Law Times

LAW TIMES / AUGUST 11-18, 2008 government to "accord a high priority to rendering the legal aid system more salient to middle- class citizens of Ontario (where, after all, most of the taxable ca- pacity of the province resides)." In a sense, there is nothing word, but it is clearly his un- written goal in advocating for an expansion of the system so as to seduce the middle class into using legal aid and therefore be- coming its big supporter. As medicare devotees long ago learned, once you corral the middle class into believing they are getting something for nothing from government, they become less resistant to pay- ing the whopping tax increases required to sustain such "free" systems — and more reluctant to constrain them. In Trebilcock's words: "With- out engaging the [middle-class] more fully as beneficiaries of the system, it is probably unrealistic to expect them to be engaged, at least to a greater extent than at present, as financial underwrit- ers of the system." He has nice things to say about the United Kingdom's Citizens Advice Bureaus, which are part of a legal aid regime that spends $77 per capita compared to $27 per capita in Ontario, although he doesn't actually rec- ommend them for the province. But he does suggest taking flexible and multiple approaches to extending legal aid benefits, and mentions among other so- lutions creating the legal equiva- lent of the medical system's Tele- health phone service. His bottom line is legal assis- tance should preferably be provid- ed "on a non-means tested" basis. "I believe all these initiatives . . . should be explored . . . so as to broaden dramatically the range of citizens who are direct beneficiaries of the legal aid sys- tem and who, hence, are likely to be willing financial contrib- utors, as taxpayers, to its en- hancement," he wrote. He therefore calls on the Michael Trebilcock received some media attention for seeking a more widely ac- cessible justice system and upping the incomes of par- ticipating lawyers. But what was really strik- ing about the Trebilcock report — and what was under- played in media reports — is how it lays out the groundwork for what might be deemed le- galcare, the justice system equivalent of medicare. Trebilcock never uses the he Liberal govern- ment report on legal aid by law professor Legalcare not the cure T Inside Queen's Park By Derek Nelson the state and individuals. And to serve the public properly the courts need to be understand- able, efficient, and accessible. In Zuber's eyes, "economic accessibility" was key, yet the courts were increasingly re- stricted to the rich, who could pay their own way, and the poor, who could access legal aid. Two decades and two reports later (McCamus in 1996, in ad- dition to Trebilcock's), nothing has really changed. Everyone, from chief justices COMMENT Beverley McLachlin (Canada) and Warren Winkler (Ontario), continues to warn about the middle classes' financial exclu- sion from the court system. Legalcare, however it might be defined, is seen by Trebilcock and many others as the answer. But the rest of us should be inclined to be skeptical. Legalcare, if adopted, would produce the same results as medicare: an explosion in use of a "free" service with concurrent costs that couldn't be sustained, lineups and who-you-know determining who gets service rather than money, and a re- lentless extension of state power so extreme that in medicine it forbids Ontarians to make their own medical decisions (such as having an MRI). There is at least one alterna- tive, and to be fair Trebilcock touches on it, although in such convoluted prose it is hard to be sure just what he means. "A yet further strategy for rendering the legal aid system salient to the middle class in Ontario is as a decentralized system of intelligence about dysfunctions in the broader jus- tice system which, if redressed, will benefit not only legal aid recipients but all citizens of the province that engage with those aspects of the justice system." I think he means the causes of escalating legal costs should be found and fixed. Interestingly, that's what At- torney General Chris Bentley is pledged to do, in at least a partial way on the criminal court side, by reducing by 30 per cent the days and court appearances required for a case to reach conclusion. My own personal contribu- new about this ongoing desire to transform lawyers from private entrepreneurs into quasi-state employees like doctors. The 1987 Zuber report, commissioned by another Lib- eral government back in 1986, also stressed the need to see the courts as essentially a "social service." After all, the principle un- derlying the justice system is the need to have a universally accept- able means of resolving disputes within society, both disputes be- tween individuals and between tion to reducing costs would be to get Legal Aid Ontario out of the advocacy business, as in its funding of the Income Security Advocacy Centre, which is the job of elected politicians, not lawyers playing court politics. The middle class has always had a financial problem access- ing justice, but better we keep the current system and try the Bentley approach than plunge us down the statist slope of legalcare. LT Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@ rogers.com. www.lawtimesnews.com utterly wrong about an impor- tant criminal justice issue that is part of its law-and-order agenda. It has the power to do something about it but it does not, electing to pursue a route of rhetoric in lieu of one of action and con- frontation. The court's deci- sion stands. The govern- ment presses forward with its law-and-order agenda. Welcome to the post-not- withstanding world. In May, in R. v. D.B. (2008 SCC 25), the Su- preme Court struck down provisions of the Youth Crimi- nal Justice Act that create the presumption that youths over 14 years of age who are charged with serious violent crimes be tried and sentenced as adults, and that their identities not be protected from publication. The court split 5-4 on the issue, and its decision revealed deep and legitimate divisions about the relationship between courts and legislatures, and about the ap- propriate level of deference on important public policy issues. In short, this was clearly a case where reasonable judges, reason- able legislators, and reasonable persons could disagree. The government's response was as swift as it was toothless. On the same day that the court released its decision, Minister of Justice and Attorney General Robert Nicholson took the un- usual move of releasing a writ- ten statement expressing his disappointment with the deci- sion "and its implications for the youth criminal justice system." Nicholson then expressly took note of the dissenting opinion of the four justices "which defend- ed Parliament's ability to balance the appropriate treatment of young offenders with the public interest in safety." (See http://can- ada.justice.gc.ca/eng/news-nouv/ nr-cp/2008/doc_32255.html.) Nicholson then noted that he had recently introduced legisla- tion to strengthen the YCJA, that he was conducting a review of the YCJA, and that his gov- ernment would press forward with its policy goals of holding young offenders accountable for their criminal conduct. In short, Nicholson clearly thought the court was wrong and planned to press forward with the govern- ment's policy agenda. It is only a bit surprising that T he federal government believes the Supreme Court of Canada was Notwithstanding notwithstanding no discussion of the possibility of invoking the notwithstanding clause was raised. On its face, R. v. D.B is a perfect case to con- sider the legislative override: the court was badly split over an is- sue of fundamental importance to one of the government's cen- tral policies. Given the level of the rhetoric from the minister of justice, one might have expected Second Opinion By Adam Dodek that consideration of s. 33 would have been raised. But it was not, because the notwithstanding clause has become so politically illegitimate that a minority Con- servative government was not prepared to even moot the issue. If the situation was reversed, and the Conservatives were in opposition, they might have tried to raise the notwithstand- ing clause to paint the govern- ment as soft on crime. But with a Conservative government, no self-respecting Liberal or New Democrat (to say the least of a Blocquiste) would be willing to have the word "notwithstand- ing" pass his or her lips. How far we have travelled since 1981. Back in November of that year, the provincial premiers, with the exception of René Levesque, struck a deal with the federal government to allow for patriation of the Constitu- tion with the Charter of Rights and Freedoms. The insertion of s. 33 — the notwithstanding clause — was one of the pric- es exacted by the recalcitrant provinces in exchange for their support, as chronicled by Roy Romanow, Howard Leeson, and John Whyte in their ap- propriately titled Canada . . . Notwithstanding: The Making of the Constitution 1976-1982, which was recently reissued upon its 25th anniversary. The title of their book was apropos the attention focused on the notwithstanding clause, which became the source of po- litical invective, and accusations that it "gutted the Charter" and the like. Its inclusion in the Charter generated a spir- ited academic debate spawn- ing titles like "Standing up for Notwithstanding," and Lor- raine Weinrib's "Learning to Live With the Override." should now be recast as "Learn- ing to Live Without the Over- ride." The use of s. 33 by the Quebec government after the Ford v. Quebec (Attorney Gen- eral) case made the override deeply unpopular in the so- called "Rest of Canada" (ROC). However, since that time, the Charter has become just as popular in Quebec as in the ROC. Twenty years later, a convention seems to have developed against its use. As Osgoode Hall's Allan Hutchinson remarked to me once, the override may be going the way of other constitutional powers such as disallowance and reservation, spent through the doctrine of desuetude, a fancy Latin term for an obsolete if not unen- forceable legal provision. As McGill's Chris Manfredi has argued, things might have been different had the first case where s. 33 was used arisen in other circumstances. Manfredi asserts that a very different po- litical context would have been created around the override if the first instance of its use had arisen with the federal govern- ment invoking it to uphold the rape-shield law after the Supreme Court's decision in R. v. Seaboyer. But this was not the case. In the last election cam- paign, then-prime minister Paul Martin attempted to seize on the notwithstanding clause's unpopularity to throw a po- litical Hail Mary during the leaders' debate in the attempt to save a flagging campaign. However, s. 33's unpopular- ity could not suffice to lift the sagging Liberal fortunes. Yet, in the topsy-turvy world that is Canadian constitutional poli- tics, maybe a promise to for- swear use of the notwithstand- ing clause will be a part of a Conservative campaign pledge next time around. After all, the Tory government has already jettisoned the override from political consideration. So the government pledges But in 2008, Weinrib's title to press forward with its crime agenda notwithstanding the Supreme Court's decision and notwithstanding the existence of s. 33 as well. LT Adam Dodek is a professor at the Faculty of Law, Common Law Section, at the University of Ottawa. He can be reached at adodek@sympatico.ca. PAGE 7

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