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Thinking Big about Access to Justice

Thursday, June 15, 2017

This article originally appeared on The Lawyer’s Daily on March 3, 2017: https://www.thelawyersdaily.ca/articles/2599. It is the first article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.

Access to justice is the biggest challenge facing our legal system. And just about every lawyer I know cares deeply about the health of that system and many are trying to help. But do we understand the problem and are we making progress? Those questions will be the jumping off spot for this, and subsequent blogs dedicated to access to civil and family justice.

Let’s start with what we mean by the term “access to justice.” I’m concerned that it can have so many meanings that it loses its meaning entirely. Of course it’s a phrase that is bandied around to mean a lot of very different things. What I mean by access to justice is assuring that people have the knowledge, skills, resources and services to meaningfully address their civil and family legal issues.

In order to meaningfully address their problems, people do not necessarily need to have their “day in court” (let alone their month in court!). Access to justice needs to be understood much more broadly than that. I will never forget the women at one of the many access to justice events that I’ve attended over the past eight years who said that sometimes it’s more about a bus pass or a babysitter than it is about getting into court. So access to justice must be understood in broad terms: do people have what is required to meaningfully address their problem?

This broad understanding of access to justice means that we have to keep fair process and practical outcomes in some reasonable balance. Many would say – and I am one of them – that we in the justice system have tended to be process heavy and outcomes light. We all know that too often a judgment is a meaningless piece of paper; too often, what we call fair process provides a means by which moneyed might can wear out the right. Of course, fair process is important. But so are practical outcomes. How often does our current approach provide both?

Once we understand that access to justice must be understood broadly, we quickly see that the problem is both complex and systemic. Everything in our system is related to everything else and so a “solution” adopted by one part of the system can quickly become a “problem” for another part. We have generally been unwilling or unable to take a tough-minded, systemic view of access to justice. And too rarely have we been able to articulate the specific goals of reform or been able to measure or meaningfully evaluate the effects of particular reforms.

Remember when, in the 1970s and early ’80s, broader rights of discovery were thought to be the cure-all for what ailed the civil justice system? Broader rights of discovery would make for fairer trials and encourage settlement. Fast forward 30 years, and what became enemy No. 1 in civil proceedings? Excessive discovery. The discovery saga is typical. Significant procedural reforms are introduced based on anecdotal  evidence (sometimes called “anecdata”) and effects are “monitored” in the same way. We simply do not take account of foreseeable systemic effects of the changes or bother to measure these effects once the reforms are put in place.

What I hope to do in this series of columns is to invite a broader understanding of what access to justice means and to advocate for a fundamental rethink of what our system of civil and family justice needs to look like to achieve practical outcomes by means of fair process for the people who bring us their legal problems. And I hope to celebrate some of the wonderful work that is being done every day across Canada to improve access to justice. In short, I want to invite readers to think big together about how we can bring about major and beneficial change for the people who look to us for help in addressing their civil and family justice issues.

Fasten your seat belts.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now counsel to the national litigation practice at Borden Ladner Gervais.