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| Aneal Seegobin |
But what about the public? What do “regular” people have to say about access to justice? While the voices of these legal insiders are necessary, perhaps the absence of the public voice from this dialogue is indicative of the present shortcomings in our pursuit of access to justice for all.
In his remarks at the 7th National Pro Bono Conference, Supreme Court of Canada Chief Justice Richard Wagner quoted French novelist and playwright, Honore de Balzac: “Laws are spider webs through which the big flies pass and the little ones get caught.”
For many, this is our legal system. It appears once entangled, most spend nearly all their available time, energy and resources in the hope of finding a way out. Meanwhile, a select few seem to skirt past the web, free to pursue the rest of their lives just as they would like to.
Chief Justice Wagner suggests that access to justice involves giving people “the tools to free themselves from the spider’s web.” He stated, access to justice is about, “getting good justice for everyone, not perfect justice for a lucky few.”
This article sets out to define access to justice by briefly discussing some of its more basic components and promote investment into access to justice by examining the benefits of broader public engagement with our legal system.
What is access to justice?
Access to justice has traditionally focused on legal aid and providing more lawyers and judges. While it is true that more people need representation, our complex society demands a more comprehensive agenda for reform. What options are available to the middle-class father who does not qualify for legal aid but is embroiled in a custody battle for his children? Or to the newly landed immigrant whose corporate landlord has taken her security deposit without reason?
In 2015, average legal fees for a two-day civil trial were well over $30,000. This figure does not factor in non-economic costs such as the impact on relationships and personal well-being. Nearly half of all Canadians will experience at least one serious law-related problem within a three-year period; however, 65 per cent of these citizens’ legal needs will go unmet.
Part of defining access to justice involves asking who access to justice is concerned with. It is simple enough to say that access to justice should concern everyone. While this is true, when undertaking to promote meaningful development in access to justice, those that face the greatest challenges to exercising their legal rights should be placed at the forefront. Traditionally, these include women, children, vulnerable populations and those facing serious social disadvantages (i.e., Indigenous persons, racialized persons, disabled persons, linguistic minorities, refugees, etc.).
Inequality and the lack of access to justice work hand-in-hand. Those suffering greater social prejudice tend to have far more demanding legal needs. However, they are also the ones facing the toughest challenges in exercising their legal rights and navigating the legal system. As a result of this position of vulnerability, these people tend to bear the more severe consequences of lacking access to justice. In this sense, inadequate access to justice appears to be both a result and cause of inequality.
The broader provision of legal services is an essential component in defining access. Access to justice should encompass enabling people to exercise their legal rights in pursuit of a just resolution. The broader provision of legal services provides several avenues for more people to exercise their rights. Further, access to justice should promote the exercise of these rights in all dispute resolution institutions. These should include formal, as well as customary and informal institutions of justice.
Working in tandem with this component is the need for a commitment to reform of the legal framework. When built upon guiding principles that provide for sustainable progress towards an ideal justice system, effective legal reform is necessary to the broader provision of legal services. Some areas of focus for legal reform can include creating more opportunities to ensure accountability, reducing the economic and social burdens of exercising legal rights and allowing for flexibility in addressing society’s changing needs.
As a first step, it is essential for legal reform to focus on changing components of the current legal framework that discriminates against those facing the greatest challenges to exercising their legal rights.
Why invest in access to justice?
Intervention to improve access to justice leads to better outcomes for individuals and society. Improving access to justice may improve perceptions of fairness in the legal system, reduce the costs and burdens of navigating the legal system and highlight inadequacies in the legal framework.
In Canada, it is estimated that the average annual cost of legal problems is about 1.5 per cent of our GDP. This figure factors in direct costs, costs of employment and income loss, and the costs of illness exacerbated by legal problems. A legal needs survey of Canadians found than 46 per cent of respondents with a resolved legal problem felt that the resolution was unfair.
A recent study focused on legal aid for persons facing incarceration found that more prevalent legal aid interventions led to fewer guilty pleas, more reasonable sentences and reduced costs on the justice system. Greater representation can reduce congestion in the court system and allow for resources to be more efficiently allocated due to reduced work and time demands. Further, where legal aid is integrated in support programs for victims of crimes, improvements in health, social and employment outcomes were realized.
In the context of family law, greater representation generally improves reunification rates and the retention of parental rights. It is usually the case that where one party in a custody case is represented and the other is not, sole custody is more likely awarded to the represented party. Further, limited scope legal aid has been shown to deal with immigration, debt, housing, or domestic violence issues more efficiently. Greater legal assistance in these issues have seen improved child welfare and family outcomes.
A necessary component to Canada’s legal system is active participation. For citizens’ rights to be most effectively bolstered and expanded, their calls for action must be heard and represented. Unfortunately, certain vulnerable populations have a lower degree of psychological readiness to pursue legal problems. Many cite feeling overwhelmed, alienated, unworthy of justice, or intimidated or distrustful of the legal system.
Access to justice initiatives aimed at legal empowerment and broadening access to legal information and support have shown many positive benefits in this regard. These include inspiring a greater willingness to act, feeling confident in the ability to deal with legal problems and improved access to remedies and information. A focus on legal empowerment can change these repressed attitudes and inspire institutional change.
Access to justice is inextricably linked to living a good life. It is about access to equality, education, health, security and overall satisfaction with the life experience.
This article sought to define access to justice by briefly discussing some of its central components. The collective interest of society depends on the continuous improvement of our institutions. Access to justice should be pursued for the overall benefit of our collective human enterprise so that everyone can have the tools they need to free themselves of the spider’s web and pursue the life they would like.
The purpose of this article is to encourage broader engagement with our legal system. It is through widespread engagement with our justice system that we can most effectively pursue good justice for all.
Aneal Seegobin is a rising second-year law student in the Dual JD program at the University of Windsor Faculty of Law and the University of Detroit Mercy School of Law. Aneal is interested in pursuing a career in construction law and corporate law. He can be reached via LinkedIn.
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