McLachlin on A2J, climate change, sexual assault, AI, pro bono, lawyers’ ‘vital’ role
Cristin Schmitz, Bureau Chief - Ottawa, LexisNexis Canada Inc. © Toronto
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
The Charter may offer an avenue for combating climate change, former Chief Justice of Canada Beverley McLachlin says as climate litigation ramps up here and in the rest of the world.
“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.),  S.C.J. No. 59, 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.”