Access to Justice: Moving beyond the assumptions
By Julie Mathews
March 2023
This article was originally published by Law360 Canada (www.law360.ca), part of LexisNexis Canada Inc.
As I think about access to justice for this column, I do so from the vantage point of having served as the executive director of Community Legal Education Ontario (CLEO) for the past 23 years — a privileged position that I will be leaving in a few weeks. It’s a time of reflection as I begin to pack up my office.
In that (very long) time, I’ve attended numerous access to justice events and conferences, discussing the need for legal aid that serves people who do not meet eligibility requirements but cannot afford to pay for a legal professional (or are unable to access adequate pro bono help); the importance of supporting people who are unrepresented; the need to collect more data to better understand the nature and depth of the access to justice problem; and so on.
Looking back, what’s clear to me is that the issues we’re discussing today are pretty much the same ones we were discussing at the turn of the century: we recycle the items on the agenda every few years, discuss the need for more data, and generally give ourselves credit for advancing the state of access to justice — even though it could be argued that we’ve mostly been putting band-aids on a system that is not serving the public well at all.
What kind of progress have we made, really? Is a tenant facing eviction able to find a legal (or other) strategy that allows them to remain in their apartment or, if not, to access a fair and equitable solution? Does it depend on their income level? Or their access to the Internet and digital literacy skills? Or whether they’re wearing a hijab, yarmulke, or turban?
It’s my guess that, in some parts of Canada, a tenant may in fact be more likely to be able to access legal help, even if they’re poor or racialized, than they were 20 years ago. But, in many parts of the country, tenants are still unable to access such help, especially if they live on low incomes or are otherwise disadvantaged. And for women experiencing abuse from their partners, or workers who are not getting paid for overtime work, progress is probably not much better, by and large. In the meantime, in the “unregulated” ecosystem of justice-related services, non-profit organizations working on the ground — settlement services, women’s shelters, workers’ centres, and many others — are filling the wide gaps created by our largely inaccessible justice system.
This is not to suggest that meaningful action on access to justice has been totally absent: in Ontario, over the last few years, we’ve seen paralegal licensing (in some areas, for certain activities), permission for limited scope retainer services, and an allowance for registered “civil society organizations” to provide legal services (the need for the creation of this special category indicates how reluctant we are to make meaningful change).
But we don’t need more data to tell us that these improvements are at the margins. Many, if not most, Canadians who experience serious legal problems in their daily lives are unable to access the support and services they need to deal with their problems effectively.
The numerous reasons for the continued access to justice crisis are multifaceted, and their complexity should not be minimized. At the same time, I feel impatient and discouraged. Perhaps I’m kidding myself but, from my vantage point, I think that acknowledging some of the main reasons for the lack of progress is an essential step to moving forward.
So, I’d like to offer my thoughts on some of the reasons (fairly obvious but often unacknowledged) for the continued lack of meaningful progress. I’ll call them “assumptions” — five assumptions held by many legal professionals that prevent us from moving forward:
That licensed legal professionals with appropriate expertise are, by and large, accessible to people in need and in crisis, through legal aid, pro bono or otherwise (in fact, we know that more than half of family law litigants are appearing unrepresented in courts because they can’t afford a lawyer);
That legal problems almost always need a legal solution, and people with law-related problems want and need a licensed legal professional to help;
That the provision of help with law-related problems is best regulated by a group composed of licensed legal professionals who earn their living providing that help, even though that self-interest poses a clear conflict with a duty to regulate “to protect the public interest”;
That data-gathering should focus on risks and threats from “without” (e.g., legal services provided via technology, unauthorized practice by unlicensed people, expanding licences to paralegals), rather than on challenges that exist “within” the current system (e.g., the accessibility of lawyers, the cost of legal services, the lack of competency requirements for lawyers, the effectiveness of the complaints process vis-à-vis lawyers, etc.); and
That our system enables “everyday” people to have their day in court (in fact, our enormous and expensive civil law apparatus is generally accessible only to corporations and the very wealthy).
For a moment, let’s assume that we agree that these assumptions are misguided, if not entirely, then in significant ways. What kind of actions might we move forward on?
Thoughtful recommendations for changing some of the fundamentals of our antiquated legal system have been out there for some time: transitioning out of an adversarial adjudicative system for “everyday” legal matters; simplifying forms, legal rules and processes so that people (not just lawyers) can navigate them; or charging for-profit corporations some form of a user’s fee for their use of the court apparatus (since they’re the primary “people” making use of it). But those fundamentals are unlikely to change easily or soon — at least not until AI chatbots evolve enough to shake up the system (if people can’t access a lawyer, they’ll access a chatbot to get answers to their legal questions). In the meantime, a legal system that was designed by and for legal professionals, hundreds of years ago, will adjust and improve, but only incrementally, and too slowly for people in crisis now.
So, let’s continue to move forward, albeit at a modest clip. Would it be too much to ask that the justice sector and policy makers look to and support, clearly and actively, “no-brainers” that can have a positive impact and present very little risk — and not hold them up by endless study?
Here are a few:
Support knowledgeable, trained staff at community-based not-for-profits in assisting people who come to them with problems, some of which involve the law (and remove the fear of crossing into the unauthorized practice of law) (see Luke’s Place, and Community Justice Help: Advancing Community-Based Access to Justice);
Support and fund the integration of law-related assistance into other front-line services — and the other way around — so that people getting health care, settlement or other services can get holistic, connected help (see Health Justice Program);
Set up programs where legal experts can advise staff at community-based not-for-profits on problems that clients are bringing to them (see Connecting Ottawa); and
Establish “drop-in” programs (weekly? monthly?) in community hubs – foodbanks, settlement agencies, shelters, public libraries — at which legal experts can provide individualized information and summary advice in particular areas to members of the community.
All of these “no-brainers” support people, particularly many who are vulnerable, in getting help where they seek it: trusted organizations and helpers in their community. These community groups recognize and respond to the integrated nature of people’s real-life problems. And, their programs and services are built not on what lawyers can provide, but on what people need.
Julie Mathews is the executive director of Community Legal Education Ontario, a non-profit community legal clinic that provides legal information for people in Ontario who have low incomes and other disadvantages.