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The Perennial Access to Justice Policy Challenge: Are We Finally at a Crossroads?

At the Canadian Bar Association 2012 annual meeting in Vancouver, Chief Justice Beverley McLachlin again made the case that access to justice is probably the most urgent policy challenge facing Canada’s justice system. The Chief Justice argued,

Being able to access justice is fundamental to the rule of law. If people decide they can’t get justice, they will have less respect for the law. They will tend not to support the rule of law. They won’t see the rule of law, which is so fundamental to our democratic society, as central and important.”

This message is one that she has delivered again and again to those working within the justice system. Yet, there is also a sense that her message has failed to get through. For there is little evidence of anything but piecemeal change over the past decade in how access to justice is funded or approached in Canada.

There is, however, a sign that perhaps we have finally reached a crossroads in access to justice policy. Public policy develops on particular pathways that are typically a reflection of early choices about the institutions are at the centre of how particular services are delivered. The development of health care policy in Canada illustrates this clearly. In the 1940s and 1950s, policy makers decided to use hospitals as principal institutions for the delivery of publicly funded health care. The first major federal health care legislation provided for universal access to hospital services and only a decade later to physicians. The early policy decisions to use hospitals for the delivery of publicly funded health care has constrained efforts to reform health care policy in Canada ever since. Health policy went down a particular path in the 1950s and this path has had a legacy effect that is still with us today. In the language of policy scholars, health care policy reform is path dependent. Overcoming path dependency requires serious new thinking from within the policy field.

Similar to health care, in the 1960s, access to justice policy in Canada developed along a particular path and this particular path has constrained how innovative policy makers can be in reforming the justice system. There are, however, some signs that the building pressures raised by access to justice are finally beginning to generate serious new thinking within the justice system.

One sign is the priority that the Canadian Bar Association has made for access to justice for 2012-2013. Melina Buckley, Co-Chair of the CBA’s Access to Justice Committee, at the annual meeting described its new project, an initiative that reflects a commitment to substantial change. In Buckley’s words, “At its core, the project is about finding real solutions to meet the urgent legal needs of the members of our community who need it most.” From my perspective, the most significant commitment from the CBA is a promise to seriously engage not just its own members but also other stakeholders and to treat the policy challenge as one requiring collaboration across the sector.

The other sign is the revival of the Chief Justice’s National Action Committee on Access to Justice in Civil and Family Matters, chaired by Justice Thomas Cromwell of the Supreme Court of Canada. The Action Committee has been in existence for several years and involves leading figures from within the justice system from across the country. Its efforts are finally beginning to bear fruit and its findings and recommendations will hopefully be released in the next year.

Hopefully, these two national projects on access to justice supported by numerous smaller access to justice initiatives around the country will over the next year provide the sort of new thinking that will enable us to genuinely reach a crossroad in making progress on access to justice policy in this country.

Lesley Jacobs
Academic Director/Executive Director

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