Thursday, January 22, 2015

Law, Legislation and Liberty - Judicial Reform - Better Process

The Canadian legal system is exemplary in many ways, in large measure because it is founded on Common Law. The challenge is that many that need access to the system are unable to afford it. It is often posited by the “system” that more funding is required, this may be partially true, I assert what is really needed is reconfiguration – process simplification, specialization and fragmentation.

You know the story, Sally, a teenage Mom by Bill has four children. Sally is smart but, has a grade ten education, Bill the quintessential dead beat Dad and leaves Sally on social assistance, and takes a good paying job up north. Bill’s banking the big bucks and Sally is subsisting with four kids in a two bedroom apartment. How does Sally get justice and Bill get held responsible? The sad truth is, too often nothing happens. Sally and the kids just remain in a very pernicious circumstance.

I had occasion to self-litigate, I have a college education, there may be sharper tools in the shack, but I can almost always get things figured out – accessing the Supreme Court of British Columbia was challenging. Deriving argument, easy, verbalizing my case, easy – negotiating process, difficult – one finds oneself always looking for the right form OR being careful to avoid putting “argument” in an affidavit. Of course there is need for systematization and standardization, but one wonders, how arcane is arcane enough. In British Columbia when Bud Smith was Attorney General, British Columbia “simplified” legal language – good bye Latin welcome plain English. This, in of itself permitted greater access to judicial process and permitted lay people to a greater degree to understand the laws that govern them. This leaves one thing un-remedied process.

No matter how simple we make process, and it should be as simple as possible, there will always be complex legal challenges that require legal professionals to execute. There are also rudimentary legal processes, like Sally’s case, that require no legal professional; these processes are able to be simplified and standardized. Granted there have been some advances in the delivery of family law, the solution always requires more funding, more lawyers on pro bono – what is really needed is a place for Sally to go with less argument and more solution.

Sally should be able to stand before a Magistrate – or perhaps a Master equivalent in the BCSC system, and tell her story. The Master should then issue the appropriate orders to have Bill tell his side of the story – then the Master can pass Judgment. The specialized Master would be up to speed on the idiosyncrasies associated with family law and rule in accord with them. In this way, all Sally has to do, is phone the BCSC family Master program and get an appointment – then show up on time with valid identification. Will some cases offer complication, yes – but the vast majority could be managed this way. The Master can be the one stop shop, the master can advise on process and give direction on collection and presentation of the facts. This would be an “entry” level judicial position or perhaps provision could be made for a “para” judge or technician that specializes in family law – thereby reducing wage requirements.

There are many areas of law that could be simplified, one realizes that there are professionals relying on the system as it is, one realizes that simplifying the system will effect redundancy – one has to manage so as to ensure that present people’s interests are cared for and society at large interests are cared for in the future.

Canada is a great country, governance is required, law is governance – we do need however, to reduce transaction cost in general to enhance regional advantage. Most importantly, Sally needs justice.  

Remember that most often these costs are financed, so in the end they could be triple the original amount - governmental transaction costs really add up, they exist everywhere - oft times they offer no added value. We need to examine this and find ways to balance the interest of service providers and society at large, in Sally's case "transaction costs" preclude even getting due process.

I neglected to point out prior, and was reminded today via commentary on the CBC, that unlike the United States, we pay house purchase transaction costs with "after tax dollars". So for argument sake, lets say interest costs take this number to $70,000, and you're in that highest tax bracket, the overall cost might reach $140,000. 

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