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A New Call To Action To Improve Access To Justice

At a UN summit in 2015, world leaders identified 17 universal threats to the well-being, safety and advancement of people worldwide and to environmental sustainability. The result was the UN Sustainable Development Goals (SDGs). Officially in effect since January 2016, the SDGs aim to galvanize national and international efforts around an agenda that promotes equity, empowerment and certain fundamental rights and improvements. The target date to reach these goals is 2030.[1]

Notable for the justice community is the addition of Goal 16, which has the object to: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels” (SDG 16). [2] Sub-goal 16.3 calls for advancing the rule of law at national and international levels and ensuring equal access to justice for all.

The importance of identifying equal access to justice as fundamental to quality of life and a goal for all countries to work towards speaks volumes.  It signals an acknowledgement of the pervasiveness of legal problems, the profound effect that legal problems have on people’s lives and the need to eliminate barriers and create avenues to deal with legal problems for the betterment of societies and to improve people’s lives. Like the eradication of extreme poverty and hunger (SDGs 1 and 2 respectively), the promotion of good health and well-being (SDG 3), gender equality (SDG 5), clean water and sanitation (SDG 6) and climate action (SDG 13), among other goals that are common targets for global efforts, access to justice now forms part of a critically important pledge and agreement of what is “urgently needed to shift the world onto a sustainable and resilient path”.[3]

The extent of the access to justice problem

The Hague Institute for Innovation of Law’s (HiiL’s) 2017 Annual Report and Accounts reveals, based on data collected over the course of 4 years in 12 countries in Europe, Africa and the Middle East, approximately 1 billion new justice problems arise each year.[4] Further, an estimated 6 billion people in the world do not have adequate access to justice, with legal need being most prominent in areas related to civil and family justice problems types.[5]  Closer to home, the 2017 Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans report indicates that over the course of the last year, 71% of low-income households experienced at least one civil justice problem and almost 90% the civil justice problems that were reported by low-income Americans received inadequate or no legal help.[6] In Canada, almost 50% of adults experience a civil or family justice problem in a given three-year period and essentially every adult will experience a serious civil or family justice problem over the course of their lifetime.[7] From civil and family courts within our borders where a majority of litigants appear without representation[8] to insufficient funding for provincial legal aid programs that threaten the delivery of legal help to low-income and vulnerable individuals[9], there are various examples of impediments to accessing justice in Canada.

In many respects, this shared universe of access to justice challenges has not hitherto provoked a sense of global urgency proportional to its seriousness. A commitment initiated through the UN SDGs for  governments to act to address this crisis and, an appeal to stakeholders in private and public sectors to contribute, to the extent of their resources, to helping to achieve this sustainable development goal (and others) is not only welcomed, it is necessary.

Progress on access to justice

The Canadian Government recently released Canada’s Implementation of the 2030 Agenda for Sustainable Development Voluntary National Review. This is the government’s first report on how Canada is responding to the 17 UN SDGs and the progress to date on the targets included for each goal. There are encouraging signs of development and engagement at the federal level in programs and activities intended to engender advancement of the specific nature outlined as part of the Sustainable Development Agenda.

Additionally, the report highlights the integral work that various institutions, bodies and organizations across Canada are doing in support of these goals. Complex, far-reaching problems like access to justice benefit from buy-in from all stakeholders who can contribute to addressing the various facets of the problem. Such is the work that organizations like the national Action Committee on Access to Justice in Civil and Family Matters are doing. In areas of access to civil and family justice, the Action Committee is coordinating and mobilizing local and regional initiatives to improve access to justice in Canada, and where possible, to assist progress on other, related goals. The breadth of the Action Committee’s efforts and national progress in 9 key areas identified by the Action Committee as critical to move the dial on access to civil justice and family justice are further documented in the recently published Justice Development Goals progress report.

A multi-country initiative that is being supported by Canada’s International Development Research Centre (IDRC) and that includes the Canadian Forum on Civil Justice (CFCJ) and in-country partners in Kenya, Sierra Leone and South Africa is also highlighted in the Voluntary National Review. This collaborative project is producing evidence to support a business case for scaling up community justice services to help low and middle income earners in Canada and Africa.

Access to justice is not a new problem nor is it a unique one. There are certainly aspects of the access to justice debate that have evolved over time as has our understanding of the complexity of the problem and ways to address it. To the extent that the first step in solving a problem is acknowledging that the problem exists, UN SDG 16 that promotes equal access to justice has arguably put us on a necessary path towards targeted improvements. As an initial, promising step, the publication of the 2018 Voluntary National Review report shines a light on the work that is happening nationally and internationally towards improving access to justice and has also perhaps forced a reflection on our serious failings in this area. Hopefully, this is the impetus that was needed to effect significant improvements in access to justice. We have until 2030 to get there.

This blog originally appeared on Slaw  on August 14, 2018.

By Lisa Moore

 

[1]  The Sustainable Development Goals (SDGs) succeed the 2000-2015 Millennium Development Goals (MDGs). For more information on the Millennium Development Goals, see generally United Nations, “News on Millennium Development Goals”, online: United Nations <http://www.un.org/millenniumgoals>.

[2] SDG 16 is among nine new objectives in the UN 2030 SDGs that were not a part of the UN’s 2000-2015 MDGs. For the complete list of UN Sustainable Development Goals, see United Nations, “Sustainable Development Goals”, online: United Nations < https://sustainabledevelopment.un.org/?menu=1300>.

[3] United Nations, “Transforming our world: the 2030 Agenda for Sustainable Development”, online: United Nations <https://sustainabledevelopment.un.org/post2015/transformingourworld>.

[4] HiiL, Annual Report and Accounts 2017 (The Hague, Netherlands: HiiL, 2017) at 4, online: HiiL < http://www.hiil.org/data/sitemanagement/media/HiiL%20Annual%20report%20and%20accounts%202017.pdf>.

[5] Ibid at 12. The top 5 categories of problems identified in the countries included in the survey are family, employment, crime, land, neighbours.

[6] Legal Services Corporation & NORC at the University of Chicago, The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans (Washington, DC: Legal Services Corporation, June 2017) at 6, online: Legal Services Corporation <https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf>.

[7] Trevor C.W. Farrow et al., Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) at 2, online: Canadian Forum on Civil Justice < https://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[8] Julie Macfarlane, “Identifying and Meeting the Needs of Self-Represented Litigants,” Final Report of the National Self-Represented Litigants Project (May 2013) at 122, online: <http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf>.

[9] See e.g., Ian Mulgrew, “Ian Mulgrew: Stretched legal aid living on hope in B.C.” Vancouver Sun (7 January 2018), online: < https://vancouversun.com/news/national/ian-mulgrew-stretched-legal-aid-living-on-hope-in-b-c>; Ian Mulgrew, “Ian Mulgrew: Legal aid boost in eye of beholder” Vancouver Sun (21 January 2018), online: < https://vancouversun.com/news/politics/ian-mulgrew-legal-aid-boost-in-eye-of-beholder>; Sean Rehaag, “The Charter and Legal Aid Ontario’s Proposed Refugee Law Cuts” (7 June 2017), A2J Blog (blog), online: < https://cfcj-fcjc.org/a2jblog/the-charter-and-legal-aid-ontario%E2%80%99s-proposed-refugee-law-cuts>.

 

 

Access To Justice: How It’s Looking On The Ground

This article originally appeared on The Lawyer’s Daily on August 13, 2018. It is the eleventh article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

West Coast LEAF is a legal advocacy group whose mandate is to use the law to create an equal and just society for all women and people who experience gender-based discrimination. In other words, it is an organization dedicated to access to justice writ large. I was able to speak to Zahra Jimale, West Coast LEAF’s Director of Law Reform about its work, her conception of access to justice and, most importantly, how successful we’ve been in improving access to justice on the ground. Here is what she told me.
 
TC: Tell me about your role at West Coast Leaf

ZJ: In collaboration with the community, West Coast LEAF uses litigation, law reform, and public legal education to make change. We do our work in six focus areas: access to healthcare; access to justice; economic security; freedom from gender-based violence; justice for those who are criminalized; and the right to parent. As the Director of Law Reform, I provide leadership, strategic planning and project management with respect to policy and law reform in all of the six focus areas. I work with our team to develop the organization’s position statements and recommendations on implementation and reform of policy and law. I bring to this role my experience of founding and operating an independent family law practice where I provided a variety of family law services, including unbundled legal services, legal coaching, collaborative divorce, and mediation.

TC: What do you perceive as the biggest access to justice gap?

ZJ: There is a significant gap between what the public expects of the justice system and what the justice system delivers and is currently capable of delivering.

There is lack of deeper understanding of what it means to truly access justice; that justice is not simply achieved by accessing, but by obtaining just outcomes in an efficient and cost effective manner, regardless of the type of dispute resolution process that is pursued, be it court or alternative dispute resolution processes; that meaningful access to justice requires recognizing and dismantling the various barriers faced by many, and in particular, that there are intersecting barriers faced by certain populations because of historical and/or current systemic challenges. The complexity of the system, long delays, lack of access to affordable and timely legal advice and representation, and lack of adequately funded legal aid system continue to widen the gap.

An urgent systemic change is required to reduce these barriers and an immediate action must be taken to address the growing access to justice crisis, especially in family law. Where individuals are unable to access lawyers due to prohibitive costs and lack of public service, they are left with no choice but to either forego rights and interests, including the protection of their children’s rights and interests, or represent themselves without appropriate legal advice and/or representation. This is why West Coast LEAF and a team of pro bono counsel is representing the Single Mothers’ Alliance and an individual plaintiff in an ongoing constitutional claim against the B.C. government and the Legal Services Society for failing to provide adequate family law services, in particular to women fleeing violent relationships.

Zahra Jimale

TC: There is a lot of talk about the access to justice problem, but do you see signs of improvement on the ground?

ZJ: Unfortunately, we are far from seeing meaningful access to justice. Although there has been a lot of talk and some action, particularly in diverting disputants away from the court system and litigation generally, the justice system remains inaccessible to those that need it most. The barriers to accessing justice and the significant adverse consequences, including safety concerns for those fleeing violent relationships, are ongoing. Even though nearly half of Canadians over the age of 18 experience at least one civil or family law problem over any given three-year period, justice system funding continues to be woefully inadequate.

TC: If you could do any one thing to improve access to justice, what would you do and why?
 
ZJ: I would change the way we perceive access to justice. I believe once we recognize access to justice as a human right that is fundamental to the protection and promotion of the rule of law, we will then be forced to take the necessary action to ensure that it is meaningful and protected. This includes increasing the public’s knowledge of the justice system and how to manage and resolve legal problems; making available cost effective and appropriate avenues for resolution; providing meaningful access to resources and services; ensuring adequate funding of legal aid; and maintaining appropriate judicial complements and effectively functioning courts.

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.

Access To Justice: Diana Lowe On Support For Families As They Restructure

This article originally appeared on The Lawyer’s Daily on July 30, 2018. It is the tenth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

Alberta has been engaged for several years in an ambitious family law reform effort. I spoke to Diana Lowe, co-lead of the Reforming the Family Justice System (RFJS) initiative, about what they have been doing and what’s ahead. Here is the second part of my interview with her.

TC: What main innovations have been introduced and how are they working?

DL: The most significant change that has taken place, is a shift in the mental model or culture in the family justice system, away from improving access to lawyers, law and adversarial processes, and instead to a focus on family well-being through services that support families as they experience the pressures of restructuring. We are encouraging awareness of this shift by all participants in the family justice system, including families, and encouraging alignment with the Theory of Change in policy and programs.

We are beginning to see shifts in systems, policy and practices including the Court of Queen’s Bench that has adopted the Theory of Change in its Strategic Plan and is beginning to take action to put this into effect. Resolution Services in the Ministry of Justice and Solicitor General is developing a pilot to refocus the work of frontline staff as “justice system navigators.” These staff will be trained in brain science, and will develop maps of community services so they can assist families to obtain the supports they need for their social, relationship, parenting and financial needs.

This pilot is a collaboration with the County of Strathcona Family and Community Support Services (FCSS) and if successful, will be expanded to include FCSS organizations throughout the province.

Alberta has submitted a joint proposal (by the Alberta Ministry of Justice and Solicitor General, the Court of Queen’s Bench and the provincial court) to the federal minister of Justice, for the creation of an Alberta Unified Family Court. The proposal embedded the RFJS Theory of Change, supporting the use of services to assist Alberta families to access supports they need to help develop resilience, and to resolve disputes away from the adversarial processes of courts as much as possible.

TC: How is the experience of a family going through separation and divorce different from what it might have been five years ago?

DL: While the RFJS is still underway, there are many things that parents can do already to help them and their children thrive as they restructure. As co-convenor Justice Andrea Moen noted at our recent Collaborator Workshop, collaborative family professionals were out front in understanding that co-operation and collaboration between parents is essential for the health of the family and of the children. They led the way by creating teams of professionals to assist families.

The RFJS is aligned with the collaborative approach both to help families avoid adversarial court processes and to work out the restructuring of their family. Their approach is a model which ensures that families receive the kinds of relationship, parenting and financial supports that they need, and families can be guided by the model that collaborative professionals have created for supporting healthy families.

There are many different supports that are available to assist families, including collaborative family practitioners, co-parenting experts, wellness coaches, grief counsellors, financial advisers, step-parent supports, and of course mediators and lawyers. Examples of these supports are published regularly in Divorce Magazine. Families can use technology tools that encourage parents to work together to achieve better outcomes, including coParenter and Undo.

Supports for families are also available in most communities in the province through Family and Community Support Services partnerships between the provincial government and municipal governments; at Parent Link Centres; and through Triple-P Parenting Resources.

The RFJS is supporting the Ministry pilot in the County of Strathcona that will see families seek these supports, as part of our goal for better outcomes. As families are encouraged to seek out these supports early on in their decision to restructure, they are better able to deal with the emotional, parenting, relationship and financial challenges that commonly occur upon separation and divorce, and to avoid tangling these issues into legal processes.

TC: What’s next?

DL: Our Outcomes Framework identifies our key priorities for the coming year as:

  • Working with the legal profession to encourage brain science education by family lawyers, and identifying implications for shifts in ethical responsibilities and practices of family lawyers.
  • Working with the courts to ensure they are familiar with the Theory of Change, and are encouraged to align court processes with it.
  • Continued work with the Ministry of Justice and Solicitor General on the pilot with FCSS, and other family justice initiatives.
  • Helping to enhance the public understanding that “parents fighting about their children causes harm,” and to provide information about supports to improve resilience and well-being of family members.
  • Working with frontline service providers and supports for families, to empower them to provide the social, relationship, parenting and financial supports that families need when they’re restructuring.
  • Working with other ministries (Health, Education, Community and Social Services, Children’s Services) to share the Theory of Change and seek alignment with it, and the integration of services for families, in order to help families thrive.

This is the second of a two-part series. Read part one here.

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.