The Reality Disconnect: How Hierarchical Decision-Making Is Holding Back Progress on Access to Justice in Canada

In the 18 months since the Dialogue Event – a justice system stakeholder forum held at the Faculty of Law University of Windsor, bringing together members of the public (SRLs) and judges, lawyers and policymakers – I have spent a great deal of time talking with, exchanging ideas among, and generally tracking developments in a revitalized “Access to Justice Sector” emerging across Canada.

The A2J Sector: Who are We?

Members of what I am dubbing the A2J Sector include judges, regulators and leaders of the profession (for example in provincial Law Foundations and Law Societies), government lawyers and others working in policy, court services and public legal services, and legal academics. Some of these individuals are very senior and respected members of the legal community, which has lent an important gravitas to the debate.

Nonetheless, in order to identify and implement reforms that will make a real difference to the experience of ordinary Canadians, this stakeholder group is in urgent need of expansion. Over the past 12 months, the A2J Sector has begun – slowly and tentatively – to reach out to include social agencies – often staffed by “non-lawyers”, but working on the frontlines of the A2J crisis–that offer support and resources to women, to men, to children, to the mentally ill, to new immigrants, etc.

Even more slowly, the A2J Sector is considering including members of the public, and perhaps those who have had experiences as SRLs, in their deliberations and think tanks. There is a lot of talk about including the voices of consumers – so far, a great deal more talk than action.

And even where stakeholders other than A2J Sector bigwigs are included in the discussion, the sense is that their views are “interesting” but not really important and that the “real” decisions will be made by the justice system elites.

Local Heroes

Despite my deep personal disappointment with progress towards a more inclusive stakeholder group for the A2J Sector, there are many heroes who are acting locally. These local heroes probably do not have time to attend a A2J Sector think tank – and they probably weren’t invited anyway.

Local heroes across Canada have challenged themselves to try out new programming, develop new resources, have moved around scarce resources in order to better serve those who cannot afford legal counsel, and many spend hours and hours each day working with the unrepresented. Occasionally they are also members of the A2J Sector elite – those who marry words with action. Some of these heroes have been recognized in our Access to Justice All-Stars awards at NSRLP, and shall continue to do so (there are plenty more unsung heroes out there, please keep the nominations coming).

3 Assumptions at the Heart of the A2J Sector

Despite the encouragement I take from these local heroes, I believe that those seeking real change face 3 assumptions that are a serious impediment to making genuine improvements in access to justice in Canada.

I encounter one or more of the 3 assumptions on an almost daily basis. While they are manifest in different ways – whether by lawyers, judges, policy folks, academics – there is a depressing consistency and predictability about them. Many days I know exactly what I am about to hear before I hear it. Now that is depressing.

I think that the problem is that these 3 assumptions are embedded in the MO of the “A2J Sector” I have described above, They are regarded by some as an effective explanation for failing to consult, engage or interact with members of the public, or anyone else who is not a member of the A2J Sector elite.

They are a big problem.

Assumption (1): Only members of the legal establishment can engage in informed and useful discussions over A2J

Despite continuous efforts at NSRLP to bring forward the voices of (intelligent, polite, reasoned, thoughtful) members of the public, this is an astonishingly pervasive and persistent assumption. Even some deeply personally committed to A2J appear sometimes seem unable to truly comprehend what they could possibly learn from a “non-lawyer”.

Way too often, the argument is made that lawyers are the ones with the knowledge and experience to really understand what needs to happen, and further that lawyers are the only ones who can understand the really important points that only they are equipped to make (wait – isn’t that a tautology?). Surely no one who isn’t a lawyer can actually stand up and make coherent arguments (advocacy) on a complex legal topic?

While it is true that not all lawyers are equal in the A2J Sector hierarchy (see (3) below), there is an alarming monopoly claimed by the legal profession on “making the really important points” (presumably the points that only lawyers can really understand, right?). The assumption is that no one who isn’t a lawyer can have any important observations to make on a complex topic (“our” topic, the law).

(This exclusivity has historically also extended to non-lawyer experts who can offer social policy and evidence-based advice, but that is the subject of another blog – my focus is the public here).

I am asked over and over when I suggest we could include the voice of a SRL – on a conference panel, on a policy group, at a think-tank – “what is it that they can tell us that we do not know?” Most days I am too polite to do this, but what I really want to say in response to this question is:

“Seriously?”

Assumption (2): The public isn’t really concerned about A2J issues

Again and again I have been assured – by people who appear to simply believe this rather than relying on any actual evidence – that the public isn’t especially bothered about A2J anyways (this may be a natural consequence of assumption (1) ie they know nothing).

So, the reasoning goes, we should probably just let them get on with thinking about all the other things that preoccupy them – inflation, divorce, the latest Internet conspiracy theory – rather than bring them into a debate over their problems in accessing the justice system and a discussion of what the solutions might be.

The deeply paternalist attitude is both offensive and inaccurate. Many, many members of the public are affected by the A2J crisis. Because lack of access to legal rights can have as much impact on an individual life as an ability to access health care, or education, or housing. And many of them want to talk about it. I know this because of the people we hear from every single day at NSRLP. Because of the number of times I speak about the SRL phenomenon to a skeptical and sometimes hostile legal audience and the AV guy, or one of the wait staff putting out the coffee, comes up to me afterwards and whispers “Thank you for saying what you did. These people just don’t get it.”

Assumption (3): Having important insiders with impressive qualifications talk to one another is more important than actually providing services

The A2J Sector reflects – but worse, sustains – elitist hierarchies that are unhelpful in tackling social change.

Judges, policy makers, ancient academics (like myself), and influential institutional lawyers (private practice lawyers in the trenches are often marginalized in the A2J Sector) are all part of an upper echelon that appears most comfortable when they are (1) talking not doing and (2) talking to one another.

Many, maybe most, of these individuals sincerely want to offer better services to the public, but the assumptions that govern their efforts and the focus of their deliberations are a big part of the problem.

Of course every social movement has its internal pecking order. And it may be that part of the paralysis we are seeing at a national level is the result of a lack of clear leadership. Now that would be a useful form of hierarchy.

Instead what we have is a “must invite” list that is the same for virtually every think tank gathering. We have the feeling that only certain people can “speak” for the A2J Sector, and anyone who steps forward from the lower ranks – a court services foot solider, a law student with a great idea, a “non-lawyer” (argh!) from a social agency, or, most ghastly of all, a member of the public – is speaking “out of turn”.

The Problem with the 3 Assumptions

These 3 assumptions impede real progress towards tackling the A2J crisis in Canada because:

1. They diminish the energies, ideas and smarts that could be brought to bear on the A2J crisis.
2. They reflect an elitist, hierarchical and sometimes self-interested (and therefore limited) approach to solving the A2J problem.
3. They do not recognize the importance of building a public constituency for change.

At NSRLP, we are sometimes been told that we are speaking out of turn, and to get back in line, so to speak. At the same time, I am one of those ancient academics who are part of the hierarchy, and I acknowledge that this may have helped us.

I believe that if the many people of good intent who are part of the A2J Sector are going to be effective in developing and implementing some solutions to our extraordinarily complex A2J crisis, we have to challenge these 3 assumptions. We need to recognize where they are holding us back. And we have to break out of our hierarchies and challenge our own thinking.

The public is ready – what are we waiting for?

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This post originally appeared on the The National Self-Represented Litigants Project Blog on November 17th and is republished with permission. For more information, visit the NSRLP website.