A Roadmap for Change, the Final Report of the Action Committee on Access to Justice in Civil and Family Matters
Canada has a system of civil courts that would be the envy of many countries. We have a large, well- trained and dedicated legal profession. The legal aid system in Canada provides more service in civil matters than is available in many places throughout the world. Yet, with all this and all that it costs, we are not meeting the legal needs of the Canadian public. The final report of the Action Committee on Access to Justice in Civil and Family Matters, A Roadmap for Change, tackles the difficult problem of why this is the case and lays out recommendations for what can be done to bring full access to justice to Canadians. The final report and four subcommittee reports on early stage resolution of civil justice problems, legal services, court simplification and family law are available on the Canadian Forum on Civil Justice website.
The report has three main purposes.
- To promote a broad understanding of what we mean by access to justice.
- To promote a culture shift, a new way of thinking about justice, access to justice and what we mean by the justice system.
- To offer a broad roadmap for change.
The report succeeds remarkably well on all fronts.
In part I of the report, the Action Committee presents a view of access to justice that is much broader than the traditional perspective that has focused on courts, tribunals, judges and lawyers. This concept of access to justice reflects not only the legal problems for which people obtain legal advice or that find their way to the courts, but the much larger number of serious and difficult legal problems experienced by the public for which they do not go to law. The report sketches out the access to justice problem, reflecting the manner in which members of the public experience legal problems. First is the ubiquitous quality of legal problems. “Civil Justice problems are pervasive in the lives of Canadians and frequently have negative impacts on them”. Legal problems frequently do not occur in isolation. Legal problems trigger other legal problems. Legal problems trigger, and are triggered by, a range of non-legal problems. Multiple legal problems often occur in interdependent clusters, making the resolution of individual problems difficult without addressing the others at the same time. The poor are especially vulnerable to experiencing multiple problems. Because of current levels of funding and coverage, legal aid system is unavailable to most people and legal problems. The courts are not accessible to most people, largely due to cost.
Part II of the report acknowledges that systemic problems with the conventional approaches, which have dominated efforts to address the access to justice problem, may have produced the current unsustainable situation. What is needed is a culture shift, a new way of thinking that is based on a culture of reform. The report encourages a new culture of reform guided by six principles.
- Put the public first. This means that we have to look at legal problems from the point of view of the people experiencing them, not solely from the point of view of the system. Responses to legal problems will involve measures that extend beyond the services normally available from a lawyer.
- Collaborate and coordinate. The measures required to address access to justice rarely reside within the responsibility of one organization. Much effort will have to go toward overcoming the silos that inhibit integrated approaches.
- Prevent and educate. Experiencing legal problems is a part of the everyday lives of people. Life’s problems, which may eventually become complex legal issues, have beginnings that, with early intervention, might have been prevented or managed effectively. Building legal capability among the public and encouraging prevention is an important element of an access to justice strategy.
- Simplify, make coherent, proportional and sustainable. It is often said that not every health problem requires a surgeon. By the same token, not every legal problem requires a lawyer. Building an approach to access to justice that provides assistance for the many problems that are very important in the lives of the people experiencing them, but for which the cost of a solution at current lawyer’s fees is too great and possibly disproportionate to the problem, will require a range of access to justice services that are appropriate and proportional to the problems.
- Take action. The justiciable problems research has provided us with a body of reliable empirical knowledge about the nature and extent of the legal problems experienced by the public. There are many good ideas and examples of innovative access to justice initiatives in this country and from around the world. The report is a call for action.
- Focus on outcomes. The final guiding principle calls for a shift in focus from process to outcomes. “We must be sure our process is just. But we must not just focus on process. We should not be preoccupied with fair processes for their own sake, but with achieving fair and just results for those who use the system.”
Finally, part III provides a nine-point access to justice roadmap. It is not a recipe but, rather a set of principles intended as a guide for local initiatives. The roadmap for change includes the establishment of national and local implementation mechanisms to put in place enhanced access to justice services that meet the needs of local and regional populations. The report emphasizes that to succeed we must enhance our capacity for innovation. If we do not invest in innovation we risk repeating the mistakes and failures of the past. The roadmap points to the need for a coherent and sustained funding strategy, including enhanced funding for legal aid. It calls for support for access to justice research in order to promote evidence-based policy choices.
The final report of the Action Committee represents the accumulated knowledge and experience of many people who are well-placed in the Canadian justice system. It presents a good account of the problem of access to justice and the most promising directions in which to look for solutions. It represents an opportunity to improve access to justice in Canada that will not likely recur frequently.
Ab Currie, Senior Research Fellow