Expanding Horizons: Rethinking Access to Justice in Canada
3. Diversity and Access to Justice
Professor Brian Etherington, Faculty of Law, University of Windsor, led this workshop. Professor Etherington provided his views on how well the access to justice needs of diversity groups were being met in Canadian society. He noted:
We have witnessed significant advances on the substantive side of the ledger, both in the recognition of diversity interests and the meaning of justice and equality for members of diversity groups. However, those advances on the substantive side have not been met with corresponding advances in terms of delivery mechanisms and procedures necessary to achieve access to justice.
He went on to illustrate how our justice system over the past twenty years has significantly improved recognition of diversity interests deserving of protection. The early to mid-1980's were a particularly important period in this regard:
The traditional meaning of equality as purely formal equality in the sense of identical treatment for all regardless of their personal attributes was rejected in favour of a new conception of substantive equality of opportunity to demonstrate one’s potential without being impeded by barriers which are based on irrelevant diversity attributes or which have an unnecessary adverse impact on members of groups identified by a prohibited ground of discrimination.
However, in spite of this progress, there has been little success “in developing delivery mechanisms to meet the promise of substantive growth in the right to equality.” The reasons for this failure are many: they include flawed implementation and evaluation measures and reporting mechanisms and the lack of adequate resources. Finally, there is a trend developing which consists in
“transferring jurisdiction over statutory individual rights claims from public officials and tribunals to private organisations and procedures - unions and grievance arbitration.” There is a danger in this:
The concern raised by the twin spectres of privatisation and collectivisation of processes for the enforcement of Charter and human rights is that the tenuous balance between the values of access to justice and substantive equality and the values of efficiency and the market that is inherent in any regime for the protection of human rights will gradually be skewed in favour of the values of the market.
Mr. Etherington drew the following conclusion:
The promise of equality and protection for diversity interests offered by recent legislative and judicial developments concerning the substance of our Charter and human rights law has never been greater. But the realisation of that promise for many members of diversity groups is threatened by our failure on several fronts in recent years to develop appropriate delivery mechanisms for access to justice. These shortcomings include: a failure to find acceptable and effective mechanisms for the imposition of employment equity measures on a system-wide basis for most Canadians; a failure to provide adequate resources for effective mechanisms to handle individual discrimination complaints under traditional human rights regimes; and a trend towards the privatisation and collectivisation of processes for resolving individual Charter and human rights complaints.
It will prove very difficult to overcome these shortcomings and refocus on access to justice for the protection of diversity interests in the current economic climate:
What is required is nothing less than a recommitment to the values of access to justice for the protection of diversity interests and a search for new resources and public mechanisms for delivery that will allow us to close the gap between promise and experience. But we must be careful in considering alternative delivery mechanisms to focus more on their effectiveness in protecting diversity interests than their efficiency in clearing caseloads.
The presenter asked participants to consider what could be done to establish a mechanism to deliver on promises of recognition, of equality rights and of diversity. Here are some of their comments:
- If the trend toward privatisation continues, there will be a need for different types of mediation to protect rights. People in many situations have no legal power (i.e. human rights issues, employment standards, the Immigrant and Refugee Board mediation process).
- The current legal discourse does not capture the intersecting grounds of discrimination (e.g. being Aboriginal and a woman). Although they pose their own challenges, alternatives like mediation can do a better job of dealing with these intersecting grounds (race, class and gender) than the mainstream.
- If a power imbalance exists, we must address more than the mechanisms in place to deal with access to justice. We must look beyond the symptoms to the systemic social problems.
There must be a firm commitment to ensure diversity and access to justice. Institutions that provide access to justice are not committed.“There is an overwhelming lack of willingness in the courts to discuss racism.”
- With respect to access to justice, the good news is that the problems and challenges are recognised. The bad news is that we are not sure about the solutions to deal with difficult issues.
- We have to break down the rigid categories of access to justice and get away from a narrow litigation process to address real issues (e.g. residential school proceedings must deal with issues of sexual, physical and emotional abuse).
- Before we consider the mechanisms to deliver “our promises,” we must look at what these promises are and who we are as a society.
We cannot abandon the mainstream system while we are searching for alternatives. What do we know about strategies developed in recent years to open up the mainstream system – strategies for opening up the bench and law schools, and strategies for policing, sensitivity training, and their associated impact?“We have a tradition of celebrating the law and avoiding the issue of race; the system deals with race by avoiding it. We obfuscate the issue with terms like “diversity” but what does that mean? Racial prejudice plus institutional power equals racism”
- It is always the people in positions of power who talk about “partnerships”, not the people in the community. We need to redefine the relationship between power and communities.
- There is support for equality and diversity by those in power only because it is the politically correct thing to do. It is important to have a stronger political lobby. We also must develop a set of expected outcomes and monitor progress.
- You cannot promote better access to justice without resources and better accountability. People in power are willing to change, but there are no resources.
4. The Role of Citizens and Communities
Carol McEown of the British Columbia Legal Services Society (Vancouver) was the workshop leader. To help frame the discussion, she recounted three stories describing community efforts to use or deal with the legal system.
The first story was about the work of the Upper Skeena Counselling and Legal Assistance Society which, soon after its establishment, found itself dealing with Aboriginal rights issues. One case involved fishing rights. Charges were laid against 17 people and family nets were 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 story illustrates how, by asserting its rights, a community learned to
“use the law to promote [its] interests”. The community later successfully negotiated the creation of child welfare committees and new protocols to protect aboriginal children.
The second story was about the efforts of community groups to help people appearing without representation in family courts. A program was developed and funded to provide family court advocacy training so that people could help applicants and respondents fill out family court forms and prepare their cases.
The program initially was very successful, but an evaluation conducted two years later revealed that
“half of the advocacy projects had moved away from helping clients to represent themselves to providing information, referral and ‘emotional support’.” Ms McEown explained:
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, and backup wasn’t available.
“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.”
Part of the problem is also that procedures have become much more complex. What seems to be missing is any kind of co-operative effort to recognize and respect the challenges faced by an individual seeking to resolve a problem that has a legal solution.
The third story concerned restorative justice programs for youth. Such programs were community-based and solution-oriented with the purpose of keeping youth out of the court system. Ms. McEown observed:
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.
Meanwhile, she would hear stories about kids who normally would never have been charged agreeing to punitive sentences because they did not know they had a choice.
These stories suggested three issues that need to be addressed:
- There are many communities. Where is the venue to discuss the different views of justice and to learn about other ways to provide justice?
- Programs developed by one community may not be appropriate for another. Alternative dispute resolution models or restorative justice are seen as the new saviours of the justice system.
- How do we get the justice system to share its power and its resources?
The discussion quickly focussed on how to define communities and how to involve them in the access to justice process. Participants made the following observations:
It is very difficult to keep the community involved. It takes time, care and dialogue to identify your community on the ground (to build bridges). You must be flexible and accommodate diversity. Moreover, some communities are not interested in delivering services.“Public education is an important part of community development.”
- We talk of organizing communities to interface with the formal justice system, but how is this done? How do we integrate and how do we ensure that someone with authority is in the community?
- Some participants were concerned with the downloading of services and responsibility to the community. The community needs adequate resources so that the community is not simply a “cover” for off-loading.
- Law is not the best resource when there is a breakdown in the community. There is a need to support social systems so that the law is the last resort. Under the current system the law deals too often with social problems.
- Justice should be an informal process. Communities are partly destroyed by the rule of law, so perhaps we should avoid this approach.
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