Beyond the Binary

I work in the justice sector managing a collective impact initiative that facilitates collaboration with institutional, political and community stakeholders. Our goal is to develop meaningful, public-focused access to justice solutions for Ontario. The term “innovation” is one that I hear often, delivered with a sense of urgency to catch up, to be more like other sectors and to make better use of technology. This pressure – and the related jargon – can at times obscure what innovation is really about and inadvertently alienate. Of course, innovation is about change but it doesn’t have to entail a scorched earth approach or have an exclusive focus on technology. Instead, it can simply be about being open whether that’s trying different methods or listening to new voices.

I work with many lawyers but I am not a lawyer myself. This circumstance leads me to frequently be labelled as a “non-lawyer” — something I respond to with humour by stating that I am no more a non-lawyer than I am a non-man. I mention it here to illustrate an access to justice innovation stumbling block. How can we be open to creative solutions if the default mode is binary thinking? Imagine the innovation possibilities when we shift from constraints to common goals. When it is more about what one is, rather than what one is not.

In my experience, “non-lawyer” is intended as a compliment from lawyers who are eager to work with someone with different training, approaches and tools. However, this form of unconscious othering, where one group is privileged over another, has ripple effects with considerable consequences. Access to justice is a multifaceted issue with complex elements related to the lived experience of race, poverty and a host of other considerations. A truly collaborative, multi-disciplinary approach that values the contributions of diverse experts is crucial to the development of meaningful system change. Working together across perceived boundaries not only produces better solutions, it lightens the load — many hands make light work.

In her recent book Better Now: Six Big Ideas to Improve Health for All Canadians, Dr. Danielle Martin outlines how a Basic Income Guarantee along with strong social programs could protect Canadians from the health effects of poverty. Dr. Martin writes about the importance of being sensitive to the lived experience of those on the margins — to see the whole person and not just the fraction that is deemed most relevant to your area of expertise. If you are racialized, in poor health and living in poverty you have a higher likelihood of also having a legal problem. Although your problem may begin in one sector, cascading effects lead to problems in other areas such as employment, housing, family breakdown — the list goes on. This circumstance propels a process of social exclusion that cannot be segmented into patient/non-patient or litigant/non-litigant identities. Solutions to complex problems like access to justice need to be sensitive to this reality.

This sensitivity has influenced a range of access to justice initiatives across Canada. The shift from a transactional approach to a relational one is guiding the community engagement work of the Nova Scotia Barrister’s Society (NSBS). Building on lessons learned from their successful community engagement initiative #TalkJustice, a new story based project led by the Nova Scotia Access to Justice Coordinating Committee is in development. Focused on collecting stories from Nova Scotians about their experiences with legal services and the justice system, the project brings together NSBS, the Nova Scotia Department of Justice, the Courts of Nova Scotia, Nova Scotia Legal Aid, the Schulich School of Law at Dalhousie, the Nova Scotia branch of the Canadian Bar Association and a public representative. These stories will be converted into data which will facilitate evidence-based policy development.

In British Columbia, Access to Justice BC has adapted the health sector’s “triple aim” as their framework for action. This involves taking an “‘improvement approach’ that engages the user’s perspective, is multi-disciplinary, experimental and recognizes that users of the [justice] system are partners in improving it.” Last fall, the University of Saskatchewan College of Law announced the launch of CREATE Justice, a centre for research dedicated to Data and Community-Engaged, Interdisciplinary, Action-Oriented Research. In addition to transforming legal and justice services, the centre will also draw on a range of academic experts to address systemic barriers to justice.

These efforts are squarely aimed at culture change by working to normalize broader engagement and open up definitions of progress. The focus on social value produces better solutions for complex problems while simultaneously improving the justice sector’s public image. A recent report from The Action Group on Access to Justice (TAG) measured the public’s perception of Ontario’s justice system and the results were unsurprisingly bleak. Large majorities of Ontarians saw it as old fashioned (78%), intimidating (71%), confusing (69%), inefficient (68%), and broken (64%). Quantifying this discontent underscores how significant it is. No access to justice solution, no matter how perfect, can succeed without having the public onside. As Lisa Kimmel points out in a recent editorial, regaining trust from the public has never been more critical given the recent rise of populism.

The way forward must involve a deliberate shift away from binary thinking. Widening the access to justice lens to include transparency, genuine engagement and true collaboration will produce not only the most innovative solutions but also the most meaningful ones. Who doesn’t want that?

Sabreena Delhon is the Manager of The Action Group on Access to Justice. Follow her @sabreenadelhon.

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