Int the Future: Cnfirming Our Cmmn Visin Fllwing Part I f the Int the Future cnference in May f this year it was clear that the findings f the 1996 Systems f Civil Justice Task Frce Reprt have been widely accepted, and that many f the recmmendatins made in that reprt have been implemented by varius Canadian jurisdictins. It was equally clear hwever that the fundamental prblems described in the Reprt - cst, delay and cmplexity inhibiting access t justice - have nt been reslved, and they remain fr virtually all jurisdictins, serius and pressing cncerns. This dcument is written in anticipatin f Part II f the Int the Future cnference, in rder t prvide a pint f departure fr a discussin abut civil justice refrm amng representatives frm all f the sectrs and jurisdictins f ur justice system. The Canadian Frum n Civil Justice ( the Frum ) hpes that Canadian jurisdictins can wrk tgether t articulate a cmmn visin fr the civil justice system and t create a strnger vice fr refrm within every prvince and territry. 1. VISION We need t begin with a shared understanding f cncepts and terms, if we are t be sure that we share a cmmn visin fr refrming the civil justice system. At the mst basic level, the civil justice system exists t prvide peple with access t knwledge abut their rights, and if necessary t a means f enfrcing them. 1 This tw-fld purpse underlines that while the system includes the frmal dispute reslutin functin available in ur curts, it is als a surce f infrmatin abut rights and respnsibilities f individuals, businesses and gvernment. This knwledge gives individuals and businesses the cnfidence t enter int persnal and business relatinships, and infrms their expectatins when disputes arise. [T]he backdrp f nrms and principles develped thrugh the curts allw peple t reslve prblems in what Mnkin and Krnhauser famusly termed the shadw f the law. 2 In this way the system plays a fundamental rle in ur sciety, quite apart frm when it is turned t fr frmal assistance in reslving disputes. While many questin whether the civil justice system is really a system in the way that we cnceive f the criminal justice system 3, we will use the term civil justice system bradly t include all f the institutins and prcesses, 1 The Civil Justice System in Sctland A case fr Review? The Final Reprt f the Civil Justice Advisry Grup, Scttish Cnsumer Cuncil, Nvember 2005 at page 21. Available nline at www.sctcnsumer.rg.uk. 2 As reprted in The Future f Civil Justice: Culture, Cmmunicatin and Change, Prfessr Pasce Pleasence, Presentatin Ntes frm Int the Future, Part I. Available nline at: http://www.cfcjfcjc.rg/intthefuture-verslefutur/securedcse/securedcse.htm. 1
judicial and extrajudicial, legal and extralegal that participate in handling civil disputes. This is cnsistent with the apprach f CBA Systems f Civil Justice Task Frce Reprt 4, which cnsidered the administratin f the curts, rules f curt, the legal prfessin, the judiciary, methds f dispute reslutin, public legal educatin and infrmatin, legal educatin, cntinuing legal educatin, curt technlgies, and statistics. In cmmunicatins with the public, the Canadian Frum n Civil Justice has defined the civil justice system as including nt nly the curt system, but thse wrking in the curt system and service prviders utside f but integral t the curt system. 5 Refrm means t make changes fr imprvement. The imprvements we seek were described in the Systems f Civil Justice Task Frce Reprt as making the system mre understandable, accessible, affrdable and timely. The reprt further described its visin fr the 21st century civil justice system as: respnsive t the needs f users and encurages and values public invlvement, prviding many ptins t litigants fr dispute reslutin, resting within a framewrk managed by the curts, and prviding an incentive structure that rewards early settlement and results in trials being a mechanism f valued but last resrt fr determining disputes. The CBA made it clear that t attain this visin, civil justice systems must cntinue t be based n the fundatinal principles that have guided them fr s lng: the rule f law; the independence f the judiciary and the bar; substantive and prcedural fairness. 3 Fr example, see Genn, Hazel Slving Civil Justice Prblems. What Might Be Best?, a paper presented t the Scttish Cnsumer Cuncil Seminar n Civil Justice, January 19, 2005 at page 1. Available nline at www.sctcnsumer.rg.uk. 4 See: Task Frce n Systems f Civil Justice, Reprt f the Canadian Bar Assciatin Task Frce n Systems f Civil Justice (Ottawa: The Assciatin, 1996), nline: Canadian Bar Assciatin http://www.cba.rg/cba/cbareprts/pdf/systemscivil tfreprt.pdf. 5 As explained at page 10 f Learning frm Experiences t Find Practices that Wrk, May 2006, Barbara Billingsley, Diana Lwe and Mary Strattn, ur researchers in the Civil Justice System & the Public prject explained t public participants that by civil justice we dn t mean the criminal curts. We mean the curts that deal with cases like family law, child welfare, injuries frm accidents, prperty disputes and wills and estates. By system we include everyne wh has a rle in civil curt prceedings, such as judges, lawyers, ther peple wh wrk at the curthuse, native and ther supprt wrkers, services such as Legal Aid, gvernment and public legal educatin grups. Available nline at www.cfcjfcjc.rg/dcs/cjsplearningfrmexperiences.pdf. 2
2. DIRECTION FOR REFORM The primary Canadian study n refrm f the civil justice systems was cnducted by the Canadian Bar Assciatin in 1995-1996 and their Systems f Civil Justice Task Frce. 6 That Reprt included recmmendatins fr imprving the civil justice systems, and cntinues t guide civil justice refrm initiatives in Canada. The Canadian Frum n Civil Justice has cnducted a series f surveys in the spring and summer f 2006 t bth fllw-up n the prgress f refrm initiatives since the CBA Task Frce Reprt was released, and t seek input n whether the recmmendatins in the Task Frce Reprt cntinue t be relevant in 2006 and beynd. The results f these surveys will be released at the Int the Future cnference in December 2006 and will cnfirm that there is cntinued and wide supprt fr the directin that was riginally set by the CBA Task Frce. a) Prgress t date Relying upn the recmmendatins f the 1996 Systems f Civil Justice Task Frce Reprt and ther similar reprts, Canadian jurisdictins have respnded t these cncerns by develping a variety f innvative plicies, prcedures and prgrams: dispute preventin and pre-actin prtcls: using planning t either avid disputes entirely r reslve r narrw disputes thrugh pre-litigatin prcedures including planning, plain language, legal educatin, preventive law and systems design; mediatin and ADR: expanding the use f nnbinding, cnsensual, dispute reslutin prcesses as early as pssible in the life f a dispute; prcedural refrm: streamlining curt rules and making curt frms and curt prcesses simpler and mre efficient. Principles emplyed here include matching (ensuring that the particular prcess emplyed will be designed t fit the needs f the particular case and the particular parties) and prprtinality (the amunt f prcess used will be prprtinal t the value, cmplexity and imprtance f the case); increased judicial interventin: judges taking mre cntrl ver the prgress and settlement f civil cases thrugh mechanisms like case management, case flw management and judicial dispute reslutin; public legal educatin and infrmatin: making the law mre accessible by making it mre understandable (e.g. plain 6 See nte 3 abve. 3
language, self help centres and internet infrmatin). The emphasis n these prgrams is ften n frnt-end pint f entry educatin, infrmatin, rientatin and advice. technlgical innvatin: using technlgy t cntribute t the affrdability and efficiency f the curts. b) Cntinuing Prblems with Access On the 10-year anniversary f the CBA Task Frce Reprt, we need t ask urselves nt nly abut the prgress we have made, but the mre pressing questin f why it is that ntwithstanding the smetimes cnsiderable success f individual innvatins, accessibility cntinues t be a very serius prblem? 7 Just as the civil justice system is cmplex, s is the prcess f refrm. There are many pssible explanatins f the difficulty we have in making real change happen: Our traditinal ways f thinking and ur habits and biases abut hw t manage cnflict are deep-seated and hard t change. As with many systems, the civil justice system is subject t the inertia f perating the way we have always dne things, even in the face f clear evidence f unwanted effects such as delay, csts and lack f understanding... the desire t preserve the status qu creates barriers t substantial change in many aspects f the system. (Systems f Civil Justice Task Frce Reprt) Over the last tw r three decades curt rules have grwn significantly in length and cmplexity. Althugh there have been sme effrts t cntain it, civil prcess remains extremely cmplex and unduly expensive. I wnder whether n the whle, the expansin f discvery, the use f multiple experts, the length f crssexaminatin, the level f detail and the number f issues that nw characterize the trial prcess have really imprved the fairness f ur hearings r f ur justice system generally. The expense and length f litigatin are being cnstantly decried by lawyers and by the public. Macphersn v. Czaban, 2002 BCCA 518(BC Curt f Appeal) T ften ur effrts at refrm are nt cmprehensive enugh and nt sufficiently fundamental. They are limited t tinkering with existing frmats r making minr mdificatins t lng established prcedures. The refrm literature in England says that the inaccessibility f the curts stems frm a lack f 7 See Appendix A fr a discussin f the cntinuing evidence f prblems in cst, delay and cmplexity. 4
effective cntrl f the wrst excesses f litigants, and prcedural rules that facilitated aggressive adversarialism. The experience in England prir t the fundamental review cnducted by the Wlf Inquiry 1994-1996 was f the limited impact f piecemeal changes t civil justice. (Hazel Genn) Resurce limitatins mean that justice systems ften lack the resurces they wuld like t have in rder t make needed imprvements. Histrical funding shrtages have resulted in lst capacity in the civil justice system, s that new funding must be apprtined nt nly t imprving the efficiency but als t regaining lst capacity. c) Public Centered Refrm While there is certainly truth in each f these suggestins, there is anther fundamental truth t which we must give serius cnsideratin. It is that while we speak abut invlving the public in the prcess f refrm and abut creating a civil justice system that is accessible fr the public, the public still tends nt t be present at the table. This means that their vices are nt heard; that we are at best presenting ur interpretatin f what the public expects frm ur justice system, and at wrst paying lip service t invlving the public while cntinuing t d the business f civil justice and civil justice refrm, just as we always have. Research ut f the Canadian Frum n Civil Justice has fund that the public finds the civil justice system alienating, intimidating and very remved frm their lives. When a dispute arises, the public des nt knw where t begin. Once they are invlved in litigatin, whether self-representing litigants, individuals, small businesses r crpratins, users f ur justice system express cncern abut nt knwing what is happening with their case. 8 The Frum als fund that the public wants alternatives t litigatin; they turn t the civil justice system fr assistance in the reslutin f their disputes, nt necessarily t g t curt. 9 In the wrds f Chief Justice Ry McMurtry f the Ontari Curt f Appeal: Parties attend lawyers with prblems they want slved, nt with prblems they want litigated. A trial is nly ne way t reslve a case, yet trial is the nly ptin ffered by the curt administered legal system. Lawyers and their clients deserve better. This will require changes n three frnts: t prcedure, t structure and t legal culture. 8 News & Views n Civil Justice Refrm, Issue 9, What des the public really want frm their lawyers and frm the justice system?, Diana Lwe, Executive Directr f the Canadian Frum n Civil Justice at p.14 & 15. Reprinted with permissin frm BarTalk - a publicatin f the Canadian Bar Assciatin, BC Branch (Octber 2005). Available nline at http://www.cfcj-fcjc.rg/publicatins-newsandviews.htm#issue9. 9 Ibid at p.15. 5
Prcedurally, access t justice shuld nt mean nly access t curts; it shuld mean access, preferably at a very early stage, t whatever prcess that will mst efficiently and fairly reslve their prblem. We can nt take a ne size fits all apprach t access t justice. We must cntinue t expand ur repertire f prcedural ptins t supprt early, cnsensual dispute reslutin. This means that when new cases cme int the system we d nt manage them as if they will g t trial; we manage them as if they will settle (as in fact all but a very small percentage will). In cnsidering refrms, we will inevitably need t ask urselves whether we have the best structures in place. If we were t begin t design the system nw, what wuld it lk like? Shuld dispute reslutin alternatives fall within the curt structure r are they better in the private realm? Shuld we cnsider specialized curts in rder t best serve the needs f ur litigants? These are real questins which are being asked by the users f ur curts, and which the system needs t listen and respnd t with the public interest at the frefrnt. 10 Culturally, it means thinking differently abut cnflict. In additin t cmpleting a rights analysis and cnsidering adversarial prcedural fr each dispute, an interest analysis and cperative appraches shuld als be cnsidered early in the life f the file, befre a cmmitment is made t the curt prcess. This prblem slving apprach requires that lawyers and judges and curt administratrs be truly cnversant nt nly with the adversarial analysis and adversarial prcesses but als with ther theries and mdels f cnflict management. We need t seek ut and include in ur research, refrm initiatives, cnsultatins and curt user cmmittees, members f the public wh have had experience in ur civil justice system and wh can infrm us abut what needs t be changed frm their perspective. While that perspective is nly ne f many that will be heard it has been missing frm the cnversatin until nw. d) Will this make a difference? The Frum advises us that, the public knws what the issues are. We need t listen. 11 By invlving the users f ur justice system in the prcess f refrm, we will be taking a significant step tward creating an accuntable and respnsive system: ne that is designed arund the needs and 10 In his keynte address at Part I f the Int the Future cnference, Assciate Chief Justice O Cnnr suggested that the market can be an indicatr f what the public is seeking in ur civil justice system, and that the public civil justice system can learn frm the private market: Messages frm the Market: What the Public Civil Justice System Can Learn frm the Private System. At pages 14-15 ACJ O Cnnr suggests that specializatin already exists in sme curts and needs t be given further cnsideratin. He clses at page 25 with the bservatin: The market is sending us clear messages. The challenge is t listen. Available nline at: http://www.cfcj-fcjc.rg/intthefuture-verslefutur/securedcse/acjcnnr-eng.pdf 11 Supra nte 8 at p.15. 6
cnvenience f clients, nt the needs and cnvenience f judges, lawyers and curt administratrs. If we can learn t truly invlve the public in the prcess f refrm and cmmit urselves t respnding t the cncerns that they express, it will make a difference. By being reminded f the imprtance f paying attentin t the first purpse f the civil justice system that f prviding the backdrp f nrms and principles f a civil and just sciety we will pay attentin t this fundamental rle that the civil justice system plays in ur sciety. We will take steps t make the system mre understandable, t ensure that the public knws what their rights and respnsibilities are, and knws hw t access the frmal civil justice system when they are unable t reslve disputes n their wn. We will feel the urgency in mving frward quickly t achieve the critical bjectives set ut in the CBA Task Frce Reprt, and underlined every day in the cncerns expressed by users and thse wh wrk in the civil justice systems alike: Enhanced access: the system must becme easier t get int and easier t use. Slving a legal prblem must be simple and understandable, fast and affrdable. A multi-ptin justice system: enhanced access des nt just mean access t curt, it includes access t ther dispute reslutin prcesses. In the wrds f the 1996 Task Frce reprt while a trial judge shuld remain the ultimate arbiter, the civil justice system must facilitate dispute reslutin utside the trial cntext. Increased public cnfidence: the public must trust that the system will be there when they need it and that it will effectively manage their cnflicts. 3. WORKING TOGETHER The Canadian Frum n Civil Justice hpes t supprt justice refrm by helping the public and the many sectrs f the justice system in every Canadian jurisdictin wrk tgether t endrse a cmmn visin fr the civil justice system. The Frum believes that the jurisdictins wrking tgether can create a strnger natinal frce fr refrm by: presenting a cmmn frnt and speaking with a single vice fr civil justice refrm. This has the ptential t clarify refrm bjectives acrss the cuntry, t put mre weight behind achieving these bjectives, and t create mre public prfile (and with that, supprt) fr a refrm agenda; sharing the csts and benefits f research, refrm strategies, evaluatins, plicy develpment, and prgram design. Enhanced cmmunicatin and crdinatin f infrmatin between jurisdictins 7
has the ptential t eliminate duplicative research, reduce csts, increase efficiency, and identify gd ideas and best practices sner; Generally, the Frum can play a central rle in achieving the shared visin fr the civil justice systems in Canada by wrking cllabratively with all f the sectrs and jurisdictins in the justice cmmunity. The Frum will help t create new knwledge t address gaps in knwledge and understanding abut the civil justice system, serve as a clearinghuse, crdinatr and facilitatr t share knwledge between jurisdictins in Canada and internatinally, t help transfrm this knwledge int successful refrms, and t encurage evaluatin f refrms. 4. MAKING THE BUSINESS CASE FOR CIVIL JUSTICE REFORM We need t be able t make the business case fr civil justice refrm, and we need t be able t describe the justice system in a language that will be mre meaningful t the public, decisin-makers and funders. Increasingly, treasury bards require justice ministries t take a business apprach in their budget prcess and are cmpelling ministries t justify funding requests with evidence f prductivity. It will be advantageus fr us t put cllective effrt int this and there are a number f specific tasks n which we can wrk cllectively, that will help us t develp a business case fr civil justice refrm: cnfirming that there is a cmmn visin fr civil justice refrm; assembling mre and better infrmatin abut the wrkings f the civil justice systems in rder t achieve infrmatin based plicy creatin and decisin-making. Part I f the Int the Future cnference identified the current lack f management data in the civil justice system. Histrically, analysis and refrm f the civil justice system has been based almst entirely n anecdtal evidence. We need hard data and better evidence: t understand what happens t cases after they enter the justice system. We knw hw many cases enter the system and we have a rugh idea that 3% t 5% prceed t trial, but we understand very little f what happens t the ther 95% in between. t be able t articulate mre clearly the impact that management f cases in the civil justice systems has n physical and health services, plice services, the educatin system and the wrkfrce. 12 12 Fr example, research dne by the Canadian Frum n Civil Justice in the Civil Justice System & the Public prject furthers ur understanding abut the scial cnsequences arising frm bth unreslved legal prblems and the prcess f attempting t reslve such prblems thrugh the curts: Scial, Ecnmic and Health Prblems Assciated with a Lack f Access t the Curts, Final Reprt t Ab Currie, Principal Researcher, Research and Statistics Divisin, Department f Justice Canada, March 2006 (unpublished). 8
By wrking tgether t develp the infrmatin and by sharing that infrmatin, the depth and quality f the insight int the system culd be that much greater. develping a Civil Justice Index, which will be bth a research tl t help us imprve ur understanding f the civil justice systems, a cmmunicatin tl, and a catalyst fr change. The index will prmte a lng verdue dialgue - thrughut the cuntry - n the imprtance f the civil justice systems in Canada. 13 evaluatin f innvative prjects has becme increasingly imprtant when vying fr funding within gvernment and with private and public funding rganizatins. It will be advantageus t develp criteria against which system changes can be measured and t set a standard against which t gauge the prgress f refrm effrts. In this way research and evaluatin frm ne jurisdictin may be mre useful in thers. prmting stakehlder "legal literacy" - the public simply des nt understand the civil justice system. The system is seen by the public almst exclusively thrugh the narrw lens f the media and further, public impressins f the criminal justice system tend t spill ver and be applied t the civil systems. We need t prvide the public with a map f ur civil justice system which will help them t better understand what their rights and respnsibilities are, t access the system when they encunter disputes that they are unable t reslve themselves, and prvide them with cnfidence that the system is there t serve their needs. This is especially imprtant t address t the extent that treasury bards tend t be surrgates fr public pinin. Nt nly is better public educatin and understanding necessary t enable the public t knw their rights and respnsibilities and t better use the justice system, but enhanced public understanding will serve as a fundatin fr public, plitical and, ultimately, financial supprt. As a result we will be mre able t prvide evidence f the impact f civil justice refrms and respnd mre readily t future pressures n the system. Fllwing these strategies will allw us t articulate and implement ur cmmn visin fr refrm t the civil justice systems as we g int the future. 13 Drawn frm parallel discussins abut the Cmpsite Learning Index which was created by the Canadian Cuncil n Learning in May 2006. Infrmatin abut the Cmpsite Learning Index is available n the CCL website at: www.ccl-cca.ca 9
Appendix A a) The imprtance f an accessible civil justice system There is much t be prud f abut ur civil justice system. It has served us well fr many decades, and in many respects it cntinues t functin effectively. Hwever, it has becme clear that a large segment f the public cannt affrd t litigate, and that thse wh can frequently find that the cst f litigating is disprprtinate t the value f the issues invlved. It is aximatic that a fair, effective and accessible civil justice system is essential t the peaceful rdering and the scial and ecnmic well being f ur sciety. In well functining liberal demcracies accessible institutins f bth public and private gvernance are the fundatin f civil sciety. In the public sphere, the underlying ratinale fr universal suffrage and demcratic practice is, ultimately, an access t justice ratinale. Prfessr Rd Macdnald (2003) b) Inaccessibility: cst, delay and cmplexity Over the last 10 r 15 years prblems f accessibility in the civil justice system have been well dcumented and the need fr change has been well articulated. Reprts ut f several Canadian jurisdictins tell us that: citizens cannt access the civil justice system because it is t expensive, takes t lng, and is t cmplicated; as a cnsequence f the grwing inaccessibility f the civil curts, the credibility f the system and public cnfidence in the system are in decline. Evidence f prblems in the civil justice systems includes: decrease in civil filings; decrease in trials; increase in the length f trials; increase in self represented litigants; and increase in levels f public dissatisfactin. These prblems are cmmn t civil justice systems everywhere: The issues f cst, timeliness, efficiency and accessibility have been analyzed and cnsidered by a grwing number f law refrm bdies here and verseas. Judging frm this literature these are prblems which bedevil civil justice systems arund the wrld. Australian Law Refrm Cmmissin 1999. 1