Sunday, September 08, 2013

No, of what is the judicial system afraid?

Good Day Readers:

Julie Macfarlane and her Research Assistant Sue Rice at the University of Windsor are to be applauded for what amounts to leading edge work on the Canadian Judicial System. But there are others who have come to CyberSmokeBlog's attention over the years two of whom are Vancouver-based Kari Simpson, founder of a series of highly successful internet videos (Drive for Justice/RoadKill Radio News), as well as, Chris Budgell (:"Mr. Self-Rep") a lone voice in the wilderness who for some time has been battling the broken business model that defines the Canadian Judicial Council.

Alas, lest we not forget Winnipeger and current doctoral candidate (University of California) Karyn Delichte who's been waging her own struggle as a self-rep since March of 2004 in the Family Division, Manitoba Court of Queen's Bench. Each in their own way are very creative, innovative and intelligent individuals who the judicial system would deem "laypersons" legalese for the great unwashed masses - that is to say, stakeholders and taxpayers without a voice.

Canada's Judiciary - A Classic, Textbook Study in Organizational Behaviour 101

So what's the problem? Ms Macfarlane has hit upon the magic word "culture." Every organization has one or in laypersonese, "Here's the way things get done around here boys and girls ..... or else!" It runs very, very deep making it damn near impossible to change at least in the short term. There will always be those in positions of power in whose best interests it will be to maintain the status quo.

The Lori Douglas Inquiry - Case Study of an Unmitigated Taxpayer Disaster

Is this a "public" inquiry or a process designed by lawyers, of lawyers and especially for lawyers? It has no "layerson" oversight. Why? Because it's damn near impossible to be granted standing. The only person to achieve this was complainant Alex Chapman and his lawyer Toronto-based Rocco Galati and even at that it is only partial standing..The presumption is Independent Counsel purportedly representing the public interest is omnipotent and, therefore, is incapable of screwing up. Oh yeah?

At last month's Canadian Bar Association's Conference Chief Justice Beverley McLachlin in discussing the Canadian Judicial Council noted, "This is a systemic review that any organization that's responsible would carry on from time to time."

Then a little later, she anticipated the review would include consultations with stakeholders taking at least a year. Will taxpaying laypersons qualify as stakeholders?

No doubt this announcement was occasioned by the Lori Doublas fiasco although Chief Justice McLachlin would like you to believe such is a regular review organizations undertake from time to time. Is this the first since the last millenium?

The NSRLP - What's next?

While the National Self-Represented Litigants Project certainly has merit, hopefully, given time it will bring self-reps currently scattered across the countryside together in one unified voice. Too bad the NSRLP won't be in place in time to request intervenor standing for the upcoming CJC review. In the meantime, it's chip ... chip ... chip away self-reps.

Sincerely,
Clare L. Pieuk

Public Participation and User Input into Justice System Reform - What Are We Afraid of?

September 7, 2013 by drjuliemacfarlane
Dr. Julie Macfarlane

Throughout this summer, Sue and I have continued to receive daily emails from self-reps, as well as constant enquiries from system professionals – librarians, policymakers, regulators, advocates – about the Research Report of the SRL Project (http://www.representing-yourself.com/PDF/reportM15.pdf).

It became quickly obvious that in the wake of the original study, there is a role for a national clearinghouse for information and data both about and for SRLs’, as well as a convener for continuing collaboration and dialogue. This will be our work over the coming year – the National Self-Represented Litigants Project  (NSRLP) (www.representing-yourself.com – check out our revamped website) will be officially (re)launched on September 17th.

Over the past few months we have established some important working relationships with dedicated people in the justice system, and appreciate their work and their support for NSRLP. We have also been riding the wave of reactions to the Study results and the Dialogue Event all summer long. These have ranged from strong public affirmation (as Carol Goar at the Toronto Star put it in an email to me following the publication of her columns, “I received an avalanche of email reinforcing your findings”) – to some significant professional backlash (“you are an embarrassment to the profession” – audience feedback from a conference presentation).

We should not be surprised about the defensiveness of some parts of the legal profession when presented with the views of system users (see “Legitimate public concern or lawyer-bashing?”

http://drjuliemacfarlane.wordpress.com/2013/07/03/legitimate-public-concern-or-lawyer-bashing/). The historical record of the justice system on public consultation is an embarrassment.  Over many decades, members of the legal profession and the judiciary have convinced themselves that the opinion of a “non-lawyer” (which other profession has a special name for people who are not like them?) is worthless/ irrelevant/ sweet, but immaterial.

Such is our unfamiliarity and discomfort with consulting with “non-lawyers” that collaboration with “non-lawyer justice system professionals” (para-legals, social agencies, legal information services) is now frequently regarded as a BIG STEP. Such  collaboration is very important, and we applaud efforts underway across Canada to bring non-lawyer professionals into the discussion, often led by the professional regulator.

However, if including non-lawyer professionals is a big step, expanding consultation to include non-lawyers who are “only” system users remains a RADICAL PROPOSITION in many quarters (with a few important exceptions).

There is an abiding belief that legal experts should not be touched or affected by the opinions of the public, who are, after all, not lawyers. This belief has fuelled the development of a culture of entitlement and privilege among some justice system actors about their responsibility to explain themselves and their system to the public. As a consequence, public skepticism about the accountability of lawyers and judges is as low as it is possible to imagine.

We know from the research study (http://www.representing-yourself.com/PDF/reportM15.pdf) that lay members of the public have enormous respect for legal knowledge, and most recognize that they do not possess the experience to take on a lawyering role. They are ready to pay for the expertise of lawyers who will listen to them and help them. But they are also perplexed to find that their opinions – sometimes after months or even years of painful self-education and self-representation – are regarded as irrelevant, embarrassing and even obstructive. The constant theme in the data was “just respect us.”

No one is suggesting that the public should rewrite the justice system (not even the public). All that they – and now we – are saying is that they should at least be able to be a part of this debate (“just respect us”).
The work that we shall undertake in the next 12 months will focus on enhancing the input of system users into justice system reform. We are already running a Speaker’s Bank which matches requests for SRL conference speakers, class guests, working group participants, to SRL’s with whom we have worked and whose information we keep in our (constantly expanding) Project Database. We are very encouraged by the steps taken this summer by some organizations to include SRL’s in the debate over justice system reform. We shall continue to advocate for including the voice of SRL’s on new Access to Justice initiatives in government, law societies, Legal Aid Boards and more.

We welcome the support of everyone, both inside and outside the justice system, to help change the culture around public participation and user input. We shall need all the commitment and smarts we can bring together to change our dismal record on public consultation on justice system reform.

Julie

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