Author: Lisa Moore

Ab Currie, Senior Research Fellow at CFCJ, represented the CFCJ at the 2023 OECD Global Roundtable on Equal Access to Justice: Making People-Centered Justice Happen in Ljubljana, Slovenia, December 6 to 8, 2023. The meeting included two technical workshops, one on “Building Evidence for People-Centered Justice” and a second on “Access to Justice for Children and Child-centered Justice”. Roundtable topics included “Responsive and Resilient Systems for Healthy Democracies and Trust in Institutions” and “The “People” in People-Centred Justice: Learning from Diverse Experiences within Justice Systems”.

Following the roundtable discussions, expert policy discussions included Advancing Access to Justice for All: Leaving No One Behind, Measuring People-Centricity and Access to Justice and Promoting Innovation in Justice Services. Two collaborative workshops on the final day of the conference addressed regulation for access to justice and measuring and improving access to justice in court services. Among the many issues that were discussed, one thread running through a number of the sessions was the application of digital technologies in people-centered access to justice.

Family violence, formerly known as “domestic violence”, is an all-too-common problem for all too many Canadians. In 2021, over 127,000 people reported being the victims of family violence, receiving physical or mental abuse from their spouse, parents, children, siblings, or extended family members. And these numbers only reflect the instances of police-reported violence. Fearing retaliation, it’s estimated that 4 out of 5 victims do not report their abuse to the police – and suffer in silence.

This problem grows by the day. In Ontario, 26 regions have already voted to label family violence as an epidemic, calling on the province to dedicate more resources to victim service providers. It’s hard to point to an exact cause for this new wave of violence. While some say the COVID-19 pandemic is at fault – forcing victims to stay with their abusive family members – the increase in family violence predates COVID by almost half a decade. Between 2016 and 2021, the rate of family violence increased every single year, with a sharp increase during the pandemic, but an increase that’s part of a longer, overarching trend.

While the cause for this problem is unclear, part of the solution to this problem is evident: the civil justice system. Through the civil justice system, victims of family violence can petition to separate from abusive partners, seeking a life free from the shackles of violence. And yet, when many of these victims turn to the justice system for support, they fall through the gaps. They do not receive the support they deserve. For instance, a recent Quebec study followed 52 women who were the victims of family violence; of those who began legal proceedings, none said they’d recommend the complaint process. Many complained the legal process was onerous, overcomplicated, and overly intimidating. Our civil courts fail them, and justice remains inaccessible.

These failures must be seen through a gendered lens; of reported cases, 79% of family violence victims are women and girls. In the civil justice system, judges often lack the sensitivity training to handle family violence cases, especially for women victims. A recent report by CBC News found that judges often fail to recognize signs of non-physical abuse. For instance, perpetrators often exercise “coercive control”, silently abusing and manipulating their partner: destroying their work clothing, hiding their car keys, or keeping them up throughout the night. This is rarely seen as family violence by judges, and can result in the awarding of joint custody of children to both a family violence perpetrator and victim. And, since there is no right to counsel in the civil justice system, many victims cannot afford representation – and must rely on a pro-bono lawyer, if one exists.

There have been positive signs – signs that this crisis might be getting the response it deserves. Last year, the Department of Justice (DoJ) announced almost one million dollars in funding for judicial sensitivity training, teaching judges to recognize non-physical signs of abuse. Through its Family Violence Initiative, The DoJ also funds projects aimed at improving the justice system’s response to family violence, indicating that this is an important, slow-burning issue for the federal government. On Parliament Hill, Bill S-249, which sets out a national strategy for the prevention of intimate partner violence, has just finished its second reading in the Senate, and will set a new framework for reducing family violence. However, the federal government alone cannot fix this crisis. To end family violence in this country requires all of us – provinces, municipalities, individual citizens – to do our part.

For provinces, to lower the requirements for legal aid – requirements which bar thousands of marginalized individuals from seeking help – so that the voices of all victims are fully heard in court.

For municipalities, to recognize the epidemic that now faces us, joining the regions that have already seen this crisis for what it is, and are now calling for additional victim support services – so that the mother who’s beaten by her husband, or the grandfather who’s coerced into changing his will, feels empowered to leave their abusive relationships, and engage with our justice system in the first place.

For individual citizens, to do what they can – whether that’s volunteering for women’s shelters, or donating to victim support services, so that, one by one, we can help those who need it most.

The victims of family violence deserve more. They deserve solutions. They deserve to know that Canada’s justice system is behind them – not just in word, but in deed. Our justice system can no longer be part of the problem – it must be part of the solution.

It has been nearly two decades since the Accessibility for Ontarians with Disabilities Act (AODA) was passed. The Act mandates that organizations across all levels of government, private sectors, and non-profits become accessible to people with disabilities.[1] The end goal is to create a fully accessible Ontario by 2025. With the deadline just three years away, we must be prepared to ask whether Ontario can meet the AODA standards and ensure compliance in the next three years.

What is the AODA?

The purpose of the AODA is to set out a process for developing and enforcing accessibility standards to make Ontario more accessible and inclusive.[2] For instance, persons or organizations that are subject to accessibility standards must set out measures, policies, and practices for the identification and removal of accessibility barriers.[3] In effect since 2005, the Act expects public and private organizations to implement all accessibility standards necessary by January 1, 2025.

Building Inaccessible Spaces in a Modern Ontario

In 2017, Toronto lawyer and AODA Alliance chair David Lepofsky highlighted several inaccessibility barriers that plague academic institutions.[4] A key concern is that organizations continue to build new inaccessible environments in the face of the AODA’s mandate. Lepofsky attributed the accessibility barriers to several factors, such as the inadequate training of architects on accessibility. Furthermore, he added that the Ontario Building Code and Ontario’s Disabilities Act required stricter regulations and standards.

Seeing that institutions can bypass accessibility standards long after the AODA’s enactment, it is important that we begin asking how to better enforce the legislation. In an ethical and Charter-protected society, persons with disabilities should not be an afterthought in the context of accessing areas and services.

Enforcing the AODA

Section 83(1) of the AODA outlines the administrative penalties for violating the legislation. Penalties may include a fine of up to $100,000, in the case of a corporation or $50,000 for individuals.[5] However, concerns arise on whether the provincial government can enforce the AODA. In 2016 and 2017, the Accessibility Directorate of Ontario (ADO) found that two-thirds of private sector organizations are not providing all workers with AODA training or creating accessibility policies and plans.[6] Moreover, many public sector organizations also may be choosing not to comply, because they know that compliance will not be enforced as suggested by the lack of audits by the ADO.[7]

In a perfect society, organizations would follow the mandated standards because it is the right thing to do, not because they will be penalized for doing otherwise. Realistically, however, we cannot presume that every facility, service, or employer will adhere to a standard of daily living if not mandated by law. Educating the public and private sectors in Ontario on the importance of a fully accessible province as intended by the legislation is one hopeful avenue for encouraging compliance. Nonetheless, depending on good-faith compliance does not necessarily guarantee the implementation of accessibility standards. Therefore, state actors should be prepared to enforce the AODA, especially as the deadline approaches.

Modernizing Access to Justice for Persons with Disabilities

Over the years, the scope of ‘accessibility’ has evolved. Most notably, a new AODA requirement came into force for organizations to ensure that Ontario websites are accessible to computer users with disabilities on January 1st, 2021.[8] The province recognized that ‘accessibility’ should also encompass the flexible delivery of all legal services so long as it does not undermine the administration of justice. Remote court hearings demonstrate a great example of a modern world’s flexibility. With the option of virtual hearings, clients and lawyers alike avoid the hassles of on-site barriers, namely the lengthy travels, the availability of parking, and the costs of travelling. Next, clients will no longer be limited to choosing legal representation based on geographic proximity and will instead have the option to resolve their disputes remotely with legal representation from anywhere in the province.[9] This expands options for legal representation for people across Ontario, especially persons with disabilities who live in underserved and rural communities, and others with disabilities in the province.

Assuming that virtual hearings remain a norm for accommodating litigants in a post-pandemic world, we must ensure that those accommodations are also up to par with the accessibility standards mandated by the AODA. Though virtual hearings offered significant benefits to their participants, litigants faced other issues. According to a survey of family justice professionals, many respondents felt dissatisfied with virtual hearings and the adoption of new technologies.[10] Litigants living in poverty and rural families are disproportionately disadvantaged due to their lack of access to technology and the internet. As well, some litigants, particularly older individuals, reported experiencing greater challenges in learning and adapting to new technology.[11] Despite the many benefits of courts adopting technological advancements, disability barriers can be exacerbated in the process. That said, virtual accommodations alone are not sufficient for Ontarians to adequately operate and benefit from the justice system. Similar to physical accommodations, it is also important for the AODA to ensure that remote accommodations are set up appropriately.

Those who wish to access legal services, whether on-site or remotely, deserve to do so free of physical and other barriers. Since 2005, significant progress has been made to transform Ontario into a fully accessible and inclusive province. However, some issues remain to be addressed and resolved in the next three years. Can the province achieve its initial goal of being fully accessible by 2025?

[1] Lisa Kovac, “What is the AODA?” (2 October 2018), online: Accessibility for Ontarians with Disabilities Act <aoda.ca> [perma.cc/9DX8-4S4S].

[2] Accessibility for Ontarians with Disabilities Act, 2005, SO 2005, c 11.

[3] Ibid, ss 6(6)(a).

[4] See for example, Miriam Katawazi, “Ryerson’s student centre isn’t accessible for students with disabilities, advocate says”, Toronto Star (2 November 2017) online: <www.thestar.com> [perma.cc/H65L-C5D8].

[5] Supra note 2.

[6] Lisa Kovac, “Enforcing the AODA” (10 August, 2020), online: Accessibility for Ontarians with Disabilities Act <aoda.ca> [perma.cc/LC5X-QY85].

[7] Ibid.

[8] Lisa Kovac, “New AODA Requirement for Ontario Websites?” (2 November 2018), online: Accessibility for Ontarians with Disabilities Act <aoda.ca> [perma.cc/BS7V-N8TA].

[9] See for example Russell Alexander, “Refuting case for in-person court, point-by-point, part two”, The Lawyer’s Daily (31 May 2022), online: <www.thelawyersdaily.ca> [perma.cc/6BWK-VR5G].

[10] Houston et al, “Ontario family justice in “lockdown”: Early pandemic cases and professional experience” (2022) at 254, online (pdf): Family Court Review <journals-scholarsportal-info.ezproxy.library.yorku.ca> [perma.cc/N882-8CXA].

[11] Ibid.

The World Justice Project (WJP) will soon release the 2022 WJP Rule of Law Index.[1] This article discusses the 2021 WJP Rule of Law Index and what it reveals about the state of civil justice in Canada.

The Rule of Law Index is an overall score made up of eight components: (i) Constraints on Government Powers, (ii) Absence of Corruption, (iii) Open Government, (iv) Fundamental Rights, (v) Order and Security, (vi) Regulatory Government, (vii) Civil Justice, and (viii) Criminal Justice. The data used to measure the components are drawn from surveys of public attitudes and expert opinion. The World Justice Project has produced an annual Rule of Law Index for countries around the world since 2008, with data from recent reports accessible through a highly searchable dashboard. Readers who enjoy viewing the world through numbers will likely find this database convenient and interesting.

In 2021 Canada ranked 12^th overall out of 139 countries included in the WJP Rule of Law Index global survey with an overall score of 0.80 out of 1.00. Denmark, Norway and Finland, with overall scores of 0.90, 0.90 and 0.88, respectively, occupied the top three places on the WJP Rule of Law Index. Canada ranks 11^th in the world on Absence of Corruption with a score of 0.82, 11^th on Open Government with a score of 0.80, and 11^th globally on Criminal Justice with a score of 0.73. We rank 13^th on Constraints on Government power with a score of 0.82 and 13^th on upholding Fundamental Rights. Canada ranks 14^th on Order and Security with a score of 0.90 and 15^th on Regulatory Enforcement with a score of 0.80. This is very similar to previous years.

Canada’s overall position and our rank on all but one Rule of Law measure are consistently solid, but when it comes to the eighth component of the Rule of Law Index, Civil Justice, we rank 22^nd in the world with a score of 0.70. Civil Justice has been Canada’s lowest score among the Rule of Law components since the WJP survey began. The Civil Justice component is made up of separate indicators measuring whether civil justice systems are accessible and affordable as well as free of discrimination, corruption, and improper influence by public officials. It examines whether legal proceedings are conducted without unreasonable delays and whether decisions are enforced effectively. It also measures the impartiality and effectiveness of alternative dispute resolution mechanisms. Since the WJP began publishing the Rule of Law Index, the two lowest scores making up the Civil Justice component for Canada have consistently been accessibility and affordability and absence of unreasonable delays.

In 2021 it is not only a case of oops, we did it again. We have slipped even further in comparison with other top-ranking countries.  The graph below illustrates that Canada’s global rank on the Civil Justice component of the rule of law index declined from 18^th in 2015 to 22^nd in 2021.

Twenty-one countries rank higher than Canada on the Civil Justice component. Some are common law countries and some are civil law jurisdictions and the type of justice system makes a difference in terms of how things work. However, there are many factors that might affect the state of  civil justice. An examination across different jurisdictions might be highly instructive in addressing our low position in relation to other high income countries, assuming that sitting in 22^nd position indicates that we have some work to do.  Perhaps it is time for a Canadian scholar, adequately funded, to carry out a comparative study of these other countries to determine how they do it and how we in Canada might improve our civil justice system.

The 2022 World Justice Project Rule of Law Index report will be released on October 26, 2022.

 

[1] For previous editions of the World Justice Project Rule of Law Index, visit: https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2021/previous-editions-wjp-rule-law-index.

Last year, the biennial ILAG conference, Access to Justice and the Challenge of COVID-19 was held from June 22 to 24. The ILAG conferences have become the premier legal aid conference series in the world, held every two years in a different international location since its beginnings in 1994 as a meeting in which a small number of academics and researchers provided advice to the Dutch Legal Aid Board. Last year for the first time the conference was held on-line, sponsored by ILAG and Legal Aid New South Wales, with New South Wales providing the all-important technical support required to host a global on-line conference.

The theme of the conference was how legal aid service providers have responded to the COVID-19 pandemic, although there were presentations on a variety of other topics, prominent among them holistic legal services and health-justice partnerships. Regarding COVID responses, most legal aid providers have turned to digital methods of service delivery in response to the pandemic. Roger Smith, a leading authority on the application of digital technology in legal services, cautioned that technology is not the total answer. Rather, complex and mixed services will be required to address complex and mixed problems. Importantly, as digital approaches come into wider use we must avoid the nirvana of increased access at a reduced price. There were a number of contributions to the COVID sessions from Australian colleagues. Among them a paper by Jane Cipants from New South Wales discussed how services could be both client-centered and COVID safe drawing on the experience of NSW legal aid through the pandemic. It will be an interesting exercise to reflect further on these discussions as we emerge from the pandemic and have a better understanding of the processes and digital approaches that are here to stay and the pre-pandemic procedures that have returned.

There were several papers about holistic and integrated services. Megan Longley, CEO of Nova Scotia Legal Aid and David McKillop, Vice President of Policy, Research and External Relations at Legal Aid Ontario made a joint presentation on holistic initiatives in Canadian legal aid focused on racialized minorities. One point of emphasis was that the commitment to holistic justice in legal aid is not only at the project level but a total commitment to an overall service delivery ethic.

There were several presentations about health-justice partnerships. Suzie Forell, Research Director at Health Justice Australia spoke about how health-justice partnerships support collaboration between lawyers and health workers to better identify and respond to legal needs that can undermine people’s health. Professor Dame Hazel Genn talked about her experience with health–justice partnerships in the UK, emphasizing the importance of rolling out local health-justice partnerships within a broader health-justice partnership initiative.

ILAG 2021 was a well-organized and successful on-line conference. However, admittedly without the benefit of the post-conference participant questionnaires, the consensus among those who offered an opinion at the end of the conference was that an in-person event would have been preferable. The 2023 International Legal Aid Group conference will be held somewhere in the Americas. Discussions with possible hosts are currently on-going.

Papers, abstracts, recorded presentations, national reports and information about presenters for ILAG 2021 are available at: https://www.legalaid.nsw.gov.au/about-us/international-legal-aid-conference-2021.

The idea of paths to justice is a foundational metaphor for access to justice in the contemporary discourse on legal problems. In her seminal research, Professor Genn focused on the legal needs of the public rather than issues related to the courts[1]. Her approach was to focus on the behaviour of members of the public in dealing with non-trivial justiciable civil problems and disputes, identifying and mapping the strategies people used to deal with them from the bottom up.[2] The legal problems research shows that people use a variety of ordinary means to deal with everyday problems, often because they do not recognize the legal nature of the problem and, as a consequence, do not seek legal advice to deal with it.

The extent to which paths to justice were determined by the trusted intermediaries to whom newcomers turned to for help was an important unanticipated finding of a three-year “Newcomer Conversations: Learning Canadian Law Project” carried out by Halton Community Legal Services (HCLS). HCLS is a community legal clinic that provides free poverty law services to low-income residents of Halton Region, a short distance west of Toronto. During the project, lawyers from HCLS led 144 interactive PLE workshops called “newcomer conversations.” The interactive format encouraged participants to discuss problems they were currently experiencing, making the PLE session more directly relevant to them.

An estimated 2,063 newcomers participated in the workshops from March 2019 to April 2021. The conversations were hosted by nine community organizations that provided services to newcomers and covered six legal topics: workers’ rights, tenants’ rights, wills/powers of attorney (POAs), family law, public benefits, and human rights and discrimination. Because of the COVID-19 pandemic, it became necessary to change from in-person to virtual workshops. Eighty-two of the 144 conversations (57%) were held in-person, while 62 (43%) were held virtually. Newcomer participants were asked to complete a short survey modeled on the legal health check-up developed by HCLS that helped them identify potential legal problems relevant to the conversation topic. Participants had the option at the end of the survey to request a follow-up call from HCLS for help with any of the problems they identified.

In post-conversation focus groups and individual interviews, newcomers stated that they were most likely to first seek legal help from a settlement specialist or an English as a Second Language (ESL) / Language Instruction for Newcomers to Canada (LINC) Instructor.[3] About one third of participants (37%) requested a follow-up call from HCLS. However, only 5% of them became new or returning clients of the clinic. Even though disadvantaged groups are typically hard to contact for follow-up assistance, the number of newcomers requesting assistance from the community legal clinic was far below what had initially been expected. The relatively low number of call requests and new clients was largely attributable to newcomers’ strong preference to seek help from trusted intermediaries. Newcomers reported that they would continue to seek help from a service provider they trust, even after attending a conversation and learning about HCLS’s free legal and interpretation services.

A majority of service providers in trusted intermediary organizations (82%) reported in post-project interviews that they would refer their client to HCLS. Some would also call HCLS directly to make a “warm referral” and, if necessary, would translate for a newcomer client with low ESL skills who was in need of assistance.[4] Others would call HCLS for a “legal secondary consultation.” This is where a clinic lawyer, licensed paralegal or experienced legal worker (the LSC advisor) provides one-on-one advice by telephone or e-mail to the service provider to help the provider resolve problems for their newcomer clients. The newcomer experiencing the problem does not become a direct client of the clinic unless the LSC advisor decides on a referral. Some settlement specialists also indicated that they sometimes provided assistance themselves, or made referrals to other organizations, if they thought the client’s legal problem was not serious enough to make a referral to a lawyer.[5]  It cannot be assumed that service providers possess a high degree of legal capability to make judgements about the presence of a legal issue and the need for a clinical assessment by a lawyer. This suggests that HCLS should continue to work very closely with service providers in organizations assisting newcomers to ensure they understand the interplay between legal and non-legal problems and the holistic nature of services provided by the clinic.

The Newcomer Conversations Project followed an approach of partnering with community organizations to gain access to hard-to-reach groups that has been central to the work of HCLS for years.[6] The evaluation of the project indicates that HCLS should continue to develop collaborative partnerships with trusted intermediaries to effectively reach and serve as many newcomers living in Halton as possible. The research shows the important role of trusted intermediaries in determining pathways to assistance. The paths to justice perspective emphasizes how the collaboration between community legal clinics and community organizations must include an understanding of how the behaviour of people in need and of trusted intermediaries to whom they will likely turn first for help, shape the paths to justice they will follow. Otherwise, the best laid plans for providing assistance will not work as well as they might.

 

This blog was written by Ab Currie, Ph.D., Senior Research Fellow, Canadian Forum on Civil Justice, Brandon D. Stewart, J.D., LL.M., J.S.D., Assistant Professor, University of Ottawa, Faculty of Law and Giulia Reinhardt, Executive Director/Lawyer, Halton Community Legal Services.

 

[1] Hazel Genn, Paths to Justice: What people do and think about going to law, Hart Publishing, Oxford, 1999.

[2] Ibid., p. 12

[3] Brandon D Stewart, Building Trusting Relationships Through Interactive PLE Conversations: A Report on the Newcomer Conversations-Learning Project, Halton Community Legal Services, September 2021, p. 53-54

[4] Ibid. p. 80

[5] Ibid., p. 57

[6] Brandon D. Stewart and Ab Currie, Legal Secondary Consultation: Expanding the Reach of Ontario’s Community Legal Clinics Through Community Partnerships, Acesso a Justica nes Americas, Justice Forum of the Ibero Latin-American Working Group, Rio de Janeiro, Brazil, 2021, pp. 103-125 (with Brandon Stewart)

 

“IMPORTANT NOTICE: In light of COVID-19, we have moved to telephone only.”[1]

Over the course of the COVID-19 pandemic, community legal clinics, pro bono services, and other legal service providers have updated their websites with similar notices. The pandemic has prompted major changes to the delivery and focus of pro bono and legal clinic services in Ontario. Since the early months of the pandemic, there have been concerns that the combination of case backlogs, interest rate cuts, and the 30-percent funding cut to legal aid in 2019 might spell crisis for legal clinic services in the province.[2] The marked increase in experiences of some types of legal problems,[3] coupled with ongoing mental health, physical health, social and economic strains of the pandemic have created additional challenges for legal service providers and those in need of their help. Below, we provide some examples of some of the ways that legal clinic and pro bono services in Ontario have adjusted aspects of their operations to meet changing circumstances and shifting demands during the pandemic.

Remote Service Delivery

Customarily, Ontario’s community legal clinics and pro bono services have offered legal assistance in-person, with limited options for alternative delivery methods such as dial-in services and summary advice over the internet.  Provincial lockdowns, public health mandates that have restricted the number of people who can gather indoors, and physical distancing directives have made many alternative delivery methods the norm. In accordance with public health mandates, many legal clinics in Ontario suspended in-person consultations or have reduced them significantly. With concerns of a fourth wave in fall 2021, remote service delivery measures may remain in place much longer than initially anticipated.

Changes to Services

The pandemic has put pressure on the legal system in different ways, including with new types of legal problems that raise specific, pandemic-related issues. Legal service and information providers across Ontario have responded by tailoring their services and resources to address many of these COVID-19 related questions. For example, Community Legal Education Ontario (CLEO), an organization that provides free legal information and works to educate people on their legal rights, has updated their Steps to Justice information service to include COVID-19 related legal questions on employment, income assistance, housing, family, immigration, wills, and other legal matters.[4]

Community legal clinics in Ontario are also advocating for the public in matters related to COVID-19. One example is the Vaccines for All initiative to which several legal clinics in Ontario are signatories. The initiative is working to advance equal access to COVID-19 vaccines for migrant workers, regardless of their immigration status.[5]

Community-Based Services as Hubs for Social, Health and Legal Information on COVID-19

The pandemic has brought many socio-legal and health-justice issues to the forefront. There has long been an understanding that health problems and legal problems are often interrelated; the same is true of social problems and legal problems.[6] Ontario’s community legal clinics have produced, and now offer a variety of COVID-19 specific resources that speak to the types of interrelated legal, health and social problems that have arisen or increased during the pandemic. The Community Legal Clinic of York Region, for example, has added a page to their website that lists and provides information on social and health resources in the York region related to COVID-19; the page is updated as the legal clinic is alerted to new resources and services.[7]

As an example, the South Asian Legal Clinic of Ontario has published a series of fact sheets on COVID-19 specific social services and how they relate to the legal services provided by the clinic.[8]

An Expansion of Legal Service Availability

It is no secret that Canada is facing an access to justice crisis. The pandemic has only exacerbated this crisis.[9] In recent months, and to help meet an increase in demand for legal help, there has been a move to increase access to pro bono and community-based legal services. Legal Aid Ontario has temporarily increased eligibility thresholds for legal aid certificates, and waived requirements for some matters involving domestic abuse and child protection.[10] They have also waived eligibility requirements for 20-minute summary legal advice phone calls for family law matters and criminal matters.[11]

As an example of a national effort, in response to the pandemic, the National Canadian Lawyers Initiative (NCLI) launched a 1-year program to provide free legal advice to small businesses and Canadians.[12]

Legal Clinics beyond the Pandemic

The COVID-19 pandemic has profoundly impacted legal service delivery in Ontario. This impact will be felt for years to come. Several legal studies are underway that seek to understand the extent of these impacts for users and providers of legal services in Ontario[13] and elsewhere.[14] For now at least, legal clinics and pro bono services in Ontario continue to negotiate the challenges of addressing increased public need with insufficient funding amidst a public health crisis that remains uncertain.

 

[1] This message is displayed at the top of Parkdale Community Legal Services website, accessed on 30 August 2021, online: <https://www.parkdalelegal.org/>.

[2] John Schofield, “Surge in COVID-19 justice issues could spur Legal Aid Ontario funding crisis, lawyers warn”, The Lawyer’s Daily (20 August 2020), online: <https://www.thelawyersdaily.ca/articles/20573/surge-in-covid-19-justice-issues-could-spur-legal-aid-ontario-funding-crisis-lawyers-warn>.

[3] Pro Bono Ontario indicated that they were experiencing a 153 per cent increase in requests for assistance with employment-related problems and a 145 percent increase in housing calls from 2019 to 2020. See Nicole Brockbank, “Calls for free civil legal advice are up 72% in Ontario this year because of COVID-19”, CBC News (21 December 2020), online: <https://www.cbc.ca/news/canada/toronto/ontario-free-civil-legal-hotline-demand-up-1.5845540>.

[4] See CLEO Step to Justice, “COVID-19”, online: <https://stepstojustice.ca/legal-topic/covid-19/>.

[5] ”See Migrants Rights, “Vaccines for All”, online: <https://migrantrights.ca/vaccinesforall/>.

[6] Trevor C.W Farrow., Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup, Lisa Moore, “Everyday Legal Problems and the Cost of Justice In Canada: Overview Report” (Toronto: Canadian Forum on Civil Justice, 2016) at 12, online: <https://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[7] See Community Legal Clinic of York Region, “COVID-19”, online: <https://clcyr.on.ca/covid-19/>.

[8] See for example South Asian Legal Clinic of Ontario, “COVID-19: Uninsured & Access to Health” (14 April 2020), online: <https://salc.on.ca/wp-content/uploads/2020/04/COVID-19-Uninsured-Access-to-Health-Updated-April-14-2020.pdf>.

[9] Olivia Stefanovich, “’We’re in trouble’: Advocates urge Ottawa to help close the access-to-justice gap”, CBC News (18 April 2021), online: <https://www.cbc.ca/news/politics/access-to-justice-federal-budget-2021-requests-1.5989872>.

[10]See Legal Aid Ontario, “COVID-19: Emergency legal aid services set to change” (accessed 30 August 2021), online: <https://www.legalaid.on.ca/news/covid-19-emergency-legal-aid-services-set-to-change/>.

[11] Legal Aid Ontario, “Temporary service changes due to COVID-19” (5 July 2021), online: <https://www.legalaid.on.ca/covid-19-legal-aid-services/#change-01-title>.

[12] Kamille Coppin, “The NCLI is Providing Legal Aid to Small Businesses and Canadians in Need”, Bay Street Bull (23 June 2020), online: <https://baystbull.com/the-ncli-is-providing-legal-aid-to-small-businesses-and-canadians-in-need/>.

[13] See for example Steve Matthews, “The Impact of COVID-19 on Legal Services in Ontario”, Slaw (7 May 2021), online: Slaw <http://www.slaw.ca/2021/05/07/the-impact-of-covid-19-on-legal-services-in-ontario/>.

[14] The Canadian Forum on Civil Justice is a partner in a multi-country initiative that seeks to explore the benefits, opportunities and challenges of community-based justice services in Canada, Kenya, South Africa and Sierra Leone. This initiative will also explore how local community-based justice service providers have navigated and innovated to continue to provide legal services at the local level during the pandemic. To learn more about the Community-Based Justice Research project, visit the project page online at: <https://cfcj-fcjc.org/our-projects/community-based-justice-research-cbjr/>.

Before the Covid-19 pandemic, the court system in Canada was plagued by long wait times and constant delays.[1] The pandemic brought new public health orders discouraging in-person proceedings, and so much of the Canadian court system moved online. Different courts reacted to the pandemic in different ways, but there is no court for which the pandemic has not been a learning experience. The initial shock of moving proceedings and documentation online initially exacerbated the delays. However, with the pandemic potentially slowing down, it is worth asking: What can (and should) the court system learn from the pandemic?

1. Virtual courts do not work for everything

One of the most visible adaptations made by court systems was a move to video conferencing technology for hearings. This move had the advantage of not requiring people to be physically present in the courtroom, but the evidence is mixed as to whether virtual hearings have been good for procedural fairness or access to justice.[2]

For example, a recent review of the Landlord and Tenant Board’s shift to online hearings revealed that tenants do not necessarily have access to the internet or are unable to access the hearings. In fact, tenants are less likely to attend virtual hearings than in person hearings.[3] Those tenants that do attend are more likely to be on the phone than on video, potentially putting them at a disadvantage compared to landlords who are more likely to be able to show their faces and see the board, thereby increasing the perception of their credibility.[4] Similarly, in criminal contexts, there is evidence that bail is set significantly higher for defendants who appeared at bail hearings virtually over those who attended in-person. In this way, the shift to virtual court rooms is less of a venue change as it is a factor affecting access to justice.

Online court could conceivably be an improvement for people who live in rural or remote communities, far from courthouses since they can attend court from their home. However, not all internet is created equal. In remote communities, internet upload and download speeds can make videoconferencing for court impossible.[5]

Despite concerns, many courts and tribunals in Canada and the United States are seeking to make remote hearings more common. For example, in Ontario, the Landlord and Tenant Board has said it will conduct as many hearings remotely as it can, even after pandemic restrictions have ended.[6]

2. Many technological adoptions were overdue

On the other hand, many technological changes have been in the works for a long time and have finally been adopted. The legal system is understandably slow to change. Any change could potentially have drastic unforeseen consequences. However, the pandemic has forced the adoption of many technologies that might otherwise have taken many more years to be implemented. For example, In the Ontario Superior Court of Justice, only the most critical and urgent family and criminal matters were heard up to May 2021. All other matters have been heard virtually. To help cope with additional delays caused by the shift, the Superior Court introduced the “CaseLines Pilot Project” for online filings along with an expansion of services on the Ministry’s Justice Services Online Portal. That pilot project is now expected to be standard throughout the Superior Court system by end of summer, 2021.[7]

On May 12^th, 2020, the Ontario legislature passed the COVID-19 Response and Reforms to Modernize Ontario Act 2020 which makes permanent many temporary changes to the justice system that were implemented due to COVID-19. For example, the law codifies the process for remote commissioning and notarization of documents in Ontario. This change may be especially beneficial to people living in remote communities or people who may face challenges to accessing in-person notary services.[8]

The push to modernize courts and adopt new technologies is old; before the pandemic there was already a need for more efficient, more technologically informed judiciaries. Covid-19 has presented an opportunity for the legal system to embrace appropriate technology. As Justice Pringle of the Ontario Court of Justice has said “One of the silver linings… we feel that we have been booted into the 21st century of technology by this crisis.”[9]

3. People are interested in justice

Courtroom dramas like Judge Judy have been popular for years, but the pandemic has also spurred a reimagining of public engagement with the courts. For example, 20,000 people are said to have watched the trial of a Toronto police officer convicted of assault in a case involving a Black teen in Oshawa, Ontario.[10] Virtual court made the news when images of proceedings surrounding well-known rappers’ criminal proceedings were illegally shared on social media. The problem is not purely formal; illegal sharing of court proceedings can intimidate witnesses and delay proceedings. In the US, a judge in Michigan, for example, made international news by livestreaming his virtual courtroom.[11] Whether renewed interest is a result of extra time spent at home during lockdowns or whether availability of streamed courtrooms was simply capturing an audience that always had an interest, these stories suggest that people are interested in what is happening in the justice system.

The Supreme Court of Canada has been streaming court proceedings for years with archived webcasts going back to 2009.[12] Many other courts in Canada already livestream their proceedings. Maybe it is time for all courts to be livestreamed with recordings available indefinitely, barring only when privacy necessitates otherwise. A Winnipeg judge has recently ruled that fashion designer Peter Nygard’s extradition hearing could be livestreamed. The judge specifically cited the open court principle as guiding his decision. It is currently possible to “sit in” on many Zoom courts such as the Ontario Superior Court of Justice. After all, it is usually possible for the public to sit in the gallery at most court hearings. However, it is not currently possible to obtain a recording of those court hearings.[13]

Professor Amy Salyzyn recently discussed the possibility of expanding the open court principle to online streaming such that even in-person court be streamed in a responsible way.[14] Her column discusses possible setbacks such as privacy concerns for witnesses, but for many cases, the expansion of the open court principle to online availability of court proceedings could play a part in growing public interest in the court system.

Professor Trevor Farrow argues that a key part of initiating change in the judicial system is public interest.[15] The current access to justice crisis, whereby the justice system is no longer affordable and therefore useful to the average Canadian, has been acknowledged for many years.[16] A key part of building the political will for reform is public interest. Though YouTube live streams of the Ontario Superior Court will not solve the access to justice crisis, they may play a part in generating that interest.

4. The justice system needed a cultural shift

In an address to the Action Committee on Access to Justice in Civil and Family Matters, former Chief Justice of Canada Beverly McLachlin discussed some of the impacts of the pandemic for the justice community, as well as lessons learned.[17] Her comments are worth reading in full, but I want to highlight her focus on people-centred justice. A move to people-centred justice is not a new concept, but as Justice McLachlin points out, the pandemic has made the move necessary rather than optional. A people-centred approach to justice means more than simply acknowledging that the civil justice system exists – at least to an important extent – to serve the users. There is a need to rethink how justice infrastructure is designed to make it more user-friendly. As Justice McLachlin explains, it requires expanding our understanding of justice and embracing making justice more accessible by putting resources online for everyone.[18] With an increasing number of self-represented litigants in the system, the ongoing shift to online resources is an encouraging development, but there is a need to increase the number resources and availability thereof. People-centred justice requires that the user be the focus of legal programs and initiatives.

On June 9^th of 2021, the Canadian Judicial Council published a new edition of the Ethical Principles for Judges which states that “Judges should develop and maintain proficiency with technology relevant to the nature and performance of their judicial duties”.[19] This change sends the message that judges are expected to be familiar with new technologies being used in their courts.

       Conclusion

The long-term effects of the pandemic on the justice system will not be known for many years. However, in the meantime, it is worth reflecting on the past year and a half worth of changes brought on by the pandemic to gain a clearer picture on what is here to stay and what isn’t worth holding on to. Certainly, the heuristic of adapting to change should be retained into the future, but the pandemic has also taught the legal system that many technological adaptations do not work and that doing away with what does not work is as important as adopting what does.

By Philippe Thompson
CFCJ Research Assistant
Osgoode Hall Law School Juris Doctor Candidate

 

[1] Bob Runciman, George Baker, “Report of the Standing Senate Committee on Legal and Constitutional Affairs” (Standing Senate Committee on Legal and Constitutional Affairs, 2016) at 1, Online: https://sencanada.ca/content/sen/committee/421/LCJC/Reports/CourtDelaysStudyInterimReport_e.pdf.

[3] Advocacy Centre for Tenants Ontario, “Digital Evictions: The landlord and Tenant Board’s Experiment in Online Hearings”, (2021), Online: https://www.acto.ca/production/wp-content/uploads/2021/06/Digital-Evictions-ACTO.pdf at p 3.

[4] Ibid at p 5.

[5]  Koren Lightning-Earle, “We need access to justice and the internet”, (CBA National, April 29, 2021), Online: https://www.nationalmagazine.ca/en-ca/articles/law/access-to-justice/2021/access-to-the-internet-for-access-to-justice.

[6] Supra note 3 at p 1.

[7] Ontario Superior Court of Justice, “Supplementary Notice to the Profession and Litigants in Civil and Family Matters Regarding the Caselines Pilot, E-Filing, and Fee Payment” (September 2, 2020; updated April 16, 2021) Online: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/.

[8] Nicole Park, Rachel Wong, “ The Government Of Ontario Passes Bill 190, The COVID-19 Response And Reforms To Modernize Ontario Act, 2020” (Mondaq, June 9, 2020) Online: https://www.mondaq.com/canada/directors-and-officers/949852/the-government-of-ontario-passes-bill-190-the-covid-19-response-and-reforms-to-modernize-ontario-act-2020.

[9] Betsy Powell, “’We Have Been Booted into the 21st Century’: What COVID-19 Could Mean for Ontario’s Strained and Outdated Courts.” (Toronto Star, May 5, 2020) Online: https://www.thestar.com/news/canada/2020/05/05/we-have-been-booted-into-the-21st-century-what-covid-19-could-mean-for-ontarios-strained-and-outdated-courts.html.

[10]  John Chidley-Hill, “Ontario’s attorney general says coronavirus pandemic has jumpstarted justice system modernization” (Global News, December 3, 2020), Online: https://globalnews.ca/news/7499808/justice-system-modernization-ontario-coronavirus/.

[11] Todd Heywood, “Michigan judge reverses course, will restart YouTube livestream” (CityPulse, May 20, 2021) Online: https://www.lansingcitypulse.com/stories/michigan-judge-reverses-course-will-restart-youtube-livestream,17138.

[12] Supreme Court of Canada, Archived Webcasts (2009) Online: https://www.scc-csc.ca/case-dossier/info/webcasts-webdiffusions-eng.aspx?ya=2009&mo=0&submit=Search.

[13] Certain people including reporters from designated organisations and court staff are able to access most audio recordings of court proceedings.

[14] Amy Salyzyn, “’Trial by Zoom’: What Virtual Hearings Might Mean for Open Courts, Participant Privacy and the Integrity of Court Proceedings” (Slaw, April 17, 2020) Online: http://www.slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-courts-participant-privacy-and-the-integrity-of-court-proceedings/.

[15] Trevor Farrow, “Ten Steps Forward on the Way to Justice for All”, (Pathfinders, October 20, 2020), Online: https://medium.com/sdg16plus/ten-steps-forward-on-the-way-to-justice-for-all-c84cae998e1d.

[16] See for example: Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil & Family Justice: A Roadmap for Change” (Action Committee on Access to Justice in Civil and Family Matters, October 2013) Online: https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf.

[17] Beverly McLachlin “Access to Justice: When life gives you lemons” (19 May 2021) The Lawyer’s Daily, online: https://www.thelawyersdaily.ca/articles/26825/access-to-justice-when-life-gives-you-lemons-beverley-mclachlin.

[18] Ibid.

[19] Ethical Principles for Judges (Canadian Judicial Council, June 9, 2021), Online: https://cjc-ccm.ca/sites/default/files/documents/2021/CJC_20-301_Ethical-Principles_Bilingual%20FINAL.pdf.

 

 

Introduction

Change is happening on access to justice. While not a new concept, the idea of improving access to justice has taken on new significance in recent years. As [was] discussed at Global Week for Justice and [other] collaborative Access to Justice Week [events in 2020], the work toward providing justice for all is not finished. But we are certainly moving beyond the recognition that access to justice matters and can see meaningful progress being made. Our thinking about access to justice is shifting in fundamental ways. In this piece I set out ten steps forward that have been taken, both globally and in Canada, on the way to justice for all.

Ten Steps Forward

1. Focus. There was a necessary although not sufficient change that involved shifting our focus from the provider – the legal system, to the user – the public. The worldwide wave of everyday legal needs research, including recent reports from Pascoe Pleasence, the OECD/Open Society Foundations and others – catalyzed by Hazel Genn’s Paths to Justice research – has been fundamental for our ability to understand what we mean by access to justice, to uncover the different ways that people experience and deal with legal problems, and to see important connections between legal problems, other problems and potential solutions. In Canada, the foundational legal needs work by Ab Currie helped the Canadian Forum on Civil Justice to develop our recent work on the Cost of Justice. The rise of Self-Represented Litigants (SRLs) as an access to justice issue, and research and attention related to that rise, has further fuelled this important shift in focus.

2. Magnitude. Once we started to look at those who use (and do not use) the system and what they need, it became increasingly clear that the gap between those who need justice and those who can access it is huge. According to the Task Force on Justice’s recent Justice for All report, 5.1 billion people “lack meaningful access to justice.” Acknowledging a problem is an important part of finding solutions.

3. Meaning. What we mean by ‘access to justice’ has become an increasingly contested and interesting discussion. There is no doubt that we at least mean access to courts and lawyers. However, what I found through our “What is Access to Justice?” research is that, when asking the public what they want, people aren’t ultimately hoping for more courts or more lawyers; rather, what they are really looking for – in essence – is some version of the good life. How far we move toward what amounts to substantive, engaged and reflective justice is still an open question. As seen by recent discussions, like the work of Rebecca Sandefur and others, at least we are having the discussion.

4. Innovation. That change is needed in the justice sector is not exactly a ground breaking revelation. Charles Dickens was not the first nor the last person to mock the state of the justice system. We have discussed this for years. However, linking innovation in justice to more general human-centered design thinking and reform has catalyzed a new kind of interest – and opportunity – in justice innovation in Canada and around the world, involving public, private and hybrid initiatives. Hiil has been encouraging this kind of innovation for some time. British Columbia’s Civil Resolution Tribunal and the work of the Labratoire de Cyberjustice, the Legal Innovation Zone, the Access to Justice Centre for Excellence, CREATE Justice, the Winkler Institute for Dispute Resolution and CLEO are but several Canadian examples. Law Societies are also starting to think seriously about the importance of future changes and innovations in legal services and legal regulation, as animated by the work of Richard Susskind, Gillian Hadfield and others. Much can be done to bridge the gap between those who need legal services and those who can provide legal services, including properly supporting those who need legal information (perhaps with some technology-based or in-person assistance) and those who need a lawyer. Having said all of that, as I have argued elsewhere, it will be important to identify and maintain core aspects of what is important about our systems of public justice in order to protect important rule of law and justice values as we move forward with innovations and reforms. Put differently, we need to be careful not to ‘throw the baby out with the bathwater’.

5. Collaboration. There is no doubt that the world-wide collaboration that has increased over the past decade has made a big difference in terms of access to justice attention, momentum and action. One only needs to look as far as this year’s Global Week for Justice for a flavour of this collaborative effort. Canada’s Action Committee on Access to Justice in Civil and Family Matters and its Justice Development Goals provide local examples of this important recognition. We’re learning, supporting, building on and starting to align our collective efforts.

6. Development. It is now increasingly accepted – by international organizations (e.g. the UN, OECD and World Bank), governments (e.g. Canada’s federal Department of Justice and its Access to Justice Secretariat), Crown corporations (e.g. IDRC), non-governmental organizations (e.g. World Justice Project, Hiil, Namati, Pathfinders, Open Society Foundations, Law and Justice Foundation of New South Wales, Canadian Forum on Civil Justice, etc.), bar associations (e.g. the Canadian Bar Association), research and other coalitions (e.g. the CBJR project, ILAG and Canada’s Action Committee on Access to Justice in Civil and Family Matters), among many others – that providing people with meaningful access to justice is good for individual wellbeing, commercial prosperity, investor confidence as well as sustainable collective development.

7. Government Buy-In. Although no credible opposition is raised to the importance of access to justice for development, there generally continues to be a lack of adequate government buy-in. Justice budgets continue to be inadequate in terms of meeting even the most basic justice needs. From the work of the OECD and World Justice Project, Hiil, Pathfinders, World Bank, and Lisa Moore and me, the business case is being made. However, a significant lack of resources still exists. Having said that, there are some new signs of important governmental recognition. For example, in Canada, leaders from various governments and parties are starting to say out loud that our system of justice “has failed,” that we need to “reimagine a system of justice,” that “change is needed all over the place,” and that “comprehensive action” is required. The federal Department of Justice has recently become increasingly engaged, which is important. Although provincial justice budgets are still too low to meet basic needs, Canada’s legal aid plans continue to provide excellent services (to those who can access them). As evidenced by the Global Week for Justice, some top-down momentum is happening around the world. Mobilizing that government interest, and the buy-in and resources that need to follow, is an important element of meaningful change.

8. People. We know that justice matters to people. In my small Canadian “What is Access to Justice?” survey, 97% of respondents indicated that people should “have a right to justice” and 76% indicated that “justice is of fundamental importance” (with another 23% providing more mixed answers, and only 1% saying it is not). However, until those people put more pressure on their government representatives – until access to justice becomes a coffee shop, book club, dinner table, Zoom meeting and ultimately a voting discussion – meaningful change is not going to happen. At the moment, health, education, policing, the environment, privacy, security, etc., continue to dominate our public consciousness. In turn, those issues dominate Cabinet and Ministerial mandates and budgets. Justice (and not only criminal law) needs to join those topics in order to move the dial on meaningful access to justice. Public legal education – at all levels – will help with this step.

9. Crises. The global COVID-19 pandemic has brought more change in the past six months than perhaps has occurred in the past 60 years. A lot has been happening. Governments, courts, lawyers, law schools – everyone – has had to adapt, and adapt quickly. Willingness, imagination and money have all been available. Not only is this result mostly a good news story coming out of a terrible world event, it also shows that change can happen. We also need to recognize that other – different – crises have happened in the past and continue to occur all around us. One only needs to look at the work of Canada’s Truth and Reconciliation Commission or the National Inquiry into Missing and Murdered Indigenous Women and Girls, the ongoing work of the Black Lives Matter movement, or the climate crisis to see that we are surrounded by inequity, violence, racism, and ultimately a lack of meaningful justice for all. Crises help to focus attention and catalyze action. However, we should not need to wait for the next crisis, or miss those around us, before further change occurs.

10. Research. It has become increasingly well accepted that data is a necessary asset for driving change. With a growing body of access to justice research, we are now at the stage of getting to the next steps of focussing on different kinds, areas and ways of scaling data to help better understand the costs, benefits, value and complexities of access to justice. A recent example is our new book, The Justice Crisis: The Cost and Value of Accessing Law. Topics and findings in this collection focus on: price, cost and regulatory reform; performance and benchmark indicators; public spending; individual and state-based costs; access to justice and Indigenous communities; domestic violence; paralegals; family law; class actions; social enterprise and innovation; legal fees and contingency fees; client interests and risk analysis, among others. The research methodologies used in this collection are innovative and exciting. Equally important is the fact that a new generation of scholars and researchers is starting to emerge alongside those who have been doing this work for a while. Generating new ideas, voices and ways of thinking, as well as sustaining future access to justice research agendas, is an important part of this work. We need to keep moving forward, particularly as we try to evaluate the impact of legal services on peoples’ lives, in order to understand whether in fact better access to justice – and ultimately justice for all – is being achieved.

Conclusion

Although I am generally an optimistic person, looking around at the world’s political, economic, social, health and climate situation, it is hard to avoid thinking that ‘Rome is burning’. It is also hard to say, as evidenced by the findings in the Justice for All report, that the situation when it comes to access to justice is that much better. However, given the steps toward progress that I have discussed above, I do think there is reason for hope.

In addition to those ten steps, there may be more or different steps – I’d be happy to be corrected. The important thing is that we learn from the past, recognize what’s happening now and find ways to break free from inaction in order for meaningful change to flourish. The real test of progress will be whether peoples’ lives improve in a meaningful way. I hope what we are now seeing will lead to that improvement.

This blog was originally published on the Pathfinders for Peaceful, Just and Inclusive Societies website on 20 October 2020.

Trevor C.W. Farrow is grateful for comments on this blog from Mark Benton, Ab Currie, Maaike de Langen and Janet McIntyre.

An estimated 70% of Sierra Leoneans depend on Local Courts for the resolution of justice problems such as child and spousal support, property, tenancy, and land disputes. However, emerging research findings suggest communities are shifting away from the State backed Local Court system, to paralegal organizations. In this blog, we explain the three main factors we identify for this shift: financial extortion, flawed judicial processes, and gender discrimination. These findings illustrate the limits of state-centric community-based justice reforms, attributable to a failure to fully implement reforms that would align Local Courts within the main judicial hierarchy, ensuring effective supervision, and independence from the control of chiefs. Community-based justice reforms we argue, should incorporate a deeper understanding of how local justice institutions work, in order to deliver justice for all.

This discussion builds on a recent complementary blog post, in which we shed light on forum shopping of community-based justice institutions in Sierra Leone, and the rational decisions that are driving individuals to paralegals particularly in rural areas that remain largely underserved by the formal justice system. While the findings may not be new, they deepen our understanding of the factors influencing choices people make for their justice journeys and the implications for access to justice in developing countries. These findings are part of a bigger ongoing three-country research supported by the Open Society Initiative for West Africa and the International Development and Research Centre of Canada, that is assessing the quantitative and qualitative costs and benefits of community-based justice services in Kenya, Sierra Leone and South Africa.

The Local Courts

The Local Courts in Sierra Leone were first statutorily recognized by the1933 Native Courts Act. Until 1963, when a new Local Courts law was enacted, chiefs or their appointees presided over all levels of the courts. The 1963 Local Courts Act however ended the judicial role of chiefs and brought the institution under the supervision of the executive branch through the Ministry of Local Government and Rural Development (MLGRD). Forty-eight years later, a new Local Courts Act (2011) introduced several changes, including situating Local Courts within the Judiciary. Local courts can adjudicate civil and criminal matters under customary and the general law.

On paper Local Courts are meant to be easily accessible for the majority of citizens constituting an entry point into the formal justice system, with the observance of due process, including rights of appeal. In reality, principles of due process and non-discrimination are absent due to a lack of political will to follow through reform process initiated by the 2011 law. Also, the lack of meaningful supervision or practical and functional separation from chiefdom administration, has led to perverse results in the system, pushing people away from Local Courts. While there is a right of appeal against a Local Court’s decision to the District Appeal Court made up of a magistrate and two assessors, such appeals tend to be cumbersome and could be stymied by a parallel process in the law. Rather than build on the reforms initiated under the 2011 Local Court Act to improve on processes and outcomes, the current government is pushing for the courts to be returned to the MLGRD, a move that could to further undermine their legitimacy and functionality. Below we discuss the three main factors pushing communities from Local Courts, to paralegals, as identified by focus group participants.

Financial extortion

A major reason cited by focus group participants relates to financial extortion in the Local Courts, which significantly increases the cost of justice for the plaintiff and defendant. The Local Court Act makes provision for the imposition of fines not exceeding SLL 50,000 or USD 5. However, as one participant noted, local courts, “have been imposing ridiculous fines and punishments,” far in excess of what is allowed in law, partly due to the lack of clarity among service users as to the maximum fines the courts can impose on them. Several other participants noted that Local Courts can impose fines up to 20 times higher than that which is allowed by law; and one senior paralegal in Bo noted that, “there have been instances where they have fined people as high as SLL 2.5 million,” or USD 250.

In addition to fines, service users are asked to pay for a number of other unauthorized expenses such as transportation for the courts’ police to serve summons or warrants, and for paper and pens to record proceedings. Our research has shown that the financial extortion perpetuated by Local Court officials, is in many ways a consequence of the lack of funding for their operations, the lackluster supervision from the judiciary, and communities’ lack of understanding of how the courts are supposed to operate.

Flawed judicial processes

Generally, the violation of human rights — related to security of the person and due process — continues to characterize the operations of Local Courts. Women focus group participants in Port Loko and Kambia, in Northern Sierra Leone noted molestation as a major reason for them not taking their complaints to local courts. They reported being shouted at and told to “shut up” by court officials, and left feeling “humiliated” when Court Chairmen regard them as children, a relationship which puts them in a dependent position and limits their rights. In instances where individuals cannot pay fines for minor and bailable infractions, they are “locked-up” in uninhabitable cells; and it is not uncommon for verdicts to be influenced by the testimonies of unreliable witnesses.

Further, while in theory the Local Court Act disrobed Paramount Chiefs of powers over the courts, in practice they and other powerful actors wield control over them, including in the appointment of court Chairpersons. This means that Local Courts seldom deliver adverse decisions against Chiefs, their relatives, and powerful personalities. One senior paralegal in Kenema in the East of the country suggested that because proceedings in Local Courts are based on customary law, Chairpersons find it hard to maintain a balance between provisions in the Local Court Act and Chiefs’ by-laws which may contain discriminatory, dehumanizing, and harsh punishments.

Gender discrimination

In addition to financial extortion and flawed judicial processes, discriminatory practices against women within the courts, compromise the principle of equality before the law. Given that Local Courts generally consist of chairpersons and panel of elders supported by court clerks who are predominantly men, male hegemony and solidarity, reinforced by tradition, tend to influence judicial processes and outcomes against women. Further, sometimes “unreasonable” restrictions are placed on women’s mode of dress, forcing them to cover their heads during court sessions — a sexist practice prohibited by the Judiciary.

Some women noted feeling uncomfortable narrating personal issues pertaining to their sexuality in front of male dominated courts that lack professional skills to deal with such sensitive social issues, as well as their trauma. Thus, the disregard for women’s right to be treated equally as men before the law, in addition to court officials’ lack of training on how to deal with gender sensitive issues, continue to push women away from the courts, to paralegals who have since become credible alternatives because of their free services, respect for rights, and prioritization of the preservation of relationships.

Reaction of Local Court officials

The withdrawal of communities from the Local Courts has not gone unnoticed, as court officials are working to reverse this trend. One high ranking Local Court official noted that the courts have observed a significant drop in the number of family law cases in the last few years. He noted that Local Court Chairpersons around the country have adopted a number of strategies to stem the tide, including reductions in court fines and monthly rotational meetings, intended to serve as forums for peer learning and advice. Another Local Court official noted that they use the meetings to review decisions of their peers and build support in the face of pressure from Paramount Chiefs and other powerful figures who tend to interfere with their work.

Although Local Court officials have been suspicious of paralegals — seeing them as rivals taking away their clientele, there is evidence the relationship is changing, with paralegals reportedly observing Local Court proceedings in some parts of the country. Indeed, heads of paralegal organizations interviewed for this research, reported observing a reduction in court fines, especially in urban centres.

Conclusion

The growing unpopularity of the Local Courts among local communities as we have seen, is a reflection of their failure to embrace meaningful reforms including respect for gender equity and human rights. Communities have realized that their services are neither affordable, nor fair; and are steeped in customary practices that hardly deliver justice in both process and outcome. This explains the growing popularity of paralegals. So far, it remains unclear whether the confidence building strategies of Local Court Chairpersons, as well as the reduction in court fines will change communities’ perceptions of the courts. However, the fact that Chairpersons are taking actions to win communities’ confidence, is illustrative of a broader need for reforms of the courts, which will require significant interventions from the government, and all those interested in the delivery of justice. The challenges faced by the Local Courts as we have highlighted, indicate that legal and administrative changes alone cannot make longstanding corrupt and dysfunctional judicial spaces equitably functional for all. Justice reforms must be accompanied by the necessary political and financial will to change the systems and processes that necessitate such programs in the first place. The final report of this study will expand on these, and other issues affecting the delivery of justice to communities in Sierra Leone.

This blog is an output from the Community-Based Justice Research (CBJR) project.

This blog was originally published by Pathfinders for Peaceful, Just and Inclusive Societies on 16 October 2020.

Introduction

This blog discusses emerging findings from research on access to justice which confirm a long-held view that paralegals support social cohesion and help fill gaps in Sierra Leone’s justice system. These findings are from a three-country research effort, supported by the Open Society Initiative for West Africa and the International Development and Research Centre of Canada that is assessing and comparing the cost and benefits of different community-based justice services. Given Sierra Leone’s recent history, the study’s findings will be particularly relevant for policy making on access to justice and peace-building.

In 2003 the trial run of a paralegal programme in Sierra Leone took off. This wholly civil society effort was meant to explore alternative methods of justice delivery in the rural areas of a country just beginning to recover from a traumatic decade of conflict, caused in part by a corrupt justice system. This experiment was inspired by experiences from elsewhere, particularly South Africa, where many decades earlier, paralegals provided justice services for blacks caught in the crosshairs of apartheid laws, as well as some very practical considerations. As part of the experiment, paralegals provided legal advice, information and representation on a range of civil and criminal justice matters. As part of the experiment, paralegals provided legal advice, information and representation on a range of civil and criminal justice matters.

Courts and police stations in rural areas had been destroyed during the war and the number of lawyers in the country was minuscule and concentrated in the capital, Freetown. Even before the onset of conflict, these justice institutions were highly problematic. The country’s Truth and Reconciliation Commission found for instance that there was no meaningful access to justice for most Sierra Leoneans – the police and judiciary were in effect instruments of oppression in the hands of an abusive executive. Against this backdrop of historical mistrust, how does a country address the critical need of access to justice at the community level?

Enter community paralegals

What began as a question has now morphed into a major national response to the many and varying justice needs of rural communities. The design of the Legal Aid Act of 2011was largely informed by the paralegal experimentation which started in 2003. The law formally recognises paralegals as justice service providers within a mixed system of civil and criminal legal aid. These paralegals use a variety of tools to tackle basic justice problems. They mediate, negotiate, navigate institutions, provide information, organise communities to take collective action and provide legal education.

With the number of accredited paralegal organisations across the country well below the optimal requirement, the ambitious aim of the legal aid act to embed a paralegal in all of the country’s 190 chiefdoms is far from being realised. However, in places where they operate, paralegal organisations are providing communities with a menu of dispute–resolution opportunities not seen before 2003 – and community members, previously regarded as powerless and at the mercy of oppressive justice delivery structures, are increasingly drawing on these organisations and other entities, in ways that manifest their agency, in the process of making rational choices.

The Centre for Alternative Policy Research and Innovation (CAPRI) – Sierra Leone, is part of the three-year research effort involving researchers in Sierra Leone, Kenya and South Africa that is assessing and comparing the cost and benefits of different community-based justice services, as well as shedding more light on this phenomenon. This multi–country study was commissioned in 2018 on the back of a request by the African Centre of Excellence and Global Empowerment Network, a coalition of African civil society organisations interested in learning more about legal empowerment, the contribution of paralegals to community justice delivery, as well as gaps between law and legal services.

The Sierra Leone study focuses on paralegal interventions in specific areas of justice service delivery, namely family law, land, property and tenancy. While the study’s primary aim is to uncover, through quantitative and qualitative methods the social and economic costs and benefits of providing and seeking justice via the paralegal mechanism for organisations and clients, it aims to assess other issues as well. These include the impact of gender and anti-discriminatory practices on costs, benefits and outcomes of community justice services as well as the role of technology in the provision of community justice services. Seven paralegal organisations and the country’s Legal Aid Board are participating in the study.

Emerging findings: forum shopping and communities’ use of paralegals to preserve relationships

Some of the initial findings of the study make interesting reading. One in particular stands out. It supports the view that the paralegal methodology supports social cohesion in the process of resolving disputes. Focus group discussants across the country reveal crucial dynamics in the use of paralegals to resolve justice problems. Paralegal organisations, they observe, prioritise “the need to restore or solidify relationships, over determining who is right or wrong. This is in sharp contrast to the adversarial approach and binary outcome that is prevalent at the Local Court, Magistrate Court or police station. This nuanced understanding of the approach of and outcomes available at the different dispute resolvers in the community has influenced community members’ choice of dispute resolution forum. The findings identify a number of considerations influencing forum shopping. These include the need to preserve or terminate a relationship and the desire to punish the offender or obtain immediate restitution, in addition to cost, time and accessibility of legal service.

If the service user intends to preserve the relationship with the other party to the dispute, they will normally approach a paralegal organisation instead of the court or police. If they do not, the adversarial approach of the court and police come in handy. For example, a woman whose husband has reneged on his responsibility to take care of his family, is more likely to choose a paralegal organisation if she wants to save the relationship so that they can live as a family. On the other hand, if she only desires to get the man to fulfil his financial obligations, and has no interest in the relationship, she will go to the police or the Local Court.

In certain types of cases such as debt or land dispute, initial findings suggest that disputants prefer directing their complaints to the police or local courts instead of to paralegal organisations. In these types of cases the desire to preserve relationships does not appear to be a priority for complaining parties. Research participants’ perception of the police and courts’ ability to deliver what they consider as binding, enforceable and sometimes punitive outcomes make them a more attractive avenue than paralegals for debt or land disputes. This does not mean however that paralegal organisations do not help communities resolve debt or land issues. In fact, the dockets of the participating paralegal organisations show that a significant number of the cases they handle relate to land and debt issues, although the overall majority of cases relate to family law.

Conclusion

While additional data collection and holistic analysis of the data may be required to form definitive conclusions on the other research questions of the study, it is clear from the initial analysis of the data that the availability of a range of dispute resolution mechanisms has provided more options for people in rural communities to choose from depending on their specific needs. On this front, the country has come a long way indeed since 2003. By self-consciously opting to use paralegals to preserve relationships during disputes, communities in rural Sierra Leone surface crucial questions about the goals and design of the country’s justice system. Is the adversarial approach relevant for all kinds of disputes and should it remain the most dominant dispute–resolution model? How can the right balance between the adversarial and alternative dispute models be achieved? As paralegal programmes continue to spread, more evidence for such a determination will be generated but it will require studies like this to collate, analyse and provide some answers. It is hoped that this study’s additional findings will provide further guidance, including on more administrative questions of cost, and best ways to expand justice for all.

This blog is an output from the Community-Based Justice Research (CBJR) project.

This blog was originally published on Namati on 23 September 2020.

The 2020 World Justice Project Rule of Law Index has recently been released. The Rule of Law Index and other related analytical reports can be accessed at www.worldjusticeproject.org. Based on the most recent data, which have not changed much since the 2016 annual report, one can conclude that the rule of law in Canada is “thick”, but perhaps not uniformly so. The literature on the rule of law distinguishes between a “thin” or minimalist conception of the rule of law focusing on formal procedural rules and a “thick” conception that focuses on substantive aspects such as the absence of corruption and the exercise of fundamental rights in practice. The thickness of the rule of law matters because access to justice is profoundly important for all aspects of our every day lives. Everyone and every sector of the society are stakeholders in the rule of law. Open and accountable government, accessible and impartial dispute resolution and just laws are aspects of the rule of law about which we are not always aware in our daily lives, but we would be acutely aware of their absence if we did not have them.

Canada ranks 9^th among the 128 nations included in the 2020 World Justice Project Rule of Law Index, unchanged from the 3 previous years. With an overall score of 0.81, Canada follows Denmark, ranked number 1 having score of 0.90, Norway, 0.89, Finland, 0.87, Sweden, 0.86, Netherlands, 0.84, Germany, 0.84, New Zealand, 0.83 and Australia 0.82. The UK ranks 13^th with an overall score of 0.79 and the US ranks 21^st with a score of 0.72.

True to the expression “peace, order and good government” used in S 91 of the Constitution Act, Canada ranks highest on the order and security component of the index with a score of 0.91. Canada’s scores on most other components of the rule of law index are also high; on constraints on government powers, 0.84, absence of corruption, 0.83, fundamental rights, 0.82, open government, 0.81 and regulatory enforcement, also at 0.81. The country’s score on the criminal justice component is lower at 0.74. However, Canada’s rank in relation to other countries on the criminal justice component is 10^th.

Canada has improved its overall ranking on the Rule of Law index since 2011, fluctuating between 11^th and 17^th position globally. The factor that has kept Canada hovering in the admirable place of 9^th among nations for the past 4 years is our score of 0.70 on the civil justice component, ranking 19^th in the world in 2020. Within the civil justice component, the lowest individual element is unreasonable delays with a score of 0.47, absence of discrimination at 0.57 and accessibility and affordability at 0.58.  The rule of law in Canada is not uniformly “thick”. It is slightly curvilinear with a thin spot on civil justice.

The World Justice Project (WJP) publishes an annual report on the rule of law in more than 100 countries, as determined through in-country household surveys and expert surveys. For countries included in the WJP Rule of Law Index, an overall score and the country’s global and regional rankings are indicated as well as the score for each of the measures that contribute to the overall score.  Recent Rule of Law Indexes present assessments based on 8 rule of law factors, using a total of 43 separate measures.[1] The results are expressed numerically on a scale ranging from 0.0 to 1.0, lowest to highest.

The lowest of all 43 measures for Canada in 2019 was a score of 0.47 for “no unreasonable delays” in the civil justice system.  This is similar to scores on this measure in previous years.[2] It is an area of justice in Canada, measured by the Rule of Law Index, in which improvements need to be made.

The following charts present a brief summary of the 2019 results for Canada. Canada is ranked 9^th among the 126 countries included in the survey. [3]  Canada also ranked 9^th in the WJP Rule of Law Index 2017–2018 Report.

Always of special interest, our usual international comparators, the UK and the US, rank 12^th and 20^th, respectively in the 2019 Report. Canada and the UK, with an overall score of 0.80, are in essentially the same position with the US, with an overall score of 0.71, considerably lower.

The rule of law index consists of 8 factors that are aggregated to produce the overall scores reported in the figures above. The table below shows Canada’s scores on each of the 8 factors.

Civil justice received the lowest score among the 8 rule of law factors. The final chart (below) shows the scores for the 7 component measures for the civil justice factor.

Our civil justice system is not corrupt and is largely free of improper government influence. However, the system is, by this account, slow. Justice delayed is justice denied. To that end improvements to our civil justice system are needed in this (and other) areas. It remains to be seen how our civil justice system will fare in the next WJP Rule of Law Index.

 

 

[1] Some earlier WJP Rule of Law reports include fewer rule of law factors. For example, the 2009 WJP Rule of Law Index Report includes 4 factors: Accountable government; Publicized and stable laws that protect fundamental rights; Accessible, fair and efficient process; and Access to Justice. See World Justice Project, “World Justice Project Rule of Law Index Report 2009” (November 2009) at 6, online: World Justice Project <https://worldjusticeproject.org/sites/default/files/documents/WJP_Rule_of_Law_Index_2009_Report.pdf>.

[2] “Judicial proceedings without unreasonable delay” was among Canada’s lowest scores in the 2009 WJP Rule of Law Index. With a score below 0.60 in 2009, Canada ranked below other countries in North America, below other high income countries and significantly lower than the top performer on this measure. Further, in 2009 Canada also received its second lowest score for “Efficient, accessible and effective judicial system.” See World Justice Project, “World Justice Project Rule of Law Index Report 2009” (November 2009) at 68-70, online: World Justice Project <https://worldjusticeproject.org/sites/default/files/documents/WJP_Rule_of_Law_Index_2009_Report.pdf>.

[3] See World Justice Project, “World Justice Project Rule of Law Index 2019” (February 2019), online: World Justice Project <https://worldjusticeproject.org/sites/default/files/documents/ROLI-2019-Reduced.pdf>.

Justice affects everyone. We know that almost 50 per cent of adult Canadians will experience a significant civil or family justice problem over any given three-year period, meaning essentially all of us in our lifetime. Everyday legal problems include debt issues, divorce, lost employment, wage or other discrimination, consumer problems and any number of other issues.

We know that experiencing legal problems results in significant economic and social costs — to individuals and the state. People spend on average over $6,000 to deal with a legal problem. In addition to money, people spend a huge amount of time dealing with their legal issues — time that could be spent working or doing other things. Legal problems also lead to physical and mental health issues, the increased use of employment assistance and social assistance, as well as an increased loss of housing and shelter. Research indicates that legal problems annually cost the state approximately $250 million in increased social assistance costs, $450 million in increased employment assistance costs and over $100 million in additional health care costs, and likely much more.

We know that cost is a major factor in people’s ability to address their legal problems. We know that experiencing one legal problem often leads to more legal problems. And we know that vulnerable individuals and communities experience more legal problems than others and that they have fewer resources to deal with those problems.

To be eligible for legal aid in Ontario, a person’s annual income needs to be below $18,000 for most cases (and legal aid only covers a limited number of legal issues). Other provinces have similarly low eligibility restrictions. That means for most people and for most problems, no public legal assistance is available. Many people simply have no way and nowhere to go to deal with their legal problems. Recent budget cuts to legal aid have heightened these concerns.

Access to justice problems are not only a Canadian concern. A recent international study indicates that 5.1 billion people — two-thirds of the world’s population — lack meaningful access to justice. The United Nations has recently included access to justice as part of its 2030 Sustainable Development Goals.

Canada — as part of the United Nations community — needs to do its part. Some might ask “Don’t we already have a great justice system?” The answer is “yes” — Canada has one of the best justice systems in the world. However, that is not the point: far too few people have meaningful access to it.

Providing an accessible justice system, and in particular providing legal services at least to the most vulnerable members of our communities, is not only the right thing to do, it also makes sense. A report from the Canadian Forum on Civil Justice released in October indicates that spending money on justice leads to significant economic returns. For example, studies of various legal aid programs in the United States show that for every $1 spent on legal aid, there is approximately a $9-to-$16 positive return on investment (and likely much more).

Other studies in other countries put this ratio even higher. These positive returns include things like direct monetary benefits to people successfully addressing their legal issues, community benefits from money being put back into the economy, savings in court services, and savings to other public resources. Other findings indicate that investing in justice can lead to lower rates of incarceration and reduced crime rates; savings from protecting families from domestic violence; avoiding disruption in children’s education, decreased credit ratings and lost employment; and increased rates of positive social behaviour (staying employed, staying in school, etc.). Additionally, research indicates that people who have adequate assistance with their legal problems tend to get better results, report better experiences with the system, and overall are more empowered in their lives.

Making justice accessible to everyone involves all justice stakeholders, including lawyers, judges, law societies, law schools, and others. We all need to do our part. However, governments have a leadership role to play — starting with the allocation of public resources — in making justice accessible. We know that hard choices need to be made around tight government budgets. However, as the research shows, cutting justice budgets will cost the public much more than it saves. It’s time to let evidence and not politics determine how to fix our justice crisis.

Trevor C.W. Farrow is a professor and former associate dean at Osgoode Hall Law School. He is also the chair of the Canadian Forum on Civil Justice. Mary Condon is dean of Osgoode Hall Law School and former vice-chair of the Ontario Securities Commission. An Osgoode faculty member since 1992, her research and teaching focuses on regulation of securities markets, investment funds, online investing and pensions.

This article originally appeared on The Lawyer’s Daily on Tuesday, November 26, 2019.

The Global Access to Justice Project has formed the largest network of academics and researchers ever assembled in the field of access to justice to map the progress that has been made globally in access to justice since the 1970’s. That was when two landmark studies were carried out to examine the rapid spread of legal aid in North America, Western European and some Commonwealth countries up to the 1960’s and early 1970’s. An even more extensive global expansion of legal aid and a revitalized discussion about expanding access to justice has been occurring in recent years. The global Access to Justice study, now underway aims to contribute to the new discourse by examining developments that have occurred between the first expansion of legal aid, documented and examined by early publications, to the present. It is intended that the study will contribute by adding a historical and comparative analysis to the discussion of current issues and future development of access to justice. The project is being led by a co-ordinating team including academics and experts who helped to document early developments in the access to justice movement. The coordinating group includes Earl Johnson, Bryant Garth, Alan Paterson, Cleber Alves and Diogo Esteves. Earl Johnson, along with Mauro Cappelletti and James Gordley wrote the landmark study “Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies” (1975). Alan Paterson has been the chair of the International Legal Aid Group since the mid-1970’s and has occupied a central role monitoring developments and advising governments on legal aid. Bryant Garth, with Mauro Cappelletti, produced the influential world survey of legal aid known as the “Florence Access to justice Project” carried out in 1976-77.

The 1975 “Toward Equal Justice” study attempted to document and explain what was becoming an international movement to make legal aid available to all regardless of income. A few years later Mauro Cappelletti and Bryant Garth carried out the “Florence Access to Justice Project”, the landmark global survey of access to justice of the early access to justice era.  The results of this comparative research were published as the five-volume work “Access to Justice: A World Survey” (1978). In volume one of the Florence Project report, Cappelletti and Garth set out the very influential three waves model describing the evolution of access to justice. The first wave was the development of mechanisms to provide access to legal representation of individual interests. The second wave was the representation of diffuse collective interests. The third wave involved the development of a range of alternative dispute resolution approaches to resolving legal problems. In the years following this publication, scholars proposed further waves of access to justice to describe continuing developments such as the professionalization of legal ethics(a fourth wave), and the institutionalization of human rights protections(a fifth wave).

The Global Access to Justice survey includes more than 160 countries in the following regions: North America, Central and South America, the Nordic countries, Western and Central Europe, the Middle East, Northern Africa, Sub-Saharan Africa, Eastern Europe, Central Asia, the Asia-Pacific region and Oceania. The present study will include a greatly expanded range of topics compared with the earlier research. These include: the cost of resolving disputes within the formal justice system, contemporary initiatives to give representation to collective and diffuse rights, initiatives to improve the machinery of dispute processing, developments in civil procedure, developments in criminal procedure, alternative dispute resolution, simplification of law and by-passing legal procedures, changes in professional legal ethics, expansion of human rights, new technologies for improving access to justice, sociological approaches to addressing unmet needs, cultural dimensions of the access problem, learnings from First Nations peoples and, developments in legal education. The final report will further include summary volumes containing individual country reports. The chapter on Canada is being written by Melina Buckley, a Board Member of the Canadian Forum on Civil Justice and Chair of the Canadian Bar Association Legal Aid Committee; Ab Currie, Senior Research Fellow at the Canadian Forum on Civil Justice and Trevor Farrow, Professor of Law at York University and Chair of the Canadian Forum on Civil Justice.

This project is occurring as a revival of the access to justice movement is taking place, driven in part by United Nations Sustainable Development Goal (SDG) 16 to “promote, just, peaceful and inclusive societies”. Within this overall guiding principle, a number of organizations such as the Organisation for Economic Co-operation and Development (OECD), the World Bank, the United Nations and the Pathfinders for Peaceful, Just and Inclusive Societies are working in different ways to close the justice gap. In particular, the Pathfinders are working to inspire justice reform movements that will create a global momentum for justice and substantially enhance justice for all by 2030, in line with the United Nations 2030 Agenda for Sustainable Development.[1].

The Global Access project shares with the sustainable development-oriented access to justice movement the foundational propositions about the importance of the rule of law in ensuring  democratic, egalitarian states and that assuring equal rights is instrumental in addressing the problems of social exclusion, marginalization and social disadvantage. The Global Access to Justice Project will add to the discourse by taking a comparative, empirically-based look at what has occurred and is occurring in access to justice throughout the world.  It aims to undertake a comprehensive analysis of what has been attempted, what has failed and what has worked well within specific contexts to make legal assistance available to people. The results of the research will inform discussions about expanding access to justice. Current plans are that the work will be completed and submitted for publication in the fall of 2020. The report of the Global Access to Justice Project will undoubtedly make an important contribution to what is at present an exciting and promising revival of the access to justice movement. More detail about the project is available on the web site at globalaccesstojustice.com. Questions about the project or offers to assist can be sent by e-mail to globalaccesstojustice@gmail.com.

[1] See further Task Force on Justice, Justice for All – The Report of the Task Force on Justice (New York: Center on International Cooperation, 2019) online: Pathfinders for Peaceful, Just and Inclusive Societies <https://www.hiil.org/wp-content/uploads/2019/06/Justice-for-All-report-1.pdf>.

Since its establishment in 2002 the Legal Clinic of Guelph and Wellington County has recognized the need to better serve people in rural areas of the county. In May 2019 the clinic, which is located in the city of Guelph, began operating a mobile van called WellCoMs. The project is being funded by the Law Foundation of Ontario. The WellCoMs van travels to 12 communities in Wellington County on a regular basis, visiting each one two or three times each month. The communities vary in size from the town of Clifford with about 825 people to Fergus with a population of about 20,700. The van parks in a conspicuous place likely to maximize the number of passers-by and erects a tent attached to the van. The tent has prominent signage indicating the availability of free legal assistance. At the beginning of the day the WellCoMs team announces the presence of the van by sending out a message on the local community Facebook page. As well, the team places posters with information about the van and the schedule of future visits at places where people are likely to notice, such as the local library or coffee shops. Extensive contacts with community agencies were made in the planning stages of the project to determine strategies that offer the best potential reach, visibility and access within respective communities. Representatives of these community organizations and other interests (the mayor, the local MP or MPP) are also invited to visit the van.

During the first five weeks of the mobile WellCoMs van project, the van attracted 173 visitors. Of these visitors, 50 people were not experiencing a legal problem. A larger number, 123 people (71%), identified a problem for which they wanted help. The people presenting problems were asked how they learned about the van. The largest percentage were just passing by (69%), followed by persons who were referred by a community agency (12%), social media (8%), a friend, relative or other contact (5%), community newspaper (4%) and posters (2%). The five most frequently mentioned problems were: family law (31%), landlord-tenant (14%), Ontario Disability Support Program (ODSP) related and government pensions (11%), wills and powers of attorney (9%) and general civil disputes (9%). The number of people visiting the van increased on the second or third visit in 10 out of 12 communities.

In the spirit of “no wrong door, no wrong number”, everybody is provided with some assistance. A number of options for assistance are available. People visiting the van can contact a lawyer or legal worker at the clinic immediately using Skype. Referrals are also made to the legal clinic in Guelph and sometimes to neighbouring clinics. In addition, referrals are made to various community services, to Legal Aid Ontario family law offices and to the Law Society of Ontario lawyer referral service and other sources of assistance. A variety of printed public legal education materials is also available.

These preliminary findings suggest that there is a considerable amount of unmet legal need in rural Wellington County. Further, the mobile van appears to be an effective form of outreach. During the same five-week period in 2018, 21% of intakes at the Guelph clinic were from rural parts of Wellington County. During that period this year the percentage of rural intakes increased to 35%. It should be noted that the van cannot operate in the inclement weather of late fall and winter. As such, the van will run until October 31. Some way to transition from the van to another form of outreach that people will respond to has to be developed. Also, the potential of the van as a gateway to various forms of legal service has to be refined and further developed. Serving rural and isolated communities is a common problem facing legal services. The WellCoMs mobile van project being carried out by the Legal Clinic of Guelph and Wellington County is making a good start at learning how to do this.

The family law system affects individuals and their families in diverse ways. One common thread is that family law disputes tend to be emotionally charged and affect people in the long-term.[1] Due to the nature of family law problems and the fact that they often involve important relationships, this particular legal problem type benefits significantly from expedient, mutually beneficial resolution.

The importance of family law issues notwithstanding, there is an increasing number of self-represented litigants (SRLs) appearing in family law courts in Canada and elsewhere. A 2012 report by the Canadian Forum on Civil Justice (CFCJ) suggests that the number of unrepresented litigants for family matters in Canada could be as high as 50%.[2] With recent funding cuts to Legal Aid Ontario, the number of self-represented litigants in family court is likely to rise further.[3]

Even before these cuts, the number of self-represented family law litigants appearing in Canadian courts had been rising.[4] The main reason for this rise in SRLs is an inability to pay for representation. However, there also various personal reasons why people may represent themselves. Some people have a “do it yourself” attitude, while others may feel that having a lawyer will not lead to a significantly better outcome than they could secure for themselves.[5] One way that justice services and programs have responded to this increase in SRLs is by developing legal information tailored for individuals without lawyers. This process can lead to even more people representing themselves because they see that there are accessible services available.[6]

Self-Representation and Family Law

Given the large number of SRLs in family court, an important question is how do they fare? Jennifer Leitch, a research fellow at the Canadian Forum on Civil Justice, explored this question by conducting interviews at a self-help legal centre in Downtown Toronto.[7] Her research found that SRLs often struggle when they come up against trained and experienced lawyers. Some unrepresented litigants felt that the lawyers were uncooperative, and in response they felt intimidated and powerless.[8] The knowledge imbalance between counsel and SRLs caused anxiety among litigants who felt that they would be manipulated by lawyers who have greater legal expertise than them.[9]

Research has demonstrated that not only do SRLs have difficulty working with opposing counsel, they also struggle to effectively resolve disputes in family court. The Harvard Access to Justice Lab conducted a randomized control study on the effectiveness of legal representation for people seeking a divorce.[10] They randomly divided participants into two groups, those who received assistance from pro bono lawyers and those who were referred to self-help resources. The results are startling. Participants with representation in family court were 87% more likely to successfully divorce than those who were only offered self-help resources. Three years after the study began, 45.9% of people who received representation had terminated their marriage, compared with only 8.9% of people who used the self-help assistance.[11]

Similarly, a small research project conducted in 2012 by a student at the University of Windsor Faculty of Law identified numerous challenges to filling out court forms to file for a divorce as an SRL.[12] The project was completed as part of a larger research initiative by the National Self-Represented Litigants Project on the experience of SRLs in Canada. The goal of the sub-project was to assess the length of time required to complete family law forms to initiate a divorce or separation. The forms were completed for three provinces— Alberta, British Columbia, and Ontario. It should be noted that the research assistant tasked with this assignment was, at the time, a law school student who had recently completed a course on Family Law and Civil Procedure. Overall, she experienced difficulty in understanding the language of the forms, in choosing the correct form, and in identifying the next steps in the process.

Unsatisfactory resolution of family law problems can have serious effects on individuals lives. They can lead to health problems, stress, emotional issues, and relationship strain among families.[13] For example, victims of domestic violence who cannot successfully divorce their partners may continue to experience serious impacts to their health and emotional well-being.[14]  Children can also be deeply affected by parental conflict and it can lead them to act out, have higher levels of aggression, and have problems resolving disputes.[15] The serious psychological effects of unresolved family law problems demonstrates the need for effective and timely dispute resolution.

How Do We Resolve This Issue?

Many lawyers advocate for more self-help resources to allow SRLs to better navigate the family court system. However, the research from Harvard demonstrates that self-help resources are not always sufficient for the timely resolution of family law disputes.[16] At the same time, representation is not an option for everyone, as legal aid is only available to a fraction of low-income earners who experience legal problems. Additionally, even among those who qualify, legal aid is only applicable to a narrow set of family law problems. We need to find other solutions that can bridge the existing gap in legal services for family disputes. What are the options to resolve this issue? Three possible actions offer promise as ways of increasing access to justice for SRLs in the family law system: the use of non-lawyers to provide lower-cost family law services, expanded use of alternative dispute resolution, and the modernization of the courts.

Some advocates for family justice reform support the integration of non-lawyers to provide assistance with family law matters. Since non-lawyers, such as paralegals, can deliver services at lower rates than lawyers, the hope is that people would utilize those services instead of representing themselves. In the recent Law Society of Ontario election, paralegals pushed for an expanded scope of practice, so that they can perform more tasks done by family lawyers.[17] This would allow paralegals to provide legal services at a lower cost than traditional family lawyers, creating a more accessible option for people who cannot afford to pay lawyers rates.

Broader adoption of rules that allow non-lawyers to represent a party in family court may not be as far away as one might imagine. Non-lawyers are already allowed to appear as representatives in Ontario family court.[18] Furthermore, British Columbia allows designated paralegals, who are supervised by a lawyer, to appear at family law mediations. Even if they are not used to provide representation, non-lawyers can help assist litigants in other ways. Other forms of legal support, such as directing SRLs to the correct court forms, guiding them through the legal system, and providing general advice can be helpful.

As relates to the second possible reform –expanded use of alternative dispute resolution in family law—a 2017 report by the Canadian Research Institute for Law and the Family (CRILF) highlights the benefits of four methods of dispute resolution to resolve high- and low-conflict family law problems. The study, which included a survey of family lawyers practicing in Ontario, Nova Scotia, Alberta and British Columbia, compared mediation, arbitration, collaborative settlement processes and litigation based on a range of criterion including cost, length of time to resolve problems, and client satisfaction.[19] Although litigation is commonly used to resolve family law problems, most lawyers agreed that, in some circumstances, one or more of the other three processes could offer more cost-effective, timely, mutually acceptable ways to resolve family law problems.[20] In fact, the survey found that except in high-conflict situations, such as violence or abuse, many lawyers did not feel that litigation was the ideal form of dispute resolution.[21]

Manitoba presents a worthwhile case study for this approach to family law reform. The Family Law Modernization Act directs a significant portion of family law cases out of the court system and toward “resolution officers” who, in cases of a separation or divorce, help couples come to an agreement in a less adversarial manner.[22] Only cases involving actual or threatened violence will be streamlined into the court system. A major benefit of this approach is the reduced financial strain on participants who can ideally avoid long, drawn-out litigation. Another important benefit is that it achieves a more conciliatory process. The winner/loser dynamic of litigation can harm ongoing relationships between family members who likely need to sustain long-term communications with one another.[23]

A third possible action is to modernize court processes to increase accessibility. Technology could prove to be a helpful and inexpensive way to address some aspects of the dispute resolution process for SRLs. A new project led by University of Ottawa professor Amy Salyzyn, that will explore how technology can be used to assist the public with court forms,[24] promises to provide much-needed evidence-based research to help inform the ways that technology can facilitate access to justice through the formal justice system.  The project will provide data that could help inform a re-design of court forms to make them more user-friendly and help create paperwork that is more accessible to self-represented litigants. While people can often understand the words on court forms, they may struggle to understand what they are supposed to do with the form and how to fill it out. Being able to fill out court forms online, along with informational guides and videos in multiple languages could help SRLs to better complete their own forms.[25]

A View to the Future

In response to concerns about the effectiveness of the family justice system, some provincial governments are in the process of reform. Manitoba recently passed legislation creating major changes in how the province resolves family law disputes.[26] Similarly, Ontario and Quebec announced over the summer that they would explore possible changes to family law.[27] However, it remains to be seen how these reforms impact the family justice system and whether they create changes that help support unrepresented litigants. Research clearly demonstrates that the current system is not meeting the needs of SRLs. Until changes are made, SRLs will continue to experience problems navigating the family court system.

 

[1] Government of Manitoba, Modernizing Our Family Law System: A Report from Manitoba’s Family Law Reform Committee (Government of Manitoba, 2018) at 2, online: Manitoba <https://www.gov.mb.ca/justice/pubs/familylawmodern.pdf > [Modernizing Our Family Law System].

[2] CFCJ, “The Cost of Justice: Weighing the Costs of Fair & Effective Resolution to Legal Problems” at 4, online: CFCJ <https://cfcj-fcjc.org/sites/default/files/docs/2012/CURA_background_doc.pdf>; Rachel Birnbaum, Nicholas Bala & Lorne Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants” (2013) 91:1 Can Bar Rev 67 at 71, online: <https://cbr.cba.org/index.php/cbr/article/view/4288>.

[3] Michael Spratt, “Ford’s Cuts to Legal Aid Will End Up Costing Ontario Way More Than They Save” CBC News (11 June 2019), online: <https://www.cbc.ca/news/opinion/legal-aid-1.5169428>.

[4] Birnbaum, Bala & Bertrand, supra note 2 at 71.

[5] Ibid.

[6] Ibid.

[7] Jennifer A Leitch, “Lawyers and Self-Represented Litigants: An Ethical Change of Role?” (2018) 95:3 Can Bar Rev 669 at 679, online: <https://cbr.cba.org/index.php/cbr/article/view/4429>.

[8] Ibid at 680.

[9] Ibid at 683.

[10] A2J Lab, “Divorce”, online: a2j lab <https://a2jlab.org/current-projects/smaller-studies/divorce/>; Ellen Degnan et al, “Trapped in Marriage” (2018), online: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3277900>.

[11] Degnan et al, supra note 10 at 5.

[12] Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (National Self-Represented Litigants Project, 2013) at 56-58, online: NSRLP <https://representingyourselfcanada.com/wp-content/uploads/2016/09/srlreportfinal.pdf>.

[13] Trevor CW Farrow et al, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum for Civil Justice, 2011), online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[14] See for example, Jennifer S Rosenberg & Denise A Grab, Supporting Survivors: The Economic Benefits of Providing Civil Legal Assistance to Survivors of Domestic Violence (Institute for Policy Integrity, 2015), online: Institute for Policy Integrity <https://policyintegrity.org/documents/SupportingSurvivors.pdf>.

[15] John-Paul Boyd, “It’s Not Just Them: The Social and Economic Consequences of Family Conflict” Slaw (22 May 2015), online: <https://static1.squarespace.com/static/5b6db734b1059890c89e8172/t/5ba543cfe4966b0fdd51ff40/1537557456947/It’s+Not+Just+Them%3A+The+Social+and+Economic+Consequences+of+Family+Conflict+–+Slaw.pdf>.

[16] Three years after the studies randomization, 45.9% of the group with representation had achieved a termination of marriage, while only 8.9% of the group with self-help or low bono resources were able to achieve the termination of their marriage. Degnan et al, supra note 10 at 5.

[17] Anita Balakrishnan, “Paralegals push for family law reform in election” Law Times (18 March 2019), online: <https://www.lawtimesnews.com/resources/professional-regulation/paralegals-push-for-family-law-reform-in-election/263470>.

[18] Lisa Trabucco, “Lawyers’ Monopoly? Think Again: The Reality of Non-Lawyer Legal Service Provision in Canada” (2018) 96:3 Can Bar Rev 460 at 462, online: <https://cbr.cba.org/index.php/cbr/article/view/4480>.

[19] Joanne J Paetsch, Lorne D Bertrand & John-Paul E Boyd, An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods (Toronto: Canadian Forum on Civil Justice, 2017) a 1, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files//docs/Cost-Implication-of-Family-Law-Disputes.pdf>.

[20] Ibid at 56.

[21] Ibid at 54.

[22] Anthony Davis, “Manitoba working on family law reforms” Canadian Lawyer Magazine (7 May 2019), online: <https://www.canadianlawyermag.com/practice-areas/family/manitoba-working-on-family-law-reforms/276115>; Modernizing Our Family Law System, supra note 1.

[23] Modernizing Our Family Law System, supra note 1

[24] University of Ottawa, “Amy Salyzyn awarded grant for project studying public understanding of complex legal documents” (21 June 2019), online: UOttawa <https://techlaw.uottawa.ca/news/amy-salyzyn-awarded-grant-project-studying-public-understanding-complex-legal-documents>.

[25] Heather Douglas, “Court Forms: Should Most Forms Be Eliminated?” Slaw (7 August 2019), online: <http://www.slaw.ca/2019/08/07/court-forms-should-most-forms-be-eliminated/>.

[26] Davis, supra note 22.

[27] Mark Cardwell, “Quebec Gears Up for Family Law Reform” Canadian Lawyer (13 May 2019), online: <https://news.ontario.ca/mag/en/2019/07/review-of-family-and-civil-legislation-regulations-and-processes.html>; “Review of Family and Civil Legislation, Regulations, and Processes” (9 July 2019), online: Ontario <https://news.ontario.ca/mag/en/2019/07/review-of-family-and-civil-legislation-regulations-and-processes.html>.

Evidence-based research in law is necessary. Without it we rely on assumptions and anecdotes which, however practical or logical they may seem, can lead to egregious and unanticipated outcomes. At best, this might mean misunderstandings about the effectiveness of legal services; at worst the result could be misspent resources that make legal services even more inaccessible than they are now. Take the following as an example. One of the main arguments in favor of expanding the types of legal services that paralegals are authorized to provide is the lower cost of paralegal services relative to the cost of legal services provided by lawyers.[1] A greater range of affordable, accessible and efficient legal service offerings would prove to be a significant benefit to low-income earners. It would offer relief to a segment of the population that frequently finds themselves priced out of our civil and family justice systems and, in so doing, it would help curb the crisis in self-representation plaguing our courts and tribunals. The rationale here is that a viable way to mitigate the problem of high costs that impedes access to justice is by providing lower cost alternatives. The argument holds water, yet data from a study on “Paralegals and Access to Justice” found that in residential tenancy disputes in Ottawa, only landlords (and largely corporate landlords) benefitted from access to paralegal services to resolve disputes. This study, which was led by Professor David Wiseman, examined more than five years of data from the Eastern Region of the Landlord and Tenant Board of Ontario.[2]

The issue here is not whether broadening the scope of paralegal responsibilities has the potential to contribute to improving access to justice–it does.[3] Rather, what is required is an evidence-based understanding of the contexts in which access to this particular type of justice intervention promotes access to justice, to what extent and for whom. What is needed is more research.

Assessing the Impact of Legal Service Interventions

At the Canadian Forum on Civil Justice (CFCJ) we have been advancing the case for more evidence-based research in law for more than twenty years. We have and continue to lead, collaborate on and contribute to evidence-based research initiatives aimed at improving public understanding of the civil and family justice matters that affect Canadians.[4]  Though we now know more now than we previously did about access to justice, the costs of justice and the price of failing to meet Canadians’ justice needs, there is even more that we still do not know.

As part of our ongoing commitment to carrying out evidence-based research that can help to fill gaps in our understanding of access to justice, the CFCJ recently launched the first phase of a research project to assess the long-term impacts of different types of legal interventions on the outcome of legal disputes.

Despite the paucity of data on the effects of experiencing legal problems and on the effectiveness of legal information and services on outcomes, longitudinal impact studies of the type envisaged by this new CFCJ project are rare in law. Longitudinal studies tend to be more costly than other research methodologies because they require study over a significantly longer period of time, often with a wider variety of collaborators. This fact, in addition to a general resistance to rigorous empirical research within the legal sector may explain why this type of observational research is so uncommon in the legal field.

Thanks to support from the Law Foundation of Ontario (LFO), the CFCJ’s new “Measuring the Impact of Legal Service Interventions” project will be among the first of this type of study in Canada.[5] It will contribute to a better understanding of the impacts of access to legal help, the long-term effects on the health of clients, and the costs and benefits over time of access to legal services when resolving disputes. The findings from this research will also be valuable to different justice system stakeholders.

For the public, and in particular people who are unable to engage lawyer services to resolve their legal problems, this research could help to inform choices about how to deal with legal problems. It could also potentially improve legal capabilities. On-the-ground legal information and legal service providers could gain insight that could help them to tailor services or inform decisions on how best to allocate budgets.  Similarly, for governments, funders and policy-makers, evidence-based research on the effectiveness of legal services can pave the way to a better understanding of what justice pathways are the most beneficial, in what scenarios and for which populations.

Objective scientific evidence is the standard in many other fields, and rightly so— imagine discovering that you were prescribed medication that had not undergone rigorous testing, or purchasing items at your local grocery store that had been exposed to conditions for which the long-term effects were still unknown. Decisions made in the legal sector should undergo the same levels of scrutiny and be held to the same standards. After all, the consequences of experiencing one or more serious everyday legal problems, similar to problems experienced in other sectors, can be life-altering. As we have confirmed in recent years, not only are everyday legal problems ubiquitous, they also adversely affect mental and physical health, and lead to other, serious social, personal and economic problems.[6]

The Case for More Evidence-Based Research in Law

If we do not acknowledge that sound empirical evidence is a prerequisite for appropriate, effective and sustainable legal practices and policies, as well as the responsible way to approach decisions that stand to significantly impact lives, communities and economies, we will continue along a path where there is very little meaningful progress in access to civil and family justice. Rates of investment in justice research remain abysmally low.[7] Funding justice research, through public-private partnerships, grants, donations or other means is a critical component of the access to justice equation.

What people do about their legal problems, how they interact with our civil and family justice systems, the circumstances that have an impact on outcomes, and the immediate and long-term consequences of experiencing legal problems are just a few examples of areas where more research is critically needed to inform better policies and effective, on-the-ground strategies.

With more evidence-based research we can deliver more cost-efficient and effective legal services and grow public confidence in the justice system. Access to more evidence-based research in law can also contribute to more support for justice programs since decision makers will feel more confident that funding will be going to programs that have been proven to be effective.  Evidence-based research will also support more opportunities for learning. These are just a few examples of ways that the justice community and the public will benefit from more evidence-based research in law.

Thanks to the LFO’s support, the new “Measuring the Impact of Legal Service Interventions” project will help to bring us closer to some of the first Canadian research that measures the actual effectiveness of justice services.

Learn more about the “Measuring the Impact of Legal Service Interventions” project on the CFCJ website: www.cfcj-fcjc.org/our-projects/measuring-legal-service-interventions/.

This article originally appeared on Slaw.ca on August 15, 2019: http://www.slaw.ca/2019/08/15/fixing-a-problem-that-we-dont-fully-understand/.

__

[1] See for example, Jessica Prince and Rory Gillis, “Lawyers are too expensive for most Canadians. Give more work to paralegals”, The Globe and Mail (5 November 2013) online: The Globe and Mail <https://www.theglobeandmail.com/opinion/lawyers-are-too-expensive-for-most-canadians-give-more-work-to-paralegals/article15262477/>.

[2] See David Wiseman, “Further Research Update: Paralegals, the Cost of Justice and Access to Justice: A Case Study of Residential Tenancy Disputes in Ottawa” (June 2016) online: CFCJ <https://cfcj-fcjc.org/sites/default/files//Paralegals%2C%20the%20Cost%20of%20Justice%20and%20Access%20to%20Justice%20-%20A%20Case%20Study%20of%20Residential%
20Tenancy%20Disputes%20in%20Ottawa.pdf>.

[3] According to a 2010 study on legal needs in Ontario, “one in 10 of low and middle-income Ontarians who sought legal advice in the past three years turned to a paralegal. The majority (62 per cent) expressed satisfaction with the service they received.” See, The Ontario Civil Legal Needs Project Steering Committee, Listening to Ontarians, Report of the Ontario Civil Legal Needs Project (Ontario: Law Society of Upper Canada, 2010) at 36, online: Law Society of Ontario <https://lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/m/may3110_oclnreport_final.pdf>. See also, Amri Murray, “Access to Justice: The Value of Paralegals” Advocate Daily (2 November 2018), online: Advocate Daily <https://www.advocatedaily.com/amri-murray-access-to-justice-the-value-of-paralegals.html>.

[4] For more information about the Canadian Forum on Civil Justice, our projects and partnerships, visit: www.cfcj-fcjc.org.

[5] The Institute for Social Research (ISR) at York University and the Community Legal Education Ontario (CLEO) are currently conducting a longitudinal study on the impact of legal information on people’s interactions with the justice system in Ontario and British Columbia. This study was also supported by funding from the Law Foundation of Ontario.

[6] See Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto:  Canadian Forum on Civil Justice, May 2016) at 16-19, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[7] A previous CFCJ Slaw column estimated that law-related research represented roughly 1.71% of total research funding and support from one of Canada’s largest research granting bodies. Of the more than $700 million in research grants and other support by the Social Sciences and Humanities Research Council of Canada (SSHRC) in 2015, approximately $12 million went to projects that indicated Law as the main research discipline. See, Andrew Pilliar, “The Cost of Justice (Research)” Slaw (20 April 2017) online: Slaw <http://www.slaw.ca/2017/04/20/the-cost-of-justice-research/>.

The semi-annual meeting of the International Legal Aid Group (ILAG) was held in Ottawa in June from June 17 to 19, 2019. ILAG conferences are held every two years in a different country. The last time that an ILAG conference was held in Canada was in 1999 in Vancouver. This conference was hosted by Legal Aid Ontario which did an outstanding job of organizing the local events and venues, including a visit to the Supreme Court and the main conference dinner at the Museum of History.

A number of sessions contributed to the overall theme of the conference, Legal Aid as a Public Service: Is it Achievable? These included highly informative presentations about the use of technology in achieving access to justice, quality assurance in the delivery of legal services and assisting unrepresented litigants. In particular, a session on exploring gaps in the provision of services to vulnerable people highlighted the enormous scale and the creative strategies in bringing access to justice to the population of India.

There was substantial involvement by Canadian presenters. Catherine Coulter from Denton spoke about pro bono legal services in Ontario and, in the same session, Trevor Farrow from the Canadian Forum on Civil Justice spoke about professional ethics and obligations involved in access to justice and the public interest. David McKillop talked about on-going efforts at Legal Aid Ontario to meet the needs of diverse groups. Nick Summers from Newfoundland and Megan Longley from Nova Scotia gave a presentation illustrating the diversity of legal aid provision in Canada. In the same session, Karen Wilford from the NWT talked about the how the geographic and environmental factors combine with the legacy of colonialism shape the delivery of legal aid in Canada’s arctic region. Michele Leering from the Community Advocacy and Legal Centre in eastern Ontario spoke about a project currently underway in that province to advance health-justice partnerships in Ontario in a session that also included presentations about similar developments in Australia and the UK. In another session on technology and access Sherry MacLennan from the Legal Services Society of B.C. spoke about impressive developments in on-line dispute resolution for marginalized people in British Columbia. Nye Thomas and Ryan Fritch from the Law Commission of Ontario spoke about the potential impact of artificial intelligence and automated decision-making on access to justice.

In all the conference included 29 presentations in 9 sessions plus national reports. These will be available on the ILAG web site, along with papers from the previous ILAG conference held in South Africa, the ILAG Newsletter and articles about developments in legal aid. Readers are encouraged to access the ILAG web site at www.internationallegalaidgroup.org/  The International Legal Aid Group held its first meeting in the Netherlands 1994. It is the oldest international organization addressing legal aid and, more broadly, access to justice issues. ILAG remains the pre-eminent organization of academics, researchers and policy makers dedicated to sharing information about legal aid. It continues expand its international reach as the global access to justice landscape changes and is a source of valuable information and perspective on access to justice issues.

Many people experience civil justice problems, but few involve the courts. Rebecca Sandefur, an associate professor of sociology and law at the University of Illinois, has researched the frequency of justice problems and found that less than a quarter of Americans experiencing civil justice issues used the courts to resolve their disputes.[1] Findings from the Canadian Forum on Civil Justice’s national “Cost of Justice” survey also found that while 95% of adults in Canada try to do something about their civil and family justice problems, only about 7% appear before courts or tribunals to resolve their problems.[2]

Legal scholars have documented a large justice gap in North America, which sees many low- and middle- income individuals experience significant challenges engaging legal help to resolve their everyday legal problems through the formal justice system, as well as through other means. Recent research further reveals the extent of the global justice gap. The 2019 Innovating Justice report by HiiL and the Task Force on Justice indicates that overall, two-thirds of the world’s population lacks meaningful access to justice. [3]

There are significant consequences to untreated civil justice issues, in terms of both personal and societal costs.[4] Legal problems also result in other significant issues in people’s lives, including job loss, poor health, and housing instability.[5]

Innovation to Address Unmet Legal Needs

To address the global access to justice problem, we cannot keep going down the same path. It is important to challenge the status quo and adopt new ways of facilitating access to justice. Transitions in technology, the economy, and the legal profession make changes in justice systems inevitable. Gillian Hadfield, renowned professor of Law and Economics, posits that the legal system needs “a revolution of change”. [6] Similarly, in a recent blog post, Chief Justice of British Columbia, the Honourable Robert Bauman, encouraged lawyers to embrace disruptive changes in law.[7]

Disruption should be welcomed, as it provides new opportunities for developing innovative approaches to legal service delivery. There is a large group of people with unmet legal needs that are not being addressed in the current system. New models of legal assistance need to be adopted to meet the existing demand for services. Innovation does not solely rely on building new technology, it can also involve changes in where services are delivered and how legal professionals provide assistance. Other innovations may involve modifying the organizational structure of courts, law societies, and law firms. Overall, innovation is about rethinking what the justice system does and how it does it.

To find solutions, we need to change our beliefs and assumptions about the justice system. The Task Force on Justice describes this process as developing “new mental models”.[8] Using new approaches, we can build technologies and services to help close the justice gap. Creative ideas for delivering legal services are key to facilitating access to justice.

Canadian Justice Sector Innovations

Justice systems across Canada are also finding innovative ways to improve access to justice. One recent example is the Wellington County Mobile Legal Service in Ontario.[9] This initiative, which is being run by the Legal Clinic of Guelph and Wellington County, offers free legal advice to people residing in the region who would not otherwise be able to readily access legal help. The service operates through a van which drives around the county. People seeking legal advice connect with outreach workers in the van, who then skype a caseworker from the clinic to do a consultation. Taking legal services beyond the office and on the road is a simple idea but has a huge impact on people living in rural areas.

Another approach that has shown promise is Ontario’s One Judge Model pilot project. [10] This initiative, which launched in February 2019, was put in place to help speed up civil justice cases heard in the Superior Court. Parties will be assigned a case management judge depending on a number of factors, including the case’s complexity and public importance.  For approved cases, one case management judge is present at pre-trial hearings, case-management conferences, and trial. The case management judge controls the pace of the proceeding by assigning a trial date and imposing a schedule for completing necessary steps. By controlling the behavior of parties, ensuring the litigants meet deadlines, and resolving pre-trial disputes, this form of case management helps to save time and money. An additional benefit of the One Judge Model is that judges can become very familiar with the parties’ dispute. This allows for greater efficiency because only one judge needs to learn about the issues involved in the case, rather than the multiple judges usually involved. As this is only a pilot project, it is not available everywhere in Ontario and not all cases will qualify.

British Columbia took a different approach to court system efficiency, by adopting an innovative new method of dispute resolution that avoids judges and courtrooms all together. The province launched Canada’s first online tribunal in 2012.[11] The Civil Resolution Tribunal (CRT) began as a way to resolve condo disputes but has since expanded to small claims and motor vehicle accident injury disputes. The easy-to-use website helps users classify their disputes, identifies the correct application form, and guides them through the process. All of the tribunal’s services are available online, with paper forms available for people who do not have access to computers or who cannot use them. The CRT is available 24 hours a day, 7 days a week, and all steps in the process can be done when convenient for the user. The focus of the CRT is on participants finding a resolution through negotiation. A CRT member will only make a decision about the dispute if the parties cannot come to an agreement with the help of a case manager. Most participants can resolve disputes in ninety days for about $200.[12] In May 2019, over 9,000 disputes were resolved using the CRT, with 72% of users likely to recommend the website to others.[13] This innovative method of legal service delivery allows people greater access to dispute resolution, while focusing on party driven outcomes.

Lessons from Other Countries

There are many opportunities for adopting innovative ideas from jurisdictions outside of Canada. Additionally, there are many initiatives in Canada that are challenging traditional ways of providing legal services and providing innovative new methods. In expanding these programs, the country should follow the recommendations of the Task Force to ensure that innovations contribute to access to justice.

The report by the Task Force features examples of innovations in the provision of legal services that are happening worldwide. While British Columbia uses online dispute resolution (ODR) for some disputes, ODR could be used more broadly throughout Canada. In other jurisdictions online platforms help guide parties through divorces, and help them work towards a fair agreement.[14] In China the use of ODR has expanded to include commercial and intellectual property disputes involving the internet.[15] This expansion of the use of ODR can offer new ways to speed up dispute resolution and can prove to be an accessible way for people who live in rural areas, or who have difficulties accessing the courts, to resolve their legal problems.

This blog has presented only a few examples of the ways that innovative changes in the delivery of legal services can help to improve access to justice in Canada (and in other jurisdictions). Access to civil justice continues to be a significant global problem and an increasing body of evidence demonstrates a growing justice gap. It is time to begin thinking differently about our approach to access to justice. Hopefully, the comments presented here have served to illustrate what is possible and what is needed to move towards closing the justice gap.

 

[1] Rebecca L Sandefur, “Americans’ Experience with Civil Justice Problems and the Role of Civil Legal Assistance” (Research presentation to the inaugural meeting of the White House Legal Aid Interagency Roundtable, US Department of Justice, 29 February 2016) at 3, online: LegalAidResearch.org <http://legalaidresearch.org/wp-content/uploads/Sandefur_Americans-Experience-with-Civil-Justice-Problems-and-the-Role-of-Civil-Legal-Assistance.pdf>.

 

[2] Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) at 9, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

 

[3] Innovation Working Group of the Task Force on Justice, Innovating Justice: Needed and Possible (The Hague, Netherlands: HiiL, 2019), online: <hiil.org/wp-content/uploads/2019/02/Task-Force-on-Justice-Innovating-Working-Group-Report.pdf> [Innovation Working Group].

 

[4] See for example, Ab Currie, The Legal Problems of Everyday Life The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians (Ottawa: Department of Justice Canada, 2009), online: Department of Justice <https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr07_la1-rr07_aj1/rr07_la1.pdf>.

 

[5] See for example, Lisa Moore, Ab Currie, Nicole Aylwin, Trevor C.W. Farrow and Paul Di Libero, The Cost of Experiencing Everyday Legal Problems Related to Physical and Mental Health (Toronto: Canadian Forum on Civil Justice, 2017), online: CFCJ <https://cfcj-fcjc.org/sites/default/files/docs/The%20Cost%20of%20Experiencing%20Everyday%20Legal%20Problems%20Related%20to%20Physical%20and%20Mental%20Health.pdf>; See further, Lisa Moore, Ab Currie, Nicole Aylwin and Trevor C.W. Farrow, The Cost of Experiencing Everyday Legal Problems Related to Loss of Employment and Loss of Housing (Toronto: Canadian Forum on Civil Justice, 2017), online: CFCJ < https://cfcj-fcjc.org/sites/default/files/docs/The%20Cost%20of%20Experiencing%20Everyday%20Legal%20Problems%20Related%20to%20Loss
%20of%20Employment%20and%20Loss%20of%20Housing.pdf>.

 

[6] Ian Mulgrew. “Ian Mulgrew: Legal system needs a revolution to deal with digital economy, says expert”, Vancouver Sun (16 May 2019), online: Vancouver Sun <https://vancouversun.com/opinion/columnists/ian-mulgrew-legal-system-needs-a-revolution-to-deal-with-digital-economy-says-expert>.

 

[7] Honourable Robert Bauman, “It’s the Economy, Stupid” (29 May 2019), online (blog): NSRLP <https://representingyourselfcanada.com/its-the-economy-stupid/>.

 

[8] Innovation Working Group, supra note 3 at 6.

 

[9] Anam Khan, “Law van delivers free access to legal advice throughout Wellington County” GuelphToday (3 June 2019, online: GuelphToday <https://www.guelphtoday.com/local-news/law-van-offers-free-access-to-justice-to-people-in-rural-areas-1487125>; CBC News, “Mobile legal clinics coming to rural Wellington” CBC News (22 January 2019), online: CBC News <https://www.cbc.ca/news/canada/kitchener-waterloo/mobile-legal-clinics-coming-to-rural-wellington-1.4979593>.

 

[10] Aidan Macnab, “Pilot launched to speed civil justice”, Canadian Lawyer Magazine (30 January 2019), online: Canadian Lawyer Magazine <canadianlawyermag.com/legalfeeds/author/aidan-macnab/pilot-launched-to-speed-civil-justice-16791/>; Superior Court of Justice, “Practice Advisory Concerning the Provincial Civil Case Management Pilot – One Judge Model” (1 February 2019), online: Superior Court of Justice <ontariocourts.ca/scj/practice/civil-case-management-pilot/>; Judiciary Committee of the American College of Trial Lawyers, “Working Smarter but Not Harder in Canada: The Development of a Unified Approach to Case Management in Civil Litigation” (2016), online: The Society of Ontario Adjudicators and Regulators <https://soar.on.ca/sites/default/files/documents/ACTL.Cda_.Working_Smarter_Not_Harder_compressed.pdf>.

 

[11] Civil Resolution Tribunal, “Starting a Dispute”, online: Civil Resolution Tribunal <ontariocourts.ca/scj/practice/civil-case-management-pilot/>; Bill Henderson, “Is access to justice a design problem?”, Legal Evolution (23 June 2019), online: Legal Evolution <ontariocourts.ca/scj/practice/civil-case-management-pilot/>; British Columbia, “The Civil Resolution Tribunal and Strata Disputes” (31 May 2017), online: Government of British Columbia <https://www2.gov.bc.ca/gov/content/housing-tenancy/strata-housing/resolving-disputes/the-civil-resolution-tribunal>.

 

[12] Shannon Salter, “Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal” (2017) 34:1 Windsor YB Access Just 112, online: <https://wyaj.uwindsor.ca/index.php/wyaj/article/view/5008>.

 

[13] Civil Resolution Tribunal, “CRT Statistics Snapshot— May 2019”, online: Civil Resolution Tribunal <https://civilresolutionbc.ca/crt-statistics-snapshot-may-2019/>; Civil Resolution Tribunal, “Participant Satisfaction Survey— May 2019”, online: Civil Resolution Tribunal <https://civilresolutionbc.ca/participant-satisfaction-survey-may-2019/>.

 

[14] Innovation Working Group, supra note 3 at 13.

 

[15] Ibid; Sara Xia, “China’s Internet Courts are Spreading; Online Dispute Resolution is Working” (23 December 2018), online (blog): China Law Blog <https://www.chinalawblog.com/2018/12/chinas-internet-courts-are-spreading-online-dispute-resolution-is-working.html>.

 

My name is John Wu. I’m a JD / MBA student between Osgoode Hall and Schulich School of Business. With my team, I’m currently building a free database of global legislation.

Why are you doing this?

I’m going to start off with a premise I hope most of you can get behind: legal information is difficult to access, and prohibitively expensive.

Anyone who has dealt with companies like Thomson Reuters or LexisNexis can attest to the steep costs of accessing their resources (for those who are unfamiliar, a pricing chart can be found here). While free resources are available through the good work of various legal information institutes, these alternatives are often seen as a poor man’s substitute to be used by small firms, non-profits, and organizations that cannot afford pricey subscriptions.

Over the course of the past year, I spoke to dozens of organizations being squeezed into this position, from human rights advocacy groups to resource providers for legal aid clinics. I heard the same story from almost everyone: lower budgets, and higher costs, leading to less resources being available.

This is problematic. Legal information should, in theory, be far more accessible than it currently is. The rule of law is premised on the idea that everyday citizens can access legal information, and subsequently understand the law. Despite this, the most useful legal resources are consistently being locked behind paywalls, under a business model that tries to extract as much value from each individual customer.

And these paywalls are getting higher. Based on 20 years of data from the Association of Research Libraries, subscription prices from major publishers have been, and are continuing to increase at an astounding rate. As a result, libraries across the country are cutting down on the resources they provide in an ongoing effort to manage costs.

 

The rising cost of legal information goes against the general trends we’ve been observing almost everywhere else. After all, thanks to advances in technology, information collection and communication are easier than ever. This has transformed a once scarce resource into a sea of abundance, allowing for the creation of websites like YouTube and Wikipedia, which have revolutionized access to information across the globe.

Believing this same sort of transformation can happen with the law, we started the Codify Project. By creating a free database of global legislation, we hope to enable researchers to make more discoveries, assist lawmakers in drafting better laws, help legal professionals deliver better advice, and empower the everyday citizen to connect with the laws around them.

Wouldn’t that take decades of work?

While it may seem like a Herculean task for a team of two full-time employees, we have a secret weapon. The Codify System is an array of software which automatically scrapes, formats, and stores legal information.

 

Once the information is stored, it is automatically updated by the Codify System whenever there is a change, whether it’s an amendment to a pre-existing law, or a new law being introduced. The database is therefore always up to date and grows even without human intervention.

Using the Codify System, which we developed with the support of Osler, Hoskin & Harcourt LLP, we have built up the largest free database of Canadian legislation, containing all bills, regulations, and statutes, from every province and territory.

 

Because we’re using an automation, we can make improvements to our system with each jurisdiction we complete, allowing our program to complete the next jurisdiction faster. Based on our current data ingestion schedule, we should have the complete data set for 4 countries completed by the end of 2019.

An additional benefit of using technology to do the work is that it drives our marginal cost down, far lower than if we were doing this manually. This is what allows us to make our database free for the public.

Why legislation?

We decided to focus on legislation for two reasons.

The first is the inaccessibility of legislation, despite it being “free” in theory. While there are a number of reasons why this is, including the use of dense legalese and the increasing use of omnibus bills, the heart of the issue lies in how fragmented legislation is.

Statutes, bills, and regulations are all published through different sources (Justice websites, legislative assemblies, and gazettes respectively). Thus, to piece together the puzzle, one must learn how to navigate and gather information from numerous online resources, many of which are painfully out of date.

By codifying all this information into a single, freely-accessible database, we are making the legislative schema more accessible not just for humans, who can now access all information types on a single website, but for machines as well.

The second part is very important. Machines have a very difficult time when it comes to gathering information from web pages. The distinction between content and code can be blurry, and semantic meaning is often lost when extracting text. With legislation, this problem is compounded due to the patchwork of publication standards and data types. This makes it very difficult to apply technologies such as language processors.

By extracting information from government websites and documents, and standardizing it into a machine-readable language, the Codify System makes the database that much more useful for the development of computer applications, allowing complex programs to be built with relatively little effort.

One example of what is possible is Codify Updates, a website we built to help legal professionals stay aware of changes to the law.

 

Twice a day, Codify Updates publishes every legislative change in Canada. With a free account, users can create customized feeds to track the laws that matter to them, set up live email alerts, and use the built-in search engine to discover new insights.

A few years ago, the idea of software automatically tracking every legislative change seemed implausible. With a machine-readable database, this is but one relatively simple example of what is possible.

You mentioned two reasons. What’s the second?

In addition to its inaccessibility, legislation was also interesting to us because it impacts such an enormous range of stakeholders. Beyond lawyers and researchers, it is vital to the work of politicians and administrators, HR representatives and compliance teams, lobbyists and grassroots activists and more.

With such a diverse and interesting group of communities, which have largely been cloistered up until now, we see a lot of potential in building an open platform where they can engage and interact with the data.

After all, there are countless use cases for a database of international legislation. Some examples we’ve thought of include: (1) a political website for keeping tabs on which bills a politician sponsored, (2) a compliance tool for federally regulated financial institutions, (3) a comparative law search engine, (4) the translation of English laws into braille and American sign language.

These are all fantastic use cases which are well within the realm of possibility, which we are unable to explore due to time and resource constraints. By engaging with these stakeholder groups and providing them with the data, we hope to enable them to execute on the use cases that matter to them, and further increase the reach of our database.

What is the endgame?

In 1984, the very first Hackers Conference was held in Marin County, California. Though a relatively obscure event at the time, this gathering of designers, programmers, and engineers planted the seed of modern cyberculture, bringing together numerous titans of industry, including Apple co-founder, Steve Wozniak, and the father of hypertext, Ted Nelson.

It was at this conference that the organizer, author Stewart Brand, uttered his now famous words: “Information wants to be free.”

Those present immediately seized upon this quote, transforming it into a battle cry for the relentless march of the internet. In the ensuing decades, the importance of this statement has only swelled, with some calling it “the single dominant ethic in [the digital] community”; and the “defining slogan of the information age.”

As catchy as the expression is, the actual quote, made during a discussion on intellectual property between Brand and Wozniak, was much more nuanced.

“On the one hand information wants to be expensive, because it’s so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.”

Looking at the current state of the legal information market, it is worth reflecting on how this paradox has played out. On the one hand, there is more legal information available than ever before. Podcasts, blogs, and online legal guides have enabled countless legal professionals to share their knowledge with diverse audiences of lawyers and non-lawyers alike. And the digitization of laws has made it so that anyone can, at least in theory, see the laws of the land, without having to visit a courthouse library.

On the other hand, getting access to legal information, in the right time and place, has become more expensive than ever. Professionals are expected to get better information, and get it faster, to the point where judges feel comfortable penalizing lawyers for failing to use more sophisticated research tools. While a push to improve efficiency is not itself a bad thing, coupled with the high cost of legal information, this only creates further divisions between the haves and the have-nots, while strengthening the oligopoly of the big publishers.

We don’t expect this tension to disappear. But we hope the Codify Project will help shift the current dynamic. We believe it is the right of every citizen to have free and easy access to their laws. And through the power of technology and innovation, we have the means to provide it.

Where can I learn more?

If you would like to learn more, you can access our website here.

We are currently in the process of putting together a committee of industry leaders, to act as a preliminary board for the project. If you are interested in joining this committee, and want to learn more about its responsibilities and current membership, please email the author at john.wu@codifylegalpublishing.com.

John Wu, JD / MBA (Candidate), is the Director of Codify. As a law student in 2017, he was recognized by the Attorney General of Ontario as a rising star in legal-tech, and was given an award for his work in access to justice. Since then, he has founded an after-school program that brings legal education to local youth, as well as delivered presentations before the Ontario Bar Association Tech Expo and the Canadian Association of Law Librarians. Prior to entering law school, John worked as a researcher in the Department of Ophthalmology at St. Joseph’s Hospital. In his spare time, he enjoys watching science fiction and playing the guitar.

La version française suit.

There are big transitions occurring at the Action Committee on Access to Justice in Civil and Family Matters. Former Chief Justice Beverly McLachlin has this month assumed the chair of the committee which she had convened a decade ago.

The Chief Justice of Canada, Richard Wagner, has agreed to take on the role of honorary chair, carrying on the practice of his predecessor. Justice Elizabeth Corte and Mark Benton are in place as vice-chairs. With the support of the Ontario and British Columbia Law Foundations, the action committee is preparing a transition plan, a strategic plan and a governance plan, all to be presented and discussed at the committee’s annual summit in the early spring of next year. And the work of promoting and reporting on Canada’s Justice Development Goals is in full swing.

I had the opportunity recently to speak with the former chief justice McLachlin about her hopes and plans for the committee under her leadership. Here is what she had to say.

Thomas Cromwell: What were your expectations when you convened the action committee in the fall of 2008 and how does the committee’s work since then match those expectations?

Beverly McLachlin: My expectations were to start a conversation about access to justice that involved key players from all parts of the country and from all sectors — the legal profession, governments, courts, NGOs and academe — with a view to examining the roadblocks and coming up with insights on how to remove these barriers and improve people’s access to justice.

The committee’s accomplishments far surpassed my expectations. The broad cross-country conversation I hoped for has been engaged, and many new ideas on how to improve access to justice have emerged.

The level of engagement has far surpassed my expectations. As a result, new innovative ideas have actually been implemented — ideas that are improving Canadian’s access to justice “on the ground.” When we launched the committee in 2008, I had no idea that it would have produced such a rich dialogue, much less concrete results.

TC: What do you think are the most urgently needed changes to improve access to justice?

BM: I believe the most urgent change we need is a change in public and government attitudes. Instead of viewing justice as a frill or something lawyers and governments are grudgingly obliged to support, we should recognize (1) that access to justice in all its forms is a marker of a just society and (2) that supporting access to justice — providing people with legal help, counselling and more — will pay off in lower prison costs, lower court costs and enhancing the productivity of citizens. It is the right thing to do and the smart thing to do.

TC: Where do you hope to see the action committee go and what do you hope that it will accomplish under your leadership?

BM: The passionate women and men who have worked on the committee for the past decade have accomplished much and laid an excellent foundation for addressing the complex challenges that remain in achieving access to justice for everyone. I hope we will be able to establish a permanent umbrella organization to support innovative thinking, ensure that the accomplishments to date are not eroded and move on with new projects that will continue to enhance access to justice.

TC: As a final note, I am delighted that Beverley McLachlin has also agreed to take over this space. Beginning in January, she will be a regular contributor on access to justice. Next year is shaping up to be an exciting new phase of the ongoing efforts to improve access to justice in Canada.

The Honourable Thomas Cromwell served 19 years as an appellate judge and until recently chaired 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.

The Right Honourable Beverley McLachlin served as chief justice of Canada from 2000 to mid-December 2017. She now works as an arbitrator and mediator in Canada and internationally and also sits as a justice of Singapore’s International Commercial Court and the Hong Kong Final Court of Appeal. She chairs the Action Committee on Access to Justice in Civil and Family Matters.

This article originally appeared on The Lawyer’s Daily on December 19, 2018.

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De grands changements s’opèrent au Comité d’action sur l’accès à la justice en matière civile et familiale (le Comité d’action). Ce mois-ci, l’ancienne juge en chef Beverly McLachlin est devenue présidente du Comité d’action, qu’elle avait créé il y a une dizaine d’années.

Le juge en chef du Canada, Richard Wagner, a accepté d’assumer le rôle de président honoraire, poursuivant ainsi l’usage instauré par sa prédécesseure. Les juges Elizabeth Corte et Mark Benton occupent les fonctions de vice-présidents. Avec l’aide de la Fondation du droit de l’Ontario et de la Law Foundation of British-Columbia, le Comité d’action prépare un plan de transition, un plan stratégique ainsi qu’un plan de gouvernance, qui seront tous présentés et débattus à l’occasion du sommet annuel du Comité d’action au début du printemps prochain. Par ailleurs, aucun effort n’est ménagé pour promouvoir les Objectifs de développement en matière de justice au Canada et produire des rapports à cet égard.

J’ai récemment eu l’occasion de m’entretenir avec l’ancienne juge en chef McLachlin au sujet de ses souhaits et de ses projets pour le Comité d’action sous sa présidence. Voici ce qu’elle avait à dire à ce propos :

Thomas Cromwell (TC) : Quelles étaient vos attentes lorsque vous avez créé le Comité d’action à l’automne 2008 et, depuis, comment ses travaux répondent-ils à ces attentes?

Beverly McLachlin (BM) : Je souhaitais entamer une discussion sur l’accès à la justice à laquelle participeraient les principaux intervenants de partout au pays et de tous les secteurs – de la communauté juridique, des gouvernements, des tribunaux, des organisations non gouvernementales et des universités – en vue d’examiner les obstacles et de trouver des moyens de les éliminer et d’améliorer l’accès à la justice pour la population.

Les réalisations du Comité d’action ont largement dépassé mes attentes. La vaste discussion nationale que j’espérais a été amorcée, et de nombreuses idées nouvelles sur la manière d’améliorer l’accès à la justice ont vu le jour.

Le niveau d’engagement a aussi grandement dépassé mes attentes. Par conséquent, de nouvelles idées novatrices ont été mises en œuvre – des idées qui améliorent concrètement l’accès des Canadiens à la justice. Lorsque nous avons formé le Comité d’action en 2008, je ne pensais pas qu’il donnerait lieu à un dialogue si fructueux, et encore moins à des résultats réels.

TC : Selon vous, quels sont les changements les plus urgents pour améliorer l’accès à la justice?

BM : Je crois que le plus urgent est de faire évoluer les mentalités chez le public et le gouvernement. Au lieu de considérer la justice comme une chose accessoire ou comme quelque chose que les avocats et les gouvernements sont obligés de soutenir à contrecœur, nous devrions reconnaître que 1) l’accès à la justice sous toutes ses formes constitue l’indicateur d’une société juste et 2) le fait de faciliter l’accès à la justice – fournir aux gens de l’aide juridique, des services de consultation juridique et plus – se traduira par une baisse des frais d’incarcération et de justice ainsi que par une hausse de la productivité des citoyens. Il s’agit d’une stratégie à la fois juste et sensée.

TC : Quel avenir espérez-vous pour le Comité d’action et que souhaitez-vous qu’il accomplisse sous votre présidence?

BM : Les femmes et les hommes passionnés qui ont travaillé au sein du Comité d’action au cours de la dernière décennie ont réalisé beaucoup de choses et jeté de solides bases pour faire face aux défis complexes qui restent à relever pour assurer l’accès à la justice pour tous. J’espère que nous serons en mesure d’établir une organisation-cadre permanente pour nourrir la réflexion novatrice, veiller à ce que les réalisations à ce jour ne soient pas menacées et aller de l’avant avec de nouveaux projets qui continueront d’améliorer l’accès à la justice.

TC : Pour conclure, je suis ravi que Beverley McLachlin ait également accepté de reprendre le flambeau. À compter de janvier, elle sera une collaboratrice régulière en matière d’accès à la justice. La prochaine année s’annonce comme une nouvelle étape emballante dans les efforts soutenus pour améliorer l’accès à la justice au Canada.

L’honorable Thomas Cromwell a été juge d’appel pendant 19 ans et, jusqu’à tout récemment, a présidé le Comité d’action sur l’accès à la justice en matière civile et familiale créé par la juge en chef. Il a pris sa retraite de la Cour suprême du Canada en septembre 2016 et agit désormais comme avocat-conseil principal au sein du groupe national des litiges chez Borden Ladner Gervais.

La très honorable Beverley McLachlin a été juge en chef du Canada de 2000 jusqu’à la mi‑décembre 2017. Elle travaille maintenant comme arbitre et médiatrice au Canada et à l’étranger. Elle siège également à la Cour commerciale internationale de Singapour et au Tribunal d’appel de dernière instance de Hong Kong. Elle préside le Comité d’action sur l’accès à la justice en matière civile et familiale.

Millions of Canadians live with serious debt, persistent housing problems and face ongoing issues with unemployment. These problems have profound effects on their quality of life. They signal lives of adversity that are impacted by the economic and social constraints that these problems impose.

The Canadian Forum on Civil Justice’s (CFCJ’s) 2014 national survey of Everyday Legal Problems and the Cost of Justice[1] asked over 3,000 adults in Canada about their experiences with these markers of adversity. Separate from experiences of civil justice problems within the three-year reference period of the survey, participants were asked:

• Looking back over the last several years, how often have you been unemployed: all of the time most of the time, some of the time or have you never been unemployed over the past several years?

• Over the last several years, has debt been a serious problem for you frequently, some of the time, or not at all?

• Looking back over the last several years, would you say that having good, affordable housing has been a serious problem for you: frequently, sometimes, not at all?

The survey’s findings suggest that there is a high occurrence of these persistent issues in the lives of Canadians. The data reveal that experiencing adversity in the three areas seems to be a more general social condition than experiencing specific problems in those same areas. That is to say, facing serious debt over a number of years is not synonymous in the survey data with a higher probability of experiencing one or more debt-related legal problems over a three-year period. This pattern was true across the three areas of adversity, with the correlation between persistent unemployment and experiences of specific employment-related legal problems being the lowest.[2]

Conversely, people experiencing any of the three forms of adversity were more likely to report that they experienced one or more of the legal problems covered in the CFCJ survey compared with the general population. This suggests that having experienced these persistent problems may represent a deeper and more generalized condition of social adversity characterizing peoples’ lives that may expose them to greater risk of civil and family justice problems during a given period.

The data also reveal that what is being termed as adversity in this discussion affects a large number of Canadians. An estimated 10.4 million adult Canadians reported having experienced adversity that persisted over several years, measured in terms of one or more of the indicators examined: serious debt, trouble with good, affordable housing or unemployment problems over several years.[3] Further, for some problem types, people who experience adversity on any of the three dimensions were more likely to report that they had civil or family justice problems that were unresolved.[4] The data also show that people experiencing adversity experience larger numbers of problems and are more likely to say they experienced trigger effects in which one problem caused another.

There also appear to be connections between these markers of adversity and certain demographic characteristics. Responses to the CFCJ’s Cost of Justice survey reveal that people experiencing adversity in the three areas mentioned were more likely to be younger, to have lower levels of education and to have lower incomes. People with Aboriginal identity were also more likely than the general population to indicate that they experienced all three forms of adversity. Further, people who indicated that they have some level of physical disability were also more likely to experience adversity on all three dimensions.[5] One possible way to interpret these findings is that adversity, as it is being discussed here, may represent in part a form of social disadvantage in which members of some groups are more susceptible to being unfairly excluded from jobs, and disproportionately face financial and housing barriers. The extent to which social or economic adversity may be indicative of a long-standing or permanent precariousness in peoples’ lives is not clear. As the diversity of Canadian society grows there is value in further research to explore the links between adversity and social disadvantage with respect to these and other marginalized groups.

People experiencing adversity in terms of serious debt, unemployment and good, affordable housing were also more likely to have negative attitudes toward the justice system compared with people who responded that they had not experienced adversity at all. Respondents in the CFCJ survey were asked to indicate their level of agreement with the following four statements regarding the justice system in Canada:

• The justice system in Canada is mostly fair

• The legal system works better for rich people than for poor people

• The legal rights guaranteed in the Canadian Charter of Rights and Freedoms make a difference when people have legal problems

• Courts are an important way for ordinary people to protect their rights

Respondents who indicated that they had persistently experienced all three forms of adversity were more likely to agree with the statement that the justice system works better for the rich than for the poor, while respondents who had never experienced adversity were more likely to disagree or strongly disagree. Respondents who frequently experienced adversity with respect to debt, housing and unemployment were also more likely to strongly disagree with the other three statements— that the justice system is fair, the Charter of Rights makes a difference and the courts are important for the protection of rights – compared with respondents who said that they had not experienced adversity at all. In reality, the connection between issues of adversity experienced by people and views towards the formal justice system may be tenuous because issues related to adversity would not likely be dealt with by the courts. However, the idea of justice and the justice system has powerful symbolic value for people. It has been shown that experiencing everyday legal problems is related to negative attitudes toward the justice system even when people experiencing those legal problems have no contact with the formal justice system.[6] The courts, and more broadly the justice system are viewed as the ultimate guarantors of rights and freedoms in a liberal democracy and indications that confidence in their importance is being eroded within large segments of the population is concerning.

It may be easy to understand that people might have negative attitudes toward the justice system if they feel that their personal troubles are of little concern to the formal justice system and access to that system is beyond their reach. One way to make the connection between peoples’ everyday lives and the justice system might be through access to justice services based on outreach and holistic services, paradoxically, services that are not part of the formal justice system. One model involves reaching out to communities to understand the problems people experience and then partnering with local programs and organizations (legal and other) to address them. It involves building a seamless approach to access services and dispute resolution tools that provide a continuum of assistance from the community to the courts. This approach is rooted in the principle of proportionality and works to provide the appropriate assistance for particular problems through different access points so that the problem(s) may be resolved early and in cost- and time- effective ways.[7] Helping people move from adversity to resilience is one way that we may bridge the gap between legal justice and social justice.

This analysis identifies segments of the population who experience persistent problems in important areas of their lives, as well as a pattern that suggests those problems are connected to an increased likelihood to experience everyday legal problems within a given period. It represents another aspect of the growing findings from the body of contemporary legal problems research. We know from many studies conducted in Canada and internationally that everyday legal problems are ubiquitous in urban industrial society. We know from repeated studies carried out in Canada and elsewhere that the high prevalence of legal problems is a “nearly normal’ feature of our society. Some studies show that experiencing legal problems appears to have a momentum, and that the probability of experiencing more problems increases with each additional problem experienced. We know that many people also experience multiple problems that can result from trigger and cascade effects, sometimes forming interrelated clusters of problems that are thought to be all the more difficult to resolve because of the interdependence among them. This analysis presents another feature of the landscape of everyday legal problems. Experiencing everyday legal problems, in some circumstances, may be connected to more generalized conditions of adversity.[8] The nature of this adversity and its relation to legal problems, social disadvantage and precariousness in Canadian society should be examined further.

This blog originally appeared on Slaw on December 4th, 2018.

 

[1] Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) online: CFCJ < https://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[2] Data analysis indicates that the correlation between experiencing serious debt problems over several years and experiencing one or more specific debt problems within the three-year reference period for the survey was a modest 0.27. A similar correlation exists between persistent problems finding good, affordable housing and experiencing one or more specific housing problems – 0.28. The correlation between ongoing problems with unemployment over several years and specific employment legal problems reported in the survey was 0.12.

[3] 22.6% of respondents indicated that they had persistent debt problems, 12.1% indicated that having good affordable housing was a serious, persistent problem, 27.9% indicated that being unemployed was an ongoing issue.

[4] Cost of Justice Survey respondents who indicated that they experienced one or more civil or family justice problems over the three-year reference period of the survey were asked if the problem or dispute had been resolved or was still ongoing. See: Everyday Legal Problems and the Cost of Justice in Canada: Survey (Toronto: Canadian Forum on Civil Justice, 2016), online: CFCJ < https://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Survey.pdf>.

[5] Research suggests that people with disabilities are more likely to experience all types of specific legal problems. For a more detailed discussion, see Ab Currie, Civil Justice Problems and the Disability and Health Status of Canadians, Pascoe Pleasence, Alexy Buck and Nigel J. Balmer (eds.) Transforming Lives and Social Process, Legal Services Research Centre, London, 2007, pp. 44-66.

[6] See for example, Ab Currie, A Lightning Rod for Discontent: Justiciable Problems and Attitudes Toward the Law and the Justice System, Pascoe Pleasence, Alexy Buck and Nigel J. Balmer (eds.), Reaching Further: Innovation, Access and Quality in Legal Services, Legal Services Research Centre (London, 2009) pp. 100 – 114.

[7] Access to Civil and Family Justice: A Roadmap for Change (Ottawa: Action Committee on Access to Justice in Civil and Family Matters, October 2013). The idea of an early resolution services sector at page 11 is a similar idea.

[8] Pascoe Pleasence, Causes of Action: Civil Law and Social Justice (2^nd edition), Legal Services Commission, London, 2006 discusses similar ideas; patterns of vulnerability at pages 29-50, average duration of problems at page 147 and social exclusion at page 155.

This article originally appeared on The Lawyer’s Daily on November 5, 2018. It is the twelfth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

The last week of October is Pro Bono Week, a global celebration of the pro bono ethic in our profession. Across Canada and around the world, thousands of legal professionals provide their services without cost for the public good. In Canada, where there is a wide and growing gap between the need for legal services and people’s ability to gain access to them, pro bono is a part of the effort necessary to fill that gap.

We entered Pro Bono Week on a wave of optimism and achievement generated by the Seventh National Pro Bono Conference held in Vancouver on Oct. 4 and 5. The packed agenda included presentations by the chief justice of Canada, the chief justice of British Columbia, the attorney general of British Columbia and the president of the American College of Trial Lawyers.

The message from the top was clear: pro bono work by lawyers is part of our professional responsibility and its importance to the welfare of our community cannot be overstated. The large attendance at the conference and the lively engagement evident in all of the sessions generated optimism and enthusiasm.

While we can and must do more, there is much to celebrate.

But not all of the news about pro bono is good. Pro Bono Ontario (PBO) has indicated that in December it will have to close its court-based programs — two in Toronto and one in Ottawa — for want of funding for the administrative support essential to running these programs. PBO says that each year, volunteer lawyers help more than 18,000 clients in the civil, non-family justice system and, at the same time, reduce delays in the courts’ handling of these matters. An evaluation of the programs concluded that they provided a 10:1 return on investment. In other words, the public purse saved $10 for every dollar in funding. But that is apparently not enough to persuade potential funders to inject the modest resources needed to assure that these programs continue.

David W. Scott, one of the “parents” of these programs, has for many years spent a morning each month at the Law Help Centre at the Ottawa courthouse. He told me that during his October shift, he saw five people:

• a single mother who is being pursued by a government department for  support payments;

• a friend of an Arabic woman who speaks no English who is defending herself from a landlord’s claim for rent;

• a young man on parole who was the victim of a fraudulent claim when he was incarcerated;

• a young mother who was being sued for return of employment insurance; and

• a woman being sued for alleged non-payment of taxes.

Through the court-based program, David was able to provide modest but critical help. The closure of the Law Help Centre will mean that people like those who David saw — people in their thousands — will be left to their own devices. The need for these services is obvious and compelling.

The willingness of legal professionals to provide these pro bono services has been demonstrated. The business case for doing so seems unanswerable. But even this is not enough to save these programs.

Scott says that he is heartbroken. The rest of us should be ashamed. Who can seriously contend that we cannot find the modest resources needed to maintain these valuable services? If we wanted to, we would.

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.

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>.

 

 

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.

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.