Expanding Horizons: Rethinking Access to Justice in Canada

Panel Discussion

Following Mr. Rosenberg’s welcoming address, Gilles Paquet, Director of the Centre on Governance, University of Ottawa, introduced the three panel members. Mr. Paquet was also charged with providing a synthesis of discussions and an outline of key challenges at the end of the Symposium.

In a presentation titled “Justice Is a Noun, But Access Isn’t a Verb”, Roderick Macdonald, President of the Law Commission of Canada, explained his key point at the outset:

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.

He then distilled five short messages drawn from his considerable experience.

“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.”

Roderick Macdonald
  1. Information is not always power and public legal education “can be a double- edged sword” which often “winds up enhancing dependency on lawyers, courts and the formal system.”
  2. “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 and administered by courts and tribunals to make space for the living law of everyday human interaction.

  3. “Access to courts” is not the same as “access to justice”. The challenge is to “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.”
  4. In considering diversity and disenfranchisement, “the one abiding social differentiator, transcending all other inequalities, is social class.” The challenge is “how to create a system that actually keeps questions of identity and diversity alive in its rules, processes, and personnel.”
  5. Justice resides in human aspiration and the law is “as much the affair of all Canadians, as it is the business of legislatures, courts and lawyers.” It is essential to “provide opportunities for citizens to participate more fully in legislative and administrative processes by which law is made.”

In concluding, Mr. Macdonald underscored the importance of focussing on the real 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’.”

Roderick Macdonald

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.

The Honourable Judge Mary Ellen Turpel Lafond, a provincial court judge in Saskatoon, Saskatchewan, drew upon her experience on the bench and with Aboriginal issues to suggest that there was considerable anxiety in Western Canada about the quality of justice as it applied to members of our First Nations. There was a need to look more closely and more seriously at the structure of justice and how it accommodates pluralism and diversity and how it reflects the values and aspirations of communities.

The question arises as to whether we have created a “prison industry” or an economy of control within the justice system. In Saskatchewan, for example, a male Aboriginal youth has a greater chance of going to jail than completing high school. In this respect, the formal justice system has failed to address the overarching needs of Aboriginal youth that experience conflict with the law. The system recycles, criminalizes and controls young people from an early age while not engaging them socially. There is a need to think through these questions in structural terms rather than to seek to resolve case by case before the courts. A good example is the issue of sexual abuse among natives. We must get at the roots of the problem if there is to be any true resolution.

Considerable effort and hope have been invested in recent years in implementation of restorative justice schemes. However, ironically, the concept of restorative justice has been promoted without any significant political engagement. Communities have not been given the resources to make the programs work. For example, there are little or no resources for sentencing or healing circles.

“Canadians renew the law by living the law, while justice follows, or rather tries to catch up. There are no easy slogans or quick fixes.”

Judge Mary Ellen Turpel-Lafond

The solutions obviously do not lie in greater access to the courts since this is no longer in the minds of most members of the community. Institutional justice is not restorative. We must ask ourselves how we can reconceive justice to replicate social democratic values. But more fundamentally, we must ask ourselves whether we still in fact possess a cohesive vision of community. In the eyes of members of diversity groups even informal justice (for example, small claims courts) reflects the white male dominance of official law. The result is that at times pluralism winds up contesting the law. How can this be changed?

We must resist reductionist approaches that focus on one aspect, access for example, rather than on justice itself. The disparities in social power are at the root of injustice. We must look at those causes rather than engage in an obsessive quest for legal solutions.

Jacques Dufresne, lecturer, author and founder of L’Agora, a journal of ideas and debates, began his presentation with an anecdote. Last summer, his nephew was at a beach in New Hampshire with his wife and their two children. The father and his six-year-old son were building a sandcastle, when another boy about the same age threatened to destroy it. The father told this lad in no uncertain terms that such an act would have consequences. He nevertheless stomped on the castle. The father then simply held the brat by the wrists, confidently expecting that his parents would soon come forward. Indeed, the boy’s mother soon appeared, in a rage. How dare this stranger lay a hand on her son. This was against the law in New Hampshire. The security officer at the beach saw no alternative but to call the police from a nearby town. Following two hours of intense negotiations, the father succeeded in avoiding costly litigation but had to apologise to the child. Is it any wonder that the courts are jammed with cases?

Fortunately, such zeal is less common in Canada, but for how long? Mr. Dufresne observed:

We imitate the spirit of the American laws with such eagerness that we will soon overstep our own model, especially since we subsidize access to justice, or rather to the legal establishment as we know it. By “legal establishment”, I mean that authority (yes indeed, I said “that authority”) encompassing courts, laws, rules of law and the legal professions.

Access to justice is not the real problem. Just as medicine itself can cause illnesses, the legal system can generate ills. Like alternative medicine, we need alternative justice. Mr. Dufresne provided a diagram of a justice pyramid to suggest an alternative process that treats access to the legal system as a means of last resort (the diagram appears in Appendix B). Self-regulation lies at the base, preventive law and alternatives in the middle ground, and the court at the apex. Conciliation, mediation and arbitration should be the preferred means of resolving disputes. Only disputes that cannot be settled by other means and which have an exemplary value would go to court.

Arguing on a philosophical level, Mr. Dufresne suggested that solutions to access to justice issues cannot be found in the type of liberalism derived from thinkers such as Hobbes, Locke or, more recently, Rawls. We must forsake the view that man is a wolf and hark back to the Aristotelian view that man is a social animal, to the “philia” that reconciles man and society.

In conclusion, Mr. Dufresne advocated the development of a “softer” justice.

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