Expanding Horizons: Rethinking Access to Justice in Canada

Appendix B (cont'd)

Appendix B (continued)

The Judgement of Wider Courts

Gilles Paquet
Centre on Governance
University of Ottawa
March 31, 2000

If you only have a hammer,
everything looks like a nail
Anon.

Introduction

As most commentators would agree, access to justice is part of any just society. This does not only mean either access to the justice system (if by justice system one refers exclusively to the courts as usually understood i.e., the formal courts of law) or access to law and the formal legal apparatus. Justice is a much broader concept. In order to connote this broader concept of justice (while not sinking the notion of justice entirely into a philosophical swamp), I will use the expression wider courts. It may be neither the most elegant label nor the most enlightening, but it will serve our purpose here.

The March 31, 2000 symposium of the Deputy Minister of Justice of the Government of Canada was entitled Expanding Horizons: Rethinking Access to Justice in Canada. It focused on the emerging challenges facing those who wish to ensure that Canadians have access to justice (in this broad sense mentioned above) in an increasingly complex environment.

This is not the first time that the issue is examined in Canada. Steven Bittle (2000) has reviewed the previous Canadian conferences and symposia on this theme in a background document for the present symposium. But the March 31st symposium was meant to be of a special nature from its inception. It was launched with an unusual invitation by the Deputy Minister to explore the concept of access to justice beyond its traditional boundaries and into wider courts so to speak. Morris Rosenberg, the Deputy Minister of Justice, called on the participants to go outside the box and to use lateral thinking in developing strategies for better ways to provide access to justice for Canadians.

This invitation to self-subversion by the legal establishment (indeed the establishment constituted a significant portion of those participating) was surprising for some. The confrérie of lawyers and law professionals is traditionally very conservative. It is also perceived as being quite defensive when it is accused, as the professional group at the core of the formal system, either of not doing enough or not doing the best of all jobs in providing optimal access to justice for all Canadians. The exhortation to explore widely extra-murally and to roam freely over a much wider territory than the traditional courts sounded subversive.

A Multi-voiced Challenge

The first session of the symposium was meant to provide the participants with a sense of direction in their search for new strategies for optimal access to justice by Canadians. The multifaceted message that emerged from that session might be summarized in a few words: the record of Canada on the matter of access to justice may not be as enviable as is usually believed. Another way of putting this central message (coming from two eminent jurists and an astute observer of the law/justice scene) is that the “fortress” of the formal justice establishment as defined by the traditional courts is not impregnable, that there even is “péril en la demeure” when one examines carefully the “house of justice” in Canada.

This situation is ascribable in part to the challenges mentioned by Mark Kingwell (2000) in his essay prepared before the symposium: growing population diversity, globalization, changing political/cultural interface, new role of technology, and new forms of citizen action. But the core of the messages put forward during the introductory session went much beyond simple warnings that the world has become more complex.

Judge Turpel-Lafond (Saskatchewan) issued a message of anxiety: the justice system may not serve the community well. What is in place for Aboriginal groups, for instance, is more akin to a prison industrycondemned to a recycling of deviants. Even though there has been a certain highbrow intellectual interest in restorative justice, it has not translated into meaningful action on the front line. From the vantage-point of a Western Canada judge, the fortress is seen as inadequate.

Roderick Macdonald (Law Commission of Canada) issued a message of disconnection. He reflected on the chasm between “the official system” (the formal system of lawyers, courts and formal justice) and the real ‘living law of everyday human interaction”. Acknowledging the Kingwell/Turpel-Lafond diagnosis that, as human interaction becomes more complex and takes different flavors, official justice disenfranchises more and more the ordinary person, he concluded with a plea for more opportunities for citizens to participate more fully in the justice system or more precisely in the lawmaking process.

Jacques Dufresne had a message of denunciation: for him, the formal justice system is the source of the problem. The formal judicial institution, the fortress, is preventing the normal carrying of justice. Instead of preventing problems, the “official system” is aggravating the problems and may even be the source of injustice. The lack of preventive justice to avoid recourse to the formal system is seen as a major gap that prevents citizens from having access to effective justice. This led Dufresne to suggest that a “justice douce” (in the sense that one talks about une médecine douce) might be in order and he illustrated the ways in which such a process would work by making reference to the preventive work of notaries in the Quebec justice system.

The message was loud and clear: the formal justice system is failing in providing adequate access to justice for Canadians. Whether the failure is mainly an upstream phenomenon (i.e. as a result of inadequate preventive justice), in the stream per se (i.e. as a result of the disconnection between the official system and real-life human interaction) or downstream (i.e. as a result of a simple “gotcha” approach of the formal justice system and the lack of any serious commitment to restorative justice), it is clear that the official system is failing the citizenry.

The first plenary session did not suggest that these three perspectives on the ways to improve access to justice by more prevention, by better connection, and by more restorative work were the only ones. Indeed, sprinkled in the three papers, there was reference to parallel and alternative processes that were already providing justice outside the formal system. These broad-ranging and at times provocative statements set the stage very well for probing debates and imaginative inquiries. They launched a symposium that promised to live up to the expectations of the Deputy Minister, and could be expected to come up with creative ways in which access to justice might be improved.

The Fortress, the Barbarians and the Plumbers

Following the introductory plenary session, the symposium participants were spread out in four parallel workshops to pursue the search for alternative and improved ways to ensure better access to justice. These workshops were meant to bring together participants from all walks of life (from inside and outside the formal legal system). The final assemblage of participants turned out to be (not as a result of the pattern of invitations sent out but as a result of many persons being unable to attend because of previous commitments) permeated by officials of the formal justice system to a greater extent than had been anticipated. But there were still a significant group of non-lawyers representing a variety of non-formal-system perspectives in attendance at the symposium.

The first three workshops were constructed around the concerns of groups outside the fortress of the formal justice system: (1) the citizenry and communities, (2) the diversity of groups making up the Canadian social fabric and those concerned with their welfare, and (3) the economists who have a perspective on the justice system quite different from the lawyers. The fourth workshop was focused on the examination of alternative instruments and partnerships that might be used to improve access to justice.

I refer, somewhat lightly but not unkindly, to these groups outside the fortress of the official justice system involved in the first three workshops as the Barbarians because of the fact that the “insiders” in the formal justice system (very much like the Romans vis-à-vis the Ostrogoths and the Visigoths) are very much in the habit of regarding the “outsiders” as being different in kind.

The first three workshops were designed on the assumption that the best way to expand the horizons of the inhabitants of the fortress is to invite these different groups of outsiders to comment on the rationale for the existence of the fortress, on the work of the fortress, on ways to invade the fortress, on its relative importance, on the reasons to want to be inside, etc.

The lay community (whatever it might be) often feels a strong sense of exclusion and feels at times that it is regarded by many in the official system as somewhat irrelevant, or tediously tiresome. Yet, there is also a strong feeling that the lay community and the citizenry in general should participate not only in the process of lawmaking, but in the process of production of justice. So, one could have expected major challenges to be mounted by the Barbarians when invited to visit the fortress.

However, this outburst of passion and denunciation did not materialize. Tact and civility prevailed, to the point that passion did not appear strongly in the debates in the workshops, at least not visible or audible to the external observer migrating from session to session. Debates were informative and informed, but one did not see emerging from these debates emotional attempts to put forward major proposals designed to reframe the “access to justice”. What evolved was a serene discussion of many aspects of the complex questions of how citizens and communities might get involved, of how the new Canadian diversity can be taken into account, and how economic dimensions of justice should be handled.

The fourth workshop was dedicated (at least from a preliminary look at the program) to more mundane matters of fine-tuning of the existing system (plumbing issues one might say lightly but not unkindly) even though it mentioned partners and alternative delivery mechanisms. This fourth group took the mandate it was given to heart and was surprisingly subversive. It is as if this work within the confines of the official system (or at its immediate periphery and within the logic of the fortress) allowed participants to explore less self-consciously the boundaries beyond which one might want to go.

Echoes from the workshops

It is difficult to reconstruct the full texture of intelligent, rich and informed conversations for someone who hopped from session to session. It is not unlike trying to reconstruct a snowstorm from the dew of the few flakes that melt on our face (John Updike). One is bound to be selective and therefore partial of necessity in such circumstances. However, since the reports of careful note-takers will be available, my idiosyncratic summaries might be easily corrected if they turn out to be misleading, would therefore do little harm, and yet might help to underline some basic themes deserving special attention.

1. Citizens and communities

It was clearly agreed to by participants that there is a role for citizens and communities in the justice system. The debate centered on the difficulty in defining community, in operationalizing the roles of citizens and communities, and in ensuring that the requisite infrastructure needed for the citizens and communities to operate effectively in a world (1) where the courts are not the only forums the citizens need to access and (2) where circumstances are such that a “one size fits all” strategy is not useable, would be put in place.

This process of inclusion was perceived as being particularly difficult to engineer by citizens and communities: it is not easy to use “the system”. It was perceived largely as a problem of power sharing in which the formal justice system is not willing to share much.

The discussion was focused on civic engagement and the possibility of building bridges enabling communities to play a greater role within the institutional order. Obstacles in the form of inter-jurisdictional squabbles and professional turf-defense were discussed. The focus was mainly on ways to open and reshape the existing formal system to accommodate some input from citizens and communities.

2. Diversity

The formal system has given recognition with particular force to the argument of access to justice through equal treatment. There has been some “judicial progress” on this front. But it was found that the formal system has not been very successful in developing delivery mechanisms to meet the promise of substantive growth in the “right to equality”. Indeed, the processes of privatization of the adjudication of claims (by arbitrators) and of the collectivization of the processes (dealing with groups not individuals) have been seen as an erosion of the public rights basis of human rights. Moreover the argument that these initiatives have efficiency costs has led many to call for some measurement of the impact of these initiatives if one wishes to ensure that the substantive equality rights strategy is maintained.

The challenge of diversity has been posed almost entirely in terms of substantive equality rights and of some sort of accountability for implementation to the minority groups. Surprisingly, in the discussion, diversity was not used in utilitarian terms as connoting a source of dynamic efficiency in modern socio-economies and polities. This is an argument one often hears about pluralism. Rather the term “diversity” was used almost exclusively as a public value standing in contradiction with efficiency. This was surprising and (together with the focus on substantive rights) limited considerably the scope of the inquiry.

Reference to Aboriginal groups and to minority groups underlined the new forms of accountability to minorities generated by the formal system of justice, and led to explorations of the impact and import of the effectiveness of the measures to promote access to the formal justice system.

3. Economics

Economists and lawyers are often at odds when dealing with justice. Economists have a rational model of the world and a central concern for efficiency. Moreover, the profession has a strong taste for measurement. In dealing with the justice process, economists have therefore applied their rational model, have celebrated the primacy of efficiency, and urged all concerned to quantify outcomes.

The study of legal aid programs has been used to illustrate the unfortunate consequences of a world without outcome measurements, but the focus of discussion was the process of resource allocation within the justice system. The argument made by economists is that outcome and impact measurements and evaluation studies can help to determine where the resources would have a more potent impact, and therefore should determine where the resources are allocated.

The case for the importance of research and measurement in determining resource allocation within the justice system is obviously strong. Moreover, the suggestion that outcome measurements may serve as surrogate numbers for what the price mechanism reveals in the private sector is reasonable. However, the temptation to ascribe too much potency to the rational model or to lionize quantophrenic exercises was not always altogether avoided in the debates.

4. New mechanisms and partners

The richness of the debates around the exploration for new mechanisms and partnerships in the delivery of justice was both surprising and yet predictable. The relatively secure boundaries of the debate that was deeply rooted in efforts to improve the existing system (not challenge it) led in fact to interesting probings much beyond the original mandate.

It all started with the need to define some rationale for the need to improve the justice system and some benchmarks by which it might be said to have been improved. This led to an exploration of the type of society Canadians want, and consequently of the type of justice it may wish to have.

It was recognized from the very beginning that the diversity of the Canadian population, and the unequal distribution of income and wealth but also of access to power, made it impossible to accept that a one-size-fits-all system would work. It was felt therefore that there is a need (1) for an agreement upstream on some basic principles, a sort of Magna Carta B that would guide the exploration, and (2) for an acceptation that it would be through “local justice” (i.e. an effort to work at the level of the different groups, disputes, issues, etc.) that one can expect to fine-tune better practices, and not through broad-ranging accords (Elster 1992).

The whole notion of culture of justice was debated, the difference between criminal and social justice, the pros and cons of a strict and simple reliance of the rule of law, the tyranny of majority rule, etc. New partnerships and new mechanisms were defined as having to be sought within this dual set of constraints of broad principles and local settings (Foblets 1996).

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