Last week the Canadian Bar Association held a summit on access to justice in Vancouver. I spoke on active adjudication as a tool to enhance access to justice. My co-presenter, Darin Thompson, spoke about online dispute resolution. In preparing for my presentation, I was reflecting on the skills or aptitudes that disputants bring to the justice process. It is nearly impossible to provide individualized responses to all of the parties that appear before tribunals, however, it is crucial that tribunals have at least a sense of the needs of the community that it serves. In this column, I will focus on literacy as barrier to access to justice, and what tribunals can do to ensure that their processes are understandable.
Chief Justice Beverley McLachlin said in a speech (in 2002): “The law is, perhaps, the most important example of how words affect people’s lives. There is truth in the proposition that if we cannot understand our rights, we have no rights.” In 1992, the Canadian Bar Association issued a report (“Reading the Legal World: Literacy and Justice in Canada”) that noted that our legal system is based almost entirely on the written word: “if you have trouble with the act of reading, it may not be possible to work through the system”.
The United Nations Education, Social and Cultural Organization (UNESCO) defines literacy as:
the ability to identify, understand, interpret, create, communicate, compute and use printed and written materials associated with varying contexts. Literacy involves a continuum of learning to enable an individual to achieve his or her goals, to develop his or her knowledge and potential, and to participate fully in the wider society.
The most comprehensive survey of adult literacy in Canada was conducted in 2003. The survey identified five levels of literacy:
Level 1: Persons with very poor skills, where the individual may, for example, be unable to determine the correct amount of medicine to give a child from information printed on the package.
Level 2: People can only deal with material that is simple, clearly laid out, and in which the tasks involved are not too complex.
Level 3: People have the ability to integrate several sources of information and solve more complex problems. This is the minimum skills level suitable for coping with the demands of everyday life and work in a complex, advanced society.
Levels 4 & 5: People demonstrate a command of higher-order information-processing skills.
About 40 percent of adult Canadians (age 16 to 65) struggle with low literacy (below level 3). Of those with low literacy, 15 per cent have serious problems dealing with any printed materials and an additional 27 per cent can only deal with simple reading tasks.
Literacy levels are not static – they can decline with age, with mental health issues and under stress.
These statistics are not new and neither is the recognition that administrative tribunals need to address the literacy levels of their clients or user groups. In 2005, the Canadian Council of Administrative Tribunals published a short book on literacy and access to administrative justice. The chief justice wrote a brief foreword to the book and noted that those of us who have no problem reading may not fully comprehend the frustration of those who have difficulty reading when facing “the document-laden justice system”:
How can they understand tribunal procedures and rules? How can they understand the documents put forward by the opposing party? How can they understand the tribunal’s decision itself?
There are three areas that need to be examined through a literacy lens:
- The skills that individuals need to make their case
- The appropriateness of the written materials that are part of the tribunal process (guides, brochures and rules)
- The training of tribunal staff and adjudicators to recognize participants in the process (parties, representatives and witnesses) with literacy problems and to work appropriately with them.
The CCAT book sets out the steps a tribunal can take in developing and implementing a literacy program. The linchpin for a successful program is conducting a literacy audit – who does the tribunal serve and what are their literacy needs? Armed with this information, a tribunal can then assess the documents and forms it provides to parties, as well as its rules of procedure, to see if those documents are aimed at the right literacy level.
There are a number of tools available for assessing the readability of text. These tools use algorithms to give a rough guide to the readability of a text, including its grade level. (For a good overview of the history of readability indexes, see Principles of Readability by William H. DuBay.) Rudolf Flesch, an Austrian lawyer, fled Nazi Germany in 1938 and unable to practice law in the United States, returned to school and received a Ph.D. in educational research. He developed a readability index and authored many books on plain language, including How to Write in Plain English: A Book for Lawyers and Consumers (1979). His readability index is used in Microsoft Word (in the spellcheck function). The Flesch-Kincaid Grade Level takes the readability index and translates that into the appropriate grade level. These guides are only rough guides, because they measure lengths of words, number of words in sentences and the length of paragraphs. They do not assess such important factors as the structure of a document (headings and organization). This column is rated at a 12.7 grade level.
Many people with low literacy get information through television. It would make sense then to convey basic information about tribunal processes through video. There are few tribunals that have used the power of video to convey information. The Public Service Labour Relations Board produced DVDs on its adjudication and mediation processes in 2004 and has posted the video on its website. I was not able to find any Canadian tribunals with a YouTube channel. The Consumer, Trader and Tenancy Tribunal in New South Wales, Australia has a channel with short practical guides on how to respond to proceedings and how to prepare for a hearing. Interactive guides using multimedia web features show promise as well. The Parole Board of Canada recently launched a multimedia guide that it calls a virtual hearing.
Even if the information provided by tribunals is at the appropriate literacy level, there will always be issues that arise with individuals either before or at the hearing. Tribunal staff or adjudicators may pick up clues of literacy issues in reviewing the file prior to the hearing, assuming that the documents provided by the party were prepared by him or her. Before deciding to hear a matter in writing, a careful examination of the file should be done to determine if the parties have the capacity to adequately express themselves in writing.
At an oral hearing, there are a number of clues that can be used to determine the level of literacy of a participant. It is rarely helpful to ask someone if they can read – most individuals with low literacy have become adept at hiding that fact. Conversely, such a question may be insulting to a competent reader. The CCAT guide provides a useful checklist of behaviours that may indicate literacy issues (at page 24 of its guide). The checklist includes such factors as difficulty following instructions, reading too fast or too slow related to the length of a document, becoming angry and frustrated, using excuses not to read documents (e.g., I forgot my glasses) or saying things clearly inconsistent with the written information in their possession.
Once you have identified a literacy issue, there are a few things that an adjudicator can do to ensure that the participant understands the process. The CCAT guide suggests the following steps:
- Simplify your explanations of the process
- Explain as often as necessary – rewording complex instructions or requirements
- Ask participants to repeat back what they understood you to say
- Repeat important information to increase understanding (persons with low literacy often rely on memory)
- If represented, a recess may be necessary to allow the representative to explain the process to his or her client.
Many hearings are becoming increasingly document-heavy. Witnesses should generally be given the time to review documents prior to their testimony. If that is not possible, it may be necessary to give the witness time to review the documents at his or her pace, outside of the formality of a hearing. Many adjudicators complain about representatives asking witnesses to read documents out loud that are already part of the record. Another reason not to ask a witness to read a document out loud is their possible low literacy. As I have noted, literacy can decrease while under stress. Requiring a witness to read a document (silently) while everyone in the hearing room waits patiently can be stressful for a witness with low literacy. A short adjournment may be necessary.
With the increase in self-represented parties and the persistence of literacy problems in Canadian society, a renewed emphasis on making tribunal processes intelligible to all of the participants in administrative justice is crucial.