Access to Justice: Highs and Lows of Pro Bono Week

By Thomas Cromwell

The last week of October is Pro Bono Week, a global celebration of the pro bono ethic in our profession. Across Canada and around the world, thousands of legal professionals provide their services without cost for the public good. In Canada, where there is a wide and growing gap between the need for legal services and people’s ability to gain access to them, pro bono is a part of the effort necessary to fill that gap.

We entered Pro Bono Week on a wave of optimism and achievement generated by the Seventh National Pro Bono Conference held in Vancouver on Oct. 4 and 5. The packed agenda included presentations by the chief justice of Canada, the chief justice of British Columbia, the attorney general of British Columbia and the president of the American College of Trial Lawyers.

The message from the top was clear: pro bono work by lawyers is part of our professional responsibility and its importance to the welfare of our community cannot be overstated. The large attendance at the conference and the lively engagement evident in all of the sessions generated optimism and enthusiasm.

While we can and must do more, there is much to celebrate.

But not all of the news about pro bono is good. Pro Bono Ontario (PBO) has indicated that in December it will have to close its court-based programs — two in Toronto and one in Ottawa — for want of funding for the administrative support essential to running these programs. PBO says that each year, volunteer lawyers help more than 18,000 clients in the civil, non-family justice system and, at the same time, reduce delays in the courts’ handling of these matters. An evaluation of the programs concluded that they provided a 10:1 return on investment. In other words, the public purse saved $10 for every dollar in funding. But that is apparently not enough to persuade potential funders to inject the modest resources needed to assure that these programs continue.

David W. Scott, one of the “parents” of these programs, has for many years spent a morning each month at the Law Help Centre at the Ottawa courthouse. He told me that during his October shift, he saw five people:

  • a single mother who is being pursued by a government department for support payments;
  • a friend of an Arabic woman who speaks no English who is defending herself from a landlord’s claim for rent;
  • a young man on parole who was the victim of a fraudulent claim when he was incarcerated;
  • a young mother who was being sued for return of employment insurance; and
  • a woman being sued for alleged non-payment of taxes.

Through the court-based program, David was able to provide modest but critical help. The closure of the Law Help Centre will mean that people like those who David saw — people in their thousands — will be left to their own devices. The need for these services is obvious and compelling.

The willingness of legal professionals to provide these pro bono services has been demonstrated. The business case for doing so seems unanswerable. But even this is not enough to save these programs.

Scott says that he is heartbroken. The rest of us should be ashamed. Who can seriously contend that we cannot find the modest resources needed to maintain these valuable services? If we wanted to, we would.

 

This article originally appeared on The Lawyer’s Daily on November 5, 2018. It is the twelfth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

‘Justice is just as important as health or education’ – UK Survey

A new survey in England and Wales reveals that the public agrees that ‘justice is just as important as health or education’. The far-reaching survey, which was commissioned by the Law Society, the Bar Council and the Chartered Institute of Legal Executives has a number of other, important findings, including:

  • a majority (76%) agree that people on low incomes should be able to get free legal advice
  • for all types of legal problems canvassed in the survey, 50% of respondents or more indicated that they would feel ‘uncomfortable’ dealing with the problem without a lawyer
  • 13% agreed that ‘the state should not have to pay for people’s legal expenses if they are accused of an offence that could earn jail time’

Findings from this survey are discussed in the press release, published on the Bar Council website here: https://www.barcouncil.org.uk/media-centre/news-and-press-releases/2018/october/justice-as-important-as-education-and-health,-say-public/. 2,086 people responded to the survey which was carried out from 28-30 September 2018. Results were weighted to be representative of the distribution of the population.

The survey and what it reveals about the public’s views about access to justice in the UK will be a central theme during Justice Week, which runs from 29 October to 2 November 2018.

Access to Justice Week Begins Soon in Saskatchewan and Ontario

Saskatchewan’s second annual Access to Justice Week will run from October 20 – 26, 2018. The week will include discussions and activities that will engage different actors in the access to justice conversation as well as highlight projects and programs that aim to improve access to justice for all Saskatchewan residents. The week-long events will build on themes from the University of Saskatchewan College of Law’s 2017 Dean’s Forum on Access to Justice and Dispute Resolution and will include:

  • Legal information, Legal Advice, and Access to Justice; and
  • Expanding Engagement: Creating Connections

Learn more about Access to Justice Week in Saskatchewan here: https://law.usask.ca/createjustice/saskatchewan-access-to-justice-week.php. For a list of events scheduled for the 2018 Saskatchewan Access to Justice Week, visit: https://law.usask.ca/createjustice/A2J2018-AtAGlance.pdf.


Monday, October 22, 2018 marks the start of the third annual Access to Justice Week in Ontario, hosted by The Action Group on Access to Justice (TAG). The week will include a range of sessions including:

  • Mental Health – Access and Ethics
  • Indigenous Language Speakers and the Canadian Justice System
  • Addressing the Access to Legal Representation Gap in Family Law; and
  • Justice, Innovation and Community

Visit the TAG Access to Justice Week webpage for information on the sessions and to register to attend events by webcast or in person: https://theactiongroup.ca/access-to-justice-week/.

Canadian Forum on Civil Justice Publishes New Cost of Justice Reports

The Canadian Forum on Civil Justice (CFCJ) has published three new reports based on data from their national Everyday Legal Problems and the Cost of Justice in Canada study.

EVERYDAY LEGAL PROBLEMS AND THE COST OF JUSTICE IN CANADA – SURVEY DATA

The full data set from the CFCJ’s Everyday Legal Problems and Cost of Justice of Justice in Canada survey is now available! As part of the CFCJ’s national 7-year study on the Cost of Justice, over 3,000 adults in Canada were asked about their experiences with civil and family justice problems, the costs (monetary and non-monetary) of experiencing one or more civil or family justice problems and their views on the justice system.

The data from this national Cost of Justice survey has been published and is available on the CFCJ website here: http://cfcj-fcjc.org/wp-content/uploads/Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada-Cost-of-Justice-Survey-Data.pdf.


EVERYDAY LEGAL PROBLEMS AND THE COST OF JUSTICE IN CANADA – INCOME

Is there a connection between annual household income and experiences of civil or family justice problems in Canada? A new Cost of Justice report is now available that includes data from the CFCJ’s national Cost of Justice survey organized into three annual income groups: Less than $60,000, $60,000 – $125,000, and More than $125,000.

View the Everyday Legal Problems and the Cost of Justice in Canada – Income report on the CFCJ website here: http://cfcj-fcjc.org/wp-content/uploads/INCOME-Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada.pdf.


EVERYDAY LEGAL PROBLEMS AND THE COST OF JUSTICE IN CANADA – SPENDING ON EVERYDAY LEGAL PROBLEMS

Almost 50% of people who experience an everyday legal problem spend some money trying to resolve their problem. Based on findings from the CFCJ’s national Cost of Justice study, average spending on legal problems is approximately $6,100. That is almost as much as Canadian households spend on food in a year. The newly published Everyday Legal Problems and the Cost of Justice in Canada – Spending on Everyday Legal Problems report offers additional insights on monetary spending on civil and family justice problems based on demographic characteristics recorded in the CFCJ’s Cost of Justice survey, as well as pathways used to try to resolve legal problems.

This new Cost of Justice report is available on the CFCJ website here: www.cfcj-fcjc.org/wp-content/uploads/SPENDING-Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada.pdf.

UVic Access to Justice Centre for Excellence Launches Newsletter

The University of Victoria Access to Justice Centre for Excellence (UVic ACE) has launched a newsletter!

NEWSLINKS is a new UVic ACE publication that collates recent news and information from the media, the courts, government and the academy that will be of interest to people working to advance access to justice in British Columbia and elsewhere. The first issue of NEWSLINKS includes coming events, links to recent articles on A2J and Legal Education, A2J and Legal Practice and A2J and Self-Represented Litigants, as well as links to recent research and reports on access to justice.

To view the first issue of NEWSLINKS, click here: UVic ACE NEWSLINKS Issue 1. To subscribe to NEWSLINKS, visit: www.uvicace.com.

BC to Hold its First Access to Justice Week

British Columbia will be holding its inaugural Access to Justice Week from September 29 to October 5, 2018. The week’s events have been organized and are being led by the province’s three law schools – Allard Law School at the University of British Columbia, Thompson Rivers University Faculty of Law, and the University of Victoria Faculty of Law.  BC’s A2J Week will include:

  • Tech events
    This will include a weekend hackathon, as well as a panel on artificial initelligence (AI) innovation and the justice sector.
  • Law school events
    Events to be held at BC’s three law schools include a presentation on “What would A2J look like for victims of sexual violence?” and a panel on “Lawyering with Heart: Violence informed and solution-focused lawyering for Indigenous youth and families”. The 7th Annual National Pro Bono Conference in Vancouver on October 4 – 5, which will coincide with BC’s A2J Week, will bring together lawyers, paralegals, law students, judges and other stakeholders to discuss ideas and best practices for increasing access to justice.
  • Victoria events
    Students at the University of Victoria Faculty of Law will be holding an Access to Justice Fair to share information on opportunities to increase A2J. Later in the week, there will also be a presentation by Dr. Julie Macfarlane on the challenges that self-represented litigants face.
  • Kamloops events
    Thompson Rivers University (TRU) law school students and staff from the TRU Community Legal Clinic will be offering information and intake referrals at the Farmers’ Market on September 29. The Community Legal Clinic will also be offering information (and free coffee)  later in the week and Dr. Macfarlane will speak to law students and to members of the legal community on October 3. There will also be a talk on legal tech and access to justice as well as activities to teach attendees about the challenges of self-representation.

For more information on BC’s inaugural Access to Justice Week, visit: www.provincialcourt.bc.ca/enews/enews-18-09-2018.

International research project seeks to scale access to community-based justice

The Canadian Forum on Civil Justice (CFCJ), located at Osgoode Hall Law School, is joining forces with researchers in Kenya, Sierra Leone and South Africa to build a business case for scaling community-based justice services.

Funded by the International Development Research Centre (IDRC), the Community-Based Justice Research (CBJR) project is a newly-launched, collaborative research initiative that aims to advance collective understanding of the costs, opportunities, and challenges of community-based justice programs. In doing so, this project will play a significant role in supporting the improvement of access to justice at the community level.

This project speaks directly to Goal 16.3 of the UN Sustainable Development Goals (SDG) which requires countries to ensure equal access to justice for all of their citizens. Community-oriented justice services fill gaps in the delivery of legal services in many otherwise underserved areas; they facilitate early legal problem resolution, and they empower individuals to engage in society to protect their legal rights. By helping to provide the evidence needed to understand, assess and scale these types of access to justice programs, this project will help countries to better develop and deliver justice to their communities.

The Community-Based Justice Research project is planned in close collaboration with the IDRC, the Katiba Institute in Kenya, the Center for Alternative Policy Research and Innovation (CAPRI) in Sierra Leone and the Centre for Community Justice and Development (CCJD) in South Africa with support from Open Society Foundations (OSF), and will incorporate research methodologies and learnings from the CFCJ’s own 7-year (2011-2018) national, people-centered research project on “The Cost of Justice”.

The press release for the Community-Based Justice Research project is available on the CFCJ website here: http://cfcj-fcjc.org/wp-content/uploads/Press-Release-CFCJ-CBJR-International-Research-Initiative-Seeks-to-Scale-Access-to-Community-Justice.pdf.

To learn more, please also visit the Community-Based Justice Research project page here: http://cfcj-fcjc.org/our-projects/community-based-justice-research-cbjr/.

New Report looks at Judges’ Views on Children’s Participation in Justice Processes

The Canadian Research Institute for Law and the Family (CRILF) has published the final report on their 2017 national symposium on children’s participation in justice processes.

Children’s Participation in Justice Processes: Survey of Justices on Alberta’s Court of Queen’s Bench presents the results of a survey of justices on Alberta’s Court of Queen’s Bench. The survey aimed to obtain judges’ opinions on the importance of obtaining children’s views in court proceedings which affect them, the best ways of obtaining those views, and the extent to which judges have had experience soliciting the views of children. The study concludes with a number of recommendations for hearing children’s views.

Children’s Participation in Justice Processes: Survey of Justices on Alberta’s Court of Queen’s Bench is available online here: http://www.crilf.ca/Documents/ABQB_Justices%20Survey_Child_Participation_-_August_2018.pdf.

New Report Examines Alberta’s Mandatory Early Intervention Case Conferencing Pilot Project

The early intervention case conferences (EICCs) is a pilot project that was implemented by Alberta’s Court of Queen’s Bench in September, 2017 in an effort to address the increasing delays until family law cases can be tried, increasing numbers of litigants without counsel, and the short complement of the bench relative to the province’s population.

The Canadian Research Institute for Law and the Family (CRILF) recently conducted an evaluation of the EICC in order to determine if the Early Intervention Case Conference project is meeting its stated goals. The evaluation provides insights into what is working and what could be improved in the pilot project, and explores whether the project should be implemented as a permanent part of the family law litigation process in the Court of Queen’s Bench.

An Evaluation of Alberta’s Mandatary Early Intervention Case Conference Pilot Project final report is available online here: http://www.crilf.ca/Documents/EICC_Evaluation_-_August_2018.pdf.

Access to Justice: How it’s looking on the ground

by Thomas Cromwell

West Coast LEAF is a legal advocacy group whose mandate is to use the law to create an equal and just society for all women and people who experience gender-based discrimination. In other words, it is an organization dedicated to access to justice writ large. I was able to speak to Zahra Jimale, West Coast LEAF’s Director of Law Reform about its work, her conception of access to justice and, most importantly, how successful we’ve been in improving access to justice on the ground. Here is what she told me.
 
TC: Tell me about your role at West Coast Leaf

ZJ: In collaboration with the community, West Coast LEAF uses litigation, law reform, and public legal education to make change. We do our work in six focus areas: access to healthcare; access to justice; economic security; freedom from gender-based violence; justice for those who are criminalized; and the right to parent. As the Director of Law Reform, I provide leadership, strategic planning and project management with respect to policy and law reform in all of the six focus areas. I work with our team to develop the organization’s position statements and recommendations on implementation and reform of policy and law. I bring to this role my experience of founding and operating an independent family law practice where I provided a variety of family law services, including unbundled legal services, legal coaching, collaborative divorce, and mediation.

TC: What do you perceive as the biggest access to justice gap?

ZJ: There is a significant gap between what the public expects of the justice system and what the justice system delivers and is currently capable of delivering.

There is lack of deeper understanding of what it means to truly access justice; that justice is not simply achieved by accessing, but by obtaining just outcomes in an efficient and cost effective manner, regardless of the type of dispute resolution process that is pursued, be it court or alternative dispute resolution processes; that meaningful access to justice requires recognizing and dismantling the various barriers faced by many, and in particular, that there are intersecting barriers faced by certain populations because of historical and/or current systemic challenges. The complexity of the system, long delays, lack of access to affordable and timely legal advice and representation, and lack of adequately funded legal aid system continue to widen the gap.

An urgent systemic change is required to reduce these barriers and an immediate action must be taken to address the growing access to justice crisis, especially in family law. Where individuals are unable to access lawyers due to prohibitive costs and lack of public service, they are left with no choice but to either forego rights and interests, including the protection of their children’s rights and interests, or represent themselves without appropriate legal advice and/or representation. This is why West Coast LEAF and a team of pro bono counsel is representing the Single Mothers’ Alliance and an individual plaintiff in an ongoing constitutional claim against the B.C. government and the Legal Services Society for failing to provide adequate family law services, in particular to women fleeing violent relationships.

Zahra Jimale

TC: There is a lot of talk about the access to justice problem, but do you see signs of improvement on the ground?

ZJ: Unfortunately, we are far from seeing meaningful access to justice. Although there has been a lot of talk and some action, particularly in diverting disputants away from the court system and litigation generally, the justice system remains inaccessible to those that need it most. The barriers to accessing justice and the significant adverse consequences, including safety concerns for those fleeing violent relationships, are ongoing. Even though nearly half of Canadians over the age of 18 experience at least one civil or family law problem over any given three-year period, justice system funding continues to be woefully inadequate.

TC: If you could do any one thing to improve access to justice, what would you do and why?
 
ZJ: I would change the way we perceive access to justice. I believe once we recognize access to justice as a human right that is fundamental to the protection and promotion of the rule of law, we will then be forced to take the necessary action to ensure that it is meaningful and protected. This includes increasing the public’s knowledge of the justice system and how to manage and resolve legal problems; making available cost effective and appropriate avenues for resolution; providing meaningful access to resources and services; ensuring adequate funding of legal aid; and maintaining appropriate judicial complements and effectively functioning courts.

This article originally appeared on The Lawyer’s Daily on August 13, 2018. It is the eleventh article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.