Justice Abella has published an op-ed (paywalled) in The Globe and Mail ― yes, another one. It’s being widely shared, with apparent approval, on Canadian law Twitter ― which may or may not reflect the sentiment of the profession more broadly. Justice Abella argues, in a nutshell, that the justice system is hidebound and in dire need of root-and-branch reform to be able to actually provide justice to ordinary litigants. Wanting to improve access to justice is, to be sure, a fine sentiment. However, Justice Abella’s analysis of the system’s problems ― which are real enough ― is remarkably simplistic, and she proposes no solution at all.
Justice Abella writes that the “public [has] been mad for a long, long time” about access to justice and, apparently taking the mad public’s side, wonders “why we still resolve civil disputes the way we did more than a century ago”. Her evidence for the claim that we do so is that in 1906 “Roscoe Pound criticized the civil justice system’s trials for being overly fixated on procedure, overly adversarial, too expensive, too long and too out of date”, and a claim that a an early 20th-century barrister “could, with a few hours of coaching, feel perfectly at home in today’s courtrooms. Can we say that about any other profession?”
Justice Abella attributes this situation to the fact that “the legal system … resist[s] experimenting with justice in order to find better ways to deliver it?” and keeps doing things the way it does for no other reason than “Because we’ve always done it this way”. Comprehensive reform ― not “incremental change” but “a whole new way to deliver justice to ordinary people with ordinary disputes and ordinary bank accounts” ― is necessary.
I have no courtroom experience, let alone ability to judge the public’s mood with any accuracy, so I cannot speak to the accuracy, if any, of what Justice Abella’s description of the justice system’s current state and of the popular reaction to it. I will reiterate that I do not believe that Supreme Court judges can, or should try to, channel “social values” or otherwise make themselves the purported spokespersons of the people. That’s not their job, and a good thing too, because they are supremely unqualified for it. But be that as it may, even if we grant, for argument’s sake, that Justice Abella’s descriptive claims are accurate, it is still the case that her analysis is devoid of all perspective. It considers the issue neither across time, nor in comparison with the state of affairs elsewhere in society. The resulting take is insular and unsound.
A historically informed view of the problem that Justice Abella discusses would have to acknowledge that it is very, very old. I’m no great historian, sadly, but as best I can tell access to justice and the remoteness of the courts from the common people were an issue going at least as far back as the English revolution in the 17th century. The expense and the incomprehensibility of legal proceedigns exercised Jeremy Bentham at the turn of the 19th. And then, as Justice Abella herself observes, they frustrated Roscoe pount in the early 20th, and any number of people in the 21st. People put forward various solutions too ― the puritans tried to establish courts outside London; Bentham was convinced that writing down the common law “into one great book (it need not be a very great one)” that would be “read through in churches, and put into boys’ hands, and made into exercises when they are at school” would do the trick. None of that worked.
One might of course conclude from this that the legal profession and the judiciary are, if anything, even worse than Justice Abella imagines. But isn’t the more plausible explanation for the persistence of access to justice problems that they are genuinely very difficult to solve, rather than that they are caused by laziness and obduracy? I will return to this issue shortly.
Before I do so, though, let me note that it’s simply not true that the rest of society has evolved beyond all recognition while the law has allegedly stood still. The work of academics and (perhaps even more so school teachers) looks much as it did not only 100, but 800 years ago. So does that of people in any number of other trades, if we put to one side the accumulation of technical knowledge, in the same way as Justice Abella puts to one side the evolution of substantive law. Even in medicine, to which Justice Abella appeals as an example of a forward-looking profession unafraid to “experiment with lives”, things are more complicated than she allows. The work of many specialist doctors has no doubt by transformed by all manner of gadgets. But what about that of general practitioners? Is it really so unrecognizable from a century ago?
The thing is, this is not because GPs, or chefs, or professors, are ― like lawyers ― hidebound and smug. Justice Abella simply implies that new and radically different is better, it is not clear why that should be. New can be better, but it need not be. If things are the way they are for some important reason, then ― so long as the reason is still present ― it is wise to keep them as they are, unless some weightier reason impels change.
And this brings me back to the question of why access to justice problems are genuinely difficult to solve. There is, in fact, a good ― although perhaps not a decisive ― reason for having those procedures whose existence so annoys Justice Abella. They are widely thought to promote more accurate decision-making, and they support the human dignity of the people who find themselves in front of the courts by giving them a chance to be heard and, no less importantly, to test and challenge the case that is being made against them. It is for these reasons that some or all of these procedures are required when people’s rights and obligations are being determined not by conventional courts, but by administrative decision-makers. Go back to 1906, and these tribunals often operated very differently, with no procedural safeguards to speak of. Yet this aroused criticism, and the critics prevailed; change came, partly through legislation and partly through decisions of the courts, widely celebrated now although they would have been anathema to the champions of experimentation and efficiency of the Progressive era.
In my last post I wrote about the trade-offs involved in designing administrative procedures. If procedure is good, there can be too much of a good thing. Additional procedural safeguards eventually yield little improvement in terms of more accurate or even more dignity-respecting adjudication, yet their cost, both to the taxpayer and to the parties, can become intolerable. Gerard Kennedy (whom I thank for his kind words about my post) has suggested that Justice Abella made just this point about trade-offs. But, respectfully, that’s not how I read her op-ed. There is no acknowledgment of trade-offs in Justice Abella’s argument; she does not recognize that there are reasons, beyond simple resistance to change and unwillingness to “experiment”, for the system being as it is. She blames the legal profession’s conservatism, and has no time for other considerations.
All that is not to say that there need be no reforms. My own preference, expressed since the earliest days of this blog, is for deregulating the legal profession. Justice Abella, I rather suspect, might not be on board with this particular experiment, but I would love to see it. Lack of competition is bound to make the legal system less innovative than it might be, so bringing about more of it is likely to ameliorate the problems Justice Abella is concerned about. But we should not delude ourselves about how much this, or any other, reform might accomplish. For one thing, so long as the state exists, the court system, if not the legal profession, is bound to remain a monopoly. Sure, alternative dispute resolution exists, but it is not suitable for resolving certain kinds of disputes. And, beyond that, those trade-offs, and the need for a system that provides substantive justice and procedural fairness, and not only expediency, is not going away.
Put to one side the question of whether a person who is sitting at the apex of the legal system, and has been for 16 years, who has been a judge for almost 45, who has accepted innumerable plaudits from the legal profession and academy, should really be criticizing the system as if she is not part of it. Leave it to moral philosophers. But we need not wait for their judgment to say that Justice Abella’s argument is driven by the conceit that solving the problems she identifies would be easy if only the system were less stuck in the past and more willing to try new approaches. The fact that she does not even begin to tell us what these approaches might be ― that she proposes no new idea, even one as daft as Bentham’s public readings of the not-very-great law book ― should be a hint: things aren’t as simple as she would like us to think.
There is a word for this tactic of setting up an alleged conflict of “the public” or “the people” against some obstructionist, and probably self-interested, elites standing in the way of change; of denying the difficult trade-offs that change would require; of claiming that a transformation of society, such that trade-offs can be dispensed with altogether, is around the corner if only the resolute leaders in communion with the enlightened people were in change. It’s a word that one would not have associated with Justice Abella, but one has to, given that this rhetoric is precisely what she deploys in this op-ed. The word is, of course, “populism”. In the previous op-ed, linked to at the beginning of my post, Justice Abella, denounced populism, arguing that “[m]any countries around the world … have made Faustian bargains, selling their democratic souls in exchange for populist approval.” This was, she wrote, “unconscionable.” But that was then, I suppose, and this is now.
Just as she does with the Rule of Law, alternatively disparaging and extolling it as suits the circumstances or the taste of her audience, Justice Abella can castigate populism or engage in it. One might think this is, indeed, unconscionable. But, perhaps, things are not so bad. As I wrote in commenting on that previous op-ed,
Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority.
She might simply not understand what she is doing. I’m not sure about this, but she really might. Either way, July 1, 2021, when she must at last retire from the Supreme Court, cannot come soon enough.
Double Aspect 
Is she not the ” current great dissenter” including in Vavilov? Am I correct to say she opposed certain change (s) in Vavilov? Too many of these judges speak out of both sides of their mouth. They have no commitment to justice just to their own resume
She has sat at the apex of the judicial system with the power to change it and make it better for many years. And now she rubbishes that system. What a confession of failure!
Aye aye. It is a confession of failure indeed and it is coming from a hypocrite. A petty hypocrite trying to score brownie points. What a waste!
Hmmmm…. offering negative comments to the public at large for no reason other than to be negative. Like the kid with a paint can who scrawls gibberish in some prominent place for all her friends to see, to impress them? Isn’t this called vandalism?
She has sat on the SCC for fifteen years and has not changed the rules there. The silliest? It is the only court in the country where people, even poor people, have to retain two sets of lawyers – the real lawyers and then “Ottawa agents”.
She complains about access to justice, yet has done nothing to improve access to justice on her own court. What’s the word for someone like that? Anyone?
Hypocrite.
Obviously she has not given her “benediction” to changing the legal system that she has had the power to change for many years.
It is far easier to make pleasant noises about “rule of justice” and vague ideas of “equality” rather than to do some hard thinking. Good work, Leonid. You have lots of courage. Keep up the great work.
She says arbitration and mediation doesn’t work. No data in support of that. Many arbitrators and mediators would be surprised to hear that. She has disparaged them with nothing behind it. Not a responsible thing to do.
Throwing out wrong facts. Making outrageous charges. Prof Sirota is right. It is like Trump-style populism.
Ms. Abella has taken advantage of many opportunities to get in front of audiences like this latest one at Harvard: privileged insiders who won’t challenge her. And she’s a broken record. We don’t have a copy of her full address to the Harvard audience but we have this – https://donaldbest.ca/supreme-court-of-canada-justice-rosalie-abella-speaks-on-judicial-independence-access-to-justice-and-an-angry-canadian-public/ – dating from 2011, thanks to Donald Best, and thanks to me for sharing with Mr. Best what he then wrote about here – https://donaldbest.ca/supreme-court-of-canada-justice-rosalie-abella-speaks-on-judicial-independence-access-to-justice-and-an-angry-canadian-public/ – and thanks to some anonymous person at the University College London who had the temerity to put online an image of a printed copy of that speech, which Ms. Abella did not want to share with the Canadian public.
Why not? Well just read it. In the third paragraph she cites Bach, Brahms, Prokofiev, Schoenberg and Mozart. I’ve always been a fan of what is loosely called classical music and I consider hearing the music of these composers (well not so much Schoenberg) to be an exquisite pleasure. But this sort of thing insults my intelligence.
Where did Ms. Abella get her very myopic view of the world? Part of the answer I suggest is here – http://lancasterhouse.com/boraLaskin. Scroll down there to see the gallery of Laskin Award recipients. Bernie Adell is the only one who ever said anything I would quote with approval. Vince Ready, who never earned a law degree (making him I think the sole exception) was one of the three “experts” who conceived and drafted section 13 of B.C.’s Labour Relations Code, which was enacted in 1992 and subsequently, I claim, illegally and surreptitiously amended (effective in 1997). In 1998 he signed a document, one purpose of which, I claim, was to cover up the fact that section 13 had been illegally amended. It recommended to the Minister of Labour a more extensively rewritten section 13 for presentation to the legislature. That presentation never happened, leaving the illegally amended section in place.
All of those people are perfectly comfortable with such machinations. No wonder Ms. Abella isn’t sure whether she approves of the Rule of Law or not.
One of the things she does is to put quotations from great intellectuals and celebrities in the world of arts and literature into her speeches trying to give the appearance that she is an intellectual herself or well read. The young and the naive fall for this. But anyone who knows their stuff knows she has not read or understood the people she quotes or the thoughts they express. She never puts herself in a position where she can be seriously tested on her knowledge
S’agissant de l’ancienneté du problème de l’accès à la justice, l’explication par Louis XIV de son ordonannance civile de 1667 (introduite en Nouvelle-France moyennant plusieurs adaptations) est très éclairante: https://documents.univ-toulouse.fr/150NDG/PPN092247083.pdf
I read the post and the 12 comments above before reading the Globe and Mail piece from Justice Abella. I was frankly surprised/shocked at such an outpouring of vitriol against the Justice. This is not to say that I think judges must be put on a pedestal and blindly respected. Nevertheless, them’s some pretty narsty comments above.
So anyway, then I went to read the Globe and Mail piece, expecting something quite horrendous. In fact, it doesnt come to close justifying 12 angry comments or the originating post. Not even remotely. Justice Abella’s comments are not particularly deep or incisive, but they are hardly hypocritical. They are not even that noteworthy. Just scratching the surface, if even. Maybe there is something heavier in the rest of the lecture. This excerpt is really quite unobjectionable in a Globe op-ed.
Let me be clear that I am not defending Justice A’s record or her decisions or supporting her approach to the administrative state. What I am suggesting is that the comments above are entirely out of proportion.
That says to me that there is something going on here. Why has this particular judge become a target for so much vitriol? If these identical words were spoken (and then published) by the former Chief Justice — and I suggest to you that they easily could have been — there would be no outpouring of comments or even a post.
Justice A is getting an unfair rap. Let’s think about stepping back a bit on this. She is around for another year or so. It would be nice not to have too many more of these go down between now and then. A modicum of respect would be nice.
Funnily enough, one I criticized the former Chief Justice, and I have criticized her quite harshly too ― see: https://www.nationalmagazine.ca/en-ca/articles/law/judiciary/2016/does-the-chief-justice-believe-in-(the-common)-law, https://doubleaspect.blog/2016/06/06/a-voice-of-moderation/, and https://doubleaspect.blog/2018/08/13/quis-custodiet/ ― no anonymous commenters feel the need to rush in to lecture me on respect. Justice Abella seems to be a sort of third rail, or at least her fans seem unusually excitable. I genuinely wonder why.
Well Doctor you are right about one thing. There IS something going on here.
The Globe has long been a cheerleader for the Canadian juristocracy. That’s true of most of the Canadian media. I call it idolatry. Few people who actually read that article will be able to repeat anything from it five minutes later. The broad public isn’t much interested in the judges or their thoughts, and that’s a shame. Because many of those who end up in court are shocked by what they witness and experience. I include myself. A good deal of my record is online, easily accessible (query my name in CanLII). That’s why I use my full and proper name when I speak, not an alias.
And speaking of the former Chief Justice, I have alleged that she has broken the law on two occasions, the first time as the Chair of the Canadian Judicial Council, which deliberately contravened the Judges Act when, in 2003, it created a crude gatekeeper device, in anticipation of hiring Norman Sabourin (who I believe has very recently left that post of Executive Director and Senior General Counsel). The second time was when she accepted a rather bizarre commission from the B.C. legislature – which legally required her to have a licence that she didn’t have (and no I’m not talking about a licence to practice law).
How did we end up with McLachlin as Chief Justice? Well I got some insight about that question and other matters when I found on the shelves at the Vancouver Courthouse library a document I scanned and that is online here – http://www.uncharted.ca/images/users/ssigurdur/cj_mceachern_to_lawyers_club_011995.pdf.
I suggest you read it. Maybe you will discern some of what I discerned. If you have any questions, I have some answers, though I still have questions that haven’t been answered.
She is not getting an unfair rap. She is being properly criticized for being at the top of the system with great power to influence it and now, at the end of her 45 years in that position, disparaging that system, failing to offer a single idea to fix it. What has she done to address the failings of the system? What are her ideas? These are fair questions. The word “hypocrite” does come to mind – lots of pious talk but no action and no accomplishment.
Why the sensitivity in raising questions about Justice Abella? It is like there is some sort of cult around her. She has done very little in 45 years to earn that sort of devotion. She is all form, no substance. There has been lots of talk on her part about reform and the need for reform for decades but in fact she has not reformed much. She has been a happy member of the elite for decades, writing nice things but doing very little.
Prof Sirota, please keep blowing the whistle on her excesses. It is called accountability. There’s nothing wrong with that.
Truth be told she has been a very BIG disappointment (her appointment to the SCC definitely is)
I want to use this opportunity go a little bit off topic because of something I’m currently looking at – an article in a recent issue (Vol. 97 – 2019 – no. 1) of the Canadian Bar Review titled “Loyalty, Legality and Public Sector Lawyers – https://cbr.cba.org/index.php/cbr/article/download/4510/4453/ Edgar Schmidt’s train of litigation ended just over a year ago when the SCC denied him leave to appeal the decision of the Federal Court of Appeal.
The CBR article was published in May last year. My guess is that it was already written before the final result from the SCC, but of course it wouldn’t have been published when it was if the SCC had agreed to hear the case.
I’m tempted to suggest that Mr. Schmidt was enticed to undertake this journey precisely so they could get this result. Of course I don’t believe that. The connection I see to what we’ve been discussing here is the parallel between the blind deference that Canadians are told we must have towards the juristocracy and the unquestioning loyalty – fealty to the Crown – demanded of government lawyers.