The Power of Perspectives

The Canadian Bar Association

Beverley Spencer

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Access to justice: Moving forward

By Beverley Spencer April 30, 2013 30 April 2013

So what's next?

The Envisioning Equal Justice summit ended Saturday in Vancouver with a summary of what lies ahead for the CBA's National Standing Committee on Access to Justice: consolidating comments from attendees (due May 15) into a report of findings and recommendations that will be presented in August to the Canadian Legal Conference in Saskatoon.

But everybody in the room understood that isn't enough. As committee co-chair John Simms said, the goal is not to write a report; an idea is not an innovation. There's a real need to create the urgency for widespread reform and change the dialogue on access to justice.

Not an easy task. There are many problems with the existing system. Legal aid funding is an issue as the prevailing political winds blow in the direction of austerity, not just in Canada but around the world. Eligibility requirements shut out many of our lowest earners: for example, as Karen Hudson, executive director of the Nova Scotia Legal Aid Commission pointed out, in her province, a full-time worker who gets minimum wage at Tim Hortons makes too much money to qualify for assistance.

But the problems do not simply lie within the system. A cultural divide exists that keeps people from accessing justice just as surely as funding cutbacks do. And that divide is between the people who are part of the system -- judges, lawyers, court administrators -- and the most marginalized members of our society. It is based on language and education barriers and a fear of authorities that is rooted in culture and experience.

Solving the funding issues will require, among other things, helping the public understand the value of legal aid: in fact, the point needs to be made that underfunding legal aid is a false economy, Hudson said, pointing to research out of Texas that shows every dollar invested in legal aid will generate $7.42 for the economy.

Bridging the cultural divide could mean bringing in trusted community groups to act as links between individuals and the legal system, much in the same way that groups that help abused women did, said Patricia Hughes, executive director of the Law Commission of Ontario. That approach would help, but still requires training and access to resources.

The sheer scope of the work ahead can seem daunting. But Melina Buckley left the attendees with a ray of hope and a personal plan for action.

"Think systemically and act locally," she urged attendees. "Every time people come into contact with people in system, it's an opportunity to empower them; reinforce inequality or create equality. "I hope you use every moment to do the latter and not the former." It's a start -- a big one.

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Law schools and access to justice

By Beverley Spencer April 27, 2013 27 April 2013

They're resourceful, innovative, caring and not bound by convention and the status quo. So why are law students not a bigger part of the access to justice solution?
 
It's a combination of reasons: there's practical limits on what they can; not enough lawyers willing to supervise them; concerns about quality and some resistance from law schools to adding practical training to the curriculum, according to participants in a Saturday morning panel during the Envisioning Equal Justice summit.
 
Law students want to get involved: Pro Bono Students Canada will place 1,600 law students in 450 partner organizations by the end of this year, providing 140,000 hours of free legal services, said executive director Nikki Gershbain. On the other hand, 700 law students were turned away from the program last year due to a lack of resources; that's 56,000 hours of lost services.
 
Building more opportunities for experience into the curriculum is one way to tap that potential: one U.S. law school has turned third year into experiential learning. Another solution is to build practical experience into individual courses, for example by having a practitioner teach students how to draft a will during wills and estates class then having the students prepare wills for low-income clients.
 
But law schools are reluctant to try it, said Doug Ferguson, president of the Association for Canadian Clinical Legal Education and director of community legal services at the University of Western Ontario. Teaching practical skills is not considered as important as teaching substantive law, he said, noting that many faculty have little experience in private practice. Only pressure from external sources such as the Federation of Law Societies and the private bar will lead to change, he believes.
 
The upside? The practice and clients would be provided with more competent lawyers who are more aware of their responsibility to provide access to justice to the less fortunate, he said.
 
 
 
 

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Plenty of great ideas

By Beverley Spencer April 27, 2013 27 April 2013



At the Equal Justice Summit Justice Thomas Cromwell asks why, after decades of great ideas, has there been so little progress on A2J?

He offers a few answers: For one, there is no widespread belief that there is an urgent need for change. There's a shared commitment in the room, but it's not clear how far beyond it that extends. Other obstacles:
• There is no "CEO" of the justice system; in other words, there is no formal mechanism to lead change. Ways must be found to create coalitions that can build more co-ordinated approach or "ways for the top and bottom to work together for change";
• No one can meet the challenges alone;
• Problems must be defined and solutions must be found to specific problems. The independence of the Bar and judiciary must be respected, but the conversation shouldn't start there: you start by identifying problems;
• A collaborative approach is required among different sectors.

His advice:
• Don't be paralyzed by the size of the problem: improved access to justice needs champions and no effort is too small. "We're good at telling everybody else what they should be doing; we should be more inward-looking: "What can I do?";
• Ask whether the focus is on the needs of people using the system or simply outcomes -- both are needed. Processes get engaged that are out of proportion to what is at stake;
• More metrics are required, but opponents of change often use the need for more data as an excuse for not doing anything.

There's more engagement with this issue than at any time in this generation, he said. "Let's not blow it."

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Should there be a national "justice care" system in Canada?

By Beverley Spencer April 27, 2013 27 April 2013

Alex Himelfarb, director of the Glendon School of Public and International Affairs and former Clerk of the Privy Council and Secretary to the Cabinet and Sharon Matthews Q.C. of Camp Fiorante Matthews Mogerman squared off on this issue during the Envisioning Equal Justice summit on Friday. Himelfarb argued for the affirmative and Matthews for the opposing view. Here's a summary of that debate:

Alex Himelfarb:
There's a lot of consensus that the system isn't working and substantial agreement that a national justice care system is a noble idea. People who fight for access to justice understand that the notion of equality loses meaning when access is arbitrary and Charter rights become empty if people lack the tools to make those rights meaningful. Furthermore, the social, human and economic costs of the disparity in access is huge in termed of busted lives, broken families and lost opportunities.

(More after the jump)

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Making the case for more funding for legal aid

By Beverley Spencer April 27, 2013 27 April 2013

When do you ask for more pie?

When it comes to funding the justice system, there is lots of talk about making the pieces bigger or adding new ones. But when do you say, enough is enough: we need a bigger pie?

Chicago lawyer Steven Grumm, during Friday's closing session at the Envisioning Equal Justice summit, taked about the culture of martyrdom in the legal aid community. Indeed legal aid lawyers have become masters of adapting instead of railing against shrinking funding and pointing out there is a constitutional obligation to provide some baseline of support to people on the margins. (More after the jump)

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