Access to Justice Fatigue

I hope JP Boyd was right when he recently suggested there is a growing fatigue with the subject of access to justice in Canada. Boyd has recently launched a blog on the subject (lauded here on Slaw) that focuses on concrete steps lawyers and other stakeholders can take to increase access to justice in small but significant ways.

If there is growing weariness, I expect some of that is generated by those on the frontlines who continue to slog forward while waiting for those in governments and courts to finish “exploring initiatives” and start funding and implementing initiatives that actually do increase access to justice.

In Manitoba, there are efforts underway, though with no apparent urgency. In late June, Manitoba Courts issued a news release and held a press conference outlining the actions they are taking to achieve greater access to justice. Some of the steps being taken or considered to enhance access to justice through Manitoba Courts include:

  • In the area of family law and child protection work, initiatives will be explored which recognize that the adversarial system may not always be the best way to resolve these matters.
  • In the area of criminal law, initiatives will be explored with respect to the possible reform of preliminary inquiries, which will include reviewing the existing system which currently adds many months of delay to the final resolution of the matter.
  • In the area of civil law, initiatives will be explored which emphasize “proportionality” as a reference point for maximizing access to justice.
  • In all three areas of the law, initiatives will be explored to address delay issues which often arise because of unwieldy processes.
  • Public access to court information will be improved with the continuing development of the new Manitoba Courts website, found at www.manitobacourts.mb.ca.
  • The ‘Cameras in the Courtroom’ pilot project which began in April, 2014 will continue and evolve.

This is hardly an action packed list. “Exploring initiatives” that do this or that sounds rather a lot like “Review File” on a lawyer’s bill. It’s hard to say whether thinking about something, whether individually or in a committee really amounts to an action step, though of course sober thought is an important first step and often better than rushing off in all directions.

Meanwhile, those working on the frontlines are dealing with increased demand for services and reduced or static budgets. Working every day at the edge of the access to justice gap is rewarding in many ways, but not financially. This is where burnout and fatigue are probably most evident. The demand for their help continues to rise, while the resources available to deliver that help are fixed, or in some cases, diminishing.

Many of the frontline access to justice organizations, in Manitoba, are funded through the Manitoba Law Foundation, with the limited income earned from investments of lawyer’s trust account income (IOLTA). With interest rates at low levels for many years now, IOLTA incomes remain historically low and law foundations across the country are considering how best to allocate scarce resources to organizations on the frontlines of access to justice. These are established organizations that are mostly underfunded or not funded at all by government, including: Legal Aid Manitoba, Public Interest Law Centre, Community Legal Education Association, Community Unemployed Help Centre, Legal Help Centre, Pro Bono Students Canada and Manitoba’s law libraries.

If you’re not on the frontlines but are getting tired of hearing the cries for access to justice, you have a few options:

  • Subscribe to and read Access to Justice in Canada for practical tips on what you can do;
  • Volunteer your time with your local pro bono organization;
  • Give to your local pro bono organization. An amount as little as the equivalent of one billable hour from every practising Canadian lawyer would make a tremendous difference to the budgets of these organizations across the country;
  • Get involved in advocating for increased funding to access to justice work in your jurisdiction.

Until real progress becomes evident, lawyers must continue to advocate, whether with their time, their dollars or their voices, for access to justice for all Canadians. Getting tired of it only means we’ve still got work to do.

 

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Comments

  1. I see it a different way. We reached and passed fatigue on Access to Justice a long time ago. The mood in the recent past was more like despair … “nothing can be done”, “there are no resources available and the economy won’t is in bad shape”, “politics will never let funding increase in this area”, etc.

    Now that we are seeing that we can do something with tech/self help/restructuring the system through limited scope representation, unbundling, online self -service, document assembly, websites and open law, there is a glimmer of hope. We are coming off despair and back into …. fatigue. “This is going to be HARD”, “This is going to be complicated”, “The tools aren’t very good yet”, “There isn’t enough investment in the legal sector”, etc.

    This is a natural consequence of rising up out of despair – sort of a reverse of the five stages of grief. We can’t skip this step, but we have to push past it to …. hope?

  2. John,
    I concur that we’re climbing out of despair and a sense of helplessness on these issues. If analogizing to the Kubler-Ross stages of grief, I’d suggest we’re stuck somewhere between bargaining and acceptance and still a good distance from hope. At least in Canada we have miles to go to get governments to wholly buy-in that their further investment is required. Governments, in particular, continue to bargain. Lawyers have moved mostly on to acceptance, and some, I agree are beginning to feel a little hopeful.
    But there is still a hard slog ahead. I remain optimistic that we’ll make progress so long as there are A2J advocates keeping the issues front and centre. I’m sure you’ll agree the advocates need ongoing support from the profession to keep up their energy to meet ongoing demand for legal assistance.

  3. Karen, thanks for the cross-link to my post lauding JP’s work.
    You’ve captured the problem that endless “exploring initiatives” creates. Message saturation, endless navel gazing, and no observable results.
    Indeed JP’s whole thesis with this blog, from what I can see, is about immediacy. It’s about the opposite of longitudinal planning around current problems. It’s about immediate action.
    I am glad you named the two types of fatigue:
    – I’m tired of bailing out the same boat with an ever degrading and leaking bucket.
    – I’m tired of hearing about your sinking boat and leaking bucket.
    In addition to more manageable and sustainable efforts by more people, we need to consider what kind of paradigm shift is needed.
    And I think that means we need to think about where it’s needed too.
    Shifting the legal profession’s internal thinking is fine. But it can only have so much impact on the whole problem.
    Shifting the government’s priorities to access to justice only seems possible as a costs-savings exercise. If there is a program that gets more bang for the buck, and diverts people from consuming court resources, great! But it’s an economics view… not a justice view. Because the public paradigm the governments think they are serving is focused on cost control, not justice access.
    I think the pressure point is the public’s perception of what justice is, and what it means when it’s gone. You can sell environmental policy for clean air and water, because it’s easy to imagine and terrifying to contemplate what happens to our children if that’s not there. But how do you sell a taxpayer on access to justice? This is a marketing question… this is about hearts and minds…. and we have been playing an amateur’s game for too long.

  4. Does the public want “access to justice” or access to competent and affordable legal representation and processes to access justice? Is this a Charter issue, i.e., s. 15, “equality before and under law and equal protect and benefit of law”?

  5. The general public likely thinks about “access to justice” almost never. Their education about its levels maps their descent into legal hardship.
    The newly legally-embroiled public think about A2J as a “where’s my free advice?” issue first, then a “holy, lawyers are expensive” issue second, then a “holy, this stuff is confusing!” issue when they’ve gone on to self-represent. Maybe someone is a close relative whose sense of A2J is “I can’t believe that line of credit I took out for you is entirely tapped and this problem is still dragging on!” type of issue.
    Maybe after all this people extrapolate the experiences they’ve had and encounter a sterilized term that describes the distress they just lived through. That’s when “access to justice” as a term begins to live in the mind of a member of the general public. Yes they want affordable legal representation and processes as soon as they need it. But they rarely really want “access to justice” writ large and anonymous. They want a solution to the problem in front of them.
    Obviously a holistic approach to addressing all problems can be called access to justice, but the label we use does not communicate a value proposition people who are not legally-embroiled.

  6. “The general public likely thinks about “access to justice” almost never.” Probably true because “access to justice” is elusive for many. See Road Map.

    “They want a solution to the problem in front of them.” According to the Road Map most people don’t deal with the problem because they assume that the cost is out of reach.

    “the label we use does not communicate a value proposition people who are not legally-embroiled” … perhaps, “affordable” should be added to the label.

    1. Put the Public First
    We need to change our primary focus. Too often, we focus inward on how the system operates from the point of view of those who work in it. For example, court processes — language, location, operating times, administrative systems, paper and filing requirements, etc. — typically make sense and work for lawyers, judges and court staff. They often do not make sense or do not work for litigants.

    The focus must be on the people who need to use the system. This focus must include all people, especially members of immigrant, aboriginal and rural populations and other vulnerable groups. Litigants, and particularly self-represented litigants, are not, as they are too often seen, an inconvenience; they are why the system exists.

    Until we involve those who use the system in the reform process, the system will not really work for those who use it. As one court administrator recently commented, we need to “change … how we do business within the context of courts.” Those of us working within “the system need to remember that it exists to serve the public” [emphasis added]. That must be the focus of all reform efforts. (footnotes omitted)
    Road map for Change – October 2013
    http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf

  7. Thanks very much for this interesting article, Karen.

    Following up on John’s comment, I do have enormous hope for the future. (I have to, or I’d’ve quit this gig to pursue my secret passion for sausage-making a long time ago.) However, alongside my hope lurks a fear born of the last thirty years’ worth of task forces, committees and inquiries and the mouldering bones of their ernest recommendations and calls to action, a fear which is occasionally fanned into anxiety when I reflect on the amorphous, long-term nature of the reform efforts underway in various jurisdictions.

    This said, Nate has accurately summarized the perspective underlying my new blog, and it’s the enormous potential for change that lies within our grasp which sustains my hope. Yes, the sort of sweeping change ultimately necessary will require systemic change beyond our individual capacities and demands a lengthy time scale, but there is so much we can do that has a tangible impact on the accessibility of justice that doesn’t need to wait for gobs of funding, pronouncements from on high or the demolition of courthouses.

    I’m sorry, I’m not usually this buoyantly enthusiastic, but I’ve just finished a post that talks about the phenomenal changes that have resulted in BC from the actions of a mere handful of lawyers involved in establishing collaborative settlement processes, parenting coordination and non-evaluative views of the child reports. These initiatives have changed the culture of family justice in the province and resulted from the efforts of three or four lawyers bereft of funding or sanction but possessed of a shared vision for the future. This gives me hope; scads of it. What we are able to accomplish with effort and conviction is astonishing.

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