The Power of Perspectives

The Canadian Bar Association

Beverley Spencer


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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Why a community approach to access to justice is needed

By Beverley Spencer April 26, 2013 26 April 2013

Maria Campbell's first encounter with the justice system is seared into her memory.

When she was a 6-year-old living in an isolated trapping community in northern Saskatchewan, a young RCMP officer bribed her with an O'Henry bar to tell him where her father kept his meat. He spent six months in jail; the meat intended to feed the community for the winter was confiscated, and she and her pregnant mother were left to snare rabbits in the bush to feed themselves and the rest of the family until her father came home.

She is a Metis elder, a community advocate and activist, a professor and a film-maker; a self-described "privileged" individual who flatly admits to still having a great fear of police and the justice system. Her message to the opening plenary of CBA's Envisioning Equal Justice summit was twofold: Changing the system requires involving the community and recognizing what it can contribute to the discussion. It also means taking a holistic approach to change that involves looking at the challenges people face: "It doesn't matter how good judges and lawyers are if you don't have enough money to feed your kids and you have to sleep in your car in winter."

Reciprocity has to be at the heart of these efforts, Campbell says. She objects to the use of the word "marginalized" to describe communities seeking access to justice. Using that language creates barriers between people and makes those seeking help feel powerless. Both sides have things to share; for example, she said, at a Saskatoon legal clinic, law students and community members are brought together to educate one another. "Reciprocity has to be the essence of what we do; if I'm always taking that doesn't empower me. We can teach each other all kinds of things."

She also noted that she was the only community representative at the summit, suggesting future discussions would benefit from more community involvement.

Advocates also have to understand that the conditions of poverty are worsening. She see different types of poverty emerging: young couples with children who would have been middle class 20 years ago are now homeless. In one case she knows, one partner makes minimum wage, the other slightly more, and they can keep their children fed, clothed and in school, but can't afford rent.

The situation in 40 years "won't be pretty" if these issues aren't addressed, she said.

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