Expanding Horizons: Rethinking Access to Justice in Canada

Appendix B (continued)

Appendix B (continued)

Some Aspects of Access to Justice in Canada

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

"The meaning of access to justice can reflect a wide range of different values and objectives in relation to a great diversity of issues and activities."[9] It would thus be a task of some considerable scholarship and sheer effort to describe the state of access to justice in Canada. It is considerably easier to identify some of the main features of access to justice as these currently exist. This may be useful for people with little familiarity with the concept of access to justice, and the history and development of the access to justice movement. It describes the main elements of access to justice as that term is usually discussed. It will hopefully provide a "jumping off" point in a discussion of what access to justice might be.

Legal Aid

By far the largest segment of the "cognitive map" of access to justice is the legal aid system in Canada. Each province and territory administers a legal aid plan that provides legal defence in criminal matters for people who meet financial eligibility guidelines that place them among the very poor and who require a lawyer to assure a fair trial in matters where there is a risk of imprisonment. As well, and in varying degrees, legal aid plans provide legal representation in civil matters, including family, social welfare law, and refugee and immigration proceedings. Again financial eligibility guidelines limit the service to the very poor, and coverage provisions limit the legal matters for which service is available. The range of coverage varies considerably from one jurisdiction to the next.

Legal aid grew out of a pro bono system that prevailed in most provinces up to the mid-1960's. As an expression of professional responsibility, lawyers would take on a few cases per year at no charge for indigent people. Organized legal aid began in some provinces in the mid-1960's. By the early 1970's there were legal aid plans in every province and territory, and a federal program for sharing the cost of criminal legal aid with provinces and territories was in place. In the early 1970's federal funding became available for civil legal aid under the Canada Assistance Plan (now an element of the Canada Health and Social Transfer Agreement).

Legal aid is by far the largest of the access to justice programs in Canada. Total national expenditures on legal aid grew from about $13 million in the early 1970's to just under $650 million in 1994-95. Total expenditures have declined to about $455 million in 1997-98. Total applications for legal aid peaked at 1,128,000 in 1993-94, falling to 802,000 applications in 1997-98.

Public Legal Education and Information (PLEI)

PLEI programs also began in some parts of the country in the late 1960's, mainly in student law clinics and consumer advocacy groups. PLEI is not legal advice. PLEI is information about the law and about how the justice system works, designed for lay persons. It can be reactive and problem-oriented or it can be educational and focussed on the democratic principles and values of the justice system. PLEI can be provided by means of several types of media (print, video, internet), and by means of a variety of delivery mechanisms (intermediaries, school programs or telephone law lines). Ideally, PLEI has an "empowerment" dimension. It attempts to equip people to play at least some positive role in the recognition and solutions to their problems, or to participate positively in public debate and discussion about law reform and other justice issues.

The PLEI landscape is considerably more varied than is the case for legal aid. There are many organizations that provide legal information; multicultural service organizations, victim's organizations, consumer groups, environmental groups, gender equality groups, and disability associations provide only a few examples. Some legal aid organizations have a substantial PLEI component, such as the Legal Services Society of British Columbia and the civil legal aid clinic system of Legal Aid Ontario. These organizations serve different constituencies and are funded in a variety of ways. There are 12 core PLEI organizations, one in each province. This national network was developed between 1984 and 1987 under a Department of Justice initiative. Some organizations were created in jurisdictions where none previously existed. In some jurisdictions, existing PLEI organizations were designated as part of the core PLEI network. This assures that there is at least one PLEI organization in each jurisdiction that is a central and sole-purpose PLEI agency.

Data on total national expenditures for PLEI representing all PLEI activities are not available. In 1996-97 the total expenditures by the 12 core PLEI organizations totaled about $7.5 million. This is less than one per cent of the total expenditures by the 12 legal aid plans.

Court Workers

The third access to justice program that is national in scope is the Native Court Worker Program. The main objectives of the Native Court Worker Program are directed toward both Aboriginal accused persons and the justice system. With respect to individuals, the objectives are to inform Aboriginal people accused of crimes about the justice process that they are involved with, to assist Aboriginal people in seeking legal aid and other services. With respect to the justice system, the objective is to acquaint the actors in the justice system about the cultural and socioeconomic circumstances of Aboriginal people that require sensitivity in the treatment of Native people. Native court worker services are delivered by some twenty, mainly Native, organizations that serve as "carrier" agencies. The cost of the Native Court Worker program is shared by the federal, provincial and territorial governments. Total expenditures are about $11million nationally.

There are other organizations that provide court worker services for accused persons generally. The Salvation Army, the Elizabeth Fry Society, and John Howard Society all provide at least some court worker services in some places.

These are the three main "programmatic responses" to access to justice in Canada. Legal aid occupies about 99 per cent of the terrain that has been mapped out so far. Legal aid is the most system-focussed of the three. It is, of course, lawyer dominated. It is strongly focussed on in-court representation for what are considered the most serious legal matters. Legal aid is most strongly focussed on access to the justice system. More precisely it is access to legal representation within the justice system. The two smaller programs have a more substantive orientation toward access to justice.

Court Reform

A major thrust in the access to justice movement has revolved around increasing efficiency of the courts. It is widely and often recognized that the complexity of the system itself is a major barrier to access to the justice system. In this notion of access to justice, policy makers strive to increase accessibility by increasing efficiency of court processes and simplifying court procedures. This approach to access to justice also includes administrative reforms relating to such issues as hours of operation, location, and structure (e.g. unified courts). The Zuber Report in Ontario provides an illustration of this aspect of the access to justice terrain.[10] It might be said that these types of reforms are aimed primarily at improving accessibility for existing litigants. Bringing access to justice for more people may require additional measures.

Alternative Dispute Resolution

Alternative dispute resolution, or ADR, is an attempt to find more effective dispute resolution mechanisms than litigation in court. ADR encompasses a wide variety of methods. Pre-trial conferences, court-ordered arbitration, "rent-a-judge" firms, small claims courts, divorce mediation, and neighbourhood or community justice councils are among the familiar examples.

Pre-Paid Legal Insurance

The cost of legal services is often said to be prohibitive, for all but the wealthy. Pre-paid legal insurance is one way to provide access to legal services for middle income earners. While legal insurance schemes are common in Europe, they are quite rare in Canada. At least one labour union, the Canadian Auto Workers Local in Windsor operates a not-for-profit legal insurance plan. A few private insurance companies are attempting to market for-profit pre-paid legal insurance plans. At least two Canadian banks make available legal insurance plans. For a monthly fee, legal insurance plans offer telephone advice, follow-up letters, and coverage for specified legal matters such as divorce proceedings, wills, real estate transactions, adoptions, and powers of attorney.

Public Interest Advocacy

Since the 1960's there have been organizations dedicated to using legal means to address social, consumer, and environmental problems systemically rather than on an individual case advocacy basis. This is public interest advocacy. There are a number of public interest organizations in Canada, such as the Canadian Environmental Law Association or the Legal Actions and Education Fund. Several legal aid organizations will take on public interest cases under some circumstances. Legal Aid Manitoba has a Public Interest Department.

Pro Bono Services

Pro bono services were the antecedents of the modern legal aid system. A considerable amount of pro bono service is still provided. Some law societies and bar associations actively encourage their members to provide free legal services. The Law Society of Upper Canada surveys the pro bono activities of its members. According to the 1998 survey, 24 % of Ontario lawyers reported that they provided some pro bono service. The average was 83 hours of free service per year. The Law Society of Upper Canada, in partnership with the Canadian Bar Association - Ontario and the United Way, provides free legal service to charitable organizations. A similar scheme operates in Alberta. The Manitoba Bar Association operates a pro bono public interest law project to conduct test case litigation. Some pro bono services are targeted at special needs groups. The Alberta Branch of the Canadian Bar Association operates a pro bono advice service for battered women. The Law Society of Saskatchewan operates a pro bono legal service for persons aged sixty-five and over who qualify for provincial income support. Student law school clinics provide pro bono services. Private law firms also provide some pro bono services.

All of these activities provide access to the justice system. There appears to be a considerable amount of pro bono activity in Canada. It is difficult to construct a systematic picture of the nature and volume of pro bono legal services. However, they are a part of the access to justice schema.

Concluding Remarks

This is a brief and incomplete map of the access to justice terrain. In some respects, the map is incomplete because the landscape itself is incomplete. For the most part, what has been described here represents access to the justice system, with some exceptions with regard to PLEI and Native court worker services. Legal aid, pro bono services, and ADR provide access to the system. Public interest advocacy attempts to use the legal system to remedy systemic problems.

The concept of justice can be extended into the realm of substantive justice. According to Mossman, this is reflected in the opportunity presented by the Charter for litigation as a vehicle for social change.[11] This may apply to all minorities: women, the disabled, visible minorities, homosexuals, and the economically disadvantaged generally. Again, this approach uses the legal system to address substantive problems.

Thinking about access to justice might extend even a little farther. Our conventional concept of justice and how to achieve it is a reflection of the traditional justice system. We may not know as much as we think about the way in which people define legal or justice-related problems, the notions of justice that are held by minority groups or by many ordinary people in the society, and about their preferred approaches to achieving justice. Some scholars have long cautioned us that the justice system does not necessarily deliver justice.[12] More recent empirical studies point to the fact that people tend to favour more informal forms of dispute resolution because the lack of procedural complexity allows them to "be listened to", and to play a meaningful role in the process.[13]

These thoughts wander even further into the terra incognita on the boarders of access to justice. Reflecting the superstitions and fears of the times, map makers in the early part of the last millennium would sometimes inscribe at the edge of their known world - "there be dragons here". There is, at least a great deal to be discovered.

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