Expanding Horizons: Rethinking Access to Justice in Canada

Appendix B (continued)

Appendix B (continued)

Justice is a Noun, but Access isn't a Verb

Roderick A. Macdonald, President Law Commission of Canada

Draft Only; Not for Attribution

Speaking notes for the Symposium Expanding Horizons: Rethinking Access to Justice in Canada sponsored by the Department of Justice of Canada, and held at the Delta Hotel, Ottawa, on March 31, 2000.

Introduction: Justice is a Noun But Access isn't a Verb

It is, of course, difficult to say much in seven minutes. Especially for a professor who is accustomed to talking in 50 minutes sound-bytes. Nonetheless I shall try. I am honoured to be joined on this panel by Judge Mary-Ellen Turpel-Lafond and Jacques Dufresne. Judge Turpel-Lafond personifies an extraordinary combination of thoughtful, articulate scholar and committed, compassionate judge. We are fortunate to have people like her serving on our courts. Jacques Dufresne, whom I have known for ten years, is a remarkable man. Philosopher, professor, social critic, controversial, he has shed light in the darkness and shed light onto what our society can do to be more humane, compassionate and just.

The key trends identified in the background documentation are those I know well -- all the way from my experience as Director of the Community Law Programme at the University of Windsor in 1975, through work with the Law in Society Programme of the Canadian Institute for Advanced Research in the mid 1980s, through chairing the Groupe d'étude sur l'accessibilité à la justice in Quebec from 1989-1991, through my empirical study of the small claims court process in Montreal in the mid-1990s, to my present role as President of the Law Commission of Canada.

What follows is an attempt to distil five short messages -- one drawn from each of these experiences. After 25 years of toiling in the fields of community legal education and access to civil justice, I have one central message. It is this. I once believed that more official top-down law was the only road to more justice. Now I no longer see the challenge in purely instrumental terms. Rather our challenge is much greater. It is to rethink our attitudes and our expectations about who owns law, about what it can realistically accomplish, and about how it can most effectively be deployed to promote a more just society.

I. Information is Power -- Sometimes

Public legal education can be a double-edged sword. Far from enhancing access to justice, it often winds up enhancing dependency on lawyers, courts and the formal system. Far from educating the system about the legal needs of the public, legal information programmes typically co-opt the public into thinking that they needed the system.

So the challenge is: How can we provide information and resources for citizens so that they can make the official system more sensitive and responsive to their understandings of the requirements of a just legal order?

II. "Law in Society" is not the same as "Law and Society"

"Law" and "society" are not two different things. Law arises in social interaction. The policy objective cannot be to make the recalcitrant facts of social life conform to the neat patterns of official legal regulation. The exclusion of so many people from the presumed benefits of the legal system flows directly from the inability or refusal of official law enacted by legislatures andadministered by courts and tribunals to make space for the living law of everyday human interaction.

So the challenge is: How do we generate an official law grounded in human interaction and in the ongoing negotiation of the conditions and forms of justice between citizens and courts and Parliament?

III. "Access to Courts" is Not the Same as "Access to Justice"

Making dispute-resolution institutions more objectively accessible will not overcome the main failings of official law simply because official law is, in myriad ways, the cause of these failings. This is not to argue for privatizing civil disputing. Civil disputes do not have ready labels and characteristics that permit them to be streamed into different A.D.R. processes. Like music, art, poetry, ballet, the movies and dance, the role of law is to take the unarticulated hurts and frustrations of life and give them form whereby they may be framed, argued about and channelled into productive exercises of moral growth for those in conflict. Institutions of official justice meant just to resolve conflict in adversarial and non-restorative contexts have a limited capacity to do so.

So the challenge is: How do we reconceive human conflict in a manner that permits official institutions to replicate the wisdom of unofficial social symbolisms, and unofficial social symbolisms to replicate the democratic and social egalitarian values we ascribe to our official processes?

IV. Diversity and Disenfranchisement

Even in institutions and processes designed specifically to enhance access to justice such as small claims courts, the paradigmatic plaintiff is just like me -- white, male, non-immigrant, English or French speaking, professional, well-educated, between 35 and 55. Identity and diversity have shown themselves to be enormously complex concepts. Yet the one abiding social differentiator, transcending all other inequalities, is social class. The economic roots of inequality cannot beeradicated simply by enhanced recourse to official dispute-resolution institutions. The standard professional image of law no longer resonates with the Canadian public. The failure of official law to recognize and legitimate diversity argues for recovering pluralism as a means to contest official law. Access to justice means empowering a diverse citizenry to make, decide and enforce their own law in the multiple sites where they actually find normative commitment.

So the challenge is: how do we create a system that actually keeps questions of identity and diversity alive in its rules, processes, and personnel?

V. Justice Resides in Human Aspiration

Law is at once a dynamic and a fragile human accomplishment. It mirrors and partly moulds the moral character of a society. Law is as much the affair of all Canadians, as it is the business of legislatures, courts and lawyers. Citizens know that, however much legislatures, lawyers and courts claim a monopoly on law, it is the unofficial law of their day-to-day lives that underlies a just and respectful society. Canadians renew the law by living the law, often managing to redress the injustices of an official law that Parliament is unable or unwilling to change.

So the challenge is: How do we provide opportunities for citizens to participate more fully in legislative and administrative processes by which law is made?

Conclusion: There are no Slogans

It is always tempting to want to boil down social complexity into slogans -- like efficiency, wealth maximization, and even "access to justice". But we must resist the reductionism of slogans.

Talk of "access to justice" twice displaces what should be our objective. We come to focus on "access" to justice rather than on "justice" itself; and while we proclaim "access to justice" as a goal, what we really mean is "access to law". The most significant concerns about justice felt by Canadians have little to do with narrowly cast legal rights; they have to do, rather with recognition and respect. And the most significant barriers to access can only be overcome through a re-orientation in the way we think about conflicts, rights, adjudication and all-or-nothing judicial remedies; disparities in social power, and not procedural glitches in the processes of civil litigation, are the root of injustice.

Most contemporary proposals to enhance access to justice are simply the reaction of an official system that fears losing its capacity to control to the various other social institutions and practices of civil society where people negotiate and live their own law. The obsessive quest for official legal solutions means that we are now less inclined, and less able, to imagine creative responses to disparities in power, and the challenges of building a just society grounded in deep human affect.

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