Information is a basic element of access to justice, but it’s not enough to simply inform people about their rights or teach them how to navigate a confusing system.
First, people need to believe that the system is not biased against them, says Sarah McCoubrey, executive director of the Ontario Justice Education Network.
“They actually have to experience being treated fairly and understand that you don’t need to know someone in the system in order to get a fair resolution,” she says. “Those shifts in attitude and skills, the research shows, need to come before a long lecture about how you have rights, or ‘here’s the process,’ or ‘here’s the form you fill out’.”
According to the CBA report Reaching Equal Justice: An invitation to envision and act, 45 per cent of Canadians will encounter a legal problem over the next three years; in the course of a lifetime, most will have at least one legal issue. But many will not seek help because of perceived or actual barriers — including the cost of legal services.
That’s why one of the key strategies for increasing access identified in the report is “facilitating everyday justice” — among other things, improving legal capability by teaching law as a life skill. “The goal is to (ensure that) everyone develops basic legal capabilities as part of a public education curriculum and has a continuing opportunity to build on this base of knowledge and understanding throughout their lives,” the report says.
It’s important to do this at the school level, beforesomething important — a job, a house, or custody of the children — is at stake. “When you’re in a crisis, it’s actually not a good time to learn that you can trust people in the system,” says McCoubrey, who spoke on the need to teach law as a life skill at last year’s Envisioning Equal Justice summit in Vancouver. “When you’re in a crisis, you already have your back up and you’re suspicious of everything.”
Public legal education and information is available in every province, and many provincial school curricula include some legal instruction. But there is no national legal education program. As part of the goal of having five million Canadians receive legal capability training by 2030, the report suggests the CBA and Public Legal Education and Information Service (PLEI) organizations work with the Council of Ministers of Education, departments of education and other organizations to integrate law as a life skill courses in schools.
Contrary to the concerns of some practitioners, legal capability training is not about promoting self-representation. “I don’t think that’s the case at all,” McCoubrey says. “I actually think it’s encouraging people to go and get legal help and advice before their conflict becomes one of litigation.”
Legal health checks also were suggested as a way to facilitate everyday justice — sort of a legal physical to be carried out, if not annually, then at least at primary life junctures, such as marriage or divorce, when it’s good to have some direction.
Melina Buckley, former chair of the CBA’s Access to Justice Committee, says the idea came up during research about international innovations. The committee sees the checks as a way to address the underlying causes of recurring problems and deal with the issues without having to rely on the courts.
“The benefit of both these innovations is that they empower people to recognize potential and actual legal problems and to know about the paths to justice open to them. We are especially hopeful that these … approaches will assist people to avoid legal problems and conflict at important life transitions.”
Lawyers benefit when the emphasis is put on preventative legal medicine, says Manitoba’s Sarah Lugtig, vice-chair of the CBA’s Access to Justice Committee.
Uninformed clients can waste a lawyer’s time, she says.
“If you’re going in the wrong direction, if the client doesn’t really understand what’s happening, they may not be able to tip you off to that.”
Legal health checks also can help anticipate potential issues, “something that’s helping you go, ‘Okay, where am I at? Are there things that I should be doing or that I need to know?’” says Lugtig. “’Is there anything going on in my life that might actually cause problems for me down the road if I don’t deal with it now?’”
Educating students about the legal system also serves as a guide for the uninitiated. Imagine the legal system as an old house that’s been built up over time depending on need and funds. There might be no more than a hint of the original foundation, and a first-time visitor could have trouble finding the door.
The justice system started with courts and lawyers, but things like legal aid and pro bono and mediation “developed almost in a willy-nilly fashion,” says Rick Craig, executive director of British Columbia’s Justice Education Society, and a member of the National Action Committee’s steering committee, who, like McCoubrey, was involved in the consultations that led to the CBA report.
People care about getting their problems solved, not about what every person in the legal system does, he says. The justice system paradigm needs to shift — and if the underlying principle is to help people resolve legal matters as early and as effectively as possible, “then we’ve got to actually put some resources there … The front end of the system is starving.”
McCoubrey notes that at election time health care and education are always big platform issues, while legal aid funding is “something that most middle-class Canadians think is for poor people and criminals” — not about them.
But when she talks in schools about the legal aid cutoff in Ontario, she says, “it’s the teachers whose jaws drop.” They don’t realize that their salaries put them thousands of dollars out of range.
With a greater public understanding of the way the legal system works, she adds, there could be a better conversation about “which of these reforms are most important; which ones should have a political priority; which ones do we see actually improving most peoples’ lives in meaningful ways.”
The “front end” of the justice system will have to be fixed step-by-step, says Craig, beginning with the creation of an underlying framework.
“I’m thinking there has to be a more expansive vision that realizes that really, we shouldn’t be putting 95 per cent of the resources in the system in five per cent of the front end; that there has to be some adjustments made, and there has to be some restructuring.”