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.
 

Canadian Research Institute for Law and the Family Publishes Report on Canadian Legal Incubator Initiative

A recently published report by the Canadian Research Institute for Law and the Family (CRILF) examines the Aspire Legal Access Initiative (ALAI), a program based in Alberta that provides law school graduates with articles in family law and improves access to family law services for Calgarians. ALAI is modelled on legal incubator programs that have increased in popularity in the United States as a means to offer legal services to people who would not otherwise be able to access help. Similarly, through the ALAI program, Calgarians who earn too much to be eligible for legal aid but too little to afford private counsel receive legal assistance from law students and a senior lawyer. ALAI is the first legal incubator project in Canada and has been adapted to meet Canada’s article requirements.

The Evaluation of the Aspire Legal Access Initiative report outlines the satisfaction and opinions of clients, articled students and stakeholders from the legal community who accessed the program and also offers recommendations aimed at ensuring the program continues to operate as intended. An Evaluation of the Aspire Legal Access Initiative is available online here: http://www.crilf.ca/Documents/Aspire_Evaluation_-_July_2018.pdf.

Canadian Research Institute for Law and the Family Publishes Report on Summary Legal Advice Services

A recent “Summary Legal Advice Services in Alberta” report from the Canadian Research Institute for Law and the Family (CRILF) examines two years of data from almost 8,000 client surveys regarding summary legal advice received from community legal clinics in Alberta. The clinics that participated in the study are:

  • Calgary Legal Guidance
  • Edmonton Community Legal Centre
  • Central Alberta Community Legal Clinic (Red Deer)
  • Lethbridge Legal Guidance

Key findings from the report include:

  • 93% of clients were very comfortable or comfortable receiving legal advice in English
    • Of note: It was impossible to determine the number of potential clients who did not attend the clinics because they are uncomfortable receiving legal advice in English
  • Family law matters accounted for 46% of clients’ legal problems, followed by landlord-tenant disputes (14%) and immigration and sponsorship issues (9%); family law matters were most likely to a problem for clients aged 35 to 44
  • 90% of clients reported that they had a better understanding of their legal rights and responsibilities, their legal options and the pros and cons of those options, and what to do next as a result of attending the clinic
  • 40% of clients had 15 to 29 minutes with the clinic lawyer; 38% had 30 to 44 minutes
  • 90% of clients felt they had enough time with the clinic lawyer to talk; clients with appointments longer than 30 minutes were more likely to agree that they had a better understanding of their legal issue and what to do next than clients with shorter appointments
  • Almost two-thirds of clients received a written summary of the lawyer’s advice; those receiving a summary were more likely to agree that they understood their legal rights and responsibilities, their legal options and the pros and cons of those options, and what to do next
  • The number of clients receiving a written summary increased by 14% between the first and second years of the project
  • The majority of clients responding to a follow-up survey administered two months after clients’ appointments had made use of the advice they received
  • 63% of clients were women, 54% were between the ages of 25 and 44, 61% had completed or taken some post-secondary education and 40% were employed full- or part-time

The complete “Summary Legal Advice Services in Alberta: Survey Results from the First Two Years of Data Collection” report is available on the CRILF website here: http://www.crilf.ca/Documents/ALF_Clinic_Survey_Year_2_-_May_2018.pdf. This report was produced at the request of the Alberta Law Foundation.

 

The details in this post were taken from information circulated by the CRILF.

New Report Examines the Role of Assisted Digital Support Services for Civil Justice System Users in the UK

The recently published “Assisted Digital Support for Civil Justice System Users: Demand, Design, & Implementation” report offers insight into the use of ‘assisted digital support’ (ADS) to facilitate access to online civil justice services among low-income earners, the elderly, people living in social housing and people without degrees in the UK. The report indicates that ADS services, including face-to-face assistance and web chat can be useful for engaging people online. The report also recommends additional research into whether or to what extent ADS services are helpful for people without “legal capability”. Quoting the report, this article highlights the following: “That users undertake a range of activities online is not to say that they have the capability to undertake legal processes online”.

“Assisted Digital Support for Civil Justice System Users: Demand, Design, & Implementation” was prepared for the Civil Justice Council (UK) by Catrina Denvir, with the assistance of Reem Ayad, Nerissa Morales Cordoba, Mbeti Michuki, Adel Msolly and Annie Wood. The full report can be accessed here: https://www.judiciary.uk/wp-content/uploads/2018/06/cjc-report-on-assisted-digital-support.pdf.

Recently Published Research by The Law Foundation of Ontario Examines the Role of Intermediaries in Connecting Ontarians to Legal Information and Legal Help

The Law Foundation of Ontario has published new research on the role of community workers who help people with legal problems.  In many cases frontline workers, including settlement workers, parks and recreation staff, counsellors, nurses and librarians, among others, are the first (and only) resource that people go to for help with justiciable problems.  These intermediaries play an important role in identifying legal problems and connecting people with information and resources that can be helpful.

The final report from this research – Trusted Help: the role of community workers as trusted intermediaries who help people with legal problems – offers insight into the ways that trusted intermediaries provide help, including:

  •    Referring people to legal service providers
  •     Providing information about legal rights and procedures
  •     Identifying legal problems
  •     Helping people to take steps to resolve a legal problem
  •     Providing assistance to complete legal forms and documentation
  •     Accompanying people to tribunal or court hearings
  •     Accompanying people to meetings with legal service providers

Trusted Help: the role of community workers as trusted intermediaries who help people with legal problems was prepared by Karen Cohl, Julie Lassonde, Julie Mathews, Carol Lee Smith, and George Thomson for the Law Foundation of Ontario. An overview of this research is available in this Law Foundation of Ontario announcement: http://www.lawfoundation.on.ca/news/legal-help-on-the-frontlines/.

Learn more about the ways that trusted intermediaries help people access legal help and services as well as how to work with, support, and collaborate with trusted intermediaries from parts one and two of this Law Foundation of Ontario report available here: http://www.lawfoundation.on.ca/wp-content/uploads/LFO_TrustedHelpReport_Part1_EN.pdf and here: http://www.lawfoundation.on.ca/wp-content/uploads/LFO_TrustedHelpReport_Part2_EN.pdf.

Ces rapports sont disponibles en français ici : http://www.lawfoundation.on.ca/wp-content/uploads/LFO_FR_TrustedHelpReport_Part1.pdf et ici: http://www.lawfoundation.on.ca/wp-content/uploads/LFO_FR_TrustedHelpReport_Part2.pdf.

 

Final Report of the Bach Commission now Available

The Bach Commission on Access to Justice was created in 2015 to develop “realistic but radical proposals…for re-establishing the right to justice as a fundamental public entitlement” in England and Wales. Recent changes in funding and eligibility requirements for legal aid have placed even more strain to a justice system that is said to be in crisis. In response to what the Commission argues are “widespread” and “varied” problems in the legal system, their final report proposes a legally enforceable Right to Justice Act that will ultimately serve to “create a new legal framework that will…transform access to justice”.

The Right to Justice, the final report of the Bach Commission is available online here.

The Crisis in the Justice System in England and Wales, the Commission’s interim report published in November, 2016 is available online here.

Legal Aid Benchmarks

In 2014, a joint Working Group of the Canadian Bar Association (CBA) and the Association of Legal Aid Plans of Canada (ALAP) collaborated to formulate and propose national legal aid benchmarks for Canada. After much consultation and discussion, the national benchmarks have now been completed. These benchmarks are guiding principles to achieve the shared goal of a national, integrated system of public legal assistance focused on improving access to justice and meeting the needs of disadvantaged people across Canada. These 6 national legal aid benchmarks, under headings of an overall vision, scope of services, priorities for service, spectrum of service, quality of service and an integrated service delivery sector, capture current evidence about legal aid and define pathways for the future, are intended to provide a foundation for national indicators with common data measurement.

To explain these concepts further, the CBA has authored a separate report further elaborating on the rationale and potential of national benchmarks for Canada.

For more information or to provide feedback, contact equaljustice@cba.org.

—————————————————-

L’Association du barreau canadien (ABC) et l’Association des régimes d’aide juridique (ARAJ) ont collaboré pour formuler des normes nationales de services d’assistance juridique pour le Canada. Ces normes sont des principes directeurs visant l’atteinte de l’objectif commun d’un régime national et intégré de services d’assistance juridique publics axés sur l’amélioration de l’accès à la justice et sur la réponse aux besoins des personnes défavorisées au Canada. Les six normes – vision globale, portée des services, priorité des services, éventail des services, qualité des services et secteur de prestation de services intégrés – expriment des indices matériels actuels au sujet de l’assistance juridique et définissent des voies d’avenir. Elles procurent un fondement d’élaboration pour des indicateurs nationaux assortis de mesures communes de données.

Un rapport séparé de l’ABC, Un cadre national pour combler les besoins juridiques : Proposition de normes nationales de services d’assistance juridique publics, expose la raison d’être et le potentiel de ces normes nationales pour le Canada.

Pour obtenir de plus amples renseignements, veuillez communiquer avec L’ABC à justicepourtous@cba.org.

Rise Women’s Legal Centre Opens in Vancouver

A new access to justice initiative has opened in Vancouver: The Rise Women’s Legal Centre.

The Centre is a full service nonprofit law firm focused on family law, and is a partnership between West Coast LEAF and the University of British Columbia’s Allard School of Law.  It is the “first of its kind in BC and will focus on providing women with much-needed legal representation in family law and related areas”.

For more information visit: http://www.westcoastleaf.org/2016/05/24/rise-womens-legal-centre-open-today/.

The Cost of Justice in Canada: Overview Report, Methodology and Survey

The Canadian Forum on Civil Justice (CFCJ) has released several new publications from their Cost of Justice research project, which examines the cumulative social and economic costs associated with everyday legal problems. Stemming from this project are the following recent publications:

1)   “The Everyday Legal Problems and the Costs of Justice in Canada: Overview Report”

Gathering data from over 3,000 survey respondents, the Overview Report, available on the CFCJ website here, looks at the public’s experience with the justice system and the various costs (ex: monetary, physical and emotional) that it imposes.

2)   “Design And Conduct of the Cost of Justice Survey” 

This publication sets out the specific methodology used by the CFCJ research team to collate the survey data. The method of sampling, data collection, and data processing are discussed at length here.

3)   “Everyday Legal Problems and Cost of Justice: Survey” 

The Cost of Justice Survey was structured to determine the number of respondents who had experienced 84 specific legal problems. The 84 problems were grouped into 17 types, with a section of the survey being devoted to each type. The Survey can be accessed here.

4)   “Everyday Legal Problems and the Cost of Justice in Canada: Fact Sheet”

This (updated and revised) Fact Sheet summarizes some of the key findings arising out of the Overview Report. The Fact Sheet can be accessed here.

Eligibility, Legal Aid and Access to Justice

A recent article published on CBC News Canada states that “an ‘average’ 5-day civil trial cost $56k last year, beyond the reach of most average people”

Though provinces across Canada fund legal aid, the maximum yearly income that qualifies most Canadians for legal aid is so low that it excludes many who are in need of help.

In Middle-class injustice: Too wealthy for legal aid, too pinched for ‘average’ lawyers’ fees, Laura Fraser discusses legal aid, access to justice and the Canadian justice system. Read the article in full here.