Access to justice issues are pervasive

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PEOPLE WAITING FOR JUSTICE.
PEOPLE WAITING FOR JUSTICE.

There has been substantial discussion about access to justice issues in the past several years. The inability of the most vulnerable in our society to utilize the legal system has been addressed through reforms to the legal system, the availability of pro bono services and clinics, and Legal Aid initiatives or programs. However, most of these discussions and reforms have been on the topics of family, civil, and criminal law matters… but what about the other areas of law? Are they so accessible that they need not be addressed?

The Canadian Bar Association (CBA) Access to Justice Committee’s mandate states their objective as:

“[to] improve and promote access to justice for the poor and middle class in Canada. Within the framework of policies adopted by Council, the Committee stresses government responsibility for a publicly funded legal aid system as the essential foundation, promotes pro bono service in the legal profession and supports innovative delivery options for legal services, as a supplement to (but not a substitute for) a publicly funded legal aid system [emphasis added].”

The concern I have is the ability of not only poor or middle class individuals from accessing justice, but also small businesses, entrepreneurs, recent immigrants, and the like. Access to justice arguments are not limited to the family and criminal areas of law. Arguably there are access to justice issues in employment law matters, where the imbalance in finances prevents an employee from adequately defending his or her rights. Similarly, smaller businesses cannot access legal services to defend their trademarks or intellectual property against corporate giants. The poor or middle class person cannot afford to engage in human rights litigation (lengthy processes and cost concerns). The length of litigation and legal fees involved in litigation are a concern in near all areas of law as well. The point I am trying to make is that issues of access to justice are pervasive throughout the legal system as a whole, and limiting such discussion to civil, criminal and family law is a gross understatement of the problem.

The CBA has recognized some of these concerns with access to non-criminal law matters. However, the CBA has also recognized access to justice as a legal crisis in Canada. I wholeheartedly agree with this position. The increase in self-representation within the legal system alone supports this position. The question is what can be done?

Balancing the scales

Unfortunately, as a law student, I do not have the ultimate solution to the pervasive issues of access to justice. I do not propose that I can do any better than entities such as Legal Aid or CBA (who are doing everything they can in my opinion), but the CBA’s Equal Justice Project is a step in the right direction. I would be skeptical of the effectiveness of a national standard as suggested by the CBA, but there is no question that access to justice issues are the core of today’s issues with the Canadian legal system. My concern is that the discussion has galvanized towards areas of civil, family and criminal law.

The focus on the poor or middle class persons in civil, family and criminal law has limited the scope of the discussion and resulted in an understatement of the problem. Recognition of the broader systemic issue here would allow the legal community to develop a better and perhaps more inclusive model of access to justice in the legal system. Considering the goals of access to justice initiatives are to “supplement and not substitute,” a tax law subsidy for legal fees may address the problem. Perhaps an overhaul of the system as a whole is required… but all I know is that “the price of justice should not be so dear“.

Note: This is not meant to be an exhaustive explanation, and readers are assumed to have a basic knowledge of the law being discussed. Visit my website for some background information regarding passing off should you be curious to learning more.

Stay tuned for more at my BLAWG at www.paulblawg.com and follow me on Twitter @PaulG_Law

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Paul Gill

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