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 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.
[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].
[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].
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 12th 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 11th in the world on Absence of Corruption with a score of 0.82, 11th on Open Government with a score of 0.80, and 11th globally on Criminal Justice with a score of 0.73. We rank 13th on Constraints on Government power with a score of 0.82 and 13th on upholding Fundamental Rights. Canada ranks 14th on Order and Security with a score of 0.90 and 15th 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 22nd 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 18th in 2015 to 22nd 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 22nd 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.
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.
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.
[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
[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>.
[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?
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]
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 12th, 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]
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.
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 9th 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
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
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.
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.
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.
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’.
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.
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.
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.
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.
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.
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 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.
We are thrilled to announce the publication of The Justice Crisis: The Cost and Value of Accessing Law edited by Trevor C.W. Farrow and Lesley A. Jacobs. This is the first book to provide an in-depth overview, based on new empirical research, of what is working and not working to improve access to civil and family justice in Canada.
The Justice Crisis explores the value associated with the provision of an effective justice system and the costs – individual and collective – of not providing accessible justice. The national and international importance of and the need for this kind of research is widely acknowledged.
Contributors to The Justice Crisis: The Cost and Value of Accessing Law include: Carolyn Carter, Thomas A. Cromwell, Ab Currie, Matthew Dylag, Trevor C.W. Farrow, Heather Heavin, Lesley A. Jacobs, Devon Kapoor, Michaela Keet, Jennifer Koshan, Herbert M. Kritzer, Moktar Lamari, Marylène Leduc, M. Jerry McHale, Lisa Moore, Janet Mosher, Pierre Noreau, Mitchell Perlmutter, Catherine Piché, Noel Semple, Lorne Sossin, Michael Trebilcock, Wanda Wiegers and David Wiseman.
The book’s foreword is written by The Honourable Thomas A. Cromwell, CC.
The Justice Crisis: The Cost and Value of Accessing Law is part of the CFCJ’s Cost of Justice project. The Cost of Justice project was funded by the Social Sciences and Humanities Research Council.
The Justice Crisis: The Cost and Value of Accessing Law was published by UBC Press and is available here: www.ubcpress.ca/the-justice-crisis.
More about The Justice Crisis: The Cost and Value of Accessing Law:
Announced on 28 September 2021, The Justice Crisis: The Cost and Value of Accessing Law is one of two books that received an honourable mention for the 2021 national Walter Owen Book Prize [English language]. A jury appointed by the Canadian Foundation for Legal Research recommended prize recipients from a list of 27 book nominees: https://finance.yahoo.com/news/2021-walter-owen-book-prize-120000020.html.
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 9th 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 13th with an overall score of 0.79 and the US ranks 21st 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 10th.
Canada has improved its overall ranking on the Rule of Law index since 2011, fluctuating between 11th and 17th position globally. The factor that has kept Canada hovering in the admirable place of 9th among nations for the past 4 years is our score of 0.70 on the civil justice component, ranking 19th 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 9th among the 126 countries included in the survey. [3] Canada also ranked 9th in the WJP Rule of Law Index 2017–2018 Report.
Always of special interest, our usual international comparators, the UK and the US, rank 12th and 20th, 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 atOsgoode Hall Law School. He is also the chair of the Canadian Forum on Civil Justice. Mary Condon is dean of Osgoode Hall Law Schooland 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.
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.
[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>.
[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>.
[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.
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/.
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[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/>.
“Justice for All” is the title of a recently published report on access to justice that officially launched in Canada on May 30, 2019 at the Global Center for Pluralism in Ottawa.[1] The report was published by the Task Force on Justice. The Task Force is an initiative of the Pathfinders for Peaceful, Just and Inclusive Societies, a group of member states working towards a shared vision of how United Nations Sustainable Development Goal (SDG) 16.0—Promote peaceful and inclusive societies for sustainable development; provide access to justice for all and build effective, accountable and inclusive institutions at all levels—can be delivered. The Pathfinders have placed access to justice at the core of the effort to implement SDG 16. Their work further serves to highlight access to justice elements of the other 16 UN Sustainable Development Goals.[2]
The Justice for All Report Canadian launch event featured prominent global leaders, who each spoke to key findings in the report and the urgency of addressing the worldwide access to justice problem. The main speakers at the event were Mary Robinson, former Prime Minister of Ireland and Chair of the Elders,[3] Nathalie Drouin, Deputy Minister of Justice in the Government of Canada and Allyson Maynard-Gibson former Minister of Justice and Attorney General of the Bahamas. The International Development Research Centre, The World Bank, The Organization for Economic Cooperation and Development, The United Nations Development Program and the Open Society Justice Initiative are among the 26 international partners in the initiative. The Canadian launch was sponsored jointly by the International Development Research Centre, a branch of Foreign Affairs Canada and the Task Force on Justice.
The Justice for All initiative is one of bold intent. At the heart of the Justice for All vision is the UN’s 2030 Agenda for Sustainable Development, a roadmap endorsed by the UN’s more than 190 member countries in 2015 to help create a “just, equitable, tolerant and socially inclusive world”. Justice is a thread that runs through all 17 United Nations Sustainable Development Goals. In addition, it should be noted that the 2030 Agenda represents the first time that the United Nations has included a target that directly addresses access to justice in its global plan for action. Specifically, SDG 16.3 calls for equal justice for all by the year 2030.
The agenda for action of the Task Force is built around several overarching themes:
– Resolving the justice problems that matter most to people
– Preventing justice problems
– Creating opportunities for people to fully participate in their societies and economies; and
– Investing in justice institutions that work for people and that respond to their needs for justice.
Supporting national implementation of justice initiatives, increasing justice leadership, measuring progress, intensifying cooperation and building the global movement are also important parts of the agenda.
True to their name, the Task Force is a catalyst for concerted action. Though they are less involved in on-the-ground justice initiatives, they are helping to promote action on access to justice by advancing a global movement that is helping to raise awareness of the seriousness of the global crisis in access to justice, and bringing the importance of improving access to justice worldwide to the forefront of public consciousness and discourse. Doubtless, particular needs and solutions will exist in different parts of the world. In one jurisdiction legal identity documents and land titles may be fundamental problems blocking social development; in another, cost or timely access due to crowded dockets may be the main barriers limiting access to civil courts. The Task Force’s efforts recognize the complexity and diversity of the access to justice problem. In Canada, where provincial/territorial, national and international endeavors continue to work to move the dial on improving access to justice, the added attention that the Task Force’s “Justice for All” report launch in Canada has brought is welcomed.
The cost of injustice is one of the main areas of concentration in the work of the Task Force. As pertains to this topic, the work of the Canadian Forum on Civil Justice (CFCJ) features prominently in the Task Force report. The CFCJ’s contributions include data from the national survey of Everyday Legal Problems and the Cost of Justice (2016) and a specially commissioned report on Costing the Justice Gap: Return on Investment for Justice Services by Civil Society Organizations (forthcoming 2019).
The work of the Task Force on Justice and the Pathfinders for Peaceful, Just and Inclusive Societies as well as other international organizations over the past few years since the United Nations issued its 2030 Agenda is encouraging. These efforts have applied the empirical research from the body of legal problems research conducted over the past 25 years and the policy implications that have flowed from this collection of socio-legal restudies to inform further research as well as to help, reenergize the access to justice movement. This includes building on early work from Canadians like Ab Currie and others to help push a recognition of the importance of public-centered efforts and the recognition of everyday legal problems as a central area of focus for legal institutions and legal reforms. The CFCJ’s ongoing efforts and support for the Task Force, the Pathfinder’s, the work of the Organisation for Economic Co-operation and Development (OECD) and other initiatives, as well as the Canadian Action Committee on Access to Justice in Civil and Family Matters (also featured in the “Justice for All” report) continue to be directed toward important, public-first, meaningful, justice-for-all goals and research efforts. Readers are encouraged to read Justice for All: The Report of the Task Force on Justice, April 2019 accessible at https://www.justice.sdg16.plus/report.
[1] The Justice for All report was published on April 29, 2019. See Task Force on Justice, Press Release, “Justice Systems Fail to Help 1.5 Billion People Resolve Their Justice Problems, New Global Report Finds” (29 April 2019) online: Pathfinders for Peaceful, Justice and Inclusive Societies <https://www.justice.sdg16.plus/report>.
[2] For the complete list of UN Sustainable Development Goals, see “United Nations Sustainable Development Goals Knowledge Platform”, online: United Nations <https://sustainabledevelopment.un.org/sdgs>.
[3] The Elders is an international, non-governmental organization of prominent public figures brought together by Nelson Mandela in 2007. For more information about The Elders, see “Who we are” online: The Elders <https://www.theelders.org>.
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.
[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>.
[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>.
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.
Credit for these graphs go to Connor Campbell, JD Candidate 2020.
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.
You can think about the Codify System as a swarm of spiders, crawling 24/7 around the web to gather relevant info.
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.
The current scope of our database includes bills, regulations, and statutes from all Canadian jurisdictions. It was recently expanded to capture bill information from the UK, US, and Australia.
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.
The Codify Updates landing page, designed by John Wu.
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.”
“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.
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.
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 (2nd 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.
The full data set from the CFCJ’s Everyday Legal Problems and Cost of Justice of Justice in Canada survey is now available! As part of our national 7-year study on the Cost of Justice, we surveyed over 3,000 adults in Canada to learn about their experiences with civil and family justice problems, the costs (monetary and non-monetary) of experiencing one or more civil or family justice problems and their views on the justice system. Findings from this national research project continue to inform reports, plain language resources, and other publications and influence policy thinking on meaningful ways to improve access to civil and family justice in Canada and elsewhere. The newly published Cost of Justice survey data report is available on the CFCJ website here: https://cfcj-fcjc.org/wp-content/uploads/Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada-Cost-of-Justice-Survey-Data.pdf.
Is there a connection between annual household income and experiences of civil or family justice problems in Canada? Is how much you earn annually correlated with the types of civil or family justice problem that you might experience? A new Cost of Justice report is now available that includes data from the CFCJ’s national Cost of Justice survey organized into three annual income earning groups: Less than $60,000, $60,000 – $125,000, and More than $125,000. View the Everyday Legal Problems and the Cost of Justice in Canada – Income report on the CFCJ website here: https://cfcj-fcjc.org/wp-content/uploads/INCOME-Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada.pdf.
Almost 50% of people who experience an everyday legal problem spend some money trying to resolve their problem. Based on findings from the CFCJ’s national Cost of Justice study, average spending on legal problems is approximately $6,100. That is almost as much as Canadian households spend on food in a year. The newly published Everyday Legal Problems and the Cost of Justice in Canada – Spending on Everyday Legal Problems report offers additional insights on monetary spending on civil and family justice problems based on demographic characteristics recorded in the CFCJ’s Cost of Justice survey, as well as pathways used to try to resolve legal problems. This new Cost of Justice report is available on the CFCJ website here: www.cfcj-fcjc.org/wp-content/uploads/SPENDING-Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada.pdf.
Legal secondary consultation is a service in which a lawyer, paralegal or community legal worker provides legal information or advice on request to service providers in service agencies or voluntary associations in the community. The idea was borrowed from Australia where secondary consultation was originally developed in a medical-legal partnership. A significant difference in the three-clinic Canadian experience is that LSC is provided to a wide variety of community organizations, some with professional and some with volunteer service providers.
The LSC project has been a very valuable support to community organizations. During the approximately seven-month period covered by the review, the three clinics received 235 requests for consultations from 103 different community organizations. Service providers from community agencies requesting the LSC service were virtually unanimous in their opinion that legal secondary consultation was extremely helpful in dealing with the issues for which they requested help, enabling them to better serve their own clients. Service providers also indicated that the assistance from LSC advisors often built organizational capacity enabling them to deal with similar situations better.
The types of organizations making requests for consultations varied from one clinic to the next, but, overall, mainly included community health centres, mental health services, food banks, family counselling agencies, organizations providing housing assistance and social services agencies. The types of problems for which consultations were requested were mainly in areas of housing and access to social services, together making up slightly more than 65% of all requests for all three clinics combined. These two main areas were followed by wills and powers of attorney, family law and immigration as common problems for which consultations were requested. Service providers requested consultations for a variety of problems with potential legal implications within very diverse organizational mandates. However, LSC advisors indicated that the most common type of advice provided was legal advice related to individual problems. Strategic advice about how to deal with a problem followed as the second most frequent type of advice.
The LSC services expanded the number of people who received legal help by the clinics through the secondary mechanism of assisting other service providers. Only a few of the contacts resulted in the individual being referred to legal aid. The service providers in community agencies felt that many of their clients would not have approached legal aid on their own and in some cases would not have followed up on a referral to legal aid made by the service provider.
According to LSC advisors, legal secondary consultation is a highly efficient way to provide assistance. Advice is provided to external service providers by e-mail or telephone. The typical amount of time spent on a consultation was about 20 minutes. In addition, because there is no intake process, LSC allows the clinic to provide assistance at very low cost.
LSC advisors were aware of the risk that service providers may not fully understand the advice provided and, as a consequence, might take inappropriate action in dealing directly with their clients. LSC advisors said they monitor the telephone conversations and e-mail exchanges with service providers to assess the degree to which service providers appear to understand the information being provided. According to LSC advisors, situations only occasionally occurred in which they suspected some possible misunderstanding by service providers. In these cases the LSC advisors said they always made a special effort to assure the information being conveyed was well understood.
All three clinics have continued to provide legal secondary consultation to community organizations after the experimental period, integrating into the LSC into their overall delivery approach. The evidence suggests that legal secondary consultation is an important form of outreach to the community and, on the return trip, an effective path to justice.
Limited scope retainers (commonly known as “unbundled legal services”) have become increasingly touted as a way to improve access to justice. An unbundling agreement consists of a lawyer or paralegal providing services for part(s) of a client’s legal matter. For example, under an unbundled legal services agreement, a lawyer may help a litigant draft and fill out forms for a hearing on a tenancy issue, but not represent the litigant at their hearing. One of the valuable ways unbundled legal services can help aid the access to justice crisis is that they can help provide access to legal services for people who make too much to qualify for legal aid, but also cannot afford to retain full legal representation for an entire legal matter. The previous treasurer for the Law Society of Ontario, Paul Schabas, has said that the law society was encouraging lawyers to support unbundling legal services because clients can pick and choose services they can afford.[1]
To give a clearer picture of how unbundled legal services could offer a useful alternative in situations where the cost of trying to resolve a legal problem is an issue, it is important to look at some numbers that shed light on how much legal services cost in Canada, and how they compare to common expenses. The Canadian Lawyer Magazine’s annual “Going Rate” legal fees survey for 2018 shows that the average hourly rates for a 1 year or less lawyer who was called to the bar in 2017 is $179.74 in Western Canada, $217.96 in Ontario, $165.00 in Atlantic Canada/Quebec and $190.51 nationally.[2] Alternatively, for an 11 to 20-year call, the average hourly rate was $371.44 in Western Canada, $387.02 in Ontario, $272.97 in Atlantic Canada/Quebec and $357.89 nationally.[3] For a clearer picture of how legal costs may add up cumulatively, the national average cost for a civil action case up to and not including trial (two days) was found to range from $10,000-$15,000, and the national average for a civil action up to and not including trial (5 days) was less than $35,000.[4]
To put these numbers in perspective, the median total income of Canadian households was $70,336 in 2015.[5] In terms of household size, in 2014, the average number of people per family was 2.9.[6] To contrast, to qualify for duty counsel/summary legal advice for Legal Aid Ontario, for example, gross family income for a family of one must be lower than $22,720 and for a family of two, $32,131.[7] For Alberta families of one and two who want to access legal aid, the annual income must be at or lower than $19,653 and $24,333 respectively.[8] In 2016, Canadians spent 29% of their total income on shelter, 19.2% of their income on transportation and 14.1% on food.[9] For a household with a total income of $70,336, this would mean they would spend around $20,397 on shelter, $13,504 on transportation and almost $10,000 on food. The cost of a two-day civil action, not including trial, at $10,000 would thus be a comparable expense relative to the total annual costs of food, shelter or transportation for Canadians. This is an onerous expense for the many potential litigants won’t qualify for legal aid assistance, and will have to foot the costs for their legal problems. In addition, not every litigant will be able to afford the extensive hours of work performed by lawyers, particularly in drawn-out litigation which could last months to years, all while the average hourly rates for lawyers tend to be above $150.00. Although a number of Canadians will be able to afford to spend $10,000 on legal expenses, they may be hesitant to commit to full representation due to uncertainty as to how long their legal matter will last, and if unexpected issues or delays end up ballooning the cost compared to what they had originally expected.
In an unbundled legal services agreement, a litigant can choose, with the expertise of the lawyer or paralegal, which individual services they want. This increases the number of clients who are able to afford legal services because they do not have to pay for the entirety of services required in litigation[10], and they can afford representation at critical points of a legal proceeding rather than trying to navigate difficult court hurdles alone.[11] Consequently, unbundled legal services agreements can help avoid potential “all-or-nothing” situations. That is, situations where a litigant doesn’t qualify for legal aid, but cannot afford legal representation, so they need to represent themselves throughout the entire matter. Instead, the litigant can seek advice and reap the benefits of an unbundled legal services agreement by paying for the services that are the most complex or important for the outcome of their case, while cutting costs by performing and organizing the work that is more straightforward with lower stakes on their own.
This doesn’t merely provide access to the courts, but it provides increased access to sound and accurate legal advice and services which can be critical for the just outcome of a case. Litigants who act on their own are disadvantaged because they often lack the knowledge, experience and skills related to judicial processes, and the increasing number of self-represented litigants in the courts slows down the litigation process, which can lead to higher costs for the judicial system, further clogging up courts.[12] As such, a potential litigant may save time, money and stress if they pay for a lawyer to only examine and fill in complex forms rather than doing it themselves, as this may reduce the likelihood that a lack of experience and knowledge will have an impact on the more important and complex parts of the legal proceeding. Therefore, using an unbundled legal services agreement for the higher stakes hurdles in a court proceeding has the potential to afford litigants better access to a fair process while avoiding the full costs of a legal proceeding.
Although unbundled legal services allow litigants to receive services in a cost-effective way, thus increasing their ability to access justice, this is somewhat dependent on the supply of lawyers who are willing to provide unbundled legal service agreements. From a practical and financial standpoint, a lawyer may not want to invest his or her time conducting client intake, conflict checks and so on if they are only getting paid a fraction of what they would be getting paid if they were fully retained. Some have noted that this is a regulatory problem, and if the legal profession wants to use unbundled legal services to provide increased access to justice to litigants, regulatory change should be implemented to provide them with incentives to offer these agreements.[13]
Because providing unbundled legal services comes with novel responsibilities and concerns for lawyers, lawyers may avoid engaging in them due to a fear of increased risk of professional liability.[14] For example, if a client isn’t told about the detailed implications and limits of a limited retainer, the client may assume something is being handled when in reality it is not. This could be perceived as an extra step, as the lawyer now must not only explain the individual services he or she is offering, but also explain that in doing those things, other specific aspects of the legal matter will not be handled, which can have certain implications. Without this acute awareness and detailed explanation, this could possibly open up the lawyer to professional liability. A decision in Meehan v. Good[15], where the Ontario Court of Appeal overturned a motion judge’s decision that had dismissed a negligence claim against a lawyer and ruled that the lawyer had failed to give adequate advice to a client about limitation periods, was said to reflect a common reason why lawyers seem reluctant to offer unbundled legal services.[16]
Law societies seem to have taken note of this by creating rules and guidelines that seem to preserve the benefits of unbundled legal services while mitigating lawyer liability, and thus mitigating deterrence to providing unbundled legal services out of fear of professional repercussions. The Law Society of BC suggests that lawyers take certain precautions to mitigate the risks that come with unbundled legal services, such as using the initial client meeting to carefully assess the appropriateness of a limited scope retainer, avoiding making assumptions, using checklists to help identify and record who is responsible for what (the client or the lawyer?), and remembering that risk management practices employed in a traditional retainer equally apply to a limited one.[17] Others have argued that the pros outweigh the cons, highlighting that unbundling is a safe practice that provides access to justice which has the potential to result in faster and less stressful outcomes, with no indication of an increased rate of negligence claim or complaint to the law society for lawyers.[18]
In 2011, the Law Society of Ontario (then the Law Society of Upper Canada) approved amendments to the Rules of Professional Conduct and the Paralegal Rules of conduct, which function to guide the professional and ethical standards of lawyers and paralegals.[19] The Law Society, in anticipation of an increase in the number of legal service professionals who offer unbundled legal services, changed the rules to guide lawyers and paralegals who provide “unbundled” legal services.[20] The changes include a rule (in most cases) where the client will receive a document confirming the limited nature of the retainer and clearly outlining the scope of the services provided.[21] This can benefit both the clients and the lawyer, as it can inform the clients of the precise nature of the legal help that they are receiving, and to what extent, and it can protect the lawyer from liability.
Although unbundled agreements may not be fully used to their potential, or regulated for maximum effectiveness, it seems as though law societies and the legal profession are increasing dialogue and taking action to integrate them into the profession and therefore provide those who cannot afford full representation, but also do not qualify for legal aid, access to legal services. [1] Anita Balakrishnan, “LSO has responsibility to legal aid: Schabas”, Law Times News (18 June 2018), online: < https://www.lawtimesnews.com/>.
[2] Marg. Bruineman, The right price: Canadian Lawyer’s 2018 Legal Fees Survey shows some bright spots for law firms despite a highly competitive market (Toronto, Ontario: Canadian Lawyer Magazine, April 2018) at 21, online: Canadian Lawyer Magazine <www.canadianlawyermag.com>.
[5] Statistics Canada, Household Income in Canada: Key results from the 2016 Census (Ottawa, Ontario: Statistics Canada, 2016), online: Statistics Canada <www.statcan.gc.ca>.
[11] Joni J. Berner, “Transforming a Family Law Practice to a Peacemaking Practice”, The Legal Intelligencer (powered by Law.com) (09 July 2018), online: <https://www.law.com/thelegalintelligencer/>.
[12] Jennifer A. Leitch, Having A Say: Democracy, Access to Justice and Self-Represented Litigants (PhD, Dissertation, Osgoode Hall Law School at York University, 2016) [Osgoode Digital Commons] at 137.
[13] The Honourable Justice Thomas A. Cromwell & Siena Anstis, “The Legal Services GAP: Access to Justice as a Regulatory Issue” (2016) 42 Queen’s LJ at 20 (WL Can).
[14] Law Society of British Columbia, “Managing the risks of a limited scope retainer (October 2017), online: <https://.lawsociety.bc.ca/>.
The Canadian Forum on Civil Justice is thrilled to announce the launch of a three-year, international research project to assess the costs, benefits and opportunities for increasing access to community-based justice services in Canada, Kenya, Sierra Leone and South Africa.
Funded by the International Development Research Centre (IDRC), the Community-Based Justice Research (CBJR) project is a newly-launched, collaborative research initiative that aims to advance collective understanding of the costs, opportunities, and challenges of community-based justice programs. In doing so, this project will play a significant role in supporting the improvement of access to justice at the community level.
This project speaks directly to Goal 16.3 of the UN Sustainable Development Goals (SDG) which requires countries to ensure equal access to justice for all of their citizens. Community-oriented justice services fill gaps in the delivery of legal services in many otherwise underserved areas; they facilitate early legal problem resolution, and they empower individuals to engage in society to protect their legal rights. By helping to provide the evidence needed to understand, assess and scale these types of access to justice programs, this project will help countries to better develop and deliver justice to their communities.
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 DevelopmentVoluntary 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>.
[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>.
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.
This article originally appeared on The Lawyer’s Daily on June 20, 2018. It is the eighth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.
Access to justice leaders from coast to coast to coast met for two and one-half days in Ottawa in April at the annual summit of the Action Committee on Access to Justice in Civil and Family Matters. These people know better than most how big a challenge we face in improving access to justice. But that did not temper the enthusiasm for what has been accomplished or weaken the resolve to keep working for change.
Delegates representing the broad coalition that makes up the action committee — deputy ministers, the judiciary, provincial and territorial access to justice groups, legal aid plans, pro bono groups, public legal education providers, the bar, notaries, ADR professionals, administrative tribunals and the public — heard of the success of the action committee’s public engagement initiative and its innovation tool box project. Thousands of people engaged with the need for an effective civil and family justice system and people across Canada active in justice innovation developed communities of practice and other tools to help them with their important work. Sarah McCoubrey and Meredith Brown, access to justice strategists with Calibrate, designed and executed both projects, which were funded by the Law Foundation of Ontario.
The group also was given an update on progress on the action committee’s Justice Development Goals. Sixty-eight new initiatives to help people address everyday legal problems; 64 new initiatives designed to better meet legal needs, including eight new pro bono services; 50 projects aimed at improving family justice. And the list goes on.
One of the challenges facing reformers is the dearth of empirical evidence about how our civil and family justice system works and how to know if our reforms are having the intended effect. The improvement in justice metrics is a critical element of any long-term plan for systemic change. People at the summit learned of a project spearheaded by Jerry McHale which is bringing together a strong coalition to work on this topic. Bringing to together researchers at the faculties of law at the University of Victoria, University of Saskatchewan, York University and University of Montreal, the initiative’s goal is to develop priorities for justice system metrics and to build capacity for data gathering and analysis. And feeding into that effort was the work at the summit to begin to develop indicators; that is, things we can measure, in relation to each of the Justice Development Goals.
A full day of the summit was devoted to the issue of Indigenous child welfare. Organized by Scott Robertson of the Indigenous Bar Association and Mark Benton of the Legal Services Society of B.C., distinguished speakers from across Canada led us through an intense and impactful overview of the woeful state of services for Indigenous children and families in many parts of our country. While not usually discussed as an access to justice issue, the presentations at the summit showed that it certainly is. The child welfare system almost everywhere in Canada is not meeting the needs of children, families or communities. The speakers at the summit helped participants not only to better understand the problem, but also to hear about promising solutions. Better funding, more community leadership, more culturally appropriate options and a wider focus on the whole family were some of the aspects discussed.
To cap the summit, Beverley McLachlin, recently retired as chief justice of Canada, confirmed that she has agreed to assume the chair of the action committee this autumn. Her successor as chief justice, Richard Wagner, confirmed that he has accepted to take on the role of honourary chair of the action committee, following in his predecessor’s footsteps. Stay tuned!
All of us concerned about access to justice will not be satisfied until there is a great deal more improvement. But this gathering of leaders demonstrated that there is a growing commitment to make the necessary change and an impressive array of innovative projects showing that making that change is possible.
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.
Accès à la justice : le Comité d’action aborde les problèmes à la recherche de solutions innovatrices
En avril, des chefs de file sur les questions d’accès à la justice, venus des quatre coins du pays, se sont réunis pendant deux jours et demi à Ottawa, pour participer au sommet annuel du Comité d’action sur l’accès à la justice en matière civile et familiale. Ce sont des gens particulièrement bien placés pour savoir à quel point il peut être difficile d’améliorer l’accès à la justice. Mais cela ne les a pas empêchés de se réjouir des progrès accomplis, et ils restent déterminés à amener de plus amples changements par leur travail assidu.
Les délégués représentant la vaste coalition des parties membres du Comité d’action – des sous-ministres, des juges, des représentants de groupes provinciaux et territoriaux d’accès à la justice, de régimes d’aide juridique, des professionnels qui offrent bénévolement des services juridiques, des fournisseurs de services d’éducation juridique du public, des avocats, des notaires, des professionnels du règlement extrajudiciaire des différends (RED), ainsi que des représentants de tribunaux administratifs et du grand public –, ont été informés du succès que le Comité d’action a obtenu avec son initiative de consultation publique et son projet de boîte à outils de l’innovation. Des milliers de personnes consultées ont confirmé la nécessité d’assurer un système efficace de justice civile et familiale, et des gens de tout le Canada agissant pour l’innovation en matière de justice ont quant à eux mis en place des communautés de pratique et d’autres outils pour faciliter leur important travail. Sarah McCoubrey et Meredith Brown, stratèges sur les questions d’accès à la justice au sein de l’organisation Calibrate, ont conçu et mis à exécution les deux projets, qui ont été financés par la Fondation du droit de l’Ontario.
Le groupe a aussi été mis au courant des progrès qu’a réalisés le Comité d’action par rapport à ses Objectifs de développement en matière de justice : 68 nouvelles initiatives pour aider les gens à résoudre des problèmes juridiques courants; 64 nouvelles initiatives conçues pour mieux répondre aux besoins juridiques, dont huit nouveaux services juridiques offerts bénévolement par des professionnels; 50 projets visant à améliorer le système de justice familiale; et la liste se poursuit.
Une des difficultés auxquelles les réformateurs doivent faire face tient à la pénurie de données empiriques sur la façon dont fonctionne notre système de justice civile et familiale, et sur ce que nous pouvons faire pour savoir si nos réformes donnent les effets escomptés. Tout plan pour la réalisation d’un changement systémique à long terme doit nécessairement passer par l’amélioration des paramètres de mesure de ces données. Les participants au sommet ont été informés d’un projet mené par Jerry McHale, qui rassemble une solide coalition œuvrant en ce sens, formée de chercheurs des facultés de droit de l’Université de Victoria, de l’Université de la Saskatchewan, de l’Université York et de l’Université de Montréal. L’objectif du projet consiste à déterminer les priorités de mesure pour les données relatives au système de justice, et de renforcer la capacité de collecte et d’analyse de ces données. Les participants au sommet y ont contribué en entamant l’élaboration d’indicateurs – c’est-à-dire des éléments que nous pouvons mesurer par rapport à chacun des Objectifs de développement en matière de justice.
Une journée entière du sommet a été consacrée à la question des services d’aide aux enfants autochtones. Cette journée était organisée par Scott Robertson de l’Association du Barreau autochtone et de Mark Benton de la Legal Services Society de Colombie-Britannique, et d’éminents conférenciers d’un peu partout au Canada nous y ont donné un aperçu criant et saisissant de l’état déplorable dans lequel se trouvent les services destinés aux enfants et familles autochtones, à de nombreux endroits au pays. Bien que ce ne soit habituellement pas traité comme un enjeu d’accès à la justice, les exposés entendus au sommet ont démontré que c’en était bel et bien un. Presque partout au Canada, le système de protection de l’enfance ne répond aux besoins ni des enfants, ni des familles, ni des collectivités concernées. Les conférenciers du sommet ont permis aux participants non seulement de mieux comprendre la problématique, mais aussi de prendre connaissance de solutions prometteuses. Parmi les aspects traités, il y avait notamment l’amélioration du financement, le renforcement du leadership communautaire, l’élaboration de possibilités mieux adaptées à la réalité culturelle, et l’élargissement du cadre d’intervention afin d’y inclure toute la famille.
Pour couronner le tout, Beverley McLachlin, récemment retraitée de ses fonctions de juge en chef du Canada, a confirmé qu’elle avait accepté d’assumer la présidence du Comité d’action à partir de cet automne. Son successeur à titre de juge en chef, Richard Wagner, a quant à lui confirmé qu’il suivrait ses traces en acceptant la présidence honoraire. Ce sera donc à suivre!
Nous tous, qui nous préoccupons d’accès à la justice, continuerons de veiller au grain tant et aussi longtemps que les choses ne se seront pas nettement améliorées. Entre-temps, cette rencontre de chefs de file en la matière a montré que de plus en plus de parties s’engagent à effectuer les changements nécessaires, et la gamme impressionnante de projets innovateurs qui y ont été présentés tend à démontrer que ces changements sont tout à fait possibles.
L’honorable Thomas Cromwell a été juge d’appel pendant 19 ans et siège au Comité d’action sur l’accès à la justice en matière civile et familiale établi à la demande de 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 dans le domaine du contentieux à l’échelle nationale, au sein du cabinet Borden Ladner Gervais.
Legal secondary consultation (LSC) is an innovative and promising legal aid delivery model in which a legal service professional provides one-on-one advice to a service provider in a social services agency or a community organization. This assists the provider to resolve problems for clients seeking help. The final report by CFCJ senior research fellow, Dr. Ab Currie on a legal secondary consultation pilot project with three community legal clinics in Southwest Ontario is now available on the CFCJ website. Read “Legal Secondary Consultation: How Legal Aid Can Support Communities and Expand Access to Justice” here.
This article originally appeared on The Lawyer’s Daily on April 18, 2018. It is the seventh article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.
It is easy to get discouraged by the slow pace of progress on improving access to justice. But a constant source of encouragement is the enthusiasm and commitment of the current generation of law students.
Everywhere I encounter today’s law student, I see concern about the injustice of our current poor level of access to justice, interest in what can be done to improve it, and commitment to be part of the change to bring about that improvement. The interest and enthusiasm of students for work in legal clinics and with Pro Bono Students Canada and other access-oriented activities are some of the tangible evidence of their concern, interest and commitment.
I recently had the privilege and pleasure of being part of another manifestation of law students’ engagement with access to justice. The Society of Law Students at Thompson Rivers University organized a two-day conference on access to justice. The program can be found here.
In addition to presentations by students and faculty, the students hosted a number of special guests, including the Honourable Robert Bauman, chief justice of British Columbia, the Honourable Len Marchand, a justice of the Supreme Court of British Columbia and the Honourable David Eby, minister of justice and attorney general of British Columbia. The organization was entirely student-directed and participation throughout the student body was significant.
I spoke with one of the co-chairs of the conference, Dave Barroqueiro, who is a second-year student. Dave’s take on access to justice and the profession’s role in improving it is bang on and shows how the next generation of lawyers understands the problem and wants to help to solve it. I asked him what lessons he drew from his work on the access to justice problem.
He started by speaking of the need for culture change: “The culture of law and of lawyers must change, and society isn’t willing to wait any longer. The legal industry itself, the profession’s self-insulation, and our paralyzing risk aversion, are undoubtedly major contributors to the access to justice crisis in Canada.”
He also recognized the role that lawyers and legal profession should and must play in improving access to justice: “ … the key to unlocking the solution to the access to justice crisis rests in the hands of legal professionals themselves — we simply need to be willing to adjust to the rapidly changing needs and demands of contemporary, digital-age clients.”
He stressed what he believes is the important part technology can have in bringing about the necessary changes: “Increasing the agility of lawyers and the efficiency of the delivery of legal services ought to be the principal focuses of the legal profession going forward.”
Finally, he recognized what many commentators have stressed: The necessity of responding better to the needs of the public seeking legal services. As he put it, “To think that we, even as a self-regulating profession, can overwhelm consumer-driven market forces for much longer is a delusion. The future practice of law will depend on an active, informed understanding of client needs.”
My impression is that Barroqueiro’s views are not unique. I believe they are shared by a lot of law students. Those in positions of power and influence should encourage and support this kind of thinking in the next generation of lawyers and at least make a start on the important work that they are keen to take up as they progress in their legal careers.
We are leaving them a big access to justice challenge. But I believe that they are up to it.
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 atBorden Ladner Gervais.
Since 2009 the World Justice Project (WJP) has gathered data measuring the rule of law in countries around the world. One of the eight components of the WJP Rule of Law Index is Access to Civil Justice.[1] Canada’s overall score on the access to civil justice dimension was 0.72 in the 2016 Rule of Law index.[2] This put Canada in 19th place globally and 12th among 24 countries in the same region. In terms of overall Rule of Law scores, Canada ranked 12th among 113 countries.
Globally, the Netherlands, Germany and Norway received the highest scores for access to civil justice at 0.88, 0.86 and 0.85 respectively. The United Kingdom ranked 16thwith a score of 0.75 and the United States ranked 28th with an access to civil justice score of 0.65. Figure 1 shows Canada’s overall score for access to civil justice from 2010 to 2017.[3]
The recently published 2017 WJP Rule of Law Index reveals a similar trend. For the 2017 Index, Canada’s overall score on the access to civil justice dimension was 0.72 which placed Canada 20th among 113 countries. Regionally, Canada once again ranked 12th among 24 countries. The top ranked countries for access to civil justice were the Netherlands with a score of 0.87, Denmark with a score of 0.86 and Germany with a score of 0.85. For the access to civil justice Rule of Law measure, the United Kingdom’s global rank for 2017 was 14 out of 113 countries with a score of 0.75 and the United States ranked 26th, with a score of 0.67.
Figure 1: Access to Civil Justice Scores for Canada, World Justice Project, 2010 to 2017
Access to civil justice in Canada has been in a steady state over the period measured by the WJP. The level of access to justice in Canada is not poor by global standards. However, according to the measures used in the WJP, scores on access to civil justice have been consistently lower than many other high income countries.
Among the six components of the access to civil justice index[4] the two that have been consistently low over the years have been accessibility and affordability and the absence of undue delays. Figure 2 shows Canada’s scores on these two components over the 2010 to 2017 time period.
Figure 2: Canada Scores for Accessibility and Absence of Unreasonable Delay, World Justice Project, 2010 to 2017
Compared with Canada’s overall access to justice score of 0.72 in the 2016 survey and 0.72 in 2017, the score for accessibility and affordability and for absence of undue delays were considerably lower, 0.56 and 0.53 respectively in 2016 and 0.55 and 0.51 respectively in 2017.
By way of comparison with Canada, the scores for accessibility and affordability and for undue delay over the past two years for the three countries ranked highest on access to civil justice are all higher than the Canadian indicators.
Table 1: Scores for Accessibility and Absence of Unreasonable Delay, World Justice Project, Five Countries, 2016 and 2017
Why is the level of access to civil justice in Canada consistently and markedly lower than these and other high income countries? Why is Canada apparently unable to break out of this pattern? Reducing something very complex and multifaceted such as access to justice to a set of numbers might be greeted with some discomfort among readers. Further, distilling the state of access to civil justice down to a single set of quantitative measures for a federal state with considerable variations of all sorts among the 13 Canadian jurisdictions may well increase the skepticism. However, there are always trade-offs. The comparable measurement and consistent data collection over a decade that has been achieved by the WJP has considerable value for comparative study among roughly similar high income countries.
Why do the Netherlands, Denmark, Germany, Norway and other countries consistently outperform Canada on scales of access to civil justice, in particular on measures of accessibility and affordability and fewer delays? The differences might be due in part to some of the inquisitorial elements in some civil justice systems, or by the more widespread use of legal expenses insurance, by greater accessibility of legal aid or, possibly, by differences in legal consciousness and legal capability among the public in some countries compared with Canada. Comparisons involving different systems of justice must always be approached with great care. Direct transfers of ideas and structures are rarely workable. However, we have an access to justice gap to fill. Knowing what works in other countries could provide useful knowledge about approaches worth considering and innovations that might be applicable with appropriate modifications in this country. As such, the WJP offers a valuable basis for comparative study and learnings on ways to improve access to justice.
[2] The scale is from 0.0 to 1.0, with scores near 0.0 indicating low levels of A2J.
[3] Because of changes in the indicators after 2009 the measures are not compatible with data in the later surveys and are omitted from the graphs.
[4] The six indicators for civil justice with the Canada scores for 2016 indicated in brackets are: accessibility and affordability (0.56), absence of discrimination (0.65), absence of corruption (0.88), no improper government influence (0.89), no unnecessary delay (0.53), effective enforcement (0.73) and impartial, accessible and effective ADR’s (0.82).
There is perhaps no area of law where the emotional and far-reaching effects of disputes weigh as heavily on those experiencing them as family law. There is now wide-scale recognition from within the justice community[1] of the need for reforms in family law that reflect progressive values, which offer a continuum of adversarial and non-adversarial dispute resolution methods, and which contemplate modern and innovative service delivery processes. However, there remain significant gaps in the research available on the costs, overall satisfaction with, and benefits and limitations of the dispute resolution methods commonly available to address family law problems. Understanding what works, for whom, in what ways, and at what costs will help to shape policies that will serve the needs and interests of those who experience family law problems and whose lives are significantly impacted by the outcomes of family disputes.
Aggregate cost data on the four dispute resolution methods evaluated;
Gain insight on experiences with, and perceptions of processes to resolve different family problems;
Apply a modified social return on investment (SROI) analysis that offers a common set of parameters around which to compare the financial impacts and social value of each method of dispute resolution relative to the seriousness of the family law problem; and
Identify information that could prove useful for shaping programs, informing policies or services, and driving thinking about opportunities for reducing costs and improving overall experiences with dispute resolution in the family law context.
The study involved an online survey of lawyers practicing in family law in order to gather information about their use of, and views on collaborative processes, litigation, mediation and arbitration.[3] A total of 166 lawyers, practicing in Alberta, British Columbia, Ontario and Nova Scotia completed the survey. The survey, which consisted primarily of closed-ended and rating scale questions, was organized by dispute resolution process, with similarly worded questions included in each section. Questions related to the cost of services were open-ended and respondents were also asked a series of demographic questions about age, gender, location and year of call to the Bar.
The survey resulted in a number of interesting findings and revealed high levels of consensus among lawyers as to their preferences for using certain methods of dispute resolution over others, based on various considerations including: the best interests of children, threats to safety, reducing potential for conflict. As for specific questions around cost, lawyers who participated in the survey offered a range of billing amounts for their professional services (including fees and other related services). For persons who experience family law problems, as well as for researchers, policy makers and other justice stakeholders, these cost estimates offer useful data points for better understanding and informing discussions around the costs, value, and benefits associated with using collaborative processes, arbitration, mediation and litigation to resolve family law problems.
In addition to a comparatively lower cost range for resolving disputes – from $1,000 to $100,000 — 94.0% of family lawyers agreed that the results that they achieve through collaborative processes are in the interests of the client and 98.9% agreed that the results are in the interests of the client’s children. Conversely, 36.1% agreed that collaborative processes are suited for high-conflict family law disputes. By contrast, 87.1% of lawyers disagreed that litigation was cost-effective, with the cost range for resolving disputes through litigation reported between $2,000 and $625,000. Another striking statistic in the use of litigation was the number of respondents — only 2.8% – who “strongly agreed” and a further 28.4% who “agreed” that the results achieved through litigation are in the client’s interest. Further, 30.2% agreed (strongly or otherwise) that the results are in the interest of the client’s children. However, with respect to processes best suited for high-conflict disputes, litigation was seen as a suitable process by 64.2% or respondents.
By way of comparison, the cost range indicated for resolving family problems through mediation was $630 to $250,000 and the cost range given for resolving family justice problems through arbitration was $2,500 to $100,000. It should be noted as well that the cost estimates presented here do not include the costs to engage other professional services (e.g. financial specialists, child specialists, etc.) as part of the dispute resolution process. Questions related to those costs were included in the survey and data on the hourly and total costs for those services are discussed in the final report. Also of note, 90.2% of respondents agreed that results achieved through mediation are in the client’s interest (and 85.4% agreed it is in the interest of the client’s children), while 34.2% agreed that the results achieved through arbitration are in the client’s interest (and 39.5% agreed that they are in the interest of the client’s children).
There is undeniably more work to be done to get a comprehensive view of the costs, benefits and appropriateness of various dispute resolution methods in addressing problems in family law. As debates ensue about changes to family law in Canada, and as we contemplate ways to improve access to justice, empirical data from studies like this will offer important insights into areas where support and resources can be directed to improve outcomes in family law.
[1] See, for example, the national Action Committee on Access to Justice in Civil and Family Matters, Roadmap to Change report (2013).
[2] The Cost of Justice project is a 7-year (2011-2018), Social Sciences and Humanities Research Council (SSHRC) funded CFCJ research project that examines the social and economic costs of Canada’s justice system. Information on the Cost of Justice project is available on the CFCJ website here: https://cfcj-fcjc.org/cost-of-justice.
[3] For this project, the CRILF also developed a client survey that was intended to serve as a source of data about experiences with, and relative costs of, the four dispute resolution methods from the perspective of those experiencing family law problems. For practical reasons (discussed further in the final report) of confidentiality and client access, this information was not available.
The Canadian Research Institute for Law and the Family (CRILF), in partnership with the Canadian Forum on Civil Justice (CFCJ) have published a new report on the cost implications of four dispute resolution methods used to resolve family law disputes in Canada: collaborative settlement processes, mediation, arbitration and litigation.
The study uses findings from a lawyers’ survey, and applies a modified Social Return on Investment (SROI) analysis approach to assess the costs, benefits, suitability, limitations and lawyers’ preferences for resolving different types of family law disputes using these processes.
This article originally appeared on The Lawyer’s Daily on March 1, 2018. It is the sixth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice and the second part of a two-part interview with Kim Hawkins, executive director of the Rise Women’s Legal Centre in Vancouver.
TC: Rise was, as you said, an access to justice initiative. How does it contribute to better access to justice?
KH: Rise seeks to enhance access to justice in multiple ways. The first is by directly providing legal advice and representation to women who have no other means of getting legal help. Secondly, Rise seeks to transform legal services from within by creating an opportunity for law students to learn how to deliver community-based legal services and continue to promote access to justice as they move forward in their careers. Finally, Rise works with a litigation director for West Coast LEAF to identify cases that have the potential to advance women’s legal rights at a systemic level by serving as test cases.
Rise also provides different levels of service to clients in an attempt to stretch our limited resources to meet a diverse variety of needs. Rise maintains a small library which women can access during office hours, whether or not they are a client at Rise. Women whose needs are suitable for summary advice clinics are offered the option of a one-hour appointment with one of Rise’s volunteer family lawyers. The majority of women receive service through Rise’s student program which provides a variety of unbundled services, up to and including representation at discrete provincial court appearances.
TC: Are you busy?
KH: The response to Rise has been overwhelming. Our clinic opened its doors in May 2016, and we have been running a wait list ever since. At the start of this term, we had over 140 women waiting for service, and we know that the women are just the tip of the iceberg. The response from the legal community, non-profit community and judiciary has also been overwhelming, in a really positive way — we could not have accomplished so much in just 18 months without this crucial support.
TC: What are the biggest benefits of Rise as you see it?
KH: I think the biggest benefit of Rise is its ability to work simultaneously at the micro and macro levels.
As a legal clinic our main focus is on the provision of direct services to clients. We work hard to keep our services client-centred and responsive to the unique needs of the women who seek us out. We take family violence very seriously and frequently have to seek protection orders for our clients. Because we are small, we are forced to be adaptable and find creative ways to solve problems.
At the same time, because we are able to focus on a particular area of law and clientele, we have an amazing opportunity to build up expertise that goes beyond individual client cases, to connect with other women-serving organizations and non-profits to collaborate around best practices and to share what we learn with the legal profession.
The other major benefit, of course, is sending our brilliant alumni out into the legal community where we are confident that they will help to transform the legal profession from within.
TC: What challenges are you facing?
KH: The single biggest challenge has always been balancing student workloads in such a way that we can provide meaningful services to clients while keeping expectations manageable for students, and while still being able to close files and let women on the waiting list into the clinic.
The challenges that our clients face are very diverse — their legal issues often involve intersecting areas of law, and many include proceedings in both provincial and Supreme Court. It is heartbreaking to turn clients away because their needs are too complex to be handled effectively in a student clinic, knowing that there is nowhere else to send them and they will likely have to represent themselves or give up.
Even for those clients who have files open at Rise, we have to limit the amount of work that we do so that we can continue to move files through the clinic. We really focus on trying to provide enough assistance to stabilize our clients’ situations and make sure that there is protection in place if it’s needed, but women often need more help than we can provide with our limited resources.
TC: If you could give one piece of advice to anyone interested in helping to address the gap between need and availability of legal services, what would you say?
KH: I think you have to reconcile yourself to the fact that you aren’t ever going to be able to fully address the gap between need and availability, and learn to focus on the small percentage of people that you can help.
At the same time, it’s really important to work in community and to continually assess your accessibility to clients. The barriers that prevent clients from receiving service can be shockingly small to legal professionals — not having enough money to pay for gas to come to an appointment, running out of phone minutes that the client needs to access the Internet and answer an e-mail — let alone larger barriers like language, literacy, discrimination and so many others. It’s important that access to justice initiatives attempt to build bridges with a variety of communities to make sure that they remain responsive to the needs of the most marginalized clients.
This is part two 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 atBorden Ladner Gervais.
This article originally appeared on The Lawyer’s Daily on February 23, 2018. It is the fifth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.
One of the biggest of the access to justice challenges is the gap in availability of legal services. So many people fall in the gap between eligibility for legal aid and the ability to retain private counsel. One innovative initiative to help fill parts of this gap is the Rise Women’s Legal Centre in Vancouver.
I recently had the good fortune to be invited to the centre and to have the opportunity to see first-hand what impressive and important work it is doing to help close the legal services gap for women, especially those dealing with domestic abuse.
I sat down with Rise’s indefatigable executive director, Kim Hawkins, and here is what we talked about.
TC: Can you tell me how Rise Women’s Legal Centre came into being and what it does?
KH: Rise Women’s Legal Centre is a non-profit legal clinic based in Vancouver that provides family law services to self-identifying women. Rise was founded in 2016 through a partnership between West Coast Legal Education and Action Fund (West Coast LEAF) and the Peter A. Allard School of Law at the University of British Columbia.
Rise was a direct response to the crisis in access to justice in British Columbia, where legal aid funding is one of the lowest per capita in Canada and vast numbers of people have no choice but to represent themselves in court.
Dramatic cuts to legal aid in 2002, which slashed the Legal Services Society’s budget by almost 40 per cent over three years, resulted in the elimination of all poverty law services and severely restricted family law funding in this province. Further cuts to services occurred in 2009 and 2010 when five LSS regional centres as well as the surviving family law clinic were closed. Since that time there have been some pilot projects to improve legal aid, but nothing has come close to replacing the services that were lost.
Although these cuts have impacted everyone who needs access to a lawyer in B.C., they have had a disproportionate impact on women, who are more likely than men to be seeking assistance with poverty and family law issues. The impact of these cuts was exacerbated by other factors such as the more severe impact of marital breakdown on women’s economic security, the gender pay gap and the unequal risk of family violence, in concert with cuts to other women’s services and programs. For example, the Ministry of Women’s Equality and the Human Rights Commission were eliminated (the HRC is now being reinstated), funding to women’s centres was cut, and income assistance was changed so that the “employability” status for single parents was lowered from the time their child turns 7 to when their child turns 3.
Fifteen years later, in their “Agenda for Justice,” published in February 2017, the CBA-BC Branch noted that since 2002 “the Legal Services Society has had no funding to provide family law legal services for the majority of family law matters, including child support, spousal support, division of assets and general custody” and called “for adequate funding to ensure that people who qualify for family law legal aid (71 per cent of whom are women) receive representation for services that promote family security and financial stability.”
Rise was conceived of as a one-stop shop where women could receive free, low-barrier legal assistance with a range of issues. However, since opening we have kept our focus squarely on family law, due to the overwhelming need for this service.
TC: You mentioned that the Peter A. Allard School of Law at UBC was a founding partner. Are law students involved in the operation of the centre?
KH: Services at Rise are provided primarily by upper-year law students from UBC participating in an experiential learning externship. The students, who are supervised by on-site lawyers at Rise, learn practical skills in a social justice environment, focusing on the unique circumstances of women and their navigation of the justice system.
This is the first of a two-part series.
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 atBorden Ladner Gervais.
Accès à la justice : Comment le Rise Women’s Legal Centre vient en aide aux membres plus marginalisés de la société par Thomas Cromwell
L’un des défis les plus importants en matière d’accès à la justice est l’écart de disponibilité des services juridiques. Beaucoup de gens ne sont pas admissibles à recevoir de l’aide juridique et ne sont pas non plus en mesure de retenir les services d’un avocat du secteur privé. L’une des initiatives novatrices mises en place pour atténuer cet écart est le Rise Women’s Legal Centre (Centre Rise) à Vancouver.
J’ai récemment eu la chance de visiter le Centre Rise pour voir de mes yeux le travail exceptionnel et impressionnant qui s’y effectue en vue d’aider à combler l’écart relatif aux services juridiques offerts aux femmes, et plus précisément aux femmes victimes de violence familiale.
J’ai pris un moment pour parler avec l’infatigable directrice exécutive du Centre Rise, Mme Kim Hawkins, et voici le résumé de ce dont nous avons discuté.
TC : Pouvez-vous me dire qu’est-ce qui a amené à créer le Centre Rise et ce qu’il fait?
KH : Le Rise Women’s Legal Centre est une clinique juridique sans but lucratif basé à Vancouver qui offre des services en droit de la famille aux femmes qui en ont besoin. Le Centre Rise a été fondé en 2016 grâce à un partenariat entre le West Coast Legal Education and Action Fund Association et la faculté de droit Peter A. Allard de l’Université de la Colombie-Britannique.
Le Centre Rise représente une réponse directe à la crise dans l’accès à la justice en Colombie‑Britannique, là où les gens reçoivent l’un des plus faibles taux de financement en matière d’aide juridique au Canada et où un grand nombre de gens n’ont aucun choix que de se représenter eux-mêmes en cour.
En 2002, il y a eu une réduction importante des fonds accordés à l’aide juridique, ce qui a radicalement amputé le budget de la Legal Services Society d’environ 40 % sur une période de trois ans, a donné lieu à l’élimination de tous les services en matière de droit des pauvres et a considérablement restreint le financement offert en matière du droit de la famille dans la province. En outre, d’autres réductions ont été apportées aux services en 2009 et en 2010 alors que cinq centres régionaux de la Legal Services Society ainsi que la dernière clinique du droit de la famille ont fermé leurs portes. Depuis ce temps, quelques projets pilotes ont été menés pour améliorer l’aide juridique, mais aucun d’eux n’est venu près de remplacer la perte des services.
Bien que ces réductions budgétaires aient été ressenties par tous ceux ayant besoin d’avoir accès à un avocat en Colombie-Britannique, l’incidence sur les femmes était disproportionnée, car ce sont elles qui ont plus tendance que les hommes à chercher de l’aide pour des questions de droit de la famille et des pauvres. L’incidence de ces réductions a été exacerbée par d’autres facteurs tels que les répercussions plus graves sur la sécurité économique des femmes à la suite de la rupture du mariage, l’écart de salaire entre les genres et le risque inégal de violence familiale, de concert avec d’autres compressions budgétaires sur le plan des services et programmes offerts aux femmes. Par exemple, le ministère de l’Égalité de la femme et la Commission des droits de la personne ont été éliminés (le deuxième est présentement rétabli), on a mis fin au financement accordé aux centres pour les femmes et des changements ont été apportés au programme d’aide au revenu pour que l’état d’employabilité des parents monoparentaux baisse du moment où leur enfant atteint l’âge de 3 ans plutôt que l’âge de 7 ans.
Quinze ans plus tard, la division de la Colombie-Britannique de l’Association du Barreau canadien a indiqué dans son rapport de février 2017, « Agenda for Justice », que depuis 2002, la Legal Services Society n’a reçu aucun financement pour la prestation de services juridiques en matière de droit de la famille pour répondre à la plupart des questions de droit familial, y compris les pensions alimentaires pour les enfants, les pensions alimentaires pour époux, le partage des biens et les accords de garde généraux. Dans son rapport, elle demande un financement adéquat afin de s’assurer que les gens qui sont admissibles à recevoir de l’aide juridique en matière de droit de la famille (71 % desquels sont des femmes) sont représentés et obtiennent des services qui améliorent la sécurité familiale et la stabilité financière.
Le Centre Rise a été conçu pour servir de guichet unique aux femmes ayant besoin d’aide juridique gratuitement et sans obstacle pour une variété de questions. Toutefois, depuis l’ouverture du centre, nous nous sommes concentrés uniquement sur la fourniture de conseils en droit de la famille en raison du besoin démesuré dans ce domaine.
TC : Vous avez mentionné que la faculté de droit Peter A. Allard de l’Université de la Colombie‑Britannique est un partenaire fondateur. Les étudiants en droit participent-ils aux opérations du Centre Rise?
KH : Les services du Centre Rise sont principalement fournis par des étudiants en droit de dernière année du premier cycle de l’Université de la Colombie-Britannique dans le cadre d’un programme d’externat d’apprentissage par l’expérience. Les étudiants, qui sont supervisés par des avocats sur place au Centre Rise, acquièrent des compétences pratiques dans un milieu juridique social, lesquelles sont axées sur les circonstances uniques des femmes et leur cheminement au sein du système de justice.
Il s’agit du premier article d’une série de deux.
L’honorable Thomas Cromwell a été juge d’appel pendant 19 ans et siège au Comité d’action sur l’accès à la justice en matière civile et familiale des juges en chef. Il a pris sa retraite de la Cour suprême du Canada en septembre 2016 et agi désormais comme avocat principal dans le domaine du contentieux au sein du cabinet Borden Ladner Gervais.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
The price paid for legal problems is not just made up of dollars and cents, but with impacts on health, loss of employment and an increased reliance on social assistance, reports the Canadian Forum on Civil Justice (CFCJ).
Three reports from the CFCJ, released on Jan. 5, break down the number of Canadians experiencing a variety of legal problems and the impact they have on different aspects of their lives. The reports show that millions of Canadians experience physical and mental health problems, loss of employment and a loss of housing as a direct consequence of legal problems.
“These reports focus on three specific areas and I think what they all do is highlight the importance of thinking about justice from the user’s perspective as opposed to only the providers’ perspective,” said Trevor Farrow, a professor at Osgoode Hall Law School and principal investigator on the CFCJ reports.
“I think we’re starting to understand that how the user perceives and experiences the system is very different,” he added, explaining that in order to move into a more modern and accessible legal system the gap between user experience and legal offerings needs to close.
The report on health impacts is based on feedback from over 3,000 Canadians describing legal problems they’ve faced over a three-year period. The data shows that 30 per cent of people experiencing one legal problem during that time frame had issues with their physical health. Further to that number, over 65 per cent of the respondents visited a physician more frequently than normal due to their legal problem.
In the report highlighting loss of employment and housing, the CFCJ points to its Cost of Justice survey, which noted that approximately 100,839 people lose their housing every year as a result of experiencing legal problems. People in this position have to turn to friends, relatives or emergency housing such as shelters to keep a roof over their heads. The number of weeks respondents were without their own home varied, but around 22 per cent were without a home for less than four weeks, while over 11 per cent reported that they were without a home for 52 weeks or longer.
Farrow said the reports are the first in Canada to document the monetary value of social costs legal problems cause on a national scale. He explained this data shows what will happen to people across the country if legal services continue to be inaccessible.
“On one level these reports are designed to provide, as far as possible, neutral views on the impacts of legal problems on various parts of people’s daily lives. What we do with that information is now the million-dollar question,” said Farrow, adding that he hopes the reports will influence policy-makers to think differently about budgets and law reform.
Farrow believes more research needs to be done to capture the cost of justice across Canada and that this is a good opportunity to break down silos and collaborate with other service providers.
“We see that justice problems are part of a continuum of social problems: housing issues, education issues, etc. So I think it makes the case for why collaboration on legal services and social services is important,” he said, adding that this data is also a strong argument for investing in the justice system.
“I think justice has certainly been at the lower end of the budget scale compared to other items like policing, health and education. Of course those other sectors are important and they need to be resourced. What we’re starting to see with these reports is we’ve punched way below our weight in terms of justice budgets. We have not really understood the dramatic impact that inaccessible justice has on people’s well-being,” he explained.
Highlighting that legal problems have a social impact, and therefore a direct cost to the state, is just one step in the right direction, Farrow noted. He said it’s unfair for the burden of problem solving to be left to individual lawyers and now is the time for regulators to take a larger role.
“We’re not going to solve all the problems at the retail level in terms of at every lawyer’s office. Having said that, we know that legal services get ultimately delivered to society generally through lawyers in this country because we still have a self-regulated profession. Because of that I think it would be improper and unfortunate if we all, as individuals, don’t start to take seriously what we now know as the impact of what the kinds of services we provide and the kinds of experiences people have,” he said, adding that this data will make a difference in the way people view unbundling of legal services, pro bono work and creative collaboration with other professionals.
“At the wholesale level, in terms of the law societies, regulatory regimes and government, I think the question now is: what are we going to do now to support lawyers in order to make services, our courts and tribunals accessible?” he said.
Farrow believes that if regulators and lawyers don’t find a way to increase access to justice the public will find ways to go around the system.
“If the body that’s been given the responsibility to deliver justice in the province and in the country is not up to the task then, quite frankly, the market and the people are going to simply look elsewhere. So I think it’s high time that the profession and individual lawyers become part of the solution as opposed to maintaining part of the problematic landscape,” he said.
Farrow notes that consumers are going to start turning more to companies such as Axess Law, a law-made-easy company, or online dispute resolution if the legal profession doesn’t innovate soon.
“I think, quite frankly, what we need to do is start having these topics become part of the everyday conversations of the public. It will start to become a matter of public interest and, I hope, we’ll get the strong attention of our elected officials. That’s when real social change gets driven. I think we’re in a good place, but I think this has implications beyond lawyers and clients. It really connects to all of us,” he said.
The three reports make up part of the CFCJ’s Cost of Justice project, which has been examining the social and economic costs of the Canadian justice system since 2011.
Researchers at the Canadian Forum on Civil Justice (CFCJ) have published three new Cost of Justice reports that explore some of the frequently overlooked consequences of experiencing serious civil and family justice problems in Canada. Beyond the out-of-pocket monetary costs of everyday legal problems, millions of Canadians experience physical and mental health problems, loss of employment and a loss of housing as a direct consequence of the legal problem(s) that they face. In addition, based on findings from the CFCJ’s national Cost of Justice in Canada survey, Canadians also reported that they access government-mandated social assistance as a result of one or more serious civil or family justice problems that they experienced. To read the latest CFCJ Cost of Justice reports, click on the hyperlinked titles below:
This article originally appeared on The Lawyer’s Daily on January 4, 2018. It is the fourth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.
Innovation can be a driver of improved access to justice. But our profession is not noted for being at the forefront of innovation. And so it is encouraging to see signs that innovation is front and centre in the training of the next generation of lawyers. That is what I saw on a visit to Thompson Rivers University Faculty of Law in Kamloops, B.C., and in particular in a course created and taught by professor Katie Sykes.
She is an associate professor who developed a course, Designing Legal Expert Systems, in which law students design legal apps using software created by Neota Logic, a software company started by a group of tech-savvy lawyers. Students in the apps course design and build apps for non-profit legal organizations to use in-house or make available to clients, aiming to provide simple, user-friendly paths to legal solutions and better access to justice.
Professor Sykes agreed to answer a few questions for me and here is what I learned.
TC: Describe a little about your background and training and what led you to teach an access to justice seminar at TRU.
KS: The first course I taught with a focus on access to justice issues was Lawyering in the Twenty-First Century. The central idea of the course was the mismatch between an apparent oversupply of lawyers and, at the same time, the drastic lack of legal services for so many people. How can it be that there are (in some sense) too many lawyers and not enough lawyers both at once, what’s gone wrong with the business model and structure of the legal profession for that to happen, and what creative solutions can the new generation of lawyers come up with?
Lawyering in the Twenty-First Century led to teaching a course on designing legal apps. Many of the L21C students thought about using technology as a tool to bridge the A2J gap. One team actually designed a scheduling app for interlocutory matters — motions and other non-trial court business that can use up a lot of time in a pretty inefficient way — that was brilliant and simple. They had some help from a contact of one of the people on the team, who could code, to build a prototype of the app. This whole experience left me, and I think the students, thinking it would be great if we had more ability to build systems like that ourselves.
That’s why I was very excited to find out that there is this opportunity to use Neota Logic’s platform to build expert systems (basically, applications that automate legal expertise), and that they have created an excellent educational framework that focuses on apps for pro bono organizations. The software enables us to build solutions without any coding knowledge.
TC: Tell me about the assignment you gave your students to design and build and access to justice apps.
KS: In the initial offering of the course, the students, collaborating in groups, worked on four apps ranging from a court form filler for RISE Women’s Legal Centre, which consolidates the process of completing about a dozen different court forms for family law matters, to an app to assist self-represented litigants looking to work with professionals who are open to providing unbundled or limited scope services, for the National Self-Represented Litigants Project.
This fall, we added two more apps: a document “genie” for TRU’s own Community Legal Clinic, which will help clinic staff and volunteers to complete commonly requested documents; and an app to assist mobile telecom customers who are looking at filing complaints under the Wireless Code of Conduct, for the Public Interest Advocacy Centre (Canada).
TC: Were there any projects resulting from this that could actually help improve access to justice in the real world?
KS: The goal is that all the projects will help A2J in the real world — either by making repetitive jobs that pro bono lawyers and staff do quicker, easier and more accurate, or by providing information and tools directly to members of the public. We haven’t got to the point yet with any of our apps that they’re ready to go live, but we are hoping to do so in the near future.
TC: You obviously want to foster innovation among law students and get them engaged with the access to justice problem. How did the students react?
KS: They are amazing. They come into the course with absolutely zero knowledge of the Neota platform. Within about 4-5 weeks they are building a simple app as a training exercise, and within just three months they have to design, build and present real apps addressing a real-world problem. They definitely use their skills of thinking like a lawyer, analyzing and solving problems and communicating well. But they use those skills in a completely unfamiliar way, and it is a steep learning curve.
On top of that, they have to work effectively in a team and they have to do a great job with the organizations they’re building the apps for — in effect, their clients.
TC: Are there bigger lessons here about how the profession should be approaching its response to the A2J problem?
KS: Smart, innovative people will keep on coming up with ways to do get legal work done faster, better and cheaper, not just in the pro bono area but at all levels of the legal marketplace, and overall that seems likely to be good for enhancing access to justice. I’d love to see that kind of innovation encouraged and enabled by the profession, rather than viewed with suspicion. I think that change of heart is starting to happen in some small pockets, but only slowly and in a limited way.
This article originally appeared on The Lawyer’s Daily on October 16, 2017 as part of Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice. It is part one of a two-part interview with The Honourable Justice George Czutrin.
Family law is a flash point for access to justice. Some jurisdictions report that as many as 70 per cent of family law litigants appear in court without legal representation. And with or without representation, the stress of legal proceedings adds to the burden of an already emotionally charged situation. The impact on children of conflict and delay in its resolution is hard to overestimate.
The Honourable Justice George Czutrin is a family law expert, a tireless worker for improvement in family law and the senior family judge of the Superior Court of Justice in Ontario. He has been a family law judge since 1993 and his dedication to the pursuit of improved family law justice is unsurpassed.
Justice Czutrin agreed to be interviewed for this column. This is part one of a two-part interview. I think that you will be impressed and encouraged by what he has to say.
TC — What is your role as senior family law judge?
GC — As senior family judge, along with the chief justice, the associate chief justice and eight regional senior justices, I am a member of the court’s executive and we all sit as members of the Superior Court of Justice’s RSJ Council. The Courts of Justice Act sets out the duties of the senior family judge. In summary, the senior family judge provides advice to the chief justice on specific matters concerning the family court (commonly known as the Unified Family Court), including judicial education, practice and procedure, family court expansion and expenditure of budgeted funds. The senior family judge also performs other duties relating to the family court and all family law cases at the Superior Court, as assigned by the chief justice.
TC — Family law is a flash point in the concern about access to justice. What is your court doing to improve access to family justice?
GC — The reality is that family law is the primary reason most Ontarians will likely need legal help or come into contact with the justice system. As acknowledged by the National Action Committee Report (NAC) on family justice, there have been years of reports and suggested solutions but gaps in implementation, particularly where expenditure of public funds is required. Access to family justice includes access to a properly resourced court, knowledge of legal rights and obligations and access to proper legal advice. Family lawyers and courts cannot and should not be blamed for all the ills of the family process. Continuous discussions, delayed implementation and limited pilot projects have left the courts with limited ability to effect large scale improvements on their own.
I believe that much has already been done and much is still in progress. Relating to the work of the court, we have revised our best practices and practice directions for the scheduling, assignment and conduct of family cases in order to maximize our effectiveness, given the resources that are available. We aim to have family cases proceed in a timely fashion and to ensure that sufficient time is provided for each court event, to facilitate meaningful attendances.
Along with the Ministry of the Attorney General and the Ontario Court of Justice, we have sought the necessary approvals from the federal government to support immediate expansion of the Unified Family Court in Ontario to an additional eight Superior Court of Justice locations, which would bring Unified Family Courts to 50 per cent of Ontario’s population. At the same time, we have delivered a plan to the federal government to support expansion of the Unified Family Court to all Superior Court of Justice locations by 2025. These requests are also consistent with NAC recommendations and we are hopeful that they will receive a positive response. We also run biannual educational conferences for Superior Court judges on pressing family law topics, including how best to work with high conflict families and how to handle complex financial issues.
Last year we also introduced a new annual child protection seminar in memory of our late colleague, Justice Heidi Polowin, who was one of our leaders in that very important area of the court’s work. These educational conferences are in addition to the programs that judges may attend from the National Judicial Institute (NJI) and other providers (e.g. the Association of Family and Conciliation Courts).
The Superior Court of Justice has worked with a number of different family justice partners to introduce real, concrete improvements. This includes a new procedural guide to each step in a family law case and Steps to Justice, which revamped and greatly expanded the substantive and procedural information that is available online for family litigants. Steps to Justice is now embedded into the Superior Court of Justice’s website so litigants can access reliable family law information easily.
The Superior Court also continues to help run a family law student negotiation competition, the Walsh Family Law Negotiation Competition, which is held each spring along with a family law moot, under the umbrella of the Association of Family and Conciliation Courts Ontario chapter. These events have been running for three and five years respectively. This year we are thrilled that students will be participating from every law school in Ontario, including our newest law school in Thunder Bay.
We are constantly working with the Ministry of the Attorney General to advocate for and introduce improvements to the family justice system. This includes the Superior Court of Justice’s Dispute Resolution Officer (DRO) program, which is run in partnership with the family law bar in nine locations in Ontario.
Another example of our work with the family law bar, which we will hopefully secure funding for shortly, is a project that will develop of a roster of family lawyers across Ontario who will provide family law services on an unbundled basis in locations. This resource is intended to address the need for greater access to affordable family law services that was a real focus of the family justice working group’s work in the “Meaningful Change for Family Justice” report.
We also continue to press the Ministry for improved technology to streamline the court process for litigants, the bar, court staff and the judiciary. Smart forms and electronic filings, for example, would help parties figure out what needs to be done and prepare their paperwork without having to attend court. These tools could also make sure that the forms have been properly completed and organized before filing and then direct parties to the next steps towards resolution or adjudication readiness. Unfortunately, it is taking much more time than I would have wanted to make progress on these improvements for a number of reasons.
We are also taking steps to try to address pressing issues relating to complex custody and access disputes. For example, last year we partnered with the Ontario Court of Justice and others (including professor Nicholas Bala and Dr. Rachel Birnbaum, as well as Katina Kavassalis of the Office of the Children’s Lawyer) to develop and implement a very successful Views of the Child pilot project, and we are now advocating for the Ministry to fund the provision of those services to Ontario families on an ongoing basis.
These examples should give you a glimpse into how much effort we have and will continue to expend to go beyond wise words and deliver real, concrete improvements for Ontario families. However, as can be seen from my comments above, it is important to acknowledge that we as a court and even more so as individual judges are limited by what we control. In other words, we are dependent on both levels of government to meet our resource needs (relating to judicial, staff, technology and facility resources).
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 atBorden Ladner Gervais.
We are thrilled to offer our most heartfelt congratulations to Dr. Les Jacobs on being elected to the Royal Society of Canada. Dr. Jacobs has long been a member of the CFCJ family, serving in various capacities over the years including as Academic Director and Executive Director. Dr. Jacobs is currently a Senior Research Fellow with our organization and plays a lead role in our national Cost of Justice in Canada research study. He is a Professor at York University where he teaches political science and law & society in the Department of Social Science as well as in the Graduate Program of Law at Osgoode Hall Law School and the Graduate Program in Socio-Legal Studies. Congratulations once more on being elected to the Royal Society of Canada Division of Social Sciences, Dr. Jacobs.
To view the official Royal Society of Canada announcement, visit their website here.
This article originally appeared on The Lawyer’s Daily on August 31, 2017. It is the third article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.
John Sims was recently named a Member of the Order of Canada for his commitment to access to justice and for his principled and respected leadership as a senior public servant. Since “retiring” as the deputy minister of Justice and deputy attorney general of Canada, John has devoted his enormous energy and his many skills to efforts to improving access to justice. He agreed to respond to some questions from me to help mark this important recognition. I hope that many will use him as a role model and that we may profit from his wise advice.
TC —In your long and distinguished career, you have had the opportunity to view the access to justice issue from many perspectives. Has the nature of the problem evolved over time and if so, how?
JS — Yes, our understanding of access to justice issues has changed dramatically over the last several years. Not that long ago, most of us didn’t talk much about access to justice. In a remarkably short period of time, however, we’ve come from having only a vague awareness of access issues to a much more sophisticated understanding of the nature and scope of the problems. We see the barriers (the complexities, costs and siloes of the justice system) but we also see more clearly the opportunities to overcome them.
We know that access is about much more than just lawyers, courts, legal aid or pro bono. All of the major justice system stakeholders have initiatives underway to tackle these barriers. The big exception is the public itself. We haven’t found enough ways yet to include the public in these efforts, although a campaign is underway now to raise public awareness and engagement. We all recognize that the needs and experiences of the end users of the justice system must be central to any efforts to improve access to justice. So, we’re making headway, but it’s slow. We need still more collaboration, outreach, public engagement, innovation, and, of course, money.
TC — You have served on both the CBA’s Equal Justice project and its implementation committee and on the Action Committee on Access to Justice in Civil and Family Matters. Both reports were innovative and were well received. But has anything come of them?
JS — A lot has happened. The two reports kick-started a national conversation about access to justice. In speeches, conferences, agendas, academic studies — access to justice has been a hot topic.
There’s been action, too. For example, the Canadian Council of Law Deans specifically cited the reports in committing $60,000 to fund new A2J initiatives in their faculties. Saskatchewan University also cited them, when it set up CREATE, a centre of excellence for research on access. The CBA and the Association of Legal Aid Plans have developed legal aid benchmarks as guidelines for a national system of public legal assistance. And the CBA has published a series of “legal health checks” to help people to recognize and avoid legal problems early. Law societies have also responded, explicitly affirming that the profession has a duty to promote access to justice, and actively pursuing A2J initiatives.
The Canadian Council of Chief Judges and the Canadian Judicial Council each passed resolutions supporting the goal of 100 per cent access to justice and committing to lead, and collaborate with others, to achieve that goal. Every province and territory has an access to justice committee with broad, inclusive membership, and they are actively pursuing concrete A2J activities. A new Access to Justice Research Network (AJRN) makes it easier for a wide range of stakeholders to share research, resources and information on access issues. Innovation hubs have been created at Ryerson University and, in Saskatchewan, both at the College of Law and the Ministry of Justice. Last year, the Action Committee published the first annual status report on the state of A2J in the country, based on the so-called Justice Development Goals.
TC—If you could bring about one concrete change in the justice system with a view to improving access to justice, what would it be?
JS — I am tempted to point to several things. Almost all of the work on A2J today is being done off the corner of a desk by volunteers with another day job. The injection of even modest amounts of money would allow much faster progress. Encouraging more innovation is also essential. But, if I have to limit myself to one concrete change, I would urge every provincial and territorial access to justice committee to spell out the concrete results they want to achieve each year, and then to set measurable objectives for attaining those results. This is the best way I know to translate broad nebulous concepts like access to justice into real progress on the ground. It’s very powerful and it works.
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 atBorden Ladner Gervais.
As part of the CFCJ’s national Everyday Legal Problems and the Cost of Justice in Canada study, over 3,000 people in Canada were surveyed about their attitudes towards and experiences with the justice system in Canada. Specifically, they were asked about the kinds of civil and family justice problems they experience, their methods of dealing with them, and the associated costs they incur to resolve them. The CFCJ is thrilled to announce that the resulting survey data has now been broken down based on the following respondent characteristics: “Age,” “Gender,” “Canadian Region,” “Education” and “Born in Canada“.
Through last year’s R v Jordan ruling, the Supreme Court of Canada illuminated what it dubbed a “culture of complacency” within the Canadian courts. This issue revolves around ongoing delays and has been the subject of many discussions on efficiency in the courts and the importance of timely judicial appointments. While most commentary on this issue centers around criminal law, this post will examine why wait times, as relate specifically to the immigration law system and refugee and asylum claims brought before the Immigration and Refugee Board of Canada, are also a pressing issue.
Refugee and asylum claims have been a seminal topic during the summer of 2017. There are several reasons for this prominence, including dwindling funding to help claimants navigate the legal system and the immigration process and, insufficient resources within the legal system to review older, so-called “legacy” cases in a timely manner. Both have contributed to worsening delays. While the Jordan ruling brought to the forefront the problem with delays for those accused in criminal courts, it provided no remedy for the thousands of pre-2012 claimants in the refugee and asylum system who filed before a new law requiring hearings within 60 days. Additionally, these claimants have faced growing inefficiencies in other administrative processes (discussed further below) that are required as a part of their scheduled court time. The cumulative effect of long wait times as well as additional administrative delays can also be problematic where there are language and cultural barriers.
The core of this post will focus on two of the major factors that have caused wait times to drastically rise: an increase in refugee and asylum claimants and a lack of government funding to ensure adequate resources and efficiency in hearings for claimants who go through the formal legal system. I discuss these issues from the perspective of government officials who lack adequate resources and support as well as from the perspective of the individuals seeking access to legal aid.
Canadian refugee and asylum immigration is currently suffering from an immense backlog, with asylum claims up to five years old still waiting to be heard. If these claimants are heard and successful in their applications, they will be granted residency status in Canada. Permanent residency comes with several benefits, including access to healthcare and lower tuition costs. Due to the delay, some claimants spend years living in a state of uncertainty, shying away from taking significant actions or making commitments, like enrolling in full-time education programs, in the hopes that their circumstances will soon change. A change in immigration status offers a path to additional opportunities for many.
In order to understand the issues within the governmental structure, we need to consider both the increase in the number of claims as well as how claims flow into the court system.
The recent increase in refugee and asylum claimants has placed a significant strain on the court system. Of the cohort of asylum seekers who filed claims in 2012, 5,500 people have not had the opportunity to address their claims in court by 2017. Additionally, crises like the Syrian Civil War continue to drive many from their homes and have forced larger numbers to seek refugee status in Canada. When the number of humanitarian crises around the world increases, the number of refugees and asylum seekers in Canada also often increases. Unfortunately, funding for additional resources has not increased at the level needed to match the growing demands on the immigration law system.
For many refugee and asylum seekers to be heard in Canadian courts, the Canadian Border Services Agency (CBSA) must complete and provide a security screening of the individual. Due to funding and personnel shortfalls, the CBSA has routinely been unable to complete many security clearances. The percentage of scheduled cases that are unable to be heard due to incomplete security clearances has increased from 6% two years ago to 55% this year. What’s more, many of the claimants who will not obtain CBSA security clearances by their scheduled court date only find out about this failure one week before the scheduled date. This short notice period has forced the scheduled court dates for many to go unattended, leading to further delays in the system.
From the second perspective explored in this post, that of an individual seeking access to legal aid, it is important to grasp the necessity of legal aid for many refugees and asylum seekers.
In recent years, asylum and refugee immigration has increased and, as a result, so has the number of immigration claimants that require legal aid assistance. The total amount of asylum claimants increased from 16,115 in 2015 to 23,920 in 2016. This number has continued to grow and, as of August, 2017, there have already been 21,695 claimants. However, the amount of money that both provincial and federal governments allocate to legal aid has not increased in a corresponding manner. This shortfall has caused major legal aid providers, Legal Aid Ontario and the Legal Services Society of British Columbia, to predict a forced suspension of services for refugee claimants due to extensive funding gaps.
Legal Aid Ontario predicts the suspension date of their agency’s services for refugees to be between November, 2017 and March, 2018. For just this agency, the cost of providing refugee and asylum services has increased by more than six-million dollars each year. As a result of mounting increases and stagnant funding, Legal Aid Ontario has racked up significant debt.
The other agency that has predicted a suspension of service is British Columbia’s Legal Services Society (LSS). This Legal Aid provider was originally predicted to suspend operations by August 1, 2017. Just before the projected date, the agency received a $386,000 government funding injection, enabling them to extend their operations until at least mid-November. From 2014 to 2016, the Legal Services Society almost doubled the number of asylum and refugee immigration claims they take on due to the increase.
Since many refugee and asylum claimants have to appear in court, they will continue to access government court services even if Legal Aid is not available to them. With this understanding, it becomes clear that the Legal Aid systems that are set up for refugee and asylum seekers function to help the court in addition to helping these individuals.
Legal Aid is a necessary tool in the alleviation of the current immigration backlog because it helps ensure claimants are heard in an effective manner. Legal Aid helps arrange services such as interpreters, which many refugee and asylum seekers may need. In addition to ensuring efficiency in claims, Legal Aid works to ensure that the many vulnerable individuals do not continue to get passed over in the system due to preventable deficiencies.
Refugee and asylum claimants, unlike most other non-criminal law claimants, may face the most serious repercussions if they are not able to make Canada their home. Canada’s access to justice mandate requires fairness in our legal system. Acknowledging what is on the line for many of these individuals, as well as their precarious situations, ought to illustrate the gravity of ensuring they are heard effectively.
These individuals likely have everything on the line, but continue to be put on hold. Canada has a duty to hear these individuals in a timely manner, which requires more resources in the immigration law system as well as an adequately funded Legal Aid system. If the court system slows down and forces these individuals into a docile state, or the Legal Aid system is inadequately funded, many of these individuals will be put at risk.
This article originally appeared on The Lawyer’s Daily on August 16, 2017. It is the third article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.
Will we recognize injustice when we see it? And what is injustice anyway? I suspect that these questions are never far from the thoughts of many of us working in the justice system. We hope that we will not be the police officer who pushes too hard to get a suspect’s statement or the prosecutor who wants to “win” too much, or the defence lawyer who misses a path to acquittal or the judge who fails to intervene when justice requires it.
We all recognize the clear cases of injustice — at least after the fact — but what about the ones that are not so clear, such as where the end result seems to be satisfactory, but the way it was arrived at causes us concern.
In his new book: Broken Scales: Reflections on Injustice (American Bar Association, 2017) Joel Cohen, with the assistance of Dale Degenshein, leads us on a course of reflection about these questions in a collection of interviews that present us with the consequences of clear injustices or challenge us to think more deeply about what injustice is.
In 10 chapters, we meet the overzealous prosecutor; the pro bono lawyer who fought the state’s crusade to establish a precedent at the cost of keeping an innocent man in jail; the suspected terrorist who falsely confessed to save his family; the wrongfully convicted person eventually exonerated; the victim of the “red scare” who has never been exonerated; the wrongfully accused police officer; the lone juror refusing to vote for conviction; the CIA operative convicted of violating the Espionage Act; the judge who was wrongly ordered not to sit on certain cases because she had accepted an invitation to a round table of Iranian-American community leaders at the White House; and, finally, a judge not retained in an election because of intense lobbying by anti- gay marriage activists. We are confronted with situations in which fair process and good intentions nonetheless resulted in wrongful convictions. And cases in which the desire to avoid racism and the appearance of bias perpetrated its own type of injustice. And cases in which we are left wondering whether there was any injustice at all. We hear their stories and their own reflections on injustice in their own voices, gently but adeptly guided by Cohen’s skilful interviewing.
For me, the most successful — and the most moving — part of the book is the interview with Kenneth Ireland, a man wrongly convicted of raping and brutally murdering a mother of four children when he was 17 years old. He was exonerated after spending 21 years in jail. His description of the realities of prison life is heart-rending, especially for those of us whose duty has sometimes required us to put people in jail. Reading his description of his anger, of how he survived in prison and how he has tried to rebuild his life reminds all of us in the justice system of the power we wield and the danger that we will make mistakes.
The authors do not provide answers to the big questions about whether we will recognize injustice and what injustice is. Rather, they hope that the interviews and the questions they raise will “add spark to a continuing and important conversation about injustice in America.”
The same ongoing discussion is needed in Canada, too. We have had more than our share of wrongful convictions. We hope that we have learned from them, but the risk is ever present and we need to be reminded that it is. And we have had our own debates about what constitutes injustice. Is it just or unjust when a suspect is acquitted because illegally obtained evidence is excluded from the record? Is it just or unjust when a suspect does not face trial on the merits because the case took too long? Is the result just or unjust when one equality seeking group clashes with another?
This short and highly readable book does not answer these questions either. But it will make the reader keep them at top of mind. And that in itself is the most important thing.
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 atBorden Ladner Gervais.
The Action Committee on Access to Justice in Civil and Family Matters launched the #justiceforall campaign designed to raise public understanding of accessible justice challenges as a component of a healthy democracy.
A next step in transforming the A2J landscape is to engage the public by raising awareness of the importance of justice issues in Canada. Building a public understanding of the importance of legal health and the predictability of legal issues throughout one’s life will benefit individuals and will transform the access to justice conversation into an issue relevant to citizens, decision makers, and voters. As long as access to justice challenges are only understood within the justice system, the possible solutions will be limited to the scope of influence, resources and imagination of the justice system.
The Action Committee is asking the A2J leaders in Canada, to help raise the profile of A2J efforts. If you are a leader in A2J, a bencher, a legal academic, a judge or a lawyer with a personal following, we would also welcome your participation in collectively raising this issue. To participate in the social media campaign or add a button on your website, there are links, instructions and graphics available at: www.calibratesolutions.ca/actioncommitteecampaign
Starting a public conversation about access to justice will shift the perception of the issue to a holistic understanding of the law as a part of daily life that can be understood and managed throughout one’s life, often with the help of legal professionals.
L’étape suivante dans la transformation du paysage de l’accès à la justice est de mobiliser le public en sensibilisant les gens à l’importance des questions de justice au Canada. Sensibiliser le public à l’importance de la santé juridique et à la prévisibilité des problèmes juridiques au cours de leur vie profitera aux individus et permettra de transformer les discussions sur l’accès à la justice en une question concrète et pertinente pour les citoyens, les décideurs et les électeurs. Tant et aussi longtemps que les défis en matière d’accès à la justice sont seulement compris par le système de justice, les solutions possibles seront limitées au champ d’action, aux ressources et à l’imagination du système de justice.
Le Comité d’Action vous demande, comme un des A2J leaders au Canada, nous aider à faire connaître nos A2J efforts parmi le public. Si vous êtes un leader, un conseiller, un juge ou un avocat avec un personnel suivant, nous accueillerions aussi votre participation soulevant collectivement à cette question. À participer à la campagne de medias sociale ou mettre un bouton sur votre site nous avons des liens et le graphisme sont tout disponibles à: www.calibratesolutions.ca/actioncommitteecampaign
Lancer un dialogue public sur l’accès à la justice changera la perception du problème et amènera une compréhension plus globale de la loi comme étant un élément de la vie quotidienne qui peut être compris et géré tout au long de la vie d’une personne, souvent avec l’aide de professionnels de la justice.
This article originally appeared on The Lawyer’s Daily on July 19, 2017. It is the third article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.
Life isn’t organized like the Canadian Abridgement. The real problems of real people don’t sort themselves into neat categories and they are not contained in watertight compartments. A person’s legal problem is often only one dimension of a much bigger, more complex and multi-faceted problem. And we know that one of the biggest impediments to access to justice results from our justice system failing to respond to these multi-faceted problems in ways that are meaningful and practical.
Our justice system is complex, with lines of authority and responsibility that are often diffuse and unclear. Its components exist in silos — judges, lawyers, court officials — so that co-ordinated work toward a common goal is difficult to achieve. And too often, the justice system is unduly insular so that it is often unable or unwilling to collaborate with other government and community resources, let alone co-ordinate its priorities and approaches with them. In short, making our legal system respond to the real problems of real people is often too big a challenge for it to meet.
That is why the Veterans Justice Outreach featured in Donalee Moulton’s May 15 article is so encouraging. According to the press release announcing the program, it will better identify, track and explore alternatives to incarceration for veterans encountering the criminal justice system. While it is presently focused on criminal justice diversion programs such as Mental Health Courts, the program’s goal is to work toward a standardized model that will include other sectors of justice and correctional systems across the country.
How rarely do we see in the justice system the sort of federal provincial and cross-ministry collaboration and co-ordination that is evident in this program. Veterans Affairs Canada has collaborated with Nova Scotia’s Provincial Court Mental Health Court so that services to veterans are co-ordinated with provincial service providers. The initiative recognizes that at the root of many veterans’ encounters with the criminal justice system are problems of mental health, addictions or substance abuse related to the person’s military service.
Nova Scotia’s Mental Health Court, like its counterparts across the country, is focused on therapeutic and collaborative approaches, with a team made up of professionals from the provincial justice and health care systems. What is new is that a federal Veteran Affairs case worker will work with the team to screen applicants and work with those eligible for the program.
The design of this program has features that should be adopted much more widely in other areas of the justice system. First, the initiative is premised on the belief that we should try to deal with the whole person and recognizes that often the legal aspect of a person’s situations is the result of rather than the cause of the real difficulty. Second, the initiative recognizes that there are already extensive resources available in the community and that what is needed is improved co-ordination of those services. Third, the initiative brings together service providers from a variety of government departments and from different levels of government. Finally, the program is being monitored so that its impact can be assessed and, if successful, its approach adopted elsewhere.
Federal Minister Kent Hehr, Chief Judge Pamela Williams of the Nova Scotia provincial court and everyone else involved in this innovative program should be congratulated. And their collaborative and co-ordinated approach to helping address the needs of the whole person before the court should be emulated everywhere in our justice system. Only then will our justice system move from being what it too often is — part of the problem — to what it ought to be — part of the solution.
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 atBorden Ladner Gervais.
This article originally appeared on The Lawyer’s Daily on June 12, 2017. It is the second article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.
Sometimes symbolic gestures are meaningful. And sometimes they are even important. The recent resolutions by the leaders of the Canadian judiciary concerning access to justice are both.
In April, at the urging of the Action Committee on Access to Justice in Civil and Family Matters, the Canadian Council of Chief Judges (composed of the leaders of the provincial court judiciary) and the Canadian Judicial Council (composed of the leaders of the federally appointed judiciary) passed resolutions supporting the aspirational goal of 100 per cent access to justice and calling on all judges to demonstrate leadership and work with all Canadian citizens and justice system stakeholders to achieve that goal.
Here are the two resolutions.
The Canadian Judicial Council Resolution from its April 2017 meeting:
“THAT the Canadian Judicial Council supports the aspirational goal of the public having 100 per cent access to the knowledge, resources, skills and services needed to effectively deal with their civil, family and criminal legal problems. As part of its commitment to promote meaningful access to justice for all, the Council urges all federally appointed judges in Canada to demonstrate leadership and work with all Canadian citizens and justice system stakeholders to achieve that goal.”
The Canadian Council of Chief Judges Resolution from its April 2017 meeting:
“The Canadian Council of Chief Judges supports the aspirational goal of the public having 100 per cent access to the knowledge, resources, skills and services needed to effectively deal with their civil and family legal problems. As part of its commitment to promote meaningful access to justice for all, the council urges all provincially appointed judges in Canada to demonstrate leadership and work with all Canadian citizens and justice system stakeholders to achieve that goal.”
Cynics will say that these resolutions are meaningless gestures. But that would be to judge too quickly. A similar resolution passed by the U.S. Conference of Chief Justices and Conference of Court Administrators in 2015 has been a catalyst for change and a morning star of inspiration for access to justice advocates in that country. I hope we will be able to say the same thing in Canada a year from now.
More importantly, these resolutions provide important advocacy tools for change. They permit us — even invite us — to go back to the councils a year from now and ask what they have done to move beyond these welcome words to much-needed action.
And the reach of these resolutions goes well beyond the work of the two councils. Note that the resolutions call on all judges — not just chief justice and judges — to do two things: to demonstrate leadership and to work with the public and justice system stakeholders to achieve the goal of 100 per cent access to the knowledge, resources, skills and services needed to address their legal problems. The call for judges to work with others to this end sends an important message that collaboration and co-operation are needed, including from judges. And the resolutions’ vision of access to justice as being about more than courts and judges is groundbreaking.
So I am delighted with these resolutions and congratulate the chief justices and chief judges for their leadership. The resolutions are brimming with potential. But now comes the hard part. The two councils, and the whole Canadian judiciary will need to be ready for a tough question a year from now: how have you moved on from hopeful talk to concrete action?
I hope many in the justice system and beyond will ask and that the Canadian judiciary has some good answers.
The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice atBorden Ladner Gervais.
This article originally appeared on The Lawyer’s Daily on March 3, 2017: https://www.thelawyersdaily.ca/articles/2599. It is the first article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.
Access to justice is the biggest challenge facing our legal system. And just about every lawyer I know cares deeply about the health of that system and many are trying to help. But do we understand the problem and are we making progress? Those questions will be the jumping off spot for this, and subsequent blogs dedicated to access to civil and family justice.
Let’s start with what we mean by the term “access to justice.” I’m concerned that it can have so many meanings that it loses its meaning entirely. Of course it’s a phrase that is bandied around to mean a lot of very different things. What I mean by access to justice is assuring that people have the knowledge, skills, resources and services to meaningfully address their civil and family legal issues.
In order to meaningfully address their problems, people do not necessarily need to have their “day in court” (let alone their month in court!). Access to justice needs to be understood much more broadly than that. I will never forget the women at one of the many access to justice events that I’ve attended over the past eight years who said that sometimes it’s more about a bus pass or a babysitter than it is about getting into court. So access to justice must be understood in broad terms: do people have what is required to meaningfully address their problem?
This broad understanding of access to justice means that we have to keep fair process and practical outcomes in some reasonable balance. Many would say – and I am one of them – that we in the justice system have tended to be process heavy and outcomes light. We all know that too often a judgment is a meaningless piece of paper; too often, what we call fair process provides a means by which moneyed might can wear out the right. Of course, fair process is important. But so are practical outcomes. How often does our current approach provide both?
Once we understand that access to justice must be understood broadly, we quickly see that the problem is both complex and systemic. Everything in our system is related to everything else and so a “solution” adopted by one part of the system can quickly become a “problem” for another part. We have generally been unwilling or unable to take a tough-minded, systemic view of access to justice. And too rarely have we been able to articulate the specific goals of reform or been able to measure or meaningfully evaluate the effects of particular reforms.
Remember when, in the 1970s and early ’80s, broader rights of discovery were thought to be the cure-all for what ailed the civil justice system? Broader rights of discovery would make for fairer trials and encourage settlement. Fast forward 30 years, and what became enemy No. 1 in civil proceedings? Excessive discovery. The discovery saga is typical. Significant procedural reforms are introduced based on anecdotal evidence (sometimes called “anecdata”) and effects are “monitored” in the same way. We simply do not take account of foreseeable systemic effects of the changes or bother to measure these effects once the reforms are put in place.
What I hope to do in this series of columns is to invite a broader understanding of what access to justice means and to advocate for a fundamental rethink of what our system of civil and family justice needs to look like to achieve practical outcomes by means of fair process for the people who bring us their legal problems. And I hope to celebrate some of the wonderful work that is being done every day across Canada to improve access to justice. In short, I want to invite readers to think big together about how we can bring about major and beneficial change for the people who look to us for help in addressing their civil and family justice issues.
Fasten your seat belts.
The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now counsel to the national litigation practice at Borden Ladner Gervais.
A number of reports published in recent years have highlighted the lack of research on access to justice in Canada and have called for more. In a Canadian Forum on Civil Justice column published on slaw.ca, Andrew Pilliar discusses the state of access to justice research in Canada and offers insight into how much access to justice research is being funded in Canada. Read “The Cost of Justice (Research)” here.
Le forum canadien sur la justice civile est très heureux d’annoncer que << Les problèmes juridiques de la vie quotidienne et le coût de la justice au
Canada : rapport général >> est présentement disponible en français. Ce rapport général fait partie du projet sur les coûts de la justice (2011-2018) qui examine les coûts sociaux et économiques du système de justice canadien.
Les problèmes juridiques de la vie quotidienne et le coût de la justice au Canada : rapport général est disponsible sur notre site web ici.
The Legal Health Check-up Project which involved 12 community legal clinics in Southwestern Ontario and 125 partnerships with community organizations and service agencies, was developed as a way to provide information and assistance related to everyday legal problems to disadvantaged people. “Engaging the Power of Community to Expand Legal Services for Low‐Income Ontarians”, the complete report on the Legal Health Check-Up Project was prepared by CFCJ Senior Research Fellow, Dr. Ab Currie, in his capacity as Research Consultant to the Legal Health Check-up Project and details the development, adoption and expansion of the Legal Health Check-Up Project. “Engaging the Power of Community to Expand Legal Services for Low‐Income Ontarians” is available in full here.
In recent years, there has been a dramatic increase in the number of individuals who address a legal issue without the assistance of legal representation. Statistical data generated by the Canadian Forum on Civil Justice (CFCJ) indicates that approximately 11.4 million people in Canada will experience at least one everyday legal problem in a given three-year period.[1] It is further reported that approximately “50% of people try to resolve their problems on their own with no or minimal legal or authoritative non-legal assistance.”[2] In statistical terms, another recent report reveals that approximately 40% of civil law litigants represent themselves, and this percentage increases dramatically in certain legal fields, such as family law, where as high as 60-70% of litigants in certain family courts are self-represented.[3] Moreover, as retainers run out, legal matters are unresolved and clients are unable to pay their mounting legal bills, the percentage of self-represented litigants is likely to increase.[4] Low and moderate-income individuals have historically been among those most likely to be self-represented. The combined effect of all of this accumulating data is the building access to justice crisis in the Canadian legal system.[5] Most recently, a growing funding crisis in Legal Aid Ontario in 2017 points toward even more individuals being unable to obtain legal assistance and as a result, being obligated to enter the justice system as self-represented litigants.[6]
This crisis in access to justice in Canada has resulted in a variety of policy initiatives; many of these have been directed at attempting to assist the growing number of self-represented litigants who continue to enter the civil justice system without traditional legal representation.[7] One of the practical realities of this data and the initiatives that have arisen in response to this phenomenon (i.e., duty counsel and self-help legal services aimed at providing self-represented litigants with summary legal advice and information) is that lawyers are often operating within a system that no longer resembles the legal system for which they were ostensibly trained.
However, while low and moderate-income individuals have historically been disproportionately self-represented, 50% of the self-represented litigants recently surveyed had a university degree and approximately 40% of those surveyed had an income of over $50,000 per year. [8] In seeking to better understand the profiles of those who resolve their legal problems through self-help and without legal representation, Ab Currie stated that:
[i]n statistical terms, the relationship between the action taken to resolve problems and most socio-economic characteristics is statistically significant but extremely weak. There appears to be a slight tendency for self-helpers to be older, to have higher incomes, to be somewhat better educated and to be single or married or a couple with no children. Respondents who are self-helpers were less likely to report that they have a physical or mental health problem.[9]
This signals a shift in the demographic make-up of self-represented litigants; self-representation is expanding to include members of the traditional middle class.[10] In the American context, this phenomenon was previously observed by Sande Buhai who noted that there was “an increasing number of middle-income individuals choosing to resolve their legal issues without the help of a lawyer.”[11] The shift in the demographics of the self-represented litigant population is also likely to have an impact on individuals’ perceptions about the role that lawyers play in the legal system and the legal profession more generally. Historically, many individuals within marginalized communities have experienced a disengagement with respect to the legal profession. However, a new generation of self-represented litigants not otherwise marginalized within society may view the profession more critically. In adopting a more critical view of the legal profession’s value, they might challenge the legitimacy and authority of the profession.
Based on results from their nationwide survey, the Canadian Forum on Civil Justice reported that 41% of individuals who spent money to resolve their legal problem (i.e., obtained legal services) thought that the outcome was fair as opposed to 61% of those who did not spend money on legal services and thought that the result was fair.[12] Moreover, 81% of the group surveyed thought the legal advice that they obtained was helpful however 68% of the group who sought non-legal advice also found that the advice was helpful to them in resolving their legal issue.[13] While this does not spell the end of lawyers, it does suggest that individuals’ perceptions about the need for legal assistance and the type of assistance that they require may be evolving, such that more direct engagement in their own legal matters will affect how they conceptualize their relationship with members of the legal profession and what they expect from the profession.
In light of these dimensions, a shift in demographics and corresponding growth in the number of self-represented litigants has important implications for how the legal profession both thinks about and interacts with self-represented litigants. In many respects, the legal profession has historically defined the ‘terms of engagement’ regarding access to justice. This has had far-reaching effects on how members of the profession view their responsibility to advance access to justice and engage with those individuals attempting to access justice.[14] To the extent that a broader spectrum of individuals are representing themselves, it is important that the legal profession take serious stock of how it has viewed self-representation, how the emergence of self-representation operates within the adversarial model, and how the legal profession’s traditional professional responsibilities in the adversarial system may be at odds with self-representation. Historically, it was not unreasonable to suggest that lawyers tended to view self-represented litigants as nuisances in the legal system, ‘career litigants’ or individuals pursuing vexatious claims.[15] The underlying assumption was that the self-represented litigant was likely to delay the resolution of the matter due to his or her lack of knowledge and experience, increase the costs incurred by paying clients, and pursue claims that were not meritorious.
While attitudes may be slowly changing as more self-represented litigants enter into the legal system, the concern is that those views continue to shape how legal professionals interact with self-represented litigants; and these views are situated within lawyers’ self-perceptions about their duties and responsibilities to both clients and adversaries. At a minimum, the legal profession’s belief that the goal of access to justice should be legal representation for self-represented litigants raises concerns about how those same legal professionals are likely to respond to self-represented litigants who they believe ‘do not belong in the legal system’ without representation. This attitudinal challenge must also be examined in the context of the legal profession’s continued adherence to a model of professionalism that focuses on the lawyer as a zealous advocate for whom there is no one else in the world but her client.[16] Together, historical views about the legitimacy of self-represented litigants and a singular commitment to neutral partisanship serve to undermine the fulfillment of the adversarial system’s objectives; this ultimately risks diminishing the legitimacy of the civil justice system as a means by which members of society might resolve disputes and enforce rights.
The absence of more comprehensive professional guidelines regarding self-represented litigants is in serious need of correction. Given the influx of self-represented litigants in the civil justice system, it has become necessary to integrate self-represented litigants more directly within the rules of the professional conduct framework. This type of reform cannot involve a ‘mere tinkering.’ Instead, what is required is a more in-depth re-thinking about the condition of the adversarial framework and lawyer’s roles within that framework – what are goals and objectives of the civil justice system? Answering these questions will entail an inquiry into how the adversarial framework in which lawyers operate may require very different normative rules as well as practices that take better account of self-represented litigants’ legitimate participation within the legal system.[17]
In developing new approaches that might better shape the legal profession’s response to and interaction with self-represented litigants, one option is to explore other adjudicative frameworks that might infuse and alter the existing adversarial model. The rationale for adopting this approach is, in part, due to a recognition that the existing adversarial system does not operate as it is ideally represented. Indeed, over time, certain reforms (i.e. comprehensive disclosure requirements) have been undertaken to address inequalities in the existing system. Thus, as the legal system evolves, albeit at a snail’s pace, so too must the corresponding professional expectations of lawyers in order to reflect the new realities as well as a continued commitment to a fair and just legal system. An important component of this evolution will be the need for a broader engagement with individuals who are representing themselves in order that the legal profession and its regulators might better understand how the duties and responsibilities held by lawyers play out in this context. Another part of this analysis will need to engage members of the profession in a more critical and reflective examination of their ethical responsibilities. In this regard, the data collected by the Canadian Forum with respect to the ways in which individuals attempt to resolve their legal issues provides an important means to explore the changing role of the legal profession in an age of self-representation.
[1] Trevor CW Farrow et al, Everyday Legal Problems and the Costs of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) [Cost of Justice].
[3] Julie MacFarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, Treasurer’s Advisory Group on Access to Justice (TAG) Working Group Report (2013) [MacFarlane]. In the American context, the President of the American Bar Association recently commented that approximately “80% of litigants remain unrepresented in all civil matters.” See Victor Li, “William Hubbard Speaks about the Importance of Technology in Expanding Access to Justice”, online: (2016) ABA Journal <http://www.abajournal.com/news/article/william_hubbard_speaks_about_the_importance_of_technology_in_expanding_acce/?utm_source=maestro&utm_medium=email&utm_campaign=techshow_wrapup>.
[4] Ontario Bar Association, ““Getting it Right”: A Report of the Ontario Bar Association Justice Stakeholders Summit” (June 2007), online: Ontario Bar Association <www.OBA.org/en/pdf/Justice%Summit.sml.pdf>.
[6] Alex Robinson, “More Self-Represented Litigants Due to Deficit?” Law Times News (23 January 2017) online: <http://www.lawtimesnews.com/201701235895/headline-news/more-self-represented-litigants-due-to-deficit?utm_term=More%20self-represented%20litigants%20due%20to%20deficit&utm_campaign=CLNewswire_20170123&utm_content=email&utm_source=Act-On+Software&utm_medium=email>.
[7] In her foreword to the Action Committee on Access to Justice in Civil and Family Matters’ Final Report, Chief Justice McLachlin comments “as Canadians celebrated the new millennium, it became clear that we were increasingly failing in our responsibility to provide a justice system that was accessible, responsive and citizen-focused. Reports told us that cost, delays, long trials, complex procedures and other barriers were making it impossible for more and more Canadians to exercise their legal rights.” See Action Committee on Access to Justice in Civil and Family Matters, “Action Committee, Final Report on Access to Justice in Civil and Family Matters” (2013), online: Canadian Forum on Civil Justice <https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf>; see also Trevor CW Farrow, Diana Lowe, Bradley Albrecht & Martha E Simmons, “Addressing the Needs of Self-Represented Litigants in the Canadian Justice System”, A White Paper Prepared for the Association of Canadian Court Administrators (27 March 2012), online: Canadian Forum on Civil Justice < https://www.cfcj-fcjc.org/sites/default/files/docs/2012/Addressing%20the%20Needs%20of%20SRLs%20ACCA%20White%20Paper%20March%202012%20Final%20Revised%20Version.pdf>.
[9] Ab Currie, “Self-Helpers Need Help Too” Law for Life (2010), online: Law for Life <http://lawforlife.org.uk/wp-content/uploads/2013/05/self-helpers-need-help-too-ab-currie-2010-283.pdf>. at 8.
[10] There are different ways to define the middle class; if you define it by income earned, it would encompass families that earn between $32,000.00 and $95,000.00 per year (approximately 40% of Canadians meet this criteria. However, it may also be defined in terms of the amount of discretionary income that a family has to spend on non-essential items or to save. Research done by Statistics Canada in 1991 suggested that this only constituted 25% of the population. See Tasmin McMahon, “Who Belongs to the Middle Class in Canada?” Maclean’s (26 February 2014), online: Maclean’s <http://www.macleans.ca/economy/who-belongs-to-canadas-middle-class>.
[11] In the American context, this phenomenon was previously observed by Sande Buhai who noted that there was an increasing number of middle-income individuals choosing to resolve their legal issues with out the assistance of legal representation. See Sande L Buhai, “Access to Justice for Unrepresented Litigants: A Comparative Perspective” (2009) 42 Loy LA L Rev 979 at 983; see also Consortium on Legal Services and the Public, Legal Needs and Civil Justice “A Survey of Americans: Major Findings from the Comprehensive Legal Needs Study” (1994), online: American Bar Association < http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/downloads/legalneedstudy.authcheckdam.pdf>.
[14] Alan Paterson, “Lawyers and the Public Good-Democracy in Action?” in Hamlyn Lectures (Cambridge, UK: Cambridge University Press, 2010).
[15] In one example, a lawyer was quoted as saying, “lawyers don’t like dealing with angry self-represented litigants. That is what articling students are for.” See Linda Perlis, “The Death of a Divorce Lawyer” Globe and Mail (1 December 2015) online: Globe and Mail <http://www.theglobeandmail.com/life/facts-and-arguments/the-tragic-death-of-a-divorce-lawyer-changed-my-life-in-unexpected-ways/article27545237>.
[16] Lord Henry Brougham cited in Caroline Amelia Elizabeth The trial at large of Her Majesty Caroline: Amelia Elizabeth, Queen of Great Britain, in the House of Lords, on charges of adulterous intercourse; containing a full and accurate detail of the evidence of the witnesses, the speeches of counsel, and all other proceedings in this extraordinary trial (London: T. Kelly, 1821).
[17] Carrie Menkel-Meadow, “Is the Adversary System Really Dead?” (2004) 57:1 Curr Leg Probl 85 at 105.
There is a new socially innovative initiative, known as Social Impact Bonds (SIBs), whereby the private sector shares in the risk and reward associated with the outcome of social programs. With funding being a challenge for many not-for-profits and stakeholders working to improve access to justice across Canada, SIBs may provide a way forward for many in this area.
SIBs are a “pay-for-success” contract in which the government contracts with a private actor to create a program. The government is only required to pay if the program meets a threshold target. Often, there will be a range of targets with a corresponding payout depending on the level of success. In 2015, the Ontario government committed to piloting SIBs as part of its poverty reduction strategy.
SIBs were first developed in 2014 in Saskatchewan with a program to support at-risk single mothers. The program, a five-year arrangement, was a collaboration between a credit union and a youth centre. To assist with the legal arrangements of the financing – the payment of the bond – a national Canadian law firm was used. The desired outcome of the project is that 22 children and their mothers still be together six months after participating in the program. An independent party will measure the program at the end of the second, fourth, and fifth years. If there were fewer than 17 families still together, investors would receive nothing. If there are 17 families or more still together, investors would then receive their initial investment plus an additional 5%.
SIBs were introduced at the federal level earlier this year through a partnership between the Public Health Agency of Canada and the Heart and Stroke Foundation, with the MaRS Centre for Impact Investing finding the initial funds to support the program. The Public Health Agency will only be required to pay the Heart and Stroke Foundation if the program meets the desired outcome – a reduction in blood pressure levels for a group of 7,000 seniors on the verge of developing hypertension. If the program stops or the target isn’t met, investors, made up of individuals, businesses and charitable foundations will receive a return of 6.7%. If the program is better than expected, and blood pressure decreases further, the investors will receive 8.8%. None of the $3.4 million will be paid out if the program fails.
The process could be said to be a type of public-private partnership (P3). In Ontario, P3 projects have been used to build and finance universities, highways, hospitals, courthouses, light-rail transit, etc. This model is effective because the private sector is often in a better position to take on a significant portion of the risks involved with overseeing a project. Critics complain that this sort of design is more expensive, and to a degree they are right in the sense that private interest rates are higher than government interest rates.
However, in an era when the ability for programs such as legal aid to help clients is directly tied to their funding, there is an opportunity for SIBs to help provide access to legal services and legal professionals to many with limited resources. There is some evidence in the United Kingdom that this sort of investment may work. When programs for newly released inmates were failing to provide support, resulting in more individuals re-offending, an SIB program was developed with the goal of reducing the likelihood of prisoners re-offending.
In the case of this UK project, reoffending rates fell 8.4% but a reduction of 10% was required for investors to be paid out. Still, the results are hardly a failure; the outcome provided a social benefit for the participants as well as the broader community. It appears the UK government is planning to push forward with new initiatives for investment that will target homelessness. The UK government has begun introducing tax relief for people who invest in SIBs.
There are other advantages to Social Impact Bond programs. They also lend themselves to addressing issues that are multi-dimensional. For example, homeless individuals sometimes face substance abuse problems, mental and physical health issues, joblessness, etc. For some individuals experiencing some types of legal problems, many of the same manifestations may occur. Day after day in court can impair the ability of litigants to maintain consistent work hours, volunteer, attend medical appointments, and many other important day-to-day activities. This can lead to tremendous costs, job loss, and immense stress. Organizations and programs like legal aid are only able to address one problem, while collaborative initiatives may not have the resources to support clients for extended periods. SIB programs can offer various programs within the initiative to address the various factors that contribute to the ultimate outcome, e.g. employment, education, and counselling. .
Collaborative law is one area where SIBs could be applied in the law. Collaborative law is a variation of alternative dispute resolution that can take a holistic approach to various legal issues in a dispute, e.g. employment, insurance, divorce, etc. Collaborative processes begin by having the parties sign an agreement to participate completely in the process. The process usually ends with a binding agreement. Typically, facilitators of collaborative law can suggest other forms of aid such as mental health therapy. There are several possible benchmarks for determining the success of this type of program including non-binding agreements, divorce rates for couples.
For access to justice solutions to work they require flexibility and the ability to address a multitude of client needs – collaborative law is a great option for access-to-justice oriented investing in Canada. Social Impact Bonds offer a unique opportunity for private sector businesses and individuals to invest in socially beneficial causes. At the same time, these programs can be managed by groups or organizations that are in the best position to address the particular needs of the clients.
Quin Gilbert-Walters is a third-year law student at Osgoode Hall Law School in Toronto. He has been a research and communications assistant with the Canadian Forum on Civil Justice since 2015. Upon graduating from Osgoode, Quin will return to Infrastructure Ontario, where he spent last summer as a summer associate, to article. Infrastructure Ontario is a Crown agency devoted primarily to improving Ontario’s infrastructure. In particular, IO often uses a special alternative finance and procurement model to complete public-private-partnership (P3) projects.
Much of the work that is being done to improve access to justice for Canadians comes down to access to justice advocates. As a part of our efforts to highlight the diverse range of individuals working across the access to justice arena, the Canadian Forum on Civil Justice was thrilled to recently speak with Sarah McCoubrey for our Access to Justice Advocates series.
Sarah McCoubrey, a lawyer and a founding partner at Calibrate Solutions, is well-known in the access to justice community. She has been integral to several provincial and national campaigns that have sought to disseminate information, research and resources pertaining to a number of access to justice issues. We recently sat down with Sarah for our Access to Justice Advocate series to talk about her work, shifts in the access to justice landscape and what needs to be done to improve the accessibility of our civil justice system. The interview with Sarah was conducted by CFCJ Research Assistant, Lucas Gindin and can be viewed in full here.
The Legal Health Check-Up (LHC) is a uniquely valuable tool for documenting unmet legal need at a very fine-grained, local level. The LHC questionnaire is administered by community groups and service agencies to people seeking their services. Individuals who require service from the legal clinic are referred to the clinic. The LHC form becomes the basis for a dialogue between the clinic staff and the individual, laying the groundwork for a more holistic and integrated service that would otherwise not have occurred with an intake process focussing on addressing only one problem that is presented. The larger number of LHC forms, which may or may not include requests for help from other services, can provide useful insight and, can be included in a database that comprises all the individuals who complete the forms and report the problems they are currently experiencing.
The LHC used for data collection does not constitute a random and representative survey. The scope of the data depends on factors such as the number of groups in the community that have LHC partnership arrangements with the legal clinic. The reliability of the data is subject to the manner in which each agency has people complete the forms.
However, the form does record the everyday legal problems that occur in the lives of the people who complete them. The problems can be aggregated for all the community agencies that have partnerships with the legal clinic and the data can be cumulated over time. The LHC is highly flexible. Changes can be made to the problem types presented in the survey in response to social changes in the community. Problems that apply uniquely to certain groups such as Aboriginal peoples or refugee claimants can be included. Acknowledging the limitations of LHC data for describing the landscape of legal problems, these data have a level of specificity for small areas that cannot be achieved by sample surveys even with extremely large samples. The LHC data documents legal problems directly and, to that end, is superior to inferences about legal need using proxy measures derived from census or other official data that are collected for other purposes.
As an outreach strategy, it is important to understand that the LHC approach is more than just the check-up questionnaire that is used to identify inconspicuous legal need. The LHC also necessitates a relationship between the legal clinic and community organizations that provides a pathway to legal help.
The form itself is a valuable source of information to better understand unmet legal need. As a resource that is used in the course of providing service, the form also provides useful data that is not easily accessible by other means. Legal service providers using the LHC approach should bear this in mind in the way they use the LHC form. Decision-makers in government and legal aid commission bureaucracies who are responsible for encouraging and funding promising approaches for expanding access to justice should also pay close attention to this important feature of the legal health check-up approach.
A couple months ago, I had the privilege of attending a conference centered on the theme of Civil Justice and Economics. This conference, presented by the Canadian Institute for the Administration of Justice (CIAJ) in partnership with the Canadian Forum on Civil Justice (CFCJ), featured presentations by a number of prominent researchers, academics, judges, legal practitioners, and government and non-profit stakeholders, all devoted to the common goal of improving the economic efficiency and accessibility of our civil justice system. While the Canadian justice system has been touted internationally as fundamentally fair, rule abiding, and open, it has received mediocre rankings on scales of efficiency and accessibility, particularly in the realm of civil justice.[1] This is no secret when considering the extent to which some of the highest members of our judiciary have bemoaned the current state of access to justice in Canada.[2] As a leader among nations, Canada is a country that has the capacity to do better and must do better.
While there is still a tremendous amount of work to be done, the CIAJ/CFCJ conference offered a reassuring glimpse into some new developments that are helping pave the way for increased accessibility and efficiency. Chair of the Civil Resolution Tribunal (CRT), Shannon Salter, for example, spoke about the work that the CRT has been doing in leveraging technology to create Canada’s first fully integrated online tribunal. The CRT has jurisdiction over strata property disputes in British Columbia, and uses a solution explorer that enables users to resolve their disputes from the convenience of their own homes. Speaking to a different development, 2016 Gonthier Fellowship recipients Heather Heavin and Michaela Keet presented the results of their research project, which proposes using legal analytics to enhance the capacity of counsel to provide litigants with competent advice at an early stage in the litigation process. By using hard data to inform a particular action’s prospects of success, Heavin and Keet’s methodological approach allows lawyers to be more accountable to clients, and allows clients to make better informed decisions about settling versus litigating.
The work of the CRT and of professors Heavin and Keet are just two examples of some of the up-and-coming developments that are helping to improve the provision of legal services within our borders. Other presenters also spoke to ongoing or potential initiatives in the realms of data sharing, class actions and alternative legal services (ex: “unbundling” of legal services, “limited scope retainers”). Moving forward, it will also be important to observe the extent to which provincial regulators implement the recommendations set out in the CBA’s Futures Report. If Canada is to make substantial gains on the accessibility front, provincial regulators need to be open to the possibility of allowing for Alternative Business Structures (ABS’s), non-lawyer fee sharing, and Multi-Disciplinary Practices (MDP’s). These three things in particular, can have a profound effect in both improving the quality of legal services and in driving down costs for consumers.
[2] See for example Chief Justice McLaughlin’s “Foreword” and Justice Cromwell’s “Introduction” in the Action Committee on Access to Justice in Civil and Family Matter’s 2013 report, entitled “Access to Civil & Family Justice: A Roadmap for Change”
The Action Committee on Access to Justice in Civil and Family Matters is pleased to announce the launch of its new Justice Development Goals website (www.justicedevelopmentgoals.ca).
The Action Committee was convened in 2008 by the Rt. Honourable Beverley McLachlin, Chief Justice of Canada, in order to develop consensus and priorities around improving access to civil and family justice in Canada, while also encouraging cooperation and collaboration between all stakeholders in the justice system. In 2013, the Action Committee published Access to Civil & Family Justice: A Roadmap for Change, which contains 9 Justice Development Goals that, if accomplished, will help to address the large and growing access to justice gap in Canada.
The new Justice Development Goals website presents the 9 Justice Development Goals in plain language so that the most important justice stakeholders – the public – can join us in our journey towards meeting these goals.
The website is only the first step in a broader public engagement process to be conducted over the winter and the early spring of 2017.
Le Comité d’action sur l’accès à la justice en matière civile et familiale est heureux d’annoncer le lancement de son nouveau site Web sur les objectifs de développement en matière de justice (www.justicedevelopmentgoals.ca).
Le Comité d’action a été formé en 2008 par la très honorable Beverley McLachlin, juge en chef du Canada, pour établir un consensus et des priorités concernant l’amélioration de l’accès à la justice en matière civile et familiale au Canada, tout en encourageant également la coopération et la collaboration entre tous les intervenants du système de justice. En 2013, le Comité d’action a publié le document intitulé L’accès à la justice en matière civile et familiale : Une feuille de route pour le changement, lequel contient 9 objectifs de développement en matière de justice qui, s’ils sont atteints, aideront à combler l’écart important et grandissant en ce qui concerne l’accès à la justice au Canada.
Le nouveau site Web présente les neuf objectifs de développement en matière de justice en langage clair afin que les plus importants intervenants du système de justice – les membres du public – puissent nous accompagner dans notre parcours vers l’atteinte de ces objectifs.
Le site Web n’est que la première étape d’un grand processus d’engagement du public qui se déroulera à l’hiver et au début du printemps 2017.
As work to improve access to justice in civil and family matters continues to gain momentum across Canada, the Action Committee on Access to Justice in Civil and Family Matters is pleased to announce the launch of a major project to develop and publish a Status Report on the State of Access to Justice in Canada. The project will be carried out by the Canadian Forum on Civil Justice.
The Action Committee was convened in 2008 by the Rt. Honourable Beverley McLachlin, Chief Justice of Canada, in order to develop consensus and priorities around improving access to civil and family justice in Canada, while also encouraging cooperation and collaboration between all stakeholders in the justice system. In 2013, the Action Committee published Access to Civil & Family Justice: A Roadmap for Change, which contains 9 Justice Development Goals that, if accomplished, will help to address the large and growing access to justice gap in Canada.
The first step in the project is to do an in-depth survey of organizations working to improve access to justice. The survey instrument, which is now available, is built around the Justice Development Goals. The survey can be completed on-line by any organization, institution or body that defines itself as engaging in activities designed to improve access to justice.
The next step will be to compile and publish the survey results. This will occur in time for the Action Committee’s next annual meeting in March of 2017.
I urge every organization working to improve access to civil and family justice to complete and return the survey and to encourage other organizations in your network to do the same. The value of the status report depends on the response level and I hope that you will support this ground-breaking project.
Alors que les efforts pour améliorer l’accès à la justice en matière civile et familiale se multiplient partout au Canada, le Comité d’action sur l’accès à la justice en matière civile et familiale est heureux d’annoncer le lancement d’un grand projet visant à rédiger et à publier un rapport d’étape sur l’état de l’accès à la justice au Canada. Le projet sera mené par le Forum canadien sur la justice civile.
Le Comité d’action a été formé en 2008 par la très honorable Beverley McLachlin, juge en chef du Canada, pour établir un consensus et des priorités concernant l’amélioration de l’accès à la justice en matière civile et familiale au Canada, tout en encourageant également la coopération et la collaboration entre tous les intervenants du système de justice. En 2013, le Comité d’action a publié le document intitulé L’accès à la justice en matière civile et familiale : Une feuille de route pour le changement, lequel contient 9 objectifs de développement en matière de justice qui, s’ils sont atteints, aideront à combler l’écart important et grandissant en ce qui concerne l’accès à la justice au Canada.
La première étape du projet consiste à mener un sondage approfondi auprès des organisations qui travaillent à l’amélioration de l’accès à la justice. Le questionnaire du sondage, qui est maintenant accessible, repose sur les objectifs de développement en matière de justice. Le sondage peut être rempli en ligne par toute organisation, toute institution ou tout organisme qui se définit comme un participant à des activités conçues pour améliorer l’accès à la justice.
L’étape suivante consistera à compiler et à publier les résultats du sondage avant la prochaine réunion annuelle du Comité d’action qui aura lieu au mois de mars 2017.
J’incite fortement toutes les organisations qui travaillent à l’amélioration de l’accès à la justice en matière civile et familiale ainsi que les autres organisations faisant partie de leur réseau à répondre au sondage. La valeur du rapport d’étape dépend du taux de réponse au sondage et j’espère que vous appuierez ce projet novateur.
For information on other outputs from the CFCJ’s Everyday Legal Problems and the Cost of Justice in Canada study, visit the CFCJ website at: www.cfcj-fcjc.org/cost-of-justice
Our most recent infographic provides an overview of some of the key concepts presented in our “Everyday Legal Problems and the Cost of Justice in Canada: Overview Report“. Essentially all of us will experience at least one significant everyday legal problem over the course of our lifetime. Experiencing and trying to resolve these problems can be costly. View our Everyday Legal Problems and the Cost of Justice in Canada infographic here for an outline of why this presents a serious problem for the public, the State and access to justice in Canada. An animated version of this infographic is forthcoming.
How do we define a legal problem? What is meant by justice and access to justice? What ought to be encompassed within the concept of a justice system? In “Nudging the Paradigm Shift, Everyday Legal Problems in Canada”, Dr. Ab Currie, Senior Research Fellow at the Canadian Forum on Civil Justice, discusses the responses to these questions in the context of legal need and frequently occurring everyday legal problems. He highlights a methodological approach that moves beyond problem resolution solely through the formal justice system and instead invites a more holistic way of viewing and delivering access to justice that considers both social and legal needs. What is needed for this paradigm shift to occur? Read Dr. Currie’s paper in full here.
The Canadian Forum on Civil Justice is thrilled to partner with the Canadian Institute for the Administration of Justice (CIAJ) for the upcoming Civil Justice and Economics: A Matter of Value conference. The conference will take place from October 5-7 at the Fairmont Château Laurier in Ottawa and will include a series of panels and presentations centred on the way that economic concepts can help us to understand and assess the effectiveness of the decisions stakeholders and key players make in the administration of justice. We look forward to discussing our Cost of Justice project, hearing from other expert panels and sharing in conversations around this theme.
To view the full conference program or to register, visit the conference page here.
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Le Forum canadien sur la justice civile (FCJC) est heureux de travailler en partenariat avec L’Institut canadien d’administration de la justice (ICAJ) pour la conférence << Justice civile et économie : une question de valeur >>. La conférence aura lieu du 5 au 7 octobre au Fairmont Château Laurier à Ottawa. Cette conférence part du principe que les concepts économiques pourraient les aider à mieux évaluer les conséquences de leurs actions et l’efficacité de leurs choix et décisions, tant sur le plan économique que social. Nous avons hâte d’en discuter notre projet sur le thème des coûts de la justice au Canada et d’échanger avec divers intervenants pour la justice sur le sujet de la justice civile et économie.
Pour télécharger le programme de la conférence ou pour s’inscrire, cliquez ici.
The Canadian Forum on Civil Justice would like to express our sincere gratitude to the following for supporting our 2016 fundraising campaign:
The Yukon Department of Justice
The Nova Scotia Department of Justice
The Alberta Ministry of Justice and Solicitor General
The Ontario Ministry of the Attorney General
The Saskatchewan Ministry of Justice and Attorney General
Your support is vital to our access to justice research efforts and it also allows us to disemminate information that highlights opportunities for a more inclusive justice system.
Le forum canadien sur la justice civile est très heureux d’annoncer que notre fiche descriptive sur les problèmes juridiques quotidiens et les coûts de la justice au Canada est présentement disponible en français! Cette fiche descriptive fait partie du projet sur les coûts de la justice (2011-2017) qui examine les coûts sociaux et économiques du système de justice canadien.
Les faits qui sont présentés au document sont des constatations clés de « Everyday Legal Problems and the Cost of Justice in Canada: Overview Report » rédigé par Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup et Lisa Moore.
Le projet sur les coûts de la justice est financé par une subvention du Conseil de recherches en sciences humaines.
Members of the Canadian Forum on Civil Justice staff and research alliance presented research and findings from the SSHRC-funded Cost of Justice project at several conferences in Spring, 2016. Here are the links to the slides from some of those presentations:
The Access to Social Justice Symposium, Building A2SJ: An Interdisciplinary Conversation About Problems and Soutions : The Economics of Justice and Injustice
The traditional legal aid model has focused on providing legal solutions to a series of problems that have been narrowly defined as “legal.” The reality, however, is that strictly legal problems are often embedded within a cluster of non-legal problems. Therefore, in order to effectively respond to the growing legal need in this country the legal aid model must reorient its approach to client service. This type of “culture shift” is something that the National Action Committee on Access to Justice in Civil and Family Matters has advocated for in its 2013 white paper entitled “Access to Civil and Family Justice: A Roadmap for Change.”
In his recent piece on the changing culture of legal aid in Nova Scotia, CFCJ researcher Ab Currie highlights four service areas where the Nova Scotia Legal Aid program (NSLA) has responded to the National Action Committee’s call for change. The four service areas are as follows:
1) Criminal legal aid in Halifax
2) Family law services in Dartmouth
3) Social justice program in Kentville
4) Aboriginal justice program in the Province
As a means of illustrating this culture shift, Currie provides a “snapshot” picture into the lives of four individuals who have made important contributions to Nova Scotia’s changing legal aid landscape. While their stories may be different, the common thread between these four NSLA support workers is that they have all forged partnerships with community organizations to deliver legal aid service that is holistic, innovative, and collaborative.
To view the stories and contributions of these four NSLA staff to Nova Scotia’s pioneering legal aid program and Dr. Currie’s paper, click here.
The best way to improve any system is to work with and receive feedback from the individuals who are engaged in that system. In her recent trip to the Yukon, CFJC Research Fellow and Winkler Institute Assistant Director Nicole Aylwin met with the Yukon Courts, Department of Justice, and other justice stakeholders to discuss the benefits of a “Human-Centered Design” (HCD) approach to civil justice reform. This approach has led to several recommended improvements in the civil justice system, including the complete redesign of the family law statement of claim as part of the Yukon Simplified Form Innovation Project. To read about Nicole’s reflections from the Yukon summit and her work using the HCD approach to civil justice reform click here.
**Nicole Aylwin’s article, Human-Centered Design and the Justice System: Lessons from the Field, was written for, and originally published on www.slaw.ca**
The Canadian Forum on Civil Justice (CFCJ) is thrilled to annouce the publication of three papers from our SSHRC-funded “Cost of Justice” research project. These papers are based on findings from the CFCJ’s Everyday Legal Problems and the Cost of Justice in Canada survey, the first national survey in almost ten years to measure the frequency and ways in which members of the Canadian public experience everyday legal problems. It is also the first survey of its kind to explore what these problems cost, not only in dollars, but also to the state and to the physical and mental health of the public who use our justice system.
The 2014 Everyday Legal Problems and the Cost of Justice in Canada fact sheet has been updated and revised based on the findings presented in the recently published Everday Legal Problems and the Cost of Justice in Canada: Overview Report. The updated fact sheet is posted on the CFCJ website here. A French version of the fact sheet is forthcoming.
Results from the CFCJ’s 2014 study on the civil legal needs of Canadians indicate that most Ontarians do not obtain formal legal advice when faced with a legal problem. One might conclude that this is because the cost of obtaining lawyers has become too expensive, yet the research findings suggest otherwise. In “The Resolution of Legal Problems in Ontario”, Mathew Dylag indicates that perception and an understanding of what is at stake may be more likely indicators of whether individuals will seek out formal legal advice. To learn more about the legal consumer habits of Ontarians, read Matthew’s paper here.
In 2015, as part of the SSHRC-funded “Cost of Justice” project, the CFCJ conducted a study of 495 civil, non-family cases filed in the BC Supreme Court that appeared to lack resolution through court processes. The resulting “Civil Non-Family Cases Filed in the Supreme Court of BC, Research Results and Lessons Learned” report highlights several challenges related to this type of access to justice research including, the inability to contact claimants, limitations related to the currency and completeness of court records and difficulties extracting an appropriate sample of cases. As a follow-up to the findings in this report, the CFCJ has produced a fact sheet that provides an overview of some of these challenges and recommendations for improvements. “The Data Deficit: The Case for Improving Court Records for Future Access to Justice Research” fact sheet is posted on the CFCJ website here.
The Canadian Forum on Civil Justice, in consultation with the Rural and Remote Access to Justice Boldness Project, has created an infographic based on some of the key findings from the Rural and Remote Access to Justice Literature Review. This infographic provides an overview of the unique access to justice challenges experienced by Canadians in rural and remote settings and presents several recommendations for improving access to legal services and information in rural and remote areas. The Rural and Remote Access to Justice infographic is published here.
Much of the work that is being done to improve access to justice for Canadians comes down to access to justice advocates. As a part of our efforts to highlight the diverse range of individuals working across the access to justice landscape, the Canadian Forum on Civil Justice is resuming our Access to Justice Advocates series, a vlog that presents profiles of people who bring unique perspectives and make valuable contributions to the issue of access to justice in Canada.
We are thrilled to resume our Access to Justice Advocates series with Marian MacGregor, Adjunct Faculty Member at Osgoode Hall Law School and Clinic Director at the Community & Legal Aid Services Programme (CLASP).
CLASP is a legal clinic located at Osgoode Hall Law School that provides free legal assistance to persons with legal problems who cannot afford a lawyer. CLASP was established in the 1960s and since then, they have helped myriad low income Torontonians with problems related to Family Law, Criminal Law, Employment, Human Rights, Criminal Injuries, Compensation and Disability. As Clinic Director at CLASP, Marian MacGregor sees firsthand the access to justice challenges that many Ontarians face. She is very passionate about her work in the community legal clinics system and recently, we sat down with Marian to discuss her motivation, her work at CLASP and, some of the pervasive access to justice issues that she’s encountered.
View our full interview with Marian MacGregor here.
The Legal Health Check-Up (LHC) project that was developed by the Halton Community Legal Service (HCLS) is expanding to an additional twelve community legal clinics in southwestern Ontario. The new clinics include: the Chatham-Kent Legal Clinic, Community Legal Assistance Sarnia, Elgin-Oxford Legal Clinic, Huron-Perth Community Legal Clinic, Justice Niagara, Legal Assistance of Windsor, Neighbourhood Legal Services (London and Middlesex) Inc, Waterloo Region Community Legal Services, Windsor-Essex Bilingual Legal Clinic, Hamilton Community Legal Clinic, Legal Clinic of Guelph and the Brant Haldimand and Norfolk Community Legal Clinic. The clinics in Hamilton, Brant and Guelph have been developing their own LHC projects since late summer 2015. These three early adopters have made great progress in establishing partnerships with intermediary groups and in developing collaborative arrangements with them. The other nine began their work with an ‘innovation lab’ meeting on January 29, held at the McMaster Innovation Park in Hamilton. Participants from the Halton, Hamilton, Guelph and Brant legal clinics shared their experiences with the nine new adopters. Some of the main topics of discussion included: recruiting intermediaries, monitoring and data collection and using the LHC questionnaire.
The expansion of the LHC is part of the LAO Transformation Process which is designed to strengthen the capacity of community legal clinics. It is also anticipated that the expansion of the LHC approach will create an exciting learning environment over the coming year. The LHC approach that was developed by the HCLS is not a template to be replicated as is but, rather, a model to be adapted to the service delivery environment in each of the individual clinics. The expansion should encourage innovation and creativity rather than imitation. Each of the twelve adopting clinics will develop their own approach within the goals that define the fundamentals of the LHC approach, which can be summarized as: achieving greater outreach, increasing the numbers of people served and, devising holistic and integrated approaches to meeting the legal needs of the poor. The implementation process in the adopting clinics and the continuing work in Halton will create a wealth of comparative information. This body of knowledge will address the different ways in which the clinics produce broadly similar outcomes, including the serendipitous discoveries and unanticipated consequences that arise from any implementation process. Giving credit where it is due, this is a wise investment in innovation by Legal Aid Ontario which will enrich the LAO community clinic system and legal aid in general.
The Legal Health Check-Up Project (LHC) developed by Halton Community Legal Services (HCLS) is pioneering an intermediary partnerships approach to legal aid delivery. The LHC form is a tool for Halton’s community-based intermediaries to identify and respond to everyday legal problems experienced by their clientele.
Legal problems are identified during the course of standard interactions between intermediary partners and the people they provide service to as a part of their professional mandate. These exchanges may occur in a variety of settings, for example, a church carrying out its pastoral work, a regional family health service, an employment service or a multicultural services agency. In addition to problem spotting, intermediaries also refer clients with justiciable problems to legal clinics. During the pilot phase of the LHC Project the roles of intermediaries developed to also include a variety of tasks with HCLS aimed at addressing clusters of multiple legal and non-legal problems.
There is a natural and logical basis for the partnerships between intermediaries and HCLS. Through discussions with clinic management and staff, and community residents, intermediaries gain exposure, understanding and a greater perspective of everyday legal problems, in particular as relates to the ways that legal problems derive from life’s everyday problems. Conversations surrounding these types of problems often arise during encounters with intermediary organizations.
Additionally there is increased awareness of problem clusters and the manner in which non-legal and legal problems combine in seemingly intractable ways. On a practical level, there is an understanding that there is help available for the intermediary/service provider from the clinic when there are legal aspects to the problems that they are trying to solve for their clients. Intermediaries often come to the realization as well that legal problems are not exclusive to the domain of courts and lawyers but rather, they are a part of daily life and, by extension, the areas in which they work and provide assistance. The intermediary partnership approach is a means of outreach t that assists with legal aid delivery.
Outreach has increasingly become recognized as an important tool that contributes to identifying legal problems experienced by the general public, and for addressing legal needs. This approach is based on findings from present-day legal problems research that indicates a high prevalence of serious legal problems among the public that are often not recognized as legal in nature, and for which individuals do not seek help until the situation escalates.
The partnership approach also contributes to the integrated and holistic nature of the HCLS delivery model, two facets of legal aid delivery that are now recognized as essential for the legal needs of the public to be met effectively. Achieving this means that clinic lawyers and community legal workers have to become what one intermediary described as “a new kind of lawyer,” one who is prepared to go beyond the law to understand the complexity of poverty and deal with the reality of the lives of the disadvantaged. Intermediaries, particularly bureaucratic service providers, have to move beyond the single mandated service orientation with which the poor are constantly confronted, toward an openness to address a wider breadth of problems, and to offer help.
Following the pilot phase of the project, the LHC is moving in both internal and collateral directions. Internally, more intermediary partners are being brought into the network of access to justice services that are increasingly available through the LHC project. In addition, a web-based, supported self-help approach is being developed to assist both intermediaries and the larger numbers of clients requesting assistance.
The HCLS model is being adopted by three neighbouring clinics: in Hamilton, Guelph Wellington and Brant Haldimand Norfolk. Rather than simply replicating the model developed by the Halton clinic, these three clinics recognize that innovation necessitates more than simply adopting the Legal Health Check-Up in a box. Instead they are adapting the project to their respective communities and needs. The key is not the LHC tool but rather the conversation that the tool initiates between intermediaries and clients.
The Legal Aid Clinic of Guelph and Wellington County is concentrating on developing intermediary partnerships in the more rural parts of the service delivery area. This is an important challenge. Developing partners in less resource-rich rural areas is a critical aspect of extending the reach of legal aid. An initial idea is to build supported partnerships with well-connected individuals in the area as well as with service organizations. In Guelph and Wellington the focus is also on developing a seamless approach that allows for the exploration of different avenues to combat poverty and effect real change. In addition, the Hamilton Community Legal Clinic is working on establishing more community relationships with intermediary partners as a means for smoother and more consistent service delivery. Hamilton has also emphasized the need to develop more integration among intermediaries. This move lends itself to a strong network of access to justice services and, better access to these services overall, a primary goal of other clinics. The Brant Haldimand Norfolk Community Clinic, like the other clinics, is developing relationships with community-based intermediaries. They describe the ideal approach as one that entails being with the client from the initial point of contact to a point where they have made significant steps toward getting the assistance that they need – the essence of a different kind of lawyer.
The expansion to the three neighbouring clinics promises an important new step in the learning process. As mentioned above, HCLS will continue to develop and refine their model. The Hamilton, Guelph Wellington and Brant Haldimand Norfolk legal aid clinics will undoubtedly develop a wealth of knowledge as they explore legal needs and community capacity in their respective communities. The exchange of information and the lessons learned among the four legal aid clinics will add an important dimension to the development of the intermediary partnership/legal health check-up approach and expanding access to justice.
The Canadian Forum on Civil Justice is thrilled to have partnered with the Rural and Remote Access to Justice Boldness Project to produce “Rural and Remote Access to Justice A Literature Review”. This seminal document presents an extensive look at the current trends, gaps in research, and promising practices in legal service delivery related to rural and remote areas. Additionally, this review explores how “rural and remote” is understood, the access to justice challenges and opportunities in rural and remote areas, compared with their urban counterparts, and the types of issues experienced in rural and remote communities in different provinces and countries.
The Rural and Remote Access to Justice Literature Review is accessible in full here.
The Organisation for Economic Co-operation and Development (OECD) has begun examining the potential of legal aid to help reduce poverty and, more broadly, its impact on economic development. The OECD recently convened two expert roundtables on equal access to justice— the first meeting focused on research and literature relating to various aspects of the cost of justice and the costs of inaccessibility to legal aid and services. CFCJ Chair, Dr. Trevor Farrow gave an access to justice presentation at the first roundtable on October 7, 2015; the details of Dr. Farrow’s presentation were included in the CFCJ’s October Newsletter The second meeting, held on December 1, 2015, focused on the reach of legal aid in different countries, its impact and other factors affecting the role of access to justice in poverty reduction. Dr. Ab Currie, Senior Research Fellow at the Canadian Forum on Civil Justice, attended the expert roundtable held in December. The December meeting was also attended by Canadian Forum on Civil Justice Board member, Dr. Melina Buckley, who was representing the Canadian Bar Association. Below, see some thoughts from our Senior Research Fellow, Ab Currie, on the OECD meetings and their approach to access to justice.
This new level of discourse on access to justice by the OECD, and a potential move towards increased support for programs that improve access to justice is very encouraging to the global A2J community There is a large body of empirical evidence that demonstrates that disadvantaged and poor members of society benefit from legal assistance., Nonetheless, as Alan Houseman and Eliza Minoff point out (The Anti-Poverty Effects of Legal Aid, Public Welfare Foundation, 2014), research must go beyond studying case outcomes in order to understand the impact of legal services on the poor. Many current discussions about access to justice propose a shift in our collective thinking about how people access legal information and the way in which legal services are delivered so that they can offer more and wider-reaching benefits for disadvantaged people. This means that building a business case for legal aid is not a straightforward process. Additional research will be needed to determine the impacts and reach of new forms of legal aid, in particular as affect the poor and broader economic growth. . Proponents of access to justice will have to build the political case as well as the business case. With the OECD’s increased involvement in the global discourse on access to justice, it is anticipated that they will be able to play a role in the development of the innovations in legal aid that will be required.
The OECD has embraced a people-centred approach and narrative in addressing access to justice problems and services. They are primarily focused on the point of view of people experiencing problems and interacting with justice systems rather than the point of view of the justice system itself. This approach to understanding legal need will provide organizations such as the OECD, that are taking a fresh look at the problem, with a framework that underscores the essential role of innovation for expanding access to justice services.
Drawing on social lab theory, design thinking, and communications theory, a2j dynamo Nicole Aylwin led a diverse group of family-justice-system stakeholders through 2 days of brainstorming and prototyping, all with minds set on improving the experiences of clients in the family justice system through strengthening the networks between service providers.
By the end of the workshop, we had identified 2 promising pathways for further work.
The paths themselves are not unique to our jurisdiction: over the course of 2 days, family-justice-system stakeholders agreed that we have #advicemaze problems and #courtformsproblems.
What 2 days of #a2jInnovationBootcamp with Nicole shifted was our perspective on how to approach #a2jproblems TOGETHER. Our biggest take homes:
A 1-way street approach (i.e. 1 solution developed mainly with service provider needs in mind) isn’t the only approach;
A 2-way street approach (i.e. solutions – plural – that are developed by incorporating the perspectives and input of users of the system throughout each step of the process, including testing!) can be more useful when it comes to #a2jproblems;
It is important to give small solutions a go; and
Failure is a-okay, and potentially even a useful learning tool.
We are grateful to Nicole, and to all of the individuals who took time out of their busy schedules to attend our lab, especially to our former-family-justice-system user who bravely joined our group and very generously and openly shared her knowledge and experiences. We are also grateful to the Yukon Department of Justice, Court Services branch for supporting this experimental and experiential learning event!
The Law Society of British Columbia, the Canadian Bar Association, and the Chief Justice of Canada all agree – there are serious deficiencies with access to justice in this country. Nearly 12-million Canadians will experience a legal issue within the next three years, and approximately half of them will attempt to solve these problems on their own, with little or no legal assistance.
The implications of this for Canadians form the basis of studies like the Canadian Forum on Civil Justice’s Cost of Justice Project. Nonetheless, in the national conversation about access to justice, we tend to focus on the limited availability of legal aid for criminal and family litigants. This is indeed a serious problem, but it is surprising how little attention is focused on business law, an area where (at least in British Columbia) there is no legal aid at all.
Small businesses will, almost by definition, experience some legal issues in getting off the ground. Business owners, however, tend to get less sympathy than other individuals. Those who are in business, we assume, will have sufficient income to cover their legal expenses. Sadly, this assumption is often incorrect. Many aspiring businesspeople are living in poverty, and the complex web of rules and regulations imposed upon new startups can prevent talented people from going into business in the first place.
Fortunately, there is an opening for law students to become part of the solution.
“There is no question that now is the time to look to Canada’s law students to help meet the growing gaps in access to legal services,” wrote Nikki Gershbain, the national director of Pro Bono Students Canada. “Law student pro bono not only helps ordinary Canadians access the legal system, it trains law students to be more sensitive, compassionate lawyers and creates a generation of lawyers primed to using their legal skills to make a difference in their community.”
At the University of Victoria, the Business Law Clinic provides a legal assistance program specifically for small businesses. Although the students themselves are located in Victoria, the Clinic accepts inquiries from around British Columbia. In many cases, the inquiries are simple yet crucial, and a few hours of general research by a law student can mean the difference between success and failure for a new business.
Law students and prospective law students who are interested in being part of the solution can visit the Business Law Clinic’s website, or contact its director, Michael Litchfield, by email at thinklab@uvic.ca.
Jeremy Maddock is a law student at the University of Victoria, and publisher of CharterCases.com, a legal information resource. He can be reached by email at jeremymaddock@hotmail.com.
This article, written by Janet Freeman, Courthouse Libraries BC LawMatters Program Coordinator and Nancy Hannum, LawMatters Program Consultant, charts the growing role of public libraries and public librarians as partners in access to justice. It includes a timeline of recommendations for an increase in legal information materials in public libraries and more training for public librarians, that subsequently shaped the current public legal education and information service in BC’s libraries. This history references the 1975 Law Commission Report, the 1974 British Columbia Justice Development Commission Report, the 1975 Legal information Services Program (LISP), the Public Library Program (PLP) and the Legal Resource Centre (LRC). Read about the success of this unique program and how British Columbia became the first jurisdiction in Canada (and possibly the English-speaking world) to develop an ongoing program to help public libraries provide legal information to the public from Janet Freeman’s and Nancy Hannum’s LawMatters article.
LawMatters at Your Local Public Library; A History of BC’s Program for Public Legal Information and Education in Public Libraries was published in November, 2015 by the Canadian Forum on Civil Justice and is accessible on the Forum’s website here: https://cfcj-fcjc.org/clearinghouse/public-legal-education-and-information-plei
The A2J debate in Canada and the U.S. includes many perspectives on the challenges of accessing a range of legal services and aid, and offers any number of potential solutions. While my role as Communications and Research Assistant with the Canadian Forum on Civil Justice has, in many ways, provided me with an online platform to discuss issues surrounding A2J in Canada and the U.S., and to learn about the many challenges to legal aid service delivery, on October 1st and 2nd, the inaugural Innovation and Access to Justice Conference provided me with an entirely different platform to engage in conversations surrounding A2J issues: social labs, workshops, panel discussions and one-on-one, in-person dialogues.
Of the many burning questions I sought answers to, one in particular stood out. Before leaving for the conference, a man at the subway station asked me for directions. Normally, I respond with the best directions that I can and go on my way. This time, however, I struck up a conversation with him. I soon learned that he was traveling from Toronto to Barrie to support a friend in court. By way of justification for his travel, he added, “what are you going to do? He’s a friend.” The question at the forefront of my mind as the Innovation and Access to Justice Conference got underway stemmed from this conversation at the subway station: why is going to court so stressful that someone would require support from a friend? I wanted to know how the dispute resolution system can be changed so that Canadians engaged in disputes might be able to resolve their problems before going to court. And, in circumstances where court is necessary, how can the process be made less stressful and more informative?
The Innovation and Access to Justice Conference provided an opportunity for lawyers, researchers and A2J stakeholders from all over the country to share information about initiatives aimed at resolving access to justice issues. The conference was also a forum for discussion, and a source of inspiration stemming from A2J practices being used by other jurisdictions, provinces and countries. The message was clear: organizations are designing creative and user-focused ways of implementing new ideas in the Canadian legal landscape. Over the span of two days in Montreal, I learned first-hand how Canadian organizations are incorporating innovation in their respective provinces and into the justice system.
Two organizations in particular, MyLawBC and the Legal Information Society of Nova Scotia (LISNS), have looked to inspiration outside of Canada and successfully integrated it into their respective provinces.
Recently, MyLawBC, a website funded by the BC Legal Services Society and designed to help individuals work through their legal issues, partnered with the Hague Institute for the Internationalization of Law (HiiL) to create their own version of the Dutch Rechtwijzer (“Signposts to Justice”). The purpose of the website is to create a guided pathway for users— a roadmap for diagnosing a legal problem and determining an appropriate solution by answering a series of questions.
The website, to be released early next year, is designed the same way as Rechtwijzer – users can create their own separation agreements and communicate with other parties through an online chat function while they do so. Rechtwijzer currently offers mediation and adjudication for a fee if users get stuck on an issue. MyLawBC won’t offer mediation and adjudication services at the outset but it could be implemented later on if the website is successful.
The first round of user testing for this new initiative took place in February of this year followed by a second round of testing this past summer. Although MyLawBC has learned from Rechtwijzer that a guided pathways website for family law disputes does work, the user testing was completed to ensure that the website would function in the same way in British Columbia. Taking that into consideration, it remains to be seen how British Columbians will react to MyLawBC’s new website. People have different preferences with regards to how they receive and access legal information. This initiative by MyLawBC provides a viable alternative in the online world. By centralizing the information and resolution process, MyLawBC has created a stress-free system for users. If parties are able to determine their own legal solutions, then there will be little need for them, let alone their support persons, to resolve the issue in the courts. For the man traveling to Barrie, this could mean that he might not have to make the trek to support his friend in court at all.
Similarly, the LISNS has looked abroad for innovative strategies that can be adopted to help to increase its influence in Nova Scotia. They have drawn inspiration from English legal practice, McKenzie Friends, as well as the Court Navigator Program in New York State courthouses.
LISNS has taken a different approach to improving the dispute resolution process. Unlike MyLawBC, the programs being implemented in Nova Scotia assist people who will be going to court. In this way, the LISNS addresses the difficulty with which people resolve their legal problems through the legal system. For LISNS, it has not gone unnoticed that there is an increasing number of people representing themselves in court, for whom a support person can provide emotional support, if not, some minimal legal support.
Courts are often inaccessible both physically and due to a number of barriers, ranging from language to cost. MyLawBC and the LISNS have seen some success at adopting and adapting innovative foreign practices into the Canadian justice system landscape, which have provided important benefits for Canadians. These successes offer proof that there are ways that the dispute resolution system can be changed to become less stressful, more informative, and also offer alternatives to going to court.
The global legal aid study will collect information by means of a general questionnaire that is structured to accommodate for significant differences in the social environments and justice systems of countries, and the differences among jurisdictions, within federal states such as Canada. Further, the focus is more on how legal aid supports access to justice than on a descriptive account of operations and services. Ab Currie, Senior Research Fellow at the Canadian Forum on Civil Justice, was invited to be one of the respondents for Canada. The results of the global legal aid study will be summarized on the CFCJ website when they become available.
We all know someone who is divorced, divorcing or thinking about it. For most, it is a profoundly unpleasant emotional experience. While it is important to recognize that a divorce is a complex process involving a vortex of emotions, a divorce is also a legal process. For couples looking to “uncouple,” the traditional legal dissolution of a marriage presents many difficulties including high costs and time-consuming procedures. Fortunately, the recent emergence of online divorce services such as Wevorce, indicate that the process of obtaining a legal document which declares an end to one’s marriage may be more difficult than necessary.
Before delving deeper into the philosophy behind Wevorce, it is worth noting that this upsurge in online divorce services has come at a time during which there has been a call for reform in legal services and accessible justice. In Canada, the Final Report of the Action Committee on Access to Justice in Civil and Family Matters has brought attention to the need to implement change in the area of family law. The report makes several specific recommendations for improving the family justice system such as employing less adversarial resolutions and taking more holistic approaches to legal issues. In response to these calls for reform, several innovative projects are attempting to rethink the family justice system in a way that puts the user at the heart of the experience. For example, the Winkler Institute’s Family Justice and Mental Health Social Lab aims to develop a prototype that will benefit clients in the family justice system who have low incomes and mental health issues. Against this backdrop, Wevorce –a San Francisco-based company that is a leader in the online divorce services industry— offers an interesting and innovative model that rethinks the way family justice can be provided in divorces.
Wevorce was launched in 2013 with the purpose of settling divorces without hefty legal fees and custody battles. The site uses computer software to engage couples in online alternative dispute resolution with lawyers and other professionals to promote more amicable divorces. Wevorce primarily uses technology to make the process more convenient. Instead of meeting for negotiations and planning, spouses can simply log on to their iPads, computers or smart phones to virtually interact with their Wevorce team. These arrangements are particularly geared towards spouses who are living in different areas. With this unique platform, Wevorce situates itself, and is able to compete with four prominent divorce service websites in the United States. It is one of the least expensive options. The following information was taken from the Wevorce website:
$ DIY Divorce. This option is the cheapest way to divorce. If you have been married for a very short time, perhaps fewer than four years, have no children, do not own any property, have very few marital assets and agree with your spouse on pretty much every aspect of your divorce, you can probably get away with a do-it-yourself divorce and pay only the filing fees. Typical costs are less than $500 per couple. Some courts have inexpensive DIY packets you can purchase that include detailed “how to” instructions from how to fill out the paperwork with your agreements to waiting periods to the process necessary to finalize the divorce, though many people find the number and scope of forms dizzying.
$$ Mediated Divorce. Professional mediators charge an average of $300 per hour, per couple. If you and your spouse have only a few issues to hammer out, you may need only one or two mediation sessions. Couples with more complicated estates or child residential schedule issues will need more time with their mediator and will pay more. Typical costs are $2,500 to $5,000 per couple.
$$ Wevorce Divorce. Wevorce couples pay an upfront fee and receive a shared attorney-mediator and access to a team of professionals, including financial and parenting experts. Depending on your situation — the length of your marriage, your parenting situation, the size of your marital estate, the number of sticking points between you and your spouse — you will pay between $3,000 and $15,000 per couple, for a Wevorce divorce. The typical cost is $4,500 per couple.
$$$ Collaborative Divorce. Cheaper than a traditional litigated divorce, the collaborative divorce still includes two attorneys and allied team professionals, so it is a more expensive option than a mediated or Wevorce divorce. Typical costs are $15,000 to $25,000 per couple.
$$$$ Adversarial (Litigated) Divorce. Typically, this divorce is the most expensive. The average adversarial divorce in the U.S. costs between $20,000 and $40,000 per couple. However, these costs can rise dramatically for couples with high levels of conflict. Consider that each attorney will charge an average of $350 per hour and then factor in the time it takes each attorney to prepare for the initial hearings, conduct a formal discovery process, attend meetings with the other lawyers, gather expert opinions, draw up a settlement and come to a formal agreement (Read the full text from the site here).
In the article, New Website ‘Wevorce’ Eases Grueling Divorce Process, ABC News explains that “[although Wevorce]… can’t save your marriage, they can save you time and money” – a message clearly relayed by these comparisons. The company’s co-founders, Michelle Crosby, a former lawyer, and Jeff Reynolds, a marketing executive, created a 5-step process which make this a reality.
In the Wevorce model, divorcing couples come together under the direction of a lawyer-mediator, known as a “Wevorce Lead Architect.” The Architect is responsible for organizing meetings with financial, mental health and parenting experts. This process is generally tailored to each couple’s individual needs. For instance, couples with children will be guided through a process of developing their own estimate of how much each aspect of childcare will cost. In “Foundation Building Meetings,” couples are paired with specialists to learn how to communicate better and maintain peaceful interactions In “Parenting Planning Meetings” couples learn about creating a healthy family environment for children and, in “Financial Mapping Meetings” couples assess and separate family assets. For those with special circumstances for example, couples going through a divorce while one partner is in the military, or parents of children with special needs, there are separate programs, guides and experts available to assist with overcoming case-specific challenges. At the program’s end, couples are involved in “Document Prepping” to ensure that the final agreement is up to legal standards and they are also assisted with the filing of any court papers, if needed.
From an access to justice standpoint, there are clear benefits to using Wevorce. As aforementioned, Wevorce’s technology component saves time and money which is significant bonus for busy or middle-class families. Moreover, Wevorce enables individuals to take more control of their divorce which would normally be a largely lawyer-controlled process. Participants are more aware of where their case stands, where it is stuck and what steps remain. Finally, the ability to involve other professionals is the perfect example of the multi-dimensional approach to delivering access to justice, suggested by the Action Committee on Access to Justice in Civil and Family Matters. Instead of segregating the legally relevant matters, other unavoidable aspects of a divorce are simultaneously dealt with, including concerns about parenting and sustainability.
The Wevorce solution is not flawless. For example, the cost of divorce is going to vary depending on each marital situation and as such, Wevorce cannot be a solution for everyone, particularly given that, as previously mentioned, the average cost of a “wevorce” is $4500. Additionally, the program requires couples’ willing participation and would be inappropriate for victims of domestic violence or those who do not feel safe in the presence of their spouse and need the protection of the legal system.
Nonetheless, Wevorce still brings accessible justice one step closer and stands as a paradigm of change. Wevorce may have its shortcomings but its founder leaves great advice for any justice stakeholders looking to implement new ideas and change the landscape of legal services: “Swing for the fences.”
Recent reports have underscored the importance of innovation and imagination to the pursuit of access to justice. At the Canadian Forum on Civil Justice, we understand that such efforts come down to people – to advocates. In an effort to spotlight the diverse range of individuals working across the access to justice landscape, we are pleased to present the Access to Justice Advocates blog series. Each month we will profile someone who brings a unique perspective and makes a valuable contribution to the issue of access to justice. Do you know an access to justice advocate? Let us know at communications@cfcj-fcjc.org.
Fiona MacCool is the Project Manager of Your Legal Rights, an online resource produced by Community Legal Education Ontario (CLEO) to provide free legal information for people in Ontario. Fiona was previously the Project Manager of CLEONet, a precursor to Your Legal Rights. For over 10 years, she has worked as an IT project manager, software trainer, and web content developer. Fiona is passionate about helping non-profit organizations take advantage of the cost-efficient and time-saving power of the Internet to support community partnerships, share resources, and make a difference.
The Canadian Forum on Civil Justice visited the CLEO offices to speak to Fiona MacCool about her work on Your Legal Rights.
The website, which is funded by the Law Foundation of Ontario, provides practical, easy-to-find legal information produced by approximately 300 organizations across the province. Fiona discussed the importance of the Internet as a tool for getting information into the hands of people who need it the most in a tradition of transparency and justice. Your Legal Rights has become the hub for legal information in Ontario, not just service providers – demonstrating the power of the Internet in providing greater access to justice.
The full length version of the interview can be found here.
The CFCJ is pleased to announce the launch of the national Access to Justice Research Network (AJRN), an interactive and participatory online network of access to justice researchers in Canada. Coordinated by the CFCJ and supported by a generous grant from the Law Foundation of BC/Legal Services Society Research Fund, the AJRN creates a vibrant space for discussion, collaboration, and coordination of research related to access to justice (A2J).
Combining a listserv and website, the AJRN allows users to easily exchange resources, including scholarly articles, key research findings, case commentaries, best practices, policy reports, etc., while also creating an active online space for discussion and debate on A2J issues. ARJN members are invited to circulate and discuss A2J resources and research via the AJRN listserv (see below for how you can join the listserv), this material will then be posted to the AJRN website where it is organized by topic, region, and type of resource. Using this two-pronged approach the AJRN aims to create a “clearinghouse” of research, reports, policy documents, and news items, making the latest research in A2J easy to find.
Over the next several months the CFCJ will be working with partners from across the country to improve the network and increase the ability of users to share resources and coordinate with one another. We will also be working with the national Action Committee on Access to Justice in Civil and Family Matters to develop ways to use the platform to encourage collaboration and exchange among the emerging local A2J groups, and other justice stakeholders.
The AJRN responds to a growing need for a national online information sharing platform that allows justice stakeholders to quickly and easily share their knowledge of the exciting new access to justice work happening across the country. It will stimulate dialogue and knowledge exchange helping to build ties among access to justice researchers across the country and boost the impact of access to justice resources and initiatives underway in Canada.
To join the access to justice conversation, sign up for the AJRN listserv by sending an email to communications@cfcj-fcjc.org with “AJRN subscribe” indicated in the subject line. Or visit the website at www.ajrn.org.
We are pleased to release the first fact sheet from our national legal problems survey, “Everyday Legal Problems and the Cost of Justice in Canada”.
“Everyday Legal Problems and the Cost of Justice in Canada” is a national legal-problems survey which assesses the frequency and multi-dimensional costs of everyday legal problems faced by Canadians aged 18 years and older. It is an initiative of the Cost of Justice project.
Completed in 2014 with over 3000 respondents, the survey, led by a research team including Trevor Farrow, Nicole Aylwin, Ab Currie, Sabreena Delhon, Les Jacobs and David Northrup, finds that everyday legal problems are ubiquitous in the lives of adult Canadians. These problems typically have a negative effect on the social and economic wellbeing of individuals and their families, which can potentially lead to lost productivity and considerable expense to publicly funded services and programs.
“Everyday Legal Problems and the Cost of Justice in Canada” provides critical, measurable insights about the cost of access to justice challenges in Canada. It is the first Canadian study of its kind to explore what everyday legal problems cost Canadians – not just in dollars, but in time and opportunity costs, costs to their physical and mental health, and costs to their livelihood.
The survey is part of the larger 5 year Cost of Justice project, which examines the social and economic costs of Canada’s justice system. It is guided by two questions: What is the cost of delivering access to justice? And, what is the cost of not delivering access to justice? Comprised of leading access to justice researchers investigating the various dimensions of cost across the country, the Cost of Justice project is producing empirical data that will inform the future of access to justice in Canada and abroad.
The Cost of Justice project is funded by a $1 million grant from the Social Sciences and Humanities Research Council of Canada. For more details please visit www.cfcj-fcjc.org/cost-of-justice.
Recent reports have underscored the importance of innovation and imagination to the pursuit of access to justice. At the Canadian Forum on Civil Justice, we understand that such efforts come down to people – to advocates. In an effort to spotlight the diverse range of individuals working across the access to justice landscape, we are pleased to present the Access to Justice Advocates blog series. Each month we will profile someone who brings a unique perspective and makes a valuable contribution to the issue of access to justice. Do you know an access to justice advocate? Let us know at communications@cfcj-fcjc.org.
Nat Paul is an Ontario Certified Teacher specializing in Inner-City Education and holds a Masters of Arts in sociology and education. He has six years of experience in social justice teaching in secondary, community college and university classrooms, where he has emphasized personal and social transformation through student engagement and empowerment. Nat is currently a Program Manager at Ontario Justice Education Network (OJEN), where he has a special interest in helping teachers create effective, thought-provoking and relevant learning experiences for their students.
The Canadian Forum on Civil Justice visited the OJEN offices to speak to Nat about his work with Ontario secondary school students, and how access to justice issues have influenced his career. Nat highlighted how education can narrow the gaps in access to justice by challenging students on their misconceptions about the legal system and teaching them to recognize the legal dimensions of problems in everyday life. At OJEN, Nat plays a key role in developing educational resources that equip students with the ability to recognize legal problems and their related possible solutions. Most recently OJEN released an Access to Justice game, which featured our very own Advice Maze infographic.
In 2013, British Columbia’s Premier Christy Clark established the province’s Family Day holiday with a throne speech that celebrated the diversity of Canadian families, “large and small; same sex; culturally diverse; foster families and adopted children; new Canadians coming to a new world; a single mother caring for her young daughter; a son caring for his aging father.” As we approach Family Day it is important to reflect on the push and pull inherent in family life, on the reality that with diverse families comes the need for informed supports that appreciate and reflect that diversity.
Whether an individual is dealing with separation, child custody and support, issues regarding property shared with their partner, or violence in the home, various organizations exist to not only provide social and psychological support, but also supports for the derivative legal issues that arise. Familial issues are part of everyday life and often have a legal aspect that isn’t always apparent to most Canadians.
Community Legal Education Ontario (CLEO) is working to help Ontarians recognize and respond to the legal dimensions of family based problems with their resource rich website Your Legal Rights. The site coordinates practical and easy-to-find legal information produced by hundreds of organizations across Canada. In addition to family law matters, the website features information on potentially related topics including criminal law, education law, employment law, housing law and human rights. Your Legal Rights also features news, events announcements and details about upcoming public education webinars.
Ontario’s Ministry of the Attorney General (MAG) also provides free and accessible legal information. MAG’s clear language resources focus on family justice services such as family arbitration and processes for separation and divorce. There is also up to date information about how to access support from Family Law Information Centres and organizations such as the Canadian Paediatric Society.
Legal Aid Ontario provides details about numerous specialized legal clinics. These clinics provide legal information, counseling and legal representation to low-income individuals in need of particular services. These clinics work to reflect the diversity of Ontario’s families by providing services such as multilingual interpretation.
The creation of a more accessible family law system is a work in progress but this Family Day let’s reflect on the great strides that have been made in our province and across the country to reflect the diversity of our families.
On January 28th, 2015, I was glad to partner with the CFCJ to host a panel event titled “The Power of Bilingualism in the Legal Profession.” Osgoode Hall Law School opened its doors to an esteemed group of panelists:
Josée Bouchard, Equity Advisor at the Law Society of Upper Canada
Kelly Burke, Assistant Deputy Minister at the Ontario Office of Francophone Affairs.
I was inspired to promote bilingualism in the legal profession after trying out and then being accepted for the position of French Language Oralist for the Laskin Bilingual Moot. During this process, I was made aware of the difficulties that the law school had faced in terms of finding French-speaking students to fill this role. A shortage of French-speaking law students translates into a shortage of French-speaking legal professionals. This is unacceptable in a province where the citizens have broad rights to access justice in French (for more on French language rights in Ontario, see the 2012 Access to Justice in French report from the Ontario Ministry of the Attorney General.)
In addition to improving access to justice, in Canada, bilingualism opens many doors for legal professionals. One of my goals for this event was to inspire law students to develop or improve their French language skills, which would in turn improve access to French legal services in the legal profession in the future.
The panel offered invaluable insights for law students who hope to practice in French. It began with a discussion regarding how to fulfill the lawyer’s duty to advise clients of their French language rights. Baril reminded students that the ability to present evidence in the client’s preferred language leads to good results and a tactical advantage; Rouleau reinforced this point by emphasizing that testifying in one language above another can shape perceived credibility. When a client whose first language is French is forced to testify in English, this may compromise the testimony and reflect poorly on the client. Unfortunately, requesting a French trial may result in delays, so clients often choose to testify in English to expedite the process.
While Baril warned that practicing in French is difficult, all of the panelists encouraged students to not be intimidated to proceed in French. Although keeping terminology up to date is a challenge, it is well worth it. Baril explained that being a French speaking litigator broadened his exposure and experiences, providing him with major opportunities in Washington and China. Justice Rouleau spoke to the demand to French language skills in the common law market, asserting that his skills gave him cross practice experience and made his career. Burke addressed public practice, stating that French language opportunities are plentiful. By leveraging her skills, she was able to advance and inform French language services. Bouchard emphasized the importance of links to the Francophone community in terms of networking opportunities that open up for French-speaking lawyers.
The panel event concluded with some practical advice for students, including a personal anecdote from Justice Rouleau that gave students a good reason to resist using Google Translate: the judge reminisced about receiving a document from a lawyer with his name listed as “Justice Roll”, a literal translation of his name from French to English. He was thoroughly unimpressed.
Bilingual skills are in demand in Ontario’s legal profession and having the skills to fill this demand will not only improve access to justice but will also enrich your legal career. For more information about pursuing bilingualism in your practice, be sure to check out the many resources mentioned during the panel discussion including: AJEFO, the Law Society’s numerous student oriented events and French Professional Development Programs as well as the various ongoing programs, events and crown counsel evaluation available through the Ontario Ministry of the Attorney General.
Natalie Livshitz is currently a student in her last year of the joint JD/MBA program at Osgoode Hall Law School.
In November, The Homeless Hub, a web-based research library and information centre at York University, released The State of Homelessness in Canada 2013. This report details how factors such as declining wages, reduced benefits, and shrinking availability of affordable housing are driving an increase in homelessness in Canada. Some of the statistics are shocking:
35,000 Canadians are homeless on a given night;
13,000 – 33,000 Canadians are chronically or episodically homeless;
Over 235,000 Canadians experience homelessness in a given year.
Access to adequate housing is a necessity of life that many people in Canada are lacking. The report emphasizes the need for “housing first” and moves to address the links between homelessness and related hardships. The report also discusses how homelessness does not discriminate – it does not exclusively affect particular types of individuals or families, though people with mental or physical disabilities are disproportionately affected.
Surprisingly, almost 1 in 5 households will experience housing affordability problems. Over the past 25 years, federal spending on low-income housing has decreased while rates of homelessness have risen by nearly 30%. The report estimates that in the last 20 years, construction of 100,000 housing units were cancelled due to funding cuts to key building programs. Many families that could have been helped have been left on the streets.
Homelessness propels individuals through a range of public systems with typically unsatisfactory outcomes making it a social as well as an access to justice issue. According to The State of Homelessness, “we are failing low- and middle-income earners who are unable to purchase a home. What we do not pay in housing costs we pay for in health care, social services, child welfare, corrections, etc.” Early investment or social investment benefits individuals and public systems alike (for more information about social investment please see this paper from our 2012 roundtable series which featured Homeless Hub Director, Professor Stephen Gaetz). Front-end support ideally enables an individual to solve the problems of everyday life – many of which, as we know, are legal in nature.
According to The State of Homelessness, every $10 spent on housing and support results in $21.72 in savings related to health care, social supports, and involvement in the justice system. Put another way, an additional 88 cents per capita would secure 8,800 new units of affordable housing and would very likely decelerate the momentum of justiciable, social and health problems associated with life on margins.
In a piece for Slaw from 2013, Kari D. Boyle also underscored the importance of prevention or early, socially oriented investment. Boyle examined triage; a method widely used at legal clinics to sort clients based on their circumstances and needs. Drawing from the David I. Shulman et al. article, Boyle discussed how legal professionals were working in the community to help people identify their legal risks. Through collaboration with other non-legal professionals, a proactive approach to problem prevention was being advanced.
The State of Homelessness in Canada 2013 gives a comprehensive picture of a national crisis while underscoring the key principle of prevention. The report emphasizes that if and when homelessness occurs, we must move quickly to ensure housing along with necessary support. By linking housing with other, varied forms of social supports the report advances a sustainable response to a critical and multifaceted issue that intersects with Canada’s access to justice discourse.
Do you want to improve or develop French language skills that you can use in your legal career? Are you interested in finding out how leveraging language skills can improve access to justice and enrich your legal career? Join us for a panel discussion on how bilingualism opens doors in the legal profession.
Wednesday, January 28 from 12:45-2:30 pm in the Moot Court (room 1005). A light lunch will be provided.
Recent reports have underscored the importance of innovation and imagination to the pursuit of access to justice. At the Canadian Forum on Civil Justice, we understand that such efforts come down to people – to advocates. In an effort to spotlight the diverse range of individuals working across the access to justice landscape, we are pleased to present the Access to Justice Advocates blog series. Each month we will profile someone who brings a unique perspective and makes a valuable contribution to the issue of access to justice. Do you know an access to justice advocate? Let us know at communications@cfcj-fcjc.org.
Professor Mosher joined the faculty of Osgoode Hall Law School in 2001 after teaching at the Faculties of Law and Social Work at the University of Toronto, where she was also the Director of the Combined LLB/MSW program. Between 2001 to 2005 and 2011 to 2013 she was the Academic Director of Osgoode’s Intensive Program in Poverty Law at Parkdale Community Legal Services. She is presently the Director of Clinical Legal Education at Osgoode and has formerly served as the Associate Dean. Her research has focused on gender violence and legal interventions, access to justice for marginalized populations, welfare policy (welfare fraud in particular), poverty law, homelessness, legal aid, and clinical legal education. Professor Mosher is a member of the Canadian Homelessness Research Network and the Canadian Observatory on Homelessness. She is also a member of the Group Applications and Test Case Committee of Legal Aid Ontario, and formerly served on its Clinic Law Advisory Committee. Professor Mosher is co-editor, with Professor Joan Brockman, of Constructing Crime: Contemporary Processes of Criminalization (2010), and with Professor Joe Hermer, of Disorderly People: Law and the Politics of Exclusion in Ontario (Halifax: Fernwood Press, 2002). She is the co-author of a number of reports including: “Take the Story, Take the Needs, and DO Something: Grassroots Women’s Priorities for Community-Based Participatory Research and Action on Homelessness” (with Emily Paradis, 2012); No Cherries Grow On Our Trees: A Brief by the Take Action Project, A Public Policy Initiative to Address Women’s Poverty and Violence Against Women (with Nora Currie and METRAC, 2008); Welfare Fraud: The Constitution of Social Assistance as Crime (with Professor Joe Hermer, 2005); and Walking on Eggshells, Abused Women’s Experiences of Ontario’s Welfare System (with Professors Pat Evans and Margaret Little, 2004). Recent articles include “Accessing justice amid threats of contagion,” (2014) Osgoode Hall Law Journal, “Human Capital and the Post-scripting of Women’s Poverty,” in Beth Goldblatt and Lucie Lamarche (eds.), Women’s Rights to Social Security and Social Protection (Hart Publishing, 2014), and “Lessons in Access to Justice: Racialized Youths and Ontario’s Safe Schools,” (2008) Osgoode Hall Law Journal.
The Canadian Forum on Civil Justice had the wonderful opportunity to meet Professor Mosher at Osgoode Hall Law School to discuss her work in access to justice. As a researcher and teacher, Professor Mosher spoke to us about conceptualizations of access to justice that stimulate her work, as well as the ways in which the intersection between research and frontline advocacy can play a unique role on the access to justice landscape. Her conceptualization of access to justice redirects access to justice advocacy away from courts and towards broader understandings of justice, power and inequality.
Recent reports have underscored the importance of innovation and imagination to the pursuit of access to justice. At the Canadian Forum on Civil Justice, we understand that such efforts come down to people – to advocates. In an effort to spotlight the diverse range of individuals working across the access to justice landscape, we are pleased to present the Access to Justice Advocates blog series. Each month we will profile someone who brings a unique perspective and makes a valuable contribution to the issue of access to justice. Do you know an access to justice advocate? Let us know at communications@cfcj-fcjc.org.
Dianne Wintermute has been working in the community legal clinic system for over 25 years. Called to the bar in 1986, Dianne has extensive litigation experience representing individuals and disability organizations in cases involving the advancement of the rights of people with disabilities and people living in poverty. She has advocated in various tribunals and all levels of the court, including the Supreme Court of Canada. Dianne joined ARCH Disability Law Centre as a staff lawyer in 2009. Prior to ARCH, she was the Executive Director of East Toronto Community Legal Services from 1991 – 2009. The Canadian Forum on Civil Justice had the exciting opportunity to visit the ARCH offices to chat with Dianne about her work in disability law and her continued dedication to access to justice issues. Dianne brought a unique perspective to our A2J discussion with her extensive experience in dealing with the intersection of law and mental health. Dianne spoke to CFCJ about the changes she believes needs to be made both in and outside of the legal field to target impediments to access to justice, including increasing client capacity, autonomy and decision-making power.
The Canadian Forum on Civil Justice wishes you the very best this holiday season! We look forward to bringing you excited new research and initiatives in 2015.
Lawyers practicing in jurisdictions with multiple trial courts and no unified family court will be aware of the challenges facing litigants without counsel. First there’s choosing the right law, because of the overlapping federal and provincial legislative jurisdiction in family law matters. Then there’s choosing the right court, because of the trial courts’ simultaneous but asymmetric subject matter jurisdiction. And then there’s the question of the courts’ relative degrees of complexity, expense and accessibility, and the extent to which corollary social and legal support services are or are not embedded in the court process.
One obvious solution might lie in amalgamating the trial courts to provide litigants with one court, with easy to understand rules and processes that are proportionate to the nature of the dispute and specific to family law, that is integrated with the relevant social services. This is more or less the approach taken in parts of Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Ontario and Saskatchewan, where there is a single court for the resolution of family law disputes, but it seems to be off the menu in Alberta and British Columbia for reasons that escape me.
The unified family court concept is not a new one. British Columbia initiated a short-lived project in 1974, Manitoba, Ontario and Saskatchewan each launched pilot projects in 1977, and a committee of the Alberta Law Society recommended the establishment of a unified family court in that province in 1968. In fact, the 35th anniversary of the Hamilton Family Court, the first unified family court in Ontario, was celebrated just two years ago.
In essence, unified family courts recognize the special nature of family matters as a distinct area of the civil law and are meant to provide litigants with one-stop shopping, avoid a piecemeal approach to a family’s legal issues, and reduce the likelihood of duplication, delay and harassment through a multiplicity of proceedings. Ideally, a unified family court would have:
limited judicial rotation between other courts, resulting in a dedicated bench with highly developed skills and expertise;
specialized rules that create a simplified process, that provide for only those procedures that are necessary for family law matters, that can adapt to the complexity and importance of an issue, and that can evolve independent of the ordinary civil rules;
both adversarial and non-adversarial dispute resolution processes; and,
social and educational services related to family breakdown integrated into the court system and its dispute resolution processes.
Such a court should improve access to family justice and related social services, and produce outcomes that are better tailored to the needs of the users of the system and their children.
Makes sense, doesn’t it? Here’s the rationale for a unified family court given in Alberta in 1976 by a special committee composed of the province’s Chief Justice, judges from the superior and provincial courts, with representatives from the Law Society of Alberta and what was then known as the Department of the Attorney General:
Family law deals with the problems of husbands and wives arising from the breakdown of marriages. It deals with problems of the protection and support of children arising from the breakdown or lack of family relationships, and the problems arising from the unlawful conduct of children and juveniles. These are among the most numerous and the most serious and important problems with which society must deal, and it is imperative that society provide strong courts and efficient social services in order to deal with them.
The Committee is concerned that the numerous and varied problems affecting families are not being satisfactorily dealt with under the present divided court structure. The fragmented jurisdiction makes improvement very difficult. The Committee is convinced that the time has come when important changes and solutions can be implemented only if a Family Court is created with original exclusive jurisdiction over the entire field of matters affecting the family.
And yet here’s how one commentator, lawyer and academic Michelle Christopher, described the state of the family justice system and the rationale for a unified family court in 2004:
Access to justice has long been a concern to the public, particularly in family law disputes, where parties lack the deep pockets to provide funds to sustain the type of prolonged and costly litigation that is common in corporate and commercial law contexts. … [It] has been argued that family law litigants are at a distinct disadvantage in trying to proceed without legal counsel, because the jurisdiction for family law problems is not limited to one level of court, or in Calgary, even to one court building! The public has long complained, and with good reason, that it is difficult to know whether their matters will be heard in Provincial Court or in the Court of Queen’s Bench. …
The public is not expected to be entirely conversant with issues of legislative jurisdiction, which require federal matters such as divorce to be heard in the first instance in the Court of Queen’s Bench. The Provincial Court of Alberta has jurisdiction to hear all matters of “purely local and provincial concern,” including child welfare and domestic relations (non-divorce, guardianship, custody and access) matters relating to the children of unmarried or never-married parents, or separated parents who are not yet divorcing, except if the proceedings are to establish paternity, in which case the Court of Queen’s Bench has jurisdiction. If you are a grandparent seeking access to your grandchild, your matter will be heard in the Provincial Court. In the case of child support, matters are also heard in the Court of Queen’s Bench, unless you are bringing an application for the reciprocal enforcement of a child support order from another province, in which case you will be heard in the Provincial Court, and so on. You get the picture. Except that it’s totally confusing to members of the public, and does affect access to justice.
Sadly, the complexity of the family justice system has a direct impact on the ability of litigants to proceed without counsel. In a 2014 survey of 167 judges and family law lawyers conducted by the Canadian Research Institute for Law and the Family and two prominent academics, all Alberta respondents said that special challenges always or usually arise because of unrepresented litigants’ unfamiliarity with the rules of court and the law of evidence, and 96.9% said that challenges always or usually arise because of litigants’ unfamiliarity with court processes.
You can read about how these issues compound the other challenges faced by litigants without counsel elsewhere in this blog.
Interestingly enough, although unified family courts are far from perfect, they do in fact generate the results expected of them. According to a 2006 report prepared by the Institute and Nicholas Bala for the federal Department of Justice, most family law lawyers practicing in regions with unified family courts said that they have simplified court procedures, provide easy access to family justice services and produce outcomes tailored to individual needs. What they’re less good at is providing a speedy resolution to family law disputes. This is what the 164 lawyers surveyed said about four key performance benchmarks:
There are, of course, two main difficulties with implementing a unified family court in Alberta and British Columbia. First, both the provincial governments and the federal government need to cooperate with each other to set up the new court and address the jurisdictional issues arising from the merger of a court with statutory jurisdiction and a court with inherent jurisdiction. Second, it can’t cost too much. None of the governments in question are going to be keen about spending money on a family law court even though the national divorce rate is 40.7% and 21.5% of Canadian children live in lone-parent families. Neither problem is, in my view, insurmountable.
In 1978, the Alberta Law Reform Institute published two papers that address the constitutional issues and continues to be relevant, a paper expressing legal opinions on the question of jurisdiction (PDF) and a paper laying out the structure of a proposed unified family court (PDF). In the jurisdiction paper, one of the authors concludes that the provincial Governors General may grant limited appointments to provincial judges to enable them to undertake the functions of federally-appointed judge; this, however, carries with it the concern that the federal government would be responsible for their salaries which is, presumably, a non starter. In the proposal paper, the authors discuss the possibility of the federal government giving provincial judges special limited warrants to exercise some of the powers of a federal judge.
This second idea may be the better solution, as it would preserve the expertise of the provincial court judges who already are partial specialists in family law matters, incorporate them as members of a new court with their federally-appointed peers, and leave their salaries paid by the provincial government. In the current atmosphere of fiscal restraint, I cannot imagine either level of government being asked to commit significant new resources, much less absorb the burden of a boatload of judges currently paid by the other!
Both of the ALRI papers need to be read to get a thorough handle on the constitutional issues. I note, however, the provisions of s. 25 of the Divorce Act, which allow the provinces to “make rules applicable to any proceedings” under the act, including rules:
(a) regulating the practice and procedure in the court …
(e) prescribing and regulating the duties of officers of the court …
(g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act.
These provisions were introduced with the 1985 act and seem to me to extend an authority to the provincial governments that was not available when ALRI’s reports were published in 1978 and may offer further options.
Back to the cost issue for one moment. I strongly suspect that a unified family court will ultimately save more money than what is expended under the current system, even with the costs of an expanded court administration which incorporates a broader range of dispute resolution options and social services added in. If a unified family court promotes the rational, reasonable settlement of family law disputes, it will reduce the number of files headed to trial and the resulting savings over the existing litigation-focussed system will be significant.
At the end of the day, report (PDF) after report (PDF) has commented on the barriers that inhibit access to justice, and prominent among them is the labyrinthine complexity of a judicial system involving two courts with concurrent but incongruent jurisdiction, with different rules, processes and forms. This barrier assumes a new significance in light of the ever-increasing numbers of litigants involved in civil court proceedings without counsel, numbers which represent anywhere from 50% to 80% of the court docket depending on the jurisdiction you’re looking at. A simpler, more streamlined process, with a new and heightened emphasis on integrated social services, managed by a bench of specialist judges, may not be the only or the best answer for family law litigants, but it’s a concept that has proven to work elsewhere and surely deserves to be considered.
According to the website, “the CRT is going to be very different from other dispute resolution options that been available in British Columbia. The CRT will give you choices about how, when and where you resolve small claims and strata property (condominium) disputes.” The CRT is motivated to empower “people to become actively engaged participants in their justice system.”
Beyond merely providing information, the implementation website will allow the public to ask questions and provide comments to the CRT team. The CRT is committed to making the tribunal as easy-to-use and accessible as possible, and encourages the public to get in touch with them through the website. Not only will the site offer updates on the CRT it will also feature expert guest posts – so be sure to check back often.
To learn more about this important work check out this paper from CRT Chair, Shannon Salter. The paper was presented last month at the Osgoode Forum on Administrative Law and Practice in Toronto and the CLEBC Administrative Law Conference in Vancouver.
The scope of the research being conducted by the Cyberjustice Laboratory is extensive. According to the website, there are over 33 projects underway by various researchers affiliated with the Laboratory. The Laboratory’s projects range from the development of new online dispute resolution platforms (more on this project below) to the development of a framework to assess e-justice systems. Each research project falls within one of three broad research clusters, each of which are guided by interrelated, yet distinct, research questions. The first cluster examines digitalization of justice to determine the degree to which it can increase efficiency in the justice system and facilitate access to justice. The second identifies restrictions on digitalization of justice caused by the traditions and practices in place in the justice setting. The third puts the first two into practice by developing new procedural models that combine information and communications technologies while ensuring respect for fundamental rights.
Bachar Daher, an articling student at the Laboratory, was happy to share his experience with me to help shed light on the types of problems that the Laboratory is working to solve. Bachar recalls his early days at the Laboratory, explaining that this was the first time that he was able to practically implement the law and apply it to areas such as technology, psychology, sociology and economics. He explains that the Laboratory’s mission is to improve access to justice in Quebec, in Canada, and internationally, using technology as a facilitator. Bachar describes the Laboratory as an environment where he was granted the freedom, confidence, and autonomy to think outside the box, to experiment, to voice his opinion, and to explore new methods of approaching issues.
The Laboratory’s mission transcends national boundaries and its innovations, advances, and the determination of its team position it on the world stage; it works closely with international organizations, government departments at national and international levels, professional bodies, NGOs, partners and research centers on all continents, as well as the private sector. Altogether, the Laboratory consists of 36 full-time researchers, 70 research students, 20 universities and research centers, and 9 partners.
One example of the Laboratory’s global reach is its project with the World Bank that aims to improve access to justice in Latin American countries. The objective of this project is to examine and implement potential solutions with the end goal of creating an effective network, using technology to improve individuals’ ability to access their respective justice systems. Essentially, the Laboratory uses advances in research and technology developed in Montreal to improve access to justice not only in Canada, but globally as well.
Bachar describes the Laboratory as being a space for reflection and creation where justice processes are modeled and redesigned to better meet the needs of individuals. The team analyzes the impact of technology on justice and develops practical systems adapted to the realities of judicial systems. In other words, the Laboratory is a place of convergence where different actors come together to discuss and challenge proposals, to experiment with solutions, to propose strategies, and to work collaboratively.
The Laboratory’s creation was based on several premises, the primary one being that technological advancements have become increasingly prevalent while the use of computers and networking is not yet fully integrated into the judiciary. Two prime examples are the persistent attachment to paper and the physical presence of all stakeholders at trials. The justice system is also hampered by costs and delays caused by lengthy court proceedings. Fortunately, the rapid arrival and adoption of smartphones and tablets during the end of the last decade helped ease many players in the legal world into the idea of using technology.
When I asked Bachar about barriers to innovation that he has experienced, I was inspired by his response. He explained that he prefers to look at what others may call barriers as being no more than challenges. “Laboratory challenges abound,” he explains. “A very concrete example I can give is that… today, most users expect to use tools that are similar to the gadgets used in their daily lives.” He went on to explain that it is very difficult to conduct ergonomic and behavioural research on the techno-legal and socio-legal impacts of a user interface when gadgets change so rapidly. The Laboratory must be proactive enough to follow the changing trends in technology as they happen.
I find the Lab’s Online Dispute Resolution (“ODR”)initiative, PARLe, to be particularly compelling. This initiative differs from other ODR platforms because it is open source; PARLe is openly available for use, integration, and improvement, to all organizations either already involved in, or hoping to become involved in, online mediation. This type of platform has significant benefits for its users, such as cost savings and convenience. However, there are also important drawbacks, such as the fact that, at the moment, these types of platforms only apply to a limited range of disputes and may be inaccessible to certain individuals. Bachar explains that the Laboratory aims to build an online mediation tool that is tailored to the needs of the judiciary, the litigant, and the legislator. However, he concedes that an online mediation platform should not be viewed as a solution to the challenges of the justice system in itself. Rather, online mediation is a tool that contributes to the creation of a solution.
Bachar illustrates this distinction by analogizing it to the invention of the printing press: “The printing press contributed to the advancement of knowledge because writing became a powerful tool for knowledge transfer. However, writing would lose its power in the context of an illiterate society. Similarly, the success of a platform for online mediation depends on the ability of the broader environment to adopt and use this tool.”
In conclusion, leading organizations such as the Cyberjustice Laboratory introduce effective innovations that allow the broader community to address some of the shortcomings of judicial systems and to improve access to justice. To learn more about the Cyberjustice Laboratory and its exciting initiatives, click here.
This piece originally appeared on the Winkler Institute for Dispute Resolution Justice Innovation Blog.
This past July I was able to sample the views of 167 lawyers and judges attending the Federation of Law Societies of Canada‘s National Family Law Program in Whistler, British Columbia through a survey designed and implemented by two prominent academics and the Canadian Research Institute for Law and the Family. The survey asked questions about participants’ views on shared parenting and shared custody, litigants without counsel, and dispute resolution.
In the course of digesting the resulting data for a report, I noticed something very interesting about the information we’d collected on dispute resolution. We had asked lawyers to tell us the percentage of their family law cases which are ultimately resolved by: arrangements made by the parties themselves; negotiation involving lawyers; mediation; collaborative settlement processes; arbitration; through court with the assistance of a judge at an interim hearing or a judicial conference; or, through court at trial. Here’s what the numbers told us:
As you can see, the lion’s share of cases are resolved through negotiation, primarily negotiation involving lawyers. (If you click on the image, you’ll get a larger, clearer version of this chart.) By region, lawyers reported that their family law cases were settled through lawyer-involved negotiation as follows:
North (Northwest Territories, Yukon): 23.3%
British Columbia: 41.1%
Prairies (Alberta, Manitoba, Saskatchewan): 37.4%
Ontario: 38.7%
Maritimes (New Brunswick, Newfoundland and Labrador, Nova Scotia): 50.6%
The rate of resolution by negotiation in the maritimes is astonishing at more than half of lawyers’ files. British Columbia sits in second place with two out of five files resolved through negotiation, followed closely by Ontario.
Mediation is popular in British Columbia and Ontario, but less so in the north, the prairies and the maritimes, perhaps because of smaller populations or a smaller number of trained mediators:
North: 10.0%
British Columbia: 25.5%
Prairies: 17.9%
Ontario: 24.8%
Maritimes: 10.0%
I was surprised to see relatively low rates of resolution through collaborative settlement processes, as it seemed to me that collaborative processes are more widely used in British Columbia and Alberta, but I wasn’t terribly surprised to see the low rate of resolution through arbitration. Arbitration has been widely accepted by the Ontario family law bar, and is becoming more accepted in British Columbia as a result of it’s new family law legislation; in other provinces arbitration isn’t used at all.
The relatively high rate of settlement through pretrial court processes, however, reflects my own experience as a family law lawyer. Quite often litigation is commenced not because a trial is anticipated but in order to deal with urgent problems, compel document disclosure, signal a party’s sincerity and commitment to a particular position, or move settlement discussions along. Judicial settlement processes, such as Judicial Case Conferences and Settlement Conferences in British Columbia or Judicial Dispute Resolution hearings in Alberta, are extraordinarily effective ways of getting past the stumbling blocks to settlement. Quite often the judge’s considered opinion of the likely outcome or of the merit of a party’s case is enough to modify unreasonable positions and encourage settlement.
By region, lawyers reported that their family law cases were settled by pretrial court processes involving a judge as follows:
North: 33.0%
British Columbia: 25.8%
Prairies: 21.1%
Ontario: 28.2%
Maritimes: 21.6%
Finally, the rates of resolution by trial, which I, and I believe most lawyers, view as an option of last resort, were wonderfully low. The rate of resolution by trial was higher than resolution by arbitration but about the same as resolution through collaborative processes, and only a fraction of the rates of resolution by lawyer-involved negotiation and pretrial conferences. By region, lawyers reported that their family law cases were settled at trial as follows:
North: 4.4%
British Columbia: 10.0%
Prairies: 5.4%
Ontario: 7.6%
Maritimes: 5.9%
Here British Columbia is a surprising outlier with a rate of resolution by trial significantly higher than everywhere else except perhaps Ontario, which had the next highest rate of resolution by trial. However, bearing in mind that the people who need to hire a lawyer to deal with their family law dispute generally have fairly complex and sometimes intractable problems, an overall rate of resolution by trial of 10.0% and 7.6% isn’t bad. Breaking things out by province, however, Alberta had the lowest rate of resolution by trial at 3.8% (what an incredibly low number; that’s less than 1 in 25 of lawyers’ family law files!) and Saskatchewan the highest at 12.9%.
These numbers are very reassuring. They suggest that family law lawyers emphasize dispute resolution processes other than trial in their practices, and tend to resolve their files primarily through lawyer-involved negotiation, judicial conferences and mediation. The relatively low rates of resolution through collaborative processes are explained, I think, by the facts that collaborative practice is well established in some provinces but is still developing in others and that not all family law disputes are amenable to this sort of intensive, dialogue-based process. The low rates of resolution through arbitration are explained by the different legislative treatment of non-commercial arbitration across Canada and the legal cultures that have developed as a result. In Ontario, arbitration is widely accepted and entrenched in family justice; in British Columbia, however, arbitration has just moved onto the scene as a result of its new family law legislation.
From an access to justice perspective, these numbers suggest that people are better able to afford counsel to manage their cases from start to finish as so few cases wind up being resolved through costly trials. However, you have to be able to afford counsel to begin with to enjoy the luxury of resolution other than by trial, and, as we know from research previously published by the Institute, settlement short of trial is significantly less likely in cases where one or more parties are without counsel than if all parties are represented by counsel.
At the end of the day, these data reflect very well on lawyers’ approach to their clients’ cases. However, clients must still be able to afford the services of counsel or they will, more likely than not, face the trial counsel would have helped them avoid.
A note about the data
The greatest number of responses to this question were received from Alberta (about 28 on average), British Columbia (about 38) and Ontario (about 13); all other provinces and territories yielded 10 or fewer responses. As a result, I have lumped the data together by region in an effort to produce more meaningful numbers, giving responses as follows:
North: range of 5 to 6 respondents
British Columbia: range of 5 to 41
Prairies: range of 35 to 44
Ontario: range of 11 to 15
Maritimes: range of 13 to 16
The survey received no responses from judges and lawyers practicing in Nunavut or Prince Edward Island. A small number of responses were received from Quebec practitioners; I have excluded these responses on the ground that Quebec’s civil law system is not readily comparable with the common law system used throughout the rest of Canada. This piece originally appeared on Access to Justice in Canada.
The Legal Health Check-Up project, being developed by the Halton Community Legal Clinic, is moving out of the planning phase and into the field. Now that training for the seven intermediary partners in the use of the Check-up tool has been completed and the research instruments have been developed, the project is entering a preliminary phase in which data will be collected for three months or until three hundred Check-up forms have been completed with the assistance of intermediaries and submitted to the clinic for intake. The three hundred completed forms should provide sufficient data to assess the implementation phase of the project, to detect unanticipated issues and to make course corrections. That number of clients flowing in through the check-ups administered by intermediaries is intended to be small enough so that service can be provided to all new clients without undue strain on the capacity of the clinic while providing sufficient data to assess the early implementation of the project. It was decided early on in the planning that no part of the project would be for research only.
This phase of the research will allow the project team to collect data and carry out analysis to address several critical questions. How effective is the legal health check-up tool in identifying everyday legal problems? How closely do the everyday legal problems identified by people through the Check-Ups translate into actionable legal problems assessed at intake? Does the Check-Up process allow the Halton clinic to move the service “upstream”, identifying problems before situations become critical? How will the different intermediaries interact with clients and how will this affect problem identification? To what extent will the Check-Up tool allow the Halton clinic to extend its reach beyond its current clientele, into the hidden need of people marginally above current legal aid eligibility but still experiencing legal need with the same urgency as existing clients?
The Halton Legal Health Check-Up project is responding to the unmet need documented in the legal problems research and long experienced by service providers. By partnering with intermediaries to extend the reach of legal aid the Legal Health Check-Up project is moving from being reactive to the expressed demand that manifests as requests for service to proactively identifying unmet need, the Halton Legal Health Check-Up project is responding to the unmet need legal problems research has documented and has long been the experience of service providers. Following the preliminary phase, the Halton pilot will continue to gather a larger body of data that will provide conclusive evidence. Importantly, following the preliminary assessment phase in Halton, several LAO legal aid clinics in the Southwest Region will then come on stream with versions of the legal health check-up approach that suit their situations.
These are exciting times for legal aid in the Halton region and in Ontario, responding to the unmet need now well-documented in the research literature with a new and exciting approach. At the same time, long time observers of legal aid will notice that the Halton Legal Health Check-Up project reaches back to the enduring ideals of the legal aid movement from the early days in the 1960’s, especially in the U.S when legal aid was conceived as part of a social justice movement and a key part of an attack on poverty. However, everything old is not new again without the commitment and the energy to continue making it happen, applying new knowledge about the access to justice problem and new ways of addressing it.
In her recently published book, On the Run: Fugitive Life in an American City, sociologist Alice Goffman follows the lives of several young men living in an inner-city community in Philadelphia. Through immersive fieldwork and rich ethnographic detail she illustrates “how fear of confinement has transformed work, health, and family life, causing men to disengage from the very mainstream institutions that might put them on a better path”. While Goffman’s work focuses on important questions relating to the United States penal system, it raises issues that relate to current access to justice initiatives. In particular, it evinces a broader consideration of the links between social inequality, discrimination and legal problems and the effects it has not only on encountering legal problems, but also in resolving them.
In the realm of access to justice work, it is little secret that access to legal representation is a significant barrier. To combat this, many initiatives across Canada have focused on empowering the public to understand the legal aspects of everyday problems and to increase access to legal representation. But as we move forward, it is important to understand the full scope of what these initiatives can bring. In communities that have historically experienced greater police presence or with individuals that have had previous interactions in the justice system, there may be less inclination to engage the legal system in the resolution of their legal disputes. As Goffman noted, distrust and perceptions of unfairness are significant barriers to resolving disputes through the legal justice system. For instance, the existence of a criminal record or being from a socio-economically disadvantaged community was enough to cause many to shy away from navigating their problems within the civil justice system.
Similar sentiments were noted in the Canadian Bar Association’s Access to Justice Metrics discussion paper. The paper was the result of a series of consultations that took place between November 2012 and February 2013 with marginalized communities and individuals most affected by a lack of access to justice. When asked, “what happens when access to justice is denied?” participants spoke about fundamental problems with the system itself – it being “untrustworthy, corrupt and broken.”
In another study that focused on racialized youth in Toronto, participants held that “the law [was] not something that generates entitlements or protections; rather it [was] invoked by those with power against those without.” As a result, many did not even consider using the legal system to resolve their disputes because of the deep feeling of distrust.
So while we focus much of our attention on making it easier to engage with the legal system, it is clear that it must be done concurrently with increasing trust in its processes. Part of this means understanding the lived realities of those encountering the system. As participants in the CBA study noted, the lack of recognition or understanding of the social and personal realities of the marginalized people moving through the legal system results in two problems: “First, the system and its actions actually perpetuates or aggravates the problem that got the community member initially involved in the system. The second problem created by the system’s seeming ignorance of social and personal realities is that the legal problem has a “spiraling and multiplying” effect into other areas of their lives, worsening them significantly.”
Interestingly, the issue of access to justice by people living in poverty was discussed at length by the former Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda, in her 2012 report to the UN General Assembly. While the report pointed to the cost of legal advice and lack of information as some causes for access to justice problems, others related to social exclusion and the lack of recognition or prioritization of the abuses regularly suffered by persons living in poverty. As was stated in the report overview, “the lack of remedies for the negative impacts of social policy in the areas of health, housing, education and social security, or for administrative decisions relating to welfare benefits or asylum proceedings, often results in inability to seek redress in cases of violations of key human rights, such as the right to equality and non-discrimination and the right to social security.” Although the report encompasses a vast array of social contexts, it offers an interesting analysis of the intersection between access to justice and social inequality that can inform future initiatives.
As we move forward, it is worthwhile to consider such barriers to accessing justice. Beyond providing legal services, there are many other issues that can impede ones engagement in the legal system. While this is merely a scratch on the surface, such inquiries force us to examine the form of justice we are trying to achieve and the quality or equality of services therein.
The Reforming the Family Justice System initiative is a collaboration between government, the Courts, and a number of organizations, academics and professionals that work within the family justice system in Alberta. The initiative is founded on the reports of the Family Working Group and the Prevention, Triage and Referral Working Group of the national Action Committee on Access to Justice and aligns with the six guiding principles of the Action Committee:
put the public first;
collaborate and coordinate;
prevent and educate;
simplify, make coherent, proportional and sustainable;
take action;
focus on outcomes.
The first objective of the initiative is to improve awareness, coordination and availability of a wide range of services that support children and families, including information resources, legal resources, related health and social services, prevention assistance and resolution services. In April and May 2014, two workshops were held in Edmonton, bringing together key representatives from ten sectors in the family justice system. A third workshop is scheduled for October 2014. The initiative is co-convened by the Honourable Justice Andrea Moen, Court of Queen’s Bench of Alberta, and Assistant Deputy Minister Lynn Varty, Resolution and Court Administration Services, Justice and Solicitor General.
The problems associated with a lack of access to justice are a serious concern here in Canada. These concerns have been deftly captured in two recent national reports – one from the Action Committee on Access to Justice in Civil and Family Matters and one from the Canadian Bar Association – and several recent studies,[1] and research projects.[2] These issues, however, are not unique to Canada. This spring, the Australia Productivity Commission – an independent research and advisory body of the Australia Government – released the Access to Justice Arrangements: Draft Report, which details the access to justice issues facing those in the land down under.
The Draft Report is the first product of an in-depth 15-month inquiry into the costs of accessing justice, gaining legal representation, and the impact these have on access to, and the quality of justice attained in the Australian civil (including family law) dispute resolution system. The Draft Report was based on information gathered through public submissions, consultations with governments, regulatory bodies, legal organizations, and members of the legal community, and surveys of legal need from across the country.
The Draft Report is a mammoth undertaking with close to 900 pages of research and recommendations. Many of the issues identified will be familiar to those active in the access to justice debates. For example, similar to the Final Report of the Action Committee on Access to Justice in Civil and Family Matters,[3] the Draft Report characterizes the Australian justice system as being slow, expensive, and complicated. Beyond these generalizations however, the Draft Report makes several interesting recommendations on how to improve the justice system – some of which align with current policy recommendations under discussion here in Canada, and some of which are unique. While there are far too many recommendations offered in the Draft Report to be captured here, the proposed reforms seek to address the following five issues:
(1) The permeation of problems between the informal and formal system;
(2) The large potential economic gains that could be reaped from instituting more early and informal solutions;
(3) The aspects of the formal system that contribute to access to justice problems;
(4) The “lumpy” costs that justice system users often experience; and,
(5) Improving legal assistance services for disadvantaged Australians.
1. The permeation of problems between the informal and formal system
The Draft Report found that everyday Australians lacked knowledge about how to deal with their legal issues. Whether it was the result of a lack of information about the process, their rights, or from whom to seek advice. Although there are a host of organizations and websites speaking to legal issues in Australia, the Commission recommended that there be a centralized source for legal advice, referrals and information in each region. The LawAccess NSW(New South Wales) was offered as a best practice example.
2. The large potential gains from early and informal solutions
In terms of early and informal solutions, the Draft Report spent some time focusing on the benefits brought by currently existing, but under-utilized professions and processes such as Ombudsmen and alternative dispute resolution. By engaging Ombudsmen more, it was held that costs to justice system users would be reduced, disputes resolved more quickly, and the level of unmet legal needs be lowered. In keeping with lowering costs and speeding up resolution, the Commission also highlighted the continued need to incorporate alternative dispute resolution processes not only in the courts, but also for disputes between consumers and government departments. The Australian Tax Office’s Alternative Dispute Resolution process was held up as an example in this regard.
3. The aspects of the formal system that contribute to access to justice problems
The Commission also highlighted several factors of the formal system that contribute to problems accessing justice. For example, the creeping legalism of tribunals, and the adversarial nature of most court-based dispute resolution processes were seen as key issues. In terms of the former, the Commission noted the increased used of legal representation in tribunals contradicted the intended nature of the processes. In order to ensure tribunals are fair, economical and efficient, the Commission recommended placing rigorous restrictions on legal representation, thus reducing costs to users and speed up the tribunal process.
The Commission also highlighted the negative impacts of the adversarial nature of dispute resolution. The Draft Report notes, for example, that not only does the formal justice system provide little incentive for parties to cooperate, but the adversarial nature of the system also means that costs are unpredictable, and that self-represented litigants (SRLs) are at a disadvantage since they are often unfamiliar with the processes involved and unable to afford long-drawn out litigation. Therefore, greater use of alternative dispute resolution processes was recommended, along with changes to the costs awards structure. In particular, the Commission proposed using fixed scales for costs in lower courts, and cost management and caps at higher-level courts. With respect to SRLs, who are presently unable to seek costs in litigation, it was proposed that they be brought under the cost recovery structure using the fixed scale. Further recommendations to assist SRLs followed those raised in Canada, such as improving the assistance provided to SRLs by judges and the courts, and ensuring consistent rules and guidelines.[4]
4. Helping justice system users deal with “lumpy” costs
Cost concerns were discussed throughout the Draft Report. A unique feature of the report looked at how to deal with the large and unexpected, or “lumpy” costs, that arise unexpectedly during formal legal proceedings. With many justice system users falling into what the report termed “the missing middle”, – i.e. users who do not qualify for legal assistance and yet do not have the financial resources to deal with large and unpredictable costs – recommendations centered on unbundling legal services, and waiving of fees for disadvantaged litigants. Unbundling, for example, would make costs more manageable and predictable. It would also provide users the opportunity to purchase task-specific assistance, rather than have to cope with the traditional “full service” costs that are currently the norm.
5. Improving legal assistance services for disadvantaged Australians
Finally, the Commission evaluated the legal assistance services provided to disadvantaged Australians. It was determined that a key problem in accessing the necessary legal support is a result of restricted legal-aid funding for civil matters and the fact that the distribution of funds was not matched to need.[5] As was stated in the report, budgetary decisions have either been “ad hoc” or based on history rather than taking into account legal need or the costs of service provision in determining where community legal centres would better serve the public.[6] Therefore, it was recommended that the allocation of funds servicing disadvantaged Australians be reallocated in order to better target areas of need. Further, given the inconsistent eligibility criteria between legal aid and community legal centres, the Commission recommended that an established measure of disadvantage be determined and consistently applied across the board. However, they also recommended that eligibility tests use a more holistic approach to assessing how the legal problem is affecting the client’s life, and in turn, how this is affecting justice and other publicly funded services.
To ensure that disadvantaged Australians are better equipped to deal with their legal matters, the Commission stressed the important role of the government. By providing the funding, support and broad institutional framework for the civil justice system, the report emphasized that the government is key to improving the access to justice landscape. Thus, recommendations encouraged all levels of government to work together to collect and collate information, and to develop and implement reforms in order to promote more evidence-based policy and better targeted spending, a recommendation also made in the Action Committee and CBA reports.
Overall, the Draft Report and inquiry process is worthy of our attention as it provides a new vantage from which to explore similar issues affecting access to justice in the civil justice system in Canada.
The Commission has solicited submissions and feedback on the Draft Report, which will be incorporated prior to the release of the final report in the Fall 2014. I look forward to seeing the Commissions final recommendations then.
More information and the report can be found by visiting:
A recent article in the Toronto Star [1] reported on three law offices that have recently been opened in Walmart stores in the Toronto Area. These law offices, called “Access Law”, concentrate on transactional matters such as wills, real estate, powers of attorney and notary services. Complex legal matters are referred to other firms, although plans are in place to add uncontested divorces in the future. This is a welcome development — let’s call it an experiment at this point — in the provision of low cost and accessible legal services. Progressive thinking about how the public experiences legal problems and how to expand legal services to Canadians [2] encourage us to view legal issues as arising from the normal activities of everyday life, not only as the complex legal problems that must be settled in the courts. This view of legal problems as part of everyday life encourages people to seek advice and to deal with legal issues early, in a preventative way, thus avoiding costs and additional legal problems later on. It is, as is often said, better to build an inexpensive fence at the top of the cliff than to place a costly ambulance at the bottom. To take this preventative approach, it is necessary for people to change their understanding of legal issues, viewing them as a part of everyday life. Looking at legal problems broadly in that way, people should have enough basic knowledge to at least recognize the potential legal implications in the normal transactions and transitions of life and know when to seek help and where. However, sources of assistance may not be well known. There are web sites that provide legal help similar to Walmart Law. However, Walmart is, if anything, a part of everyday life. Legal services located visibly in places such as Walmart make legal assistance more accessible and, moreover, convey the right message to the public about legal issues and about dealing with them before they become legal problems.
In the footsteps of the UK and Australia, LSUC will be holding a consultation on the use of alternative business structures (ABS), which provide more choices for consumers seeking legal services and thereby improve access to justice.
I have had the good fortune of being involved in a number of groups and initiatives aimed at improving access to justice and reforming family law processes over the last few years – from pro bono advice clinics and rosters, to public legal information websites and Wikibooks, to the reconstruction of court rules and legislation – and have recently become plagued by the feeling we’re getting something wrong, that there’s something more fundamental at play I’m overlooking. Partly this stems from the observation in Beyond Wise Words that despite the innovations and overhauls to date, “reports and inquiries continue to call for further reform, saying that the changes to date, while welcome, are simply not enough.” Partly it comes from a concern that the main thrust of our service delivery just might be targeted at the wrong point in people’s interactions with the justice system, that perhaps we are shutting the barn door a bit too late.
At present, the bulk of public services are delivered at one of three points in people’s involvement with the law: general public legal information delivered through seminars, workshops and pamphlets to people who are idly grazing for legal information or helping a friend; narrowly-focused legal information, advice and representation delivered to individuals at the moment of crisis, often following separation, a threat to take the children or service of process; or, detailed, concrete legal information and advice delivered to individuals who are well engaged in a proceeding, usually unrepresented by counsel, and are seeking details about specific issues, such as making or replying to an application, demanding or making disclosure or preparing for trial. I’m sure there are delivery models that I am overlooking, but I’ll bet this is where the lion’s share of our country’s law foundations spend their money.
The delivery of general-purpose public legal information is inexpensive to arrange, and has the merit of engaging lawyers with the community and the community with the justice system. However, relatively few people attend seminars or browse websites on family law out of curiosity. Would that more did.
The delivery of information and services at times of crisis is where legal aid, pro bono groups and other service organizations have traditionally spent their time and money. Although it demands significant human resources and a concomitant degree of infrastructure, it addresses the most visible need and provides help when it is needed most. It is also precisely the least opportune time to provide legal information and advice; people in panic are rarely able to absorb the difficult, complex and sometimes counterintuitive information required to make the difficult decisions that must be made and which shape the future course of their litigation. This delivery model also has poor spread, in the sense that there is usually only one person being helped and the services provided go no further than the individual; they tend not to improve the general understanding of the community as a whole.
The delivery of targeted information in the refractory stage between crisis and resolution often provides the greatest benefit to the individual. They are calm and able to digest the information provided, they have some experience in court and are able to sort that information into the model of the system they have begun to form, and they gain a more richly contextualized sense of the fabric of the law beyond the specific issue or event prompting them to seek help. However, as with the delivery of information at times of crisis, this model also does not distribute information beyond the individual recipient.
Assuming that my observations are more or less accurate, it seems to me that the bulk of our efforts are directed at the time when people: are the least able to absorb the information we seek to provide; are the least equipped to make the critical decisions necessary for their case; and, are already locked into a costly and adversarial process that is, in all likelihood, the worst possible way to resolve a family law dispute.
This leads me to that nagging question. How can we reach these individuals before they reach their Waterloo?
The current approach to public legal information, advice and representation strikes me as a bit like providing advice about dental care only when the tooth is already half rotten and the options are reduced to extraction or a root canal, without having previously discussed the importance of basic dental hygiene. In both cases, the litigant/patient receives help at a watershed moment when choice of action is limited and locked into a process that will cost the both individual and the system greatly; in both cases, the crisis might have been averted, or at least mitigated, had basic information been provided much earlier on, at far less emotional and economic cost. I suppose another analogy would be to a system of health care relying on walk-in clinics as the primary point of contact rather than family doctors providing ongoing, prophylactic care.
Since there seems to be no practical way – well, no tactful way – to discern the likely breakdown of a relationship and encourage the parties toward counselling, mediation or a collaborative process before disaster strikes, the only solution that comes to mind is a culture shift.
Our society remains deeply mired in an assumption that court is where legal disputes are resolved. Collect a random selection of passersby, and put to them a scenario of dismissal without cause, an unfair eviction or a thieving neighbour. Ask them what they’d do to resolve the problem, and the answer will almost invariably involve litigation. This, I think, is a key issue and the primary reason why our public services are delivered as they are. This may be what needs to change.
I therefore suggest we must treat legal literacy as a value as worthy of pursuit as English literacy or numeracy. It is, after all, an essential component of competent citizenship in a democratic civil society, and of understanding one’s rights and obligations as an employee, a tenant or a neighbour. Perhaps a sufficient knowledge of the principles of fundamental justice and the manifold ways in which disputes can be resolved quickly, efficiently and cooperatively, without the delay, expense and acrimony of the trial process, will usurp Judge Judy, Damages and Boston Legal as our paradigms of dispute resolution.
I am under no illusions that this can be accomplished any time soon, but if the effort begins in primary school and is reinforced and expanded in high school, perhaps the barn door will one day be bolted before it is too late. However, unless we begin this sort of messaging early and frequently, we are unlikely to shift the popular approach to the disputes of separated families, and will continue pouring buckets of money into an inherently inefficient service model with nothing being done to divert potential litigants from an equally inefficient court system. Apart from the general improvement in personal wellbeing to be had from choosing dispute resolution processes other than court, I expect that even a modest decrease in the number of people heading to court will yield substantial savings for the court system and the organizations providing public legal information, advice and assistance.
Many Canadians now search online for information when they have a legal problem. Because of this, organizations facilitating access to civil justice have recognized the value of having a website, especially because it is cost-effective. But how much attention are website viewers paying to content? Does good quality content matter?
It is well known that promotion of a website requires an active social media presence. Without a social media presence on networks such as Facebook and Twitter, fewer people will know about, let alone access, the organization’s website. CanLII is a non-profit organization managed by the Federation of Law Societies of Canada. CanLII’s goal is to make Canadian law accessible for free on the Internet. This website provides access to nearly 1.3 million court judgments, tribunal decisions, statutes and regulations from all Canadian jurisdictions. Based on an analysis of social media engagement with CanLII, I have tried to better understand the three-fold relationship between visiting a website for legal information, the content of the website, and the visibility of the website on social media.
Consider the following: CanLII has over 5,700 Twitter followers, and on any given week CanLII can expect to receive hundreds of visits to its website from people clicking a link found in a tweet. As the chart below demonstrates, social media is a significant and growing source of traffic to CanLII.
I found, however, that CanLII’s own tweets were likely responsible for no more than 4% of CanLII’s Twitter-generated page views. As nearly all the traffic was attributable links generated by the public, clearly it is the content on the website that will determine whether it is tweeted, liked or otherwise socially circulated. A content provider’s participation in the network and promotional efforts through that network, while beneficial, are not the driving factor.
My research led me to this conclusion when I compared the social sharing via Twitter of the same court decision – one version from CanLII’s site (on which a “tweet this” button can be found) and one version from the Lexum-run Supreme Court of Canada decision site. The October 2011 decision, Crookes v. Newton, 2011 SCC 47, concerned hyperlinking, making it a particularly apt ruling to examine. The decision was viewed 2,368 times on CanLII in 2011, with a mere 55 page views attributable to Twitter links. By comparison, on Lexum’s Supreme Court of Canada decision site, Twitter links accounted for 614 page views (stats of total views were not provided). Motivation to share the content from the SCC decisions site needed no encouragement from the SCC webpage. The community itself decided the link was worth sharing and following without a prompt to share.
The latest aspect of my research into social media interaction with legal information deals with the “quality” of a social visit. The website activity of inbound social media traffic on CanLII contrasts significantly from that of visitors who access the site directly.
What insights flow from this research? Quality legal information content on websites increases visits. Social media presents an excellent opportunity for civil justice organizations to promote traffic on their website and facilitate access to justice. But social media is effective in the context of legal information when people are interested in what is being circulated, not how many people are viewing what has been posted. In effect, social media draws attention to postings on websites, but web-users will visit longer when the content on the website provides quality legal information.Part of the explanation for the appearance of lower engagement from a social media visitor is technological. On average, less than 10% of CanLII’s visitors access the site from a mobile device (smartphone or tablet). In contrast, 35-40% of social media traffic to CanLII comes from a mobile device. One reason for this is that statutes and long court judgments are not always easily digested on the smaller screen. The second major reason is that a person visiting a website directly does so with the specific intent to find information, whereas a social media visitor is more likely to be surfing or following links without any pre-existing interest in reviewing the material or subject matter.
A recent and exciting justice innovation in Canada is the creation of the Winkler Institute for Dispute Resolution. The Winkler Institute has an action-oriented three pillar mandate in the areas of teaching and learning, research and innovation and pilots and projects. Along with the Canadian Forum on Civil Justice and Osgoode Hall Law School, we are involved in a number of exciting Canadian projects, including the:
Winkler Institute’s Law Foundation of Ontario-funded process needs assessment.
These are important law development and justice innovation initiatives in Canada – a country entering a new era of collaborative justice innovation and infrastructure reform. These are exciting and challenging times back home!
As we write, we are currently enjoying the good fortune of meeting with Sam Muller and members of the Hiil team, recognized world leaders in justice innovation. We are learning more about some of the exciting projects in which Hiil is currently involved. For example, Hiil’s measurement group is working on a number of important needs assessment and mapping projects in various corners of the globe. Their innovation group is busy sourcing, encouraging and catalyzing leading justice innovation initiatives. And their strategic group is constantly looking for new avenues of justice sector partnerships – all with an ultimate goal of making law more fair, sustainable and accessible. With that in mind, we are also discussing concrete ideas for collaboration between our various organizations around justice innovation in Canada and internationally.
Although there are many forms of justice around the world, what we share – both in terms of challenges as well as opportunities – is becoming increasingly common. How people use systems, the challenges they face, issues around access and sustainability, and the need for more concrete, action-oriented, innovative and sustainable ideas are shared issues and aspirations. To the extent that we can – regionally, nationally and globally – share and collaborate, the better we all will be.
We are currently exploring a number of exciting ideas for innovation, collaboration and support between our organizations. Stay tuned!
There is plenty of research evidence of the significant intangible costs of the lack of access to justice. Every legal problems study examining the issue has shown that physical health problems and stress-related illness are common consequences of experiencing legal problems. The Canadian research shows that about 23% of respondents with at least one justiciable problem experienced a physical health problem as a result of the legal problem or problems and 37% experienced a stress-related health problem.[1] Further, 62% of respondents said that the problem was somewhat to extremely disruptive to their daily lives.[2] The stress these problems cause may have consequences that are magnified far beyond the difficulties in dealing with a particular legal issue.
A recent book on the dynamics sustaining poverty by Sendhil Mullainathan and Eldar Shaffir argues that the stress involved in coping with money problems has a significant and debilitating effect that reduces people’s ability to cope with other ordinary tasks and requirements in all areas of life.[3] Using their metaphor, stress reduces the “bandwidth” available to deal with other issues. Following this argument, it is possible that the high levels of stress experienced by people dealing with legal problems may have a similar debilitating effect, reducing the bandwidth available to deal with a range other normal issues in life. Reduced bandwidth may be a partial explanation for the trigger and cascade effects reported in the legal problems literature. Legal problems trigger other legal problems and legal problems trigger, and are triggered by, a number of non-legal problems producing inter-related problem clusters.[4] The research by Mullainathan and Shaffir may partly explain the mechanisms underlying the trigger and cascade effects linking the experience of legal problems to broader patterns of poverty and social exclusion.
As troubling as high levels of stress and stress-related illness may be as consequences of legal problems in their own right, the intangible costs of experiencing legal problems may also lead to significant monetary costs. We can easily think of some of these. Costs to individuals can occur in areas such as lost employment or lost time from work. Individual disadvantages can become costs to the state occurring, for example, as increased health care costs because people reporting high levels of stress say they visit doctor’s offices and other health care facilities more frequently than normal. They can also occur as increased payments for employment insurance, housing subsidies or other special services. As well, the money spent resolving complex legal problems is money not available to be spent elsewhere in the economy. However, these costs may be only the tip of the iceberg. The reduced bandwidth argument by Mullainathan and Shaffir suggests that the consequences and costs of experiencing legal problems may bleed out in ways we have not yet fully considered. It may seep in to other areas in the lives of the individuals experiencing the legal problems and from those individuals into the lives of others who are socially connected to her or him through relationships of dependency. It may turn out that as we research these costs more fully, that the cost of expanding access to justice to all Canadians is far exceeded by the costs of not doing so.
Each year, Legal Aid Alberta hosts the Access to Justice Awards Gala to recognize individuals nominated by their peers for their significant contribution to the community, as well as reflect on the important role each of us plays within the realm of access to justice.
“Remember, the concept of access to quality justice is not simply a function of finances and judicial delays. Rather, it is about public confidence. Above all, the survival of our democracy depends upon maintaining the credibility of the judiciary and the legal profession in the minds of litigants and the public at large. Every citizen must feel that they are able to enforce their rights under fair and reasonable conditions.”
– The Honourable Richard Wagner, Justice of the Supreme Court of Canada, Legal Aid Alberta Access to Justice Awards Gala, 2013.
One of the key reasons Legal Aid Alberta hosts the Access to Justice Awards Gala is to celebrate those people who have worked to ensure Albertans can enforce the rights Justice Wagner referenced under fair and reasonable conditions. These people often fly under the radar of any glimmering lights that would shine on their exceptional contribution to our legal system in this province and, yet, they are very deserving of recognition. Through the presentation of these awards and by drawing attention to what these individuals have accomplished, we aim to shed light on the energy and innovation that surrounds their efforts.
The recipients of the 2013 awards are:
· Legal Advocacy Access to Justice Award: Laurie I. Wood, Laurie Wood Law Office, and roster lawyer with Legal Aid Alberta
· Legal Advocacy Access to Justice Award: Kevin Livingstone, Staff Lawyer, Family Law Office-Wetaskiwin, Legal Aid Alberta
· Legal Support Access to Justice Award: Nicole Mizzi, Social Worker, Youth Criminal Defence Office-Calgary, Legal Aid Alberta
For almost 25 years, Laurie Wood has been working steadily to ensure individuals of all economic means have equal access to quality legal representation. She regularly travels to the far corners of the province to represent and support her clients, most of whom are in crisis, with many in extreme distress and suffering from mental health issues. Often these people are able to leave their interview feeling hopeful and uplifted, confident that they will be properly looked after through to the resolution of their legal issue. She is unwavering in her dedication to the principles of providing her clients with the kind of quality legal representation that enshrines her belief in equal access to justice for all.
Kevin Livingstone has made it his business to provide legal support by being open to learning about Aboriginal culture and its unique struggles and celebrations. His non-judgmental approach coupled with his compassion and encouragement has created an environment where his clients feel confident in accessing legal services. Well known for treating his clients, colleagues, and opposing counsel with dignity and respect, Kevin is consistent in his application of high quality representation, often exploring the underlying issues from a holistic perspective. Kevin’s efforts to help clients work through anger and difficult challenges has created a path for better outcomes for many of his clients.
It was a request from a member of the judiciary to interpret dense legalistic probation conditions to a youth with limited cognitive abilities that led Nicole Mizzi to find the needed assistance to draft a set of plain language conditions that are now available for counsel to suggest to the court. The end result created a process, and, importantly, a result, that is meaningful to the youth involved. It’s just one example of Nicole’s innovative, energetic approach to supporting those in need. Through her exceptional effort in providing comprehensive profiles of clients’ circumstances and needs, a youth’s lawyer and the courts have available context documents that can be used in determining the best course of action. Her primary objective is to support the actions of the court in helping that same youth from experiencing a cycle of recidivism and allow for a more positive future.
Also awarded was the first J. Patrick Stopa, QC Access to Justice Scholarship. Mr. Stopa was the Legal Aid Alberta Board Chair until his death in May of 2013, and his passion for ensuring access to justice was recognized by the partners of his Calgary Law firm, Caron and Partners LLP, through a scholarship of $2000 for educational funding to a student or junior lawyer who demonstrates a commitment to ensuring access to justice in Alberta. The well-deserving recipient is Rhyannon O’Heron who graduated from the Faculty of Law at the University of Alberta in 2013 and is currently clerking with the Nunavut Court of Justice.
It was an awards celebration that brought out more than 300 guests to acknowledge the efforts of these individuals, and each was congratulated by Premier Alison Redford and the Honourable Mr. Justice Richard Wagner – both strong, long-standing supporters of access to justice. For more information about the awards, and to read Justice Wagner’s remarks, visit Legal Aid Alberta.
Photo: (Left to Right) Award Recipients Nicole Mizzi, Kevin Livingstone, and Laurie Wood with the Honourable Richard Wagner, Justice of the Supreme Court of Canada.
“I have no choice – I am unrepresented not self represented. Its not that I think I can do this better than a lawyer, I have no choice. I don’t have $350 an hour to pay a lawyer.”
“I was scared out of my mind. But I had a hard choice – either learning to do this for myself, or letting my daughter go, forever.”
The two quotes above are typical examples of what I heard from respondents in my study on self-represented litigants (SRL’s) in family and civil court. They dispel the myth that SRL’s have illusions of grandeur that they can do as good a job as a lawyer. In fact, the vast majority are desperate people with no more funds to pay for counsel (53% began with a lawyer but ran out of money to pay them).
The rise in the number of people representing themselves and the enormous frustration expressed by virtually all of them requires our immediate attention. The erosion of faith in the justice system is plain in the research data (which you can read about in the study’s Final Report).
Windsor Law has agreed to house and to fund the ongoing work of what are now launching as the National Self-Represented Litigants Project (NSRLP). We are grateful to Dean Camille Cameron and the faculty at the “Access to Justice Law School” for their support, as well as our wonderful Advisory Board (which now includes CFCJ’s own Trevor Farrow).
Over the summer, we have responded to innumerable enquiries from both SRL’s and justice system professionals to develop three major areas of activity for the NSRLP. These are:
Research;
Resources; and
Dialogue & Collaboration.
Among other projects, we will be:
producing a bi-monthly newsletter for everyone affected by the SRL phenomenon;
building resources for both SRL’s and researchers/ justice system professionals;
working on new initiatives to assist SRL’s in courthouses, convening discussions about change among professional leaders; and
acting as a Speaker’s Bureau for SRL’s (placing SRL’s in policy working groups, as testers for new online materials, presenting their experiences at professional conferences and in law school classes).
We are also working on a plan in partnership with IAALS to replicate the original research study in three US states.
The post was originally published on the Oxford Human Rights Hub blog.
The year is 2030 and all people living in Canada have equal access to justice regardless of means, capacity or social situation. The justice system is designed around people’s needs taking into consideration differences in the legal needs of different individuals and groups and providing timely and personalized assistance, responding holistically to the legal and non-legal dimensions of problems and ensuring meaningful and effective assistance to navigate a range of paths to justice to achieve lasting and just outcomes. People are empowered to manage their own legal matters with an emphasis on prevention where feasible and to participate in overseeing the justice system as a result they feel a strong connection to it and as a result there is a strong sense of public ownership. Practices are evidence-based and the justice system is a nurturing environment for innovation and consists of learning organizations committed to continual improvement.
This ‘ambitious but possible’ vision of equal justice is at the heart of the Canadian Bar Association’s Access to Justice Committee’s recent report, Reaching Equal Justice: An Invitation to Envision and Act. The Committee starts from the premise that 100% access is the only defensible goal while recognizing the current abysmal situation, which in fact reinforces rather than mitigates inequalities. Rejecting piecemeal reform, the report sets out 31 concrete targets organized around six major themes. Three themes delineate the substance of reform (facilitating everyday justice, transforming formal justice, reinventing the delivery of legal services) and three set out the required support structure (building public engagement and participation, building collaboration and effective leadership and building the capacity for innovation. While the targets are framed as long-term goals to be achieved by 2020, 2025 or 2030, the report also contains a range of indicative actions to be initiated today and interim goals to serve as markers of progress in achieving the targets.
The targets include:
By 2020:
Individual and systemic legal health checks are a routine feature of the justice system.
Each provincial and territorial government has established effective triage systems guiding people along the appropriate paths to justice.
National benchmarks for legal aid coverage, eligibility and quality of legal services are in place with a commitment and plan for their progressive realization across Canada.
Effective, ongoing collaborative structures with effective leadership are well-established at the national, provincial, territorial and local levels, including through the appointment of access to justice commissioners.
The first annual access to justice metrics report is released; by 2030, this report is comprehensive.
By 2025:
Courts are re-centred within the civil justice system and resourced to provide tailored public dispute resolution services with effective internal and external triage and referral processes.
A wide range of alternative organizational models for the provision of legal services exists to meet the legal needs of low and moderate income Canadians, including those living outside major urban centres.
The justice system does not rely on volunteer legal services to meet people’s essential legal needs.
Justice system stakeholders have substantially increased their innovation capacities by committing 10% of time and budgets to research and development.
By 2030:
5 million Canadians have received legal capabilities training.
Substantial experiential learning experience is a requirement for all law students.
Reaching Equal Justice is an invitation to the legal profession and all justice system stakeholders, including the public, to seize the moment of opportunity created by a broad Canadian consensus on the need for significant change and an evolving consensus on the broad directions for reform. In a riff on the idea of thinking globally, acting locally, the Committee calls on each of us to think systemically, act locally: to keep the vision of equal justice in mind, integrating this change in perspective into every day approaches, finding small ways to both meet the needs of clients/justice system users while contributing to systemic reforms. It is by thinking systemically and acting locally that we can create real space for justice innovation.
Rather than simply reading this report, the Committee asks the reader to engage with it. It calls on everyone to consider the targets proposed and the change-oriented ideas presented and to ask: what can I do, either myself or working with others, to contribute to equal access to justice? The call to action is based on the understanding that every contact between an individual and the civil justice system is an opportunity for either disempowerment or empowerment, a moment to reinforce inequality and social exclusion or to create equality and inclusion. The challenge is clear: we understand the problems, we know what to do, now we have to “just(ice) do it”!
Innovating Justice by Sam Muller and the team at The Hague Institute for the Internationalization of Law (HiiL) is a very timely and valuable source of ideas about developing and implementing innovations in the justice field. Based on their pioneering work at the Justice Innovation Lab in The Hague, the authors provide food for thought for anyone contemplating entering the promising but often challenging waters of innovation. Let me share a few of their insights:
Innovation is not a simple, linear process. Innovation is an evidence-based and risk-taking activity. Innovators and, especially, the funders of innovations have to be prepared to learn from mistakes and use them as stepping-stones.
Innovation is rarely the product of a brilliant flash of inspiration. It involves sustained hard work to develop ideas, engage stakeholders and implement and test innovations. Inspiration, however, is the essential ingredient that allows you to sustain the work it takes to innovate.
Innovation requires structure. The HiiL has developed a Justice Innovation Lab with a brainstorming, scrum-like environment that draws out ideas and engages stakeholders—including those people who are experiencing the problem and who those who will use the innovation. The innovation lab provides the time and space needed for incubating ideas. It is a space that brings people together to exchange ideas. Importantly, the lab is portable. It can gather people in a central place or it can go to where the problem is. One of the most important aspects of the innovation lab is having well-developed processes for fostering participation, addressing the needs of stakeholders and for generating and testing ideas.
Finally, innovation requires knowledge. An innovation lab must have the capacity to draw on a comprehensive and up-to-date body of knowledge to feed the process. This knowledge can be gained from examining examples of innovations from different parts of the world, tapping into international research networks and listening to those who have first hand experience with the problems at hand.
The HiiL innovation process is built around six major building blocks.
1. Focus on Citizen’s Needs. Engage the people who are experiencing the problem or the need. Find out how they are experiencing the problem, what solutions they feel would work for them and what outcomes they would be happy with.
2. Release the Mind. Innovation involves breaking rules and normal practises. The professional training and socialization of legal professionals may limit the skills available in the justice sector; go outside to get different perspectives on what might work.
3. Shape Solutions. Work backwards from outcome goals. Select the most fruitful ideas from around the world and from outside the box. Build prototypes but avoid early standardization or premature closure. Have a clear idea of what makes the solution new and unique and why it is better than what is already there.
4. Reframe the Constitution. A promising innovation may be revolutionary. It may involve very different ways of doing things and new partners or participants. A new way of doing things will frequently produce winners and losers. Determine what reactions can be expected and how you should respond. A vision is not sufficient in and of itself. However, a vision is needed to animate and inspire the process and to transform purpose into action. Recruit influential champions to support the vision.
5. Judge the Business. Although justice has value in itself, quantify the economic benefits and determine the sustainability of the innovation. Plan the costs and the cost savings. Focus on the key partnerships, resources and skills that will be required to implement the innovation successfully. Can savings be made on the cost of professionals where they are not really needed? Can some functions be outsourced?
6. Get it Done. During the implementation stage determine how the innovation is organized to stay focused and manage by results. It is easy to get sidetracked! Set up the project to ensure there is continuous monitoring and feedback. There must be continuous learning and adjustment as the project moves forward. Determine the metrics for success and how to measure them.
This is a practical book on strategies for successful innovation. The book is based on the successful innovations HiiL has developed at the justice innovation lab and projects from around the world that the Hiil Team have studied in the course of their work. With hundreds of years of experience between them, the experiences of the authors, so well distilled and presented in the book, makes Innovating Justice essential reading for anyone wanting to invest time and resources in justice innovation.
The publication of Innovating Justice is timely in Canada as the need for justice innovation has never been more pressing. Budgets across justice systems are being cut or are not keeping pace with normal cost increases and the urgency of long standing needs, that have never been met, loom ever greater. The results of legal problems research following the justiciable problems methodology have uncovered layers of legal need that were previously not considered legal at all, rather, just the problems of the poor. And, finally, it is becoming increasingly clear that holistic approaches to legal problems for which we currently do not have the service delivery infrastructure are the only way to provide effective and durable solutions to many legal problems. Although innovation, driven by the need to do more with less, has been a perennial fixture in the delivery of legal services, the pressure to innovate is increasing.
Despite these problems, the environment for innovation in Canada has never been more promising. The final report of the Action Committee on Access to Justice in Civil and Family Matters will soon be released with recommendations for expanding access to justice in Canada and the Canadian Bar Association has just released their report, Equal Justice: Balancing the Scales, which contains a and ambitious and forward thinking “justice plan”. These reports are encouraging and suggest that an environment for innovation is emerging from this unique moment in the history of access to justice in Canada.
In August I get more of “Out of the Office” automatic email replies than any other month. I suspect (and am very envious of the fact) that many people have fled their offices, trading them in for lakes, canoes, cottages and long summer days on the beach. So in honour of this exodus, and as a reminder that not everyone has easy access to the people and services that administer justice, we’ve complied on our blog some of the most recent papers on A2J and technology for you to read on the dock. We’ve also included the links to some new (and often controversial) A2J initiatives that that are attempting to make access to justice easier, more efficient, and more widely available. Happy summer!
See it in action: Innovative A2J Online Initiatives
JustAccess: Crowd funding for Justice
JustAccess is an online legal platform that seeks to raise money via the public to support litigants that can’t afford legal services.
eQuibbly: Resolve Disputes Online Quickly and Fairly
eQuibbly is an online dispute resolution service that can be used to resolve disputes online. The site offers both free and paid options and provides both online mediation and arbitration.
GripeVine
Gripevine is a new forum for resolving consumer problems. The website allows users to share complaints with friends, followers and with company executives who have the power to resolve the complaint.
The semi-annual meeting of the International Legal Aid Group (ILAG) is the pre-eminent international legal aid conference in the world. Delegates from about 25 countries, including Asian, African and Latin American nations, attend this conference. The focus of the ILAG is on access to justice in European nations, as well as other common law countries. The conference series began twenty years ago in The Hague as a small group of legal aid researchers and policy-makers gathered together to discuss policy and program developments in the Netherlands occurring at that time. Since then, the ILAG conference has become a valuable event for researchers and policy-makers to discuss on-going research and policy initiatives in view of meeting the challenges in administration of legal aid, as well as access to justice barriers in general.
This year, the conference theme, Legal Aid in Difficult Times, offered the opportunity for speakers from around the world to share their reserach on issues ranging from the role of new technologies in securing access to justice, to how jurisdictions from around the world are coping with budgetary restraints that have challenged their ability to provide legal services. A presentation by Ab Currie from the Canadian Forum on Civil Justice and Michele Leering from the Community Advocacy and Legal Centre examined the role of intermediaries in expanding access to justice services to the disadvantaged. Intermediaries working in a true partnership with lawyers can extend the reach of lawyers, provide access to groups that are otherwise very difficult to reach and can assist professional legal service providers in offering more holistic assistance. These intermediaries provide knowledge about communities and clients to which lawyers do not have the skills to assess. For example, Richard Cohen, the CEO of Epoq Legal Limited, discussed how a private sector for-profit company can successfully provide unbundled on-line legal assistance at a relatively low cost when compared with conventional lawyers’ fees. The message to the traditional legal services providers was clear: if you do not find a way to provide legal services at a cost that people are willing and able to pay, someone will move in and take the business from you. Another presentation, this one delivered by Bonnie Hough, the manager of several California court-based self-help programs, focused on the utility of these kinds of programs in state civil courts. In California, self-help generally means having lawyers advise and review court documents for pro se or unrepresented litigants, but not actually representing them. Hough’s experience suggests that well-prepared self-representing litigants raise questions about their real lives rather than legal issues and employ other tactics frequently used by lawyers. Hough suggests that this is probably better for judges (who are “holistically” oriented) to solve peoples’ legal problems. These three examples provide only a flavour of the interesting discussions at the ILAG conference. Readers should go to the ILAG website at www.Ilagnet.org to access material from the 2013 and previous conferences.
Profiling Innovation
There is a lag between the circulation of new ideas and experimentation with innovative approaches on the one hand, and their widespread adoption within the justice system on the other. For this reason, approaches to justice innovation pioneered by HiiL are of great interest. The HiiL is a research and advisory organization that provides justice strategy advice and promotes justice innovations with an overall focus on the functioning of national justice systems in a globalizing world. Two of the sessions at the ILAG conference focused on the innovative research happing at the HiiL. Professor Maurits Barendrecht offered a number of important observations on strategies for change in access to justice. Noting that traditional services consume a vast majority of the money spent on justice (often, regardless of cost-effectiveness), Barendrecht asked wither such a strategy maximizes effectiveness and efficiency. He stressed that there are an expanding number of innovative approaches from which to learn, however, taking advantage of new opportunities requires different strategies , which challenges strategic decision-makers in the traditional justice system.
Professor Barendrecht is a key member of the Justice Innovation Lab team at HiiL. The Justice Innovation Lab is like any other lab – it is a place where new ideas are developed and tested – only the ideas and strategies being tested will improve access to justice. In his ILAG presentation, Barendrect spoke about the work being done at the Justice Innovation Lab. Over about the last five years, the Lab has developed a method for innovating justice. The following summarizes in a very general way some of the main features and lessons learned from the many projects undertaken at the Justice Innovation Lab:
Focus on citizen’s or client’s needs first. Find out who are the users. Who will be affected? What are their needs?
Involve users of the development of the innovation directly, fully and first.
Put conventional legal thinking on hold. Bring in a diversity of skills and knowledge. Create and nurture the environment and capacity for creative thinking.
Allow time for ideas to incubate.
Work backwards from outcome goals. Select from a range of potentially fruitful ideas. Brainstorm all possible solutions. Create models and prototypes.
Recognize and include all the stakeholders. Identify all the essential partners required to make the idea work. Determine who stands to lose. Mediate approaches that avoid conflicts creating winners and losers.
Quantify the value of the innovation – not only what it will cost. Determine what investments are needed in both money and other resources. Determine how the innovation will be made sustainable.
The Justice Innovation Lab at HiiL has produced many different types of justice innovations. One was the well-known index for measuring the cost and quality of justice; another involved work on the highly regarded Rechtweiser, the on-line dispute resolution system, which is now part of the Dutch legal aid service delivery model. The Prison Paralegal Justice centres in Kenya, where prisoners advise other inmates on legal issues, are an example of one of the many international projects successfully developed by the Lab process. One of the earliest projects was the development of a process for resolving personal injury disputes for the Dutch government. This project took three years to complete and involved nearly a hundred different organizations. The latter example suggests that the actual Innovation Lab process will vary considerably depending on the size, duration and other defining characteristics of the project. However, the basic approach applies generally and has proven itself over many different projects. Importantly, the Innovations Lab process is portable; this could be important for a large and diverse country. HiiL seems to have got it right and the Justice Innovation Lab might be a promising approach to moving forward and expanding access to justice in Canada.
Introduction
Historically, legal aid was the first response to the access to justice problem. At present it occupies by far the largest terrain in the access to justice landscape in Canada. Access to justice in Canada is poised on the edge of significant changes encouraged by the work of the National Action Committee on Access to Justice in Civil and Family Matters, led by Chief Justice Mclachlin and Justice Cromwell of the Supreme Court. As these changes play out over the coming years the legal aid system is in a potentially powerful position to play a major role because of its large presence in access to justice. Thus the vitality of the legal aid system is of major importance. This note presents a brief statistical picture of the current state of civil legal aid in Canada.[1]
Legal aid in Canada is provided by 13 legal aid organizations, one in each province and territory. Each legal aid “plan” as they are called in Canada is a statutory body created by the province or territory, but operating at arm length to government governed by an independent board of directors.[2]
Government Funding
On average provincial and territorial government contributions make up 92 percent of all legal aid funding. Across the 13 jurisdictions the level of government funding ranges from 78% to 100% of legal aid expenditures. The high level of government funding is significant in itself. Notwithstanding questions about the adequacy of funding to meet the needs for legal aid services this expresses a principle that the provision of legal aid is primarily the responsibility of government.
Over the past five years provincial and territorial contributions to legal aid overall, including both criminal and civil legal aid,[3] increased by 19.7% in current dollars from $492,943,000 in 2008-2009 to $590,196,000 in 2011-2012 Over the same period contributions from government increased by 11.7% in constant 2002 dollars from $442,101,000 to $492,224,000.
The percentage of funding from government sources increased over the five-year period from 84% in 2008-2009 to 92% in 2011-2012. Monies from client contributions declined over the period from 4% to 3%. Contributions by the legal profession remained constant at 1%. Revenues from investments, primarily interest on lawyer’s trust accounts from Law Foundations, declined from 12% of all funding for legal aid to 4%.
Expenditures on Civil Legal Aid
Direct service expenditures on civil legal aid increased by 18.9% in current dollars from $259,946,000 in 2007-2008 to approximately $309,022,000[4] in 2011-2012. Expenditures increased for all legal aid plans over the past 5 years. Direct service expenditures were down in three provinces between 2009-2010 and 2010-2011. Annual fluctuations in the data occur frequently. Therefore, this brief article focuses primarily on the most recent five-year period.
Civil and Criminal Legal Aid
Because legal representation in criminal matters has a stronger foundation in the Constitution than civil, spending on criminal legal aid is usually taken as the benchmark for spending on civil legal aid. Overall, more money is spent on criminal than civil legal aid in Canada. Based on estimated 2011-2012 figures to adjust for missing data direct service expenditures on civil legal aid made up 47.7% of total direct service expenditures on criminal and civil combined. In three provinces, Prince Edward Island, Ontario and Quebec direct service expenditures on civil legal aid exceeded expenditures for criminal legal aid.
Family and Other Civil Matters
Most civil legal aid is in family law. In 2011-2012 legal aid in family law accounted for 61.8% of direct service expenditures, with 38.2% on non-family civil matters[5]. This mirrors the proportions based on services provided. In the same year 61.6% of approved applications were for family matters while 38.4% were for legal aid services in non-family civil areas of law.
Demand for Service and Level of Service Provided
Demand for civil legal aid, measured in terms of total applications for service, declined over the five-year period from 2007-2008 to 2011-2012. The total number of applications declined by 4.8% from 432,273 to 411,628. A decline in demand would not have been expected following the great recession in late 2008 and the slow economic recovery since.
There was essentially no change over the previous five years in the level of full service measured in terms of approved written applications for legal aid. In 2007-2008 legal aid plans approved 209,877 approved applications compared with 209,936 in 2011-2012.
The number of duty counsel services in civil matters increased by 19.3% over the past five years, rising from 207,112 in 2007-2008 to 284,686 in 2011-2012. Duty counsel services were mainly provided in family court. Family duty counsel made up 92% (261,972) of all duty counsel matters in 2011-2012.
The number of refused applications in civil matters increased between 2007-2008 and 2011-2012 in five out of eight jurisdictions that reported data.[6]
A Longer View
The current levels of expenditures and services are considerably lower than their historical high levels in the early to mid 1990’s. In 1994-1995 direct service expenditures on civil legal aid were $329,787,000. This was $11.37 per capita. In 2007-2008 per capita direct service expenditures had declined to $7.89 per capita ($259,946,000). Per capita direct service expenditures on civil legal aid increased to $8.96 in 2011-2012 ($309,022,000). This represents a 13.6% increase in per capita direct service expenditures over the recent five-year period. However, it reflects a 21.2% decline from the level of per capita direct service expenditure in 1994-1995.
Similarly, approved applications for civil legal aid reached their historical high of 17.8 per 1000 population (505,787) in 1992-1993. Approved applications declined to 6.4 per 1000 population in 2007-2008 and to 6.1 per 1000 population in 2011-2012. Approved applications per 1000 population declined by 65.7% from the historical peak in 1992-1993.
Conclusion
The numbers tell of good news in the recent past and bad news over the longer term. Over the past five years legal aid expenditures have increased. Government is by a wide margin the primary funder of legal aid and this is increasing in relative terms as other sources of revenue falter.
The increased demand for civil legal aid that might have been expected in the wake of the great recession has not shown up in the data on total applications. However, legal aid has held its ground in terms of the amount of full services provided (approved applications) and has increased the number of duty counsel services.
Legal aid has never fully recovered from the cuts to legal aid that followed the recession in the early 1990’s. Levels of expenditure and service are much lower in per capita terms than they were in the early to mid 1990’s. Civil legal aid in Canada is not as healthy as it was in its younger years but, in mid-life, it is at least holding its own. However, it probably will not play the important, and perhaps key, role it might in the evolution of access to justice in Canada without resources to repair the erosion that two recessions have left in their wake.
