Expanding Horizons: Rethinking Access to Justice in Canada

Appendix B (continued)

Appendix B (continued)

Riding the Third Wave - Notes on the Future of Access to Justice

Ab Currie, Principal Researcher: Access to Justice
Research and Statistics Division
February, 2000

A fundamental principle of the justice system is that it exists for all citizens and legal residents of Canada. The laws and the justice system exist to enable citizens and legal residents to understand their rights and obligations, to enforce the obligations of others, and to take full advantage of the protection of the law.

The phrase access to justice describes a distinct domain of justice policy. The traditional problem statement or paradigm of access to justice can be stated as follows: guarantees of rights, benefits, and entitlements and of protections under the law are meaningless if mechanisms are not in place to assure access to the means of assuring those rights and protections. Access to justice and fair treatment under the law must be equally available to everyone in the society.

Access to justice is a matter of fundamental social policy. Having full access to the justice system defines an important aspect of legal citizenship. At the societal level, access to justice implies an important connection between justice policy and the broader public policy issue of social cohesion. Full access to justice for citizens implies that they will have a positive attachment to the justice system, expressed as respect for the rule of law and confidence in the justice system. This represents a form of attachment to the society through the central social institution of the justice system. In theory this will lead to a greater level of social cohesion

The access to justice movement emerged as part of the welfare state in several western European and British Commonwealth countries.[3] The emergence of access to justice as part the welfare state is an important defining feature for the access movement. This was the reliance on the state to assume the responsibility for assuring the protection of legal rights, benefits and entitlements. The collective experience of the economic depression that had effected most countries beginning in 1929, and the hardships of the Second World War, probably explain the preference for policies of substantial state involvement in the provision of access to justice services. This history is important because of recent changes in thinking about the role of the state and the role of the community in addressing justice problems.

Institutions for assuring access to justice for the poor assumed a typical form in Canada and other common law countries. In civil law countries, such as Italy, France, and the Netherlands, the state tended to play a very direct role in institutions for the provision of legal services to the poor. In common law countries, on the other hand, the legal profession tended to assume the lead role in the organization and provision of access to government-funded justice services to the poor. This is reflected in the extent to which a case advocacy style of legal aid emerged as the main expression of access to justice, dominated by the profession. This is important later as the justice system changes away from a litigious and adversarial model of dealing with justice problems.

In a classic description of the access to justice movement, Cappelletti and Garth[4] identified what they termed three "waves" in the development and evolution of access to justice. The first wave of access to justice, which emerged in the post-war period, was legal aid. The second wave was the representation of "diffuse interests". This includes class actions and public interest litigation, and the emergence of public interest centres. The third wave, according to Cappelletti and Garth, is a more fully developed access to justice approach. The third wave goes beyond case-centered advocacy. It represents a broader panoply of less adversarial and less complex approaches, including changes in forms of procedure, changes in the structure of courts or the creation of new types of courts, the use of paraprofessionals, and changes in the substantive law itself.[5]

When Cappelletti and Garth wrote in 1975, the third wave was just beginning to emerge. The third wave embodied a variety of reforms to the legal system. There was recognition of the need to go beyond legalistic strategies to solve problems.[6] There was also recognition of the need to look at the problems differently. The formal justice system was ill equipped to deal effectively with the complex problems that were being thrown at its door. The legal issue is often only the "tip of the iceberg". In order to achieve effective and durable solutions, the underlying social, cultural, psychological dimensions of the individual's situation must be considered. Integrated and multidisciplinary approaches, involving social, health care and other services, in combination with solutions to legal issues are required.

However, change occurs slowly. Old forms and emerging new forms can coexist for a long time. Twenty-five years after Cappelletti and Garth, we continue to struggle with the problem of reconstructing a more effective justice system. The adversarial and litigious approaches of the traditional justice system remain as important features of the justice system. They are, however, slowly being combined with "holistic" approaches; with restorative justice approaches in criminal justice and with various forms of alternative dispute resolution in civil justice. We are recognizing that multidisciplinary approaches in which the justice system partners with service providers from health care and social services are necessary to develop more effective and durable solutions to justice problems. We are recognizing that affected communities and interest groups are in themselves valuable resources for defining problems and developing effective solutions. There is a powerful case to be made for partnerships between communities, interest groups, health care, educational and social services, and elements of the mainstream justice system in developing approaches to solving justice problems.

The third wave contemplates a much greater range of access to justice approaches than the first and second waves. Access to justice in the first wave can be characterized as lawyer-centered within a litigious and adversarial justice system. The focus was on criminal and civil legal aid for the most serious problems. It has often been argued that needs for criminal legal aid is given the greater priority in resource allocation.

The vast majority of legal problems encountered by members of the public are civil legal problems. The majority of them would not be considered serious by the justice system. Most of the people involved would probably not be able to afford a lawyer to represent them in court in any case. They are what the anthropologist Laura Nader has called the “little injustices”. These are important to the people who experience them. They can be persistent and unresolved irritants in their lives. The little injustices are also important on a broader societal level. Respect for the rule of law and confidence in the justice system may be based on people having access to mechanisms to resolve these legal problems. In turn, the presence of these aspects of legal citizenship may translate into greater social cohesion at the broader societal level.

The earlier stages of the third wave emphasized procedural reforms to the justice system. It may be that more recently the "third wave" is breaking in the direction of greater involvement of community groups in providing access to justice services. We are moving away from lawyer centered access to justice, which is primarily case advocacy legal aid. The third wave of the access to justice movement, as conceived by Cappelletti and Garth, contained a clear expression of the idea that legal strategies are not enough to solve the access to justice problems of the poor.[7] This shift appears to broaden the concept of access to justice from providing people with the ability to enforce legal protections and guarantees to resolving the problems that they face, through a combination of legal and non-legal solutions. In turn, this reflects the increased emphasis on multi-disciplinary approaches to access to justice problems in which the justice system develops partnerships with other institutional sectors such as health care and social services. It reflects an increased emphasis on developing partnerships between the justice system and community groups, drawing on the resources of communities and affected groups to better define the nature of justice problems and to develop more durable solutions to them. Access to justice thus becomes an important part of the shift toward a more citizen-centered and community-focussed justice system.

Much to the advantage of the first wave of the access to justice movement, the legal profession has been politically powerful. Legal aid has been well funded by government, with national expenditures growing from about $15 million in the early 1970's to more than $600 million in the mid-1990's. Since about 1993-94 national expenditures on legal aid have declined by more than 30 % as governments have cut back spending on access to justice along with general funding constraints. What does this suggest for the future of access to justice if, indeed, it is developing toward a more community-based model?

There are currently many community organizations providing a variety of access to justice services; PLEI organizations, organizations representing the interests of particular groups (women, immigrants and ethnocultural minorities, youth, for example). The ideology of community-centered approaches to addressing justice problems is gaining some prominence, if not hegemony. In addition, it is true that community-based pilot projects in service delivery are beginning to show concretely that the community-centered approach works. The idea of linkage between traditional legal aid and other providers of justice and other services is taking hold in what may be referred to as a "continuum of service approach". This means choosing from a range of integrated legal and social solutions to justice-related problems, as early as possible in the process, and applying the most appropriate effective solution to the particular problem. There may be a greater degree of integration between traditional access to justice activities, such as legal advice and assistance, and legal representation, and more community-based and citizen-centered approaches.

However, a shift away from the traditional system-based approach to access to justice, toward greater involvement of community associations may not be free of potential problems. From the point of view of users, the problems are that the system of access to justice as it currently exists may fragmented. There are no easy or well-known entry points. People may not know where to go to begin dealing with a problem. The second problem is one of integration among the variety of services that an individual might need, or they may not be very accessible or widely available.

Community-based access to justice services, that may currently exist or that might be developed, may face some serious difficulties. An environment of financial constraint has become a fixture. The law is becoming increasingly complex. Canadian society is becoming increasingly complex and socially diverse. Clients have more problems and more complex problems. In this environment of increasing complexity of problems, and fiscal constraint, both existing access to justice organizations and new ones could be straining under the load.

Subsequent waves of the access to justice movement have added to, but have not replaced, earlier developments. Legal aid remains a cornerstone of access to justice. Changes in the justice system, of which legal aid is an integral part, are inviting legal aid to reassess what role it will play in a justice system that is less adversarial and litigious, and more holistic.

Law reform and procedural measures to make dispute resolution processes less complex remain important. There is evidence that people tend to reject formal trial procedures in favour of more informal dispute resolution processes where they have "a chance to be listened to, but in a much less formal setting".[8]

As the third wave of the access to justice movement rolls onward, two new aspects may be emerging. One may be an increasing reliance on community-based access to justice services. A second may be an increasing emphasis on holistic solutions to justice problems, in addition to the traditional protection of rights orientation of access to justice. The community-based aspect contributes the considerable resources resident in communities to addressing access to justice issues. In addition, community-based access to justice implies equipping individuals to play a more active role in constructing solutions to their justice problems. The holistic, solution-oriented element adds an interesting new dimension to the traditional concept of access to justice, the protection of rights. How these new aspects integrate with the existing access to justice framework presents a series of challenging questions.

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