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Month: June 2017

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Judicial Resolutions A Call to Action, But Tough Questions Will Follow

This article originally appeared on The Lawyer’s Daily on June 12, 2017. It is the second article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.

Sometimes symbolic gestures are meaningful. And sometimes they are even important. The recent resolutions by the leaders of the Canadian judiciary concerning access to justice are both.

In April, at the urging of the Action Committee on Access to Justice in Civil and Family Matters, the Canadian Council of Chief Judges (composed of the leaders of the provincial court judiciary) and the Canadian Judicial Council (composed of the leaders of the federally appointed judiciary) passed resolutions supporting the aspirational goal of 100 per cent  access to justice and calling on all judges to demonstrate leadership and work with all Canadian citizens and justice system stakeholders to achieve that goal.

Here are the two resolutions.

The Canadian Judicial Council Resolution from its April 2017 meeting:

“THAT the Canadian Judicial Council supports the aspirational goal of the public having 100 per cent access to the knowledge, resources, skills and services needed to effectively deal with their civil, family and criminal legal problems. As part of its commitment to promote meaningful access to justice for all, the Council urges all federally appointed judges in Canada to demonstrate leadership and work with all Canadian citizens and justice system stakeholders to achieve that goal.”

The Canadian Council of Chief Judges Resolution from its April 2017 meeting:

“The Canadian Council of Chief Judges supports the aspirational goal of the public having 100 per cent access to the knowledge, resources, skills and services needed to effectively deal with their civil and family legal problems. As part of its commitment to promote meaningful access to justice for all, the council urges all provincially appointed judges in Canada to demonstrate leadership and work with all Canadian citizens and justice system stakeholders to achieve that goal.”

Cynics will say that these resolutions are meaningless gestures. But that would be to judge too quickly. A similar resolution passed by the U.S. Conference of Chief Justices and Conference of Court Administrators in 2015 has been a catalyst for change and a morning star of inspiration for access to justice advocates in that country. I hope we will be able to say the same thing in Canada a year from now.

More importantly, these resolutions provide important advocacy tools for change. They permit us — even invite us — to go back to the councils a year from now and ask what they have done to move beyond these welcome words to much-needed action.

And the reach of these resolutions goes well beyond the work of the two councils. Note that the resolutions call on all judges — not just chief justice and judges — to do two things: to demonstrate leadership and to work with the public and justice system stakeholders to achieve the goal of 100 per cent access to the knowledge, resources, skills and services needed to address their legal problems. The call for judges to work with others to this end sends an important message that collaboration and co-operation are needed, including from judges. And the resolutions’ vision of access to justice as being about more than courts and judges is groundbreaking.

So I am delighted with these resolutions and congratulate the chief justices and chief judges for their leadership. The resolutions are brimming with potential.  But now comes the hard part. The two councils, and the whole Canadian judiciary will need to be ready for a tough question a year from now: how have you moved on from hopeful talk to concrete action?

I hope many in the justice system and beyond will ask and that the Canadian judiciary has some good answers.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

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Thinking Big about Access to Justice

This article originally appeared on The Lawyer’s Daily on March 3, 2017: https://www.thelawyersdaily.ca/articles/2599. It is the first article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.

Access to justice is the biggest challenge facing our legal system. And just about every lawyer I know cares deeply about the health of that system and many are trying to help. But do we understand the problem and are we making progress? Those questions will be the jumping off spot for this, and subsequent blogs dedicated to access to civil and family justice.

Let’s start with what we mean by the term “access to justice.” I’m concerned that it can have so many meanings that it loses its meaning entirely. Of course it’s a phrase that is bandied around to mean a lot of very different things. What I mean by access to justice is assuring that people have the knowledge, skills, resources and services to meaningfully address their civil and family legal issues.

In order to meaningfully address their problems, people do not necessarily need to have their “day in court” (let alone their month in court!). Access to justice needs to be understood much more broadly than that. I will never forget the women at one of the many access to justice events that I’ve attended over the past eight years who said that sometimes it’s more about a bus pass or a babysitter than it is about getting into court. So access to justice must be understood in broad terms: do people have what is required to meaningfully address their problem?

This broad understanding of access to justice means that we have to keep fair process and practical outcomes in some reasonable balance. Many would say – and I am one of them – that we in the justice system have tended to be process heavy and outcomes light. We all know that too often a judgment is a meaningless piece of paper; too often, what we call fair process provides a means by which moneyed might can wear out the right. Of course, fair process is important. But so are practical outcomes. How often does our current approach provide both?

Once we understand that access to justice must be understood broadly, we quickly see that the problem is both complex and systemic. Everything in our system is related to everything else and so a “solution” adopted by one part of the system can quickly become a “problem” for another part. We have generally been unwilling or unable to take a tough-minded, systemic view of access to justice. And too rarely have we been able to articulate the specific goals of reform or been able to measure or meaningfully evaluate the effects of particular reforms.

Remember when, in the 1970s and early ’80s, broader rights of discovery were thought to be the cure-all for what ailed the civil justice system? Broader rights of discovery would make for fairer trials and encourage settlement. Fast forward 30 years, and what became enemy No. 1 in civil proceedings? Excessive discovery. The discovery saga is typical. Significant procedural reforms are introduced based on anecdotal  evidence (sometimes called “anecdata”) and effects are “monitored” in the same way. We simply do not take account of foreseeable systemic effects of the changes or bother to measure these effects once the reforms are put in place.

What I hope to do in this series of columns is to invite a broader understanding of what access to justice means and to advocate for a fundamental rethink of what our system of civil and family justice needs to look like to achieve practical outcomes by means of fair process for the people who bring us their legal problems. And I hope to celebrate some of the wonderful work that is being done every day across Canada to improve access to justice. In short, I want to invite readers to think big together about how we can bring about major and beneficial change for the people who look to us for help in addressing their civil and family justice issues.

Fasten your seat belts.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now counsel to the national litigation practice at Borden Ladner Gervais.

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The Charter and Legal Aid Ontario’s Proposed Refugee Law Cuts

Legal Aid Ontario (LAO) has announced plans for substantial cuts to its immigration and refugee law services. Other legal aid programs across Canada are no doubt watching this closely, and may be considering similar measures. The proposed cuts, however, may be unconstitutional.

Proposed 40% cuts to Refugee Law Services

Currently, refugee claimants in Ontario who meet the test for financial eligibility can obtain legal aid certificates for assistance in putting together their claim, including drafting Basis of Claim narratives (the key document used in refugee determinations). Most financially eligible refugee claimants also receive legal aid certificates for representation at their refugee hearings, with only a small number refused representation due to merit screening. In addition, LAO funds some other types of representation, including appeals to the Refugee Appeal Division, judicial review of certain immigration and refugee matters in Federal Court, Pre-Removal Risk assessments, Humanitarian and Compassionate applications for Permanent Residence, and immigration detention reviews.

Because of budgetary pressures – both in immigration and refugee law and other program areas – LAO has announced that it will be cutting immigration and refugee law services by 40%, starting in July. The proposed cuts include eliminating all immigration law services outside of refugee law, as well as cuts within refugee law services. For the latter, LAO is asking for advice from stakeholders about how the cuts should be made. To help with these consultations, LAO has put forward a few possibilities. These range from prioritizing Basis of Claim narratives and eliminating representation at refugee hearings, to fully funding legal representation for refugees until a set level of funding for that year runs out and then not giving any further certificates for the year.

The refugee advocacy community is up in arms about the cuts. Many have called on LAO’s funders to step up and fully fund immigration and refugee law services. Others have suggested that there are better ways to achieve cost savings at LAO without reducing services for refugees. These include pushing for improvements to the refugee determination system to reduce costs, cutting services in other program areas, finding efficiencies in LAO administration (including salaries), and reducing the hourly rate of pay for lawyers working on certificates across all program areas.

A constitutional right to publicly funded counsel in refugee cases?

One of the reasons that LAO has proposed cuts to its refugee law program – rather than trying to achieve the same savings through its much larger criminal law program – is because publicly funded counsel is constitutionally mandated in many criminal law cases.

This raises the question of whether there is a constitutional right to publicly funded counsel in the refugee law setting that might prohibit the proposed cuts.

In my view, the answer is yes, at least in some circumstances.

The Supreme Court famously held in Singh v Minister of Employment and Immigration, [1985] 1 SCR 177, that the right to life, liberty and security of the person protected by section 7 of the Charter is engaged by the refugee determination process – and thus that the process must comply with principles of fundamental justice.

And in New Brunswick (Minister of Health and Community Services) v G(J), [1999] 3 SCR 46, the Supreme Court established the test for when state funded legal counsel must be provided in connection with legal proceedings where section 7 rights are at stake. The Court found that state funded legal counsel is not required in all legal proceedings where section 7 rights are at stake. Rather, state funded legal counsel is only required where an indigent party has exhausted other means to secure counsel, and where counsel is necessary for the individual to effectively participate in the legal proceedings and to ensure a fair hearing. The Court went on to note that whether counsel is necessary for effective participation in a fair hearing will depend on three factors:

  1. The “seriousness of the interests at stake”;
  2. The “complexity of the proceedings”; and,
  3. The “capacity” of the individual involved.

It seems to me that the refugee law context easily meets this test.

First, it is hard to imagine any legal process where the interests at stake are more serious. Refugee law involves life and death-decision making. If Canada gets these decisions wrong, refugees may be deported (in contravention of international law) to countries where they will face persecution, torture or even death.

Second, refugee proceedings are complex. They require a solid grasp of domestic and international refugee law, administrative law, constitutional law, international human rights, national security law, and criminal law – as all these are understood and applied in Canada, source countries and countries of transit. And, while the rules of evidence in refugee hearings are relaxed, gathering and presenting the evidence can be challenging, and often requires specialized expertise and ready access to various professionals to persuasively substantiate claims. Additionally, in substantiating their claims, refugee claimants frequently deal with adjudicators who approach refugee claimants with a culture of disbelief and who regularly use small inconsistencies in evidence as a reason to deny claims – which means that small errors in preparing claims can be fatal. Even in the best of circumstances, refugee determinations generally involve challenges related to communication across cultures, and cross-cultural miscommunications are common. All this and more has led scholars who study refugee determination processes to argue that “[r]efugee determination is one of the most complex adjudication functions in industrialized societies.”

Third, as a group, refugee claimants are seldom well-placed to successfully navigate these complex processes on their own (with some exceptions, of course). Most refugee claimants are under extreme stress because of the high stakes of the refugee determination process, combined with the unfamiliarity and uncertainty of the process. Many have good reason to be distrustful of state officials, given their experience with such officials in their home countries. Mental health challenges, including post-traumatic stress disorder, are common because of the trauma that prompts refugees to flee. Most refugee claimants do not speak, write, or read in English or French. This may be the first time they are engaging with a legal process – and they are doing so in the context of a foreign legal system.

Indeed, given both the complexity of the process and the difficulty that refugee claimants face in navigating that process, it is perhaps not surprising that social scientific research – both in Canada and elsewhere – regularly finds that access to high quality legal representation significantly influences outcomes in refugee determinations.

As such, in addition to meeting the three aspects of the test from New Brunswick, publicly funded counsel for refugee claimants also fits with the underlying rationale offered by the Court for constitutionally mandated publicly funded counsel in section 7 cases. That is, publicly funded counsel must be available to refugee claimants as a constitutional matter because claimants require the assistance of counsel in order to effectively participate in the process and in order to ensure access to a fair hearing. Unless such publicly funded counsel is made available, outcomes in the refugee determination process – a process that is constitutionally required to comply with principles of fundamental justice – will hinge at least in part on whether claimants can afford to pay for a lawyer.

Moving forward

It remains to be seen whether LAO will, in fact, move forward with the proposed cuts. The proposal may just be a strong-arm negotiating tactic aimed at pressuring the Federal government to cough up additional money. Perhaps that tactic will succeed, and the cuts will not be necessary. Or perhaps, if the money does not come through, LAO will reconsider and will locate savings elsewhere.

But if LAO does proceed with the cuts, we can expect constitutional litigation. Based on the test set out in New Brunswick, I think this litigation has a good prospect of overturning the proposed cuts.

Ironically, this litigation fits perfectly within the criteria for LAO’s test case program, which has identified “equal access to, and effective protection of, Charter rights” for refugees as a priority for the coming years.

Perhaps continuing to offer adequate refugee law services, and avoiding funding both sides of expensive constitutional litigation about access to counsel for refugee claimants would be one way for LAO to achieve some cost savings down the road.