Dugald Christie’s Mission

by Frits Verhoeven

The tragic death of Dugald Christie on July 31, 2006 prompts me to use my first BarTalk column as B.C. Branch President to write about Dugald’s mission in life, access to justice.

In devoting himself to access to justice, especially for the poor, Dugald Christie was truly exceptional. For his work he received CBABC’s Harry Rankin QC Pro Bono award just over a month before he died.

While it may be that none of us could equal Dugald’s dedication to his cause, I hope that his untimely death will serve to remind us again about access to justice, and cause each of us to resolve to do more.

Most lawyers don’t think about access to justice issues on a regular basis. There are several reasons for this.

For one thing, we are simply too busy.

In any event, we may feel unable to do much about it. Recognizing the problem will never go away completely, we may take the same attitude as we commonly do about the poor: “they shall always be with us.” The problem appears overwhelming, and so we may resign ourselves to deciding that there’s not much we can do.

Finally, the issue is frustrating to lawyers. I doubt if any profession does as much free work as we do. Yet we get very little credit from the public for doing so, and indeed, we are usually blamed for the problem, as if we should apologize for earning a living. It is easy to turn a deaf ear to the calls for more pro bono efforts.

There are many threads to the access to justice issue. Lawyers have a role to play in all of them.

One thread is the high cost of taking matters to trial. At the recent Canadian Legal Conference in St. John’s, Newfoundland, Chief Justice of Canada Beverly McLachlin addressed the CBA Council on the topic of access to civil justice. She noted that our justice system is becoming inaccessible to ordinary Canadians. She adopted the comments of Lord Woolf, then Master of the Rolls, in his 1995 Interim Report on Access to Justice, where he said, “A system of civil justice is essential to the maintenance of a civilized society. The law itself provides the basic structure within which commerce and industry operate. It safeguards the rights of individuals, regulates their dealings with others, and enforces the duties of government…. Effective access to the enforcement of rights and the delivery of remedies depends on an accessible and effective system of civil litigation.”

Justice McLachlin asked the legal profession to consider the increasing trend for cases to be diverted out of the court system to arbitration or mediation. At the same time junior and mid-level lawyers are getting less trial experience. She asked that we consider the long-term implications on the development of the civil law if only criminal, family, and large commercial cases proceed to trial.

She wondered aloud whether the typical law firm’s fee structure had anything to do with this, and whether the legal profession could find creative ways for billing clients proportionately to the complexity and value of the proceedings, or for junior lawyers to gain needed trial experience by being permitted to take smaller files to trial at reduced rates.

Another thread is pro bono legal services. Past President Meg Shaw’s BarTalk column this past June asked whether lawyers do enough in relation to pro bono, and referred to the agencies that can assist lawyers in donating their services: Pro Bono Law of B.C. (www.pblbc.ca), the Salvation Army Pro Bono program (www.probono.ca) and Dugald Christie’s Western Canada Society to Access Justice (www.accessjustice.ca). Those who don’t have the time can donate funds.

Then there is the role of government. Canadians say they believe in a just society, and in the values expressed in the Charter of Rights and Freedoms. It is often said that these things have become central to our national identity. Yet too often government pays lip service to access to justice issues. Legal aid funding has never been adequate, and in recent decades has regressed, while politicians and the public have focused upon other priorities such as health care and education. Can we persuade Canadians that access to justice is no less important than health care and education? The CBA’s civil legal aid test case being litigated in B.C. is part of the CBA’s effort to make that point. Individual lawyers can do their part, too.

In B.C., the public suffers from the outrageous Provincial Sales Tax on legal services. A particular passion of Dugald’s was fighting this tax. That fight has been the centerpiece of the Branch’s government relations lobbying campaign for several years, and will continue to be until it is finally abolished. Every lawyer in British Columbia should be fighting this tax. Ask me how you can help!

Access to justice is not only about funding. In nearly every other province in Canada, government has eliminated or curtailed the rights of injury victims to obtain just compensation. Are other civil remedies also in jeopardy? Will medical malpractice be next? Will we get “tort reform” in B.C.? Lawyers must be vigilant in protecting our civil rights.

And access to justice doesn’t only mean access to the courts and other tribunals. Access to effective and timely legal advice and services is also crucial.

CBA’s new national President, Parker MacCarthy, QC, of Duncan, has expressed concern about the shrinking supply of young lawyers in smaller communities. The baby boom generation of lawyers is beginning to retire, and replacements are hard to find.

The astounding rise in law school tuition rates can only serve to make this situation worse. Law students graduating with enormous debts will have little choice about where to practice; they will have to take the job that pays the most, which is likely to be with a larger firm in a larger city. Is the small town lawyer going to disappear?

If lawyers in small towns become scarce or disappear, what effect will that have on access to justice for ordinary Canadians? Will the public be forced to rely on self-help, information peeled from the Internet, or grey market legal services?

The legal profession and government together need to take the steps necessary to ensure that legal advice and services are available and accessible to all Canadians, in all parts of the country.

Dugald Christie’s commitment to access to justice never wavered. He was the conscience of the legal profession. He never tired of reminding us to do our part. He was and will always remain an inspiration to us all.

Access to justice was Dugald Christie’s mission, his message, and his example.

In his memory, let’s all resolve to do more.

This article was published in the October 2006 issue of BarTalk. © 2006 The Canadian Bar Association. All rights reserved.