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...Because one would hear spoken voice given the noise at this latter-day Belshazzar's feast for the proposed new rules. The greatest service to our profession, to the law and to the public is done by engaging critical faculties. The greatest disservice is to applaud efforts that appear likely to increase fraud, error and injustice. And so, a hand rises and writes on the walls of the halls of justice: "Mene, mene, tekel, parsin." (2) But what to make of it? Maybe those who are not overly entranced by the feast will read on the wall and ask what it means. Maybe someone will call for a modern-day Daniel to interpret it.
When they wish to divert attention from things they are not doing, politicians create a scapegoat and lead a charge against it. Governments in B.C. have imposed and maintained an unjust tax burdening legal services, (3) shorted funding for legal aid, (4) inflicted high charges for court filing and hearing fees, (5) burdened litigants with unreasonable costs for juries, (6) shorted staffing at registries, closed courthouses, failed to fund courthouse libraries, imposed a policy of holding onto money paid into court for weeks after orders for payment out are made and engaged in numerous other strategies and inefficiencies that delay or deny access to justice. They have a strong motivation to point the finger at others in the process. Sanctimony about encouraging lawyers to contribute more time on a pro bono basis fits in with this approach. But clearly the political branch of government does not consider it enough. The mandate of the task force that the government commissioned was to bring about "fundamental change" and "reform". (7) What started as an attack on the legal profession, however, has become an attack on our system of civil justice. (8)
OUR DUTY
The "Entre Nous" notes that new rules will be in place by January 1, 2010, and that we should not just get used to them, but should embrace them. That is akin to counselling us to avoid critical thought. Instead of looking into the eyes of Athena, goddess of wisdom, we are counselled to stare at the face of Medusa that appears on her shield.
I doubt that we will "strive collectively to make these new rules work", at least in the sense suggested. That is not the oath any of us swore. Our oath is better illustrated by reference to Henry Brougham, counsel for Queen Caroline in the adultery prosecution trumped up by George IV, when he said:
[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion. (9)
Our role is not to strive to "make rules work". If they become law, they will be entitled to the same respect we accord other laws. We are not so limited, however, as to fall into the error that the poet George Herbert mused about: "The balance distinguisheth not between gold and lead." (10) Themis, the goddess of justice, is blindfolded in modern depictions. (11) She is not supposed to be blind, particularly when procedure impacts on substance. "The form of justice, not its deed, thou willest." (12)
Our role, in advocating for clients, will be the same on January 1, 2010, as it is now, to press whatever rules are in place to serve their real master--the interests of justice. McEachern C.J.S.C. (as he then was) emphasized this in moulding discovery rules to suit the needs of a complex case: "The Rules of Court are our servants, not our masters." (13)
WHAT IS JUSTICE WORTH?
The "Entre Nous" suggests that "access to justice" is threatened by the legal profession and by the current court rules. Cost and delay are cited as impediments to "access to justice". There is, however, nothing new in the notion that delay and cost are the bane of the court process. In the 18th century, Edmund Burke complained:
Let us expostulate with these learned sages, these priests of the sacred temple of justice. Are we judges of our own property? By no means. You then, who are initiated into the mysteries of the blindfold goddess, inform me whether I have a right to eat the bread I have earned by the hazard of my life or the sweat of my brow? ... An antagonist starts up and presses me hard ... My cause,...
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