Policy Proposal: Ensuring Access to Justice
Public Policy Intern
November 2016- June 2017
Aàron is a Law student based in Montreal, originally from El Salvador. He loves to travel and enjoys conversations with people from all around the world with different positive ideas. With an interest in security, particularly in Latin America and the Middle East, Aàron believes the law will lead to improved and sustainable ways of solving global security issues.
In Canada, juridical help is allowed to people making very low income (less than 20 000 $/year). Which means that middle class and lower middle class cannot get the same advantages as poorer families, and can’t get proper representation like richer families. Therefore, ordinary citizens are not aware of their rights or laws regulating their day to day lives and they can’t have proper access to justice with legal representation because of high rates from lawyers and the legal system (courts, judges, etc. - the average cost in Canada for a 2 day trial was over 30 000$). Furthermore, these individuals have to put up with long period of times before there is a decision taken on a case, and there is a general lack of trust in the justice system and actors within it (lawyers, judges, etc.). In 2013, Chief Justice McLachlin, of the Supreme Court, said ’’options are grim: use up family assets, become their own lawyers, or give up’’, summing up the options for Canada’s middle class.
Here are three policies ensuring that free access to justice would only increase the efficiency of the legal system, while opening up doors to the middle class, not only the poorest or the richest for legal representation. These policies are part of a longterm strategy to reach a complete gratuity of accessibility to justice.
1) Education. A reform of the education system to include classes of law for primary and secondary cycles in Canadian education system would be highly beneficial for accessibility to justice. The education system has proven to fall short on educating younger generations about law and its power. Not having classes about how society functions and what is one’s right is counter-productive. One of the problems of the legal system is the time it takes to arrive to a legal conclusion because of low efficiency and productivity from ordinary citizens representing themselves without knowing procedures in a legal battle. These people choose to not be represented by lawyers because of the high fares. The goal being free accessibility to justice, given as a service from the government, it could join our public education programs. Education reform is a long process, so we would only start with educative classes on law and justice in schools. The goal would be to teach younger generations about law, which is a glaring void in today’s system. These classes could be applied in teacher’s curriculum for the school year. A simpler way would be to have a lawyer go to primary and secondary schools to teach children about their rights and the law in general during lunch hour once a week. The risk with such initiative is that legal professionals would not be willing to work as ‘’legal educators’’ because it is not what they’ve studied to become or because teaching the new generation about law would mean less business in the long run because these kids would grow into knowledgeable adults on their rights and laws. Going towards free accessibility to justice also means that lawyers would have a larger role as educators too, to include them in the legal reform.
2) Workshops in the private sector. Not only are kids not growing up with schooling on their rights and the legal system, but adults are living their lives without having an idea of how their lives are regulated. Law is in all spheres of life and it becomes a problem when people are in conflict with bigger entities (workplace, companies over a contract, even the government itself), because they do not have the means or the knowledge to go into a legal conflict with those. Therefore, entering the private sector with perpetual educative workshops on labour law, contractual law, property law, etc. would be a good step towards free accessibility to justice. Such workshops would be given by young jurists under the supervision of the Bar. This should be a step the government should take and be financially responsible for the project. If not, labour unions could offer the service to who they represent, spreading knowledge and power to the working force and the middle class. Having such workshops for targeted problems (such as labour relations with employers) would only serve the legal system, making it more efficient and people would have tools to fight against bigger organisations. The risk associated with such a policy is the reaction bigger entities like companies and employers would take to prevent workshops in their institutions, and the power they hold in financial and civil society. The risk is there, but a company cannot take rash actions against fundamental rights of their employees (constitutional and business law) and this program should be sold to them as a way to have a more efficient and productive relationship while engaging itself to social causes such as free accessibility to justice, they would even engage into these workshops to assure efficient legal conflict resolution.
3) Alternative justice. The new code of civil procedure of Quebec (since January 2016) requires the parties to consider private prevention and resolution processes before referring their dispute to the courts (art.1 CCP). It is not mandatory, but it can help the legal system with reducing the waiting time in courts. Such avenues are faster but not always cheaper than going with a lawyer, so the middle class is still unable to go through these practices (like mediation, negotiation, arbitration, etc.). A fully paid legal aid to those cases is the ultimate goal for civil society and the government in search of efficiency. By promoting these alternative ways to justice in universities and organizing simulation of mediation and negotiation in the academic and work sector, the interest for such measures would rise. The risks with this policy are two-folded. First, lawyers and judges could find themselves with less work if other alternative ways to justice are put forth by the government because of obvious advantages (less time to get to a conclusion, more personal experience for the parties, not paying same high rates than for lawyers). Second, there would be no control over the profession for moderator or negotiator. These risks need to be tackled with an inclusive strategy of the judicial system if, in the long term, the government turns its justice towards alternative ways to justice to inject efficiency and accessibility to our legal system. Inclusivity would mean to have lawyers learn how to mediate and negotiate through their academic and professional training, and having the legal community overseeing the shift towards the mix between alternative justice and the one we have today.
We believe a free accessibility to justice should be a public service provided by the government to reduce legal inequalities in the population. Changing the justice system in a country takes a long time and mostly sustained political will, therefore, these three policies are available right now to go towards accessibility to justice.
Nikki Gershbain. Access to Justice: A Social Justice Issue. http://www.huffingtonpost.ca/nikki-gershbain/canadian-social-justice_b_9290224.html
The Canadian Bar Association. Equal Justice: Balancing the Scales. http://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/EqualJusticeFinalReport-eng.pdf
Global Pound Conference Blog. Chief Justice Sundaresh Menon on Mediation and the Rule of Law. https://blog.globalpoundconference.org/2017/05/09/mediation-and-the-rule-of-law/
Accès au Droit et à la Justice. http://adaj.ca/accueil#description
Jennifer Graham. Access to justice in Canada ‘abysmal’: CBA report. https://www.thestar.com/news/canada/2013/08/18/access_to_justice_in_canada_abysmal_cba_report.html