A2J: It Means Caring for People and the System
Andromache Karakatsanis
I am delighted to be writing my first Access to Justice column as the new Chair of the Action Committee on Access to Justice in Civil and Family Matters. I am grateful to Beverley McLachlin for her work through the Action Committee and to Chief Justice Wagner for his dedication to access to justice – and for appointing me to this role.
As a former lawyer, tribunal chair, deputy minister of justice, and as a judge of three different courts, I have had the privilege of seeing our justice system from many perspectives. I know that dispute resolution in any setting – formal or informal – can be complicated, stressful, time-consuming and expensive, even in a system as esteemed as ours. Canadians should take pride in that system; it is among the world’s finest. And those who uphold it every day do us great credit, even as their work is often uncredited. Still, there is much work to be done. It is no secret that access to justice – particularly for our most vulnerable – is an ongoing challenge of our times.
What does access to justice mean? Courts have been asking this question for some time. In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court saw that civil justice was, for ordinary Canadians, becoming too prolonged and too expensive. It called for a “culture shift” to “create an environment promoting timely and affordable access to the civil justice system.”
But access to justice means more than getting a timely and cost-effective decision. It means more than accessing the courts, resolving disputes, and having decisions enforced – it is about obtaining a just result, no matter our background or circumstances. And courts, notwithstanding their virtues, have no monopoly on this.
The term “access to justice” undoubtedly carries many meanings. When I reflect on my own experiences, three things in particular come to mind.
A just rule of law: Access to justice is in part about process and costs; but more importantly it is about access to justice. Without justice, the rule of law would become at best a buzzword, and at worst a cover for abuse. The public needs confidence, not only that an accessible system of laws exists, but that those laws anchor and reflect our values – of integrity, respect and dignity – so that even unfavourable outcomes can be seen and accepted as fair. When the justice system promotes access to justice, it ensures that we can all have our concerns heard. It ensures substantive equality, for those who are disadvantaged and marginalized in our society. It is the foundation upon which civil society, and the relationship between government and the people flourishes.
Systems-thinking has value: Access to justice is a many-faceted issue, and, insofar as it is rooted in poverty, marginalization and other systemic problems, it will require broad action and systemic solutions. No single institution holds all the answers; it calls upon our collective wisdom. The fact that participants across the justice system experience different burdens, reap different benefits, and bring different expertise to bear upon our common problems is, potentially, a tremendous asset. But we can only arrive at answers if we work together and see things as a system. Whether as lawyers or paralegals, as advocacy groups or poverty clinics, tribunals, courts, or governments, we can all contribute in different ways to tackle bottlenecks, barriers, and systemic inequalities to ensure an effective, credible, accessible justice system for all.
Caring for the individual: We must never forget that access to justice is about people. As a practicing lawyer and a trial judge, I saw just how difficult it can be for individuals to address legal problems in a system whose procedures and rules can, at times, seem opaque or arcane. Courts serve as a forum of last resort for resolving differences. But court-provided solutions are not always optimal. We can encourage and facilitate other methods that are better tailored to the needs and capacities of those involved. The state can do its part in setting the rules of fair play and enforcement in private dispute resolution, and in ensuring that individuals have options. As a tribunal chair, I learned that tribunals and administrative decision-makers, whose functions touch so many aspects of daily life – from social benefits, to rent control, to liquor licenses – are often the frontline of everyday justice. Alternative dispute resolution professionals, too, have a critical role to play. Our work on access to justice should strengthen and expand such alternatives, with a focus on getting to just, effective and accessible results. It is about serving the people behind each dispute, ultimately, that matters.
I know these views are shared by the many people working in access to justice across Canada, and that much work lies ahead. So we need to work together. Whether through system and process design, advocacy, better education, or legal aid, we will need specific and targeted solutions to fix specific problems, and creative solutions to remedy systemic aspects of the problem. But we must also recognize the forces that undermine access to justice reflect the broader concerns of a just society. How we respond says much about who we are as a society.
As Chair of the Action Committee, I look forward to the conversations and activities that will support that work, and give voice to those concerns moving forward. I intend to use this column to share the experiences, stories, and perspectives of others. There is tremendous work being done to challenge systemic barriers, to innovate, and to serve the individuals at the heart of legal system we hold dear. It is work we can all learn from.
Justice Andromache Karakatsanis is the new Chair of the Action Committee on Access to Justice in Civil and Family Matters. A former private law practitioner, tribunal chair and public service leader, she was appointed a justice of the Supreme Court of Canada in October 2011.
Photo credit: Jessica Deeks