Who Should Meet the Legal Needs of Ordinary Canadians?

Last week, the National Action Committee on Access to Justice in Civil and Family Matters, chaired by Justice Tom Cromwell, released for public consultation two of four reports from its working groups. The work of the Action Committee is guided by a vision of Canadian society where:

  • Justice services are accessible, responsive and citizen focused;
  • Services are integrated across justice, health, social and education sector;
  • The justice system supports the health, economic and social well-being of all participants;
  • The public is active and engaged with, understands and has confidence in the justice system and has the knowledge and attitudes needed to enable citizens to proactively prevent and resolve their legal disputes; and
  • There is respect for justice and the rule of law.

Although both reports are interesting and engaging, the report from the Access to Legal Services Working Group is the one that will generate the most controversy.

The Access to Legal Services Working Group has adopted the principle that solutions to the access to justice crisis in Canada require that the issue be viewed from the perspective of ordinary Canadians, those people who experience legal problems. From this perspective, legal services in Canada need to be provided by a wider range of service providers than the traditional menu of choices that Canadians typically are offered when they have legal problems in the realm of civil justice and family matters. In fact, the Access to Legal Services Working Group found that this situation already exists to a certain degree. Their report notes, “There is a vast array of organizations and individuals who provide legal assistance and advice although they are not licensed or regulated by any law society.” And in fact this is implicitly recognized by some of the regulators such as the Law Society of Upper Canada which exempts certain providers of legal advice from their regulation.

The Working Group sees individuals in other regulated professions in the health, education, and social services sectors as often being capable of providing legal assistance and advice that will help people to resolve their legal challenges and problems. This is sensible, given the fact that for most people their legal problems are often clustered with other difficulties and challenges they face related to uses like housing, employment, health and income security. The further attraction is that there is the possibility of seamless meeting of needs, especially for the socially excluded and disadvantaged.

The Working Group is, however, sensitive to some of the paradoxes and ironies that run through how the public perceives the pursuit of solutions to their legal problems in the justice system. The dramatic increase in self-represented litigants in the courts is ordinarily taken as a sign of the crisis in access to justice. The recommendation to broaden significantly providers of legal services beyond lawyers makes sense as an affordable response to the rise of self-represented litigants. Yet, ironically, in venues and forums in the justice system such as small claims court and some of the specialized tribunals that are designed to not require parties to have lawyers, we are witnessing more and more parties bringing lawyers to represent them. How does this make sense?

Perspectives of ordinary Canadians on legality are unlikely to be uniform nor coherent. One idea that popular culture venues such as television and movies foster is that the justice system operates like a game where the goal is to win. Who wins is a matter of who you have on your team and the other resources you have on hand. Seeing small claims courts and tribunals in this way encourages parties to try to get the upper hand by bringing their best team to the forum. Practically, because popular culture does not project this idea of legality, ordinary Canadians may also find it hard to imagine getting legal advice from nurses or teachers.

The two reports of the National Action Committee on Access to Justice in Civil and Familial Matters are available on the website of the Canadian Forum on Civil Justice, which also provides a mechanism to provide feedback to the Action Committee:

Les Jacobs, Executive Director, Canadian Forum on Civil Justice

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