Expanding Horizons: Rethinking Access to Justice in Canada
In overall terms this one-day of extra-ordinary conversation revealed that, perhaps more than ever, people from both inside the justice system and other areas of human endeavour are very disenchanted with the mainstream justice system. Amongst this eclectic group of leading thinkers there was a tremendous appetite for change, remarkable support for re-imagining the traditional justice system, and a general eagerness for experimenting with new and innovative ways for assuring all Canadians have access to justice. However, much work remains. The Symposium only represents the beginning of an important process of re-examining the substance of access to justice and the means to achieve it.
Despite the fact that the Symposium did not provide a recipe for change, it did reveal a set of themes that can act as guideposts toward a better and more accessible justice system. The following list provides a glimpse of these guideposts:
- Restorative justice was frequently discussed throughout the Symposium. In general terms restorative justice is an attempt to restore the relational dimensions of the justice process by recognising the role of the community and the importance of human interaction. It represents a process of healing and spirituality, not simple diversion. Many participants pondered what the non-Aboriginal community could learn from restorative justice approaches.
- From the outset participants maintained that access to the justice system is not access to justice. As Roderick Macdonald argued in his opening plenary presentation that
“we come to focus on ‘access’ to justice rather than justice itself; and while we proclaim ‘access to justice’ as a goal, what we really mean is ‘access to law’. The most significant concerns about justice faced by Canadians have little to do with narrowly cast legal rights; they have to do, rather with the recognition of respect.”
Many participants argued for a conceptual shift in the culture of justice to facilitate a better understanding of the difference between access to the justice system and access to justice. However, Lois Gander from the University of Calgary argued that
“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.”
- An implicit tone to many discussions was that justice is achieved when a solution satisfies all parties involved in the dispute, a decidedly non-adversarial approach. Many participants articulated that justice is an inherently social and solution-oriented endeavour that does not easily fit into narrowly defined legal regulations.
- Many participants firmly believed that providing access to justice is contingent upon recognising the diverse needs of Canadians – one size does not fit all. Indeed, issues of gender, race and class underpinned the various discussions, and, in the process, emphasised the challenge of assuring access to justice for diverse, mariginalised, and disadvantaged groups.
- Many participants described the traditional justice system as being ill equipped to meet the needs of the community, and that the capacity to solve problems actually rests within community-based justice programs and initiatives. Despite this recognition, many participants expressed concern about the logistics of realising this process. How to encourage localised notions of justice, and how to reconcile it with calls for
“substantive equality and sameness”remains an unanswered conundrum.
A corollary to discussions concerning the role of the community was some debate about partnerships between communities and various levels of government. To what extent should the government become involved in community-based justice initiatives? Is “community-based” justice is a euphemism for government downloading of services and responsibilities?
Moreover, many participants cautioned against overlooking the role of the traditional justice system.
"Don’t throw out the traditional civil justice system", argued Carol McEwon, noting that many community groups are just now beginning to learn how to use the system to their advantage. To them, the law is a powerful tool for protecting rights and promoting change.
- A common message conveyed throughout the Symposium was that meeting needs is equally important as protecting rights. Our current system of justice is based on a protection of rights framework. The thinking at the Symposium emphasised, in addition to protecting rights, the importance of meeting the needs of individuals attempting to access justice. Many participants argued that understanding diverse needs could only be achieved through community consultation and extensive research.
- The issue of sharing power and resources to achieve access to justice surfaced at several junctures of the Symposium. Total justice system spending exceeds $9 billion each year. Members of disadvantages groups must be given a meaningful role in designing justice system change, and the existing resources must be shared in order to allow experimentation with new ways of providing access to justice.
These guideposts only briefly touch on the key Symposium themes and their implications for justice policy. The Research and Statistics Division at the Department of Justice Canada will continue to examine the wealth of information that came out of the Symposium in a series of more analytical reports. However, much work remains. The Symposium provided a rich body of information and perspective from leading Canadian thinkers about providing access to justice for Canadians. This represents an abundant source of ideas for policy research and development in this key area.
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