Expanding Horizons: Rethinking Access to Justice in Canada

Appendix B (continued)

Appendix B (continued)

The Role of Citizens and Communities

Carol McEown
British Columbia Legal Services Society
March 2000

I have three stories that I think might help frame our discussion this morning.

In the mid-seventies, community law centres were in fashion. In the middle of the province the Gitxsan and We’etsu’eten received funding to establish the Upper Skeena Counselling and Legal Assistance Society. An early staff member, in a letter for an anniversary event, recounted her initial reluctance to be part of this new organisation dealing with legal issues – there was little case law on aboriginal rights at that time and her people’s experience with the law was not positive.

USCLAS offered the usual services of a community office, public legal education workshops, information, assistance and representation on non-tariff matters to aboriginal and non-aboriginal population of Hazelton. But soon it was also dealing with aboriginal rights issues. The first were hunting and fishing rights cases, and the storyteller believes that it was a fishing case that altered the perception and attitude of her people of the law and the courts. She wrote:

“This was when our fishermen took on the system and the courts to protect Gitxsan fishing rights. Twenty-three charges were laid on 17 of our people and family nets had been seized. The charges were bandied about in the courts for over a year until our chiefs decided to take the system on. The nets illegally seized by the Fisheries officers were retrieved when our chiefs marched into their office, into the holding rooms and took back their nets! A judge who was instrumental in keeping the cases afloat in the court was gotten rid of when we challenged his racist comments and finally, the Supreme Court of BC assigned a judge who heard all charges in one day. The cases were thrown out of court! What a memorable victory! This was a stepping stone to developing cases to set precedent to set the stage for land claims research”

Example of a community able to use the justice system to make it work the way it is supposed to work. By successfully asserting their rights, they learned that they could use the law to promote their interests.

The community was later successful in negotiations with the provincial government to create band child welfare committees and new protocols to protect aboriginal children and keep them in their communities. This was an excellent example of good citizenship and community involvement in reforming or changing a system to benefit the community. Their actions had a real effect on the larger community, how we see aboriginal people and their claims for justice.

The second story is about the efforts of community groups to help people appearing un-represented in family courts. In the mid eighties, during BC’s recession, the province and then legal aid stopped providing lawyers services to people in family court. The PLE program produced some simple self-help publications to assist people who wanted a judge to make the decision.

People, mostly women, were turning to women’s groups, court workers and poverty groups for help. The Public Interest Advocacy Centre in BC was asked by the federated anti-poverty groups to train community advocates to help people with their family court applications. A program was developed and funded, in part by the Department of Justice, to provide family court advocacy training to assist people to help applicants and respondents fill out family court forms and prepare their cases. Community groups who sponsored the training had to meet three criteria. They had to:

  1. Demonstrate a need for the service.
  2. Make a commitment to provide the service, including coordinating volunteer advocates.
  3. Agree to establish an advisory committee with representatives from the family court/justice system who would be willing to provide support for the work.

There was a great demand for the training programs and most workshops were oversubscribed. The evaluations of the training sessions were very positive with participants and representatives from the advisory committee rating the workshops as excellent. Family court advocacy services were provided through community groups in 18 centers. A follow-up evaluation, two years later, found that half of the advocacy projects had moved away from helping clients to represent themselves to providing information, referral and ‘emotional support’.

Two critical elements were needed to make the project work. The community group sponsoring the program had to have stable funding, sufficient resources to manage the program and credibility in the community. As well, it needed one person in the family justice system as a partner. Without staff and community credibility, it could not maintain the services. Without the support of someone in the system, it was too hard to continue to provide the service. Clients weren’t referred, their work was challenged, backup wasn’t available.

We have now experienced our umpteenth study of civil justice, especially family law matters. Again, as in the early 80’s people have asked for the law to be clear, alternatives, such as mediation to be available, and that the legal process be kept simple. What we have now is a system so complex, so fragmented it is crazy making. Mandatory parenting programs, mediation, child support guidelines, case management, case conferences, complex rules reduce peoples’ access to the legal system.

Again, as in the early 80’s we have reduced publicly funded legal services for family law matters. This time the explanation is not just containing costs. The rhetoric is not about options but about showing people how to do the right thing, be good parents, not fight about money, be understanding.

And again, we have been asked by community groups and others to develop self-help publications and training. The 12-page booklet has become 60 pages, the financial form has grown from 2 pages to 10 pages. The rules are much more complex forcing people through many doors and forums before they can ask a judge to make a decision in their matter. What could have been made simpler, with the notion of the child support guidelines has become a maze.

How does this happen? Is it lawyers continuing to make the system more and more complex so that they will continue to maintain their role? Judges trying to keep unrepresented people out of their courts or making sure that their time is used wisely? Bureaucrats trying to implement policies that capture the current thinking of academics? Politicians responding to proposals of interest groups (also known as the community)?

What seems to be missing from all of this is any kind of cooperative effort that recognizes and respects the individuals trying to get help with a problem that they and the government have clearly defined as having a legal solution.

The new youth justice reform initiatives are another opportunity to work with the community and create new partnerships. I attended a meeting to discuss the new youth justice initiatives last month. At that meeting, we were told that British Columbia was much further ahead of other provinces in introducing restorative justice programs for youth. These programs were community-based, solutions oriented intended to keep youth out of the court system while helping them to be accountable and take responsibility for their actions.

When asked where the money would come from to support the programs, we were told these programs could save money. All the community needed to do was convince corrections and the provincial government to use less money for lock-ups and put it into alternative programs. When I spoke to the province, the response was that if the programs were funded, they would no longer be true community initiatives.

At my next meeting with some teachers and youth workers, I heard stories of kids who would have never been charged, agreeing to ‘sentences’ that were very punitive. They didn’t know they had a choice, nor was their community represented in the panel. I heard from community workers who wanted to know where the resources would come from to provide the services that were needed to help youth at risk stay out of trouble, and become responsible members of society. The questions that need to be addressed are the ones that we have raised in earlier stories.

  1. There are many communities. Where is the venue to discuss the different views of justice and to learn about other ways to provide justice?
  2. Programs developed by one community may not be appropriate for another. Alternative dispute resolution models or restorative justice are seen as the new saviors of the justice system.
  3. How do we get the justice system to share its power and its resources?
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