Canadian Lawyer

OP I N ION doesn't exist (even if we don't admit it). We live in a state of "cognitive dissonance" (Chief Justice Beverley McLachlin recently used this phrase in S.L. v. Commission scolaire des Chênes, so I feel comfortable with it). The ency- clopedia says, "In a state of dissonance, people may feel surprise, dread, guilt, anger, or embarrassment." But I haven't noticed any surprise, dread, guilt, anger, or embarrassment in the legal profes- sion over the access-to-justice problem. The access problem doesn't sit by itself. It is bound up in a complex web with other major systemic issues. Here are some of them: 1. In the modern age, most lawyers see the practice of law as a business rather than a profession; the Holy Grail is profit. 2. Billing by the hour, with its hid- eous incentives, fuels the flames of greed. 3. Self-regulation by lawyers has proven disastrously inadequate (it has been abandoned in the United Kingdom as part of the admirable and sweeping Clementi reforms of the legal profession and the provision of legal services). In Canada — quiet, patient, self-sat- isfied Canada — most lawyers look the other way when the access issue comes into view. But not everyone does, and it's interesting to see who is worried. Chief Justice McLachlin has frequently spo- ken about the problem. Recently she has cited the World Justice Institute's study that ranks Canada ninth out of the 12 European or American nations surveyed on access to civil justice. David Johnston, the governor general and a lawyer him- self, gave a hard-hitting speech at the 2011 annual meeting of the Canadian Bar Association in Halifax. He said, "For many today, the law is not accessible, save for large corporations and desperate people at the low end of the income scale charged with serious criminal offences. We must engage our most innovative thinking to redefine professionalism and regain our focus on serving the public." In Halifax, Johnston suggested sim- plifying legal procedures, avoiding the tort law morass of U.S. law, unbundling activities that do not require legal pro- www.CANADIAN Lawyermag.com A PRIL 2012 19 fessionals, and moving the industry standard for pro bono work to 10 per cent from the current rate of less than three per cent. These are all good ideas, but by themselves they are not enough, and I do not detect any appetite for them in the legal profession. (I wasn't at the CBA meeting, but I'm willing to bet that everyone politely applauded the gover- nor general's speech and then promptly forgot everything he had to say.) Some time ago, in these pages, I pro- posed a publicly funded universal legal insurance program ["Medicare for the jus- tice system," Canadian Lawyer, October 2007]. That, I think, would solve the prob- lem, but no one seems the slightest bit interested. It wouldn't be easy to imple- ment judicare, and to do so would be controversial, just like the establishment a half-century ago of the now-cherished Medicare system, which was initially thought unworkable and was fought bit- terly by many doctors. We'd have to solve tricky questions, like making sure the pro- gram was independent of government and uniform across the country, and deter- mining its scope. These are not easy mat- ters, but they can be figured out. Absent something like judicare, well, as someone once said, "Justice is open to all, like the Ritz Hotel." Contrast what Tommy Douglas wrote in The Making of a Socialist: "I came to believe that . . . people should be able to get whatever health services they require irrespective of their individual capacity to pay." So that's what I decided to talk about in Regina. The biggest ethical problem for lawyers of them all — the fact that most Canadians cannot use the law and legal system that we once thought belonged to all who live in this country. I'm writing this a few days before I get on the plane. I wonder what sort of reception I'll get. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. His latest book is Mighty Judgment: How the Supreme Court of Canada Runs Your Life. Visit him online at philipslayton.com. ADVISE YOUR CLIENTS ON EVERY ASPECT OF EMPLOYEE RELOCATION CANADA/U.S. RELOCATION MANUAL: IMMIGRATION, CUSTOMS, EMPLOYMENT AND TAXATION EDITED BY JACQUELINE R. BART AND AUSTIN T. 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