Access to Justice: Towards a Collaborative and Strategic Approach
Cromwell, Thomas A., University of New Brunswick Law Journal
[The thirty-third Viscount Bennett Memorial Lecture was delivered on October 27th, 2011, by the Honourable Thomas A. Cromwell, Justice of the Supreme Court of Canada.]
It is a great honour and pleasure to present the thirty-third Viscount Bennett Lecture. I attended the Viscount Bennett Lecture in 1987 and took part in the Symposium on Dispute Resolution held in connection with it. Some of the themes we explored 23 years ago remain current when we turn to my subject for this year's lecture, Access to Civil and Family Justice.
My remarks will address three main areas. First, I will provide a working definition of access to civil and family justice and sketch what I take to be the dimensions of the problem. Second, I will tell you about the work of the Action Committee on Access to Civil and Family Justice, which was set up by Chief Justice McLachlin, and which I am chairing. Finally, I will turn to some thoughts about how law faculties could become more fully engaged in efforts to improve Access to Justice.
What is Access to Justice and is there a Problem?
What do we mean by access to civil and family justice and is there a problem in this regard?
I will not spend much time trying to define with precision what is meant by Access to Justice. That in itself has been a topic of debate since at least the 1970s. But I think we can agree that, in general terms, members of our society would have appropriate access to civil and family justice if they had the knowledge, resources and services to deal effectively with civil and family legal matters. I emphasize that I do not have a "court-centric" view of what this knowledge and these resources and services include. They include a range of out-of-court services, including access to knowledge about the law and the legal process and both formal and informal dispute resolution services, including those available through the courts, I do not view Access to Justice, and I suggest we should not view it, as simply access to litigation or even simply as access to lawyers, judges and courts, although these are, of course, aspects of what Access to Justice requires.
Is there a problem with access to civil and family justice? My answer, and the answer of every commentator that I know of, is "yes." Is the problem serious? Again, I believe the answer is "yes." By nearly any standard, our current situation falls far short of providing access to the knowledge, resources and services that allow people to deal effectively with civil and family legal matters. There is a mountain of evidence to support this view. I will touch on only a few examples.
Perhaps the most sobering piece of evidence is the 2011 Rule of Law Index, published by the World Justice Project. (1) The report noted that Canada is among the top ten countries in the world in four categories of the rule of law, but that its lowest scores are in the area of access to civil justice. In that area, Canada ranks sixteenth out of the twenty-three high income countries indexed this year. This dismal ranking results in part from shortcomings in the affordability of legal advice and representation, and the lengthy duration of civil cases. (2) Perhaps the only good news in this report is that while we stood sixteenth out of twenty-three, the United States was twenty-first. Why, it might be asked, do we so often look south of the border for solutions to our problems with access to civil and family justice?
Recent reports in Canada have concluded that many legal needs of people in lower- and middle-income groups are not being met. I refer to the reviews of legal aid by the Canadian Bar Association (3) and by the Doust Commission in British Columbia (4) as well as reviews of legal needs in Ontario. (5) The Ontario Civil Legal Needs project found that 1 in 7 low- and middle-income Ontarians with a civil legal problem in the past three years did not follow through h on it because of cost. …