Thoughts on a coordinated and comprehensive approach to access to justice in Canada.

• Author: Cotter, Brent
• Position: University of New Brunswick Law Journal Forum: Access to Justice

[Brent Cotter, QC, 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

I propose, in these comments, to address the question of Access to Justice in a broad, holistic way. I will begin by defining the topic broadly, essentially building on the definition proposed by Justice Thomas Cromwell in his Viscount Bennett Lecture. (1) I will then set out five assumptions about the topic of Access to Justice that seem to me to be essential, foundational dimensions of the subject and our ability and willingness to tackle it. Third, I will offer a brief examination/critique of the four critical 'actors' in relation to the challenge of Access to Justice, and in so doing, offer some relatively controversial approaches that I believe are required by all of us in the various sectors of the legal system--in partnership to improve Access to Justice for Canadians in a meaningful and sustainable way. I will close these remarks with a brief conclusion.

A Definition

As Justice Cromwell elegantly articulated, we do not have hope for success if we are not able to identify the issue we are addressing, or if we are unable to determine the nature of the problem. He described 'Access to Justice' in terms of a state of affairs where "in general terms, members of our society would have appropriate access to civil and family justice if they had the knowledge, resources and services to deal effectively with civil and family legal matters." (2) Justice Cromwell's focus, and the subject matter of his talk was Access to Civil and Family Justice and his definition was accordingly focussed on Access to Justice in that context. In my opinion, the definition he offers, with one slight modification, is applicable to a whole range of issues within the broad scope of Access to Justice.

When we talk about the legal needs of our citizenry in any area, whether it be advice about the drafting of a will, dealing with one's immigration or refugee status, sorting out a landlord-tenant dispute, making a claim for employment insurance, dealing with a criminal charge, or a host of other matters, the 'knowledge, resources, services' conception is equally applicable. I would only add the following. The range of needs of our citizens in relation to Access to Justice in any of these or other areas varies. Some people need meaningful, perhaps comprehensive legal service, so that they can be represented in court or before an administrative agency in order to obtain justice. Others may need less, perhaps access to a mediator or to other resources that can facilitate a resolution of a legal problem on their own. Still others may only need more information, thereby enabling them to make decisions or plan their lives and careers in ways that suit them best. For this reason, and in its broad application to the spectrum of circumstances in which people need assistance, I am inclined to take the view that Access to Justice means access to 'knowledge, resources or services', as needed, to address the individual's particular circumstances. Sometimes Access to Justice will mean full-scale legal representation; in some cases it will mean no more than providing a person with the information he or she needs to sort things out without resorting to additional resources or services.

Five Assumptions or Presumptions

Justice Cromwell has ably articulated the 'problem' with Access to Justice in civil and family law. As far back as 2002 the Canadian Judicial Council stated:

The needs of individuals who appear in courts without legal representation are a serious and growing challenge for the judicial system. (3)

Similar views have been articulated about other areas of law in Canada. In Foundation For Change: Report of the Public Commission on Legal Aid in British Columbia, Commissioner Len Doust stated:

Without adequate legal aid, we all fail in our social obligation to ensure that every citizen of our province has available at least the basic necessities of their lives so they can adequately sustain themselves and their families. (4)

The Canadian Council of Administrative Tribunals has observed:

Hundreds of thousands of Canadians come to administrative tribunals each year. Clients who appear before administrative tribunals are less likely to be represented by counsel than if they were in court. These people are faced with an unfamiliar environment, probably unknown administrative processes, and difficult legal language. Add low literacy skills and we have to question how well justice is served. (5) With respect to civil and family justice, Justice Cromwell came to the same conclusion:

Is there a problem with access to civil and family justice? My answer, and the answer of every commentator that I know of, is "yes". Is the problem serious? Again, I believe the answer is "yes". (6)

There is little doubt that Access to Justice is a serious problem across a wide spectrum of our society. On the basis of this uncontrovertible premise I turn to five 'assumptions' about the fundamental nature of the 'problem' and about the orientation we need to bring collectively--to the challenge in order to make a meaningful impact. The five 'assumptions' are:

1 Not only 'justice' but 'Access to Justice' is itself fundamental to how citizens live their lives in a respectful society governed by the rule of law.

2 Lack of Access to Justice undermines our society and our confidence in its essential fairness and justness, undermining our confidence in the rule of law itself. (7)

3 Ensuring Access to Justice gets harder every day.

4 No one person alone can solve the problem of Access to Justice, but every single one of us has a responsibility to contribute to the solutions, even when those solutions are and must be 'uncomfortable' for us.

5 Each of us associated with law has been given an opportunity, and a 'trust' in relation to the justice system, and we have an obligation to preserve and strengthen Access to Justice as part of that 'trust'.

The Roles and Responsibilities of the 'Legal Actors' in Relation to Access to Justice

(A) Legal Education

I start with the sector of the legal continuum that is closest to home for me and for many of you--Legal Education. My sense of legal education a generation ago, when I was a student and a junior professor, is that there was in those years a greater commitment to 'public service' in our law schools. (8) We learned then, and should be learning still, that service in the law is an important calling, a calling to 'public service' in whatever way that we make use of our law degree. To some extent we have lost that orientation to public service and we must get it back again.

How might we do this? First, we must teach our students about the importance of Access to Justice, and the role of the law and lawyers in facilitating, rather than impeding, this goal. This means the incorporation of Access to Justice themes in our law school courses, from the start. For example, in most of our courses we study significant cases and legal decision-making processes without acknowledging or appreciating the implicit assumption that legal representation was...