The problem is with the phrase, “To get some answers”. Answers to what?  There was only one “question” that needed to be answered in the case: the guilt or innocence of the accused.  That question was definitively answered.  The case was not about anything else. It was a criminal trial.  Full stop.  There were no more questions to be answered.

The Times Colonist says, “Witnesses testifying under oath could have provided some of those answers, but that process was short-circuited.” I disagree with both the premise and the conclusion.  The function of the witnesses in the trial was not to provide “answers” to a wide range of questions about the BC Rail “scandal.” It was to give evidence relevant to the question of the guilt and innocence of the accused.  And the trial was not short-circuited. It ended with a guilty plea, a voluntary admission to the offence. An admission, in other words, that the cases against the accused were going to be proved beyond a reasonable doubt.  That the defences offered during the case – and that presumably informed the lengthy cross-examinations of the Crown witnesses – did not hold water; were, if I may put it this way, fishing expeditions without fish.

The Times Colonist presumably wishes that the Basi Virk trial had been a royal commission.  It wasn’t.  The criminal justice process is already burdensomely complex and expensive.  Arguing that it should serve wider purposes of public inquiry than the guilt or innocence of those accused of crimes, runs contrary to what we should really focus on, namely how to make criminal trials faster, shorter, and less expensive, without compromising the right of an accused to require the Crown to prove the case beyond a reasonable doubt.  The questions to be asked in the aftermath of the Basi Virk trial are about why the trial and pretrial took so long and cost so much, and what we can learn to do a better job of managing such cases.  Those, I respectfully submit, are the real questions that still need answering.

Wednesday, 27 November 2013

Apparently what Vancouver really needs is more coyotes.

Sunday morning sunshine – never taken for granted in November – was an invitation to go for a walk on the beach. So we did.  Down to Spanish Banks.  At the bottom of Trimble hill, however, we saw an interesting sight.  Someone planting trees in a corner of Locarno Park – the southeast corner , to be precise.

Well, there are lots of trees already in Locarno Park, and lots of trees in all of the lovely green space nearby.  It seemed a bit odd that someone was planting more trees there.  So we had a closer look.  We saw a sign that explained what was going on.  Here’s a picture of the sign (with apologies for the fact that it is a smartphone picture taken in early morning darkness a few hours ago).


Apparently, the City intends to plant 150,000 more trees by 2020.  That’s what it means to live in a city that has a Greenest City Action Plan.  That’s a lot of trees.  And why these trees in particular?  “To create parks which create more bird and wildlife habitat.”  “Larger natural areas for wildlife.”  That's what the sign says.

Hmm.  The other day my wife saw a coyote on our street.  Checking out the front lawns.  Looking for, I don’t know what.  Probably not just admiring the gardens, I’ll bet. 

I like trees.  I like birds.  I like wildlife.  I particularly like wildlife when it is in that place we call the “wild.”  I’m not so keen about coyotes in residential neighbourhoods in Vancouver.  So I guess I’m not sure why Vancouver needs to plant more trees to create more habitat for more coyotes in our neighbourhoods.

But while I am at it, let me add another thing.  In case you hadn’t noticed, our economy is still limping.  Public treasuries are not awash in cash.  Our national and provincial governments are working very hard to control spending.  They are making progress in achieving this goal because they are constraining – and sometimes even reducing - expenditures on government programs.  Including some truly fundamental programs like health care and education.  To achieve this kind of discipline requires understanding the difference between the things you simply must do and the things you would like to do, and finding a way to say no to the things that you would like to but shouldn’t because they are not truly necessary.

But so far as I can tell, this same discipline is not applied in the City of Vancouver.  At a time when other levels of government are trying to maintain existing levels of service delivery, the City of Vancouver is expanding  its programs and services.  Aspiring to be a Greenest City is a lofty and noble ambition.  Desirable, maybe, but not, I suggest, indispensable.  It is achievable, in large measure, because Vancouver taxpayers are generous, and have not demanded that their City government start to draw bright lines between the things that must be done and the things that are just nice to do.  Vancouver has not yet had, if I can put it this way, its Rob Ford moment.  But the thing about those populist uprisings is that it's always easier to explain them in hindsight than it is to predict the tipping point ahead of time.

Saturday, 23 November 2013

Magic, our minds and the rule of law

It is a fundamental premise of our legal system that legal process - courtroom adjudication in particular - is a reliable way to discern the truth among conflicting facts; and that justice results from the impartial application of ascertainable and certain legal rules by trained officials - judges - to those facts.  Faith in this premise is what sustains our belief in the rule of law and our willingness to entrust controversial and difficult decisions to courts and judges.

Of course, if we are honest with ourselves, we will acknowledge that lawyering and judging are human processes, and as such are necessarily somewhat fallible.  Perfection is a standard seldom achieved in any human endeavour.  But it is critically important to what I would call the the ideology of the rule of law that that we believe that the processes by which law is applied are reliable, that (for example) lies can be detected in cross-examination, that the best argument will always prevail, that a good argument is the best way to arrive at the truth, and that judges in particular are good at these things.

This faith in legal process is what underlies our reliance upon bills of rights.  A bill of rights takes a political value, such as free speech, which is generally accepted as necessary to sustain a free and democratic society, and turns it into a legal rule.  The rule is enforceable by judges. We assign courts the task of interpreting and applying that rule.  Why?  Because we trust judges.  Why do we have that trust?  One reason is because of their independence.  Judges have no stake in the game and therefore are not predisposed to favour one side or the other in any particular case.  But another reason why we give the task of applying the law to judges is because, as I have already said, we think they do a good job of it.  We believe that a courtroom is a good place to discern the truth; first by “finding” the facts; and then through processes that are objective, neutral, and impartial, deciding what the law is, and applying it to those facts.

If you accept all these things as true, as articles of faith, as it were, in our legal system, then you will be as interested as I was to see the title of an upcoming legal and medical conference sponsored by the Trial Lawyers Association of BC. It’s called, “Merging of the Minds: Understanding how the Neuroscience of Magic affects the Practice of Law and Medicine.” (

Yep.  A law course called the Neuroscience of Magic.

Now before you think I am about to go on a rant about the Trial Lawyers of BC, hold your fire.   This is serious stuff.  The course is not just an excuse to spend a day away from the office; conference attendees will be eligible for continuing professional development credits from both the Law Society of BC and the UBC Faculty of Medicine.  But more importantly, this course promises to be a particularly interesting opportunity to learn about work that is being done across a number of disciplines - psychology and neuroscience in particular - that is demonstrating how the mind actually works, as opposed to how we used to believe it worked.  And what we are learning about the mind has all kinds of ramifications for legal process and, I suggest, our perspective on the rule of the law.

Now this is just a blog, and I am just an amateur at this stuff, but I want to give you some examples of this work, to illustrate what I am talking about.

First, the TLABC course itself.  The range of subjects covered in this one day course is broad, but one lecture looks particularly interesting.  It’s entitled, “Sleights of mind: what the neuroscience of magic reveals about our everyday deceptions”.  The lecturers are Stephen L Macknik and Susan Martinez-Conde, both researchers from Phoenix, Arizona, and they are authors of a book that has that same title.  I haven’t read the book, but I went to their website (  Allow me to borrow from the authors’ own description of their work:

  • "Neuroscientists Stephen Macknik and Susana Martinez-Conde, the founders of the exciting new discipline of NeuroMagic ... have convinced some of the world’s greatest magicians to allow scientists to study their techniques for tricking the brain. Magic tricks work because humans have a hardwired process of attention and awareness that is hackable—a good magician uses your mind’s own intrinsic properties against you in a form of mental jujitsu. By understanding how magicians hack our brains, we can better understand how the same cognitive tricks are at work in advertising strategy, business negotiations, and all varieties of interpersonal relations. When we understand how magic works in the mind of the spectator we will have unveiled the neural bases of consciousness itself."

Fascinating stuff.  Not just because I’m interested in how magicians work, but because I am interested in what trial lawyers will do with these insights in a courtroom.  What they are supposed to learn is pretty clear: how to “hack” the brains of everyone else in the courtroom: witnesses, jurors, other lawyers, and yes, judges.  And so the question arises: is the courtroom a place where our faith in logic and reason is redeemed, or is it a theatre for a magic show?

You may think this is a one-off piece of enjoyable eccentricity.  It’s not.

Last Saturday I had the pleasure of listening to a fascinating panel discussion at a Canadian Bar Association conference in San Diego, California.  The subject of the panel was bias in judicial decision-making.  The panellists were Craig Jones, and Art Vertlieb.  Both are highly regarded lawyers: Mr. Jones is a law professor at Thompson Rivers University, whose research these days is focused on the psychology of advocacy; and  Mr. Vertlieb is president of the Law Society.  The panel discussion was based on an article that Mr. Jones published in the April 2013 edition of the Advocates Quarterly
entitled, "The Troubling New Science of Legal Persuasion: Heuristics and Biases in Judicial Decision Making".

The presentation consisted of a high level overview of recent psycholological research that is revealing how humans actually make decisions.

One example given is the phenomenon of decision fatigue.  This is illustrated by a study done of parole boards in Israel.  If I may borrow from an August 17, 2011 New York Times Magazine article by John Tierney (I didn’t make sufficiently detailed notes of Mr. Jones’ presentation last Saturday) what researchers Jonathan Levav of Stanford and Shai Danziger of Ben-Gurion University discovered after studying over 1000 parole board decisions was this:

  • There was a pattern to the parole board’s decisions, but it wasn’t related to the men’s ethnic backgrounds, crimes or sentences. It was all about timing ... Judges, who would hear the prisoners’ appeals and then get advice from the other members of the board, approved parole in about a third of the cases, but the probability of being paroled fluctuated wildly throughout the day. Prisoners who appeared early in the morning received parole about 70 percent of the time, while those who appeared late in the day were paroled less than 10 percent of the time.

In other words, the outcome of these parole board hearings was not solely a product of rigorous fact-finding and rule-applying.  It was also the result of decision fatigue, the “hard mental work” of ruling on case after case.

For trial lawyers the implications of this work are pretty clear: don’t ask judges to make hard decisions at the end of the day.  If you can, plan your courtroom day so the hard decisions are made in the morning. But of course, the work of courts is not organized in a way that takes these considerations into account.  Rather, the assumption - the presumption - of our legal system is that, assuming the facts and the law are the same, courts will make the same decisions at 3 pm as they would at 10 am.  But that, it turns out, is not how we actually function.

Much of the work surveyed in Mr. Jones’ presentation would be familiar to readers of Daniel Kahneman’s  fascinating 2011 book, Thinking, Fast and Slow, and the equally fascinating works of Jonathan Haidt, a New York University professor who has written The Happiness Hypothesis: Finding Modern Truth in Ancient Wisdom (2006) and The Righteous Mind: Why Good People are Divided by Politics and Religion (2012).

It turns out, or at least it increasingly appears to be the case, that we are not the creatures of logic and reason that we have fancied ourselves to be.  Rather, we are repeatedly prone to biases and misconceptions.  We make our minds up, and then we search for reasons to justify our decisions.  We have a tendency to favour information that confirms the beliefs and hypotheses we already hold, which means we tend to disregard information that does not align with our preconceived notions of what ought to be true.  We like people who are like us and tend to distrust people who are not.  We are more apt to believe a statement if it is accompanied by a picture, even if the picture does not actually confirm the statement.  We are prey to “associative effects” which mean that our decisions can be made more conservative if they are made to follow some evocation of fear.  And our decision-making is affected by “presentation triggers” - the depth of our voice, the metre of our speech, our attractiveness, and so on.

And perhaps most importantly, most of the time, even if we know these biases exist, we are not actually aware they are operating.

Why are these presentations being made at law conferences?  Well the main reason is to inform lawyers so that they can use these tools more effectively in their work.  To speak in a certain way, to get their witnesses to dress nicely, to make certain kinds of arguments, and offer certain kinds of evidence.  To realize that a more attractive geologist may be more persuasive as an expert witness than an unattractive one. To use pictures in addition to words.  To conjure judges (and juries) into thinking in certain ways without them even knowing it.  In other words, to improve their chances of winning.

All of this is interesting - and useful, too.

But I am more interested in what it all means for our faith in the ideology of the rule of law.  If, as it is increasingly becoming clear, legal processes, legal reasoning, legal conclusions, are not quite so rational and objective as we have traditionally believed them to be, perhaps we should be a little more cautious - a little less triumphalist  - about them.  I have my own bias on this, to be sure.  I believe that in the long run social and human welfare will be better served if we deal with our most difficult problems in the political arena, rather than in a courtroom.  When we stop trying to turn all of our moral and political questions into legal rules.  So if it turns out that the legal process is just as human and just as fallible as politics, I think, well, maybe that’s progress.

Wednesday, 16 October 2013

Two more thoughts about civil justice reform

In my last blog posting I highlighted some of the important high level principles for justice system reform contained in two recent reports – The CBA’s Equal Justice report, and the Cromwell Action Committee’s Roadmap for Change.  My brief overview did not begin to do justice to the breadth and depth of the thinking in these two reports, but in the interest of continuing to prod this important discussion, I want here to make two further points.


First is the question of the role of courts within the overall civil justice system.  Here is what the Cromwell report has to say about that:

Access to justice has often been thought of as access to courts and lawyers.  However, we know that everyday legal problems mostly occur outside of formal justice structures.  This insight should lead us to fundamentally re-think how we approach legal problems in terms of preventing them from happening where possible, and when they do occur, providing those who experience them with adequate information and resources to deal with them in an efficient and effective way.…To borrow Richard Susskind’s observation, “it is much less expensive to build a fence at the top of a cliff than to have need of an expensive ambulance at the bottom.”

The phrase “fundamentally re-think” pretty well nails it, in my view.   If we took this statement seriously as a guide for action, the civil justice system would be radically transformed.  Courts and adjudication would have a role, but only one role, and by no means the central role, in a comprehensive continuum of services that actually addressed public needs for legal information, advice and problem solving. 

The phrase used in the Cromwell report is “court if necessary, but not necessarily court.”  There’s a nuance here that needs emphasis. That phrase, in my view, is not the equivalent of saying (as some do) that the courtroom should be the forum of last resort.  I don’t think it is the role of the courts to stand as the last bastion of access to justice only when all other avenues have been pursued and exhausted. Rather, I would suggest that there are some kinds of legal disputes and issues that properly belong, from the outset, in the court process.  And there are others – a great many others – that do not, and should never be there.

If you want to speak in terms of metaphors, I would reject the image of the funnel, which places courts at the bottom end of a bounded system into which all cases are poured, and choose instead the image of a toolbox, where the right tool is chosen to meet the different needs of different kinds of situations. 

To be plain, I choose this metaphor not just because it reflects the reality that different kinds of issues and disputes are better resolved through different processes, it also “de-privileges” the courtroom as the cultural focus point of the justice system.  Instead of being the centre around which all else is designed, and to which all disputes, sooner or later, are headed, courts are “just” another tool (albeit  a profoundly important and necessary one) in the toolbox of the justice system.

For a generation, lawyers have been trained to consider alternatives to court adjudication as a way of addressing their clients’ legal needs.  The catchphrase is Alternate Dispute Resolution, or ADR.  It encompasses processes like mediation, conciliation, arbitration and so on.  As a catchphrase it has served its purposes for a long time, because it has helped legitimize these other processes.  But I think it’s outlived its usefulness.  A truly fundamental re-think of the civil justice system would not see these other techniques for dispute resolution as “alternatives” to the courts.  Rather, we would re-orient the page from a vertical, hierarchical model of the justice system, with courts at the top, to a horizontal, linear model, where all options have equal stature.  Sounds a bit radical?  Well it is.  That’s what a “fundamental re-think” is all about.


My second point is this.  Most of the focus in justice system reform reports is on process and institutions.  This is enormously important.  But I would say that if we truly do want to make the justice system less “slow, complex and expensive” we also need to re-think our approach to substantive law-making.  At the risk of a gross over-generalization, let me suggest that laws are not often made with an eye to the practicalities of how they will actually operate in the real world.  This is particularly true of judge-made law.  When, for example, the Supreme Court of Canada decided in the Quebec Secession Reference (in 1998) that our constitution contained certain enforceable “unwritten principles”, it contributed inexorably to the increasing complexity, inefficiency and cost of the legal system.  There was no readily identifiable, closed list of these principles - how could there be? after all, they are “unwritten” - and no meaningful guidance on their application or effect, thereby making it impossible for lawyers to advise their clients and for citizens to govern their affairs. There is no better way to drive up the cost of the justice system than to make substantive law which is uncertain.  Of course, judge made law – and legislature-made law – is usually created to do justice.  But justice that cannot be obtained because the law cannot be applied is a poor sort of justice.  So as justice system reformers, let’s have an eye not just to our processes and institutions, but also to the laws themselves and see if it is somehow possible to make them simpler, clearer, and more easily applied.

Thursday, 10 October 2013

Access to civil justice - two reports that ought to inspire real change

Two recent national reports on the urgent need for civil justice reform offer the promise – or at least the possibility – of a justice reform agenda that, for once, is not just about demanding more tax dollars for legal aid, but recognizes more broadly and more fundamentally that our civil justice systems, structures, processes and rules are not only failing the poor, they’re failing everyone.

Reaching Equal Justice: an Invitation to Envision and Act, was released by the Canadian Bar Association during its annual meeting this past August. ( The other report, Access to Civil & Family Justice: A Roadmap for Change, was released this month by a group called the Action Committee on Access to Justice in Civil and Family Matters, ( chaired by Justice Thomas Cromwell of the Supreme Court of Canada.  I will call it the Cromwell report in recognition of the leadership role which Justice Cromwell has undertaken on this issue over the past several years.

Both reports are worth reading (and very readable).  My hope, of course, is that they are not just read, but are embraced and acted upon. 

Both reports argue that the justice system, if it is to function effectively, has to “put the public first”.  The Cromwell report even goes so far as to make this the first of its six guiding principles of change, saying,

We need to change our primary focus.  Too often, we focus inward on how the system operates from the point of view of those who work in it….The focus must be on the people who need to use the system…..Those of us working within the system need to remember that it exists to serve the public.

It is of course easier to say this than to make it real.  As the Cromwell report itself acknowledges, this is not just about changing rules and processes, but instead – and more fundamentally – entails a culture shift, a whole new way of thinking and acting.  Lawyers and judges are so accustomed to defending the justice system on a “we know better than you do” basis that it is really quite wonderful to see (in a report written by lawyers) such a clear statement of the need to re-orient our perspective to ask whether the system is actually meeting the needs and expectations of the people it exists to serve.  And this is not just one of the considerations that should be taken into account by reformers, but the first principle.

Each of the Cromwell report’s six guiding principles are just that: ways of orienting our perspective on justice system change that help frame every option or proposal in a way that, if realized, would make change meaningful and effective.  For example, principle two, “collaborate and coordinate,” reflects the reality that one of the single greatest barriers to an accessible justice system is its fragmentation.   A justice system that put the public first would not tolerate the silos that characterize its institutional arrangements and practices, and would look for ways to organize itself so that citizens did not need an undergraduate course in constitutional law in order to understand, when their marriage breaks down, which courts can make spousal support orders and which can grant them a divorce. 

Another important feature of both reports is the call for action.  For example, in a very fine turn of phrase, the CBA report suggests we need to “think systemically, act locally”.  In other words, “Every contact between an individual and the civil justice system is an opportunity for either disempowerment or empowerment, a moment to reinforce inequality and social exclusion or to create equality and inclusion.”  We don't have to sit around and wait for someone else to fix the system for us. Even within the constraints of existing structures and rules, every day at the office presents a dozen opportunities for each of us to make the system work for the public interest, rather than against it. 

The sixth of the Cromwell principles asks for a focus on outcomes.  This has at least two important dimensions.  First is the idea that legal process is not an end in itself, but rather only matters if it produces fair and just results.  The statement that process is instrumental to result, rather than the goal of the system, is more transformational than the report’s authors themselves acknowledge.  Lawyers will usually tell you that the only guarantee of a just result is a just process, but this is nearly always stated as a self-evident truth, rather than an empirical proposition that deserves close scrutiny.  As the Cromwell report says, “Of course fair process is important.  But at the end of the day, what people want most is a safe, healthy and productive life for themselves, their children and their loved ones.”  This is a marvellous thing to find in a justice system reform report written by lawyers, a call to look beyond process to see whether, where, if and how, the justice system actually improves people’s lives.

The focus on outcomes also has a second dimension, the need for more and better metrics to help us see whether the justice system is actually achieving its goals.  Although there is a growing body of meaningful empirical evidence about the justice system, it is still the case that most of the arguments made in its defence are supported only by collections of self-evident truths, input/output measures and anecdotes. (Even an indicator as widely cited as the World Justice Project’s Rule of Law index, cited on page 3 of the Cromwell report, is based on a methodology which, stripped to its essence, is not much more than a highly sophisticated opinion poll.)   

As I said at the beginning, these are important reports, and I have really only begun to scratch the surface of their important insights and recommendations.  I certainly hope that they inspire a commitment to real change.  I can’t, however, close this commentary without making two more points.

First, the call for reform is hardly new.  When the Lord Woolf began his examination of English civil process in the mid-1990’s, he wrote, “the key problems facing civil justice today are cost, delay and complexity.”  In 1996 the CBA’s Systems of Civil Justice Task Force reported, “many Canadians feel that they cannot exercise their rights effectively because using the civil justice system takes too long, is too expensive, or is too difficult to understand.”  Nearly two decades later it’s disheartening to see the authors of the Cromwell report acknowledge, “There is a serious access to justice problem in Canada.  The civil and family justice system is too complex, too slow and too expensive.”

Plus ca change?  Are things worse, or better?  I say this not to deny the problems, but to make it clear that they have been with us for a long time, and yet notwithstanding the best of intentions of a generation of reformers, they are with us still.  These reports may be the catalyst for the real change that is urgently needed, or they may gather dust on the shelves.  I hope for the former, but I fear for the latter.  There are still powerful forces opposed to reform, people who argue that we should confront change rather than embrace it.  Theirs is, I believe, a view backwards, not forwards, but it is a view strongly held by many.

Second, both reports argue that the access to justice crisis is particularly acute for the poor, and that underfunding of legal aid is an issue that urgently needs attention .  There is no doubt that increases in legal aid funding would expand the reach of legal aid.  But I think – as I said at the beginning – that the crisis – and I believe it is a crisis - is more fundamental.  Cost, delay and complexity are problems with the system as a whole.  Solving these problems would benefit everyone.  What needs to happen, if justice system reform is to achieve anything meaningful, is not for governments to spend more to support the system as it is, but rather for all of us – politicians, judges, lawyers, court administrators, community groups, citizens, to answer directly the problems of cost, delay and complexity.  Put another way, what can we do to make our legal systems and processes “just, speedy, and inexpensive?” – to quote the language from the old BC Supreme Court rules.  That’s the question.  These reports don’t provide the detailed answer to that question, but they are, just as their authors have intended, invaluable invitations to envision and act, roadmaps for a way forward to a justice system that actually meets the needs of the citizens it is established to serve.

Wednesday, 11 September 2013

Yup, I actually think we should congratulate ICBC for making a profit that can be used to pay for public services

Some of the Thundering Pundits have been complaining lately about the fact that ICBC has been able to return what it calls excess capital to government over the past several years. 

They are upset that government is dipping its “dirty fingers” into ICBC’s “coffers” to “scoop” cash which government presumably then has the gall to spend on some of its lame brain programs like heart surgery, disability benefits, and high school science labs.

Well, I beg to differ.

To begin at the end, just remember that the basic complaint here is that ICBC is paying money to government which government gets to use, gasp, to pay for public services.  So understand this.  If ICBC did not make these payments to government - and the same goes for BC Hydro and every other commercial Crown that is able to distribute some or all of its profit to government - one of two things would have to happen.  Either public services would be cut, or taxes would have to rise.  The Thundering Pundits never admit this, because it is so desperately inconvenient for their argument.  I use the word “argument” loosely, because it is not really an argument; it’s just a bunch of half-baked facts thrown at a wall with the intention of making you indignant about those nasty folks, government, who apparently actually need money to build highways, hire teachers, and pay social assistance.  The pirates!  How dare they!

So in case you hadn’t already cottoned on, I happen to be in that very tiny group of British Columbians who think that if government-owned business are actually able to operate at a profit, and return some of their profits to government to offset the costs of government, that’s a good thing.  It keeps taxes lower than they would otherwise be.  I know, I know, you’re like the Thundering Pundits: you think that government should provide an infinite amount of service at no cost, delivered by people who, if you had your way, would earn slightly less than minimum wage.  More’s the pity for you, because you’re being sold of bill of flawed goods on this issue, let me tell you.

So let’s cut right to the chase.  That ICBC payment to government is from the operation of ICBC’s optional insurance business.  It’s not the required coverage side of the business, the “basic coverage.”  It’s the coverage you don’t have to buy at all, and you certainly don’t have to buy it from ICBC.  ICBC competes in the private market for the sale of this product.  It has no monopoly.  It’s a business like any other.  It makes a profit on that business.  That’s the money we’re talking about. 

We’re not talking about the basic insurance business.  In the year 2012 ICBC lost money on its basic insurance business.  $120 million, according to its annual report.  Its premiums were not high enough to cover the cost of the services it provides its customers. ICBC is prohibited by law from internally cross-subsidizing its optional business from its basic business and vice versa.  That was done to protect customers and competitors from the risk that ICBC would subsidize its optional business with the money from its basic business.  Without that guarantee, which is backed by the requirement of BC Utilities Commission approval for basic rates, the concern was that private insurers would not enter the BC market to offer optional insurance.

But because of that guarantee there are private sector insurers in BC who will sell you that optional insurance coverage.

And as I have already said, ICBC has to compete for that business.  And it appears they have done so very successfully.  So much so, that the optional business makes money ($369 million in net income for 2012, according to ICBC’s financial statements - see page 37).

So here’s a question.  What should ICBC do with that profit?  I can think of three options:  

One, they could reduce the premiums it charges for optional insurance.  Huh?  Why on earth would it do that?  The price it charges for that product is already at a level which the public are willing to pay, even given the opportunity to buy the same product from another provider.  There’s zero point in asking someone who is making a profit selling something in an open market to reduce its price still further.  

Two, they could use the excess from the optional business to offset the losses in the basic business.  This is something that the people who buy the basic coverage would probably like to have happen.  I’m not going to say this would be a manifestly stupid thing to do.  But it’s not the right thing to do.  The right thing is option three - return that profit to its owner.  

Now please don’t get all indignant about my rejection of option two.  You need to remember that ICBC’s rates for basic coverage are regulated by an independent regulator, the Utilities Commission. This safeguard ensures that ICBC cannot overcharge or gouge for basic coverage just to enrich its own coffers.  No, what the regulator does is make sure that the purchasers of basic insurance are charged a premium which, over time, allows ICBC to make enough money to operate its basic insurance business sustainably.  

But to return for a moment to the nonsense peddled by the Thundering Pundits, don’t let them fool you into thinking - as they would have you believe - that ICBC is being forced by government to jack up basic insurance rates so it can return a phony profit to government.  That is simply, utterly, and completely untrue.  Basic rates are protected by an independent regulator.  And the income from basic rates is not being used to make the excess capital payments to government.

But to the main point, here’s why I like option 3.  I love the fact that a government corporation, competing in the open market, can run a business so profitably that it generates excess capital, that can be paid to government to help offset the cost of all those public services we hold dear and depend upon.  Indulge me in a thought experiment for a moment.  If, heaven forbid, government owned and controlled enough profitable businesses that it received not just hundreds of millions of dollars every year from them, but billions of dollars, think of the services that could be delivered, the vulnerable people who could be helped and the relief from the ever-present pressure to increase taxes to pay for those services.

That’s why I prefer option 3 to option 2.  I know it’s tempting to think that these dollars should be used to reduce the cost of basic automobile insurance.  But we have strong mechanisms in place to prevent ICBC from over-charging for basic insurance, so those of us who choose to drive will pay a fair premium for that basic coverage.  I’d rather use that profit to pay for textbooks, disability assistance, and transit services.

So instead of complaining that ICBC is sending these dollars to government, I think we should congratulate them. 

And the next time you hear someone complain that government is drawing profits from ICBC to pay for public services, ask them to explain why it’s so wrong that government should be able to draw upon profits earned in the open, competitive market, to help offset the cost of services to the most vulnerable and needy among us.