Access to justice in Canada

INTRODUCTION

The meaning of the phrase ‘Access to Justice’ varies among people. The term’s narrowest meaning refers to the formal ability to appear in court to claim or defend personal rights. Broadly speaking, there are four general approaches to understand the meaning of access to justice: The Right to Appear in Court, providing legal services to those who cannot afford it, reforming the justice system in such a way that people can access justice progressively and reasonably, speedy trials and at last the access to justice is interpreted as gaining of adequate remedies after analyzing variables of intersectionality such as gender, class, caste, disability, aboriginality, racialization or sexual identity etc.

Law and the lawyers in Canada have been working on these principles to help people access justice in a better and speedy manner. Let us understand some of those methods used by Canadian lawyers to help the population access justice.

PROBLEMS IN ACCESSING JUSTICE

There are various problems in accessing justice. The primary issues are expensive trials, delays in getting justice, and lack of legal knowledge. These primary issues have been hindering the advantage of justice to the people of Canada. Lawyers in Canada have been working with legal aid services to reduce these drawbacks in accessing justice. With the pandemic around, the world is facing more significant problems in accessing justice. To enhance people’s access to justice, the government has started e-courts and other services to enable the Canadian courts to work in an online medium. Lawyers and other professions have now started to work online in legal aid as well.

ACCESS TO JUSTICE

It is often propounded that lawyers have a primary duty to improve and enhance the process of accessing justice, to help people enjoy the fundamental right of getting justice. The legal profession also includes the duty to help fill the gap between the poor (who cannot afford to access justice) and the ones that can afford to access the justice system. There are specific obligatory duties of an advocate that have to be followed by them, as mentioned under the Law Society of Upper Canada’s Rules of Professional Conduct (the Rules).

  1. Pro Bono Service: The first principle mentioned under the rules is that Canada’s counsel should provide pro bono services for those who are unable to pay for adequate legal services and should contribute at least 50 hours or 3% of the total billings pro bono services. Pro bono is extracted from a Latin phrase ‘pro bono publico,’ which means ‘for public good.’ Pro bono legal services provide free legal services or with a minimum charge to the ones in need. For years, lawyers have participated in this noble cause of providing pro bono services to those who cannot afford it. A lawyer’s responsibility is to provide public interest legal services to clients or prospective clients who otherwise be deprived of those services. According to a survey conducted by Canadian Lawyer in the country, 81% of the people stated that they provide pro-bono services. Among the majority of the lawyers said that they filed at least five pro bono cases in the past year. 40% of the lawyers in Canada feel that the pro bono services should be held mandatory, but 60% believe it may discourage the government from providing sufficient legal aid funding. Further, the survey held that out of 532 survey respondents, 67 percent said they work on pro bono cases to help people access justice, and 81 percent said it is a payback to society. Pro Bono Students Canada (PBSC) is one such national organization in Canada that provides legal services without any charge to those in need. Every year approximately 1,600 law students volunteer for PBSC and provide 140,000 hours of free legal services to 400-500 people and organizations worldwide. Another service provider is the Legal Services Society of BC (LSS) in British Columbia that provides various free legal services like legal representation in criminal, child apprehension, family and other cases, legal information etc. To avail the free services the clients, have to come under financial eligibility. These services are offered in nearly 50 locations at community centres, offices, courts and other locations. There are various established works that lawyers pursue to help in accessing justice.
  2. Alternative Measures to Decrease the Costs of Litigation: Cost is one of the most rigid and common restrictions in accessing justice. Therefore, it should be the lawyers’ primary duty to provide cost-effective litigation to their clients who are in need. In Canada, where legal services cannot be offered on a pro bono basis, advocates provide alternative measures to reduce litigation costs by reducing the advocate’s fee, advising ADR and practising the policy of innovative billing structures. The accusations of paddling bills and charging in six-minute increments in trivial cases have negatively portrayed lawyers as greedy professionals. Many law firms have targeted the billing system to satisfy the clients and clear the lawyers’ negative identity. Clients stress about the mystery of the fee that a lawyer may ask for a minute’s advice. This is where flat fees and packages legal services have been successfully advanced by firms and the new generation of judicious consumers. By promising more transparency and flexibility in the billing system has effectively improved client satisfaction in Canada. There are various techniques legal firms apply in billing their clients. For example, recently, the practice of time-based billing has been un-practiced by the firms, and the concept of flat fees has been established that promotes higher-quality outcomes and efficiency. In 2014-15, the Legal Services Commissioner of New South Wales published their annual report stating that approximately 21 percent of the 7,328 complaints received in the previous year was about legal costs. Among these, 13% of the complaints were regarding overcharging. Therefore, the concept of Flat fees is used in Canada as an advantage that eliminates any surprises and reduces client stress. Further, it also helps lawyers focus on only lawyering and advising the client to their best interest that eventually acts as an advantage for the firm. Further, legal professionals help clients choose a different dispute resolution method that would help the client settle outside the court and save the hefty litigation charges.
  3. Supporting other professional efforts to access justice: The third principle that has been mentioned under the rules is that the lawyers should contribute to the efforts of the organizations and initiatives that are standing for helping people access justice. Rule 48 states the necessity of the support of lawyers in such organizations and the duty of the legal professionals towards these efforts of improving access to justice and making legal services available to all. To date, legal professionals have supported various organizations and initiatives for such noble service. Some of these organizations and initiatives include Pro Bono Students Canada (PBSC), Pro Bono Law Ontario (PBLO), the Client Service Centre (CSC), the Ontario Justice Education Network (OJEN), the Volunteer Lawyers Services (VLS) and others. Moreover, lawyers in Canada support and assist people in accessing justice by participating in various Lawyer Referral Service programs and Legal Aid Plans. They also engage themselves in programmes of education, advice concerning legal matters, or public information events. Furthermore, Osborne and Trebilcock’s recommendations are the developmental proofs that improved advice centres, better online and telephoned legal information resources, legal advice hotlines, and similar advancements are needed to improve access to justice in legal systems.
  4. E-courts: Canada recently announced its advancement in e-courts with a double rate. With the pandemic situation worldwide, justice must be granted at an online medium to help people take care of themselves and their justice. E-Courts in Canada will re-shape the future as the people claim. Canada is experiencing delays in numerous trials, increasing the number of pending cases that eventually questions the justice providing system. To again give speed to the justice providing system, e-courts have been introduced in Canada. Even the small claims courts that resolve the simplest of the issues have delayed the judgments for years. This increases the additional expense and stress of the parties to the case, which harms the access to the justice system. For such a grievance, the lawyers are working on e-courts advancement. E-courts provides affordable, simple, speedy, transparent and competent justice to the people. It works on a uniform legislation system that helps maintain transparency and equality in every region without each court’s distinct discretion. It is claimed that e-courts can handle at least 2000 cases at any one time, with a minimum of 100,000 cases at full maturity. In accessing justice, e-courts shall prove enormous help and provide the legal system with a new progressive sense. Lawyers and engineers have been working to enable this system soon so that access to justice becomes easy.
  5. Legal aid services: In Canada, legal aid services by private bar lawyers, staff lawyers and other lawyers are highly appreciated. Private bar lawyers refer to those lawyers who had been a part of the legal aid plan during the fiscal year by delivering legal services or billing the legal aid plan. Active members of the bar exclude staff lawyers hired by legal aid plan and government employees and include the total number of lawyers certified and insured to practice in that jurisdiction for which the lawyers are being calculated. Staff lawyers are those lawyers who are employed or hired by the legal aid plan. Other lawyers include counsels who do not have the performing capacity like the executive director. All the types of lawyers have been delivering legal aid services in subjects like criminal law, civil law, immigration and refugees matter etc. In 2018-19, over 89% of the total 11820 lawyers in Canada who provided legal aid services were private bar lawyers. The total number has increased from 10,000 as calculated in 2013-14, which suggests a steady but gradual increase in legal aid service providers. 10% of the lawyers were staff lawyers that contributed to direct legal aid services, and the remaining 1% were the other lawyers like executive directors or public trustee. 47% of the private bar lawyers contributed their legal aid services in both criminal and civil matters. Whereas the individual contribution of civil and criminal matters was 23% and 24%, respectively. 6% of those lawyers contributed to immigration and refugees’ matter. Among the staff lawyers, the contribution to civil and criminal matters were 69%. 17% of the staff lawyers worked in criminal services only, and 5% worked only for civil law matters. 9% of the lawyers worked in immigration, and refugees matter. Ontario is the province of Canada with the highest percentage of the lawyers who contribute to the legal aid services, with 31% of the total lawyers in Canada and Alberta being the second contributing 26% of the total lawyers.
  6. Community Legal Worker, Immigration Consultant or Paralegal: Professionals working in such an order charge lower fees than other lawyers if they come under the eligibility criteria. These professionals also provide supervision to the clients and the opportunity for the students to work with them. These professionals are usually practitioners who specialized in particular fields. This helps the people to get advice and supervision by people experts in their fields. Community legal workers are lawyers who work in community legal clinics. They give people legal advice and represent them in the trials. To enhance the study of legal professions, these lawyers also invite students from different law colleges to work as volunteers on these legal clinics, where they also provide legal advice and represent the client under the lawyers’ supervision. Paralegals engage in substantive legal work, including administrative or managerial work under the lawyers’ direction. In 2018-19, paralegals contributed 1% of the total legal services in Canada. They provide legal services and advice and represent the clients in various matters, especially in provincial offences, summary offences of criminal matters. In Ontario, paralegals have given the authority to represent their clients in family matters. They also help in appeals in the matter of immigration and refugee board. They also work for courts and tribunals and advice the clients of their rights and responsibilities. Further, there is also an immigration consultant who can help with immigration applications and refugee claims.

CONCLUSION

Lawyers, Judges and policymakers have been working extraordinarily to improve access to justice in recent decades. Many lawyers in Canada are responsible for legal information initiatives, pro bono programs, legal clinics, and dispute resolution mechanisms that help the light of justice shine in the darkness. The work of providing legal information and advice at courthouses, online, and even though justice organizations have proved to enhance access to justice. With today’s technology and communication tools, Canada is improving their access to information by posting on Facebook and Twitter as most people are not looking at the court’s website. They post case briefs and articles in plain English language so that people without legal knowledge can understand the decisions and their intricacies.

It is believed that every actor in the legal system has a role to play where every position is essential. To improve access to justice, legal aid programs have to be innovatively designed, as claimed by a Canadian jurist. He said that everyone in the justice system has to start thinking about the innovative steps that the Canadian justice system may apply to maintain the trust and confidence in the legal system.

Today in a world where the legal profession is counted as a business or a trade, in many countries, Canada trusts the legal profession to be a public service that supports their human rights, the democracy of the country, and helps the economy run smoothly. And with that, the fact that lawyers consider the pro bono work as a payback to the society adds to the profession’s nobility. In recent years the pro bono representation in Canada is increased, and now lawyers are building new pro bono projects into their business models as a way to pay back the society, to provide younger lawyers with experience in real-time legal practice to help them become better lawyers and also to build a positive reputation.

Pro bono work is not easy. Professionally as well as emotionally, the lawyers have to work very hard to achieve client satisfaction. Analyzing the numbers of pro bono work is overwhelming, but we generally miss to add the human cost behind them. Canadian lawyers have been working are to remove the stress and anguish people face when they do not have access to justice. It is a noble work, but it is also the responsibility of the lawyers towards society.