Thursday Thinkpiece: The Justice Crisis–The Cost and Value of Accessing Law

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The Justice Crisis: The Cost and Value of Accessing Law

Editors: Trevor C.W. Farrow & Lesley A. Jacobs

ISBN: 9780774863575
Publisher: UBC Press
Page Count: 368
Publication Date: September 1, 2020

Regular Price: $89.95 (Hardcover)

Excerpt: from the Introduction: “Taking Meaningful Access to Justice in Canada Seriously” [Citations omitted]

Access to justice has long been recognized as among the most basic rights of democratic citizenship but also one of the least well understood in terms of its realization. This right is ordinarily framed in terms of individuals having the right to enforce their rights by going to court or accessing an alternative dispute resolution body, and to get a remedy where their rights are violated. Traditionally, the measure of access to justice was viewed principally as a matter of access to lawyers and adjudicated decisions in a timely and affordable manner. Since the early 1980s, there has been an increasingly expansive understanding of access to justice and an embrace in particular of the idea that access to civil and family justice is principally about having paths available for citizens to prevent, address and resolve the legal challenges and problems they face in their everyday lives.

The general recognition of access to justice as a basic right of a citizenship is a reflection of the importance of law in modern democratic societies. Law is everywhere in Canada and everyone needs it. From consumer complaints, family breakdown, neighbour issues and lost employment, most Canadians will experience a significant legal problem in the course of their lifetime. Further, these problems can have major impacts – financial, physical, mental, and social. The justice system exists to address legal problems. Yet despite the pervasive nature, impact and importance of legal problems, many Canadians are unable to navigate or afford the justice system. Indeed, only a small percentage of those who experience everyday legal problems actually use the justice system.

According to the former Chief Justice of Canada, Beverley McLachlin, there is a “lack of adequate access to justice in Canada.” Access to justice, in her view, “is the most important issue facing the legal system.” In its review of the justice system, the Action Committee on Access to Justice in Civil and Family Matters – a collaborative organization made up of leading voices from all justice sectors across Canada – concluded in 2013 that there is a “serious access to justice problem in Canada.” At the same time, former Supreme Court Justice Frank Iacobucci – in the report of his independent review of First Nations representation on juries in Ontario – stated that “the justice system generally as applied to First Nations peoples … is quite frankly in a crisis.” The Canadian Bar Association (CBA), in its national justice review, claimed that the state of access to justice in Canada is “abysmal” and further, that inaccessible justice “costs us all….” In 2016, the Senate Standing Committee on Legal and Constitutional Affairs reached a similar conclusion regarding court delays affecting access to the criminal justice system.

Canada is not alone in its difficulties to realize access to justice as a basic right of citizenship. Similar claims are being made regularly around the world in developed and developing countries. For example, the justice system in the United Kingdom is in “crisis” according to the Bach Commission on Access to Justice. Likewise, the American Bar Association recognizes “the justice gap” and the need to “make meaningful access to justice a reality for all”. The Hague Institute for the Internationalization of Law (HiiL) has done a careful detailed inventory of access to justice challenges over the past decade in many developing countries including Bangladesh, Kenya, Uganda, Lebanon, Tunisia, and Yemen. Most recently, the Task Force on Justice found that “5.1 billion people – two-thirds of the world’s population – lack meaningful access to justice.” With this shared international challenge, member states through the United Nations (UN) have agreed upon an obligation for all countries to improve access to justice as part of its Sustainable Development Goals. In support of the UN’s development initiative, the OECD has also committed to making the improvement of access to justice an important part of its development initiatives. Each of these various international initiatives involve important developments for access to justice. Taken together, they provide a stark recognition of the current global access to justice problem and a promising path for future reform.

Although the access to justice crisis is now well recognized among stakeholders in the Canadian justice system, a knowledge gap continues to exist regarding the degree of inadequacy in access to justice in Canada – the nature and level of unmet legal needs in Canada and elsewhere are not well understood nor comprehensively researched. Compared to other areas of social services such as medicine or education, we have comparatively little empirical data about justice issues, their social or financial impacts, or how to avoid or best deal with them. Satisfactory answers, based on comprehensive empirical data, are available for few if any of these questions. This is true in all areas of law, and it is particularly true in civil and family law, which are by far the most prevalent in daily life.

A similar knowledge gap also exists in other countries. Rebecca Sandefur has observed, in an American context, “We have no idea of the actual volume of legal need and no idea of the actual volume of unmet legal need.” In a similar vein, the United Kingdom’s Legal Education Foundation noted in 2017,

Research is vital to help us understand where legal need is greatest, and prioritise resources… historically, the legal services and legal education sectors have placed little emphasis on the importance of evidence-led approaches to the design and delivery of services. Court and other data which is vital for methodological research is not collected or made available.

The Australian Government’s Productivity Commission in its 2014 report, Access to Justice Arrangements, also reached this conclusion, noting the absence of empirical research while emphasizing that such research is essential to improve access to justice in Australia. Fortunately, in all of these countries including Canada, there have been significant strides in the past five years to narrow this knowledge gap through new data collection and analysis. The chapters in this book represent some of the most recent and exciting examples of that research.

The broad purpose of this book is to report on some of the innovative empirical research on access to civil and family justice that has been undertaken in Canada over the past five years. Most contributors to this book are members of the Costs of Justice research project, a major access to civil and family justice collaborative research initiative housed at the Canadian Forum on Civil Justice. This project, funded by the Social Sciences and Humanities Research Council of Canada for seven years beginning in 2011, brought together leading researchers and policy makers from Canada and around the world to examine various aspects of the current access to justice crisis in civil and family law, focusing in particular on cost and affordability. The project has been primarily focused on undertaking empirical research to address two main research questions: what does it cost to deliver an effective civil justice system, and what does it cost – economically and socially – if we fail to do so. Chief Justice McLachlin has commented, “This research … will be essential in helping us understand the true extent of the problem of cost and how it impacts on the justice system. I believe that it will prove to be of great assistance to … identify concrete solutions to the problem of access to justice.”

What is Meaningful Access to Justice?

What precisely is access to justice? Scholarship has gone through numerous waves of conceptualizing access to justice and thinking about access to civil and family justice within a broader societal context than just the formal justice system and service provision by lawyers. It is reflected in greater interest, for example, during the 1990s in alternative dispute resolution such as mediation, negotiation, and arbitration, by procedural rule reform in the 2000s, and more recently, by – for example – the trend towards the professionalization of paralegals and the organization of trusted legal intermediaries. Parallel to these developments have been shifting views about the ailments and crises inside the civil justice system. At one time, issues of delay in Canadian courts were seen as the principal barrier to access to justice. Today, it is reasonable to say that often the preoccupation is with self-represented litigants, the costs for individuals and the public of civil justice, and social inclusion. These current preoccupations have resulted in significant re-engagement with access to justice as a site for innovative empirical research and policy development, especially by socio-legal scholars in Canada and elsewhere.

Here we contrast two approaches to framing access to civil justice. One approach – the most familiar – focuses on timely access to formal legal institutions such as the courts in order to secure redress for some wrongs. An alternative approach, which we call meaningful access to justice, is centred instead on the idea that access to civil justice is principally concerned with people’s ability to access a diverse range of information, institutions and organizations – not just formal legal institutions such as the courts – in order to understand, prevent, meet and resolve their legal challenges and legal problems when those problems concern civil or family justice issues. Meaningful access to justice measures access for a person not necessarily in terms of access to lawyers and adjudicated decisions but rather by how helpful the path is for addressing and resolving that person’s legal problem or complaint.

In contrast, the measure of access to justice on the first approach is understood principally in terms of access to lawyers and adjudicated decisions. In the United States, this was exemplified by the Gideon v. Wainwright case, decided by the United States Supreme Court in 1963. In this case, the unanimous opinion of the Supreme Court was that, for defendants facing criminal charges, there is a constitutional right to be provided with a lawyer by the state if they are unable to afford one. Indeed, arguably, even today in the United States, the idea that access to justice means access to a lawyer is the prevailing view among many legal professionals, as is evident from the resurgence of interest in establishing, for example, a right to civil counsel among the so-called Civil Gideon Movement. In Canada, this approach is reflected in the fact that state funding for lawyers secured initially in the 1960s for programs like Legal Aid Ontario remain the highest profile commitment by governments to supporting access to justice. Research based on this first approach to access to justice typically focuses narrowly on what happens in courts and, to some extent, with lawyer representation.

The fundamental and distinctive feature of meaningful access to civil and family justice is that affordable and timely paths to justice be available to individuals that are well calibrated to their particular needs and situation. Much of the most important recent empirical research on access to justice, including the studies included in this book, have been undertaken through the lens of meaningful access to justice. This alternative research framework for access to justice has important pillars for framing, on the one hand, how to understand and measure access to justice, and, on the other hand, how to advance access to justice.

Four pillars are especially important for understanding and measuring meaningful access to justice. The first pillar is that it is problem-focused in the sense that access to justice should be oriented towards addressing legal problems that arise in people’s everyday lives, as opposed to for example the familiar resource-centred idea that access to justice is principally about affordable access to courts and lawyers. At its core, meaningful access to justice is about assisting people with their legal problems and difficulties. The second pillar is that it is person-centred, as opposed to service provider or system-centred. The point is that legal services that promote meaningful access to justice are designed to serve the person in need, not the service provider nor the legal profession. The third pillar is how these actors understand and make sense of legal rights – their legal consciousness – that is of fundamental importance to their legal mobilization. The important idea underlying this third pillar is that legal consciousness affects when and if people recognize their problems as legal and the decisions they make about how to address those problems. The fourth pillar is an acknowledgment that the barriers to meaningful access to justice are often systemic injustices – discrimination that is made visible by patterns of behaviour, policies and practices that are part of the administrative structure or informal “culture” of an organization/institution/sector that purposely or inadvertently create or perpetuate disadvantage and social exclusion based on grounds such as race, gender, immigration status, or disability.

Three other complimentary pillars are especially important for advancing meaningful access to justice. One pillar is that few everyday legal problems are resolved within the formal court-based domestic justice system. The point is that often the most important legal services that advance meaningful access to justice are community-based ones that operate within civil society. Another complimentary pillar is that the emphasis should be on trying to get upstream on everyday legal problems (consumer, debt, employment, family) and in effect be proactive and take preventative measures. This is already a prevalent policy strategy in consumer protection and employment standards. A further pillar is that within a problem-centred approach to access to justice, what matters for fair outcomes and fair processes are the paths to justice or legal journeys people take, and not so much (or only) the robustness of the legal services available to them.

The Everyday Legal Problems of Canadians

At the core of meaningful access to justice is the idea that people have everyday legal problems and that it is important for legal services to assist them in resolving those problems. This claim is a reflection of the fact that in modern democratic societies the legal system plays a fundamental role in the ordering of many aspects of daily life. Everyday legal problems are those that come up in people’s daily lives. They are problems that typically have both a legal element and potentially a legal solution. Consumer complaints, family breakdown, domestic violence, divorce, credit issues, discrimination, wrongful termination, unfair eviction, neighbor disputes are some of the most frequent such problems. Everyday legal problems are “justiciable” in that they could be dealt with through formal legal processes, although they may in fact be dealt with – or not – through other means. Meaningful access to justice in Canada requires taking seriously how the existence of many diverse paths to justice can assist Canadians to resolve (or prevent) their everyday legal problems and how those paths can be supported through innovative public policy. Legal need studies are designed to help with that understanding.

Our 2016 national study of everyday legal problems – the “Everyday Legal Problems and the Cost of Justice in Canada” study – provides the most comprehensive up-to-date picture of Canadians’ legal needs and their experiences with legal problems. The survey focused on the prevalence of everyday legal problems, the occurrence of multiple problems and problem clusters, what people do about legal problems, the extent to which people get the help they need and what happens when they do not, and the costs individuals incurred trying to get help. The findings were based on telephone interviews with 3,051 Canadians.

In terms of the basics about everyday legal problems, we know that almost half of adult Canadians – 48.4% or almost 12 million – will experience at least one legal problem over any given 3 year period, amounting to essentially all of us over the course of our lifetime. Of the people surveyed for the study, 30% reported experiencing two or more legal problems, which – again over a 3 year period – amounts to over 35 million separate everyday legal problems. Put simply, these are huge numbers showing that legal problems are pervasive in the everyday lives of Canadians.

The most common types of legal problems experienced by adult Canadians involve consumer, debt and employment issues, followed by problems related to neighbors, discrimination, and family (relationship) issues. Other frequent problems reported include issues involving wills, medical treatment, housing, personal injury, disability, and social assistance. Criminal charges affect very few Canadians. The range and frequency of everyday legal problems highlights why meaningful access to justice is important for and affects all Canadians.

As for how adult Canadians deal with those problems, approximately 95% report making some attempt to resolve their issue. However, Moreover, we found that less than 7% of people report going to courts and tribunals and less that 20% of people report seeking legal advice. The vast majority of “paths to justice” for Canadians are outside of the formal justice system, including non-legal assistance, the Internet, friends and family, and informal negotiations with the other disputing party.

In terms of what individual adult Canadians spend on justice issues (excluding corporate, government or other organizational or institutional expenditures), 43% indicated that they spent some money attempting to resolve their problems. Specifically, on average, adult Canadians spend approximately $6,100 when dealing with their problems. Collectively this amounts to approximately $7.7 billion annually, which if anything is a conservative estimate. As for the types of individual expenses, for those who spend money on legal problems, 22% report spending money on legal fees; 16% on transportation; 13% on materials, copying and printing; 11% on court fees; 10% on other advisors and mediators; 5% on telephone, fax, etc.; and 5% on childcare and other related household expenses.

There are of course other costs associated with legal problems. For example, in addition to the specific financial costs discussed above (legal fees, court fees, transportation costs, etc.), people experiencing a legal problem often spend a lot of time trying to understand the problem, identifying potential solutions, and sorting out the rules and processes for various legal options. These costs, often referred to as “searching” or “temporal” costs, typically come in the form of hours and days of time spent, and as a result, lost opportunities. Other important costs come in the form of lost employment, stress, physical and emotional costs, costs related to gender-based violence, cultural costs, productivity costs and potentially others.

While the impact of these costs on individuals is clearly enormous, the implications for public funds is also significant. In addition to paying for the infrastructure of the legal system (judges, courts, justice departments, etc.), inadequate access to justice results in knock-on costs to other social services in society. For example, the survey found that other annual costs to the state include approximately $248 million in additional social assistance payments, $450 million in additional employment insurance payments, and $101 million in additional health care costs. In addition to these specific knock-on costs, the findings show that experiencing legal problems can lead to housing issues: 2.7% of adult Canadians (100,839) lose their housing each year as a direct result of experiencing a legal problem. Faced with homelessness, approximately 3.6% of those people (6,836) rely in turn on emergency shelters, many of them publicly funded. As such, in addition to the very real costs for individuals associated with losing their home or shelter, resulting knock-on costs are also carried by the state.

Each of these costs – economic and social, individual and collective – is significant. Taken together, they are cause for significant concern. To-date these costs, and other related justice system costs and value related considerations, have been significantly understudied in the world-wide access to justice literature. This lack of focus and understanding has created a major gap in the context of evidence-based policy thinking and reform. It is this gap which is explored by the contributions to this book.

Situating the Research Contributions of The Justice Crisis

The chapters in The Justice Crisis are all focused on understanding why achieving timely and affordable meaningful access to civil and family justice is so challenging in Canada and elsewhere. The first section – Understanding the Access to Justice Crisis – contains three chapters that situate Canadian public funding for the justice system within the broader public policy context. Michael Trebilcock in his chapter stresses the importance and value of the rule of law and corresponding justice system institutions (courts, tribunals, legal aid, judges, lawyers, and public legal information), arguing that given fiscal constraints, cost and price choices need to be made regarding legal processes and services. In the next chapter, Moktar Lamari, Pierre Noreau and Marylène Leduc provide a detailed overview of the metrics on the publicly funded justice system in OECD countries, enabling a comparison of Canada’s spending to other jurisdictions. Lisa Moore and Mitchell Perlmutter in their chapter focus on the options available for public spending on the justice system and the implications for access to civil and family justice.

The four chapters in the second section of the book – Experiencing Everyday Legal Problems – shift the focus to the lived experiences of Canadians. Ab Currie provides a careful review of the costs of inadequate access to justice and unresolved legal problems for ordinary Canadians. Matthew Dylag examines survey data to determine the paths to justice taken by people in Ontario with everyday legal problems. Trevor Farrow examines the problematic legal experience and related costs for First Nations communities in the course of pursuing the resolution of Residential Schools claims and implications for truth and reconciliation. Jennifer Koshan, Janet Mosher and Wanda Wiegers focus on costs for women in domestic violence cases.

The third section of the book – Legal Services and Paths to Justice – contains four chapters that examine specific developments and innovations in the justice system from the perspective of advancing access to justice. David Wiseman argues that the licensing of paralegals by the Law Society of Ontario has been effective at improving access to justice for landlords but has done little for tenants who generally are unable to afford any fee-based legal assistance. Lesley Jacobs and Carolyn Carter focus on the Mandatory Information Program for applicants and respondents in the family courts in Ontario. They argue that the program, despite its promise, has significant shortcomings that need to be addressed before it can contribute to meaningful access to family justice. More optimistically, Catherine Piché shows that class actions in Québec are proving to be quite effective in achieving significant outcomes for plaintiffs in most cases. Lorne Sossin and Devon Kapoor argue that social enterprise and social innovation are able to fill an important gap in the justice system with regard to paths to justice for some communities.

The fourth section of the book – the Legal Profession and Meaningful Access to Justice – considers the role of the legal profession as both an impediment and vehicle for change on the issue of meaningful access to justice in Canada. Jerry McHale provides a narrative about the legal profession in Canada and its role as an impediment to improving access to justice. Bert Kritzer argues that although legal fees are a key cost consideration in access to justice debates, it is in practice, drawing on recent experiences in the United Kingdom, very difficult to reform the structure of a country’s legal fees to make civl legal services more affordable. Michaela Keet and Heather Heavin draw on insights from behavioural economics to better understand recommendations lawyers make to their clients about paths to justice, especially regarding litigation. Noel Semple concludes with a discussion of legal fees and their contribution to the existence of unmet legal needs in Canada.

Conclusion

Understanding access to justice has become a priority for justice researchers, policy makers and practitioners in Canada and elsewhere. We continue, however, to lack an adequately-informed understanding of the access to justice crisis in Canada, the fit and lessons to be learned from the global access to justice crisis, how practically to address these crises, and the costs and benefits of different solutions. In essence, we have reached the limits of the current access to justice ‘1.0’ moment, and are now looking to move our thinking forward in terms of specific elements of and solutions for the access to justice crises, in order to animate evidence-based reform initiatives in various parts of the justice system (e.g. housing, gender violence, justice for Indigenous communities, legal aid services, litigation analysis, social innovation, family justice, public spending, etc.). Put simply, we are entering an access to justice ‘2.0’ moment, which requires building on – and contributing to – current international access to justice initiatives.

We hope that this book provides for readers an entry point in to the emerging access to justice 2.0 moment and points to evidence-based ideas for policy-based reform about how best to achieve meaningful access to justice not only in Canada but also around the world.