Access to (In)justice: A Critical Race Reflection

Joshua Sealy-Harrington

April, 2021

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

It is a privilege to be invited by the Right Honourable Beverley McLachlin to write the second guest column in her The Lawyer’s Daily series on access to justice. In the first guest column, the former Chief Justice of Canada indicated that her hope for such columns was to widen perspectives on access to justice. With that in mind, I want to briefly explore how the dominant individualistic paradigm of access to justice is flawed, and how we must shift to a systemic paradigm for meaningful access to justice in Canada to be realized.

What is access to justice? In the Supreme Court’s leading decision on the subject—Hryniak v Mauldin2014 SCC 7—Justice Karakatsanis opens with an impassioned call: that “[e]nsuring access to justice is the greatest challenge to the rule of law in Canada today” (para 1). But what, precisely, is she referring to when she writes “access to justice”? She frames access to justice in terms of two ideas: time and cost—specifically, flipping from a “protracted” and “expensive” system to one that is “timely” and “affordable” (paras 1-2). I want to complicate the framing of justice in these terms, and specifically, its framing in terms of efficiency.

I will first state the obvious: quicker and cheaper dispute resolution can promote access to justice. Time and money are investments many people cannot afford. And so, when we rely on courts for the vindication of legal rights, protracted and expensive processes effectively curtail rights; claimants are less likely to invoke them, and defendants are more likely to violate them. But time and cost are not the only things that curtail rights. So, we must go deeper.

Exclusively considering time and cost subtly frames access to justice as access to courts. The logic is straightforward: if we can get to court, and afford being there, then justice will follow. Yet this analytically collapses “courts” and “justice.” And as the late Roderick Macdonald wrote: the “study of access to justice must rest on a normatively defensible account of justice” (“Access to Civil Justice” in Peter Cane & Herbert M. Kritzer eds., The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010) at 494). Simply put, time and cost, alone, do not provide justice. A plea deal may be quickly reached. An overextended legal aid lawyer may be low cost. But justice may nevertheless remain—and, indeed, routinely is—unrealized. Without a rigorous substantive critique of courts themselves, time and cost can, paradoxically, do the opposite work we imagine them to be doing—that is, where courts are unjust, access to them can perversely lead, not to access to justice, but access to injustice.

Why, then, were time and cost so central to the Supreme Court’s conception of access to justice in Hryniak? Consider who the case involved: a debt trader in a multi-million dollar civil claim, represented by one of Canada’s leading commercial firms (McCarthy Tetrault)—in other words, elite interests, which occupy outsized space in access to justice discourse. For commercial entities that set aside gargantuan annual budgets for litigation, time and cost may be the primary factors they value in their conception of justice. But what about low-income civil claimants? Indigenous accused? Detained migrants? What is their conception of justice? They are not simply navigating the “cost of doing business.” They are, far too often, simply trying to survive. And that survival does not neatly map on to time and cost.

Cheaper and faster dispute resolution, in itself, may fail to deliver justice because it overlooks what is most important in our system of justice: power. Our legal system functions largely like a market. This is, in part, because there is a literal market for legal services, where money translates into tangible legal power and influence (indeed, powerful interests routinely hire the largest, most expensive, and most sophisticated legal teams to advance their legal interests). Money does not guarantee any particular outcome, of course, but it certainly shifts the scales in one’s favour. And that shift in favour informs the systemic disparities we invariably witness in a legal system structured as a private market. Reducing litigation costs allows for greater entry from the bottom. But it also allows for wider exploitation from the top. And, critically, reducing litigation costs does not resolve the inequality in financial power that different parties wield in litigation. This inequality, too, undermines access to justice, and is overlooked by our dominant individualist paradigm.

Yet, money is not the sole source of power in our legal processes. Those processes are immersed in Canadian society. As such, they incorporate society’s private prejudices and systemic conditions. Popular fictions of neutrality obscure how we have, not a rule of law, but rather, what Dr. Pamela Palmater calls a “law of rulers.” We are ruled by whites, by men, by dominant norms, which our courts so often unwittingly participate in. I do not deny that there are narrow victories for marginalized groups. But one would be naïve to view such victories as anything but exceptional. Look, for example, at our racist penalhousing, and drug policy. Simply put: when racism is the law, access to courts is definitionally incapable of bringing access to justice.

So, what should be done? Leading access to justice scholar Trevor Farrow writes that we must “put the public squarely at the centre” of our access to justice efforts (at pg. 961). And to do so we must rethink access to justice in Canada, both procedurally and substantively. Procedurally, limiting our goals to less time and cost for everyone fails to grapple with how excess power for elites is a significant source of disparity in systemic legal outcomes. And substantively, we must always centre, not only how we access justice, but—more fundamentally—what vision of justice we aspire to access.

On an academic panel last fall, I was asked about innovations to promote access to justice in the “post-covid recovery.” But, as Dionne Brand observes, “this narrative of the normal”—this idea of recovery—draws us back in to the logics of efficiency that erase the violence of the old normal. The COVID-19 pandemic did not make a just Canada unjust—rather, it aggravated the conditions of injustice which were already pervasive in Canada. I do not want more access to that injustice—I want justice. And we will not find justice by a return to the past. Rather, as Arundhati Roy notes, we must look forward through this pandemic portal to a “world anew.”

I do not know exactly what that world will look like. But I believe it will be one where, as Daniel Del Gobbo argues, the “procedural justice paradigm” is complicated by notions of “substantive justice” (at 291). And further, I believe that, as Jérémy Boulanger-Bonnelly explains, it may be productive to explore new, unconventional solutions by drawing inspiration from other fields—such as healthcare—instead of remaining fixed within a traditional justice paradigm (“Inspiring Analogies: From Access to Healthcare to Access to Justice” in Vinícius Alves Barreto da Silva, ed., Access to Justice in the Americas (forthcoming, 2021)). (Though such inspiration must be mindful, of course, of the grave systemic racism we also see in public health). This is, in my view, the kind of radical reimagining that we need to be considering as we explore not a recovery, but a reinvention of justice in Canada—what Avnish Nanda calls “a democratization of the public space that is law.”

The next time someone asks you about access to justice, ask them what they mean by justice. We must set our destination before choosing a path forward.

Joshua Sealy-Harrington is a doctoral candidate at Columbia Law School, lawyer at Power Law, and former law clerk at the Supreme Court of Canada (for Justice Clément Gascon) and at the Federal Court (for Justice Donald J. Rennie, now of the Federal Court of Appeal). His research interrogates the complex relationship between law and power through the lens of critical race theory, while his practice explores the intersection of this relationship with public, constitutional, and criminal law.

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