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Graham Sharp, 3rd year student, University of Saskatchewan College of Law
Winner of the 2016 Christine Huglo Robertson Essay Prize. The Prize recognizes a paper that makes a significant contribution to scholarship concerning the administration of justice, and is named in honour of Christine Huglo Robertson, Executive Director of the Canadian Institute for the Administration of Justice between 1992 and 2012.
Excerpt: Introduction, Parts IV & V
[Footnotes omitted. They can be found in the original via the link above]
Where the law gives an individual the right to a remedy, why must the associated cost so often render it a privilege? As Chief Justice McLachlin writes in the foreword to the Cromwell Report, “the problem of access to justice is not a new one. As long as justice has existed there have been those who have struggled to access it.” This is indicated by Clause 40 of The Magna Carta, an 800-year-old document, which states, “To no one will we sell, to no one will we refuse or delay, right or justice.”
On what basis can it be said that accessing justice should never come at a price? The Canadian Charter of Rights and Freedoms recognises that Canada is founded upon the principle of the rule of law. For the law to rule, however, it must be able to provide a remedy on every occasion in which a right is violated, “for want of right and want of remedy are reciprocal.” If the remedy comes by rights, it should not also come at a severe cost to the individual. Where a claimant is incapable of obtaining their just remedy their right was never exercised.
The Chief Justice has called access to justice a “fundamental right […that] affirms the rule of law.” Justice is surely the vindication of legal rights, so where this cannot be accessed the law cannot be said to rule. This paper will set out to understand our current right of access, and what is required of the legal system and profession in order to uphold the rule of law.
IV. ORIGINS AND MODERN NOTIONS OF THE RULE OF LAW
There has been little discussion in the jurisprudence about what the rule of law actually entails, but since the right of access to courts is founded upon it, the principle requires definition and understanding. The Magna Carta was a foundational document but many “accounts of the rule of law identify its origins in classical Greek thought, quoting passages from Plato and Aristotle.” According to Brian Tamanaha, the classical philosophers “thought [it] to be just that among equals everyone be ruled” and deemed what is unjust to be that which is “lawless” and “unfair.” To them, “even minor transgressions, if allowed to creep in, ‘at last ruin the state.’” While they may not have expressly used the term, classical Greek thinkers “had concerns about the rule of law.” They clearly understood the concept as leaving no room for any instance where the law fails to be applied.
John Locke believed that the law must never fail to apply. For him, “Where-ever law ends, tyranny begins.” Locke’s Liberalism was “consummately legalistic,” as evidenced by the preceding statement, as well as the notion that “freedom of men under government is, to have a standing rule to live by, common to every one of that society.” Plainly, Locke’s theory was that the law must always be in application, for every citizen, in all circumstances. Invariably, his philosophy must be read as supporting entirely unhindered access to justice.
Expanding on Locke, modern philosophy sees the rule of law as promoting liberty “by allowing individuals to know the range of activities in which they are completely free to do as they please.” The key element of this freedom is an individual’s foreknowledge of the limits of permissible conduct, with Locke himself seeing the rule of law’s governing principle to be that “the people may know their duty.” This would be a flimsy principle without effective access. The law must rule citizens by being accessible and determinable by them. When the rule of law was deemed an unwritten constitutional principle in Roncarelli it conveyed “a sense of orderliness, of subjection to known legal rules.” Furthermore, the Manitoba Language Rights case considered that “people should be ruled by the law and obey it and will [therefore] be able to be guided it.” In Re B.C.G.E.U. Dickson C.J. states, “There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice.” This is essentially a restatement of Locke’s theory. The rule of law necessitates access to justice and where that fails, there is only tyranny. Guaranteeing access to courts is not enough unless said courts can guarantee the appropriate remedy will be granted: “Of what value are the rights and freedoms guaranteed by the Charter if a person is denied or delayed access to a court of competent jurisdiction in order to vindicate them?” It is evident that our Supreme Court supports the idea that the law must always be in effect via determinability and access.
Friedrich Hayek’s theory may best summarize the requirements. In his view, the rule of law must necessarily possess three attributes: generality, equality of application, and certainty. Generality requires that the law apply “without exception, to everyone whose conduct falls within the prescribed conditions of application.” The principle of equality simply demands that the rule of law “apply to everyone without making arbitrary distinctions among people.” Certainty connotes an ability “to predict reliably what legal rules will be found to govern [conduct] and how those rules will be interpreted and applied.” While Hayek acknowledged that it is impossible for any legal system to perfectly adhere to all three of the attributes he puts forth, he believed they could be approximated. Hayek’s theory could stand as an ideal to be striven for in order to ensure that law rules effectively by giving all individuals access to it at all times.
These theories resemble the concept of formal legality, which Tamanaha identifies as “the dominant understanding” of the rule of law “for liberalism and capitalism.” In order to meet such a standard, Tamanaha believes that “attention must be directed at ascertaining whether such predictability is actually conferred.” The importance of effectiveness has long been important to rule of law philosophers, and that necessitates procedural considerations. One must wonder if one individual can in effect be subject to another when they are potentially denied their rightful remedy as a result of the other individual’s ability to afford more effective legal services. This appears to violate the accepted view of the rule of law outlined above. The views of these philosophers entail a justice system where citizens may know their rights and demand their enforcement, through a just process, in order to access their effective remedy.
Following the Magna Carta, there gradually developed a “connotation that at least a minimal degree of legal procedures—those that insure a fair hearing, especially the opportunity to be heard before a neutral decision-maker—must be accorded in the context of the judicial process.” Such a process is necessary in order to determine whether a remedy is legally required, and to subsequently apply it. The ability of an individual to “guide him or herself by the law may be frustrated if access is denied by reason of long delays or excessive costs.” Morey outlines the concern that a “person who wishes to plan their life on the basis of what the law prescribes will be frustrated in their expectations if the rights that they hold in principle cannot be accessed in fact.” The views of Isaiah Berlin are also pertinent: “what matters is not the form of restraints on power…but their effectiveness.” In being governed by the rule of law, one must be able to presume the law will always apply. One’s inability to access justice undermines that presumption. We need a modern understanding of the rule of law and the associated implications for the legal system and profession upholding it. The Declaration of the 1990 Conference on Security and Cooperation in Europe defines the rule of law as “justice based upon the recognition and full acceptance of the supreme value of the human personality and guaranteed by institutions providing a framework for its fullest expression.” What is required is a new and improved framework to achieve this “full expression” where access to justice is guaranteed in an effective manner.
V. THE CONSTITUTIONAL MANDATE AND HOW TO MEET IT
Though their ultimate decisions on the matter have been measured, the judiciary has been vocal about the extent to which the rule of law demands effective access to justice. It is a foundational principle of our society, reflecting “Canada’s ‘commitment to an orderly and civil society in which all are bound by the enduring rules, principles, and values of our Constitution as the supreme source of law and authority.’” According to McLachlin C.J., the ability to access justice “is fundamental to the rule of law. If people decide they can’t get justice, they will have less respect for the law…they will tend not to support the rule of law.” The Chief Justice found that “[i]f people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect.” Therefore, any impediment to an individual’s ability to bring legitimate issues before a judge will prevent the associated laws from taking effect, and in that instance, the law will be incapable of ruling. That the current Chief Justice is concerned with the rule of law’s dependence upon access to justice only reinforces the fact that the constitutional principle has the potential to be developed further.
Although the Pleau decision was ultimately narrow in scope, MacAdam J. appreciated the functional impediments to effective access, which pervade our system. To make his point he goes to such lengths as to cite an observer’s description of the Task Force on Systems of Civil Justice:
Ensuring the existence and health of a forum for civil justice to which we all have access ought to be a ground-level, first-order valve in our society. All of us ought to be able to protect our rights and interests and seek what is due in matters that can have such a profound effect on our lives. In recognizing certain claims the law creates rights which we are supposed to have regardless of our economic status in society, the colour of our skin or the religion we practise. Access to the forum in which these rights are given life and force is a matter which should not be a luxury reserved for the very few who can afford it.
The fact that the majority of Canadians cannot afford to seek justice through the current system is a problem which far outstrips in magnitude concerns about maximizing procedural and due process protections for those litigants who are presently able to access the system.
There is no mention of the rule of law, yet the idea that ensuring access should be society’s first priority accords with the belief that a state under the rule of law must enjoy universal and unencumbered access to justice. Outlined is the belief that all of us must be able to “protect our rights and interests and seek what is due.” This can be read as promotion not only of access to courts, but also of access to our rightful remedy.
There is nothing preventing us from taking incremental steps to more effectively uphold the law by improving access to justice. Tamanaha is of the opinion that “if the rule of law is to function effectively, a necessary contribution is to be found within the attitudes and orientation of those trained in law.” The legal profession has a spotty record in this respect. Max Weber believed that law was “kept obscure, unclear, and inaccessible—factors which militate against the requirements of the rule of law—to keep lawyers indispensable as intermediaries and facilitators.” Tamanaha cites “concerns that the legal profession serves the interests of the elite class, which provides them the most lucre, turning the law to the benefit of these masters.” He continues, recognizing that the legal profession “is located at the crux of the rule of law…”uniquely situated to undermine [it].” It is incumbent upon us not to undermine but to uphold. We should more often qualify our duty to our client as a duty to justice in the first place.
Mary Eberts considers it fundamental in a society governed by the rule of law that access be broad and effective. In her estimation, services “need to be widely available for such a law-based democracy to work, to continue to renew its legitimacy, and to maintain its ability to elicit the consent of the governed.” Further, this must apply to “lawyer’s services aimed at assisting individuals to participate in…applications of law for the resolution of disputes in family, commercial, employment and other areas open to litigation.” Eberts acknowledges the gravity of the access to justice challenge in this country but she believes that the burden of ensuring access “falls with particular harshness on what [she calls] the legal proletariat.” These are the lawyers “whose personal circumstances or commitment to social justice, or both, have isolated them as a separate and less advantaged sector of the bar.” Often when the access to justice conversation takes place “lawyers are urged to provide more services at little or no cost.” Eberts likens it to efforts to alleviate hunger, where those assisting have their energies absorbed “so that they have little energy left for changing the underlying conditions that create the hunger.” Obviously, the lawyer’s duty to ensure that justice is accessed must not be an impractical burden. Any reform to uphold the rule of law by guaranteeing effective access to justice should not merely subject lawyers to undue hardship in place of litigants.
Legal services are a resource with obvious, determinable value. Suggesting that they should be provided where necessary to ensure an appropriate remedy has serious economic implications. As Roach and Sossin point out, “[b]ehind every claim to a right, however, is a claim on resources.” As already mentioned, the rule of law is connected to a capitalist system. Max Weber’s view was that “capitalism requires a formal rule-oriented legal system in order to provide the security and predictability necessary for market transactions,” According to Hayek, the rule of law cannot even operate “in the context of a socialist economic system or the social welfare state.” Thus, ensuring effective access to justice under the rule of law should not be done according to socialist principles but this means serious resource concerns.
Tamanaha recognises the “additional, unsettling questions about the cost and availability of legal counsel.”Guaranteeing effective access to justice may not necessarily entail our current legal system becoming universal, rendering all legal professionals employees of the state. Trebilcock did not “conflate access to the justice system with access to full representation by a lawyer.” However some services could be deemed necessary to ensure that an individual that is entitled to a legal remedy is certain to obtain it. As Roach and Sossin point out, “the focus of the public interest bar has shifted from the right to government-funded legal representation to other access to justice initiatives.” A blanket right to legal representation does not truly make a lot of sense, as an overuse of resources would appear inevitable. Thus, more scholars are considering what services are truly necessary to ensure effective access for all.
Michael Trebilcock has for years argued for economical solutions to the access to justice crisis, noting that the “‘only normative reference point that is defensible is a consumer welfare perspective.’” Forrest Mosten pointed out, “market demand rather than societal policy has been the source of [the] growth of new service products and opportunities to improve legal access.” He introduced us to the concept of “unbundling,” also known as “discrete task representation or alternatives to full-time representation.” In their analysis of Trebilcock’s contributions, Roach and Sossin recommend this initiative. Alongside Samreen Beg, Sossin analyzes it further, defining the service as one “of limited scope for which a lawyer, paralegal, or legal service provider is retained…without the general expectation that the lawyer represent the client generally.” Endorsement of this idea is on the rise in Canada. It is important not to take our foot off the gas and to consider further just how much the unbundling concept can improve access to justice.
Unbundling has the potential to focus legal services in a much more needs-based way, managing the provision of services according to what is necessary to ensure effective access. Beg and Sossin propose three service delivery models, that are not mutually exclusive, which could each be put in place: general counselling and legal advice; limited court appearances; and preparing documents. Mosten suggests that the limited scope lawyer may research, draft, or negotiate, potentially “convert[ing] to full representation as the attorney of record in court appearances or continue coaching pro se litigants how to do it on their own.” The initiative could come in many forms but the common purpose is the provision of timely, necessary services, in order to ensure effective access. The concept is clearly resource-sensitive and it would be wise for the government and the legal profession to move to more widespread use of it.
These reforms would be accompanied by fresh concerns requiring regulation, but to Beg and Sossin, “the potential benefits outweigh the potential downsides” and unbundling “represents a significant and positive step toward a more accessible justice system.” It is an initiative based on “consumer” need, not unlike our universal healthcare services. It is difficult to argue that all, or even a large portion of services, should be granted to citizens, but a true right to a remedy is unlikely to leave room for any court appearance fees provided a litigant is ultimately entitled to a legal remedy.