Access to Justice: A Government Perspective
McHale, M. Jerry, University of New Brunswick Law Journal
This paper looks at the problem of diminishing access to civil justice from a provincial government perspective. (1) It considers the particular role and responsibilities of provincial governments in responding to this problem, and looks at some of the challenges that characterize the current civil justice environment as well as how those challenges are shaping provincial policy and program responses. It touches on some values and principles that could inform provincial government actions and proposes a model for thinking about government services in a way that could maximize limited justice system resources in support of expanded access.
In considering these matters it is taken as a given that civil and family courts across Canada have become largely unaffordable and inaccessible. A wealth of commentary over the last decade or so in the form of reports, recommendations, studies, research papers and speeches tells us that the civil courts are too expensive, too complex, too slow, and that they are increasingly unavailable as a forum where citizens can assert their rights. (2) These commentaries also observe that trials are getting longer and fewer and that courtrooms are increasingly filled with unrepresented and self-represented litigants who are trying, often unsuccessfully, to navigate the com, (3) Plexities of civil procedure. The tone of the commentary is sometimes urgent, and the suggestion is not uncommonly made that the civil justice system is in need of fundamental reform. (4)
A significant number of reforms aimed at mitigating cost or complexity have in fact been recommended over the past several years, and some have been implemented. (5) These recommendations cover a broad range of initiatives including dispute prevention, streamlined civil procedure, increased judicial case management, judicial specialization, changes to court structure, alternative trial formats, costs reform, alternative legal billing arrangements, point of entry triage or streaming of cases, expanded education, information and advice services for unrepresented litigants, enhanced or mandated mediation, more arbitration, changes to legal education and to legal culture, increased utilization of technology, and increased government funding for all of the above as well as for legal aid, civil and family duty counsel, family law programs, and other justice-related services.
When recommendations for change are made, the question arises as to who gets to decide upon and implement such changes. Provincial governments have two primary roles to play in this respect. One role is to provide resources for the justice system and the other is to administer it--that is, on matters within provincial jurisdiction, to develop policies, implement programs, operate services and make decisions about operating priorities. An examination of each of these roles, and the internal and external forces that impinge upon them, will provide a context and identify some of the complexities now confronting provincial governments as they attempt to respond to the problem of diminishing access to justice.
The Province as Administrator
The authority of provincial governments respecting the courts is set out in section 92 of the Constitution Act 1867, which provides that they have power over the administration of justice, including the "constitution, maintenance, and organization" of provincial courts of both civil and criminal jurisdiction. (6) Corresponding provincial legislation speaks to provincial responsibility for the court system. In British Columbia for example, the Attorney General is responsible to see that the administration of public affairs is in accordance with law and must superintend all matters within provincial jurisdiction connected with the administration of justice. (7) The Supreme Court Act [RSBC 1996] Chapter 443, s.10 provides that the Attorney General is responsible for "the provision, operation and maintenance of court facilities, registries and administrative services" and that the province may appoint a chief administrator of court services. …