Access to Justice

Access Reform and the Data Gap

By: M. Jerry McHale, QC

The business of law recognizes the fundamental importance of making decisions on the basis of full and accurate information.  Rules governing rights of discovery, duties of disclosure and the admissibility of evidence help us avoid the obvious peril of basing decisions on incomplete or erroneous facts.

Yet when it comes to reforming the business of law - designing access programs, reforming court procedures, determining justice policies or deciding on spending priorities - the justice system finds itself making consequential decisions based on incomplete, insufficient and often inaccurate information.  This happens because of the paucity of useful operational data – we lack the information that could tell us how the justice system actually works and how to most effectively improve it.  As a consequence, we fall back on anecdotal ‘evidence’ derived from individual observations, personal opinions, common understandings and received wisdom – or what one BC Report calls “anecdata.”[1]

The system operates far from the ideal of evidence-based management and information-based decision making. “We are” the Canadian Bar Association suggests, “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.”[2]

Writers and commentators have lately observed that in spite of more than 20 years of analysis, recommendations and reform initiatives, the access to justice problem is only getting worse. Is it possible that the lack of objective, empirical insights into how the system operates could be at least part of the reason for this?  Do we in fact accurately understand the access problem? Can we properly feel confidence in our proposed solutions?

Information deficiencies in the administration of Canadian justice systems take several forms:

  • Insufficient data: there are relatively few data collection mechanisms in place and those that exist do not provide a great deal of useful information.  Recent research out of the Canadian Forum on Civil Justice, for example, attempted to determine what actually happens to the 98% of non-family claims in the BC Supreme Court that are commenced but do not go to trial.  Existing research suggests we can cannot assume these cases settle, so what happens to them? Unfortunately, the study that was intended to answer this question “confronted multiple problems in trying to collect data” and in the face of “incomplete and uninformative records” concluded that it simply could not locate data robust enough to support generalizable conclusions.[3]
  • Uncoordinated data: typically, the major players in the system - justice ministries and the different levels of court - each have their own separate data collection systems, and these systems are often not complimentary.  A few years ago, for example, when BC was looking to reduce the number of appearances in criminal cases, it discovered that the Ministry of Justice and the Provincial Court were working from different definitions of “appearance”, resulting in conflicting tallies of the average number of appearances per file.
  • Lack of performance measures: implicit in the data question is the issue of how data can be used to measure the efficiency or the effectiveness of the system. Historically, court data collectors have tended to record outputs; that is, they count things like judicial sitting hours, numbers of judicial conferences, numbers of hearings, orders made, time to trial, and so on. While such information is useful for day to day administration it gives little information and no guidance about outcomes. It provides no measure of how well the system is, or is not, working.  Does the system, for example, actually meet litigant’s needs? Does it solve people’s problems? Do litigants get value for money? The system’s ultimate accountability is not to hold a set number of trials or make a certain number of orders every year; it is to maintain social and commercial order through an effective and accessible system of justice. If this is our ultimate goal, we need to be able to measure our performance against it.
  • Lack of empirical research: these data shortfalls create an impediment to academic engagement. They frustrate scholarly inquiry into access and procedural issues, which in turn limits the production of much needed empirical research.

Numerous papers and reports have recognized the essential role that data and empirical research have to play in responding to the access to justice problem.  The UVic Access to Justice Centre for Excellence (“ACE”) plans to contribute to this response in a couple of different ways.

With support from the BC Law Foundation and the Legal Services Society, ACE will hold two invitational Research Colloquia in Victoria in 2016. The first will be held on May 13 and will focus on access to justice research needs, priorities, strengths and challenges within BC.  The second, in September, will go a step further to explore the possibility of a coordinated access research strategy and framework that is national in scope.

The results of the colloquia will be disseminated and will hopefully provide the foundation for a broader conversation about access research involving all justice system stakeholders.

More immediately, ACE will implement its Access Research Data Map project. ACE will soon be canvassing researchers from across Canada to collect information about access research activities now underway, or planned, in Canada.   This project is intended to provide a means for researchers, institutions and agencies to begin to share and coordinate research information. Future blogs on this site will keep readers apprised of progress on this and other ACE research initiatives.

 

 

[1] See D. Geoffrey Cowper, QC,  A Criminal Justice System for the 21st Century (2012) at p. 88, online at http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-reform-initiatives/cowperfinalreport.pdf

[2] Canadian Bar Association, Access to Justice Metrics: A Discussion Paper, April 2013, at p. 1

[3] Focus Consultants for CFCJ, Civil Non-Family Cases Filed in the Supreme Court of BC Research Results and Lessons Learned (2015) online at http://www.cfcj-fcjc.org/sites/default/files/Attrition%20Study%20Final%20Report.pdf

 

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