Column

A New Call to Action to Improve Access to Justice

At a UN summit in 2015, world leaders identified 17 universal threats to the well-being, safety and advancement of people worldwide and to environmental sustainability. The result was the UN Sustainable Development Goals (SDGs). Officially in effect since January 2016, the SDGs aim to galvanize national and international efforts around an agenda that promotes equity, empowerment and certain fundamental rights and improvements. The target date to reach these goals is 2030.[1]

Notable for the justice community is the addition of Goal 16, which has the object to: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels” (SDG 16). [2] Sub-goal 16.3 calls for advancing the rule of law at national and international levels and ensuring equal access to justice for all.

The importance of identifying equal access to justice as fundamental to quality of life and a goal for all countries to work towards speaks volumes. It signals an acknowledgement of the pervasiveness of legal problems, the profound effect that legal problems have on people’s lives and the need to eliminate barriers and create avenues to deal with legal problems for the betterment of societies and to improve people’s lives. Like the eradication of extreme poverty and hunger (SDGs 1 and 2 respectively), the promotion of good health and well-being (SDG 3), gender equality (SDG 5), clean water and sanitation (SDG 6) and climate action (SDG 13), among other goals that are common targets for global efforts, access to justice now forms part of a critically important pledge and agreement of what is “urgently needed to shift the world onto a sustainable and resilient path”.[3]

The extent of the access to justice problem

The Hague Institute for Innovation of Law’s (HiiL’s) 2017 Annual Report and Accounts reveals, based on data collected over the course of 4 years in 12 countries in Europe, Africa and the Middle East, approximately 1 billion new justice problems arise each year.[4] Further, an estimated 6 billion people in the world do not have adequate access to justice, with legal need being most prominent in areas related to civil and family justice problems types.[5] Closer to home, the 2017 Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans report indicates that over the course of the last year, 71% of low-income households experienced at least one civil justice problem and almost 90% the civil justice problems that were reported by low-income Americans received inadequate or no legal help.[6] In Canada, almost 50% of adults experience a civil or family justice problem in a given three-year period and essentially every adult will experience a serious civil or family justice problem over the course of their lifetime.[7] From civil and family courts within our borders where a majority of litigants appear without representation[8] to insufficient funding for provincial legal aid programs that threaten the delivery of legal help to low-income and vulnerable individuals[9], there are various examples of impediments to accessing justice in Canada.

In many respects, this shared universe of access to justice challenges has not hitherto provoked a sense of global urgency proportional to its seriousness. A commitment initiated through the UN SDGs for governments to act to address this crisis and, an appeal to stakeholders in private and public sectors to contribute, to the extent of their resources, to helping to achieve this sustainable development goal (and others) is not only welcomed, it is necessary.

Progress on access to justice

The Canadian Government recently released Canada’s Implementation of the 2030 Agenda for Sustainable Development Voluntary National Review. This is the government’s first report on how Canada is responding to the 17 UN SDGs and the progress to date on the targets included for each goal. There are encouraging signs of development and engagement at the federal level in programs and activities intended to engender advancement of the specific nature outlined as part of the Sustainable Development Agenda.

Additionally, the report highlights the integral work that various institutions, bodies and organizations across Canada are doing in support of these goals. Complex, far-reaching problems like access to justice benefit from buy-in from all stakeholders who can contribute to addressing the various facets of the problem. Such is the work that organizations like the national Action Committee on Access to Justice in Civil and Family Matters are doing. In areas of access to civil and family justice, the Action Committee is coordinating and mobilizing local and regional initiatives to improve access to justice in Canada, and where possible, to assist progress on other, related goals. The breadth of the Action Committee’s efforts and national progress in 9 key areas identified by the Action Committee as critical to move the dial on access to civil justice and family justice are further documented in the recently published Justice Development Goals progress report.

A multi-country initiative that is being supported by Canada’s International Development Research Centre (IDRC) and that includes the Canadian Forum on Civil Justice (CFCJ) and in-country partners in Kenya, Sierra Leone and South Africa is also highlighted in the Voluntary National Review. This collaborative project is producing evidence to support a business case for scaling up community justice services to help low and middle income earners in Canada and Africa.

Access to justice is not a new problem nor is it a unique one. There are certainly aspects of the access to justice debate that have evolved over time as has our understanding of the complexity of the problem and ways to address it. To the extent that the first step in solving a problem is acknowledging that the problem exists, UN SDG 16 that promotes equal access to justice has arguably put us on a necessary path towards targeted improvements. As an initial, promising step, the publication of the 2018 Voluntary National Review report shines a light on the work that is happening nationally and internationally towards improving access to justice and has also perhaps forced a reflection on our serious failings in this area. Hopefully, this is the impetus that was needed to effect significant improvements in access to justice. We have until 2030 to get there.

— Lisa Moore
Canadian Forum on Civil Justice

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[1] The Sustainable Development Goals (SDGs) succeed the 2000-2015 Millennium Development Goals (MDGs). For more information on the Millennium Development Goals, see generally United Nations, “News on Millennium Development Goals”, online: United Nations <http://www.un.org/millenniumgoals>.

[2] SDG 16 is among nine new objectives in the UN 2030 SDGs that were not a part of the UN’s 2000-2015 MDGs. For the complete list of UN Sustainable Development Goals, see United Nations, “Sustainable Development Goals”, online: United Nations < https://sustainabledevelopment.un.org/?menu=1300>.

[3] United Nations, “Transforming our world: the 2030 Agenda for Sustainable Development”, online: United Nations <https://sustainabledevelopment.un.org/post2015/transformingourworld>.

[4] HiiL, Annual Report and Accounts 2017 (The Hague, Netherlands: HiiL, 2017) at 4, online: HiiL < http://www.hiil.org/data/sitemanagement/media/HiiL%20Annual%20report%20and%20accounts%202017.pdf>.

[5] Ibid at 12. The top 5 categories of problems identified in the countries included in the survey are family, employment, crime, land, neighbours.

[6] Legal Services Corporation & NORC at the University of Chicago, The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans (Washington, DC: Legal Services Corporation, June 2017) at 6, online: Legal Services Corporation <https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf>.

[7] Trevor C.W. Farrow et al., Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) at 2, online: Canadian Forum on Civil Justice < http://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[8] Julie Macfarlane, “Identifying and Meeting the Needs of Self-Represented Litigants,” Final Report of the National Self-Represented Litigants Project (May 2013) at 122, online: <http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf>.

[9] See e.g., Ian Mulgrew, “Ian Mulgrew: Stretched legal aid living on hope in B.C.” Vancouver Sun (7 January 2018), online: < https://vancouversun.com/news/national/ian-mulgrew-stretched-legal-aid-living-on-hope-in-b-c>; Ian Mulgrew, “Ian Mulgrew: Legal aid boost in eye of beholder” Vancouver Sun (21 January 2018), online: < https://vancouversun.com/news/politics/ian-mulgrew-legal-aid-boost-in-eye-of-beholder>; Sean Rehaag, “The Charter and Legal Aid Ontario’s Proposed Refugee Law Cuts” (7 June 2017), A2J Blog (blog), online: < http://cfcj-fcjc.org/a2jblog/the-charter-and-legal-aid-ontario%E2%80%99s-proposed-refugee-law-cuts>.

Comments

  1. “[A]n estimated 6 billion people in the world do not have adequate access to justice, with legal need being most prominent in areas related to civil and family justice problems types.” According to worldometers.info’s World Population Clock the current world population is 7.6 billion and counting. Six billion people without adequate access to justice is a tremendously significant number and screams of crisis on this front.

    The author of this column is hopeful to write: “We have until 2030 to get there.” However, should there not be more urgency than is being conveyed given what appears to be a crisis situation. This final statement should read: “We SHOULD NOT WAIT until 2030 to get there.” Access to justice now, not at the next election or the next political expedient moment. Access to justice not in haste but with quick, deliberate, sincere, intelligent, humane and just action. This is an umbrella issue there are many other pressing challenges that may be addressed if access to justice is done right – one of the many issues may be migration.

  2. Migration? Instead of losing 30% of our STEM students to the US because of our counter-productive leftist fantasy politics, and instead of having literally hundreds of unemployed or underused new calls to the bar each and every year, perhaps we could work to the keep the economy-generating STEMs here and send those hundreds of unhappy new calls to the Third World (Africa, Asia, the condemned building at 24 Sussex) to provide legal services there. Well, maybe not. People, even us cuddly lawyers, do have family and other ties here.

    Access to Justice is, it is so obvious to say, a critical element in the advancement of human rights and a socially and politically free and democratic society featuring a credible and working capitalist economy (the only economic system that actually and sustainably lifts all boats). In the legal world, the worst thing that can befall a sophisticated society is far too few lawyers per capita. The second worst is far too many lawyers per capita, but that’s another essay. To their detriment, many countries have far too few lawyers. To their detriment, Canada and USA have too many.

    With respect to A2J, except maybe at the margins, there is no access problem for transactional and/or prevention work such as real estate, small business contracts, and Wills and Estates. Except for the wealthy and the legal aid qualifiers, cure law – dispute resolution – is the barrier to access that dwarfs all other real and imagined barriers by several country miles.

    Currently, dispute resolution takes a lot of time. Time is money (and you leftists out there need to better understand the concepts of overhead and planning for an unsubsidized, unindexed retirement). Unless the excessive time required to resolved disputes is reduced, the cost of it will always remain excessive. There is no other solution. There are, however, many ways to reduce the time. One is to take some of the disputes out of the system. An example, employed throughout Europe and in several US states, is to take almost all custody and access disputes out of the court system, by implementing a nearly always automatic custody and access regime by statute.

    Another way is to eliminate costly and mostly useless steps from the litigation grind. Consider getting rid of the mediation and pre-trial stages. Even many judges have said they are essentially wastes of time (i.e., money). Shorten the process far beyond allowing for Skyped meetings. Require better use of Offers to Settle. Penalize unreasonable parties. Heavily if necessary until the message is received.

    There is very little new under the Sun. Most barristers can predict what an informed, sensible judge (i.e., the vast majority of them) will do with a case within the first month, week or hour of opening the file. There is no real need for the process to take three years and, for too many people, a debilitating amount of money.

    A reduction in the ruinous time and cost of litigation would open up vast new markets of clients who could then, finally, afford legal assistance in resolving their disputes. Look at the vast pool of self-represented litigants. I submit that, while barristers would make less per file, they would have many more files each taking far less time than in the past.

    During 7 1/2 hours of meetings at the Law Society, five means of improving access to justice were discussed – more pamphlets in more languages, more legal aid (from the most indebted subnational government on Earth), repurposing the Shirley Dennison Award to laud an enhancer of A2J, more e-filing, and more use by First Nations of their circles of healing system (a very beneficial system, by the way). I favour all five improvements, but together they will not impact A2J by much more than a millimetre with the major beneficiaries being our Indigenous peoples.

    There is only one way, and one way only, meaningfully and effectively to enhance access to justice and that is to reduce the time, and therefore the cost, of resolving disputes. Anything else if fumbling around the edges and leaves those who fail to address the real problem open to the charge of being more interested, short-sightedly in my view, in their own feathered nests.

  3. “Instead of losing 30% of our STEM students to the US because of our counter-productive leftist fantasy politics” – Hmmm – “counter-productive leftist fantasy politics” is it? Silicon Valley still is in California isn’t it? California Dreaming – Jerry Brown, carbon cap tax etc.

  4. Bradley, you say, “There is only one way, and one way only, meaningfully and effectively to enhance access to justice and that is to reduce the time, and therefore the cost, of resolving disputes. ”

    Except for publicly-funded Legal Care (making lawyers like doctors in that way). Or publicly-funded machine-assisted self-representation. Or (for family matters) an overhaul of the system away from the adversarial model and toward a holistic, human-centred approach, with adversarial litigation as a last resort.

    Oh! But those cost money. It is much less expensive just to give short shrift to those who as yet cannot access justice.

  5. A brief reply to A. Lawyer:

    I am giving short shrift to nobody, but if we do not get our fiscal house in order, the biggest losers by far will be the economically disadvantaged recipients of government funds and programs.

    When Ontario is the most indebted sub-national government on Earth, when interest payments on that debt are One Billion Dollars every month ($225,800,000.00 every seven days) , there should be no more money for legal aid or for setting up machine-assisted self representation (though nothing stops the private bar and, sadly, others from doing it), except, and this is key, where savings in other areas can be re-allocated. I say reduce the time and therefore the cost of litigation and those savings can be redirected to the economically disadvantaged whether through legal aid or government produced algorithmic machinery.

    I have been a strong advocate for taking some adversarial family law out of litigation. In family law, the parties fight over two things – cash and kids. Where the kids are concerned, they are priceless, the parties lose their perspectives and will spend ridiculous amounts of money most often ending up with a 50/50 regime anyway. We should adopt the European model that has been in place for 50 years and working well where custody and access are automatically 50/50 unless the parties agree otherwise or there are compelling reasons to deny a parent on the basis of unfitness. In most cases, that would reduce the fighting to cash only and people, for the most part, are more sensible about a cash fight than a kids fight. The savings to the government and the parties themselves would be substantial and the government could reapply the government savings to the programs you suggest (after, I would say, skimming off some of the savings to pay down some of the provincial debt). The family law bar would then have the time to help many more people at affordable rates in their clients’ cash fights.

    Further, public legal care, making lawyers like doctors, is a recipe for out-of-control costs, wildly delayed services and many other problems. It is also something this indebted province cannot afford until it finds other savings.

    All these schemes to spend more taxpayer money should be regarded as unaffordable except out of savings elsewhere, and, worse, should be regarded as the costly and ineffective bandaids that they are. What they mainly do is allow governments and law societies to avoid curing the actual problems by continually throwing money at the symptoms.

    Cheers.

  6. To Verna: The investment climate is still vastly better in California than here, and the tax burdens on individuals and corporations are still significantly lower there than here. Until we have a tax and investment environment that understands and respects the risk-taking, real job-creating members of our society, we will continue to lose them and all the vast though hard-to-measure benefits of their initiatives and drive.