Expanding Horizons: Rethinking Access to Justice in Canada

Synthesis - The Key Challenges

The difficult task of pulling together the various ideas and comments formulated during the day fell to Gilles Paquet.

“If you only have a hammer, everything looks like a nail.”

Anon. Quoted by Gilles Paquet.

He observed that the message that emerged from the first session of the Symposium was that the record of Canada in respect of access to justice might not be as enviable as is usually believed. In short, “the ‘fortress’ of the formal justice establishment as defined by the traditional courts is not impregnable, [...] there even is ‘péril en la demeure’ when one examines carefully the ‘house of justice’ in Canada.” The three panel members provided different perspectives on the ways to improve access to justice through better prevention, closer connection with communities and more restorative justice.

Mr. Paquet noted that, in a sense, the workshops opposed the “Barbarians” to the “Insiders”, that is, the outsiders to the insiders:

The first three workshops were constructed around the concerns of groups outside the fortress of the formal justice system: (1) the citizenry and communities, (2) the diversity of groups making up the Canadian social fabric and those concerned with their welfare, and (3) the economists who have a perspective on the justice system quite different from the lawyers. The fourth workshop was focussed on the examination of alternative instruments and partnerships that might be used to improve access to justice.

What was clear was that the outsiders wanted in. There was a strong feeling that “the lay community and the citizenry in general should participate not only in the process of lawmaking, but in the process of production of justice.”

Mr. Paquet encapsulated some of the messages he drew from each workshop as follows:

Citizens and communities

The debate centred on the difficulty in defining community, in operationalizing the roles of citizens and communities, and in ensuring that the requisite infrastructure needed for the citizens and communities to operate effectively in a world (1) where the courts are not the only forums the citizens need to access and (2) where circumstances are such that a “one-size-fits-all” strategy is not useable, would be put in place.

Diversity

The formal system has given recognition with particular force to the argument of access to justice through equal treatment. There has been some “judicial progress” on this front. But it was found that the formal system has not been very successful in developing delivery mechanisms to meet the promise of substantive growth in the “right to equality”.

Economics

The case for the importance of research and measurement in determining resource allocation within the justice system is obviously strong. Moreover, the suggestion that outcome measurements may serve as surrogate numbers for what the price mechanism reveals in the private sector is reasonable. However, the temptation to ascribe too much potency to the rational model or to lionize quantophrenic exercises was not always altogether avoided in the debates.

New mechanisms and partners

It was recognized from the very beginning that the diversity of the Canadian population, and the unequal distribution of income and wealth but also of access to power, made it impossible to accept that a one-size-fits-all system would work.

A common theme to the workshops was the need for more or different resources, particularly for restorative justice. Participants also drew attention to the basic inertia of the formal justice system. A significant aspect of this system is the nature of its financial infrastructure, that is the manner in which lawyers and other workers in the system are remunerated and the relative efficiency and effectiveness of the current apportionment of resources. Finally, the current system has tended to focus on rights while not paying sufficient attention to a needs-based approach that might help solve problems up-stream.

The many pressures on the justice system have led to paradoxical situations. For example:

It is difficult to see how this call for substantive equality and sameness can be reconciled with local justice or different standards being applied according to circumstances. This paradox strikes at the heart of the formal justice system and challenges its present incapacity to provide the requisite amount of casuistry.

Moreover, calls for inclusion and participation may challenge some of the fundamental features of our democracy in that they “are often seen as short-circuiting due process”.

Mr. Paquet concluded with a few suggestions about what might be done to improve access to justice in the short run. The first is to define, at least in terms of values, what sort of justice we want.

Second, it was also clear that one cannot explore the different possible alternative mechanisms or alliances with other groups in defining an improved system of access to justice without a better knowledge of what experiments have been conducted, and with what degree of success, in Canada or elsewhere. Such a catalogue does not exist. It would appear crucial to ensure that it is prepared forthwith.

Third, serious efforts must be made to encourage “the maximum amount of experimentation and innovation in the development of better access to justice.”

These shortcuts could prepare the way for more fundamental changes in the long run.

Janice Charette, Senior Assistant Deputy Minister, Policy Sector, Department of Justice Canada, delivered the closing address. Ms. Charette noted that, throughout the day, Symposium participants identified the need for expanding the concept of access to justice to include new and innovative community-based approaches (e.g. access to justice as part of a holistic system that includes health and social policy). She also evinced that many participants encouraged more research and knowledge sharing, and that new access to justice initiatives must be sustainable and respectful of the fact that one size does not fit all. Ms. Charette concluded by thanking the participants for making the Symposium a success.

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