What Does COVID-19 Tell Us About Our Response to the Access to Justice Crisis?

Originally published on Slaw, Canada’s online legal magazine; written by Julie Macfarlane. This is the ninth in a regular series of columns for Slaw, written by the NSRLP team.

As I am writing this, everything else has been knocked out of the news and our consciousness by the emergence of COVID-19 as a pandemic.

As we struggle to cope with COVID-19 we are facing hard questions – sometimes choices – as members of our own communities, as Canadians, and as world citizens.

• How well does our existing infrastructure – health care, labour rights, social services – mitigate some of the impact of the virus?
• Did our civic governments take enough notice of the earlier warning signs of the pandemic and respond in time?
• Are we doing enough to protect our own health, but also help one another?

We shall not know the answers to these questions in relation to COVID-19 for some time.

But we can already answer them in relation to the Access to Justice crisis. While not for the most part a life-threatening crisis, the A2J crisis is weakening our core justice institutions and having a significant impact on many Canadians. The very same questions seem to be relevant.

How well is the infrastructure of our justice system mitigating the impact of the A2J crisis?

Many efforts are underway to mitigate the Access to Justice crisis, from pro bono programs to new online resources to emergent models of legal services. But is it enough? Many of those working on the front lines will tell you, like health care workers this week, that they feel like they have their finger in a dyke – of need and frustration – that could burst at any moment.

Many Canadians who used to believe that our justice system was just and fair no longer feel that the legal system is “their” system, shut out by a lack of access to affordable legal services. Those engaging with the legal system without legal assistance find themselves constantly disadvantaged. Think of the single parent who cannot afford a lawyer to go after child support, the individual making a complaint about professional services or unfair treatment or even termination of their employment.

The A2J crisis is exacerbating the already chronic mistrust that exists between some communities and the legal system. The Wet’suwet’en and allies protest over the construction of the Coastal GasLink pipeline – like everything else, replaced in the news by COVID-19 – exposes the deep divisions in Canada between those who feel recognized and protected by the legal system, and those who do not. Some members of religious and cultural groups who have had historically different legal systems accept the Canadian justice system, but do not see the courts as understanding their values. They feel like outsiders when judges do not understand their religious and cultural imperatives.

This distance sometimes turns into a feeling of alienation and disenfranchisement with the courts seen as ineffectual in addressing their rights. The Judeo-Christian settler legal system does not recognize many rights and traditions (how to marry and divorce – how to hunt and fish – how to structure one’s finances) that are extremely important to many of Canada’s cultural and faith communities. Court judgments appear to be insulated from and uninformed by these considerations, and better judgments not implemented or dependent on future policy.

So how well is our legal system mitigating the sense of injustice and even alienation experienced by many Canadians? The answer seems obvious. It is failing us.

As is sadly typical in a crisis, we are inevitably focused on the immediate fall-out, neglecting the really difficult, structural, systemic elements of change.

Responding to the warning signs

The second question I posed about COVID-19 was: did our civic governments take enough notice of the earlier warning signs of the pandemic and respond in time?

We have had a host of warning signs for many years now about the Access to Justice crisis in Canada. A few examples include:

• Research in the 1980’s and 90’s showed that public faith in the courts was amazingly resilient in the face of inefficiencies, long wait times and legal jargon (see for example Silbey & Ewick’s brilliant book, The Common Place of the Law: Stories from Everyday Life). The courts were then, to use the sociologists’ term, “reified” institutions (Ewick & Sibley, pp77-82). Today we have squandered much of the “benefit of the doubt” afforded respected public institutions because of the bad experiences of unsupported system users
• There is evidence of a decline in divorce rates and part of the reason may be the legal costs of divorce.
• There is speculation that younger people are using the courts less for resolving conflicts, and instead turning to online systems
• There is a huge rise in self-represented litigants whose principal motivation is financial. they are representing themselves because they cannot afford (sometimes any further) legal services
• Research now shows the disadvantages suffered by parties without legal representation in general (see for example NSRLP’s case law database research reports), and the especial burden on vulnerable parties including people with disabilities and Indigenous families in child protection cases

These are just some of the ways in which the Access to Justice crisis is having social, psychological and political impacts (for a recent analysis, see the CFCJ “Costs” Report).

How well are we responding to the warning signs regarding our Access to Justice crisis?

The time to halt, even to slow down, these consequences has passed. While it makes sense to put every effort into “flattening the curve” so that the health system is not overwhelmed by COVID-19, the justice system is already overwhelmed by the A2J crisis. In Legal Aid and pro bono programs, a capacity threshold – where need dramatically outpaces accessible services – was reached some time ago. And the longer we take to address warning signs, the more radical the solutions proposed.

Taking care of our legal “health”, and that of others

The third question about COVID-19 was: are we doing enough to protect our own health, but also help one another?

How many Canadians will have a legal problem and no legal assistance to resolve it this year? Aside from making a will, or buying or selling a home, most Canadians do not expect to encounter lawyers very often, or even at all. No one gets married expecting to get divorced. No one takes a job with an employer they know is going to treat them badly. No one imagines they will be the victim of an accident and a resulting injury.

When the unthinkable happens, few are ready to pay circa $500 an hour for legal assistance. And that is assuming that the norms that the legal system will apply make sense to them, and respect their culture.

Are we doing enough to help one another? Some heroic individuals and agencies are working like crazy at this (see my finger-in-the-dyke analogy above).

Others are using their fingers to point at those we ”blame” – often dividing SRLs into the “deserving” and the “un-deserving”. Or to judge as “different” those communities that feel their values and culture are unrecognized or misunderstood by the formal legal system.

We need to recognize our interconnectivity here.

Taking care of each other and taking care of ourselves comes down to the same thing here, just like it does with COVID-19.

We need a legal system where everyone feels they belong, and trust that they will be treated fairly. We need a justice system that is accessible for ordinary Canadians. We need a court system in which everyone feels included and recognized. We need Access to Justice.

Our governments and communities are now stepping up with stringent measures to deal with the pandemic. Flattening the curve of infection will hopefully mean the impact on our health system is reduced. Collectively, and as individuals, we may learn some valuable lessons.

Let us hope that our leaders will step up and take the A2J crisis as seriously in coming years.

Finally, the NSRLP has been updating court closure information and related information – filing deadlines, swearing virtual affidavits, limitation periods, and so forth – on a daily basis. This is important information for the SRL community. Please take a look at the link below:

https://representingyourselfcanada.com/court-closures-updates/