Community-based access to justice - building a responsive justice system in New Brunswick.

• Author: Hughes, Jula
• Position: University of New Brunswick Law Journal Forum: Access to Justice

[Jula Hughes, PH D, delivered these comments at an Access to Justice panel at the University of New Brunswick, on October 28th, 2011. The panel followed the thirty-third Viscount Bennett Lecture by The Honourable Justice Cromwell.]

INTRODUCTION

This paper reports on the formation of a community-based Access to Justice coalition in New Brunswick and suggests that community involvement is crucial to reforming New Brunswick's justice institutions with a view to bringing about a civic-oriented, responsive and accessible justice system in the province. At the time of writing, the Coalition is convened by Gall Wylie and Norm Laverty and supported by the Maritime Conference of the United Church of Canada. It includes 34 service and advocacy organizations from every part of the province and provides a forum for networking and policy development in both official languages. In pursuit of its chief goal of Access to Justice, it was invited to propose and has developed and submitted a proposal for a working group on Access to Justice that makes the expertise of its member organizations available to public policy makers and advises the Minister of Justice on an ongoing basis. The proposal is currently being considered by the Minister.

The Origins of the Access to Justice Coalition

In 2007, Fredericton social activist Vaughn Barnett went to jail for 10 days for providing assistance to low-income people with issues related to poverty-law. (1) His imprisonment sent shock-waves through New Brunswick civil society. Volunteers in a number of community organizations that provide services to low-income New Brunswickers felt vulnerable to prosecution by the Law Society. It was clear that the highest court in the province was supporting the stance of the regulator and was not prepared to act to protect those who dedicated their spare time to helping others. This event turned out to be a turning point. Not only did this make people feel vulnerable, it caused citizens who thought of themselves as pillars of the community and proud Canadian citizens to suddenly question the true nature of their society. Was this what the rule of law looked like? Was this justice?

Once these individuals discovered this other side to the place they called home, the questions just kept coming. Why was it that so many people with perfectly run-of-the-mill problems like family breakups, loss of employment, questions about government assistance or rental contracts were unable to access solutions? Why were the courts full of people waiting to have their problems addressed and few people actually found the help they desperately needed? Where was the legal profession in all of this? Why were social workers, police officers and court personnel all behaving as if they existed on different planets? And how real was the danger that Vaughn Barnett's fate could become others' fate if they tried to do their bit to help?

It is important to realize that the people who were engaged were not experienced in being disenfranchised. They brought neither cynicism nor resignation to this turn of events. Instead, they did what those of us with franchise do: they engaged their networks to get to the bottom of what they had just witnessed. The seeds to the Coalition for Access to Justice had been sown.

Access to Justice on the Political Agenda

The Access to Justice crisis was of course well-known to those in power. The provincial attorney general of the day, Liberal MLA, and former and current criminal defence lawyer T.J. Burke was acutely aware that all was not well in New Brunswick's courts and the broader justice system. In a letter to Dr. Chris Levan (2) dated August 7, 2007 he stated that "the issue [of Access to Justice] has been one of our primary concerns in the Office of the Attorney General, since our government took office last year." He was also dedicated to seeing improvement during his mandate. He identified two principal areas that required immediate attention: legal aid and family court. In short order, he appointed two provincial investigatory and recommendatory bodies to provide advice to the New Brunswick government on these areas. The family court file was placed in the hands of the Access to Family Justice Task Force chaired by Justice Raymond Guerette (whose comments, infra, recount the disturbing findings of the Task Force as well as the devastating failure of government to act on its well-considered recommendations.) The legal aid file was allocated to a legal aid review panel which I had the honour to co-chair with former Deputy Minister Ernest MacKinnon. Sadly, implementation of the Review Panel recommendations was just as frustratingly lacking as in the case of the Task Force.

The Law Society of New Brunswick v Vaughn Barnett--Protecting the Professional Monopoly against the Public Interest

The story of the prosecution of Mr. Barnett is worthy of more detailed attention. Mr. Barnett is a graduate of the Law School of Western Ontario, but not a member of any law society. A well-known Fredericton activist, he offered assistance to low-income New Brunswickers. In 2000, Justice Riordon of the New Brunswick Court of Queen's Bench issued a permanent injunction against Mr. Barnett, restraining him from practicing law. (3) Mr. Barnett's appeal was dismissed in 2002. (4) In 2007, Mr. Justice Bell found Mr. Barnett in contempt of Justice Riordon's court order and sentenced him to ten days of imprisonment. (5) He was led from the court house in handcuffs and leg irons and immediately taken to the provincial jail in Saint John where he served his sentence.

Imprisonment is the most severe punishment known to Canadian law and the Criminal Code directs its use as a measure of last resort. It expresses society's utmost disapprobation of a person's conduct as being contrary to the fundamental values of Canadian society.

The ways in which Mr. Barnett had offended the fundamental values of Canadian society were fourfold: he assisted a person in trying to avoid eviction by accompanying her to a meeting with the landlord and his lawyer; he proofread and edited a document a self-represented litigant had prepared; he corresponded with an administrative agency asking for some documentation; and, he was alleged to have received a used briefcase in compensation for a small claims matter representation. Mr. Barnett agrees that he received the briefcase, but does not agree that it was in compensation for the assistance he provided.

To be clear, all of these activities are of a kind that might be engaged in by lawyers, though not typically in the contexts in which Mr. Barnett provided assistance, or at least not on that side of the dispute. However, these are also activities that many non-lawyers engage in. An older sibling might proof-read a document and make suggestions for improvement. A parent might write a letter for a child. Clergy, social workers, friends, neighbours, former civil servants, and other professionals are all routinely engaged in these kinds of activities.

The Outreach Committee of a downtown Fredericton church, Wilmot United Church, gave voice to the concerns of civil society arising out of the prosecution of Mr. Barnett. In a letter to then Premier Shawn Graham and Justice Minister T.J. Burke dated June 6, 2007, the committee members noted that "the breadth of this [the Law Society's] monopoly makes adequate representation in many social/economic situations (e.g., evictions), inaccessible to those without economic means." (6) They argued that the "gap in equitable access to the justice system for the poor is both obvious and untenable." (7) In his response, the Minister of Justice was unequivocal in his support for the professional monopoly. Acknowledging the Access to Justice crisis, he nonetheless articulated sharp disagreement with the group's suggestion that non-lawyers might have a role to play in addressing the issues: "We do part company however on the issue of representation by non-lawyers. I do not believe that any person's legal interests are served by relying on an unqualified, uninsured person to advise them, or even prepare forms on their behalf." (8)

The belief in and support for the professional monopoly is deeply ingrained in the professional identity of lawyers. Minister Burke's arguments are typical: non-lawyers are unqualified and uninsured. In my work with the Access to Justice coalition, it has become apparent to me how central the ideological commitment to the professional monopoly is to the legal profession. What is less clear is whether this commitment can be rationally supported. Many of the arguments would not appear to be sustainable empirically, but have surface appeal. Who would not prefer to be represented by someone who is well-trained and, if things do not go well, is at least insured? However, this really invites a comparison that strays too far from reality to be useful. When we compare the ideal of the well-represented and adequately funded litigant to the spectre of the person sadly misled by the unqualified and uninsured non-lawyer, and indicate a preference for the ideal, we do not make a contribution to the policy discussion we need to have: how does the situation of the unwilling self-rep compare to the person who receives neighbourly assistance from a better-educated non-lawyer? Equally importantly, what is the societal impact of vigorously enforcing a professional monopoly in a context of inaccessible legal resources? And, how does the professional monopoly of lawyers interact with the multi-faceted needs of people facing poverty, family crisis or unemployment?

Much of the professional turf that law societies...