Medicare for the justice system

Canadian Lawyer, October 2007

Access to law is the great ethical issue facing the legal profession. Most Canadians are denied use of law and the legal system. That’s because they can’t afford the fees charged by lawyers. Economic self-interest of the legal profession stands between the people and justice.

It’s not just disaffected cranks or greedy opportunists, easily dismissed in febrile bar association press releases, who point this out. Beverley McLachlin, Chief Justice of Canada, told Toronto’s Empire Club on March 8, 2007, that “much more needs to be done if access to justice is to become a reality for ordinary Canadians.” She expressed similar sentiments, even more powerfully, in a speech to the August annual meeting of the Canadian Bar Association. Just a few days before the Empire Club gathering, another chief justice, Roy McMurtry of Ontario, was quoted in the Toronto Star as saying that access to justice is the most important issue facing the legal system. And in August, on the occasion of his retirement, Justice Gomery of the Quebec Superior Court made headlines when he courageously described the escalating cost of legal services as an alarming trend putting the justice system out of reach for everyone but the wealthy. Said Justice Gomery: “I don’t think the legal profession is giving the proper attention to the problem and it’s suicidal, the direction that we’re going now.”

What is to be done about legal fees and their bad effect on access to justice? One answer given by some lawyers is that the federal government should stop applying the GST to lawyers’ accounts (this was discussed at the recent CBA annual meeting). Many of those who advocate this solution are admirers of the late Dugald Christie, a Vancouver lawyer who provided legal services to the impoverished and fought against taxes on legal services. Mr. Christie was an exceptional individual, and the motives of his supporters are impeccable. But, eliminating the GST means that the cost of legal services will be reduced, not by lawyers lowering fees, but by government foregoing tax revenue that can be put to good use in the interests of us all. And, anyway, a reduction of six per cent doesn’t come close to doing the job.

It’s unrealistic – perhaps even unreasonable – to ask lawyers to reduce their fees voluntarily by a substantial amount. First of all, they won’t do it; to think otherwise flies in the face of everything we know about human nature. And, second, someone might ask, why should they? Why should lawyers be altruistic in a serious and special way, when no such demand is made of other occupational groups? Why should lawyers pay personally for delivery of justice to all?

We must look elsewhere for a solution to this problem. The history of Canada might be a good place to begin. A half-century ago, Tommy Douglas asked, “Do we think that the best medical care which is available is something to which people are entitled, by virtue of belonging to a civilized community?" In The Making of a Socialist, he wrote, “I came to believe that health services should not have a price tag on them, and that people should be able to get whatever health services they require irrespective of their individual capacity to pay.”

Douglas’s answer to the problem of health services was Medicare, today regarded as a defining characteristic of Canada’s advanced society. Now there is a new question: Do we think that the best legal services which are available are something to which people are entitled, by virtue of belonging to a civilized community? If we do, the answer is creation of a publicly funded universal legal insurance programme, the counterpart of Medicare. I’ll call it “Legal Access” (and invite someone to come up with a better name).

The creation and architecture of Legal Access will be contentious and complex, requiring much consultation and thought. Many lawyers will bitterly resist its introduction, as many doctors bitterly resisted the introduction of Medicare (to the point of going on strike in Saskatchewan in 1962). Many will say of publicly funded universal legal insurance that it is too difficult, too dangerous – indeed, impossible. And, certainly, there are hard questions to be answered. For example: How do we ensure that the programme is independent of the government of the day? How can we make the scheme uniform across the country? How will it be administered? How will the programme be financed?

The hardest question of all will be determining the scope of Legal Access. Medicare covers almost all medical services; legal insurance will likely be more limited. Voluntary commercial transactions for profit, such as the buying and selling of a business, should probably be outside the scheme. Routine matters – residential real estate transactions and ordinary wills, for example – may not be covered. There would have to be effective screening to exclude frivolous disputes. The exclusion from the programme of certain kinds of legal matters raises the issue of whether all lawyers, regardless of the kind of law they practise, should be required to participate in some way or other. I believe they should. None of this is easy, but it can be figured out. Canadians are good at designing complex institutions to achieve complicated public policy goals.
What is the first step? The government of Ontario should appoint a committee of wise men and women to consider the introduction of public legal insurance. The committee should consult widely and report to the government. Good ideas spread naturally.

As Tommy Douglas said in a 1970 speech in Saskatchewan, “They said you couldn’t have Medicare – it would interfere with the ‘doctor-patient relationship.’ But you people in this province demonstrated to Canada that it was possible to have Medicare. Now every province in Canada either has it or is in the process of setting it up.”