Make Justice Swift and Cheap
AG Oppal could overhaul BC's civil system if he wanted.
Themis, goddess of justice, BC Law Courts.
I say a cheer and a half for Attorney General Wally Oppal for wanting to speed up criminal cases in this province. As it stands, if a lawyer is lucky enough to land a mega trial, like Robert Pickton or the "tobacco suit," why, he's set for life. Done properly the case can be stretched out for months, hell, years -- maybe into decades. And the lolly just keeps rolling in.
But I only give Mr. Oppal a cheer and a half because his ex cathedra observations are just the stuff of windbags -- Mr. Oppal hasn't really done anything nor, more importantly, can he. The fate of criminal law is, you see, in the hands of the Federal Minister of Justice, Mr. Vic Toews. The good news is that the federal minister is one of the old-line Reform party hardliners and would likely do away with trials altogether given the chance. His idea of prison reform would be to introduce the cat-o-eight tails and then repent that he didn't go the whole nine tails.
Last week I attended our class reunion and spoke with a number of lawyers in or recently in the court system and while they might well argue with some of what I'm going to say (but not too vigorously if they've made their poke and retired), they would all agree there's a pressing need for reform of the civil law. (Alright dammit, it was 1956.)
And that's where our AG can make a difference. He won't do anything, or do very much, of course, because the legal profession will rise as one, intoning appropriate sections of the Magna Carta, the Bill of Rights and the Charter of Rights and Freedoms as they castigate a government that wants to see justice happen more quickly. Bet on it, they'll pull out all the stops because any serious reform will hit them in the pocket book and hard.
We have more lawyers in B.C. than they have in the entire country of Japan. Moreover, they somehow have come to believe that making anything less than a half a mil' a year is tantamount to penury.
Traitor to my legal tribe
Am I not a lawyer? Have I turned on my profession? The answer is yes to both counts.
I left my law practice in December 1975 when I went into the B.C. cabinet. But I'm bound to tell you I got out just in time, for it was around then that IBM took over the law offices. Before that, lawyers would keep notes of work done for clients but not with great particularity. We did a lot of pro bono, i.e. free work. I can remember three cases in particular where my client lost at trial and I took the appeal for nothing. IBM changed all this. Now the lawyer has, within easy reach, a little microphone. When I practiced, and a client called me to see how the case was going, nine times out of ten I wouldn't record that call. Now I would pick up that little mike and say, "Bloggs versus McGillicudy, phone call with client, point one." If my rights are a modest $300 an hour, that call costs one tenth of an hour, or $30, even though it only lasted 30 seconds. The time is rounded out, you see -- and never in the client's favour.
One of the nifty ways lawyers pad their little wallets thanks to you the client is by adjourning things. And every time there is an appearance in court for an adjournment or some other procedure it's more loot for your barrister. No matter that the adjournment had nothing to do with you and in fact was contrary to your wishes -- you pay. And don't forget, that adjournment took a number of ".1" phone calls to arrange! Looking up the law is an unchallengeable bit of barristerial bullshit, usually good for some 1.0s sprinkled liberally throughout the bill. Same with "conferences" and "consultations." The opportunities are virtually limitless.
Why do apparently respectable men and women do this?
It's called the partnership meeting and God help you if you don't keep your end up! The managing partner is not asking you to do better work -- if that happens too it's a nice bit of serendipity -- he wants more billed hours.
The Supreme Court Rules are a veritable treasure trove for "litigators" as they are now called. Scarcely a page goes by that doesn't provide the possibility of a way to move those numbers along. The result is simple: only the wealthy can afford the Supreme Court of B.C. God forbid that your case goes to the Court of Appeal where the cost of the required transcription of the trial, called the Appeal Book, will make you think you must have just bought a Charles Dickens first edition.
Because lawyers make so much money they have expensive digs that attract more corporate fees, which means new or expanded offices must be acquired. And on it goes.
Oppal's opening
So what does Mr. Oppal have to do with all this?
Well, he's subject to federal jurisdiction over criminal matters but not for civil cases. He can re-make the entire civil system if he chooses.
What he needs to do is not rocket science. He expands the jurisdiction of the Small Claims Division of the Provincial Court system to $500,000 unless a party can demonstrate that the case is so complicated that it must be in Supreme Court. Small Claims Court is the court with short, simple and easy to follow procedures and where a lawyer is usually considered a nuisance -- which he mostly is.
In fact there would be little need for lawyers since the law in these matters is not generally in issue -- the case turns on the facts in most cases. The B.C. Supreme Court rules would not apply. Some cases that would go into Small Claims Court (the name should be changed to Provincial Court, Civil Division) include injury claims, contracts, property disputes and civil cases in general. The only thing that Mr. Oppal must do is acknowledge that Provincial Court judges are just as smart as those in Supreme Court -- and they are. In fact they are more in touch with the people than the cloistered judicial monks that populate the higher courts.
The lawyers will bellow like bulls on the make at this suggestion. "The people want justice!" they'll say. "Why, you're going to encourage people to sue!" What they won't say, of course, is, "This will cost us lawyers a fortune."
All I'm suggesting is that those matters that don't require an experienced barrister should be taken by the people into the people's court to be handled by "people" judges with the only rules being basic ones that all would accept and understand.
But what of the claim that more people will go to court? Turn that on its head and you find the real statement is that people should be discouraged from seeking justice by the enormous costs involved and that we should continue with a system that encourages the powerful to "money whip" the less fortunate.
This reform may bring some extra cases but justice would be swift and cheap. And as a betting man I wager that we could retire half of the existing Supreme Court bench and their support systems so that the public cost of justice would drop considerably.
Let me close with this. Those people shocked and angry at how long some criminal cases take should be reminded that if they could see how long many Supreme Court cases take they would be even more shocked. There is a marvellous cartoon that illustrates my argument. It shows a cow with the plaintiff pulling on the tether and the defendant pulling the tail. Milking the cow is the lawyer.
If the Attorney General brings in this sort of reform it will be a full three cheers from this former lawyer who found honest work.
Rafe Mair writes a Monday column for The Tyee. His website is www.rafeonline.com. ![]()



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RickW
5 years ago
Comments on "Make Justice Swift and Cheap"
Regarding Vic Teows:
http://www.canada.com/ottawacitizen/news/story.html?id=0c1b3dca-544a-45d8-8ce3-f577f9cb43a6&k=99910
Seems not much has changed in the "leadership" strata (stratum?) of our society.
Are Canada's esteemed leaders throughout our history fascists at heart? Ya know, we must have "peace, order, good government" at all costs kind of thing......
DenisB
5 years ago
same reason why nothing is done about property crime. all those revolvling crooks pad the bank accounts of thousands of lawyers. And they pad government coffers with all the PST and GST and business taxes that are gerenated on replacing all that stolen stuff.
My father, who grew up in Nazi occupied Yugoslavia, believed thjat any crime more serious than a traffic ticket should be a capital crime.
Personally, I think we should go back to public floggings: put the criminals on one side of the post and the victims on the other. first, offense = 3 strokes; second 10, third 25, etc. Each new crook gets a new victim to flog them and they won't know if they get a wheelchair bound old lady or a BC Lion linebacker. This way every one gets to "participate" in the legal system and the costs would be much less.
Tom Lal
5 years ago
Some good comments Rafe however I would suggest we as a society need to take this thing further. For years in BC and to varying degrees across Canada Lawyers have had a virtual stanglehold on all things legal. I believe its time to ask the question what have they done to deserve such exculusive occupancy. And where there are small pockets of competition who gets to control the numbers? Lawyers of course. Witness Notaries for an example. In Ontario for instance if you get a traffic ticket you can hire an ex cop to assist you in court but not in Lotus Land. Years ago we had document preperation services that the Lawyers gathered around like starving homless people at a free food line. Our small claims courts once a lawyer free zone now even award costs for legal fees. IN my opinion the question is not just how to acheive greater control over the cost and time of our legal systems but indeed we need I feel to ask what and where the relevance of lawyers is within the system. Many of us have spent time and money in court rooms watching as lawyers bounce from court room to court room with conflicting times and cases and judges held up waiting as a lawyer is being payed 2 or 3 times for the same hour of work by different clients. We have seen the number of lawyers increase in family courts where minute points of law are argued and often the best interst of a child become secondary. If a family for example has had a child aprehended it is often over a year before a court even determines if they intial aprehention was justified and by that time often Judges are reluctant to return the child because the child is bonding with the new care givers. Small claims often take 18 months just to come to trial. I think its time the public was allowed to gut the sytem totally. Lets look at alternative systems. Mediation where mediators do not have to be lawyers finding other ways to rake in the dough. NIght courts to dispense Justice in a timely way. Lets look at alternative systems to settle matters legal and lets make lawyers prove thier value to our system IN Greenland where Aborginal people were able to create a legal system based on culture and the need for an alternative system the first thing gutted from it were lawyers. Perhaps its time to do the same here in Canada
Colin
5 years ago
Having watched my wife fight her way through the law society to get accredited here, my opinion of the Law Society is very low. They don’t want foreign trained lawyers coming here and “spoiling†the business. My wife came with a British law degree and 7 years working in a Commonwealth country, that degree and experience was worth little in the eyes of the Law Society. MY wife had to attend a “play court†to teach them “court skills†MY wife used to represent clients facing the death penalty and her “opponent†had been a judge and prosecutor in Germany. What a complete waste of time, the Law society wants to block people from coming in, but can’t legally discriminate, so they just make it very difficult in hopes that people will give up.
I have talked to at least 10 families from Asia who have given up on Canada, mainly because they were blocked from being able to work here, they were led to believe that their degrees and skills were valued here, but found out that they were next to worthless. These people have now moved back to India, Malaysia, Hong Kong and Singapore, they intend to tell people not to bother with Canada. All of them were decent hardworking people that wanted a chance to work and raise families. Canada is a the loser in this affair.
Alcibiades
5 years ago
It is consoling to see that Mr. Mair has apparently amended his earlier position (in re the costs of jury trials in criminal cases) that the criminal bar is the source of anything but a small proportion of the enormous and exorbitant costs of legal proceedings in this country. With respect to his current column, there is much less in it with which one can disagree.
woody
5 years ago
This remark taken from a thread from the story
If the stories in the T/C are correct today, the union it telling certain crew members not to discuss the issues with BC Ferries executives.This is on the advice of lawyers.
I can just visualize the vultures sitting on the Queen of Prince Ruperts yard arm, drool leaking from their beaks looking down, waiting to swoop down and assist a crew member to avail himself of his surplus funds,of course he’s probably foolish enough to be parted from his money.
Colin says
Colin, I sympathize with your wife’s plight, but really the last thing we require in this country are more lawyers, as we have a surplus, if they weren’t such a useless commodity we could trade them out side the country for something,or even anything, but no one wants them.
Colin
5 years ago
Woody
Frankly I think economists should be first on the list, with two lawyers you only get two opinions, but with two economists you get 3 opinons!!
Being married to a lawyer is like being in court everyday, with no appeal!!
rafe
5 years ago
I have not changed my mind on Jury trials at all ... in the vast majoriity of cases they bring something to the trial that judges don't - common sense and the real world.
My article on the Picton case was an argument that this was a special case - would anyone argue that? - and that a case such as this was an unreralistic burden to expect ordinary men and women who have jobs and families to bear for what might be years.
woody
5 years ago
Colin says
Being married to a lawyer is like being in court everyday, with no appeal!!
Well if I may suggest Colin, maybe put your self at the mercy of the Court, just maybe, you might get lucky----------------------------------------------------tonight.
G West
5 years ago
I dunno Rafe, legal precedent being what it is, I think a special ruling to eliminate the jury in the Picton trial would end up being more than a one-off thing. Once you make that kind of decision, and effectively limit the options of one accused, it would become much more likely that it would happen again and again. I think your suggestion may look appealing and appropriate in this particular instance - but it would still be a bad idea on balance.
asvelte275
5 years ago
I recall ex-Premier Glen Clark suggesting that ICBC could save tons of money by bringing in no-fault insurance. The Law Society was not amused. The Air India trial cost $120m and the Pickton trial will also be a huge expense. Unfortunately for us the taxpayers the vested interests are a juggernaut. Reining in costs will be an battle royale and I suspect unwinnable.
Colin
5 years ago
Woody
I shall throw myself onto the mercy of the court!!! LOL
Dungeness_Crab
5 years ago
ICBC has a no-fault limit already: I believe it stands at $300.00 today. If I'm not mistaken, there's a further stipulation that any collisions in a mall parking lot (ie: private property) is now an automatic 50/50 split on liability, effectively nullifying ICBC's responsibility.
Truman Green
5 years ago
G. West, you can't take Rafe seriously on these issues, eh. He just flips a coin and uses the toss to decide which side of an issue he comes down on.
Obviously, if there ever was a case which cried out for the people to be represented it is this one.
The representatives of the government--the Vancouver Police--merely sat on their hands all through the first 90% of the disappearances. We don't need another government official to decide what happened to them and who's responsible.
That's the theory behind the jury system--they represent the people. Kind of a "peer review."