Reflections on Access to Justice

In the last two issues of JUST. I wrote about lawyers helping lawyers and lawyers helping build stronger communities. In this issue I comment on lawyers helping reform the justice system in which we all work. 

In late April I attended the CBA "Envisioning Equal Justice Summit" in Vancouver. There were about 200 people in attendance from every corner of the country. Lawyers, judges, professors, pro bono law representatives, legal aid lawyers, legal publishers, and court administrators. The program was well researched, well planned and well presented. The co-chairs, Melina Buckley and John Sims, their committee, and CBA staff Project Director Gaylene Schellenberg should be very proud of a job well done.

As you are aware, the profile of access to justice initiatives has been elevated over the past few years starting with a call to action by Chief Justice McLachlin. Many say our justice system is in crisis with the proliferation of self represented litigants, court delays, expense of litigation, and the lack of legal aid funds.

Law Society Treasurer Tom Conway reminded the conference plenary that the Law Society of Upper Canada's enabling legislation directs that the Law Society "deliver its core mandate in a manner to facilitate access to justice." With this in mind he has made access to justice a priority of the Law Society for the next two years.

Prior to attending the Summit, I attended one of the Treasurer’s Advisory Committee meetings on access to justice where he invited those leaders of the province's legal associations in attendance to advise what their organizations were doing with respect to access to justice. The answers demonstrated the diversity of views as to what access to justice meant and how it could be improved. For example, I heard that CDLPA feels it is important to travel across the province, listen to local lawyers, discover where judges and courthouses are required, and then lobby MLAs and MPs for more judges and resources. The Advocates' Society views access to justice as one of its core functions and contributes to it through its involvement in the rules committee, its pro bono efforts, and through its involvement with bench and bar. The Paralegal Society insisted that one of the answers was an increased scope of practice for paralegals, the inclusion of paralegals in law firms, and collaboration with the OBA and other organizations. (Treasurer Conway, at the CBA justice conference, stated that "paralegals will play a much greater role moving forward" and that we must pay attention to how they are trained and educated.)

I referred the Treasurer to the latest CBA Action Committee paper (April, 2013) which contained a discussion of various vehicles by which relative success in facilitating access to justice could be gauged. The metrics that are available internationally are not flattering to Canada.  For example, the World Justice Project, introduced to us by Justice McLachlin, has rated Canada 8th of 16 and 9th of 16 in access to justice in criminal and civil matters, respectively, among North American and Western European countries. Most feel we can and should do better.

At the Summit, we heard that legal aid was historically funded 50/50 by the provinces and the federal government and that the funding ratio has changed to 80% provincial and only 20% federal. Canada ranks 59th in the world in access to legal aid. Again, most feel we can and should do better.

A number of speakers commented on the willingness of the public/politicians to fund the health system because everyone will inevitably experience a health problem at some point. Forgotten is the fact that one study showed that in a 3 year period, ending in 2006, nine million Canadians experienced a justiciable issue.  Most feel that we can and should elevate the profile of justice issues given the frequency with which Canadians use the system.

Perhaps most importantly, the Summit attendees heard time and time again that access to justice (or the lack thereof) had the greatest impact on the most vulnerable and disadvantaged including those with disabilities, minorities,  and those living in poverty. Although there are no Canadian studies, one from Texas estimated that every dollar spent on the justice system returned seven dollars to the economy.  One panelist suggested that we do not know the degree to which we have access to justice problems in Canada as there has been a lack of attention and little study of the issue.  It is significant that we have no metrics in Canada to measure how we are doing from year to year or decade to decade.

Moving forward, the CBA will be issuing a full report in August at the CLC in Saskatoon.  It will no doubt spark further discussion and contain a renewed call to action.

In the interim, I suggest that it is time we elevate the issue through the OBA membership and remind political and community leaders that a healthy, well funded justice system is critically important for the health of a just society, and respect for the rule of law. Our political leaders also need to be reminded that underfunding of the justice system affects everyone, but in particular, the disadvantaged.   

Statistical evidence shows that we are falling behind a good part of the world in legal aid funding and access to justice. The OBA needs to continue to address these issues and ensure our voices are heard by decision-makers.