by Lesley Jacobs*

In all the extensive commentary on the release of the Drummond Commission Report last month, virtually no attention has been paid to the implications for Ontario’s justice system. The Justice system accounts for about 5% of total public sector spending by the Government of Ontario, making it the fourth biggest sector after health, education, and social services. From the perspective of trying to rein in public spending, neglect of the justice system is especially surprising because, as the Report notes, in the past year it has seen the biggest sector increase in spending, almost 11.5%.

The central message of the Drummond report is that savings can be secured through reforms that will make public services in Ontario better and more efficient. When it comes to the Justice System, however, there is in the report much more caution than in any other sector about serious rethinking of how to deliver services. In Ontario, the justice system addresses both criminal and civil justice matters, often in partnership with the Government of Canada. The recent increases in spending are often linked to court delay. Court delay leads to more court appearances, higher administrative and legal costs, and typically much frustration for parties. Recent developments in criminal justice, in particular the increase of accused in remand awaiting trial, has made court delay especially visible as a cost issue in Ontario. But make no mistake that court delay is also immensely costly in civil and family disputes. The main difference is that those costs are often hidden or indirect because they are typically paid much more by the private parties than directly with public funds.

A significant research finding when comparing the main causes of court delay in different jurisdictions is that local legal culture plays a huge role and that institutional variance often plays a minor role. The point is that how long it takes to resolve disputes is heavily influenced by how legal professionals understand these disputes and imagine resolving them. In Ontario, in the areas of civil and family law, there are three related features of the justice system — reflections of local legal culture — that are especially costly.

The first is the lack of early access points in the justice system to address legal problems and challenges. Often now when civil or family disputes enter Ontario’s justice system, the disputes have escalated and are much harder to resolve. Early intervention and guidance in these disputes will save taxpayers money. Mandatory mediation in civil disputes and the Family Legal Information Clinics are examples of Ontario initiatives with some promise, but these and others require a more sustained commitment.

The second feature is to treat different kinds of legal problems separately as if they are in a silo within the justice system. The reality is that many legal problems are complex. Domestic violence for instance often involves criminal law and family law. Lack of coordination within the justice system adds unnecessary costs.

The third feature is to treat legal services as if they should not be provided on a continuum with other social services such as health, education, and social services. There are immense savings to be had if legal services are provided in a seamless fashion with these other services. In Waterloo Region, for example, the Family Violence Project, which does provide policing, legal, health, and counselling services in this way, has seen a significant reduction in domestic violence deaths in the region. The extra cost of this project is at most $200,000 per year. The cost savings of a single domestic violence case in terms of policing, prosecution, and court costs is more than a $1,000,000.

Changing local legal culture, however, is a very difficult challenge. Unlike austerity measures, which are typically imposed from outside the service sector, court delay needs to be tackled from within. The Drummond report highlights some of the progress being made. Thinking about other avenues is also needed.

In most provinces as well as nationally, rethinking access to justice for meeting the legal needs of Canadian families is a central policy agenda item. Law reform commissions as well as self-standing initiatives such as the National Action Committee on Access to Justice in Civil and Family Matters have made this sort of rethinking a priority for moving forward. One of the most innovative new approaches is a multidisciplinary approach to meeting family justice needs. This approach stresses both the diversity of the legal needs of Canadian families and the fluidity of those needs. Sometimes, among professionals, there is an inclination to classify and categorize the needs of families in ways that correspond to the professionalization of service providers. Some needs might be classified as educational, others health, others still income security or housing, yet others legal. And even among legal professionals, there is a tendency to further classify the legal needs into categories such as immigration, family, employment, civil, and criminal.

Whilst these classification schemes may make sense for providers, they rarely map on to how families themselves perceive or experience their needs. For most families, problems cluster together. An immigration problem flows into an educational problem. Illegal immigrants may worry, for example, about enrolling their children in school. Likewise, unemployment may lead to falling behind in the rent, leading to an eviction notice.

A vision of multidisciplinary paths to family justice involves making linkages between legal and non-legal services in a manner that reflects how families perceive or experience their needs. In particular, this vision entails integrating legal services for families into sites that already offer other sorts of family services.

A powerful expression of this vision is the establishment in Canada of one-stop sites for Canadian families where they can receive services from a diverse profile of professionals including legal professionals – lawyers or paralegals — who could offer the provision of low-level family legal services oriented towards legal information, legal consultation, and informal community mediation and other forms of dispute resolution. These sorts of sites already exist to some degree in community health centres, which often offer for low-income clients not only health services but also early childhood education services, immigration advice, housing services, and guidance around income support programs like social assistance or public pensions. Likewise, in the area of domestic violence, Canada is beginning to develop exemplar models like the the Family Violence Project of Waterloo Region, which recognizes the multi-dimensions of the needs that arise in situations of family violence. Some of the urban Aboriginal family services centres also provide models for this sort of multidisciplinary approach to the justice needs of families.

The challenges of implementing this sort of vision are numerous. One of the most basic is the requirement that those within the legal profession including lawyers and judges see the provision of legal services as part of a seamless system of social services for families. This means working with a team of other professionals – teachers, social workers, psychologists, physicians, police – in a manner that respects the valuable contributions of all members of the team. For some lawyers and judges, this has proven to be surprisingly easy. Yet, unfortunately, for many others there is a need for much more professional development.

Les Jacobs, Academic Director

Access to justice issues in the Canadian civil justice system are often framed around affordability, geography, and the quality of service provision. Affordability is most often linked to the high costs of privately provided legal services and the underfunding of legal aid. Geography has recently been shown to be relevant in major studies in Alberta and Ontario, one by the Canadian Forum on Civil Justice, the other by the Ontario Civil Legal Needs Project. Both emphasized that lawyers and paralegals are overwhelming concentrated in large urban centres. The quality of public service provision has been an issue in the case of, for example, court interpretation. All of these ways of framing access to justice assume that it is a matter for public policy and largely will be addressed through developments in the public sector and the public regulation of the private sector.

Less well understood as a dimension of access to civil justice is where Canadians mobilize on their legal rights when they have been violated. Recently, I conducted a major study for the Office of the Privacy Commissioner of Canada on how certain marginal groups in Canada approach privacy rights mobilization. (The report can be found at http://ycppl.osgoode.yorku.ca/research1.html .) Part of the study focused on Canadian youth between the ages of 18-24 using social networking sites such as Facebook. The core of this part of the study is an analysis of detailed interviews with 56 youth about their experiences with privacy rights issues while participating in social networking. This study suggests that access to justice may be complex in some instances because where Canadians turn to mobilize on their rights are private sector mechanisms beyond the regulatory reach of government.

The striking initial finding of the study is that almost all of these randomly selected youth had, in their view, experienced some measure of privacy rights violation. Virtually all of them understood privacy and the ambit of privacy rights as pertaining to the access and use of personal information. To put the scope of this finding in perspective, there are more than fifteen million Canadians with Facebook accounts. Are the experiences of these Canadian youth different in any significant way from the Canadian Facebook account holder in general?

How did these youth envision responding to privacy rights violations that might arise during social networking? The law and government agencies like privacy commissions are at the margins of privacy rights mobilization for them. Almost none of the youth were aware of the Office of the Privacy Commissioner of Canada or indeed that any such regulatory body of its kind exists in Canada. So how would they respond?

One type of response among the youth was to acknowledge that their rights had been violated but to decide not to do anything about it. This sort of inaction as a response to a rights violation is often described as "lumping it". Sometimes lumping it is a reflection of the view that the privacy breach was not a significant one, at other times it is a reflection of not knowing what else to do, and at still other times it is a reflection of a worry that complaining will have negative repercussions. Only about fifteen per cent of the youth said they would lump it, even though my suspicion is that the likely number is much higher.

The second type of response is a form of "self-regulation", which means that the youth takes actions himself or herself to avoid a similar sort of privacy rights violation in the future. This may mean in the case of Facebook making the privacy settings stronger or removing particular information like a date of birth or phone number or untagging a photo on another user's picture wall. About one quarter of the youth appealed to some form of self-regulation.

The third type of response youth imagined is the pursuit of a privacy rights complaint about social networking through a legal venue such as a court. About a quarter of the youth presented this as the main option.

The four type of response – the most frequent – is to complain as an individual to Facebook as the social networking site provider. Unlike the self-regulation option, this type of response relies on the privacy regulations of the service provider. The youth see themselves as consumers of the websites services and the situation of a privacy rights violation as a matter of customer dissatisfaction. The path is imagined to be a sort of online consumer complaint process. This type of response was identified by more than half of the youth in the study as their first response to a privacy rights violation while social networking.

What does this finding suggest for improving access to civil justice? If more than half of Canadian youth intend in the first instance to use private company complaint processes to mobilize their privacy rights when violated, we should be paying much more attention to these complaint processes as sites for improving access to justice. These complaint processes do not fall into the familiar access to justice categories of affordability, geography or public sector service provision. Indeed, although NGOs exist in Canada that strive to improve these complaint processes, their importance is generally neglected in discussions of access to justice in Canada. Maybe we should be thinking more about how to integrate these types of NGOs into our discussion of how to improve access to civil justice in Canada.

Lesley Jacobs
Academic Director
Canadian Forum on Civil Justice

In the various provincial election campaigns across the country, there is little attention being paid to the funding of the civil justice system. Among elected officials, the dominant paradigm is one that sees funding of the civil justice system as an obligatory expense for the government. The costs appear unlimited and ever increasing. The challenge within this paradigm is how to minimize this expensive item while still meeting their basic obligations. The results are evident in court delays, the ever increasing number of self-represented litigants, increasing restrictions on access to legal aid, and a myriad of unresolved civil disputes in this country.

Try to imagine a different paradigm for thinking about funding the civil justice system. In this alternative paradigm, increased funding would not be linked to increased costs but rather result in lower costs. How is this even conceivable? In other social policy contexts, this sort of paradigm shift has already occurred. For example, investing in early learning is now viewed predominantly as a tool for cutting costs related to youth later on. Can something similar be said about the civil justice system?

Those who regularly interact with the civil justice system – judges, court administrators, law enforcement, lawyers, litigants (individuals, businesses) – know full well that the present paradigm is generating costs that are not constitutive to the civil justice system. How can we understand those costs? How can we measure them? What do they tell us about the true costs of the dominant paradigm for civil justice system funding? These questions have received little systematic treatment here in Canada nor in other countries.

The Canadian Forum on Civil Justice, the leading independent think tank in Canada focused on civil justice reform and access to justice, is just beginning a major research project called The Cost of Justice: Weighing the Costs of Fair and Effective Resolution to Legal Problems. It is designed to undertake groundbreaking and innovative research which will provide the foundation of critical information needed for evidence-based decision-making about the civil justice systems in Canada and internationally. This project is being funded by a major grant from the Social Sciences and Humanities Research Council of Canada with support from a wide range of government, commercial and community partners. The project is to be carried out by an international team of academic researchers in Canada, United States, United Kingdom and Australia.

The civil justice system is a fundamental and far-reaching component of democratic societies which touches the lives of Canadians every day. It impacts them through contracts and credit situations, family relationships and their breakdown, personal injury and various corporate arrangements. Surprisingly little is known about how well the civil justice system works: what it costs, who it serves, whether it is meeting the needs of users, or the price of failing to do so. The project is organized around answering five key questions:

1. What are the costs of pursuing the resolution of legal problems?
2. What are the costs of not achieving resolution?
3. Is the cost of achieving resolution economically and socially warranted?
4. What can be done to effectively prevent disputes, and at what costs and benefits?
5. What choices and changes are recommended based on the available evidence?

The underlying insight of the project is that there are often huge social and economic costs in delaying or not resolving civil disputes and that in the paradigm for civil justice system funding that dominates among elected officials, these costs are given little weight, in part because they are not well understood. The Canadian Forum on Civil Justice hopes to shift that paradigm by making these costs more transparent, and thereby creating a climate where it is conceivable that improved funding in the civil justice system will cut costs.

Lesley Jacobs, Principal & Academic Director, Canadian Forum on Civil Justice

The Canadian Forum on Civil Justice (CFCJ) focuses its research on access to justice and legal services. The justice system in Canada is not, of course, one united system but a set of institutionalized processes with overlapping provincial, territorial, and federal jurisdictions. There are civil, family, criminal and administrative divisions and both substantive and procedural laws that must be applied to each situation. Courts and Tribunals attached to this system are increasingly dealing with problems arising from Canada’s failure to solve resistant social problems. Yet, to achieve access to justice for all Canadians, legal services must be delivered as part of a coordinated and holistic response to local social conditions and needs.

CFCJ has just completed what it calls The Alberta Legal Services Mapping Project (ALSMP), which was a large-scale, collaborative research initiative designed to gain a better understanding of what legal needs Albertans have, the extent to which these needs are currently being met, and how access to legal services can be improved. The project was conducted over a three-year period with funding principally from the Alberta Law Foundation and Alberta Justice.

The major findings of the project include:

• There are significant geographic barriers to accessing legal services.
• There are some excellent legal services in Alberta delivered by outstanding and dedicated providers. But they are working at or beyond capacity. 
• Legal problems occur in complex social contexts that require a multi-sector collaborative response. 
• There is a general lack of access to affordable legal advice and representation. 

• Provider and public knowledge about available legal and related social services is weak and strategies need to be developed that can enhance this knowledge. 
• The legal needs of vulnerable groups are not well met. 
• There is an Increase in domestic and sexual violence.

This major achievements of this project are many:

• The development of innovative methodology to support Canada’s most comprehensive community-based legal services mapping. 
• Creation of a proto-type, searchable database containing entries for 2822 services.
• Successful collection of an unprecedented breadth and depth of information about the extent of legal need across Alberta, capturing local social contexts and identifying current strengths as well as gaps to be addressed.
• Publication of 11 comprehensive reports and additional publications attracting national and international attention as well as a final report synthesizing findings.

The Canadian Forum on Civil Justice hopes to undertake similar mapping projects in other parts of the country. For more details about the project, see http://cfcj-fcjc.org/research/mapping-en.php 

Lesley Jacobs

York University is the new home of the Canadian Forum on Civil Justice. The Forum is moving to York from the University of Alberta’s Faculty of Law and will partner with the York Centre for Public Policy & Law (YCPPL) and Osgoode Hall Law School on various socio-legal research initiatives.

“The Canadian Forum on Civil Justice is considered a leader in interdisciplinary research on civil justice,” says Faculty of Liberal Arts & Professional Studies Professor Lesley Jacobs, who teaches law & society and political science and is the director of the YCPPL. “It is a non-profit, independent, national organization established in May 1998 to help meet the challenges of modernizing our civil justice systems in Canada.” Leadership for the Forum is provided by Osgoode Professor Trevor Farrow, who serves as Chair of the Forum’s Board of Directors.

The Forum works collaboratively with all of the sectors and jurisdictions in the justice community in Canada, and increasingly those based internationally. Serving as a clearinghouse, coordinator and facilitator to share knowledge between jurisdictions, the Forum creates new knowledge, addressing gaps in information and understanding about the civil justice systems. 

In its new setting, the CFCJ is moving ahead quickly to develop plans for new research initiatives to address the needs and challenges of civil justice systems in all jurisdictions in Canada. In early February, senior academic researchers and systems and technology specialists from several faculties of the University will meet to brainstorm and identify collaborative, multi-disciplinary research initiatives to address critical issues in civil justice processes and systems.

This meeting will be followed by a gathering in March of key Forum stakeholders from provincial attorneys general and federal justice departments, provincial law commissions and foundations, the judiciary, civil justice systems administration, the academy and other stakeholders with a critical interest in the effectiveness and efficiency of civil justice systems to discuss and provide input into the current and future role of the Forum, as well as specific research proposals for addressing important civil justice needs of the Canadian public.

“The Canadian Forum on Civil Justice acts as a catalyst to transform research knowledge into successful reform and encourages evaluation of new initiatives so that we may learn from the reforms that are undertaken,” says Jacobs. “Building on the Forum’s past successes, I anticipate numerous collaborative research projects and many exciting new opportunities in the months and years ahead ”

One of the Forum’s newest projects is focused on The Cost of Justice: Weighing the Costs of Fair and Effective Resolution to Legal Problems. This project will be described in more detail in the next SLAW colum

In a previous column, we described the Canadian Forum on Civil Justice's Inventory of Reforms, a freely accessible, online database that contains descriptions of civil justice system reform initiatives from across Canada. The importance of this information is not only in letting people within a jurisdiction know what is changing, but also letting all jurisdictions across the country see what is being tried elsewhere. The natural extension of this is the ability to identify the most effective reforms so that they can be highlighted and applied elsewhere, though this function is naturally the most challenging to put into practice.

In setting out the scope of the Inventory when it was initially developed in 2006, we specifically avoided claiming that it would be a collection of best practices. An article by Ingo Keilitz, "No More Best Practices," does a good job of discouraging the use of this term, on the basis that no practice can really be determined to be the best one; continual measurement and improvement is required. Instead, Keilitz suggests using evidence-based practices, which "…are programs, strategies, or procedures for which there is demonstrable evidence that their use produces desirable performance outputs and outcomes."

Evidence-based practice is increasingly used in fields from medicine to librarianship, with a focus on setting out measurable criteria that can be used to determine the effectiveness of a particular practice. In a recent article, "Evidence-Based Access to Justice", Laura Abel of the Brennan Center for Justice at NYU School of Law highlights the lack of evidence-based approaches in evaluating access to justice initiatives in the civil justice system, and proposes that legal help lines and information centres could be measured in terms of a demonstrable impact on the ability of a self-represented litigant to manage – and win – a case.

It is far beyond the scope of the Inventory project to carry out a meaningful evaluation of the reforms it describes; such measures need to be woven into the design and implementation of the reforms themselves. However, reforms are increasingly being implemented with evidence-based metrics as a fundamental part of the design and execution. Where this is in place, the Inventory describes the evaluative framework, and what the outcome of the evaluation was.

It is hoped that other jurisdictions are able to make use of these evaluations (taking into account different contexts) to consider whether the reform, or something like it, would benefit their province. Progress necessarily involves some experimentation, and not all reforms will prove to be equally effective in increasing access to civil justice or reducing costs. It is not as easy as simply assembling a list of best practices, but the ability to evaluate and share information about what can be shown to work has strong value for creating effective, long-term change. 

Bradley Albrecht

Equal access to a civil and family justice system that can uphold rights and fairly and effectively resolve disputes is a fundamental and far-reaching component of democratic societies. It influences our lives every day via contracts and credit situations, the ownership and distribution of property, family relationships and their breakdown, personal injury, benefit entitlements, human rights, and various corporate arrangements.

At the most basic level, the civil justice system exists to provide people with access to knowledge about their rights, and if necessary to a means of enforcing them (Civil Justice Advisory Group, 2005, p.20).

Although the civil justice system is a cornerstone of our democracy, there is a dearth of empirical research about this system in Canada and internationally. Surprisingly little is known about how well the civil justice system works: what it costs, who it serves, whether it is meeting the needs of users, or the price of failing to do so.

Civil Legal Problems are an Everyday Experience

In the last decade Canadian and international research has demonstrated the high, everyday incidence of legal problems experienced among the general population. The Canadian research (Currie, 2007) has found that between 45-48% of the population has a legal problem at any given time with just a small proportion of these addressed by the courts (commonly estimated at around 10%), or with formal legal representation. The degree to which problems are resolved by other means, or left unaddressed, remains unclear, although a significant amount of inaction is reported. Proactive responses to legal problems are, however, rare in the civil justice system; instead, the tendency is for problems to escalate and become harder to resolve, most especially when family matters are involved. Canadian and UK findings also show a tendency for legal problems to cluster, often leading to additional health, economic and social problems that have significant costs for individuals, their families, businesses, and society as a whole. This occurs for people who are seeking resolution through the courts as well as those who are not.

Early, accessible and effective resolution to legal problems is key to avoiding problems clustering and escalating, but not knowing where to seek help or feeling powerless to do so are significant reasons given for inaction. Furthermore, the experience of multiple problem clustering does not affect people uniformly across the population. People who are economically disadvantaged or vulnerable to social exclusion for other reasons such as disabilities, homelessness or ethnicity tend to have high rates of intersection with civil legal problems. Legal issues such as domestic violence, family/relationship breakdown, injury from accident, housing, employment, and discrimination, can also directly lead to or exacerbate social exclusion.

This body of research argues for the recognition of everyday legal needs and responding investment in affordable, community-based legal outreach, pointing to the very considerable social costs of non-resolution that are borne by social and health services, income supports, disability plans, and employment insurance, other social services (more information and supporting publications can be found on the Forum website).

Many People Cannot Afford Legal Representation

Concurrently, there is mounting evidence that the public cannot afford to resolve their legal problems through formal litigation processes because the cost of legal advice and representation required is beyond the means of low and middle-income Canadians. Some evidence comes from a series of policy reports examining access to justice issues (for example the Systems of Civil Justice Task Force, 1996). Research such as the Civil Justice System and the Public project provides further evidence as does the steady increase in the number of people appearing in court without legal counsel. In family matters, where objective representation is considered crucial, parties without counsel are reported to be as high as 50%. As well, in recent years considerable popular and legal media attention has focused on the lack of access to justice and the high cost of legal representation, often making connections to concerns about the adequacy of available legal aid. 

Media coverage both reflects and fuels a growing belief that our civil and family justice system is in crisis that spans users, legal service providers and governmental policy-makers. Leaders in the justice community in Canada and internationally are expressing alarm, as illustrated in an address by Canada’s Chief Justice: 

The most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve. Access to justice is therefore critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them decide to become their own lawyers. Our courtrooms today are filled with litigants who are not represented by counsel, trying to navigate the sometimes complex demands of law and procedure. Others simply give up (The Right Honourable Beverly McLachlin, PC 2007).

The Need for Evidence-Based Research on the Cost of Justice 

In 2008, responding to these concerns, the Chief Justice initiated, and is the Honourary Chair of, the Action Committee on Access to Justice in Civil and Family Matters, made up of leaders from all of the key sectors of the justice community and public representatives. The purpose of the Committee is to bring profile and encourage action on issues of access to justice, beginning with the cost of justice. As well, the Canadian Forum on Civil Justice, along with a large group of academic and community collaborators from Canada and internationally, is pursuing research on the cost of justice. This research is designed to provide the foundation of critical information needed for evidence-based decision-making about the civil justice systems in Canada and internationally. This evidence will fill an empirical gap that has persisted in spite of repeated calls for research.

There are five broad research questions on which to build concrete research initiatives that create better ways to measure the cost of justice:

1. What are the costs of pursuing the resolution of legal problems? 
2. What are the costs of not achieving resolution? 
3. Is the cost of achieving resolution economically and socially warranted? How can we better calculate, understand and balance the social value to democratic societies of ensuring an accessible, effective civil justice system against the financial costs of doing so, or the socio-economic costs of failing to provide access? Are there methods that allow useful cost-benefit analysis? 
4. What can be done to effectively prevent disputes, and at what costs and benefits? What methods are there for limiting or eliminating the need for legal services, through consumer protection, licensing, standard-setting and pro-active regulation, or other innovations identified by the research? What can be done to prevent recurring problems for low and middle income Canadians, most especially those who are the most vulnerable?
5. What choices and changes are recommended based on the available evidence? It is too early to know what action should flow from the evidence, but it is anticipated that this may include an array of reforms affecting formal court procedures, frontline legal service entry and information points, changes in legal and judicial culture, alternative models of legal practice, multi-sector perspectives on investment in access to justice, and effective public involvement in the change process.

 It will be extremely challenging to calculate the costs of justice. Previous research is beset with difficulties concerning definitions, scope, data access, and measurement validity. It is complex to determine what is to be defined as a cost and then derive a reliable method of measuring that cost. Furthermore, public financial investment in providing access to justice must be considered within the context of the social value of ensuring an effective accessible system. Supported by an impressive team of 25 researchers and 32 stakeholder partners, the Forum has submitted the second stage of an application to the Social Sciences and Humanities Research Council for a major five-year Community University Research Alliance Grant (results announced in February 2011). If this application is successful, this alliance has the collective expertise to find solutions to the methodological challenges and find viable ways to begin answering these important research questions.

Mary Stratton
Research Director/ Directrice de recherche