Defining access to justice

With access to justice ailing, pressure has grown on governments across the country to address related challenges. For some, however, results are slow to come about. Of late, the Supreme Court of Canada (SCC) has decided to comment on the issue.

A review of the judgments rendered by our top court over the last five years shows that it has increasingly relied on the idea of “access to justice” in handing down its rulings. This notion covers delays, costs, process, and any other factor that might prevent people from getting ready access to the courts and to justice in general.

While our governments are busy with governing, the SCC has served several forceful reminders that access to justice is fundamental to the rule of law.

Filter unmeritorious claims

Protracted trials can prevent the fair and just resolution of disputes. Despite traditional judicial restraint in dismissing claims at a preliminary stage, the SCC confirmed that civil justice must take into account proportionality.

In its 2014 ruling Hryniak v. Mauldin, the SCC addressed rules regarding summary judgment motions in Ontario. In a tort case, the motion judge had dismissed the claim before trial, using fact-finding powers to weigh the evidence, evaluate credibility, and draw inferences. Failing to find any significant error in that conclusion, the SCC held that it should attract deference.

Stating that ensuring access to justice is “the greatest challenge to the rule of law in Canada today,” the SCC called for a cultural shift in the way civil claims make their way through the courts. “The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial.” Judges should favor the principle of proportionality and fair access to the affordable, timely and just adjudication of claims. As a result, summary judgment motions must be granted unless a genuine issue requires a trial.

More generally, the SCC recognized in Hyrniak that proportionality and case management powers are instrumental in achieving access to justice.

Contain judicial costs

It is trite to say that the judicial process is expensive. Lawyers’ fees and court costs add up quickly, which can obviously hinder access to justice. In another 2014 ruling, Trial Lawyers Association of British Columbia v. British Columbia, the SCC pointed out that there are limitations to judicial costs.

In that case, the plaintiff in a family law dispute had been charged $3,600 in courtroom trial fees, under provincial legislation. It was determined that such costs caused undue hardship to the litigant, as it approximated the net monthly income of the family.

The SCC indicated that, as access to superior courts is established pursuant to section 96 of the Constitution Act, 1867, it is natural that some degree of constitutional protection be recognized for access to justice. “[W]hen hearing fees deprive litigants of access to the superior courts, they infringe the basic right of citizens to bring their cases to court.” Indeed, if people cannot bring legitimate issues to court, laws will not be given effect.

Although it is the role of the legislature to design a judicial costs scheme, the SCC stressed that judges should retain discretion to waive hearing fees for people who would otherwise be unable to bring non-frivolous litigation for reasons of cost.

Reduce trial delays

Justice delayed is justice denied. In 2016, the SCC put a case citation on that legal maxim: R. v. Jordan.

In December 2008, Barrett Richard Jordan was charged with criminal offences in a relatively straightforward case relating to drug possession and trafficking. Yet his trial ended in February 2013, more than four years later. He sought a stay of proceedings, based on an accused’s right to be tried within “reasonable time” under section 11b) of the Canadian Charter of Rights and Freedoms. The SCC agreed to set aside Mr. Jordan’s conviction and granted the stay of proceedings.

On this occasion, the SCC stated that “[t]he ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself.” It also addressed what it called “a culture of complacency towards delays” in the criminal law system, and in doing so carved out a new approach to section 11b) of the Charter. It thus established a ceiling beyond which delay to criminal trial is presumptively unreasonable, unless there are exceptional circumstances: 18 months for cases in provincial courts, and 30 months for cases going to superior courts.

By this landmark decision, the SCC urged all participants in the criminal justice system to cooperate to achieve prompt access to justice.

Respect joint submissions

Discussions amongst parties to resolve litigation, in part or in full, are essential. They enable our judicial system to function efficiently.

In the 2016 ruling, R. v. Anthony-Cook, a criminal law case from British Columbia, the SCC acknowledged that guilty pleas and joint submissions on sentence are “vitally important to the well-being of our criminal justice system, as well as our justice system at large.”

Negotiations between parties are a way to improve access to justice. When trials are avoided, the justice system saves time, resources, and expenses, which can then be channeled into other matters. Accordingly, the SCC stressed that joint submissions on sentence merit deference, especially when made by experienced counsel. Courts should apply a “public interest test,” following which trial judges should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or otherwise be contrary to the public interest.

When litigants reach an agreement and judges ratify it, our justice system can focus on more difficult disputes between other parties, who ultimately benefit from easier access to the courts. Plain and simple.

Simplify judicial review

Access to justice requires that both courts and administrative tribunals play their respective roles. Yet the dialogue between those has not always been harmonious.

Last year in Canada v. Vavilov, the SCC completely revisited its approach to judicial review of administrative decisions to simplify the test. The former review framework set in Dunsmuir, by which one could question the decision of an administrative tribunal or agency, had been criticized as unclear and unduly complex. As a result, the court noted, “debates surrounding the appropriate standard and its application continue to overshadow the review on the merits in many cases, thereby undermining access to justice.”

Following the new analytical grid, all administrative decisions will presumptively receive judicial deference and are allowed to stand insofar as they are consistent with the standard of “reasonableness.” This presumption may be rebutted, however, either if legislative intent or the rule of law requires otherwise, within guidelines described by the SCC. In turn, the court called administrative bodies to foster a culture of justification in their decisions.

By providing clarity regarding the standard of judicial review, the SCC seems to hope that the juridical process between courts and administrative tribunals will be streamlined. This story remains to be told.

This overview of cases decided in recent years shows that the SCC has turned its attention to  issues critical to “access to justice” and wants to have a conversation aimed at redefining its meaning. Some will see this as a form of judicial activism, but the SCC has demanded its voice be heard on the matter, and we are likely to hear more from it in the years to come. Governments should take note.