Access to justice through local lay courts | Jérémy Boulanger-Bonnelly

By Jérémy Boulanger-Bonnelly

Law360 Canada (June 5, 2023, 2:46 PM EDT) --
Jérémy Boulanger-Bonnelly
Jérémy Boulanger-Bonnelly
Our civil courts are in disarray. The chief justice of the Superior Court of Quebec, Marie-Anne Paquette, recently said that her court was held together with “duct tape.”

For litigants, it can take years to get to trial, even when dealing with a small claim. And when a matter does get to trial, the process often feels distant and alienating, especially to self-represented litigants. While our justice system is rightly lauded as one of the most competent and independent in the world, its inaccessibility threatens its effectiveness.

What if there was a better way to deal with simple and small civil claims? In this column, I want to highlight the model of local lay courts, which has improved civil justice in other countries and holds great potential in the Canadian context.

Lay courts: An overview

Implemented in more than 20 jurisdictions, lay courts rely on people without any legal training to resolve minor disputes on a part-time basis. Because they are usually volunteers or receive small allocations, they need fewer resources than professional courts. This means that they can be appointed in much greater numbers and thus be more accessible at a local level. Lay courts also transform the judicial process: in several jurisdictions, they have been shown to make justice more understandable and welcoming for litigants and to run a process that is more responsive to their needs.

That model is not new. For decades, England has relied on lay magistrates to resolve a range of family matters, as well as most criminal cases. With currently more than 12,000 volunteers holding that position, lay magistrates are present in every community. They sit at least 13 days a year as panels of three, providing an accessible forum for the resolution of minor disputes.

Lay magistrates contribute to the accessibility of justice in at least three ways, as several studies have confirmed. First, the simple fact that they handle about five million civil cases a year in the U.K. contributes to reducing delays, including in the professional courts, which can focus on more complex cases. It also contributes to reducing costs, as lay magistrates have been shown to cost up to 50 per cent less than their professional counterparts.

Second, lay magistrates are more connected to the communities in which they live and serve, which enhances not only their accessibility but also their legitimacy. As different politicians have noted, they are the backbone of the delivery and administration of justice at the local level and represent a triumph of volunteerism and localism.

Third, lay magistrates have also been shown to improve the judicial process. Studies have confirmed that the population views them as legitimate not only because of their local connections but also because they tend to be more accessible to self-represented litigants, using less technical language and spending more time on each case to ensure better interpersonal interactions with the parties and witnesses.

Lay courts as person-centred dispute resolution

This example illustrates the potential of civil lay courts to provide better access to justice and contribute to the effectiveness of our justice system. It also connects with the recent shift of the global access to justice movement towards person-centred justice.

Embraced by a range of legal actors in Canada and abroad, person-centred justice seeks to centre justice interventions on the people’s legal needs. It prioritizes legal services that are not only accessible but also empowering and responsive to people’s multifaceted issues. Because most legal problems arise in everyday life, person-centred justice focuses primarily on local and community-based interventions.

Lay courts such as the English lay magistrates are in line with this conception of access to justice. Besides making dispute resolution more accessible at a local level, their process is more flexible and thus more responsive to the litigants’ needs and realities. Moreover, lay courts are driven by the idea of empowerment — a central component of person-centred justice — as they empower not only litigants but also other members of their community to become part and parcel of the judicial process. Overall, lay courts hold great potential if our goal is to make our justice system more person-centred.

What about professionals?

Lay courts face significant challenges as well. One oft-raised concern is that entrusting laypeople with the resolution of some disputes may result in second-class justice. After all, the argument goes, how can laypeople make legally-based decisions without any legal training?

This concern for the competence of lay judges is legitimate, depending on the type of case. Laypeople are ill-suited to decide complex legal issues, but they can be perfectly competent in legally simple cases. Consider a case in which a person lent $500 to their neighbour and now seeks to be reimbursed. The case involves little more than an application of the general principle of breach of contract. Why should we need legal professionals with decades of experience to decide these types of disputes? The key here is to implement triage mechanisms — which exist, for instance, in England — to ensure that lay courts only deal with cases that match their competence.

There are additional ways to support lay courts in their work, for instance through training or the support of a legally trained adviser, as is the case in England. And, of course, higher courts should be able to review the decisions of lay courts to some extent, as they do, for instance, with administrative tribunals. With these types of safeguards, lay courts can provide a more accessible service in simple civil matters without undermining the quality of justice.

To be clear, lay courts are not substitutes for professional courts; they are a complementary solution for the resolution of minor everyday disputes. While lay courts will not solve the access to justice crisis on their own, the experience of other countries suggests that they could improve the situation. If we want to make a real change, we need to be bold and consider this solution and similar ones.

Jérémy Boulanger-Bonnelly is a Boulton junior fellow and incoming assistant professor at McGill University’s Faculty of Law. His research focuses on access to civil justice and on the role of lay participation in justice systems. He previously worked as a law clerk at the Supreme Court of Canada and as a civil litigation lawyer. In parallel to his research, he continues to represent clients in constitutional cases on a pro bono basis.

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