Access to Justice: Is this still an issue?
For this edition of the newsletter, we thought it important to write about the two perspectives that have emerged in regard to access to justice in light of the COVID-19 global pandemic. I will be writing from the perspective of technological advances which have potentially eradicated many of the access to justice issues that have plagued our system for decades. My colleague, Kayla Stephenson, will offer you the other perspective that suggests access to justice issues continue to prevail in our Family Justice System despite recent advances made as a result of this pandemic.
What is access to justice?
I was called to the Bar in 2005. That same year, Professor Constance Backhouse wrote a paper entitled: “What Is Access to Justice?” I knew Professor Backhouse from my days as a law student at the University of Ottawa. She was one of my legal role models even though she never taught me. I was in the Common Law in French program. In my view, her work as a legal scholar specializing in gender and race discrimination is inspiring, exemplary and groundbreaking. If you have not already done so, I highly encourage you to read this paper, which you can find on Professor Backhouse’s website at https://www.constancebackhouse.ca/fileadmin/publicationlist/What_is_Access_to_Justice.pdf. She explains the historical foundations of access to justice as well as the collective historical amnesia and contemporary debates that have permeated across our Canadian justice system well before and after 2005. Her explanation of access to justice is thorough and spans centuries of data that cannot be excused. This is a complex issue and I will not attempt to summarize it in this article. However, I will cite a passage at page 127 of her thirteen page paper that has stayed with me all these years: “Access to justice has been contingent historically upon gender, race, dis/ability, class and sexual identity. The past inequities have left enduring legacies. Our current justice system continues to reflect the same patterns of inequity. Canadians must confront these manifestations of ongoing discrimination with a stronger commitment to change than our ancestors demonstrated. Failure to achieve a substantially more balanced legal system and society will only cement into place further layers of injustice for the next generations to have to dismantle.”
Although it was written over fifteen years ago, it unfortunately continues to be incredibly à propos in light of current events. It is painfully obvious that very little progress has been made. To those of you who read this and believe progress has been made and our system is a beacon of pride across the globe, I would ask you to look in the mirror and recognize the face of privilege that often comes with that thought. To those of us who seek to look at our justice system with a critical eye, we continue to bear witness to a reality that was so simply explained by Professor Backhouse in 2005 at page 121 of her paper: “Politicians, lawyers and judges whose lives contain little personal experience of racism, sexism, disability, poverty or homophobia are at risk of failing to understand the realities of those who face such problems day in and day out.”
What has changed as a result of COVID-19?
The introduction of technologies such as Zoom, online document filing and other online services within the Family Justice System has been a game changer for many. As I stated at the onset of this article, I will argue the benefits of recent changes to our system and how they may have addressed many of the access to justice issues.
Benefits to Clients
- Interpretation services whether verbal and non-verbal are now accessible in a more timely manner and without the constraints of geography. Examples: Today, a sign language interpreter can assist a party at a First Appearance in Ottawa at 9:00 a.m. and at a Trial Management Conference in Toronto at 10:00 a.m. An Arabic interpreter can assist a party in a Legal Aid Settlement Conference at 11:00 a.m. in Sault St. Marie and another one at 1:00 p.m. in Niagara Falls.
- The availability of judges is no longer an issue as the judiciary now form part of a team that spans across the province. Gone are the days when a client requires a French speaking judge but must wait weeks to appear before one. Now, it does not matter where you are in Ontario, if you require a bilingual proceeding, a bilingual judge can be made available to you virtually in the same timeframe as an English speaking judge might be available. Example: A French speaking judge from L’Orignal may be of assistance virtually in a matter being heard in Kitchener. This truly enables our Family Justice System to be accessible and meet statutory requirements in bilingual jurisdictions.
- The availability of specialized judges is are now a reality and improves the quality of judicial intervention in such matters, which results in fewer appeals. For Example:, Aa client who has a fertility and surrogacy matter in Thunder Bay can now have access to the expertise of a judge in Toronto that might come across far more matters of this nature than members of the judiciary in remote locations.
- Clients no longer have to give up a day’s pay, incur childcare costs, and transportation costs associated with attending Family Court. For years, our trial coordinators and judiciary have insisted that clients attend every court appearance even those where counsel will be requesting an adjournment. Requests for accommodation were often denied by the trial coordinator, which often resulted in additional stress and costs for clients. Truly, I believe that it showed the lack of empathy by those who have often not walked in a client’s shoes. Now, a client can attend court virtually from home, work or otherwise which has increased their access to justice.
- Both counsel and clients who are not able-bodied or require accommodation are now at liberty to access the Family Justice System in the same manner as those of us without such restrictions. They no longer have to extensively plan and rely on third parties for transportation and support services to actively and physically participate in Court matters.
- Clients can now attend the Mandatory Information Program (MIP) online, whereas they would previously have to incur the costs and make the aforementioned arrangements to physically attend this mandatory presentation. Furthermore, a client who requires a French MIP can now have access to this virtually without issue, as it is offered by many jurisdictions across the province and not restricted by geography and availability of French speaking presenters.
- Mediation services are now offered to clients online, which once again, increases the access to these important services as the restrictions set out above no longer exist.
- Victims of domestic violence no longer have to face the stress and challenges associated with safety planning for their court attendance. Judges, court staff and mediators now have the power to put in place their own safety measures within Zoom by disabling the chat, muting participants, turning off participants’ cameras, using breakout rooms and waiting rooms to remove a potential abuser from an abusive situation. The level of control over the process has dramatically increased.
- Both clients and Legal Aid Ontario have seen costs savings as a result of the introduction of technology in our Family Justice System. Example: counsel are no longer charging for long wait times related to delays as their matter is waiting to be called. Everyone attends court at their designated time and matters are dealt with expeditiously.
- Counsel are no longer constrained by distance and travel, which results in their ability to take on more cases in different jurisdictions including matters subject to a Legal Aid certificate. Normally, Legal Aid Ontario does not pay for travel time unless in exceptional circumstances. EFor example:, counsel can now attend a First Return date at 10:00 a.m. in Hamilton and a Settlement Conference in Sudbury at 11:30 a.m. But for the introduction of new technologies in our Family Justice System, this would not have been possible.
- Duty counsel services and the costs associated with these services have now decreased as Legal Aid Ontario can contract out these services on a case-by-case basis when needed. They are no longer required to pay per diem duty counsel for an entire day when there might only be two matters that require duty counsel services.
In all the examples I have given, there are clear and tangible costs savings to the Family Justice System as a whole in addition to the increase in access to justice. Although we all struggle at times with finding the balance between working from home and attending virtual proceedings, I believe the benefits of modernization and technology in the Family Justice System far outweigh the disadvantages.