Access to justice and the public interest in the administration of justice.

• Author: Vandervort, Lucinda
• Position: Canada - University of New Brunswick Law Journal Forum: Access to Justice

Abstract: The public interest in the administration of justice requires access to justice for all. But access to justice must be "meaningful" access. Meaningful access requires procedures, processes, and institutional structures that facilitate communication among participants and decision-makers and ensure that judges and other decision-makers have the resources they need to render fully informed and sound decisions. Working from that premise, which is based on a reconceptualization of the objectives and methods of the justice process, the author proposes numerous specific changes in decision-making processes and practices. These changes are required to achieve a standard of decision-making that is consistent with the public interest in the administration of justice within a constitutional framework under the social and political conditions of the early 21st century. The essay illustrates the application of the principles and methods of "legitecture" to the analysis of problems of institutional design in law.

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... justice and the just society ... is essential to flourishing of men, women and children and to maintaining social stability and security. (1) INTRODUCTION

The public interest in the administration of justice requires that everyone have access to justice. Access to justice must be "meaningful" access. Meaningful access mandates procedures, processes, and institutional structures that provide judges and other decision-makers with the resources they require to render fully informed and sound decisions. This essay argues that changes in the judicial process are needed to meet that objective at a standard that is consistent with the public interest in the administration of justice within a constitutional framework under contemporary social and political conditions.

What Makes Access to Justice Meaningful?

The core purpose of access to justice is to ensure that all those who require the assistance of the legal system obtain it. Access to justice requires full and effective communication between agents and representatives of the legal system and all those who use its services. In matters before the courts, the core functions served by the judicial process are those of hearing and being heard. To have effective and meaningful access to justice, the parties must be heard. Cases do not decide themselves; judges do. To decide a case, a judge must hear and understand the case. Judges are not seers, oracles, or mind-readers. Cases need to be presented in a manner that can be fully understood by the judge who is required to make a decision based on the evidence and the law. This requirement extends to all the evidence adduced and all argumentation. Whether an action requires the judge to clarify legal rights, rule on an application, or resolve a dispute, practices and procedures that tend to limit or frustrate effective communication will also tend to have the effect of limiting meaningful access to justice. One or more of the parties to the process will be silenced, not have the direction they require, or fail to realize that additional steps need to be taken to place necessary information and perspectives before the court to ensure their evidence and submissions are understood.

Adjudicating in the contemporary context entails challenging responsibilities. Some of these challenges are due to social and cultural heterogeneity. Others flow from the complexity of the issues or specialized technical nature of some evidence. Diversity on the bench serves important social and political purposes and contributes to enriching judicial perspectives and the exchange of views among judges about emerging issues and the role of the judiciary. (2) But a diverse bench does not and cannot, for obvious practical reasons, ensure that the judge or judges presiding in any given case will have either the life experience and requisite social and cultural awareness and understanding or the technical background required to produce a well-grounded and soundly-reasoned decision. Judges must not only understand the evidence and the social and cultural significance of the issues that arise in the context of specific cases, but also need to appreciate the implications of their decisions for those affected, both the parties and other persons whose interests may be affected. In the increasingly diverse and complex social and political context of contemporary Canada, there may often be a gap between the level of judicial comprehension required to afford the parties meaningful access to the justice process, and the level of understanding any individual judge or panel of judges can single-handedly achieve within the current framework of judicial procedures and practices. In particular, any individual judge on the bench may often not have personal experience of issues that are crucial in a specific case or may not understand the cultural background or perspective of the parties.

This problem is not new, of course; this has arguably always been the case, although it has not always been recognized. But we now have a better appreciation of the complexities of decision-making and the resultant vulnerability of judges to misunderstanding and error in the face of differences in life experience, cultural background and socialization. And we recognize that law operates in a complex environment of competing social, cultural, and political values and must be interpreted and applied in a manner that is consistent with the Constitution. Mechanical formalist jurisprudence is now largely an artifact of the past; meanwhile the central elements of judicial process remain much the same as they have been for decades, even though they may not always be fully adequate to the challenges posed by many cases before the courts. All of these considerations in combination point to the conclusion that it is time to re-examine the judicial process to ensure that the procedures and practices used are tools that are effective to facilitate doing justice pursuant to the rule of law.

This essay postulates that the public interest in the administration of justice requires meaningful access to justice for all, not just for some. This is beyond question. It is in the collective public interest that all persons in Canada, as individuals and members of diverse groups, be able, when and to the extent they choose, to utilize the legal system to secure the benefits and protections to which they are entitled by law and to resolve any disputes they may have either with one another or with the government. This objective, in turn, mandates that judges be provided with the resources and assistance they need to render sound decisions in the cases they hear and decide. Indeed the responsibility to decide must be seen to entail judicial entitlement to the resources required to make sound decisions. Otherwise, the judiciary is placed in an untenable position and the administration of justice inevitably suffers a loss of integrity. Therefore, any modifications in the judicial process that may be necessary to ensure that the public interest in the administration of justice is well-served must be made.

This essay proposes a number of specific measures related to the handling of cases by the courts. The measures discussed here are not exhaustive of those that should be considered but do include a number of measures that are essential to assist judges in addressing the challenges posed by the cases they hear and must decide. Although the scope of the discussion in this essay is limited primarily to matters before the courts in non-criminal cases, with particular attention to issues related to meaningful communication, full comprehension, and sensitive and informed interpretation in the face of experiential, social, cultural, and linguistic diversity, the further intent is to stimulate reflection about procedure and practice in the legal system overall. Practices and procedures that tend to diminish or undermine rather than enhance the quality of the administration of justice need to be identified and changed. The public interest demands no less. Justice must be administered in accordance with the rule of law and the Constitution. Failure or refusal to make the changes in legal processes that are required to enable judges and other decision-makers to do justice according to law is not an option for Canadians.

Legal Representation

(A) Legal Representation in Judicial Proceedings

Judges prefer that parties appearing before them have legal representation. The difficulties judges experience when presiding in a case involving one or more unrepresented parties are well-known and have been discussed at length by others. (3) Similarly, the parties to judicial proceedings ordinarily prefer to be represented by legal counsel but increasingly find that option unaffordable. The issues related to the provision of legal aid and the development of funding mechanisms to ensure that individuals and groups will be able to afford legal representation have been carefully analysed in the literature, discussed, and debated on more than one occasion. (4) One commonly expressed concern is that the lack of legal representation places unrepresented parties at a disadvantage in the adversarial process. The result is real and apprehended inequality in the judicial process and a consequential detrimental impact on interests of the unrepresented party. Persons who are not parties to the action may also be directly and indirectly affected. The specific outcome in a case may affect their interests, the ruling in the case may entail reinterpretation of a law of general applicability and affect them because they are similarly situated, or the case may be relied on as a case precedent in a subsequent case to which they are a party. Thus, the effects of lack of representation of one or more parties in one case may have a broad societal impact. Moreover, where the members of an identifiable group in Canadian...