E X PANDING HORIZONS Rethinking Access to Justice in Canada Proceedings of a National Symposium E X PA N D I N G H O R I ZO N S : R E T H I N K I N G A C C E S S TO J U S T I C E I N C A N A D A PREFACE Expanding Horizons: Rethinking Access to Justice in Canada For nearly three decades, access to justice has innocence, and winners and losers. In a sense, been a central policy issue within the justice is no longer the exclusive preserve of the Department of Justice. The early programs, traditional justice system. If Canadian society developed during the 1970s, provided is to develop effective and durable solutions to information about the law and how the justice the problems that face us, our justice system system works, or assured representation in will have to develop partnerships with court for people who could not afford legal communities and across disciplines and assistance. Looking back, though, we can see institutions. that these programs took for granted a traditional form of justice that was largely The Department of Justice is committed to formal and technical. Access was improved, renewing its own approach to access to justice, but the problems that brought people into to reassessing traditional policies in the light of contact with the law were generally defined in new ideas about the meaning of justice and the narrow legal terms to be resolved only in court. changing expectations of the Canadian public. This symposium, "Expanding Horizons: But justice means more than simply applying Rethinking Access to Justice in Canada" was a the law without regard to the underlying social, first step in that process. The symposium economic, and psychological factors, as we have gathered together a hundred leaders from the become increasingly aware in recent years. New justice community and related fields for a day ideas have entered the discourse, widening the of "conversation extraordinaire." The outcome scope of the concept and affecting the way we was a clear consensus that the justice system think of justice – and of access to justice. It is can find improved ways of providing justice to not enough to treat access as solely a matter of Canadians. There is evidence of a strong courts and formal legal proceedings. willingness to experiment with change, to give new ideas a chance. Restorative, holistic and Moreover, the public is coming to expect a other approaches have moved from the margins more solution-oriented and participatory form into the mainstream – in the thinking of justice of justice. This new approach may go by leaders, at least, if not yet in the practices of different names – restorative, therapeutic, or the system itself. The agenda for the years holistic justice, for instance – but all reflect a ahead will focus on ways to make justice common concern: that the formal justice processes more citizen-centered, and more system is ill-equipped on its own to deal focussed on communities. We need to explore effectively with the problems thrown on its how the traditional justice system can adapt to doorstep. Justice is complex and change, develop effective partnerships, and find multidimensional, and the justice process must real solutions that respond to the needs of provide more than formal, adversarial victims, offenders, communities and all affected proceedings designed to find guilt or by the justice system. i E X PA N D I N G H O R I ZO N S : R E T H I N K I N G A C C E S S TO J U S T I C E I N C A N A D A The success of the Symposium was due in no small part to the enthusiastic participation of the one hundred invitees involved in this grand conversation. I would also like to acknowledge the vision of Andrée Delagrave and the superb organizational skills of the Access to Justice Team, Research and Statistics Division, in particular Steven Bittle, in making this project a reality. Morris Rosenberg Deputy Minister of Justice and Deputy Attorney General of Canada ii TABLE OF CONTENTS INTRODUCTION . 1 BACKGROUND . 2 WELCOME ADDRESS . 3 PANEL DISCUSSION . 3 Discussion and Comments . 6 WORKSHOPS . 8 1) More or Less? The Economic Perspective . 8 Discussion . 9 2) New Partnerships and New Delivery Mechanisms . 10 Discussion . 11 3) Diversity and Access to Justice . 12 Discussion . 13 4) The Role of Citizens and Communities . 14 Discussion . 15 AFTERNOON PLENARY . 17 SYNTHESIS — THE KEY CHALLENGES . 21 CONCLUSION . 23 APPENDICIES . 25 iii LIST OF APPENDICIES APPENDIX A 1) Agenda . 25 APPENDIX B 1) Citizen Access to Justice: Issues and Trends for 2000 and After, by Professor Mark Kingwell, University of Toronto . 26 2) Riding the Third Wave — Notes on the Future of Access to Justice, by Ab Currie, Research and Statistics Division, Department of Justice Canada . 37 3) Some Aspects of Access to Justice in Canada, by Ab Currie, Research and Statistics Division, Department of Justice Canada . 41 4) Justice is a Noun, But Access Isn’t a Verb, by Roderick Macdonald, President, Law Commission of Canada . 45 5) From the Rule of Law to Philia, by Jacques Dufresne, L’Agora Recherches et Communications Inc . 48 6) More or Less? The Economic Perspective, by Professor Stephen Easton, Simon Fraser University . 57 7) New Partnerships and New Delivery Mechanisms, by Professor Lois Gander, University of Alberta . 61 8) Diversity and Access to Justice, by Professor Brian Etherington, University of Windsor . 67 9) The Role of Citizens and Communities, by Carol McEown, British Columbia Legal Services Society . 77 10) The Judgement of Wider Courts, by Professor Gilles Paquet, University of Ottawa . 80 APPENDIX C 1) A letter from Ms. Cherry Kingsley, Save-the-Children-Canada . 89 APPENDIX D Participants List . 92 iv E X PA N D I N G H O R I ZO N S: R E T H I N K I N G A C C E S S TO J U S T I C E I N C A N A D A Expanding Horizons: Rethinking Access to Justice in Canada: Proceedings of a Symposium Organized by The Department of Justice Canada1 March 31, 2000 INTRODUCTION On March 31, 2000, the Department of Justice fe r ence. (The agenda and the list of parti c i p a n t s Canada hosted a one-day Symposium on access appear in Appendix A.) to justice. The Symposium sought to explore the concept of access to justice beyond its conven- Throughout the day participants discussed a tional boundaries. Participants were asked to variety of issues with respect to the state of rethink traditional views and explore the future the access to justice movement in Canada. In challenges of assuring access to justice for general terms the Symposium left participants Canadians in an increasingly complex and with one resounding message, quite rem a rk a b l y , demanding environment. from a large group of leading thinkers from within the justice system and from other areas In this one day of extraordi n a r y dialogue among of human endeavour. The key message was not leading thinkers and practitioners, the Depart- so much that the justice system — both civil ment took the pulse of the justice community and criminal justice, but especially the criminal about the state of access to justice in Canada. justice system — does not work. On that issue The more than 100 participants were drawn there was overwhelming agreement. The truly from a broad cross-section of people from all surprising message that emanated forcefully regions of Canada: judges, lawyers, policy from this “conversation extraordinaire” was that specialists, government officials, academics, there is a tremendous appetite for change community representatives, Aboriginal, visible among leaders from both inside and outside minority and persons with disabilities spokes- the justice system. persons. To ensure that participants could discuss a variety of issues with as many people as possible, The purpose of this report is to summarise the each participant was assigned a place at one of Symposium proceedings and, in the process, 12 mixed tables during the morning plenary identify the key issues that emerged from the session and reassigned to another table during presentations and discussions. The report the afternoon session. Participants were free to concludes with a brief discussion of seven sign up for any one of four workshops that ran themes that can act as guideposts toward a co n c u r re n t l y . A professional conference organiser, more accessible justice system. Lise Pigeon and Associates facilitated the con- 1Proceedings prepared by Mr. Marc Thérien. 1 E X PA N D I N G H O R I ZO N S : R E T H I N K I N G A C C E S S TO J U S T I C E I N C A N A D A BACKGROUND In preparation for the Symposium, participants selves Canadian.” As individuals in a rapidly were provided with a number of press clippings changing society, we “need to make time for and three background documents. (The back- reflection, to open up spaces both within our- gr ound documents, as well as all of the pres e n t a - se l v es and in our social interactions for thoughts tions deliver ed at the Symposium are rep ro d u c e d about justice that are not driven, in the first in Appendix B)We also received a letter from instance, by the imperatives of policy-making Ms.