Access to justice: a government perspective.

• Author: McHale, M. Jerry
• Position: University of New Brunswick Law Journal Forum: Access to Justice

INTRODUCTION

This paper looks at the problem of diminishing access to civil justice from a provincial government perspective. (1) It considers the particular role and responsibilities of provincial governments in responding to this problem, and looks at some of the challenges that characterize the current civil justice environment as well as how those challenges are shaping provincial policy and program responses. It touches on some values and principles that could inform provincial government actions and proposes a model for thinking about government services in a way that could maximize limited justice system resources in support of expanded access.

Background

In considering these matters it is taken as a given that civil and family courts across Canada have become largely unaffordable and inaccessible. A wealth of commentary over the last decade or so in the form of reports, recommendations, studies, research papers and speeches tells us that the civil courts are too expensive, too complex, too slow, and that they are increasingly unavailable as a forum where citizens can assert their rights. (2) These commentaries also observe that trials are getting longer and fewer and that courtrooms are increasingly filled with unrepresented and self-represented litigants who are trying, often unsuccessfully, to navigate the com, (3) Plexities of civil procedure. The tone of the commentary is sometimes urgent, and the suggestion is not uncommonly made that the civil justice system is in need of fundamental reform. (4)

A significant number of reforms aimed at mitigating cost or complexity have in fact been recommended over the past several years, and some have been implemented. (5) These recommendations cover a broad range of initiatives including dispute prevention, streamlined civil procedure, increased judicial case management, judicial specialization, changes to court structure, alternative trial formats, costs reform, alternative legal billing arrangements, point of entry triage or streaming of cases, expanded education, information and advice services for unrepresented litigants, enhanced or mandated mediation, more arbitration, changes to legal education and to legal culture, increased utilization of technology, and increased government funding for all of the above as well as for legal aid, civil and family duty counsel, family law programs, and other justice-related services.

When recommendations for change are made, the question arises as to who gets to decide upon and implement such changes. Provincial governments have two primary roles to play in this respect. One role is to provide resources for the justice system and the other is to administer it--that is, on matters within provincial jurisdiction, to develop policies, implement programs, operate services and make decisions about operating priorities. An examination of each of these roles, and the internal and external forces that impinge upon them, will provide a context and identify some of the complexities now confronting provincial governments as they attempt to respond to the problem of diminishing access to justice.

The Province as Administrator

The authority of provincial governments respecting the courts is set out in section 92 of the Constitution Act 1867, which provides that they have power over the administration of justice, including the "constitution, maintenance, and organization" of provincial courts of both civil and criminal jurisdiction. (6) Corresponding provincial legislation speaks to provincial responsibility for the court system. In British Columbia for example, the Attorney General is responsible to see that the administration of public affairs is in accordance with law and must superintend all matters within provincial jurisdiction connected with the administration of justice. (7) The Supreme Court Act [RSBC 1996] Chapter 443, s.10 provides that the Attorney General is responsible for "the provision, operation and maintenance of court facilities, registries and administrative services" and that the province may appoint a chief administrator of court services. (8) Some differences exist between the provinces in terms of the form and extent of judicial control over budgetary or administrative matters, but the basic format is that the executive administers the courts. (9)

This authority gives the provinces a very large share of both responsibility and power in terms of responding to the access to justice problem. Of course this administrative capacity is not without limits; it is formally restricted on several sides. These limitations take the form of the independence of the judiciary, the independence of the bar, and the fact that the provinces share jurisdiction in a number of areas with Canada. In addition to the formal, jurisdictional restrictions, there are also informal limitations on the practical capacity a provincial government has to unilaterally decide upon and make policy, program, procedural, or structural changes to the justice system.

These informal limitations arise from the fact that the authority and the activities of each of the bench, the bar and the administration intersect so frequently and so totally in the daily operation of the courts that it is generally perilous for one of these bodies to attempt a meaningful change without some reasonable degree of coordination with, and cooperation from the others. Some unilateral changes are possible, but more often either the formal authority to make the desired changes is shared, or the practicalities of the situation dictate that a reform can neither be designed nor implemented by the administration, the judiciary or the bar alone. (10) The effect of this is that, notwithstanding a very broad constitutional authority to organize and administer the courts, there is little that a province can do, in practical terms, to make significant operational or administrative changes to the justice system without the cooperation of the bench and/or the bar.

There are numerous influences that support and encourage a cooperative working relationship between these three bodies. They are bound by a common obligation to foundational ideals such as the rule of law, fairness and due process. They also share a common interest in an affordable and accessible justice system that enjoys the public's confidence. Their ability to work together is evidenced by many productive joint change initiatives that have been successfully implemented across the country over the years.

At the same time, aligning the bench, the bar and the administration behind a single policy, plan or approach can be a formidable challenge. Over the last 15 years, for example, many recommendations have been made for changes to civil process in the superior courts. Recommended changes include, but are not limited to, the use of non-binding dispute resolution processes as a precondition for using the courts, development of case flow management systems, enhanced case management, judges and masters taking a more active role in the management and resolution of cases, creation of multi-track systems for the resolution of civil disputes, setting timelines for the overall determination of civil cases, simplifying pleadings, limiting the parameters of expert evidence, streamlining motions practice, imposing limitations on discovery processes, and so on. Some of these recommendations were made in a 2006 British Columbia report published by a Task Force made up of senior representatives from the courts, the Ministry of Attorney General and the bar. (11) The report was premised upon the existence of "a widening gap between our current system and our vision" and "several troubling indicators of serious problems in the system." (12) It described a pressing need to enhance access to justice through "fundamental change" to the civil justice system because "maintaining the status quo is not an option". (13) The provincial government fully endorsed the report and expressed the wish to proceed with its recommendations. However, the bar, or at least a portion of the bar, took a different view and opposed several of the recommendations. (14) By the time that the new rules came into force in July of 2010, a number of key recommendations were, as a consequence of this opposition, eliminated and others were watered down. (15) The final product amounted to appreciably less than the "fundamental change" that had originally been proposed, and it is not clear that the Task Force's objective of "providing a streamlined and accessible Supreme Court system where matters would be settled early, quickly and affordably" will be achieved.

The point of this particular example is not the merits of the debate, but what the process says about efforts to make fundamental changes to the system. [t illustrates that even with a reasonably broad consensus about the need for fundamental reform, as well as enthusiastic government support and significant senior sponsorship from some members of the judiciary and bar, key elements of the proposed reform were eliminated. The province's constitutional authority (including the legal authority to make court rules by Order in Counsel) was not enough, in a practical sense, to carry the day.

The "politics" of justice system change is that no single authority within the system can purport to speak for the system. It is similarly the case--whether it is a consequence of the division of powers, custom or simple pragmatics--that rarely can a single authority implement a meaningful reform initiative alone. This state of affairs undoubtedly mitigates the weight of a province's authority as the justice system's policy maker and priority setter. It also presents a thorny problem for a justice system in need of fundamental change.

The Province as Funder

While provincial efforts to make structural changes to the justice system may face opposition, proposals to increase provincial funding are rarely resisted. A different...