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When Access Isn’t Enough: Examining the Intersection Between Social Inequality and Access to Justice

Kimberley Byers

Thursday, October 9, 2014

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.