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OPINION
Access to justice issues are pervasive
PAUL GILL
Contributor
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.
Pi c tu r e d : p e o p l e w a itin g . F o r justi c e .
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.
THUMBS UP to. . .
Layout Editors Heather Pringle, Marie Park, and Devin Santos for their endless
hours spent implementing change notes from their impossible Editors-in-Chief.
The Obiter Dicta
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