Expanding Horizons: Rethinking Access to Justice in Canada

Appendix B (continued)

Appendix B (continued)

New Partners and New Delivery Mechanisms
Speaking Notes

Lois Gander
Legal Studies Program, Faculty of Extension, University of Alberta

We have been invited today to consider afresh the question of how to improve access to justice in Canada – to “think outside the box” as the expression goes. We have not been assembled for this task because we are some learned society that amuses itself by pondering the imponderables, but because we believe that our current legal system is in critical need of repair or renewal.

For many of us, access to justice is not a new theme. We have been or are involved in the legal services movement with its promise of expanding access to the legal system whether through legal aid, native court worker services, or public legal education. Or we are law reformers, equality seekers, victims’ advocates, or mediators struggling to make the law have more meaning for people disaffected by the current system.

We know from these efforts that we are only working around the edges of the problem of accessing justice rather than getting to its core. Our legal theorists confirm our suspicions that the legal enterprise is deeply flawed. We find ourselves asking what access to whose justice? So we must heed Einstein’s caution that we cannot expect to solve a problem with the same kind of thinking that created it. If we want to get to the root of the problem of our legal system, think outside of the box we must.

Getting out of the box, on the other hand will be no easy matter. We have a great deal invested in the current system and much to lose in abandoning it. We may also have to think in ways quite foreign to us, ways that may seem absurd, fanciful, or foolish. We may need to set aside the analytical tools that normally sustain us, in favour of less familiar processes of reflection, introspection, and lateral thinking. Today’s discussions can only be a beginning, uncertain and halting, as we seek even for the questions we should be asking.

Our charge in this discussion group has been to consider who ought to be our new partners in our journey toward justice and in what new ways might we delivery our reconceived notion of justice. I propose that we begin by asking ourselves three questions:

  • Why do we now find ourselves in need of such deep reflection on the state of our legal system?
  • Who needs to be involved in renewing our justice system?
  • How will we deliver this new justice?

Considering these questions might help us remain connected to the best of our traditions, while pushing the justice project forward another step.

Why now?

To start that discussion, I would suggest that the challenges facing our legal system today have been provoked by a variety of factors, some of them contradictory and conflicting:

  • The public is increasingly dissatisfied with the law and the form of procedural justice it promises. Our system promise us our “day in court “– our chance to present our case to an objective judge in accordance with established procedural safeguards. But our system doesn’t actually help most people get to court on most of their claims. Legal aid is limited both as to coverage of matters and financial eligibility. It leaves both the poor and the middle class without assistance on a host of important legal matters. As for that objective judge, what good is she if the rules are so complex, the evidence so unstable that the outcome of my trial is so unpredictable as to be a “crap shoot,” as even judges have characterized the event? What good is procedural justice if the laws themselves are not just, if they favour the strong against the weak? Or if the best lawyer wins no matter the merits of the case; if the process can be manipulated by an unscrupulous lawyer who uses the very procedures of justice to wear down the righteous party? Procedural justice is a myth with little contemporary suasion.
  • We can not dismiss these complaints against the legal system as being the inevitable consequence of an adversarial system that by its very nature must produce both a winner and a loser. Not just the losers are complaining. The winners, the witnesses, the jurors, the spectators, the analysts, and the public all see the system as failing. Increasingly lawyers and judges are losing faith with it as well.
  • The equality provisions of the Canadian Charter of Rights and Freedoms have created the expectation that the law can deliver, not just procedural justice but substantive justice, raising the legal stakes considerably. Yet the courts’ decisions in delivering substantive justice have been as controversial as those delivering procedural justice. Canadians don’t seem to be as ready for this kind of justice as our Charter suggests.
  • Recent concern regarding youth violence and before that, parolee violence, has fuelled public dissatisfaction with both the retributive and rehabilitative functions of the criminal justice process. The law seems to offer us too little protection against the lawless.
  • The multicultural makeup of Canada means we have widely divergent experiences with fundamentally different legal systems leaving us with no public consensus on the meaning of justice. There is no shared understanding of the roles of the various players in the legal system; no shared history, romanticized as it may be, of the struggle to establish the rule of law as a cornerstone of democracy; and no shared commitment to its continuation.
  • Canada has become a “rights based” and litigious society. Canadians turn to our flawed legal system with increasing frequency and urgency to resolve an ever-expanding array of problems.
  • Maintaining a legal system with these demands on it requires an increasingly complex and expensive administration for which the public is less and less willing to pay. As the public sees it, they are being asked to pay more and more for a system that is increasingly dysfunctional.
  • The public’s resistance to paying for the legal system is matched by the litigant’s increasing inability to pay to play the legal lottery. The legal system is inaccessible not only to the poor but to the middle class as well. The cost of legal services bears no relationship to the benefits delivered.
  • The erosion of our sense of ourselves as social beings and as citizens capable of perceiving a public good that exists beyond our private self-interests has rendered us merely consumers of services, even government services like our courts. Our recourse is to complain about the service that we receive, not take responsibility for it.
  • The dominance of multinational corporations threatens to make all talk of citizenship and rights of little consequence creating a sense of urgency about asserting our collective authority.
  • By calling into question the meaning of meaning, post-modernism challenges the complacent acceptance of our current, positivist concept of law. Legal positivists would have us believe that the law is the law is the law. But post-modernists tell us that the very notion of law is contestable. The meaning of law resides in the understandings of everyone who experiences it in any of its host of forms, formal and informal. If meaning is not fixed then we can create whatever understanding of law or justice we want. On the one hand that is liberating; on the other hand it imposes a moral obligation on us not just for the specific laws we adopt but for the very notion of law we perpetuate and the kind of justice we pursue.

In short, our legal system is showing signs of wear and tear and the public is demanding an overhaul that will deliver a more satisfying form of justice at a cost they are willing to bear individually and collectively. Intellectually we feel empowered to reconsider fundamental assumptions underlying the legal enterprise we have inherited and to revisit its role in our pursuit of justice.

Once the question of justice is engaged, it admits of a host of possibilities, some yet to be imagined. To make sense of those options, we must first address the question of legitimacy. We must ask whose justice we are seeking to affirm through our inquiry.

Whose justice?

If we are to get back to basics in our examination of justice we must get back to the basic unit of society, and re-vest in citizens the responsibility for determining what kind of justice we will have. But in doing so, we must guard against a knee-jerk, irresponsible form of direct democracy that enables people to hide from the consequences of their decisions. Rather we need forms of public engagement that promote conscientious participation in, informed discussion about, and enlightened reflection on the meaning of justice as it is played out in real life situations. We must strive for an inclusive notion of justice, one that draws from the richness of the diversity of Canadians’ experiences. Moving forward on this means finding ways of engaging everyone in meaningful contemplation of the most fundamental issue we confront as a civilisation.

This may seem a daunting, if not impossible task - to be dismissed out of hand. Yet it is happening as we meet. And it is taking place in communities that seem on the surface to be least capable of undertaking it. I speak, of course, of restorative justice programs operating in some of Canada’s most troubled communities fraught with some of our most intractable problems. Their experiences suggest that involving people in the real-life problems of their communities not only provides a more satisfying form of justice, but transforms both individuals and communities.

Restorative justice is not the only vehicle we have for re-imagining justice but it is a handy one since police forces are implementing this approach to fighting crime in communities all across the country. Properly run, restorative justice programs provide us not just with new forums for dispensing more satisfying justice but with new sites for advancing our understanding of justice itself. Restorative justice programs empower individuals to exercise the duties and to experience the rewards of acting as citizens in a democratic society.

As more and more people gain experience in this new form of community problem solving, we will acquire a critical mass of people who have seriously contemplated the meaning of justice in a host of situations. If their stories of justice are shared, we can generate a new body of “common law” to guide our relations with each other – a body of law in which we see ourselves and our sense of justice reflected but which transcends our time or place.

So I would propose that the most important new partner in the justice enterprise must be the Canadian public acting in their role as citizens. Unaccustomed as we are to assuming this responsibility, we will need assistance of all sorts. We will need to recapture the wisdom of the ages as known to our elders, historians, anthropologists, philosophers, religious leaders, and others who study the human condition. They too become new partners in justice as they help us find new ways of thinking and feeling about ourselves as whole beings, not just as isolated, rational, self-interested individuals. We will need their guidance in cultivating a passionate concern for the well-being of our fellows and a compassionate disinterest in the specific outcomes of the social choices we face. Moving forward means making a passion for justice the defining characteristic of Canadians!

What access?

If it has become critical for us to re-conceive justice at this time, it is at least a propitious time from the point of view of the availability of new mechanisms for delivering justice. Providing unprecedented communication capability, the Internet opens up entirely new ways of delivering and conversely accessing justice, indeed for effecting justice. We have efficient new ways of reducing administrative costs, managing social knowledge, and delivering justice.

The word “delivery” does not resonate well with the process of re-conceiving justice that I have been suggesting. Delivery suggests a one-way transfer of goods, in this case, justice. Someone or some institution has the job of manufacturing the goods and those goods are then dispensed to someone else who needs them. It suggests a process of consumption – someone needs justice and so goes somewhere to get it, at a price. We are reduced to the role of consumer in this transaction as I have already noted. This is anathema to the kind of participatory justice I have been discussing.

If we are really to rethink justice, we must be open to other ways of conceiving the sources of justice. If, for example, we see justice as lodged in the hearts and minds of all of us rather than in only the deliberations of an anointed caste, then justice is effected rather than delivered. We realise justice in our interactions with each other every day. Justice is as accessible as our nearest neighbour, our teacher, co-workers – our boss! Justice is not so much delivered as it is made manifest and shared.

What we need to help us “access” this shared justice are mechanisms that liberate the impulse for justice inherent in our humanness. We must give ourselves permission to be just and to insist on justice from each other. That requires us to become more self-conscious and to take responsibility for refining our sense of justice, both individually and collectively – as Socrates said, to think each day of goodness. Living justice requires that we engage as citizens in effecting justice – not delegate that responsibility to someone or some other institution to attend to on our behalf. It also means that we pursue justice everywhere that injustice occurs – in our homes, schools, churches, streets, hospitals, workplaces… and courts.

Certain processes will be needed to bring this to pass. We will need ways of engaging with each other, of accessing the wisdom of the past, of gathering good intelligence about our problems, and of learning from our successes and mistakes. Our new delivery models will include both real and virtual, transient and institutionalised, centres of justice. They may be small and temporary clusters of community members such as we see in family group conferencing, or more fluid, self-organising learning communities on the internet. They may be permanent centres of research, study, and training or electronically delivered justice resources. Imagine learning about justice rather than law in school. Imagine consulting justice professionals instead of legal professionals. Imagine a new common law emerging as communities recover their responsibility for managing their conflicts and as their practices are examined through public reflection and debate. Imagine web sites designed to make all this knowledge and wisdom readily accessible.

New visions of justice are only possible if we are prepared to abandon the familiar for a moment and entertain alternatives, no matter how unrealistic they may seem at first. Within them may lie the germ of an idea worth maturing. In the last few decades we’ve experimented with a variety of alternatives to our mainstream legal system in the forms of alternative dispute resolution, voluntary compliance, diversion from the criminal justice system or creative processes for sentencing offenders. We have had much success with these efforts. They embolden us to move even further away from the centrifugal force of the legal system. Post modernism permits us to admit the wider experiences of the public to our understanding of law and to open up the justice enterprise to different forms and to fuller public participation. We can and should see that the differences that threaten to divide us constitute a rich pool of experiences about law that can help us deepen our commitment to justice. We can and should mobilise public discontent and transform it into active engagement in effecting justice.

If we want this renewal to succeed, we cannot simply wish it into being nor devolve it, unsupported, to the public. There is a real temptation these days for governments to hand off many of the responsibilities that we’ve come to rely on them to provide. Downloading and outsourcing justice will not produce the results we want. Governments will need to provide resources in a variety of forms. To do that, we may need to shift resources away from conventional legal systems and services. That is where the test of our commitment to justice will really lie and the erosion of the vision may begin to occur. It is there that we must be prepared to take our stand.

Conclusion

Our legal system is in disrepute, under attack from many directions. Patchwork efforts to respond to criticisms have taken us only so far. If we are to meet the challenge of our time, we must consider new forms of access to new kinds of justice. This in turn necessitates taking on a major new partner, or rather an old one, the public. It means engaging in the very oldest tasks of citizenship: determining what kind of society we want to live in and what form of justice it will pursue. Only as we embark on this journey can we know what kind of new delivery vehicles we will need. A host of them await our use. Some may not look so new at all – public institutions that have been at hand for decades if not centuries. Others may sport the latest in technological enhancements.

If we venture this far out of the box, what would we dare to dream? Where would we begin? With whom would we choose to engage? What kinds of questions would we ask as we begin to probe the issues? What kinds of processes would help us in our inquiry? What kinds of justice might we be ready to invent?

If we take this project seriously, will there still be a place in the future for law as we know it? As we give new meaning to justice, will we give new life to the law? Is the triumph of the rule of law behind us while the pursuit of justice is forever before us? Or will we create new forms of justice within the rule of law? As we cast our eyes across our expanding horizon, what do we see?

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