“We must also remember that our legal system is not designed nor equipped to solve the underlying social problems that cause many people to be in conflict with the law or look to the courts for redress. Mental illness, substance abuse, poverty, lack of education, inadequate or no parenting, and dysfunctional relationships...call out for well-considered, evidence-based policy solutions.”
- Chief Justice of British Columbia Lance Finch, at his retirement dinner, June 6, 2013

Clearly, the law, our courts, and social troubles are inextricably intertwined.

This month, the writers of Reasonable Doubt are writing about the barriers and merits of using the law for social change or progress.

Perhaps the biggest question is whether courts should be proactive or reactive to the societal pressures above.

This means considering three realities:

1. courts are traditionally reactive: they do not address disputes until called on to do so;
2. courts control their own processes and internal administration in order to see that justice is done between litigants; and
3. courts are not only interpreters of our constitution and statutory laws, but also create and modify our common law.

There are many barriers to using the courts for social change. These are many of the same barriers that prevent people from accessing our courts generally: the high cost of lawyers, the emotional and time commitment required, and the uncertainty of outcome.

In this article, I will hope to touch base on some of the merits.

There are at least two merits to bringing matters of social importance before the courts: transparency and precedence.

Courts are presumptively open and each party has an opportunity to challenge the other side’s case. This might be one of the most compelling reasons for resorting to the law as a means of social progress.

A good recent example is the coroner’s Inquiry into the death of Greg Matters. Without resort to the law, most people would have heard only that a person was killed during an attempted arrest. Following hearings, we know that the state action in this case was far more than a simple arrest: a group of RCMP officers received a report of what was apparently a punch-up between two brothers on an acreage near Prince George. Because a public hearing took place, we know that the officers in question armed themselves with M-16 assault rifles, dressed in full camouflage and combat gear (similar to what might be worn by our Canadian Forces in Afghanistan), disregarded the necessity of a warrant to arrest Matters, and ended up shooting him multiple times in the back with those assault rifles.

That is not to pass judgment as to the propriety of the RCMP action in this case, but the public would be right to question why the RCMP resorted to such drastic means in response to what is not an uncommon situation here or anywhere else in the world.

This and other public inquiries, as well as private lawsuits, force the government to openly discuss and defend its conduct in the way that we, as citizens, expect it to. We learn about how state actors conduct themselves and how they perceive their conduct. Hopefully, such publicity either leads to changes or reinforces confidence in positive situations.

Such transparency is invaluable to the citizenry. It is often said that sunlight is the best disinfectant. Through such transparent processes, where parties are obliged to present and challenge each other’s evidence and arguments, we can better identify what works and what does not work.

For example, one would sincerely hope that future cases of murdered or missing women from the Downtown Eastside will be investigated with much more vigour than Wally Oppal found to be the case in the Pickton Inquiry.

The second benefit is the value of precedence.

Sometimes, especially in cases of systemic bias that perpetuates racism or homophobia, the law can serve to encourage people to be accepting and tolerant of our differences, even if by force.

In 1991, Delwyn Vriend was fired by the school he taught at on the rather galling basis that his sexual orientation was incompatible with the school’s values. When Vriend tried to file a complaint with the Alberta Human Rights Commission, he found out that the Individual Rights Protection Act did not protect from discrimination based on sexual orientation. The court found that excluding sexual orientation was intentional and ordered the Albertan government to include it in the act.

Undoubtedly, Vriend had other options. He could have hidden his sexual orientation, moved to a jurisdiction where his sexual orientation was protected by law, got a job at a school that was accepting of his sexual orientation, or simply done nothing (it is worth noting that Vriend never actually sued his employer—only the Albertan government).

Instead, his case confirmed that a government’s omission to act is as bad as government action. It forced Alberta to remedy the inequality in its laws. I am sure that many people who might have been homophobic became more tolerant after Vriend, if for no other reason than that forced association often leads people to realizing that prejudgment based on characteristics like race or sexual orientation is inaccurate and unfair (Remember Remember the Titans?).

The above does not mean that every injustice in the world requires a lawsuit that ends in a Supreme Court of Canada decision. There are lots of bigots, bullies, thieves, and jerks in the world. Most of these types of people exist, at least in part, because of the societal ills identified by Chief Justice Finch. The law will not change the fact that these people will always exist, everywhere. But, it can mitigate the harm done and offer some redress for wrongdoing.