A number of years ago my former boss, then-attorney general Michael Bryant, gave the keynote address at Osgoode Hall Law School’s annual constitutional cases conference.
With the Supreme Court of Canada appointment process caught in the
crosshairs of the democratic reform movement, Bryant viewed challenges
to judicial independence as the leading constitutional issue of the
time.
Bryant’s predictions about increasing pressures on judicial independence were prescient in 2004 but I do not believe that judicial independence has become the constitutional issue of our time.
Several years earlier Supreme Court Chief Justice Beverley McLachlin stood at the same podium and declared equality “the most difficult right” in the Charter. I tend to agree with the chief justice’s declaration on this issue but it too is not the defining constitutional issue of our time.
No, the defining constitutional issue of our time is found neither in the text of our fundamental law nor is it recognized as an unwritten constitutional principle that infuses meaning into the text. Rather, it has been explicitly rejected on both accounts. However, it threatens both the text and subtext of our Constitution. The greatest constitutional challenge of our time is access to justice.
Most are familiar with both the rhetoric and the reality of the access to justice crisis in this country. It has become standard fare in judicial speeches from the chief justice of Canada and her colleagues across Canada.
But the courts - especially our high court - are part of the problem, not the solution. By creating greater complexity and uncertainty in the legal process they have added to the length and cost of legal proceedings.
And in decisions such as
Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) and
British Columbia (Attorney General) v. Christie, the Supreme Court has clearly and forcefully sent a message that it will not modify existing constitutional doctrine to make it easier for ordinary
litigants to be able to retain lawyers.
The Living Tree has been unable to breathe life into this aspect of the Constitution. But the courts are only one aspect of the problem. We, the legal profession, are another. We are contributing to the increasingly unaffordable costs of legal services.
We risk pricing ourselves out of the market. We are already doing that in some areas of the law such as family law where statistics show an incredibly high rate of self-representation. This is not a family law problem.
It is fundamentally a problem for the legal profession as a whole and for our justice system as an entity.
We are going to wake up one day to find the justice system has truly become unaffordable, inaccessible, and hence illusory to the vast majority of Canadians.
We lawyers will find ourselves divided essentially into two classes: one serving a new aristocracy of wealthy individuals and large corporations that can afford justice and the other a group of state-paid lawyers serving the poorest of the poor. Left out will be the vast majority of Canadians who simply will not be able to afford to hire a lawyer.
Successive governments have been unable or unwilling to ameliorate the problem. In the midst of a recession, we will now see falling revenues for legal aid plans coupled with declining incomes for those in need of legal assistance.
It doesn’t take a statistician to predict a swelling of the legal aid rolls and legal aid being unable to provide even for those who meet the current low-income cut-off of an annual net income of $7,212 for an individual and $15,372 for a family of five. When you put this all together it has the potential to create a constitutional tsunami.
If we wake up one day to find that as lawyers our only clients left are the very wealthy and the very poor, then surely the public and the legislators who represent them will rightly question how self-regulation can be said to be in the public’s interest. Even more concerting, however, is that this tsunami may rip through the fabric of our Constitution.
The rights in our Constitution are premised on a claim of universality. One of the key postulates of the rule of law is that everyone is equal under the law. But if the protections of the Constitution can only be effectively invoked by those who have the resources to hire a lawyer then we will have established a means test for our constitutional rights.
That will threaten the legitimacy of the Constitution which is the true foundation for the rights and liberties enshrined therein.
And that will be a very dark day for our profession, for our Constitution, and for our country.
Next: avoiding the tsunami.
Adam Dodek teaches at the University of Ottawa’s Faculty of Law. He can be reached at [email protected].
