Expanding Horizons: Rethinking Access to Justice in Canada

Workshops

Workshops

Following the opening plenary session participants had the choice of attending one of four workshops concerning key access to justice issues. Each workshop started with a presentation, which was followed by a group discussion. Designated rapporteurs attended each session to record the essence of the discussion and report their findings during the afternoon plenary.

1. More or Less? The Economic Perspective

In his presentation, Stephen T. Easton, Professor of Economics, Simon Fraser University, suggested that in regard to access to justice, “wants and needs are unbounded.” The question boils down to who will pay how much for what. Inevitably, there will have to be choices:

“The important question is what constraints are to be put on the process of obtaining enough justice.”

Stephen T. Easton

Consequently, my role as an economist is to suggest that even with new program spending (and especially were Justice to remain within the current envelope), the economic principle of tradeoffs among alternatives should be on the table nonetheless to evaluate the potential candidates for expansion.

To illustrate this point, Professor Easton provided a number of interesting facts:

After presenting a table on total spending on different categories of justice services in real 1999 dollars (to adjust for inflation), Professor Easton observed that the movement in total real expenditures in the courts and corrections were relatively gradual while legal aid costs were comparatively variable. These data suggest an important issue:

What kind of budgeting exercise is reasonable in the face of a desired expansion of service? It is easy to spend money. There is no lack of applicants with unmet needs if a government is willing to pay the freight – a look at the history of legal aid proves that. But can services be expanded in a way that is both meaningful to the recipients and to the taxpayer?

It is possible to expand services, but increases in spending should lead to higher benefits or improved results or outcomes:

Regardless of what criteria we choose for expansion, we need to be assured that the benefit from an additional dollar spent on legal aid, for example, should be as beneficial as the additional dollar that could go to the courts, the police or corrections.

One way of measuring this is to characterize service cost. One such characterization was presented in a table showing the cost of justice services per crime known to the police, measured in constant (1999) dollars. It shows that “the costs of justice relative to the number of crimes known to the police have been remarkably stable over the past decade.”

Professor Easton also provided a table concerning the number of offenders in federal and provincial custodial facilities over the past twenty years relative to the number of Criminal Code violations. He noted:

These data indicate that there is a stable association between these categories of expenditure and the underlying source of the demand for service that, in this simplified exercise, is taken to be “known Criminal Code violations”. The costs and service levels in our justice system are, by and large, stable. There are not great and sudden changes in costs relative to a basic measure of service.

However, if one examines the relationship between crimes and legal aid, there is no such stability. For that reason, it would be very difficult “to rationalize expanding a service that has been so variable unless it can be shown that a dollar spent on this form of justice yields a better outcome than an additional dollar spent among policing, corrections and the courts.”

Professor Easton concluded with an axiom:

To expand service in any one sector of spending, prove that the present cost per unit of service benefit in that sector is lower than the costs of expanding service in all of the other sectors.

In the case of legal aid, one must be able to demonstrate that “by expanding service you are improving access to justice better than by improving the courts, the police and corrections.”

Discussion

Part of the discussion centred on whether cost measurement in the area of justice is necessarily limited and whether there is a method for determining fair and effective allocation of resources. Decision-makers want measurable outcomes, but there is deep scepticism whether justice outcomes are truly measurable or whether typical measurements merely serve the interest of policymakers rather than clients. Participants observed that:

“There is a lack of systematic thinking about what a successful outcome is.”

A Participant

2. New Partnerships and New Delivery Mechanisms

“We find ourselves asking what access to whose justice?”

Lois Gander
Lois Gander, Professor of Legal Studies Program, Faculty of Extension, University of Alberta, began her presentation by reminding participants that many citizens consider the current legal system to be deeply flawed. It was important therefore to think outside the box.

What has Propelled the need to Re-think Access to Justice?

The challenges facing Canada’s legal system have been provoked by a variety of factors:

Whose justice?

We must give citizens the responsibility for determining what kind of justice they will have:

[...]we need forms of public engagement that promote conscientious participation in, informed discussion about, and enlightened reflection on the meaning of justice as it is played out in real life situations. We must strive for an inclusive notion of justice, one that draws from the richness of the diversity of Canadians’ experiences. Moving forward on this means finding ways of engaging everyone in meaningful contemplation of the most fundamental issue we confront as a civilisation.

To a certain extent, this is already taking place in some of Canada’s most troubled communities where restorative justice programs have been initiated:

Restorative justice is not the only vehicle we have for re-imagining justice but it is a handy one since police forces are implementing this approach to fighting crime in communities all across the country. Properly run, restorative justice programs provide us not just with new forums for dispensing more satisfying justice but with new sites for advancing our understanding of justice itself. Restorative justice programs empower individuals to exercise the duties and to experience the rewards of acting as citizens in a democratic society.

What access?

In rethinking justice, we must also be open to “other ways of conceiving the sources of justice.” Justice is not something to be delegated to institutions but lived in our daily lives as members of communities that recover their ability to manage their conflicts:

New visions of justice are only possible if we are prepared to abandon the familiar for a moment and entertain alternatives, no matter how unrealistic they may seem at first. Within them may lie the germ of an idea worth maturing. In the last few decades we’ve experimented with a variety of alternatives to our mainstream legal system in the forms of alternative dispute resolution, voluntary compliance, diversion from the criminal justice system or creative processes for sentencing offenders. We have had much success with these efforts. They embolden us to move even further away from the centrifugal force of the legal system.

However, governments cannot simply download and outsource justice to communities without providing resources in a variety of forms. This may also mean shifting resources “away from conventional legal systems and services.” Our ability to make these difficult choices will be the test of our commitment to justice.

Discussion

Professor Gander posed the following questions after her presentation: How do we renew the law to accommodate new ideas of justice and what do we want from the justice system?

Participants expressed a variety of views: