Law Times

Law Times • February 22, 2016 Page 7 www.lawtimesnews.com COMMENT As electoral reform looms, some lessons from the past T he Liberals' talk of electoral reform has led to questions about the process to be followed before any such change is adopted. So far, the Trudeau government has opposed holding a referendum on any new proposal, while the Conservatives have declared one must be held to legitimate such an important change. Canada's historical experience with referenda has been uneasy. And that's not surprising, because the Westminster model is predicated on the idea that Par- liament, not the people directly, makes all the important decisions. That, of course, is very different from the constitutional ideas of our neighbours to the south, where many states allow citizens' groups to propose laws that will come into force if approved by a majority of voters at a ref- erendum. Similar proposals came to grief in Canada. In 1916, Manitoba passed an act that allowed 8% of the electorate who voted at the last election to demand that a law be put directly to the people in a ref- erendum. If a majority supported the law, it would become law as if the Legislature had passed it in the ordinary way. Both the Manitoba Court of Appeal and the Privy Council held the law to be unconstitu- tional, on the ground that it affected the office of lieutenant-governor by making his assent irrelevant in the case of a posi- tive result. A somewhat similar statute was passed in Alberta in 1913, but it was never directly chal- lenged in court. It was used to conduct what were, in essence, non-binding plebiscites rather than referenda on a number of occasions, before its repeal in 1958. The citizen initiative provisions of the law had never been used. A federal plebiscite was held on alcohol prohibition in 1898, but in view of the slimness of the victory (51%) and strong opposition in Quebec (more than 80%), the govern- ment did not proceed with the measure. A plebiscite on conscription in 1942 gained a higher majority, but it was also strongly opposed in Quebec (70% against). Both exercises were seen as highly damaging to national unity. Thus, when negotiations on the patria- tion of the Canadian constitution occurred in 1980 and 1981, there was little demand for a referendum to legitimate whatever the premiers might come up with. In fact, Trudeau the First had been trying in 1978 and 1979 to get legislation passed providing for consultative referen- da on constitutional questions. The Pro- gressive Conservatives under Joe Clark fought it tooth and nail, claiming that it usurped the rightful position of the prov- inces (even though the "referenda" were not binding). The bill was not passed before the election of May 1979, and Clark's win ensured that it would not be. When Trudeau won again in February 1980, however, there was no time to resurrect the bill given the imminent Que- bec referendum. Nonetheless, later in life, Trudeau regretted that he had not proceeded with a referen- dum after the nine premiers had informed him of their "deal" on Nov. 4, 1981. Polling suggested that a majority of Canadians, including a majority in Quebec, would have support- ed the package. It would have provided the democratic legitimacy the constitutional package needed, and avoided charges that Quebec had been "left out." Still, that would have been a gamble, and if a major- ity in each region of Canada had not sup- ported the package, we might not have a Charter of Rights even today. Ironically, after the failure of the Meech Lake Accord, the Mulroney government reversed course on the desirability of ref- erenda, passing legislation similar to that which the Clark government had opposed so vehemently in 1979. The resulting de- feat for the Charlottetown Accord in the 1992 referendum seemed to confirm Can- ada's negative experience with referenda (though this time, at least, Canadians in all regions found themselves united in op- position to the Accord). Returning to electoral reform, the New Zealanders accomplished it by first hold- ing an advisory referendum in 1992 ask- ing whether citizens wanted a different system from first past the post, and if so, which among four choices they preferred. Even after a strong majority (65%) chose a mixed-member proportional (MMP) sys- tem, the government held a second bind- ing referendum to confirm the results. MMP won again, though by a smaller margin. While New Zealand successfully adapted referenda to a Westminster sys- tem, it is a more homogeneous, less re- gionalized country than Canada. British Columbia named a citizens' assembly to report on electoral reform, but what works at the provincial level may not be suitable at the national level. Perhaps what the Canadian experience demonstrates most of all is that we need to develop new ways of holding national con- versations on important issues that don't necessarily lend themselves to the "up or down" vote in a referendum. LT uPhilip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode. yorku.ca. That's History Philip Girard Improving access laudable, but focus on real solutions BY JONATHAN RICHARDSON I mproving access is a phrase you'll hear bandied about a lot. Most recently, the Ontario government an- nounced it had turned its attention to improving ac- cess to the family law justice system. Justice Annemarie Bonkalo of the Ontario Court of Justice has been tasked with a review of family law service providers. As with any broad statement, it's hard to oppose the concept of improving access to justice for Ontarians. After all, isn't improving access to justice a good thing? However, as a family law practitioner, I suggest that Jus- tice Bonkalo should also be tasked with considering prac- tical solutions to improve the family law justice system. Justice Bonkalo's mandate is to review and to deter- mine what, if any, family law services could be offered by alternative service providers such as paralegals, law clerks, and law students. Her review will also consider what safeguards, if any, should be put in place to ensure the accountability of those ASPs should they ultimately be allowed to offer family law services to the public. Some of the legal services Justice Bonkalo's mandate identifies that could potentially be offered by ASPs are interviewing clients and filling out certain forms, both of which may be currently performed by ASPs. The same is true for services such as research and drafting correspondence, which ASPs also currently do. The only difference is that ASPs would now bear the final responsibility for the work product produced, as opposed to the current system wherein lawyers are ulti- mately responsible. While this review may lead to inno- vative solutions, there are more steps that could be taken to make the family law justice system more efficient and accessible to all Ontarians. For example, a review of technological solutions (such as e-filing or automated child support updates) would undoubtedly streamline processes and increase efficiency. There are other areas for improvement. All family law practitioners have experienced trials against self-represented individuals. There are many people, especially in custody and access proceedings, without the means to retain counsel. Custody and access proceedings are highly emo- tional for both parties. The involvement of an advocate provides great assistance in focusing evidence and pro- viding a trial judge with the necessary information to determine the best interests of a child. Recent funding for legal aid is of assistance, but it remains a fact that, in Ontario, anyone with a full-time minimum-wage job fails to qualify for legal aid funding. An income only slightly above minimum wage dis- qualifies individuals from receiving the assistance of duty counsel. A moderate increase in the threshold for either program would increase the availability of fund- ed services for tens of thousands of Ontarians. The courts have responded, possibly as a result of neither program providing sufficient access to legal ser- vices to Ontarians. The recent decision in Morwald-Benevides v. Bene- vides involved the trial judge appointing an amicus cur- iae — paid legal aid tariff rates by the Ministry of the At- torney General — for both the applicant and respondent. In his decision, Justice John D. Keast of the Ontario Court of Justice noted the importance of parties in a complicated family law proceeding having the assis- tance of experienced counsel. The Ministry of the Attorney General appealed Justice Keast's decision to the Superior Court of Jus- tice, which will hopefully offer guidance as to whether amicus curiae may be appointed within the context of family law proceedings. Justice Bonkalo's mandate contemplates the involve- ment of ASPs in custody and access proceedings. Custody issues, at the trial stage, require testing of both parties' evidence to determine the best interests of the children. Justice Keast, in Benevides, noted that a lopsided situa- tion (where one party has counsel and the other does not) is not of assistance to a trial judge. There is no guarantee that having an ASP involved in a custody proceeding will increase the quality of the evidence before a trial judge. The notion of an amicus, being paid at legal aid rates, to assist the court in custody proceedings where one or both parties are self-represented is a further solution worthy of consideration as a part of Justice Bonkalo's review. Practical solutions to improve the effectiveness of the family law system would also improve access to justice for Ontarians. Financial disputes require different resources from custody and access disputes, but they proceed in the same manner. Many purely financial disputes could achieve an equitable resolution with a single contested judicial appearance yet these can take months to obtain. The Ontario government's proposed system to auto- mate changes in child support is a solution that would re- move a large volume of financial matters from the current family law system. This system is yet to be implemented with no suggestion of when it may actually occur. The introduction of e-filing documents would sim- plify and streamline administrative processes, freeing up resources for more complicated proceedings. A pi- lot project such as the current e-filing project in Small Claims Court could be attempted. In my career, I have seen how complex and emotion- al family law proceedings can be. The introduction of ASPs may be of assistance to some, but they may still be too costly for others. All Ontarians should have access to timely legal advice and efficient systems to simplify and reduce the stress of a family law proceeding. It will be easy to accuse lawyers opposed to ASPs as being protectionist. Rather, family lawyers who have dealt with and experienced proceedings with self-repre- sented parties have potential solutions to make the fam- ily law justice system more easily navigated by all. Justice Bonkalo's review could involve a consideration of these practical solutions developed by the family law bar to improve access to justice. The introduction of ASPs is one potential solution. I hope that all potential solutions — even those as radi- cal as the introduction of amicus curiae to custody and access proceedings or faster judicial intervention for purely financial disputes — will be considered. My ulti- mate hope is access to the family law justice system will be improved for all. LT u Jonathan Richardson has been practising family law and civil litigation for more than nine years, including trials involving self-represented parties. The views ex- pressed are his own and do not represent those of any organization with which he is affiliated. u SPEAKER'S CORNER

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