Expanding Horizons: Rethinking Access to Justice in Canada

Afternoon Plenary

During the afternoon plenary the rapporteurs summarised what they heard during each of the four workshops. This in turn led to further discussion.

1. More or Less? The Economic Perspective

“Access to justice is no longer about absolute need, but a relative one, when it comes to scarce public funding.”

Owen Lippert

Owen Lippert, The Fraser Institute, was the rapporteur for this workshop. In addition to providing a summary of the workshop presentation and discussion, Mr. Lippert challenged participants to consider the “why” question when deciding if “other or alternative” access to justice programs should receive funding.

He also encouraged attempts to address the root causes of access to justice-related problems, “within the competency of justice providers,” and remarked that decisions concerning funding of access to justice programs should depend on research, “not political whims.”

Discussion

  • We need to encourage the development of national principles – there is no reliable expectation as to what to expect from the justice system.
  • We must start practising what we preach in relation to community capacity building and community involvement in the justice system.
  • Legal aid does not have indicators or measures for determining the resources needed.
  • We need to consider school programs for young people – youth represent our greatest resource.
  • We need research on 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 Workshop

“Our society is so diverse, so the answers to justice-related issues will be diverse. We may need a philosophical shift from a neo-liberal based system to one grounded in the community and aware of cultural issues.”

Maureen Maloney

Maureen Maloney, Co-director, Institute for Dispute Resolution, University of Victoria, British Columbia, noted that, among other issues, participants in this workshop discussed the challenge of promoting participatory justice and the need for recognising the difference between criminal justice and social justice. Solutions discussed included enunciating the basic principles of the justice system (e.g. respect, fairness, accountability and tolerance) and encouraging changes in the culture of justice (e.g. building partnerships and stop thinking that justice officials are the authority with all the answers).

Ms. Maloney then asked participants to consider how globalisation will affect our conceptualisation of justice and what the system of justice will look like in the in the next ten years given the new information age.

Discussion

  • Globalisation has meant that we have less ability to make our own decisions (decreased sovereignty). Many justice issues, to a certain extent, are no longer a sovereign issue (e.g. people suing companies in other countries). It is hard to answer the globalization question because it includes so many facets.
  • Globalisation is creating disparities in developing countries, restricting the mobilisation of people. For instance, some multi-national companies keep people in developing countries in low-wage positions. We criminalize those who use illegal means to enter Canada while corporations benefit from the law. The mobility of people is restricted in favour of the mobility of capital.
  • Although people see globalization and the information age in a negative light, there are some benefits also. For example, the information age has allowed some Aboriginal communities to communicate with groups in other countries. This has given them a stronger voice.
    “Justice needs to be tailored to local solutions because of growing cultural diversity.”

    A Participant
  • Justice is the downstream recipient of social problems whose origins are outside the justice system. There is an assumption that the justice system contains the best solutions, but sometimes it has the worst solutions. We need to access solutions instead of accessing justice.
  • There is a risk involved with emphasizing information technology as a means of reaching out to non-traditional communities. However, information technology is important and the Department of Justice should take it seriously.
  • Another concern with information technology is the growing commercialisation of the Internet. We must ensure there is necessary public space (danger of corporate sponsorship) for discussing justice issues.
  • Technology has a way of minimising the public space. People will just stay at home and not have public discussions. We need to find a way for people to still meet face-to-face.

3. Diversity and Access to Justice

“Money does not fix pain, nor does it lead to justice.”

Maggie Hodgson

Maggie Hodgson, from the Assembly of First Nations, was the rapporteur for this workshop. Ms. Hodgson started with a prophecy that the year 2000 will be a year for healers and reconciliation. It will be a spiritual as well as a legal process focused on building relationships and convincing people to treat each other with respect. Diversity and justice is not just a legal process, it is a spiritual process.

Ms. Hodgson also noted that the mainstream system of justice assumes that once a decision is reached that the problem is gone and that justice has been reached. Do we really want this complaint driven style of justice? Where is the willingness to change institutional powers?

Discussion

  • How do we articulate the process of empowerment? How do we measure progress and change? Where there is an increase in equality and justice, does this provide us with outcomes?
  • “We need to stop relying on prison as a response to crime (e.g. over-representation of Aboriginal youth).”

    A Participant
    Different communities have different needs (e.g. Afro-Canadian and Aboriginal communities have different needs).
  • There needs to be an increase in the visibility of diverse groups working in the justice system.
  • When a community is empowered, what is actually happening? Who is being empowered and where is the accountability?
  • The ultimate measure of justice is reconciliation and acknowledgement of wrongdoing, but we typically deal with conflict through restitution measures such as financial compensation. It is critical that the community helps define the resolution to a complex problem (e.g. residential schools).
  • The evaluation process is largely political. Government usually just wants the evaluation completed so that it can say the program has been evaluated.
  • Prevention and its merits often are not mentioned in studying objectives – prevention should be measured.

4. The Role of Citizens and Communities

“The overriding challenge is making it all come together: building bridges, having a network of trusted and skilled interlocutors and more effective partnerships, finding better ways to integrate what we know and sharing knowledge and best practices”

Penelope Rowe

Penelope Rowe, Community and Social Services Council, Newfoundland and Labrador, provided the final workshop summary. Ms. Rowe noted how society is becoming more polarised (between the rich and poor, educated and uneducated, rural and urban regions, those with access to influence and those without) with a greater threat to the breakdown of social cohesion. Government public policies are sometimes mixed, and often in direct conflict. Interestingly, the matter of “access to justice” is not really a public concern. It is not addressed within the broad public context.

Ms. Rowe suggested that we must understand justice in all its dimensions, as a concept that is broad and all encompassing. It must include dealing with broad societal – social justice – issues such as health, insecurity, education, and poverty (e.g. the “determinants of health model”). We understand and often voice these ideas, but the policy, programs and resources are not in tandem. We need more horizontal dialogue, and planning and policy design that will help achieve greater policy and program coherence. Ms. Rowe then asked participants to consider how we should accommodate and manage change, what the next steps are for advancing the “access to justice” debate, and how we overcome barriers between all levels of government and diverse populations.

Discussion

  • The discussion of community involvement is unfolding during a period when government is cutting social programs and abandoning national standards.
  • How do we overcome the conflict caused by the jurisdictional confines? How do we reconstruct our current framework to integrate communities?
  • The current legal and justice system is a conflict based construct – based on the precept of “winners and losers” and by its very nature tends to break rather than repair relationships.
  • Discussions about community involvement are euphemisms for government downloading and resource reduction.
  • “There needs to be a commitment to power share and to the concept of inclusion.”

    A participant
    It is not a one-size-fits-all scenario. We need to rebuild bridges between jurisdictional responsibilities and we need to mobilize communities and sustain community-based projects.
  • There is a “ton” of good “pilot programs” that need to be researched and understood.
  • Some participants believed that community participation was positive in that all levels of government could fund these programs. However, others cautioned that governments often bring their jurisdictional issues to the community level, thereby diminishing community capacity to deal with justice-related issues.
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