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Canada has a crying need to dial back the power of lawyers

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6079_Smith_W
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Joined: Jun 10 2010

@ DSloth

I support his suggestions. I am sure plenty of lawyers who do as well. 

My problem with the OP is the implication that lawyers are the ones who are actually putting the stranglehold on society. In fact, the profession is just one of the more powerful tools of those who are responsible for creating inequality, and there are plenty of cases in which you might need the skills of one of those lawyers yourself. 

If I were to pick one fundamental problem with the system, I would say it is the adversarial nature of the process. I know two lawyers who have quit practicing over that very point. I know there are some situations in which there is no getting around that, but there are far more in which setting it up like a boxing match is not really the best format for arriving at justice or the truth. 

 


Sven
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Joined: Jul 22 2005

Sean in Ottawa wrote:

Not everything can be decided by popularity contests-- individual rights would be one.

By "popularity" I take it to mean "by a majority of citizens," is that correct?

If rights (and obligations), of any sort, are not to be determined by a majority, then who, very specifically, will be the person (or persons) given the power to deterine what those rights and obligations are?


6079_Smith_W
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Joined: Jun 10 2010

@ Sven

I'm satisfied with that being determined by the rule of law, as flawed as it is. 

There is a long enough list of decisions in which minority or unpopular rights were upheld in cases where they would likely not have been recognized by a referendum or other vote. Marriage equality and a woman's right to choose abortion are two very major ones in this country.

So short answer - the courts. Like democracy, it is the worst system there is, but it is better than all the others.

(edit)

While I think ultimately many of these decisions come down to the courts, I think the role of legislatures is important too. Again, as has been mentioned upthread, it is easy to hate them, but there have been cases where govenrments have made good decisions despite them being unpopular.

 

 

 


M. Spector
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Joined: Feb 19 2005

The courts only interpret and enforce the laws and the constitution. If you want to rely on the courts to protect minority rights you have to give them something to work with - a constitution containing rights, a bill of rights, a statute of some sort, whatever. That's the job of the legislators.

The courts will sometimes strike down laws that violate rights, but only if those rights are recognized, expressly or by implication, by some other authority that can be said to supersede the impugned laws; they don't just invent rights out of thin air as a way to trump the will of the legislators.

The "rule of law" does not just spring forth unbidden from the brains of a judge. To apply the rule of law you have to have laws to apply. To enforce minority rights you have to have laws declaring or granting those rights.


Sven
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Joined: Jul 22 2005

6079_Smith_W wrote:

@ Sven

I'm satisfied with that being determined by the rule of law, as flawed as it is. 

There is a long enough list of decisions in which minority or unpopular rights were upheld in cases where they would likely not have been recognized by a referendum or other vote. Marriage equality and a woman's right to choose abortion are two very major ones in this country.

So short answer - the courts. Like democracy, it is the worst system there is, but it is better than all the others.

(edit)

While I think ultimately many of these decisions come down to the courts, I think the role of legislatures is important too. Again, as has been mentioned upthread, it is easy to hate them, but there have been cases where govenrments have made good decisions despite them being unpopular.

In a democracy, it's a fallacy to think that there are any rights that are not, ultimately, subject to majority rule.  Courts have their power rooted in a country's foundational document (a constitution, charter, etc.) and because those foundational documents are, themselves, subject to change by a majority (sometimes a super-majority), the scope of the court's power is ultimately controlled by the majority (and, thus, so are all rights that a court may otherwise protect).

ETA: Cross-posted with M. Spector, with whose post I agree 100%.


6079_Smith_W
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Joined: Jun 10 2010

Yes, M. Spector

And that body of law was built by legislatures and by the courts. I never said that it came out of nowhere, nor did I think it was necessary.

What we have now is something that has taken thousands of years to build.


Sven
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Joined: Jul 22 2005

So, getting back to Sean in Ottawa's comment about "popularity" contests, all rights are subject to "popularity" contests.


6079_Smith_W
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Joined: Jun 10 2010

If you want to get into the realm of realpolitik, Sven, perhaps. But in general practice I'd say my point stands. 

Before we start getting into which is more powerful, I think it is important to remember that the judiciary is a part of government just as much as the legislature. I'm sure Mr. Harper would like discount the power of the former (just as he discounts the power of the leguslature, for that matter) but I don't think you can make an absolute division between the two.

And there are plenty of things which are how they are even though it may not reflect the majority will of a legislature, or, for that matter, majority will of the populace.

(edit)

Cross-posted.

No Sven; I don't agree. You can see it that way if you wish, but there is plenty of evidence to the contrary. Taking it beyond the question of court power, there is also the question of brute force. There are plenty of things in this world which are not determined by popularity.


M. Spector
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Joined: Feb 19 2005

Sven asked: "...who, very specifically, will be the person (or persons) given the power to deterine what those rights and obligations are?"

Smith replied, "So short answer - the courts." 

M. Spector pointed out that rights are not determined by the courts out of thin air, but must come from something passed by legislatures.

Then Smith said that he meant the "legislatures and the courts".

I accept his apology.


6079_Smith_W
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Joined: Jun 10 2010

Oh come off it, Spector. Where did you pull that from? 

When it comes down to it, the court is the final arbiter in most things; you have only to look at how many laws are struck down as illegal. Or how many things legislatures cannot pass because they know they will be struck down. Perhaps you missed my point that it is not so simple a thing to separate the courts from the legislature.

To say that it is a popularity contest is misleading, because it is not as simple as what the majority wants, nor even as simple as what the majority may think is right in a certain situation.

Usually it comes down to the law, which takes those notions of what people want and what people think is right, and tries to parse them in a way that is equitable, but not always apparent as such. 

I'd say the law is most important in certain cases in which it makes deeply unpopular decisions which happen to be the right ones.

 


kropotkin1951
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Joined: Jun 6 2002

The problem with our legal system is the lack of access to lawyers. Getting rid of the ones we have will not solve that problem. Legal aid needs to be revamped and we need to hire staff lawyers to represent citizens who have been wronged but cannot afford to access the courts for redress. Also our tax system needs to stop allowing corporations to write off litigation expenses.  That tax break allows companies the "luxury" of hiring $500 lawyers.

In the real world of law firms the $500 lawyer works for corporations and people with money.  The $200 storefront lawyer goes broke trying to help too many people who can't even afford that minimum fee.  Also the court fees have risen dramatically so even disbursements can easily reach into the thousands of dollars and beyond the reach of many.  As well in civil suits if you lose you then have to pay a large chunk of the other side's lawyers fees as well as your $200 an hour lawyers fees.

Its like a game of poker where one side needs to goes all in on every hand but the other side is playing with what they think of as pocket money.

 


NorthReport
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Joined: Jul 6 2008

And maybe, just maybe, we need to get the lawyers out of our lives to a very large extent.


kropotkin1951
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Joined: Jun 6 2002

Breaches of the Charter allow courts to strike down laws. Until the Charter was passed courts had no power to overturn legislation.  That is why Trudeau had to reintroduce Diefenbaker's Bill of Rights as a constitutional amendment. The courts kept ruling that any law passed after the Bill of Rights overruled it because parliament had the authority and the courts had no role to play.


kropotkin1951
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Joined: Jun 6 2002

NorthReport wrote:

And maybe, just maybe, we need to get the lawyers out of our lives to a very large extent.

So tell me are you in the middle of a divorce action?  Cool

 

What we also need is an enhanced mediation system instead of litigation. But many of those mediators started out as lawyers so they are likely tainted.


6079_Smith_W
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Joined: Jun 10 2010

@ kropotkin 1951

Yup. Before 82 courts only had the power to strike down acts of parliament which breached federal/provincial jurisdiction.

As for the current situation, the notwithstanding clause notwithstanding, that power is virtually supreme. 

By contrast, the U.S. supreme court granted itself the power to strike down laws back in the early 1800s.

(edit)

And another example of "too many" is when insurance companies force pointless lawsuits to get other companies to pay. There is a reason why no-fault systems are a good thing.

 


Sven
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Joined: Jul 22 2005

Although the discussion has move a bit away from the theme of the OP, with regard to the last several entries in this thread what should be kept in mind is this: The courts that many people rely on as being the final bulwark against tyranny must realize that with a significant enough of a majority, any right can be eliminated at any time.  While the courts can, and have, played an important role in protecting civil rights, they are not immune to ultimate control by the majority (there is not a right that exists that can be protected from a majority that is large enough and motivated enough to extinguish it).

So, citizens must remain vigilant and actively involved in the political process to help ensure that those rights remain in place.  It is not sufficient to simply declare: "The right to ________ is not up for debate!  It is an absolute, inviolable right!"  Nothing is absolute.  Nothing is inviolable.  And citizens should not be overly reliant on expecting the courts to make sure valued rights remain in place.


6079_Smith_W
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Joined: Jun 10 2010

I agree with you there Sven.

My argument was not to imply that the rule of law is immune to force or overthrow, but rather that it is in our best interest to keep that legal system strong.

And I don't think it as a bulwark in abolute terms, except when it is kept strong. Quite the opposite, I think it is vulnerable to attack, and I include actions like Harper's removal of funding for court challenges as part of that assault. Fact is, our legal system is one of the few things still standing between the PMO and even greater authoritarian power.

That's part of the reason why I question the OP.

 

 


Sean in Ottawa
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Joined: Jun 3 2003

Sven wrote:

So, getting back to Sean in Ottawa's comment about "popularity" contests, all rights are subject to "popularity" contests.

I don't think this is true at all.

Elected people may pass the laws but the judiciary applies them and tests them for consistency with each other and if required against the charter.

The lawyers draft those laws the elected people pass. And they interpret them to individual cases and judge them.

When parliament passes a law it gets tested in terms of who and in what cases it applies to and if it breaches fundamental justice.

These tests are aften through interpretations of analogy.

Lawyers also llok for and expose unexpected and unintended consequences.

Government decisions are justiciable. A government passes laws but it is subject to the laws it passes and has limits. Without the judiciary the government would have no checks and balances.

This is not just about those who use the courts either. Some bad laws never come in to being becuase the govenrmetn knows they would be tested and found wanting. Some problems are avoided because people know that it could be contested and don't wait until it is.

Those who say that lawyers are elite and inaccessible-- they are often more accessible than politicians.

 


Sven
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Joined: Jul 22 2005

Sean, if a democracy's constitution was amended to explicitly eliminate a right, then the courts would be powerless to do anything about it. 


kropotkin1951
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Joined: Jun 6 2002

Sven wrote:

if a democracy's constitution was amended to explicitly eliminate a right. 

Then it is no longer a democracy that is if you are talking fundamental human rights and not just statutory rights like the "right" to drive a car.


Sven
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Joined: Jul 22 2005

kropotkin1951 wrote:

Sven wrote:

if a democracy's constitution was amended to explicitly eliminate a right. 

Then it is no longer a democracy that is if you are talking fundamental human rights and not just statutory rights like the "right" to drive a car.

Why wouldn't it be a democracy?


NorthReport
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Joined: Jul 6 2008

Buying or selling a house - you need a lawyer or notary whatever.

Marital problems - another lawyer.

Starting a business - another lawyer.

Car accident - another lawyer.

Lndlord-tenant issues - another lawyer.

Plan to die - I suppose you need a lawyer for that one too.

And the list goes on and on.

Just absurd.

 


Sven
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Joined: Jul 22 2005

NorthReport wrote:

Buying or selling a house - you need a lawyer or notary whatever.

Marital problems - another lawyer.

Starting a business - another lawyer.

Car accident - another lawyer.

Plan to die - I suppose you need a lawyer for that one too.

And the list goes on and on.

Just absurd.

It's a function of a complex society. 

Need a modern bridge built?  Then you'll need an engineer. 

Need a tumor removed from your brain?  Then you'll need a neurosurgeon. 

Need the electrical system fixed on your car?  Then you'll need a skilled mechanic. 

Do you have a moderately complex tax return to file?  Then you'll need an accountant. 

Because governments have passed tens of thousands of pages of laws and regulations to control virtually every aspect of our lives (which progressives tend to be very much in favor of, by the way), you'll need a lawyer to help you successfully navigate those laws and regulations. 

I suppose you could always go live by yourself in a cave. 


Bacchus
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Joined: Dec 8 2003

I did my divorce without a lawyer on either side and my will as well.

Ive been in car accidents but with no fault in ontario there were no lawyers. Landlord tenant has a tribunal for it with no lawyers and I started my business and incorporated it without a lawyer(though I did have an accountant for it)


kropotkin1951
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Joined: Jun 6 2002

Sven wrote:

kropotkin1951 wrote:

Sven wrote:

if a democracy's constitution was amended to explicitly eliminate a right. 

Then it is no longer a democracy that is if you are talking fundamental human rights and not just statutory rights like the "right" to drive a car.

Why wouldn't it be a democracy?

Semantics anyone.  One persons democracy is another persons police state. 

In your opinion are either the USA or China democracies? 

I think that neither are but China is slightly more democratic than the US. I think that Cuba is more democratic than either of them and Venezuela beats all of them and Canada as well. I don't believe that any of the European countries where the bankers have taken control are democracies.

So it all depends on your definition i.e. semantics.

 


Sven
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Joined: Jul 22 2005

kropotkin1951 wrote:

So it all depends on your definition i.e. semantics.

Not really.  Let's say that there was a large community (1,000,000 people), that each person had one vote, and that in a vote where all people voted, 90% voted that there would be no legal or other formal recognition of same-sex marriages.

Now, I would disagree with that result but I could hardly say it was "undemocratic".


kropotkin1951
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Joined: Jun 6 2002

Bacchus wrote:

I did my divorce without a lawyer on either side and my will as well.

Ive been in car accidents but with no fault in ontario there were no lawyers. Landlord tenant has a tribunal for it with no lawyers and I started my business and incorporated it without a lawyer(though I did have an accountant for it)

Upwards of 85% of divorces never involve litigation. Nasty divorce fights are the fault of the parties not the sharks who feed off the pieces the couple are gouging out of each other. I served as a mediator in small claims court and I would really like to see that be made into a free service to resolve run of the mill legal disputes.


kropotkin1951
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Joined: Jun 6 2002

Sven in your opinion are either the USA or China democracies?


Boom Boom
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Joined: Dec 29 2004

I've used a notary just twice in my 62 years - first to draw up a will, second to complete the purchase of a house.


Sven
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Joined: Jul 22 2005

kropotkin1951 wrote:

Upwards of 85% of divorces never involve litigation. Nasty divorce fights are the fault of the parties not the sharks who feed off the pieces the couple are gouging out of each other. I served as a mediator in small claims court and I would really like to see that be made into a free service to resolve run of the mill legal disputes.

Parties are always free to use a mediator or go to arbitration (either binding or non-binding).


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