Including the Public in A2J Consultations: A Grade Report Card for the Provinces – Guest Blog by Robert HarvieNSRLP
Last summer, on behalf of the NSRLP, I sought some feedback on the extent to which Access to Justice initiatives across Canada were engaging actual litigants and/or self-represented litigants in developing their ideas, strategies and programs.
A simple survey was mailed out to 44 respondents – essentially, every provincial and territorial government, the Federal government, each Law Society, each CBA branch and the Canadian Forum on Civil Justice – bodies we assumed would be most engaged in Access to Justice efforts.
The letter I wrote outlining the request for information (which could be by mail or via a simple online Survey Monkey) included the following explanation of our goals:
“… a concern which has been raised by our organization and by SRLs in general is a perception that efforts to address issues relating to Access to Justice have not taken advantage of direct input from those persons who have been “consumers” of our Justice system – being represented and self-represented litigants themselves. Stakeholder groups appear to be represented quite heavily by lawyers, academics, government personnel and other NGO’s – with much lesser input and involvement by actual former litigants themselves.
To address this perception, we are seeking advice and input from the various Access to Justice efforts ongoing throughout Canada in order to determine if this concern is real or simply perceived.”
The survey asked:
- Do you have any former litigants/ former self-represented litigants directly involved as directors or officers of your A2J organization/ body?
- Do you obtain direct input from other litigants to guide your process decisions relating to A2J, and if so, in what manner?
- Do you obtain direct input from former self-represented litigants specifically to guide your process relating to A2Js decisions, and if so, in what manner?
My letter concluded:
“We greatly appreciate the work of all stakeholders in seeking to improve access to justice in Canada, including yourselves, and are seeking to use this information to help guide our own efforts in assuring that we are as effective as possible in carrying out our own mandate.”
We received responses from just 12 of 44 of those to whom the letter was sent, which trickled in over a period of five months (hence some of the data reported here may be out-of-date by this point, but we wanted to wait to present as complete a picture as possible from the responses received).
We received mailed responses from the British Columbia Ministry of Justice; the Law Society of the Northwest Territories; the Yukon Ministry of Justice; the Northwest Territories Ministry of Justice; the Law Society of Alberta; the Nova Scotia Ministry of Justice; the Ontario Ministry of the Attorney General; the Newfoundland and Labrador Department of Justice and Public Safety; and the Canadian Bar Association.
We received online survey responses from the Saskatchewan Ministry of Justice; the Manitoba Ministry of Justice; and the Prince Edward Island Ministry of Justice
In response to the question, “do you have any former litigants directly involved as directors or officers of your A2J organization and if so, how many?”
- Just 1 of the 12 respondents (British Columbia Justice) reported having former litigants directly involved as directors or officers of an A2J policy group or organizations.
The only standing member of an A2J policy reform group in Canada whom we are aware of who is a former self-represented litigant is Jennifer Muller, NSRLP Advisory Board member, who sits on the Executive of the British Columbia Access to Justice Committee.
In response to the question, “do you obtain direct input from former litigants to guide your process decisions, and if so, in what manner?”
- 5 respondents reported that they obtain input directly from litigants by way of various surveys or other forms of user input (British Columbia Justice, Saskatchewan Justice, Canadian Bar Association, Law Society of British Columbia, Nova Scotia Justice)
- 3 respondents reported that they obtain input specifically from self-represented litigants (Saskatchewan Justice, British Columbia Justice, the Law Society of British Columbia)
Why Not Consult Former Litigants/ Self-Represented Litigants?
There were some common themes in the letters that identified reasons for not including litigants/ self-represented litigants in any consultative role beyond (in just some cases, see above) the collection of survey data.
These were all reasons we have heard before and included:
- We do not include system users in consultations but instead we work with organizations that work with them and they tell us about them
- We do not include system users in F2F consultations because they would not understand the need for “critical confidentialities”, because they are not legally trained
- Obtaining input of any kind from system users is difficult because we have been unable to access a reasonable sample
Does Your Province Have a Failing Grade for Public Participation on A2J Reform? A Grade Report Card
NSRLP can and does offer access to our SRL database for the purposes of matched user testing and feedback. By far the most requests to date have cone from British Columbia (Justice BC, Mediate BC). We have also been asked to find testers to comment on new resources being developed by Community Legal Education Ontario (CLEO). We are delighted to respond to these requests, and are currently reorganizing our large database of SRLs in order to be able to respond more quickly and to target SRLs with specific demographics and experience, as requested.
This experience with requests for testers has been factored into the grades we have assigned below to each province for “public participation in A2J reform.” We do not claim a scientific status for these grades, but believe that they are reasonable estimates based on the responses to the survey, as well as our own experience of working with some provincial organizations to provide SRL input.
A Public Participation Grade Report Card
Our purpose in publishing the Public Participation Grade Report Card is to push the debate over public participation forward. As you can see below, the Report Card highlights the lack of user involvement in system reforms, in all but a few exceptional provinces.
What Do These Results Tell Us?
I understand everyone engaged in A2J initiatives across Canada to be well motivated, but there seems to be a real limit on how far organizations are willing to seek input from those who actually experience the problem.
These somewhat miserable and even failing grades for some provinces are disappointing, but not surprising. Most of the most promising initiatives – for example, the “Social Labs” model being used in British Columbia, Alberta and Ontario – relies heavily upon the anecdotal experience of the “usual suspects” – that is, lawyers, government administration, and academics – to guide system change.
As the saying goes, “when you’re a hammer, every problem looks like a nail” – and collecting a bunch of “hammers” to provide input on what the problem is and how it should be resolved, is almost certainly going to look like, “the problems are nails, and we need to hammer them.”
We are very pleased to see that data is being gathered from litigants on their experiences (for example, Nova Scotia, Saskatchewan and British Columbia), but an important question is how justice ministries are then using that information.
If SRLs and other former litigants are asked for their input and then told to “go sit in the corner while we decide what’s best for you” – well, this contributes to the essential problem all over again. Our collective A2J effort must eschew the traditional paternalism of the legal system to “tell people what they need”, but to, perhaps, shift gears and start asking them.
By: Robert G. Harvie, Q.C., NSRLP Advisory Board Member