Expanding Horizons: Rethinking Access to Justice in Canada
Following the opening plenary session participants had the choice of attending one of four workshops concerning key access to justice issues. Each workshop started with a presentation, which was followed by a group discussion. Designated rapporteurs attended each session to record the essence of the discussion and report their findings during the afternoon plenary.
1. More or Less? The Economic Perspective
In his presentation, Stephen T. Easton, Professor of Economics, Simon Fraser University, suggested that in regard to access to justice,
“wants and needs are unbounded.” The question boils down to who will pay how much for what. Inevitably, there will have to be choices:
“The important question is what constraints are to be put on the process of obtaining enough justice.”
Stephen T. Easton
Consequently, my role as an economist is to suggest that even with new program spending (and especially were Justice to remain within the current envelope), the economic principle of tradeoffs among alternatives should be on the table nonetheless to evaluate the potential candidates for expansion.
To illustrate this point, Professor Easton provided a number of interesting facts:
- The number of lawyers in Canada continues to rise. For example, from 1991-1997, the number of lawyers per 100,000 of population rose from 199 to 224.
- There are fewer criminal cases. During the past decade, the actual number of Criminal Code infractions known to the police had fallen by 15%.
- Although unfortunately recent data do not exist, civil litigation appears to be on the increase. It would be important to know what is actually taking place.
After presenting a table on total spending on different categories of justice services in real 1999 dollars (to adjust for inflation), Professor Easton observed that the movement in total real expenditures in the courts and corrections were relatively gradual while legal aid costs were comparatively variable. These data suggest an important issue:
What kind of budgeting exercise is reasonable in the face of a desired expansion of service? It is easy to spend money. There is no lack of applicants with unmet needs if a government is willing to pay the freight – a look at the history of legal aid proves that. But can services be expanded in a way that is both meaningful to the recipients and to the taxpayer?
It is possible to expand services, but increases in spending should lead to higher benefits or improved results or outcomes:
Regardless of what criteria we choose for expansion, we need to be assured that the benefit from an additional dollar spent on legal aid, for example, should be as beneficial as the additional dollar that could go to the courts, the police or corrections.
One way of measuring this is to characterize service cost. One such characterization was presented in a table showing the cost of justice services per crime known to the police, measured in constant (1999) dollars. It shows that
“the costs of justice relative to the number of crimes known to the police have been remarkably stable over the past decade.”
Professor Easton also provided a table concerning the number of offenders in federal and provincial custodial facilities over the past twenty years relative to the number of Criminal Code violations. He noted:
These data indicate that there is a stable association between these categories of expenditure and the underlying source of the demand for service that, in this simplified exercise, is taken to be “known Criminal Code violations”. The costs and service levels in our justice system are, by and large, stable. There are not great and sudden changes in costs relative to a basic measure of service.
However, if one examines the relationship between crimes and legal aid, there is no such stability. For that reason, it would be very difficult
“to rationalize expanding a service that has been so variable unless it can be shown that a dollar spent on this form of justice yields a better outcome than an additional dollar spent among policing, corrections and the courts.”
Professor Easton concluded with an axiom:
To expand service in any one sector of spending, prove that the present cost per unit of service benefit in that sector is lower than the costs of expanding service in all of the other sectors.
In the case of legal aid, one must be able to demonstrate that
“by expanding service you are improving access to justice better than by improving the courts, the police and corrections.”
Part of the discussion centred on whether cost measurement in the area of justice is necessarily limited and whether there is a method for determining fair and effective allocation of resources. Decision-makers want measurable outcomes, but there is deep scepticism whether justice outcomes are truly measurable or whether typical measurements merely serve the interest of policymakers rather than clients. Participants observed that:
“There is a lack of systematic thinking about what a successful outcome is.”
- Redistribution of wealth would be a valuable program.
- We need to encourage national principles – there is no reliable expectation as to what to expect from the justice system.
- We must live up to the rhetoric of community capacity building and community involvement in the justice system.
- There is a consistency in funding across all legal services, except for legal aid because it did not have indicators or measures for determining resources.
- We need to consider school programs for young people – youth represent our greatest resource.
- We need research examining whether our current mechanism of incarceration is successful. We need to determine the success rate of the prison system – recidivism, standard of living – and understand if we have made improvements.
2. New Partnerships and New Delivery Mechanisms
Lois Gander, Professor of Legal Studies Program, Faculty of Extension, University of Alberta, began her presentation by reminding participants that many citizens consider the current legal system to be deeply flawed. It was important therefore to think outside the box.“We find ourselves asking what access to whose justice?”
What has Propelled the need to Re-think Access to Justice?
The challenges facing Canada’s legal system have been provoked by a variety of factors:
- The public is increasingly dissatisfied with the law and the form of procedural justice it promises. Our system promises 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.
- The equality provisions of the Charter have created the expectation that the law can deliver not just procedural justice but substantive justice, raising the legal stakes considerably.
- 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.
- Canada has become a ‘rights based’ and litigious society.
- 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 cost of legal services bears no relationship to the benefits delivered.
- We have become consumers of services, even government services like our courts, without taking any responsibility.
- Globalisation and post-modernism have presented new challenges to the efficacy of the law and doubts about its ability to deliver a satisfactory form of justice.
We must give citizens the responsibility for determining what kind of justice they will have:
[...]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.
To a certain extent, this is already taking place in some of Canada’s most troubled communities where restorative justice programs have been initiated:
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.
In rethinking justice, we must also be open to
“other ways of conceiving the sources of justice.” Justice is not something to be delegated to institutions but lived in our daily lives as members of communities that recover their ability to manage their conflicts:
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.
However, governments cannot simply download and outsource justice to communities without providing resources in a variety of forms. This may also mean shifting resources
“away from conventional legal systems and services.” Our ability to make these difficult choices will be the test of our commitment to justice.
Professor Gander posed the following questions after her presentation: How do we renew the law to accommodate new ideas of justice and what do we want from the justice system?
Participants expressed a variety of views:
- What is the role of the Charter in providing access to justice? In many ways the Charter has only provided some people in society with access to the justice system.
- The victim has been alienated from the criminal justice system process.
- If we cannot get everyone to agree on justice issues, then it is the role of the government to set standards (we must draw a line between criminal and social justice). In this respect, we cannot forget about the role of the traditional justice system. We must be modest about using alternatives and recognise that there are limits to what the justice system can achieve.
- Before thinking about a new system, we need to consider whether the old system can be made more accessible.
- Participatory justice does not necessarily mean participation in decision-making. Those in the decision-making process must understand that there is more to justice than their elite world. They have to espouse as a goal of justice and equality, good and just doctrine.
- We must recognise the growing gap between the “haves” and the “have-nots”, otherwise we will not be able to understand the essence of the controversies.
- Youth are the most valuable resource in helping define an alternative or a new justice. Youth are undervalued as a resource and they it should be empowered.
- Empirical work suggests the worst off in society identify police as the source of injustice, while the best off believe the state is the main source of injustice.
- Public legal education tells us that the public is not satisfied with the way that we enact laws and provide justice.
- Technology will change things and we need to reserve public space for this phenomenon.
Restorative justice was described as an alternative to the formal justice system. One participant suggested that we must look outside the formal justice system in a meaningful way, and that restorative justice cannot be treated as a diversion program. Aboriginal people have had a system imposed on them that they have never recovered from. Restorative justice involves healing and restoration in a way that is different from traditional systems.“The justice system is not either/or; it’s not one-size-fits-all.”
- The concept of citizenship and citizen involvement in the justice system must be redefined.
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