Paper Tiger Fences

The Vancouver Sun recently described the issue of insufficient access to justice in British Columbia as a “fast-approaching cliff” and urged the Law Society of British Columbia to lead efforts to address the problem.

That article reminded me of the oft-cited metaphor used by Richard Susskind in describing legal services as providing either a fence at the top of a cliff or an ambulance at the bottom.

The United Nations’ Commission on Legal Empowerment of the Poor, in its’ 2008 report Making the Law Work For Everyone identified access to justice as one of four pillars to legal empowerment of the poor (the others being, property rights, business rights and labour rights.) The Commission recognized the need for effective access to enforcement processes, stating “Even the best laws are mere paper tigers if poor people cannot use the justice system to give them teeth.”

This past week, at a forum held in honour of the retirement of Manitoba’s Chief Justice Richard Scott, The Honourable Madam Justice Rosalie Abella spoke on the evolving role of courts in a democracy. She asked the audience to consider whether, like the tree that falls in the forest with no one to hear it, access to justice really exists when so many citizens cannot afford to bring their disputes before the courts for resolution.

Martin Felsky spoke at the same event about technology and the courts. He gave the example of the “integrated mobile phone of justice” as the typical legal system approach to technological innovation, accompanied by a photo of a horse drawn cart conveying a classic British style phone booth.

I’m quick to mix my metaphors and now have in mind an image of a fence of paper tigers protecting a falling tree at the top of a cliff, with a horse drawn ambulance at the bottom. Though absurd, in some ways this seems to me an apt image of the effectiveness of our justice system in meeting the legal service needs of its citizens in the 21^st century. Relying on heavily on paper, ancient processes and old technology, justice comes painfully and slowly, if at all.

For many low and middle income citizens especially, our legal systems do not effectively facilitate either the taking of preventative measures to protect legal rights nor access to appropriate remedies to enforce those rights when violated. This is the problem of access to justice in Canada and we have not yet figured out which are the most appropriate tools to fix the problem. Nor have we figured out who should be wielding the tools or even, buying them.

Some suggest that lawyers (including law societies) are wholly responsible for the problems associated with access to justice. They would advocate solutions that include expanding pro bono services, amending law society regulations to allow for provision of unbundled legal services and representation by advocates without formal legal training, as well as changes to billing practices and firm business models.

Others would suggest that the government must bear the cost as access to justice is a societal responsibility akin to healthcare and that without broad and effective access to justice, our democratic system cannot function effectively. They would advocate for governments to provide better-funded and wider-scope legal aid schemes, more user-friendly court processes and technological innovation in the administration of justice. A universal “legal care” system could logically follow from this approach.

As is often the case in problem solving, relying upon an either/or approach isn’t particularly helpful in moving the agenda forward. There is no panacea, and no single responsible party.

Access to justice will not result from the efforts of lawyers alone; neither can it result solely from public sector initiatives. Addressing the myriad of issues necessarily involves bringing law societies, law schools, courts, bar associations, legal aid programs, community based providers, government and others to the table, recognizing their interdependence and that much more will be accomplished through collaboration than through silo-based efforts.

Commendably, the CBA is planning to do just that this coming April at Envisioning Equal Justice Summit: Building Justice for Everyone. “In Vancouver, from April 25 to 27, we will begin a new era of strategic collaboration. We will work together to envision equal justice and develop practical strategies, skills and tools for building a more just society through enhanced and effective approaches for resolving legal problems. “ That sounds like a good place to start.