Access to Justice: A Societal Imperative

Remarks of the Right Honourable Richard Wagner, P.C.
Chief Justice of Canada

Thank you for that kind introduction. Distinguished judges, lawyers, colleagues, and friends: good morning. It’s a pleasure to be here today at the 7th National Pro Bono Conference. You’ve got an incredible line-up of panels, workshops, and discussions ahead. Thank you for being here and for doing this hard but necessary work.

It’s meaningful for me to be here in Vancouver, for a personal reason. When I was first appointed to the Supreme Court in 2012, I gave an interview to the Globe and Mail where I said that, “If you don’t make sure there is access to justice, it can create serious problems for democracy.” ^{Footnote 1} This comment led to an invitation to give the keynote address at the first British Columbia Justice Summit in early 2013. It was my first major speech as a Supreme Court Justice. And here I am, back in Vancouver, more than five years later, which is wonderful. But what is not so wonderful is that we still face the same challenges, and I’m back here talking about some of the same issues. As we say in French, “plus ça change, plus c’est pareil”, the more things change, the more they stay the same.

People sometimes talk about access to justice as if there were a golden age when everyone could afford a lawyer, and everyone could go to court to solve their problems quickly and painlessly. I can tell you this was never the case. We have always faced challenges. Lawyers’ fees have always been expensive, court dockets have always been crowded, and procedures have always been slower than we’d like. We didn’t even have legal aid programs in all provinces and territories until the mid-1970s. ^{Footnote 2}

Over the years, we have made progress. Organizations like the Access Pro Bono Society of British Columbia have stepped in to help fill a need. The Society has brought together lawyers, legal professionals, and students to provide quality legal services to people and organizations with limited means, for free. It’s an incredible accomplishment. Everyone who has been part of this should be very proud.

But I would be remiss if I didn’t acknowledge someone here today who has also done a lot to make justice more accessible to Canadians. My former colleague on the bench, the Honourable Thomas Cromwell, has not only shown us that there is life after the Supreme Court, but also that we really can find solutions to these challenges. His work with, and I quote, the Canadian Forum on Civil Justice’s Action Committee on Access to Justice in Civil and Family Matters – how did you fit that on a business card, Tom? – has not only led to some creative ideas, but also found practical ways to implement them. I know we’re all looking forward to hearing his insights as he moderates the first session.

Even though so much has been done, we’re all here today because we still have more to do.

Defining Access to Justice

Whenever I think about access to justice, a quote from Honoré de Balzac comes to mind. He said that, “Laws are spider webs through which the big flies pass and the little ones get caught.” To me, that image perfectly captures not just the inequities in our legal system, but the tangible effects those inequities have on people. While the system is meant to treat everyone equally, some people get stuck, and expend a great deal of time and energy trying to break free. Others breeze through to resolution, and move on with their lives. Giving people access to justice is like giving them the tools to free themselves from the spider’s web.

“Access to justice” can mean many things. Having the financial ability to get legal assistance when you need it. Being informed of your right to counsel when your liberty is at stake. Having courts that can resolve your problem on time. But it also means knowing what tools and services are available, and how to get to them. It means knowing your rights and knowing how our legal systems work. It can even mean seeing people like yourself represented in all parts of the legal system. And it means having confidence that the system will come to a just result – knowing you can respect it, and accept it, even if you don’t agree with it. Ultimately, it is about getting good justice for everyone, not perfect justice for a lucky few. It’s a democratic issue. It’s a human rights issue. It’s even an economic issue. Let me explain.

Access to Justice is a Democratic Issue

“Getting good justice for everyone” is a phrase I used a moment ago; I’m sure we could have a lively debate with the political scientists, but for me, as a jurist, those five small words might just capture the ultimate goal of a democratic state. We are very lucky to live in a stable and peaceful country. We trust that legal wrongs will be set right. Let’s never forget that the first victims of a tyrannical and oppressive state are always the judges and lawyers who stand up for people’s rights, and the media who report on them.

But the more difficult it becomes for people of a certain class, education, or income level to get justice, the more we put public confidence at risk. Look at the self-represented middle-class parent fighting for child custody. Look at the person accused of a minor crime whose legal aid lawyer struggles to competently do the work in the limited hours legal aid will pay for. Even with people like all of you working very hard to prevent it, every day our system fails someone.

Over time, this will diminish public confidence. In an extreme scenario, it could lead to social unrest. It’s not the kind of thing that will happen overnight – but it keeps me up at night.

Access to Justice is a Human Rights Issue

Even before we feel the impact at a societal level, access to justice first and foremost affects the individual. Under the Charter, everyone has the right to equal treatment under the law and equal benefit of the law. To deny access to justice is to deny people their dignity, to say that some people are worthy of justice and some aren’t.

Lack of access to justice reinforces existing inequities. An accused without legal representation may decide to plead guilty when he might have been acquitted or convicted of a lesser crime with a lawyer’s help. He may be wrongfully convicted. He may be sentenced to a longer prison term than he would have received had he gotten legal advice. Out on bail, he may not be given the support he needs to comply with his bail conditions. In the end, those who can’t access legal services may spend more time in jail. It has profound effects on people’s lives.

Access to Justice is an Economic Issue

Access to justice isn’t just about social stability or individual rights, as important as they are. It’s an economic driver, too. A person who is denied justice isn’t going to be a positive and productive member of society. He will have a harder time motivating himself to work for the future. He probably won’t be a good employee, or offer to volunteer his time, or make wise long-term choices. This affects all of us.

Similarly, people in business need to get commercial disputes settled quickly. The world economy is not going to wait on a lawsuit, and businesses risk getting left behind if they can’t act fast. While large businesses can hire lawyers or go to arbitration, small- and medium-sized ones may not have that luxury. In some cases, accessible justice can mean the difference between a going concern and a bankruptcy. When justice is not accessible, there is a real economic cost, on top of the social and human costs.

Barriers to Access

I’ve given a brief overview of what access to justice is, and why it’s important. Now comes the tricky question: why haven’t we been able to achieve it? And, ultimately, what can we do about it?

Costs

Well, the first barrier is obvious, and perhaps the top concern of many people in this room: cost. Legal services are expensive. They are just out of reach for many Canadians.

In British Columbia, a single person making minimum wage will not qualify for legal aid if they are working full-time. ^{Footnote 3} The situation is the same in other provinces. ^{Footnote 4} Most people affected by lack of legal aid are women, people with disabilities, recent immigrants, members of racialized communities, and Indigenous peoples, who are overrepresented at lower income levels. Government spending on civil legal aid has fallen in Canada, from $11.37 per person in 1994 down to $8.96 in 2012. ^{Footnote 5} Spending in other areas (like health and education) has risen.

While we often see affordability as an issue for low-income households, middle-income earners, who make too much money to qualify for legal aid, also suffer. Some decide not to seek legal remedies or fight criminal charges because of cost. Others have no choice but to represent themselves because they can’t afford counsel. Average legal fees for a two-day civil trial in Canada were $31,330 in 2015, which is out of reach for many. ^{Footnote 6} In fact, I think many lawyers wouldn’t be able to afford their own services. The problem is especially acute in family law, where more than half of litigants come to court without a lawyer. ^{Footnote 7} In criminal law, while it is rare for persons accused of very serious charges to represent themselves due to lack of funding, ^{Footnote 8} legal aid frequently will not cover minor criminal offences, ^{Footnote 9} even though these can still affect a person’s life and livelihood.

The numbers of self-represented litigants are not going down. They file about a third of leave applications at the Supreme Court. The average number of these applications that are granted in a given year is zero, since only one or two are granted every five or so years. ^{Footnote 10} Dealing with “self-reps” imposes heavy burdens on judges, court officials, and opposing counsel. This leads to frustration and contributes to a second barrier, delay.

Delays

Over the years, trials have become longer and more complicated. Forty years ago, a murder trial might have taken a week. Today, one month isn’t unusual, and complex trials can go on for years. This is partly for good reason. New technologies have brought us new kinds of evidence, requiring testimony from new kinds of experts. The Charter allows an accused to challenge breaches of fundamental rights.

But, as the Supreme Court said in Jordan, we can no longer be complacent about delay. No one wins when a charge is thrown out due to delay – not the accused who has been caught in limbo, not the victims and witnesses who may ultimately feel they have been denied justice, not society. No one.

Delays in the civil justice may be even worse, as there aren’t the same constitutional pressures when a person’s liberty isn’t at stake. Parties overwhelm each other with thousands of pages of disclosure. It can take a year or more even to get a date for a trial that might last two months. In the meantime, parties suffer financial losses or family disharmony; physical and mental health issues remain unresolved. An injured person might be persuaded to take a lower settlement because he can’t work and needs to pay the bills. Delays cause people to make difficult, and life-altering, choices.

Lack of Information

A third barrier to access to justice is lack of access to legal information. How many problems could be avoided if the public had a higher level of legal knowledge, or at the very least quick and affordable access to basic advice?

On the other hand, a little knowledge is a dangerous thing, and that’s no more evident than when you see a self-represented litigant in court, relying on some arcane point of law that she Googled, without realizing why it doesn’t actually help her. Or without noticing that everyone else in the room is getting frustrated at the waste of time.

It isn’t just a problem of a lack of information; there is also too much _mis_information. People are starting to distrust public institutions. Some litigants choose to represent themselves not because they can’t afford a lawyer, but because they don’t trust them. Because lawyers are part of the “system.” Just providing more legal information won’t solve this.

What Can We Do?

When I spoke earlier about how access to justice has been a longstanding challenge, I didn’t mean that it can’t ever be overcome. Judges, lawyers, and policymakers have made extraordinary efforts to improve access in recent decades. Many of you in this room are responsible for the legal clinics, pro bono programs, dispute resolution mechanisms, and legal information initiatives that are helping shine the light of justice into the dark. I don’t want to downplay any of that work. My point is, we need to continue it.

We need to do more to provide legal information to citizens at court houses, through justice organizations, and online. With today’s technology and communications tools, there are many ways we can improve access to information. We are putting a lot of thought into this at the Supreme Court. We’re posting information on Facebook and Twitter, so that more Canadians will see it, since we know that not everyone is looking at the Court’s website. Our plain-language Cases in Brief describe decisions in non-legal language to allow everyday readers to understand the decisions, why they are important, and how they may affect their lives.

Every actor in the justice system has a role. Judges can no longer stay on the sidelines, but need to think critically about how they can improve access. Related to that, we need more judges on the benches. We have dozens of judicial vacancies in this country. Every position that goes unfilled means longer waits for cases to be heard, which reduces access for everyone.

Legal aid programs need to find new and innovative ways to provide competent services with limited resources. From policy makers to law societies, everyone in the justice system needs to think hard about what we can do differently to give people access to justice and maintain confidence in the legal system.

Last, but certainly not least, we need lawyers to do more pro bonowork. All of you are in this room because you care about access to justice. Because you know this matters. You’ve made a commitment to help. And I applaud you for it.

It is a privilege to practice law in this country. Society puts a lot of trust in lawyers as members of the bar. The work of a lawyer is a kind of public service, in that it supports our democracy, protects human rights, and keeps our economy running smoothly. Of course, there are many bad jokes out there, and you’ve probably heard a few, that will tell us that being a lawyer isn’t about any of that at all. But it is a noble calling. And part of that nobility is found in giving back, when we can. I know all of you are here because you want to.

Our challenge is to find ways to integrate pro bono work into the fibre of our profession. To make it more than just a nice value-add that we can feel good about. Providing pro bono services doesn’t have to mean giving up your income or sacrificing all of your spare time. It means giving back a little.

I am encouraged to see that pro bono representation is increasing. Law firms are now building pro-bono projects into their business models, as a way to give back, build a positive reputation, and give their younger lawyers the courtroom experience they need to become better advocates. We’ve got to encourage this trend. You’ve got to encourage this trend. Many of you have joined firms that take on pro bono work. Make sure those programs are maintained, and expanded. You’ll have a voice where others don’t.

Conclusion

Pro bono work is hard. Professionally, and emotionally. When we talk about the numbers and statistics, we often don’t take the time to acknowledge the human cost behind it. The anxiety and suffering of people who need legal help but can’t get it – and the stress and anguish of the people who are trying to help, but simply cannot do all that needs to be done. I said pro bono work is a noble calling; that doesn’t mean it’s glamourous. But it is work you can proud of. And it is our responsibility, as a society.

As much as we may want a perfect system, we live in the real world, with real challenges and limitations. But that does not mean we should not continue to aim for something better, because the higher our aim, the more we will achieve.

Let’s do our part to make sure everyone can get through Balzac’s spider’s web without getting caught.

Thank you.

Remarks of the Right Honourable Richard Wagner, P.C.
Chief Justice of Canada
On the occasion of the 7th Annual Pro Bono Conference
Vancouver, British Columbia
October 4, 2018