Five Different Ways of Considering Access to Justice

Access to Justice means different things to different people. In its narrowest sense, it represents only the formal ability to appear in court. Broadly speaking, it engages the wider social context of our court system, and the systemic barriers faced by different members of the community. Unfortunately, research papers and discussions often do not clearly set out what view of "access to justice" they are taking. This not only makes it challenging to understand the goals being sought, but it also makes it difficult to translate these goals into practical plans and programs. The following paragraphs describe various approaches to access to justice from narrow to broad.

 

The narrowest conception of “access to justice” has its origins in liberal 18th and 19th century states, and refers to an individual’s formal right to litigate or defend. It encompasses the right to “hav[e] your day in court” (Mauro Cappelletti and Bryant Garth, eds, Access to Justice Volume 1: A World Survey, Book 1 (Aphenaandenrijn: Sijthoff and Noordhoff, 1978) [Cappelletti and Garth] at 6-7). While access to justice was considered a “natural right,” governments did not feel a positive obligation to protect this right through affirmative action programs (Capalletti and Garth, supra).

2. Advocacy for Those who Cannot Afford it

Starting in the 1960s, definitions of access to justice focused on “practicing law for poor people”. The goal was to provide legal representation to impoverished individuals who could not otherwise afford legal advice. It aimed to counteract the cost, delay and complexity of the legal system (Capalletti and Garth, supra). This concept of access to justice forms the foundation for today’s legal aid and poverty law clinics (Capalletti and Garth, supra).

In more recent times, the legal aid movement has been expanded to include access to legal advice for the middle-class. This is the current position of the Canadian Bar Association’s National Access to Justice Committee, which frames access to justice as “the ability of low and middle-class families to get the legal help or information they need” (Michael Dempster, “Justice for all”, Canadian Bar Association National: Legal Insights & Practice Trends 22:2 (March 2013) 12. Online: CBA National Magazine <http://nationalmagazine.ca> [Dempster]). While the CBA acknowledges the existence of some vectors of marginalization such as disability and Aboriginality, they are only considered as additional factors which can complicate matters if they happen to coincide with a low or middle-income situation.

3. Reforming the Justice System

A slightly broader definition of access to justice encompasses the need to advocate for people who cannot afford lawyers, but also focuses on the inadequacies and limitations of the legal aid system. This approach builds on the “legal aid” model by calling for reforms of the justice system by simplifying procedural and formal requirements and implementing mechanisms for group and third-party claims (Roderick A Macdonald, “Access to Justice in Canada Today” in Julia Bass,  WA Bogart and Frederick H Zemans, eds, Access to Justice for a new Century: The Way Forward (Toronto: Law Society of Upper Canada, 2005) [Macdonald] at 19). Generally, reforms in this conception of access to justice focus on the civil justice process (Macdonald, supra).

4. Equality of Outcomes

With the advent of the Canadian Charter of Rights and Freedoms in 1985, the idea of equality resulted in a shift towards a broader conception of access to justice (Macdonald, supra). This approach looks beyond equality of opportunity for underprivileged or underrepresented litigants. Instead, it aims to achieve equality of outcomes by addressing the barriers faced by those trying to access the judicial system (Macdonald, supra). Remedies include reforming and streamlining many areas of the legal system, as well as reforming other social institutions with the goal of creating a more holistic model of service.

This broader approaches argues that true access to justice must be considered in light of social variables which have historically had a negative impact on the ability of certain individuals or groups’ ability to access justice (Ab Currie, “The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians” (Ottawa: Department of Justice Canada, 2007) [Currie]). Such variables include Aboriginality, racialization, gender, disability, class and sexual identity.  There is also an increased focus on providing resources toward serving the public at the early stages of a problem (Currie, supra).

This approach encompasses elements from the other approaches, including the use of simplified court procedures, alternative dispute resolution and other preventative measures in an effort to solve legal problems before they get to a litigation stage (Dempster, supra). These views have also been echoed very recently in four working group reports of the Action Committee on Access to Justice in Civil and Family Matters published in 2012-2013 (see more information on the website here). 

5. The Future of Access to Justice?

Where is the concept of “access to justice” headed next? Critics of current access to justice initiatives have called for societal change beyond the legal realm, by encouraging the justice system to develop partnerships with communities and governments to develop more holistic solutions to legal problems (Macdonald, supra)

Some commentary points to the need to move away from court-centric and lawyer-centric approaches, toward a more client-centric approach which focuses on solving the problems of community members in their daily lives (Macdonald, supra). This requires access to justice research to shift its focus away from asking how lawyers can provide more services to the public, towards reaching a better understanding of what the law means and does not mean in the context of problems in everyday people’s lives (Bryant G Garth, “Comment: A revival of access to justice research?” in Rebecca Sandefur, ed, Sociology of Crime Law and Deviance, Volume 12 (Bradford, GBR: Emerald Group Publishing Ltd, 2009) at 258).

Other critics argue that individuals should be allowed to have a say in what kind of justice they wish to have (e.g. restorative justice) (Ab Currie, “Riding the Third Wave: Rethinking Criminal Legal Aid within an Access to Justice Framework” (Ottawa: Department of Justice Canada – Research and Statistics Division, 2003). and that the high cost of attending law school has the effect of forcing young lawyers to avoid opportunities to advocate for marginalized peoples because of pressures to find high-paying jobs to pay down their education debt (Omar Ha-Redeye, “Access to Justice Starts with Legal Tuition” Slaw.ca (5 May 2013).

Annotated Bibliography

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