In last week’s blog, I bemoaned the fact that we had made little progress this election season in raising the desperate issue of access to affordable legal representation for the huge numbers of self-represented litigants in our courts.
In that blog I compared the characterization – and demonization – of the “Other” which has been so dominant in this election campaign with the way that many see SRLs . This blog obviously struck a chord with many, both SRLs and those working in the justice system.
And then it occurred to me…
Is the Election Campaign All About Access to Justice?
While this assertion risks the accusation that if all you have is a hammer, everything looks like a nail…
This weekend I thought again about the “absence” of Access to Justice issues in the federal election campaign.
And I realized that in fact the hardest and scrappiest debates in this 2015 election campaign have actually all been about Access to Justice – just not about the particular issue of affordable legal representation.
- The drama over Zunera Ishaq wearing her niqab to take the oath of citizenship
- The extension of police and CSIS powers (to detain, restrict movement, and gather data) in C-51 (the “Terror Act”)
- The refugee crisis and Canada’s response (see http://www.thestar.com/news/gta/2015/10/13/academics-demand-radical-expansion-of-help-for-refugees.html)
- The extension of powers to revoke Canadian citizenship in C-24
At Heart, These are Access to Justice Issues
Each of these four critical issues in this election has, at its heart, a question about Access to Justice. For example,
- When public safety concerns are reflected in extended powers for law enforcement, how can we still protect fair process, civil liberties, and encourage grounded decision-making? (C-51, C-24)
- How do we realize individual rights to express our religious beliefs in a proudly multicultural nation? (the niqab)
- As a member of the international community, what role should Canada play to provide access to safe havens for refugees fleeing war?
Each of these issues is ultimately about individual and collective rights to Access to Justice – to be treated fairly, non-arbitrarily and without bias, to be listened to and valued as a member of a diverse community, to demonstrate Canada’s commitment to a fair and non-arbitrary process in an international refugee crisis, and above all, to achieve just outcomes.
Each illustrates the tensions between Access to Justice values, and the different roles that the State can play along a spectrum from protector to oppressor.
What these four story lines are really about is how we both understand and defend Access to Justice in Canada.
Why These Issues?
The issues that come to the fore in an election campaign are calculations –made principally by the governing party – that these are the particular issues that will get the attention of voters bored after weeks of political ads – and of course that their own position on the issue will increase their support with the voting public (and if the polls are accurate, they are correct).
Of course, I am not suggesting that in making these four issues a big part of the election chatter, the Conservative government has in mind the type of national dialogue on Access to Justice that the NSRLP and its supporters are lobbying for.
These issues have been framed by the governing Conservatives (the authors of C-51 and C-24, the appellant in the niqab case, and the current decision-makers on refugee policy) as matters of public safety and security. The underlying message may be that A2J is less important than, and must be subjugated to, such concerns.
But Access to Justice is the clear counter narrative being raised by their critics.
How We Understand Access to Justice is Important to Canadians
I think that what this tells us is that Access to Justice is a core value for Canadians, even as those values are presently amidst a battleground of competing ideas and visions.
And as these four story lines continue to circulate through the almost constant election coverage now, it seems clear that our politicians’ positions on the niqab, C-51 and C-24, and the refugee crisis are influencing how Canadians place their vote in the 2015 Federal Election.
Otherwise, they would have long fallen out of the news cycle.
So, let’s take heart that we can get yet another Access to Justice issue – affordable legal representation – onto the political agenda well before the next election.
Ok. I’m on a roll, being a blog troll today. There is a significant difference between Canadians having strong opinions (see posting on Twitter) and opening up their wallets to pay more taxes to shore up a crumbling justice system. I have no doubt we have strong feelings about justice “issues” – what I’m not seeing, however, is any commitment at all to improving the FUNDING of the system that addresses those issues. Which I think is a large gap in the public consciousness.
Call me a cynic – but I think most Canadians are happy to become armchair social justice warriors – but less likely to actually support increasing justice funding and spending the money necessary to over-haul the broken system.
I might be wrong – but I haven’t seen any suggestion from the powers that be that true justice reform is even on the radar.
The unaffordability of legal advice services is a far more serious problem. Democracy and the rule of law are only as good as the ability to enforce them. So, what should be our answer if a law society, (fearing this problem and the election will be joined to advocate federal government intervention into the regulation of the legal profession), were to cite the provincial legislative powers in s. 92(13) & (16) of the Constitution Act, 1867, meaning that such action can only be “provincial government action,” if any such action could ever possibly be justified?
The answer is: (1) this is a national problem and the only effective action is nation-wide action; and, (2) Canada’s law societies have not tried to solve the problem during all of the decades it has been developing.
The necessary federal legislative and administrative jurisdictions are: (1) Section 91(2) of the Constitution Act, 1867 (the “trade and commerce” power); (2) the “POGG clause” (“peace, order, and good government”) of the preamble of s. 91; and, (3) the s. 15 “equality rights” provisions of the Canadian Charter of Rights and Freedoms, based on the concept that being middle class and of “middle income” and unable to afford the advice and advocacy of a lawyer, is a state of one’s condition that is “immutable, or changeable only at an unacceptable cost to personal identity.” (For the right “approach” to s. 15, see: Law v. Canada 1999 CanLII 675, [1999] 1 SCR 497, and its progeny.)
The right to affordable legal services should be recognized as a constitutional principle, and as justifying an affirmative action program (s. 15(2) of the Charter). Socialized law is as justifiable as socialized medicine. The legal health of Canada’s population is as important as its physical and mental health. Canada’s constitution should support (“entrench”) this principle.
See the “access to justice” articles listed on my SSRN author’s page:
http://ssrn.com/author=1398484.
Justice in our Courts should not depend on “legal representation”. The problem is the manner in which Judges etc treat SRL’s -ie ignoring their affidavits and evidence, allowing the opposing party’s lawyers to drag in irrelevant matters to drag the case out and send the SRL broke, deals done between barristers and judges that the SRL does not have access to, and so on. Most SRLs know more about the legal issues relating to their own case, and are often more up to date with e.g. changes to law that would and could affect them because they are only focused on their own case rather than haf a dozen easier money producing ones for lawyers. Also – not sure if it is the same in Canada as Oz but self interest law institutes insisting one has to have a solicitor before a barrister can act is counterproductive. What should be happening is that community legal centres and other pro bono services should assist the SRL with process and procedure, e.g. drafting application, researching law, and process for calling witnesses and then ensure direct with the Bar they have a barrister. This is what used to happen in Oz but of course didnt suit greedy lawyers.
Reblogged this on Writ of Rags and commented:
An interesting analysis of #elxn42 issues in the #A2J paradigm. However, I think it is a bit of wishful thinking: The legal community has failed to engage the public we serve to this issue for the past few decades. #A2J was a concern long before this election. We need to take a strong, critical look at ourselves, in particular, how we interact with the public so that we become more proficient in communicating and engaging with them.
It does NOT matter which political party you vote for in Canada or the USA, almost ALL politicians are controlled by the elite who control everything that involves money or power. What has made things really bad is a so called democracy where 51% can force the OTHER 49% to do their bidding. This kind of democracy gives the common person the illusion of having a say, where in truth it is just a way for the elite to control the masses. All the common people are kept busy being divided by fake memes and controlled by political correctness while the elite control and manipulate both sides of any outcome to their own selfish benefit. The elite are ALWAYS involved in BOTH SIDES OF EVERYTHING…Wake up people, its all about 1. Problem 2. Reaction and 3. Solution…which of these do any of us really have any say in, much less control. Only when the majority of common people become aware of the real problems AND unite in a huge majority of democracy AND force the politicians to work for us against injustice, will anything really change for the better.