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Saturday, December 07 2019 @ 04:13 MST

The Justice You can Afford.

Canadian PoliticsIt would appear that Canada is heading to a system where you only get the justice you can afford. The Chief Justice of the Supreme Court of Canada was stating in a speech to the Canadian Bar Association. The story is from the CBC here. There apparently is an epidemic of unrepresented people in the court system, sometimes upwards of 40% of those a judge will see on any given day. The Chief Justice opined that this is seriously hindering the ability of these people to a fair hearing.

The reason most people show up without a lawyer is that they can't afford one. To go to court these days is expensive. Generally it costs about $5,000 just to get your lawyer to show up at the door, more if the trial becomes lengthy. This is beyond the reach of most Canadians, so they go without. This causes the two problems the Chief Justice pointed out, the lack of a fair hearing and a burden on the court system. It also points out a fundamental flaw with our society.

First, to look at the burden on the court system. According to the Chief Justice, unrepresented people cause a problem in the courts because the judge usually ends up having to tell the person what the law is and what procedures are available to them. This does two things. It slows down the process so that less cases can be seen in a day, as each case takes longer than it would if a trained lawyer who had this knowledge were there. It also puts the judge in a difficult position. The judge is supposed to be impartial, favoring neither side. By having to help the unrepresented person, the judge may appear to be favoring the unrepresented person's side, or by not helping, favoring the represented person's side. This creates the issue of fairness that the Chief Justice also mentioned as a problem.

If you show up in court without a lawyer, the odds are stacked against you. You probably don't have the understanding of the law that the lawyer has. You won't have the knowledge of court procedures or rules that a lawyer has either. It's a sure bet that the lawyer for the other side will have this knowledge. This puts you, as an unrepresented person, at a huge disadvantage. This is why, if they can, most people hire a lawyer to represent them. The problem is that nowadays, most people can't afford one. If you are truly poor, with an income of say less that $10,000 per year, you can get legal aid for some things, which helps, but if you make more than that, or it's something that legal aid doesn't cover, you're stuck representing yourself. This means that if I, a person or corporation of means, decide to sue you, an average Canadian, you are not likely to be able to afford to defend yourself. Even worse, if I as the corporation or person of means have wronged you, there's little chance you'll be successful in getting justice as you won't be able to afford a lawyer to help you.

This isn't to say that all is hopeless, some lawyers will work on contingency, that is they will only get paid if you win, and then the pay is a percentage of your settlement. This won't help you in a non-tort case though. If you have a probate case, or a family law case you'll be out of luck again as there would be no settlement for the lawyer to take a cut from.

Part of this is of course is that the law societies in each province set the minimum rates that lawyers can "ethically" charge their clients. There is no maximum charge of course. If you were to let the market determine this, then there would be more affordable lawyers, but then people could afford one and the richer lawyers wouldn't make as much money, so the law societies have no incentive to free up the rates or let larger numbers of lawyers into the profession (supply increase means price reduction).

This comes to what it says about our society. Our conservative leaders pay lip service to the free market when it suits them. When it makes it easier for them to stay on top, the free market is out the window. Since only rich people, who mostly are conservative and Conservative, can afford lawyers, they get the benefits of representation before the courts and can thus, buy the justice they want. The rest of us have to either find a lawyer who'll work pro-bono, which is unreasonable, or is willing to undergo disciplinary action for charging less than what the law society wants him/her to. When a the justice system in a society serves only one group of people, in our case the rich, it no longer serves the cause of justice and becomes a farce. If what the Chief Justice says is the way things are going, our justice system is in dire straits.

What solutions are there? Using economic theory we could increase the supply of lawyers (and free up what they are allowed to charge) which would reduce the price at the current level of demand. We could also reduce the current level of demand by revamping some of the systems we currently use the courts for, though this would be a tricky and difficult road to take. Either by increasing the lawyer supply or reducing the demand for their services, their fees (assuming no control by law societies) would come down ala the supply/demand curve we all remember from basic economics. This would help somewhat. There may be more solutions that are even more creative.

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