Equal access to a civil and family justice system that can uphold rights and fairly and effectively resolve disputes is a fundamental and far-reaching component of democratic societies. It influences our lives every day via contracts and credit situations, the ownership and distribution of property, family relationships and their breakdown, personal injury, benefit entitlements, human rights, and various corporate arrangements.
At the most basic level, the civil justice system exists to provide people with access to knowledge about their rights, and if necessary to a means of enforcing them (Civil Justice Advisory Group, 2005, p.20).
Although the civil justice system is a cornerstone of our democracy, there is a dearth of empirical research about this system in Canada and internationally. Surprisingly little is known about how well the civil justice system works: what it costs, who it serves, whether it is meeting the needs of users, or the price of failing to do so.
Civil Legal Problems are an Everyday Experience
In the last decade Canadian and international research has demonstrated the high, everyday incidence of legal problems experienced among the general population. The Canadian research (Currie, 2007) has found that between 45-48% of the population has a legal problem at any given time with just a small proportion of these addressed by the courts (commonly estimated at around 10%), or with formal legal representation. The degree to which problems are resolved by other means, or left unaddressed, remains unclear, although a significant amount of inaction is reported. Proactive responses to legal problems are, however, rare in the civil justice system; instead, the tendency is for problems to escalate and become harder to resolve, most especially when family matters are involved. Canadian and UK findings also show a tendency for legal problems to cluster, often leading to additional health, economic and social problems that have significant costs for individuals, their families, businesses, and society as a whole. This occurs for people who are seeking resolution through the courts as well as those who are not.
Early, accessible and effective resolution to legal problems is key to avoiding problems clustering and escalating, but not knowing where to seek help or feeling powerless to do so are significant reasons given for inaction. Furthermore, the experience of multiple problem clustering does not affect people uniformly across the population. People who are economically disadvantaged or vulnerable to social exclusion for other reasons such as disabilities, homelessness or ethnicity tend to have high rates of intersection with civil legal problems. Legal issues such as domestic violence, family/relationship breakdown, injury from accident, housing, employment, and discrimination, can also directly lead to or exacerbate social exclusion.
This body of research argues for the recognition of everyday legal needs and responding investment in affordable, community-based legal outreach, pointing to the very considerable social costs of non-resolution that are borne by social and health services, income supports, disability plans, and employment insurance, other social services (more information and supporting publications can be found on the Forum website).
Many People Cannot Afford Legal Representation
Concurrently, there is mounting evidence that the public cannot afford to resolve their legal problems through formal litigation processes because the cost of legal advice and representation required is beyond the means of low and middle-income Canadians. Some evidence comes from a series of policy reports examining access to justice issues (for example the Systems of Civil Justice Task Force, 1996). Research such as the Civil Justice System and the Public project provides further evidence as does the steady increase in the number of people appearing in court without legal counsel. In family matters, where objective representation is considered crucial, parties without counsel are reported to be as high as 50%. As well, in recent years considerable popular and legal media attention has focused on the lack of access to justice and the high cost of legal representation, often making connections to concerns about the adequacy of available legal aid.
Media coverage both reflects and fuels a growing belief that our civil and family justice system is in crisis that spans users, legal service providers and governmental policy-makers. Leaders in the justice community in Canada and internationally are expressing alarm, as illustrated in an address by Canada’s Chief Justice:
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. Access to justice is therefore critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them decide to become their own lawyers. Our courtrooms today are filled with litigants who are not represented by counsel, trying to navigate the sometimes complex demands of law and procedure. Others simply give up (The Right Honourable Beverly McLachlin, PC 2007).
The Need for Evidence-Based Research on the Cost of Justice
In 2008, responding to these concerns, the Chief Justice initiated, and is the Honourary Chair of, the Action Committee on Access to Justice in Civil and Family Matters, made up of leaders from all of the key sectors of the justice community and public representatives. The purpose of the Committee is to bring profile and encourage action on issues of access to justice, beginning with the cost of justice. As well, the Canadian Forum on Civil Justice, along with a large group of academic and community collaborators from Canada and internationally, is pursuing research on the cost of justice. This research is designed to provide the foundation of critical information needed for evidence-based decision-making about the civil justice systems in Canada and internationally. This evidence will fill an empirical gap that has persisted in spite of repeated calls for research.
There are five broad research questions on which to build concrete research initiatives that create better ways to measure the cost of justice:
- What are the costs of pursuing the resolution of legal problems?
- What are the costs of not achieving resolution?
- Is the cost of achieving resolution economically and socially warranted? How can we better calculate, understand and balance the social value to democratic societies of ensuring an accessible, effective civil justice system against the financial costs of doing so, or the socio-economic costs of failing to provide access? Are there methods that allow useful cost-benefit analysis?
- What can be done to effectively prevent disputes, and at what costs and benefits? What methods are there for limiting or eliminating the need for legal services, through consumer protection, licensing, standard-setting and pro-active regulation, or other innovations identified by the research? What can be done to prevent recurring problems for low and middle income Canadians, most especially those who are the most vulnerable?
- What choices and changes are recommended based on the available evidence? It is too early to know what action should flow from the evidence, but it is anticipated that this may include an array of reforms affecting formal court procedures, frontline legal service entry and information points, changes in legal and judicial culture, alternative models of legal practice, multi-sector perspectives on investment in access to justice, and effective public involvement in the change process.
It will be extremely challenging to calculate the costs of justice. Previous research is beset with difficulties concerning definitions, scope, data access, and measurement validity. It is complex to determine what is to be defined as a cost and then derive a reliable method of measuring that cost. Furthermore, public financial investment in providing access to justice must be considered within the context of the social value of ensuring an effective accessible system. Supported by an impressive team of 25 researchers and 32 stakeholder partners, the Forum has submitted the second stage of an application to the Social Sciences and Humanities Research Council for a major five-year Community University Research Alliance Grant (results announced in February 2011). If this application is successful, this alliance has the collective expertise to find solutions to the methodological challenges and find viable ways to begin answering these important research questions.
Research Director/ Directrice de recherche