The University of Victoria Faculty of Law

Access to Justice Centre for Excellence

2018/19 ANNUAL PLAN

 

1.      ORGANIZATION

The UVic Access to Justice Centre for Excellence (ACE) was established by the University of Victoria Faculty of Law late in 2015 in response to the growing concern within the justice community about the problem of diminishing access to justice, and in the belief that there is a unique and important role that the academy can and should play in the resolution of this problem.

The idea for such a Centre was suggested in the Canadian Bar Association’s Equal Justice report of December, 2013, which proposed that three Canadian law schools establish centres of excellence for access to justice research by 2030.[1] The report emphasised the paucity of access to justice research and the poor state of metrics and data collection within Canadian civil justice systems and the potential for law schools to help rectify this.  Observing that “you can’t manage what you can’t measure” the CBA drew an explicit link between the system’s lack of metrics and measurement capacity, and the relative ineffectiveness of efforts over the last twenty years to enhance access to justice. 

The effectiveness of the Canadian justice system suffers because we have an extremely limited vocabulary to describe and measure this system and the ways in which it functions ... We have a shared sense that the access to justice “problem” is growing and yet this is only an intuition founded on anecdotes. We are unable to give definitive answers to even the most basic inquiries about barriers to access and we lack the capacity to pull together the fragmented data available to us into anything close to resembling a complete picture of access to justice in Canada ... The absence of shared views on what constitutes access to justice, what to measure, and how to measure it, hampers policy development and decision-making in the legal and judicial institutions central to the proper functioning of our democratic order.[2]

There is almost no tradition of empirical research either in justice ministries, the court system or in the law schools. In the schools, the great bulk of scholarly research is doctrinal analysis focused on legal theory and questions of substantive law. Relatively little attention is given to procedural issues, such as access to justice, and very little empirical research is undertaken on any front. 

ACE seeks to actively engage the law school with the rest of the justice system, in particular with respect to procedural issues involving access to justice and the delivery of legal services.  Within the law school it will focus on better preparing students for the challenges access to justice presents to practitioners. Outside the school it will focus on research and scholarship that addresses the access issue as experienced by both those who use the system and those who provide the services. More particularly, ACE’s mandate is to:

·         enhance student understanding, engagement and skills respecting access to justice issues through curriculum and program development,

·         undertake applied research and practical scholarship on access to justice issues,

·         help to build justice system capacity to better exploit metrics and support performance measurement and empirical research, and

·         forge collaborative working relationships with governmental, non-governmental and professional bodies with an interest in enhancing access research.

Given the growing severity of the access problem and the costly and destructive consequences that flow from unmet legal need in our communities, ACE seeks to support a justice reform culture that is bold, innovative and open to experimentation. ACE will focus on activities that the University of Victoria, as an academic institution, is uniquely qualified to undertake.

 

Members and staff

The Director of ACE is Professor M. Jerry McHale, QC and members of the board of directors are:

 

  • Professor Michelle Lawrence (UVic)
  • Professor Tim Richards (UVic)
  • Professor Carol Liao (UBC)
  • Kathryn Thomson, PhD candidate UVic
  • Michael Litchfield, PhD candidate UVic

 

ACE is located in the Faculty of Law in the Fraser Building on the UVic campus. ACE has no dedicated staff, at this point, but it is supported by the law school’s administrative structure.

 

1.1  Finalize governance, including linkages to UBC and TRU

 

2.      PROGRAM

ACE projects over the next year fall under six headings:

 

  • Facilitating the work of the BC Research Framework Working Group;  
  • Creating a conceptual and informational foundation for a justice metrics framework;
  • Promoting national justice metrics coordination;
  • Completing targeted research projects;
  • Conducting outreach and network building; and
  • Building a sustainable core program to ensure ACE’s continuity.

 

A detailed description of each of these projects follows:

 

2.1  CONVENE and FACILITATE WORK of BC RESEARCH FRAMEWORK WORKING GROUP  

 

The BC Research Framework Working Group (RFWG) is conceived as a cross-sector justice committee working collaboratively to enhance the quantity, quality and accessibility of justice data. It is based on the premise that more and better justice data will enable more and better program planning, performance measurement and empirical research. Put another way, better justice metrics will translate directly into better capacity to manage the justice system.  A “research framework” is simply the structure or system that would ultimately be created to better generate, organize and share justice data. 

 

The need for a framework was explored at a Colloquium of senior BC justice representatives sponsored by ACE in Victoria in May of 2016. That meeting focused on the state of data, metrics and research in the BC justice system. As the Colloquium Report states,

 

It was agreed that there is a strong need for more evaluation, performance measurement and empirical research in the justice system, and that the system’s current capacity for such research is extremely limited. The root problems include a paucity of data, existing data that is inaccessible or unusable, uncoordinated data collecting across diverse sectors, lack of mechanisms for sharing data, institutional resistance to collecting data and a culture that lacks experience with and understanding of empirical methods.[3]

 

One of ACE’s objectives in convening the Colloquium had been to determine what role it might play in advancing provincial justice research.  The first task emerging for ACE out of the Colloquium was to “…lead an informal consultation with Colloquium participants to define terms of reference and to establish a provincial, multi-sector Research Framework Working Group (“RFWG”) to pursue the design and implementation of a justice research framework.”[4]

 

Accordingly, a “Research Framework Working Group Access to Justice Data Proposal” was drafted by three Colloquium participants[5] and, in November of 2016, presented to the Access to Justice BC, Steering Committee.[6]  The proposal stated that:

 

The establishment of the RFWG is intended to create the capacity to ask and answer important empirical questions about access to justice in the province being posed by system leaders, support the development of a nationally-needed academic Centre of Excellence on access to justice, and promote a collaborative and multidisciplinary approach to the policy questions around access… Broadly, the RFWG will undertake the visioning, research, consultation, planning, educating, negotiating and administration necessary to design and ultimately implement a justice research framework.

 

The A2JBC Executive Committee supported the proposal and confirmed that A2JBC would support the RFWG initiative.  Subsequently, planning work was undertaken and the initial members of the RFWG were identified:

 

  • Professor M. Jerry McHale, QC, University of Victoria, Director of ACE
  • Dan Chiddell, Court Services Branch, BC AG, 
  • Kurt Sandstrom or Cris Forest, Justice Services Branch, BC AG,
  • Dr. Allan Castle, Coordinator, Justice and Public Safety Council of BC, 
  • Tim Roberts, Tim Roberts & Associate Consulting
  • Kathryn Thomson, PhD Candidate, ACE board member
  • Sally Rudolf, Legal Counsel, Court of Appeal for British Columbia
  • Brenda Belak, Legal Counsel, Supreme Court of British Columbia
  • Karen Leung, Legal Officer, Provincial Court of British Columbia
  • Andrew Pilliar, Thompson Rivers University
  • Michael Smith, Legal Services Society of BC

 

ACE’s role in relation to the RFWG will be to:

 

2.1(a) Convene the RFWG and assist it in becoming operational. This will involve assisting it with the preliminary matters of articulating its mandate and goals, and setting up a governance structure that engages, and has the active support of the necessary justice stakeholders.

 

2.1(b) Provide ongoing leadership and support to the RFWG, to help it to meet its goals. This will involve providing leadership and advice, and undertaking the work necessary to create a logic model and develop and implement a work plan. 

 

There will be travel requirements and secretarial and administration costs generated by some of this work.

 

2.2  CREATING a CONCEPTUAL FOUNDATION for the JUSTICE METRICS FRAMEWORK

 

ACE sees the following tasks as necessary to lay the groundwork for enhanced empirical justice research in BC and to support efficient and effective decision-making by the RFWG.

 

ACE will contract for, and supervise the preparation of six background reports:

 

2.2(a)  Research metrics models in other jurisdictions: this paper will examine work done to enhance data in other jurisdictions. The purpose of this task is to ensure that BC is fully aware of all current or previous attempts in any other jurisdiction to enhance justice data quality, encourage data sharing and expand the use of empirical research and justice program evaluation. ACE has been in touch, for example, with the Attorney General’s office in Australia where they have been working on this problem for some time. There is also work in the Netherlands and the United Kingdom that should be better understood. The aim would be to capitalize on existing work and to avoid reinventing the wheel.

 

2.2(b) Articulate objectives and values for the civil justice system: an Australian paper entitled “Building an Evidence Base for the Civil Justice System” states,

 

The first question that needs to be answered in order to build a better data base for the civil justice system is ‘what information do we want?’  Information that demonstrates that one service, one program or one organisation is performing efficiently and effectively is useful.  However, it will not help to make the case for the essential importance of a well-functioning civil justice system to the welfare of the Australian community.  To do that we need to be clear about what Australians are looking for in the civil justice system (objectives) and what it is delivering to them whether as individuals, small businesses, volunteer organisations or large trading corporations (achievements).   As a first step we need to identify appropriate objectives are for the civil justice system. 

 

This task will unfold in two stages. First, ACE will produce a draft report articulating possible over-arching strategic justice system objectives as well as ancillary key-objectives and sub-objectives. These objectives would be gleaned from the many access to justice reports and related academic articles published over the last twenty years. The report would identify goals and measures that would assist in responding to key questions such as “what do we want to know?” and “what do we measure to know if we are being effective?”

An important aspect of this task will be to identify guiding values. One of the discussion papers prepared for the ACE Colloquium referenced a group of Canadian justice researchers[7] who suggest that,

… in addition to practical proposals to improve access to justice “…further research on civil procedure should focus on the question of which values a civil justice system should be designed to further...” Part of their concern is to ensure that the system does not focus on efficiency as the primary end of reform. They suggest that “…efficiency for the sake of freeing up resources should be instrumental to other ends, which need to be researched and identified, rather than an end in and of itself.” These researchers then consider the particular values that flow from two possible value priorities for administration and research, namely satisfaction of the parties and integrity of the judicial system.

The second stage of this task will involve consultation with representatives from the diverse justice sectors on the question of objectives and values. Feedback from the consultations will inform the final version of the report. This report would serve as an ongoing reference and guide the development of a metrics framework and to the justice research ultimately undertaken.

 

2.2(c) Assess the nature and merits of a comprehensive BC justice data scan: This task will produce a paper exploring a) the advisability, b) the feasibility, and if appropriate c) options for undertaking a BC justice data scan, that is, a comprehensive inventory and catalogue of the data currently collected by various justice entities throughout the province. A data scan would, potentially involve:

·          identify existing data – what data exists; where does it exist; what is the quality of the data; what is the potential utility of the data and can it be shared?

·         Identify needed data - what data is needed; what gaps are there in existing data? This raises the question of what access questions we wish to be able to answer.

·         Identifying potential data sources – what additional data could be collected by government and courts, and what contribution could NGOs and community service providers make in generating useful data? What relevant or useful data might be held outside the justice system by entities such as the Ministry of Health?

·         Deciding how justice data is best stored – how should data be collected, accessed and shared? Should / could justice data or access to data be aggregated in a single location or through a single path? Should BC work toward a “data observatory” model to warehouse and make accessible data from across the justice system?

These questions, in turn, raise a number of issues respecting appropriate access, data governance and stewardship, privacy, anonymization, physical security, and the practical matter of data transfer and maintenance where required. The report will touch on all of these matters. It would be useful to have this information insofar as a data scan would be a major undertaking. Saskatchewan has recently become convinced of its utility and is planning for one now. This paper will help BC to assess the need for and viability of such an initiative here.

2.2 (d) Assess the feasibility of a justice research data repository: This study will focus on the questions of what access to justice research already exists and how that research could best be collected and shared.  The scope of this inquiry is necessarily national, if not international. We know that there have been quite a few access studies and program evaluations completed in Canada over the last 20 years, but they are not easy to find. Some research has been collected by the Canadian Forum on Civil Justice through its online “Clearinghouse” and ACE may work with the Forum to enhance that collection.[8] It makes sense to collect and utilize existing research and, in any event, what is learned about locating archiving and organizing research through this study will also be useful as the body of justice research in BC begins to grow under the framework. 

 

2.2(e) Identify BC research questions and research priorities: This important report will focus on the question “what do we want to know?” That is, what research questions do we ultimately wish to be able to answer and what are the priorities as between the questions? The information for this report will come from two sources: consultation with BC justice stakeholders and research exploring what academics and policy analysts in other jurisdictions have said about this question.

 

Also in furtherance of this issue, ACE and Prof. Andrew Pilliar of TRU law school will organize a Roundtable Session for the June 7-10, 2018 Annual Meeting on Law and Society in Toronto, entitled “What We Know, and Need to Know, about Access to Justice in Canada”.  Other presenters will include Rebecca Sandefur, University of Illinois, Noel Semple, University of Windsor and Pierre Noreau, Université de Montréal

 

2.2(f) Attrition Study Follow-Up: On September 15, 2015 the Canadian Forum on Civil Justice (CFCJ) published “Civil Non-Family Cases Filed in the Supreme Court of BC – Research Results and Lessons Learned”.[9] That study was undertaken jointly by CFCJ and ACE, and was conducted by Focus Consultants of Victoria, B.C. in 2014 and 2015 in the Supreme Court of British Columbia. It was premised on the fact that, while we know that approximately 2% of cases filed in section 96 courts go to trial, we know very little about what happens to the other 98%. The study confronted multiple problems in trying to collect data about that 98% from the 500 BCSC motor vehicle accident and general civil (non-family) files captured by the review. This follow-up study would publicize these findings and:

·  consider what changes would need to be made to data collection processes in the BCSC in order to better answer the original questions, meet the research objectives, and provide a high level plan for such changes, and

·  identify any legal, financial or administrative problems or complications that would be encountered in making such changes to the system.

 

There will be travel requirements and administration costs involved in some of this work.

 

 

2.3  SUPPORT NATIONAL JUSTICE METRICS COORDINATION

 

At the ACE Colloquium of May 2016, when the idea for the RFWG emerged, it was also recognized that other Canadian provinces and territories are in the same position as BC in terms of the need for empirical research and paucity of reliable metrics. The Colloquium report stated, 

 

Clearly, there would be enormous benefits to having all provinces collaborate on access research and on the creation a national research agenda.  A coordinated national approach would help to avoid duplication of effort, maximize efficient use of resources and better ensure the ultimate comparability of metrics between jurisdictions.[10]

 

Convinced of its potential long term benefit for BC and all of Canada, ACE is taking a leadership role in a national metrics coordination initiative by strenuously promoting it through the national Action Committee and by working to maintain the momentum behind the four provinces now actively participating.  ACE initiated this project by successfully proposing it to the Steering Committee of the national Action Committee on Access to Justice in Civil and Family Matters (AC) and by outlining a proposal for national metrics coordination to the annual AC meeting held on March 23 and 24, 2017 in Vancouver.[11]  In preparation for this meeting ACE, with financial support from the BC Law Foundation, wrote a background paper and conducted a national survey on the status of justice metrics in each province and territory.[12]

 

The proposal was strongly endorsed by the full AC membership and, following the Vancouver meeting, Chair Thomas Cromwell invited the following individuals to take a leadership role in national justice metrics coordination, under the sponsorship of the AC:

 

·      Professor Pierre Noreau – Faculté de droit de l’Université de Montréal.  

·      Ms. Brea Lowenburger – Access to Justice Coordinator, CREATE Justice, College of Law, University of Saskatchewan, Saskatoon. 

·      Professor Trevor Farrow – Academic Director, Winkler Institute for Dispute Resolution, Chair, Canadian Forum on Civil Justice. 

·      Professor M. Jerry McHale – Access to Justice Centre for Excellence, University of Victoria.

 

This group is now styled as the “Action Committee Metrics Working Group”.

 

In his invitation letter, Cromwell said that “…the AC wishes to propose a model that sees four or five well positioned provincial organizations take a leadership role in the metrics project in a way that allows their work to be transparent and fully utilized by all justice sectors and justice partners across Canada.” Discussions In furtherance of this proposal commenced during the summer of 2017.  ACE’s work on this project over the next year will include:

 

2.3(a) Convening meetings and establish joint goals with the participating provinces.

 

2.3(b) Developing a mechanism for sharing information between jurisdictions. probably through the Access to Justice Network at the Canadian Forum - metrics research, planning, initiatives, lessons learned, etc.;

 

2.3(c) Identifying and initiating at least one common “demonstration” research project across the four jurisdictions.

 

2.3(d) Working with the federal Department of Justice and Stats Canada to secure a place in the Stats Can 2020 General Social Survey for up to four access to justice questions.

 

 

2.4  ACE RESEARCH PROJECTS

 

ACE will produce its own access-related research providing needed information to justice stakeholders on a range of access issues. In 2018/19 this will include:

 

2.4(a) A report entitled, “Out-of-pocket: calculating the real costs of family court.” This research will develop a methodology for quantifying the cost of family law processes to litigants beyond court and legal fees. ACE is working with the Law Foundation of Ontario and researchers Sarah McCoubrey and Meredith Brown on this project.

 

2.4(b) Supervising law students in the writing of research papers designed to meet specific access information needs of stakeholders in the BC justice system. For example, two students in UVic’s Fall 2017 Access to Justice class wrote a paper in consultation with, and for the use of, provincial court Judge Adrian Brookes and others operating the Victoria Integrated Court.  The paper is titled, “Victoria Integrated Court: The Housing Problem.”  It is a 45 page review of all major research on the linkages between crime, recidivism, rehabilitation, mental health and housing. Efforts are being made to have a shortened version of the paper published in a legal journal.

 

JD students will have numerous opportunities to engage in research activities to further both their own learning and ACE’s work. Undergraduate law students will have the opportunity to conduct research on access related topics and to write papers for credit through Law 325 (Access to Justice), Law 390 (Major Paper), or Law 690 (Directed Studies in Law). ACE is currently involved in the supervision of three UVic graduate students working on access-related topics including legal technologies, alternate dispute resolution, and professional education.

 

 

2.5  ACE OUTREACH and NETWORK BUILDING

 

ACE will work to build linkages with justice stakeholders and to enhance the profile of access issues and metrics research within BC. Outreach activities will include:

 

2.5(a) Maintain linkages with UBC (Prof. Carol Liao) and TRU (Prof. Andrew Pilliar) to engage the other BC law schools in access and metrics work.

 

2.5(b) Work collaboratively with Access to Justice BC - and in particular with its Measurement Working Group - and with any other provincial body able to contribute to the access or the metrics issue.[13]

 

2.5(c) Encourage interest in and facilitate access to justice research among UVic law faculty and students; and reach out to other UVic faculties and other disciplines for opportunities to support access-oriented justice research projects.

 

2.5(d) The ACE Director will continue through the next fiscal year to sit on the Steering Committees of Access to Justice BC and the national Action Committee.

 

2.5(e) Report progress to metrics stakeholders. This will be a matter of ensuring that all stakeholders who attended the May 2016 Colloquium are aware of ongoing metrics developments.

 

 

2.6  BUILDING A SUSTAINABLE FOUNDATION FOR ACE

 

Because ACE is a new organization, some of its energy and resources must be devoted to securing basic resources, establishing business practices and bolstering administrative supports sufficient to sustain itself over time. Work here will include:

 

2.6(a) Securing continuation of the UVic, Lam Chair in Law and Public Policy.  This Chair was occupied by Prof. Jerry McHale until June 2017 when he shifted to a half time position involving  teaching access to justice and directing ACE. Work is now underway to secure the necessary funding and approvals to establish the Chair on a continuing basis. Ongoing Lam Chair responsibilities would include:

·      teach in the UVic Faculty of Law and Faculty of Human and Social Development,

·      bring expertise in the subject areas of access to justice and dispute resolution,

·      undertake access to justice research, and

·      support the ongoing mandate, administration and operation of ACE.

 

2.6(b) Secure the necessary resources to fund ACE’s operational and administration on needs on an ongoing basis. The UVic Faculty of Law strongly endorses ACE’s work and is providing substantial support for ACE.