What does Access to Justice mean to you?

BY ANDREW PILLIAR, PhD student

It’s been an eventful few months on the access to justice front in BC.  In case you haven’t been keeping up, here are some highlights:

  • August 11: In a speech to the Canadian Bar Association in Vancouver, Chief Justice McLachlin again referred to access to justice as “the most pressing problem our legal system faces”.  But in contrast to previous statements, the Chief Justice sounded a note for some optimism, citing the work of the National Action Committee on Access to Justice in Civil and Family Matters.  More on that below.
  • August 12: The CBA announced the launch of its Access to Justice Committee to try to better understand and respond to legal needs of low and middle-income people across the country.
  • August 30: The BC Justice Reform Initiative released “A Criminal Justice System for the 21st Century”, a report by Geoffrey Cowper, QC, on how to reform BC’s criminal justice system.
  • September 5: UBC’s “Access to Justice and the Future of the Legal Profession” class started.  Soon after, the class drew some criticism and media attention, focussing on the fact that one of the course instructors is Geoff Plant, QC, who was BC’s Attorney General in 2002 when significant cuts were made to legal aid funding. (Full disclosure – I am currently auditing this class.)
  • September 6: The National Action Committee on Access to Justice in Civil and Family Matters, chaired by Supreme Court Justice Thomas Cromwell, released two reports for consultation: one on simplifying court processes, and another on improving access to legal services.
  • September 21: The Supreme Court of Canada handed down its decision in Canada (AG) v. Downtown Eastside Sex Workers United Against Violence (“SWUAV”), which broadened the public interest standing for intervenors.
  • October 22: The BC government released the first of two White Papers on reform to the province’s justice system.  This White Paper forms part of the government’s response to the Cowper Report released at the end of August.

You may notice that this list of recent events includes a number of committees, reports and studies.  You may be surprised that, after years of hearing about the access to justice crisis, committees are still being struck to investigate the problem.  You may want to know what is actually happening “on the ground” to improve access to justice.

It’s important to understand that access to justice is a very broad term, and one that can be misleading.  Access to justice is sometimes used as a catch-all phrase to capture civil matters, family matters, and criminal matters.  Sometimes, access to justice is a proxy for “access to legal services”.  Sometimes it is a proxy for “access to the courts”, such as in the SWUAV case.  Often, lawyers have thought of access to justice from the perspective of the legal system – such as thinking about the number of unrepresented people in courts, and how this may contribute to court delays.  In recent years, there has been a shift to try to understand access to justice more fundamentally – from the perspective of the individuals who experience legal problems.  This conceptual confusion may help explain why we are still trying to understand how to respond to the problems of access to justice.

But we have learned some things about access to justice.  Over the past 15 years, research around the world has improved our understanding of how often people experience legal problems.  The most recent Canada-wide research suggests that – excluding criminal matters – almost 45% of adult Canadians have experienced a legal problem over the past three years.  This research also suggests that only around 12% of those individuals sought legal assistance to deal with their legal problem.  Most dealt with it themselves, sought help from a friend, or chose to ignore the problem.

As people involved in the legal system, this should give us all reason to pause.  In the words of Chief Justice McLachlin, inscribed in front of Allard Hall: “The most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve.”

So what can we do?  I have been hugely impressed by the discussion, the ideas, and the energy generated by the students in the Access to Justice course.  There seems to be recognition within that class that this is not a problem which will be solved by someone else, but a problem that calls on all of us as lawyers or future lawyers to find ways to meaningfully improve access to justice.

Those who work in the access to justice field note that there is no “silver bullet” to improve access.  As such, there are many opportunities for creative thinking and doing things differently.  The problems of access to justice pose challenges which calls on us all to find solutions.

This could mean doing work through LSLAP, and thinking about how to continue a commitment to pro bono work throughout your career.  It could mean seeking out job opportunities that explicitly seek to improve access to legal services in some way.  It could mean setting up an innovative legal practice to provide unbundled legal services at a reduced cost.  With the number of committees, reports, and studies available, there is no shortage of information about access to justice.

Above all, there is space for each of us to consider what access to justice means, and how it is relevant to us as future lawyers.  I urge you to think of ways to ensure that, when you start to practice, you make a commitment to improving access a meaningful part of your professional identity.  When you look back on your career years from now, wouldn’t you like to be able to say that you did something to address the most pressing problem faced by our legal system?

Andrew Pilliar recently completed his LLM, and is now a first year PhD student at the Faculty of Law, working on access to justice issues.  He previously worked as a litigation lawyer in downtown Vancouver.

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