What Does “Access to Justice” Mean?

By: M. Jerry McHale, QC

There is a broad consensus that access to justice is a good thing and that we need more of it, but there may be less consensus, or at least less clarity, over what this term actually means.  The call for “access to justice” invokes notions of equality, equity, fairness, universality and justice. Such broad, aspirational qualities are easy to rally behind but, as Australian Justice Ronald Sackville has observed, “Like other catchphrases, such as ‘fairness’ and ‘accountability’ (if not ‘democracy’ itself), the expression ‘access to justice’ survives in political and legal discourse because it is capable of meaning different things to different people.”[1]

There are two primary streams of thought about the meaning of access to justice. The first emphasises the “access” half of the equation and focuses on the availability of resources to help individuals resolve disputes. The second steam emphasises “justice” and argues that the justice we seek consists of more than exposure to dispute resolution services. 

ACCESS TO DISPUTE RESOLUTION

The understanding of what access to justice means within the first stream has evolved over time.  In the 1960s it was basically taken to mean access to litigation. The focus was a narrow one. The thrust of reform efforts was to get more access - mostly for poor people - to lawyers, judges and the courts.

Refinements began to occur within this understanding in the 1970s. The emphasis shifted from getting cases before the courts to making the court system work better. Reform efforts focused on redesigning procedures and creating programs to handle a higher volume of cases more efficiently.  The target population expanded to include the middle class and to cover a broad range of civil issues. Typical innovations included procedural rules to expedite hearings, small claims courts, class actions, contingency fees, and regulatory schemes that diverted entire classes of claims (workers compensation, human rights, landlord and tenant, etc.) out of the courts and into quasi-judicial tribunals. Consumer protection offices, ombudspersons and no-fault insurance schemes took the notion of court avoidance a little further.

Access innovations in the 1980’s evolved to include managerial reforms (case management and case-flow management systems), judicial specialization and plain language. The idea of “alternative” methods of dispute resolution started to take hold in this decade. Mediation and new models of negotiation emphasised out-of-court dispute resolution and promoted non-adversarial values like conflict management, collaboration and consensus. Around the same time, the access discussion also expanded to include ideas like legal literacy and public legal education, dispute prevention and self-help. 

These visions have been cumulative and have brought us to our current understanding of access as a project that employs a diverse range of strategies, programs and processes in the service of resolving disputes. Probably the most significant shift in thinking is that the courts no longer sit at the gravitational center of the justice system. The search for access now extends well outside and beyond the formal legal system to include equal access to any legal or non-legal information, resource, service or process (formal or informal) that contributes to the mitigation or resolution of disputes.

ACCESS TO JUSTICE

The second stream of thought argues that access to justice is a wider concept than this in at least two respects. First, it should involve enhancing not only people’s access to dispute resolution processes, but also access to, and the capacity to participate meaningfully in, the processes by which laws and legal procedures are made. The calls made since 2013 by both the national Action Committee and the Canadian Bar Association for greater public engagement and wider stakeholder participation in efforts to reform access reflect this richer understanding of what access to justice should mean.

Second, this expanded conception of access insists that we take into account the structural inequities that exist in our system and that we see our justice institutions as responsible to do more than simply expose people to dispute resolution processes. Rather, it says we need to see law’s mandate in a larger social context – a context that includes stark inequalities such as the over-representation of First Nations in the criminal justice and child welfare systems and the formidable barriers confronted by the poor and marginalized in seeking justice. Such realities must lead us to a deeper and more ambitious meaning of access to justice as “the alleviation (if not the elimination) of injustice.”[2] Rod Macdonald calls for this when he proposes a “reorientation” in our thinking to accommodate the fact that “…disparities in social power, and not procedural glitches in the processes of civil litigation, are the root of injustice.”[3]  

Given the great difficulty we are having in achieving access even by the narrower definition, it is daunting to consider augmenting the challenge by adding to it the task of broader social equality. To the extent, however, that we wish to truly be, and remain, a democratic nation founded on the rule of law, we have no choice.


[1] Justice Ronald Sackville, Access to Justice: Assumptions and Reality Checks (2002) online at http://www.austlii.edu.au/au/journals/FedJSchol/2002/12.html

[2] See Justice Ronald Sackville, in Court Of Conscience, Access To Justice • Issue 8, 2014, UNSW Law Society, p. 5

[3] Roderick Macdonald, “Justice Is a Noun, But Access Isn’t a Verb” in “Expanding Horizons: Rethinking Access to Justice in Canada”, online: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/op00_2-po00_2/b4.html#sec15