Expanding Horizons: Rethinking Access to Justice in Canada

Appendix B (continued)

Appendix B (continued)

From the Rule of Law to Philia

Reflections by Jacques Dufresne in connection with the Access to Justice Symposium,
organized by the Department of Justice Canada, March 2000.

As it is generally posed in public forums, the question of access to justice is a veiled commendation of the legal establishment. Why do persons subject to trial complain that they have no access to the legal establishment, and why do we want to help them, if not because we consider them to have been deprived of a valuable possession. What, exactly, is this possession, and is it as valuable as people are led to believe?

You may have noticed that I have replaced the word "justice" by "legal establishment", which covers courts, laws, rules of law, and the legal professions. When we use the word "justice" with this broad meaning, we sow confusion in peoples' minds and mislead them about the concept of justice. The legal establishment represents one way, and certainly an important one, of obtaining access to justice, but it is only one among many. The Church, the State, and society itself are also capable of playing this role.

Although citizens may not have access to the legal establishment, it, on the other hand, has access to them; it has various extensions - we are tempted to say tentacles - allowing it to infiltrate a variety of activities. It is now present in the most significant and the most intimate activities of our lives: reproduction and death. Birth certificates and wills have been around for a long time, but legal and medical experts have never before played a role more important than that of the father, in terms of artificial reproduction, and that of the family as a whole, in terms of dying in hospital. We have all noticed that, increasingly, children know their rights even before they can read or write, and that, for fear of prosecution, professors keep their office doors open. This is all evidence of the invasive nature of the legal establishment. In this matter, I would refer you to my own work (see "Justice et Droit" from "L'Encyclopédie de L'Agora", available on the Internet.)

I will provide one anecdote to remind you of the American origin of this scourge, which has now invaded Canada and will soon become a global phenomenon. Last summer, a nephew of mine was vacationing at a New Hampshire beach with his wife and their two children. While he was helping his six-year-old son build a sandcastle, an American boy of the same age suddenly appeared. Aggressive, and knowing his rights, this frontier child threatened to destroy the masterpiece. The father, raising his voice, made it clear that such an action would have consequences. This was to no avail; one swift kick and the sandcastle was destroyed. The father then approached the young vandal and, without manhandling him in any way, simply held him by the wrist, convinced that when the child's parents arrived, they would side with my nephew. In fact, the mother did arrive, but she was furious with this stranger who had dared to touch her child, an act formally prohibited under New Hampshire law. There followed an incredible police story. The security guard on the beach decided that he was out of his depth, and called in a proper police officer from the next town. After two hours of difficult negotiations, my nephew narrowly escaped an expensive court case, but was forced to apologize to the child. Is it any wonder that, with such laws and in such a climate, the courts are congested?

Apparently, therefore, the legal establishment itself is, to an extent that remains for us to determine, responsible for the demand for legal services. The criticism of such a process, whereby the institution itself creates the demand that it then proceeds to satisfy, has been well established in the case of medicine. I am referring here to Medical Nemesis by Ivan Illich, and also to the earlier works of Schipkowensky on iatrogenic illnesses. In the French-speaking world, such criticism has been a part of our great cultural tradition, and indeed of popular culture, since Molière. Knock ou le triomphe de lamédecine by Jules Romains had a 20-year run on the Paris stage in the early 20th century. In that play, a village doctor and a pharmacist, representing the medical establishment, plot together to create a large, faithful clientele for themselves. The healthy man, they proclaim, is a sick man who does not know himself.

Of course, lawyers are also castigated by dramatists, especially in La Tête des autres by Marcel Aymé. Yet, although I cannot formally prove my thesis, I believe that I can say that the legal establishment has been analysed to a much lesser extent, in terms of our particular subject of interest, than the medical establishment. As a result, we are less familiar with nomikogenic grievances than with iatrogenic illnesses. If the healthy man is a sick man who does not know himself, in our society, which has become as prone to go to court as it is to go to the doctor, the honest citizen is a criminal who does not know himself. Recently in Quebec, the reputation of a professor was forever tarnished by accusations of sexual assault made by a girl and her mother. The court exonerated the professor, a man who had held the respect of all his students for 35 years, but in vain. His reputation had been irreparably damaged.

You may object that charters of rights, as a way of artificially creating grievances, have been the subject of innumerable studies and commentaries. I would answer that the legal establishment is most often behind these criticisms, with the result that we forget that charters of rights have appeared within the context of a logic introduced by that same establishment.

The accusation that I am oversimplifying matters would be justified, if I claimed that the demand for legal services could be explained solely by the power exerted by the legal establishment. As we see for ourselves every day, this is a complex phenomenon in which the media, the public and parliaments often plan a decisive role. Out of two billion people, eight children die in a school bus accident, which is practically inevitable at some time, given the number of vehicles on the road. With the complicity of the general public, the media turn this brief news item into a tragedy that could very result in legislation forcing school bus manufacturers to turn the seats around so that they face backward.

This is how the law- and regulation-making machinery works, leading to the oft-quoted remark by the French legal scholar, Jean Carbonnier:

We scarcely see the evil before we demand a remedy; and the law is, prima facie, the instantaneous remedy. If a scandal erupts, an accident occurs, or a problem is discovered, the fault lies in shortcomings in the legislation. Just pass another law. And that is what we do. A government would have to be very brave to refuse to give public opinion this satisfaction on paper. [TR]

A few years ago, during the public debate on the bill to restrict the sale of cheese made from raw milk, I interviewed an expert on the origin of the onerous laws already existing in that sector. He explained that a number of them had been passed in haste as a result of a news item similar to the Nicolet accident, and that they were still in force owing to inertia, even though no one could see their need any more.

I therefore maintain my diagnosis from 1987: the rule of law is rapidly spreading, like cancerous cells, simultaneously invading the spheres of spontaneous sociability and morality. Some will instead say, and the distinction here is more than one of simple shades of meaning, that the rule of law fills a void left, on the one hand, by the displacement of standards of behaviour and, on the other, by the breakdown of morality. Indeed, on the one hand, public justice no longer exists as a prevention tool and, on the other, the coherence and effectiveness of the morality that could control these excesses have now largely been lost.

I could cite a number of authors in support of my diagnosis, including Jacques Grand'Maison, Guy Rocher and George Grant.

My primary purpose today, however, is not to diagnose but to remedy the situation. In my opinion, it was necessary to discuss the diagnosis, in order to make it clear that attempting to facilitate access to the legal establishment, while providing additional opportunities for litigation, is like pouring water into a bottomless barrel.

We must first attack the causes of the problem. Although, as we have just noted, the legal establishment is not the only cause of the proliferation of litigation, this does not mean that its responsibility for the problem is diminished. The legal establishment should speak out whenever a parliament prepares to pass a law for demagogic reasons. Furthermore, it should not come to this, as the legal establishment is over-represented in most governments. On the whole, there is a feeling that, owing to a kind of corporate instinct, lawyers in government do nothing that could weaken the power of the legal establishment, to which they hope to return. An eyewitness told me that when the Canadian Charter was passed, the Charter's sponsor, a government minister who was also a lawyer, informed his fellow members of the Bar of the manna from heaven that awaited them. While this was obviously a joke, you must admit that, as jokes go, it would have been more reassuring if the sponsor in question had asked his fellow lawyers to resist opportunities to enrich themselves at the expense of the social fabric.

For it is the social fabric that is at issue here. In order to deal with our fellow men in a trial situation, we must first become embittered and hardened. Before considering how to facilitate access to the legal establishment, we must find some way of removing the greatest possible number of opportunities for litigation from society itself.

To bring some organization to my ideas concerning this issue, I have designed a table, called the pyramid of justice.

Principle of Least Recourse

Pyramid of Justice - level 1: Court, level 2: Alternatives, level 3: Preventive Law, level 4: Self-Regulation

This table, in which self-regulation is of primary importance, suggests that we should apply to the law a principle similar to that of subsidiarity, which urges us to take decisions to the lowest level compatible with the nature of the issue. In justice, we should respect the principle of least recourse, similar to Hippocrates' basic principle: first, do not cause harm, primum non nocere, do not prevent nature from curing itself.

On the subject of what is referred to here as self-regulation or spontaneous justice, note first that, although such a goal appears unachievable in wealthy societies, this does not mean that it is a sign of barbarism. A claim may well be made that spontaneous justice is a sign of the highest form of civilization, and that institutionalized justice is instead the sign of a civilization so preoccupied by production and consumption of goods that its citizens have no time to devote to the single essential aspect of city life: social harmony.

This was the proposition put by the Mexican writer Gustavo Esteva at the symposium entitled "Le droit en question", organized in 1990 by L'Agora in co-operation with the "Chambre des notaires du Québec". To illustrate his point, Mr. Esteva described an incident from the working-class district of Tepito, in Mexico City. A number of foreign female parliamentarians who were visiting the district learned that a serious crime had just been committed: an adult male had raped a young girl. There was an outcry from the distinguished female visitors calling for him to be punished and made an example of by the courts. But there are no courts in Tepito. The punishment is spontaneous. In cafes and public meetings, the offender was shunned. Everyone kept his distance. However, no one saw any point in expelling him from the community to be put in prison and treated as a psychiatric case. Apart from his passion for young girls, he was an outstanding citizen. On work crews, he was always the most efficient member. Some time passed. A young girl consented to marry him. Under these conditions, the victim and her mother agreed to make their peace with him.

No discussion of spontaneous justice would be complete without referring to the Amerindian justice system. "To maintain social order, wrote Robert Vachon and N'Tsukw, the aboriginal process involves neither legislation, nor a judge's decision, nor coercion, nor physical punishment, but custom and group persuasion. The judicial process itself is designed more in terms of re-establishing the natural order than of eventually punishing the offender. This is not a formalized judgment involving a court, an actual judgment and a conviction, but an informal judgment by public opinion." [TR]

Obviously, it is impossible to artificially recreate a social fabric that would make such self-regulation possible in a wealthy society. This, however, does not justify the prohibition of self-regulation, where standards of behaviour make it still possible. Most important, this does not detract in any way from the credit of those who, understanding the dangers of institutionalization, take upon themselves the job of watching over both the roots of traditional sociability and its new growth.

Through the intelligent use of background information on attitudes, as well as fine-tuned social intervention, we can successfully identify healthy forms of sociability and create the conditions for sensible intervention, in order to either prevent litigation or encourage its resolution more quickly, humanely and fairly.

The general public and judges could also be provided with principles likely to encourage an interpretation of the law favourable to community life. For example, the principle of hospitality could be introduced. Another of my recent experience revealed the need for such a principle. We made the acquaintance of a French teenager on a work term in our region. She dreamed of spending a few days in Montreal but did not have the money to pay for a hotel room. We appealed to the hospitality of relatives and acquaintances on her behalf. They all refused, in most cases for fear of legal proceedings if there was an accident. When we see minors suing their own parents, we can certainly expect the worst in the case of a foreigner. Imagine the obstacles that arise when the person in question is disabled. The principle of hospitality that I have in mind would be such that any person who offered hospitality in good faith could only be held liable for an accident occurring in his home in extreme cases of wilful negligence. This would dissuade many a crank from commencing legal proceedings.

A few years ago, in downtown Cambridge, Massachusetts, just a stone's throw from Harvard, a park was closed to children, because liability insurance was too expensive. Shouldn't the principle of civic-mindedness apply in such cases?

A friend of mine told me that a young secretary had stolen nearly $15,000 from his business. He had proof, so that the young woman was liable to a year in prison. But she was from the neighbourhood, he had watched her grow up and knew her family well. He found a neighbourly solution. In the presence of two neighbours sworn to secrecy, the young woman admitted her theft in part. Pleased with the turn of events, her boss then agreed that she could repay that part of the theft, without interest and over a lengthy period of time, so that she could fulfil her commitments without having to steal again. My friend was well aware that an unscrupulous lawyer might have accused him of intimidating the woman in order to deny her access to justice. But the procedure was satisfactory to everyone. My friend avoided substantial legal expenses and an enormous waste of time; the young woman avoided the scandal of a criminal proceeding. Note that she scrupulously fulfilled her commitment for five years. In this type of case, the neighbourly principle should be applied.

Plato conceived of a similar solution for divorce cases. He provided for a jury that would also offer marriage counselling, with a decidedly interventionist cast. It would consist of ten men and ten women, primarily to perform the following function: if the adjudicators were able to reconcile the couple, they would be formally reconciled; "but if their souls are too much tossed with passion, they (the adjudicators) shall endeavour to find other partners"[14]. I need not remind you that Plato did not like lawyers very much. As he said, they belonged, along with sophists, in the category of those who used their power of speech to win a particular cause, whether just or unjust, in exchange for gifts. The legal profession, he concluded, should be prohibited: "Now in our state, this so-called art, whether really an art or only an experience and practice destitute of any art, ought, if possible, never to come into existence, or if existing among us… go away into another land"[15]

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