|
DEMOCRACY, LAW AND DUTY
"Democracy is a Great Idea, We Should Try It"1. The Democratic Problem
Both my mother and father were in the British army during World War Two, my father starting out his war with the Dunkirk evacuation and ending it with the liberation of Belgium and the Netherlands. Many other Canadians have a similar history through their parents or grandparents, and many newer Canadians have war experiences of their own.
When - as a child - we asked what WWII was all about, we were invariably pointed to 'democracy'. And that, despite the fact that many of us would march off to war even if we lived in an autocracy, made a lot of sense. Democracies are very much worth fighting for.
For most of my adulthood we didn't question the nature of democracy and it's potential for improvement. Indeed, for many the issue of it's 'improvement' was a moot issue, as we implicitly adopted the adage attributed to Churchill that 'democracy is the worst form of government, except for all the others'. By and large we never conceived of democratic 'improvement' at all. We lived in one and counted ourselves grateful for that. All political dispute went into which political party 'brand' of government we wanted, but they were all fundamentally democratic and when one lost an election they would invariably step aside gracefully and the cycle continued.
It seems that was the permanent nature of our political system, with occasional switches in political branding and muddling through otherwise.
Now, the potential for the failure of democracy, and the rise of some undefined form of autocracy, has come into public debate - even here in Canada. So the social project we call 'democracy' is now a live issue, no longer 'guaranteed' as once it seemed to be.
2. Understanding Democracy and it's Relation to the Law
But what is democracy?
Democracy - as we have known it - is all about having a say in the laws we live under, through elections. Not elections for policies, but elections for people who make those policies - not ideal but far better than the alternative.
But is that all democracy can be? How true to the underlying goals of equality can any democratic system be if the primary fruits of democracy - the laws themselves - are only available to those few amongst us who can access the law by either our knowledge, or by our wealth?
Judges will tell you that the number of non-represented litigants appearing before them is, at a minimum, a social embarrassment - and at most, a challenge to their ability to maintain the rule of law. And let's not forget that often the only alternative to litigation is acquiesence, or violence.
'Self-representation' (I hate that term, see below) in all major areas of law - civil, criminal and family - has been growing without pause for years, still is. The courts are replete with people who can't afford lawyers and who must wend their way through our desperately complex and confusing legal systems, with very limited success.
So what use is having a say in the making of our laws when the majority of us can't use them actively? Is democracy's potential exhausted by electing the people who make the laws that we live under? When democracy is threatened, is our only recourse to advocate for it's preservation and then - when that fails, to take up arms?
Plainly not, but legal reform to improve accessibility seems to be ranked as only a minor social good, much of the same magnitude as protecting an endangered species or political justice for some far-off land.
While our legal culture still speaks of bringing "the administration of justice into disrepute" as a matter of constitutional-level significance [Charter s.24(2)], our society cannot cope with the economic implications of expanding legal aid to give people access to law on any other than a crisis basis, so how seriously is the issue taken? Is lack of legal access not a form of legal system 'disrepute'? Undeniably it is.
Almost unacknowledged in this unaccessibility crisis is the massive rise of administrative law - which governs employment, residential tenancies, social assistance, human rights and much more ... growing in topical coverage every year. In administrative law government proponents pride themselves in the dubious believe that 'you don't need a lawyer here!', even though the law may be just as complex and ill-presented as conventional court law. They even have a 'poor person's civil court' - the Small Claims Court (claims under $35,000), ignoring the reality that dollar value is a poor measure of the significance of a claim when you contrast it's value for a poor person as opposed to a rich one. It's just that arithmetic allows for easier jurisdictional line-drawing.
This crisis is not surprising, for when you study the law you see that it's spread far and wide through numerous unfamiliar sources. Hundreds of desperately obtusely-written federal statutes and regulations, thousands of different provincial and territorial statutes and regulations of equal obscurity, thousands and thousands of municipal by-laws (Ontario alone has 444 municipalities), and ten of thousands of court cases where useful points of law are buried relentlessly in dense, dense text. And these legal sources are all subject to amendment every day. This is now topped off in the administrative realm by multiple ever-changing tribunal rules, interpretation guidelines, practice directives and more - it even drives lawyers spinny trying to grapple with it all (one reason why lawyers are so expensive).
Regardless of whether the crisis in democracy is about having a say in it's making, or being able to use it, democracy is plainly all about law.
3. The Only Solution?
When I speak with colleagues and friends about how to combat this democratic crisis, they are largely at a loss for suggestions. It seems that if the next election 'goes against us' that we are at a risk of it being our last. Democracy in this sense is conceived as a binary good, either we have it or we don't. If you pose the issue starkly that way, most people would say that 'no, of course not - democracy can be improved' but at the same time they would be hard-pressed to come up with practical ideas on how to do it - how to make democracy more desirable.
In terms of improving legal access for the underprivileged [commercial parties are increasingly abandoning the courts for private arbitration: Peace River Hydro Partners v. Petrowest Corp. (SCC, 2022), at para. 46], which would be such an improvement, conventional thinking does not extend much beyond legal aid and pawning people off with the second-grade 'solution' of administrative law.
Legal aid and administrative law are better than nothing, but they are really only the 'thin red line' between complete exposure of the failures of our legal and economic systems on the one hand, and our society's civil rights self-image on the other. The limits of legal aid funding can be drawn at the lines sketched out by journalists' exposure of the consequences of it's absence, or even that of enforcing constitutional requirements which the courts have dragged the province to - kicking and screaming. Peoples' 'acceptance' of administrative law's limitations are not so much tolerated, instead they are a consequence of our law's overt prohibitions on them resorting to previously ultimate court remedies - ie. they are barred by laws that make the administrative 'route' exclusive.
We have no further hope from these governmental remedies.
My view is that we must regain use of the legal systems that remain to us by not relying on the conventional (and inaccessible) lawyer-system, but by educationing and assisting parties to advance their own cases - both defensively and pro-actively.
Yes, this means nurturing and cultivating what we now call 'self-representation', though I find the very term 'self-representation' offensive. It's root, 'representation', is itself a concept of proxy - ie. conventionally the lawyer 're-presents' the litigant. So what's a self-representing litigant? - a person who has to pretend that they're their own proxy?? This is redundant nonsense - they are people asserting their own direct rights in a democracy, unencumbered by the legal profession and the systems that have grown up like weeds around what could be a thorough democratic vision. What have been called 'self-litigants' are simply 'parties' presenting their cases, be it in courts or administrative tribunals. Lawyers and paralegals should not be central to the systems, but only ancillary.
But those 'parties', who are just ourselves and our neighbours in litigation circumstances - need help. Not just help defending themselves from widespread legal aggression by those financially and knowledge-rich, but help turning the tables and achieving proactive legal capability. That means advocating for themselves and whatever disenfranchised group they belong to - be it race, gender, disability, sexual orientation, age, family status - even species and environmental-entities [see British Columbia (Attorney General) v. Council of Canadians with Disabilities (SCC, 2022)] - to name only general categories.
This is where we - as lawyers and those with quality knowledge of the law - who understand and care about thorough-going democracy, come in.
Non-lawyers and non-experts aren't stupid, not by any means - but they do need help. A fundamental part of the solution to the law accessibility problem is to simply make the information available to parties - in an organized, thorough, functional and up-to-date manner. That's what this website is all about: organized, current, functional access to legal information for lay-people.
It's true that - even equipped with such information resources - presenting parties alone won't have the advantages of experienced legal professionals in advancing their case, but neither will they suffer the critical handicap of not knowing what the hell they're doing. Achieving this goal would be a profoundly positive step in the right direction, and it can be built upon by those that follow in our footsteps.
4. A Call to Democratic Duty
If you've viewed this website before my idea of the solution will come as no surprise. The website is all about creating lay-usable, well-organized, thorough and current legal guides and making them freely available to the general public. These guides are the guts of the Isthatlegal.ca website as it stands now, and you can view them by clicking on any on the links in the header. The sidebar links contain some less-used guides, but they are more 'guides-to-be' - being comprised of current case extracts that are generated from my daily case-extracting (since 2015) of the highest Canadian and Ontario courts.
It's my view that those who know the law (which aren't only lawyers) have a social duty, just as if we were drafted to fight in the military for our democratic freedoms, to 'free the law' from it's shameful state of obscurity and make it available for every Canadian to actually use. Now that would be a substantial improvement in democracy! - everybody actually being able to use the laws that so many of us and our ancestors have fought and died for.
This is my call to others to embrace this duty, as there is only so much that I (and the few others who think this way) can do.
I've been writing, posting and maintaining guides in essential areas of Ontario and Canadian law for over 20 years now, have a recognized devotion to public legal access as a cause, and my website is the daily go-to site for a substantial readership [~1,000 sessions per weekday (at Oct 2022)]. People seems to like my 'product' [see Testimonials and Thank Yous] and I am working daily to make it even better.
If you are serious about this potential to improve democracy, are prepared to devote the time required, and produce a quality guide product within the bounds of professional responsibility I'll do what I can to support you, whether it be simple linking from this site, walking you through the writing process (within reason) or even hosting your guide/s if need be. As well, if you do it right, you may very well end up with the advantage of having the best presence, by both quality and volume, on the internet on the topic you select. That last advantage has supported me for 15 years while travelling the world, and continues now when I'm physically-limited.
If you are someone that has already produced a legal resource and want to bring it to my attention, I'm always happy to hear from you. Be warned though that I'm a critical observer, as we must be to create quality material for these purposes. And I'd be a poor advocate if I didn't expect the same critical assessment from others - so don't pull any punches, as I won't.
5. Doing It
(a) Overview
I've considered whether explaining 'my way' of legal guide writing is too self-centred (you can judge that yourself) but I think there truly is a most efficient way to create and maintain guides in the internet, and I believe it's set out here.
Anyone familiar with legal textbooks will recognize the writing style I use, that of logically-ordered topics and sub-topics with an eye to practical use in litigation. As I approach the task, my guides are little more than the reverse-engineering of statutes and regulations, appended with relevant case and a range of other useful sources appropriately located and linked - something that the internet excels at.
Writing legal guides isn't desperately difficult, but it does take a lot of time and focus at the start. Once the guide is initially written and postable, updating to keep it current requires much less work. The writing experience will hone your knowledge and skills, and a current review of topical cases will keep you on top of whatever legal field/s you choose. In short, if you weren't an 'expert' in your selected field to start with, you will be after you create and post a guide if it's done right.
I waive copyright on my work, but you don't have to. To my knowledge no one has ever copied and posted my text (likely because it's free to start with), though I have had community college teachers use it as handouts in classes.
Lastly, no one has ever sued me for the content of my website - or even threatened to do so. I have a 'Conditions of Use' requirement that may have something to do with that, but - as they've never been used (knock wood) - that's just speculation.
Below [(b-h)] is a summary step-by-step of my guide-writing method.
(b) Accumulate the Statute and Regulation Law ('Statregs')
First, accumulate all relevant full statutes and regulations. With modern internet access and the excellent provincial [https://www.ontario.ca/laws] and federal [https://www.laws-lois.justice.gc.ca/eng/acts/] statute and regulation databases - this is now possible with an ease that was impossible 30 years ago. As an example of the statutes and regulations that I cover see the 'Currency' or 'Updating' pages on most of my existing guides.
You might consider skipping this stage for legal areas that are primarily common law, but that's likely a false hope in efficiency. Even contract and tort law - those epitomies of the common law - are modified by many statutes (eg. Sale of Goods Act, Construction Act, Insurance Act, Crown Liability and Proceedings Act, Occupiers' Liability Act - to name only a few). It would be far better, and in the interests of thoroughness, to select a sub-set (or even a sub-sub-set) of these huge, huge areas - which will invariably drive you back to the statutes.
(c) Read the Entire Statregs Several Times
Your goal here is to discern the manner that the statute-authors (usually government staff lawyers, 'borrowed' legislation from another jurisdiction, or even nowadays legislation 'mills') conceived of their task. This is the true 'reverse-engineering' phase of the guide-writing, and it's this phase that the natural sub-topics of the guide start coming clear.
For instance, it's impossible to write anything thorough about Ontario Residential Tenancy Law without realizing that the topic necessitates sub-topics for tenant right, termination and eviction and above-guideline increases (AGIs) (and more). Then it's further impossible to write anything thorough with realizing that termination and eviction naturally divides into the many separate 'causes' of landlord terminations, and additionally the fewer categories of tenant terminations. In short, the more you study a legal issue, the more the sub-(and sub-sub) topics reveal themselves.
Don't skip this stage, and don't cut it short - it would be a false economy. The more time you spend on it saves you writing corrections down the road (if you catch them).
(d) Organize the Law by Sub-Topics
This is a very physical part of the writing process - even on a computer. The goal here is to take the sub-topics that you now know (if you've been honest in the 'reading the statregs' phase) are relevant, and to allocate the statreg provisions one-by-one (always labelling them by section number and original statute or regulation source) into separate sub-topic texts. You can consider these as the tentative future chapters of your finished guide product, so make sure that these new 'chapters' are easily visibly distinguishable as this phase entails lots of cut&pasting and scrolling - ie. it's easy to get 'lost' in the process.
Some statreg provisions may require two or more sub-topic allocations, it's just the nature of written legislation. Statutory definitions (usually s.1) crop up everywhere and you should set them aside to make sure that they are allocated in every sub-topic as appropriate.
But throughout the sub-topic allocation task, as is the case with all stages of guide-creation, the goal is not to lose any statreg provisions - ie. they all should be present in the finished guide (eg. all sections of the RTA from s.1 to 246 (and more with decimal additions) are present in my residential L&T guide, as I wrote it intentionally that way). Why is this necessary? - to make sure that on future statreg amendment additions or repeals you can address the changes to all the provisions, even the presently-trivial ones. It's a way of 'place-holding' to ensure thoroughness.
(e) Read the Sub-topic/Chapter Texts
By this time you may have 10-20 sub-topics, all prospective-candidates.
Read them each again. This is a repeat of the earlier all-statreg reading, with a similar goal. Your sub-topics now should reveal further smaller topical divisions which will in turn become topic-headings in your 'chapters' which allow you to write something clear and logical for the eventual reader. These smaller topics will stick in your head quite naturally.
Occasionally your initial sub-topic selection will turn out to be too-large or too-small for the task of writing a single comfortable, natural chapter - and you can add or subtract material according. That's quite natural and occurs in my writing all the time.
(f) Write
Add this point you are likely itching to write. Go ahead, remembering the textbook-style of organize, organize, organize and the fact that you're writing for the most part for party-litigants. I can't say anymore about this as it will naturally be a function of your own personality and approach to legal advocacy.
(g) Add Cases
I leave review and extracting of the court cases to last as it's so much easier to do when you've just finished the statreg writing. Court cases always fall into a handful of clarified issues that, when they concern statreg provisions, will naturally reveal common sub-topics over enough case-reviews, just as the statregs do themselves.
I recommend that you do the last five years of topical higher court cases (usually from the Supreme Court of Canada, the Ontario Court of Appeal and/or the Divisional Court), but it can vary with the topic you choose. The excellent Canlii case law database [https://www.canlii.org/en/] is the only practical source for this, everybody uses it.
After you review enough of these cases (say 50-100) you'll see what I mean. Allocate them by more narrow topics (sometimes one case will bear on two or more smaller topics) and allocate those by separate files. These files should be linked topically-appropriate to the statreg text you have already created - almost like a footnote (though not at the end of the text).
(h) Updating
You'll see in the website that all guides have an 'updating' (or 'currency') page. This is my way of recording the date currency of the statregs for users to know how current the statreg law is (in my guides 'currency' dates are noted immediately under chapter headings).
I'm shifting my entire guide collection to a new system I call 'auto-updating' that avoids the several-year periodic need to update a guide all at once. The goal here is to canvass stateg amendments weekly for all my guides and update them 'on the spot', thus avoiding them being out-of-date for any length of time.
"I listened for the echo, and I heard only praise ..."
Do it - Prove Nietzsche wrong!
Personal History
I started out in law as a paralegal, before Ontario had paralegal regulation. About 5 years after that, supported by my local success in political-legal activism (aka shit-disturbing), I applied for and was admitted to University of Toronto Law School and graduated in 1993. My view of law school was like my view of most university subjects, that you could just 'write it down' and make it available for anyone to read it (a view that the COVID crisis has just reinforced). How many hours and how many driven miles have I wasted to attend lectures that I could just have easily and more cheaply (and certainly more efficiently) read - even before the internet age.
So, throughout my career I had a sideline in doing just that (but for others), writing down areas of law that I knew and practiced in to make my knowledge available to anyone to read. I adopted an online textbook-like writing style, which sought to makes all available useful knowledge about the particular area available to non-professional readers - statutes, regulations, cases, practice tips and more. It's hugely personally fulfilling and people seems to like (and use) it regularly.
Simon Shields
03 October 2022
|
