Comment on Justice Cromwell's Viscount Bennett Lecture

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[Professor Bogart delivered these comments at an Access to Justice panel at the University of New Brunswick, on October 28th, 2011. The panel followed the thirty-third Viscount Bennett Lecture by The Honourable Justice Cromwell.]

INTRODUCTION

It is an honour to be asked to take part in the Viscount Bennett lecture. It is particularly so because of how much I admire Justice Cromwell. The energy, determination, and ability he is bringing to the Civil and Family Access to Justice Project is so admirable. His Committee has a formidable task. Its chances of success are greatly improved because of its leadership. In responding to Justice Cromwell's address I would like to make two sets of remarks. The first concerns some of the specific points that he made in his lecture. The second is about the importance of the question: What is Access to Justice?

There have been numerous efforts over the last decades to improve civil and family courts and, in particular, access to them and to legal services. (1) There has been innovation, especially regarding access: just three prominent examples are the rise of ADR, the widespread adoption of expanded class action mechanisms throughout the country, and the formalization and promotion of pro bono legal services. Yet it remains clear that there is a common belief that there are still many urgent issues regarding access to courts and to legal services. Clear evidence of these concerns is the unusual measure taken by the Chief Justice in establishing the Committee presided over by Justice Cromwell. She could have as easily taken the view that however important these issues might be, it was for the governments of the day to attend to them. Establishing the Committee is a brave step by a Chief Justice with empathy and vision.

Responding to Justice Cromwell: Three Questions

In terms of my first set of remarks, I would make suggestions to the Cromwell Committee by way of three questions.

(A) What Happened to All those Good Ideas?

Over the years, and because of the many attempts to improve Access to Justice in the courts and to legal services, there have been many good ideas that have been advanced. This is not to suggest that others will not still emerge. Rapid advance in technology may be one source for ideas that are yet to come. I'll say more about technology in a moment.

My point here is that the many previous attempts at reform provide a ready inventory that the Cromwell Committee can assess in terms of its own recommendations. Regarding that inventory, I would ask the following questions. Concerning the good ideas that were not implemented: why not? What were the barriers that prevented adoption? Can they be overcome this time? If so, how? If not, the consequences of not doing so should be underscored in terms of government's and society's actual (rather than proclaimed) commitment to access to courts and to legal services.

Concerning good ideas that were implemented, there should be a curiosity about the actual effects that were produced. It is probably unrealistic for the Committee to do its own evaluative research, but it can certainly highlight the findings of such studies when they have otherwise been done. The disappointing results are as important to take account of as the successful ones. Pitfalls need to be avoided when similar reforms are undertaken. In "assessing the assessments," the Committee can underscore the need for rigorous, independent evaluations of law reform. (2)

A final set of questions regarding good ideas: what can we learn from other countries with higher standing in the World Justice Project cited by Justice Cromwell? We were told by him that, despite Canada's high standing in some categories, our nation is sixteenth in terms of access to civil justice. Question: what are the top five countries doing in terms of this rating that we are not? One society is not a template for another. …