ACCESS TO JUSTICE

What is Access to Justice?

Justice4you was given a book written by the late Dugald Christie, a lawyer and member of the Law Society of British Columbia.

The book is about the journey Duglad Christie made in the summer of 1998 by bicycle from Vancouver, British Columbia to the steps of the Supreme Court of Canada Courthouse in Ottawa.

Dugald referred to his trip by bike, as "a journey inside my head". Dugald wrote it was "a journey into justice."

The book is intensely personal, as it contains poetry which Dugald claims he never intended to write or publish.

His journey began at the age of 57, when he decided to ride his bicycle to Ottawa for the first time with his black robe so that he could burn them on the Court House steps of the Supreme Court of Canada. -- A sign of protest, which in the long run cost him his life.

The turning point for Dugald was when the Federal Court of Appeal of Canada had refused to dissociate itself from a statement made by another judge --Justice Muldoon-- wherein he had claimed Dugald's client, Buddy Lee, a disabled ex-dockworker, who had been fired by his employer, a "misfit".

In effect the Federal Court ended up adopting the same stand as Justice Muldoon.

Since the Judges were not going to change their minds regarding his client, Dugald advised the Federal Court that unless they dissociated themselves from Muldoon's statement that a disabled person may correctly be a called a "misfit" he would resign from the practice of law.

The three judges sitting on the case, dismissed the appeal and Justice McGuigan roundly reproached Dugald for his "threat" to resign.

Dugald appealed at the Supreme Court of Canada for his client, and leave was refused and within thirty days he handed the Law Society his resignation as a practicing lawyer -- in November 1997 --effectively ending a 30-year law career.

Within another thirty days Mr. Justice McGuigan was dead!

After burning his robe, Dugald did ride his bike back to Ottawa, to get new black robes.

After Dugald's success with the pro bono clinics, in March of 2006, the Trial Lawyers Association of B.C. honoured him for his life's work. He was introduced by the Attorney General of British Columbia and former Justice of the Court of Appeal Wally Oppal as being "every lawyer's conscience of their professional obligations". Dugald Christie upon receiving the microphone from Mr. Oppal, said,

"You represent the force of evil".

Within 4 months after having been honoured by his peers, Dugald died on July 31, 06, as a result of being tragically hit by a car en route, for the second time, by bicycle to Ottawa, delivering a Petition to Prime Minsiter Stephen Harper, calling for Reform to the Justice System. He was going to move a resolution calling on governments to ensure that those who cannot afford legal services can access the justice system. Dugald was 65 years of age---

His efforts for access for justice later went on the way side when the Supreme Court of Canada decided on May 25th, 2007 that, the Charter of Rights and Freedoms does not give impoverished litigants a blanket right to obtain legal counsel, and access to justice has its limitations.

British Columbia (Attorney General) v. Christie [2007] SCC

And recently, March 2008, in a decision, by the British Columbia Court of Appeal,'supported by Justice Peter Lowry, she [BCCA Justice Mary Saunders] quoted the Supreme Court of Canada saying there is no fundamental right to access to legal services:

"Access to legal services is fundamentally important in any free and democratic society. In some cases, it has been found essential to due process and a fair trial. But a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondent's contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law."'

The Canadian Bar Association were again defeated by a judiciary, who believes that it is not a constitutional right to have counsel, however the judicary, former advocates, now practicing behind the bench, are biased against self-represented litigants.

Had Dugald Christie been alive, the Judiciary may not have been able to make such swift decision, but now that he is dead, the topic of access to justice, and right to counsel, will soon no longer be a subject the bar and judicary will raise.

Dugald Christie born in New York, and raised in Eastern Canada, came from an affluent family. Dugald was educated in Montreal Quebec and attended Dalhousie Law School in Nova Scotia. --- He would be very sad to know that the SCC decided to overtun the decision of both the Superior Courts in British Columbia. It is an attack not only on his beliefs but on the poor and on access to justice.

Dugald Christie's pro bono clinics were all managed by him up until 2005 when he began a relationship with the Judiciary wherein Dugald's Pro-Bono clinics are now micro-managed by the Chief Justice of the Supreme Court of British Columbia Donald Brenner.

Dugald Christie was a man torn between his allegiance to the bar, to his peers within the Anglo-Saxon establishment and his allegiance to his faith. In effect Dugald who is now revered as a Saint by the bar and by the Judicary tried to persuade himself and others that he no longer exhibited tendencies of a lawyer, and when he did return to the bar, he wanted to believe he could make a difference from within, without selling his soul.

As you read on, you will learn about Dugald Christie's own conflict in respect to "access to justice".

In one of the chapters in his book entitled "Anglo-Saxon Snoring" A.S.S. Dugald basically describes an elite cult reserved for those who have adopted the English-Saxon ways. In effect, if one is a crusader for justice, than "access to justice" is not possible, in fact irregardless, one way or another, access to justice, is only for a few far in between.

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The following chapter, coming from Dugald's book, "A Journey into Justice" will give the readers an understanding of his own conflict regarding the meaning of "access to justice".

As soon as I arrived in Ottawa, I changed into a suit borrowed from my brother-in-law and spent the next week living as I had been accustomed before I quit the practice of law. I visited and dined with old friends. It was a week of bliss and old memories of my youth revisited. I cycled to my old school, Lower Canada College, in Montreal. I spent time with my sister in our old family country cottage in the Laurentians --St-Agathe-- where we had spent holidays as children. I visited old neighbours and forgotten class mates.

I had dinner with a lead reporter of the Globe and Mail whom I had known since a boy. Our families had been closely connected since the war. He is a brilliant, warm-hearted and very entertaining man. Because he is one of the most respected reporters for the country's largest newspaper I thought he would provide a heaven-sent opportunity for a column on my great crusade.

Unfortunately it was not to be. He explained with the best goodwill in the world that his paper would not print my story because it did not publish stories about people who set out to draw attention to themselves! Had I known him less well, I would have been insulted but he was simply telling me what is! It was valuable information! We had a delightful evening talking about everything under the sun but hardly a word on access to law or my crusade!

I noticed the same phenomenon that week in Montreal and Ottawa in people I used to think were just ordinary. Now that I live off Skid Row in Vancouver {out of choice} I see then quite differently. In true dimensions they are the rich and powerful! Most of them come from Anglo-Saxon stock that still runs the nation. I could see now that they form an exclusive club with membership rules and those rules are not just racial.

I love my friends dearly and I feel I am betraying them in describing some of their characteristics but I know that is not so. If I am a little rough on the Anglo-Saxon "Club" it is only because I was once a member!

The first rule of the Anglo-Saxon Club is never draw unnecessary attention to yourself. Another is to master the power of the understatement and not to exaggerate. For example, a witness who is somewhat flamboyant in his evidence and embellishes here and there dramatic effect is not going to be believed at all by an Anglo-Saxon judge.

Another qualification is not wealth but class. The Anglo-Saxon must a least meet his or her own needs. Poverty is rarely genteel and is not in. People who present themselves as frivolous (they need not actually be frivolous) are welcome to the club providing they have the other credentials. Wit of a light and breezy kind is desirable.

Anglo-Saxon Canadians must be suspicious and avoid all display of emotion, especially in themselves. On no account should an Anglo-Saxon speak in earnest for longer than is absolutely necessary. The key to all this is not to take life too seriously for two reasons: it does not pay and secondly it is highly questionable whether reality really exists! Persons on life crusades are therefore rightly to be judges harshly.

I repeatedly break every one of these rules. I draw blatant attention to myself. I love the flamboyant. I boast about my poverty {by choice}. I frequently speak in deadly earnest and am unashamedly emotional. I constantly speak and act on the faith that what I perceive and feel are reality and not just the private world of Dugald Christie. Above all I am on a life crusade! It is therefore not surprising to me that I be politely ignored by many of the conservative stock who still tend to run our nation.

It is well known that members of the legal professions, both bench and bar, have disproportionate representation from Anglo-Saxon population. "Anglo-Saxon" should be used in the broad sense to include persons of British or Northern Europe hereditary or someone who has been thoroughly assimilated by those cultures.

There have in recent years ben [sic] many well intentioned efforts to change the composition of the profession including articles highlighting the problem in law periodicals, government and large firm hiring policies and Human Rights legislation. It is now evident that all these measures have had singularly little effect on the predominance of Anglo-Saxons in positions of power in the bar and bench.

In my view the situation cuts deeper and the consequences are far more serious than in commonly supposed. The situation is made worst by an ancient shibboleth unthinkingly accepted as an eleventh commandment by the typical A.S.S. It is poor taste to discuss matters of race or culture in a partisan way! To reproach a cultural or racial group, as I do in attacking our A.S.S. hegemony, is considered simply "not in".

In order to be appointed as a judge or to become a senior partner in most larger law firm in Vancouver it is usually necessary to adopt the A.S.S characteristics. The A.S.S. phenomenon is not so much racial as cultural. Only a few non Anglo-saxons are prepared to sell the exuberance, the hauteur or whatever might be written on their cultural birthright to join the Anglo-Saxon club.

The few dark skinned lawyers that the Government managed to scrounged together from the ranks of the profession for judicial appointments have almost all, in my thirty years of experience, dropped their accent, dress and other distinguishing cultural hallmarks. If you were to speak to them on the telephone you would never know they were not of Anglo-Saxon extraction. For all intents and purposes they have been assimilated!.

One of my best friends whom I named in my will as the alternate guardian of my children was appointed a judge a few years ago. I thought to myself that although he was born in English he did not take himself too seriously and of all people would not disappear into the power club. Though I have suggested we meet several times we have never met since he was appointed! I can see why! He had to make his choice and being a judge was not consistent with keeping a friend with attitudes like mine. The club rules are strict and unyielding.

In my mind there is no way that a person who is not a politically correct A.S.S. had a chance of being appointed to our bench. They may be wonderful people, be absolutely brilliant and have a sense of humor but they must think and act like an A.S.S. If they were otherwise there might be meaningful change and the A.S.S dominance of our society would be at great risk. In my view no policies, laws or moral suasion will ever change the situation until the issues are out in the open and the bitter truth examined.

Prejudice is always clothed with articles of faith and invariably disguised behind a universal truth!

The article of faith that was Anglo-Saxon have is that there is only one correct way of thinking and that is the A.S.S. way. Its hallmarks include class consciousness, a phobia against over-statement, unquestioning loyalty to our institutions, a passion for the neat and tidy, a loathing for incomprehensible and hedonistic conviction that appearance is more important than reality.

The universal untruth to which the typical A.S.S. adheres, as do all who are incurably prejudiced, is that he or she is free of prejudiced! However, it is one of the infuriating paradoxes of life that our only chance of freeing ourselves of prejudice is to acknowledge that we are prejudiced! These are no esoteric theoretical observations. In my view they go to the root of what is wrong with our justcie system.

I once tried in court to persuade a provincial court judge of solid Anglo-Saxon stock that he should guard against the influence of prejudice in weighing the evidence of the witnesses.

I would not have been so bold but for the fact that His Honor had been visibly impressed by the evidence of the other side's witness, a loveable looking blond urchin. This child had mastered that art of under-statement and never went beyond "the facts" and could not on cross examination be drawn into giving opinions or anything other than his original story which he claimed to have seen with his own round eyes.

I had two witnesses, mother and child, who testified in a way that completely contradicted the blond urchin but unfortunately were from India with dress and accent accordingly. My thesis was that we can only attempt to deal with our own prejudices when we are aware of them. I carefully avoided suggesting to the judge that he was any different from the rest of us but that only made the situation worst.

His Honor clearly took my remarks personally and pronounced judgment that my witnesses were not to be relied on. I would be surprised if there was one moment in that judges's life when he faintly considered that he was prone to the effects of racial prejudice!

Recently I had a conversation with a senior a very well respected defense litigation lawyer on the subject of fraudulent claims. He maintained that over fifty percent of motor vehicle accident claims he saw were fraudulent and maintained that some of the worst offenders were from Eastern Europe.

I don't consider it prejudice to observe that in my experience, witnesses from certain countries in Eastern Europe are likely to report events in terms of their own experiences. It could be argued that that approach is quite sanguine. However an Anglo-Saxon is likely to see it in terms of his or her own culture and conclude that the witness is fraudulent, is a hypochondriac or a malingerer.

It is not just judges that are guilty of unwitting prejudice. An orthopedic surgeon of British ancestry once told me while waiting to be called that in his view almost all Hungarian Plaintiffs were malingerers! I have heard many lawyers speak in the same unthinking way of national groups and particularly of Eastern Europeans. I shudder to think of the cases thrown out because of such failure to consider cultural differences!

For example, a Plaintiff from Germany with typical Teutonic thoroughness carefully lists his recollections and memorizes his summary with the relevant dates. He makes sure it all fits exactly with what he is recorded as saying to the Doctor and with the police records as to measurements at the scene of the accident. At numerous meetings with his counsel he revises and reconsiders his evidence again and again...

Basically he does not remember any of this! It is all a masterful self serving tissue of hearsay! He testifies not as to what he recalls but as to what he thinks must have happened. What "seems" triumphs over what "is". For my A.S.S. friend he is the dream client, the model of honesty and integrity!

Then there is the Hungarian Plaintiff who has an honest loathing of all this reconstruction and keeps in his minds eye the memory of that terrible "accident", the oncoming car and the feelings of pain and horror that he strives to relive every day so that he may speak to the judge in honesty and dignity.......

I can now hear my A.S.S. friend making a derisive gesture of a violin being played! But that is the way that particular Hungarian thinks! In my mind he is very bit as worthy of respect as the evidence of the German. To brand him as a fraud artist is terribly unfair!

How we treat Native Indian groups both in criminal and civil law is an untold story! It is so bad that even the Supreme Court of Canada has commented on the unfair treatment of Native peoples in our criminal courts. Unfortunately, that court applied only a band-aid to remedy the situation. The root of the problem is not just the widespread indifference within the Legal professions to the fate of the poor at the hands of the law but the problem is compounded by a subtle prejudice.

Until very recently our courts have uniformly maintained that the native peoples, by an act of “conquest”, have been reduced to a subjected race. The Supreme Court of Canada’s recent decision has by no means put the matter to rest and many lawyers and judges still maintain the “conquest” position although they are too politically correct to call it that. They blame the forceful taking of Indian lands and resources on our forefathers while insisting on the right to continue to enjoy the fruits of those same conquered people’s lands and resources.

I think that approach is somewhat debatable! However what we can not do, without defying all reason and compassion, is to now impose on our native peoples a “justice” system that they cannot afford or understand. Let us at least look after our own sins made by our own generation and then perhaps we can look our native peoples in the eye and discuss aboriginal rights over a treaty table that is round and level, not a mile long and titled with the Anglo-Saxon elite at the high head of the table.

I was present at the banquet of the Nisga’s band after their treaty was signed in Terrace in the spring of 1999. There was no spirit of celebration! The grim faces of the families silently eating in that bare gymnasium spoke more eloquently that any court judgment. I think I had some insight into the reasons for the atmosphere of dignified despair that I could feel all around me. The issues go far beyond the price of “Indian” land as is supposed by the general public.

One of the many Native People’s problems is that of the forced separation of mothers from their infant children by our Provincial Government. I have recently had first hand experience of the inaccessibility of justice to native peoples in my many journeys to native communities in the North of our province. What is allowed to happen there daily would cause a public out cry if it happened in West Vancouver.

Agents of the Government move in and forcefully remove children from the family on grounds of abuse. The parents often have no lawyer to help them until its too late, after the child is apprehended, and once that has happened the child is held hostage until various conditions are met.

To bring the case before a judge is meant by law to take less than three months but in reality by the time the red tape is unraveled the time is frequently six months or more. Usually the problem is liquor. The government representative insists that the parents sign a court consent order that all liquor be removed from the house and the child returned.

To the Anglo-Saxon Appeal judge in Vancouver or Deputy Minister in Victoria, the persons who are ultimately responsible for these travesties of justice, nothing is remiss! The liquor is removed and the story has a happy ending!

If those same persons were to have their infant child kidnapped by the government and told to sign a court order promising never again to allow liquor into the house; if the cause of all this was that the Judge’s daughter had told her teacher that the bruise on her wrist was caused by her father and that her father had been drinking, if all these things were to befall, which of course never would, it would all be explained in a twinkling.

If the matter were ever to get to court, which never would, the wheels of justice would move like greased lightening and the child returned the next day. The thought of the judge having to surrender his thirty bottles of the finest malt Scotch and his wine cellar for anything short of murder is too ludicrous to contemplate.

It is not just a cash settlement that out native people need. It is justice! They are as proud as we are and do not like to be treated like cattle! Even if their land claims are settled the problem will remain, a festering sore that will not go away until they win justice!

In my view the unresolved disparity between the Anglo-Saxon majority that runs our country’s legal system and our minority cultural groups is the main reason for the extraordinary length of court proceedings and the apparent impossibility of bringing it under control. Change will not happen because of status quo suits the Anglo-Saxon litigants and lawyers!

We have created a system of “Virtual Justice” that gives the Anglo-Saxon an advantage over his adversary. The plaintiff who has the hallmarks of the A.S.S. has all kinds of advantages.

If he has a dread of exaggeration he will be believed.

If his reality is based on not on observation but on monetary success his evidence will be carefully tailored to other evidence and because he is prepared to say he remembers what he does not his evidence will be consistent. If he has a passion for what is neat and tidy, he will stay up late into the night writing and re-writing his evidence until it is neat and tidy his English great grandfather would be proud and his enemy will be confounded.

If he is well tuned to the things that drive an A.S.S. up to the wall, like drawing attention to himself by granting an interview with the press, the judge will hear his words.

If he guards his emotions and never lets drop a smidgen of delight when the enemy runs into difficulties if he can restrain the slightest sign of irritation at any adverse comments coming his way from the bench and if he can steal himself from all sign of emotion until after the judge has both pronounced judgment and dealt with costs, if he can do all this like a well programmed robot, any Anglo-Saxon judge will fall in love with him!

However, if the trial is heard before everyone has forgotten what happened, all kinds of unexpected things can happen! The worst nightmare for the Anglo-Saxon plaintiff is the trial that is held soon after the events in issue.

Witnesses can say all kinds of unexpected things! There is no time for adequate pre-trial deposition or proper preparation of witnesses. Their evidence can not be molded while there remains in their minds the glimmerings of real memory. Witnesses at that stage have a most annoying way of ignoring surrounding evidence and relying on their unadorned memories.

While his client is giving evidence the lawyer may be staring him in the face, an engineer’s report that the distances could not possibly be as his witness is testifying. The nightmare unfolds as some little old lady that he never knew existed steps up to the stand and proclaims that the light was green for the other car and not red! She gives her evidence as if she saw it yesterday! By the standards of the law it was almost yesterday, just a year previous.

If it were four years after the event as is the well established custom the little old lady if she lives that long will probably have to admit on cross examination that she really could not recall much of what happened. The client would give evidence as it should be and not as he remembered it! The net result would be that the trial would be won!

In the mind of the A.S.S. lawyer it is not a question of delaying proceedings until everyone has forgotten what happened that he can mold and shape the evidence. It is simply a matter of “preparation.”. He has no difficulty looking at himself in the mirror!

I know because I used to do all of those things and would delay like crazy, all in the name of “preparation”. I did so without a qualm in the world! It is the price of being brought up as an Anglo-Saxon. We see things through a filter, our own self serving cultural heritage, just as fallible and prone to prejudice and greed as any other culture! We are like the Serbians and Bosnians, no better no worse!

Fortunately there are many Canadians of British or Northern European stock who rebel against the A.S.S. ruling class. An old friend of Anglo-Saxon origins who practices law in Montreal took the major step a few years ago of removing his children from a classy private Anglophone school.

I have a copy of an assay on of his daughters wrote a few months after the change. It describes in childlike simplicity the blessed relief she felt in her new life at a state run school where the cut of her clothes or all the other status symbols that had previously been so important now meant absolutely nothing. We condition our children early and it is sometimes difficult to avoid temptation to gibe up what is important, to help others or be with the family.

For the sake of the high paying job or “opportunity” we let go of what is really important to us. In the last analysis that opportunity is often just the opportunity to collect of meaningless status symbols and join the snoring stereotype, to become another A.S.S.!

As I proof read this chapter a number of questions come to mind. The Boswell in me asks: How can this man criticize his own friends? Has he an ego the size of a mountain? How can he claim he alone practiced law for years on a 19% contingent fee while others labor to make a living sometimes on twice that rate for easier claims? By attacking his own kith and kin is he not replacing one racial prejudice for another? Who does he think he is?

Similar questions came to mind last Christmas and I received an answer from an unlikely source, and overfed pigeon! I prepared an article describing what transpired. I went on a Christmas fund raising expedition to the Court House:

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