Canada: Reasonable Doubt: Do We Have Adequate Access To Justice?

Do we have adequate access to justice? It seems to me that the answer is no. We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able to access our justice system.

- Chief Justice Beverley McLachlin

This month in Reasonable Doubt we're addressing the issue of accessibility in the justice system. It's a critical social issue that's not given nearly the attention it deserves. The issue has reached such a level that Chief Justice Beverley McLachlin from the Supreme Court of Canada, who generally does not offer her views on social issues, has been giving impassioned speeches on the issue.

It is nearly impossible for most citizens to navigate the legal system on their own, particularly when it comes to complicated legal issues. It can be tantamount to expecting someone to perform their own surgery. In many cases, the consequences are just as severe.

When I was 22-years old -- a university student in Kingston, Ontario -- I met a young man named Andrew (not his real name) who had been homeless for more than a year. Andrew was 19 years old, he had various mental disorders and delayed development. In my estimation, Andrew was functioning as an 11-year-old.

Our first conversation was about our plans to become zombie-fighting sidekicks. Most of the time, he referred to himself as Angel from Buffy the Vampire Slayer. I was Xander.

Andrew lived with me for a year and a half while I tried to navigate various social systems and get him the support he needed. Even with his own social worker, we found it difficult to secure income assistance, let alone services to address his mental illnesses or the basic life skills training he needed around grooming, cooking and cleaning.

Andrew was cut off of income assistance many times, always because he missed a meeting with his welfare worker that I did not know about or because he'd not mailed a form in on time. Once cut off, it was difficult to convince his worker to let him back on.

Andrew was not able to meet deadlines and schedules set by his income assistance worker because of his mental disabilities. The situation was made worse by the fact that Andrew's worker would not allow me to sit in on their meetings.

Eventually, Andrew and I ended up at a lawyer's office. The lawyer called social assistance and used some strong language. He followed it up with a letter. A couple of days later Andrew was back on income assistance.

The lawyer also told me that Andrew had the right to have me attend meetings with his worker. I had no idea.

Lawyers have a tremendous amount of power. Ten minutes of this lawyer's time was more effective than weeks of my failed attempts.

The following stories are fictional, but represent routine (not extreme) stories I hear from people coming in the front door.

Scenario 1

Jane is a 23-year-old single mother with two boys. She lives on income assistance and receives no support from her boys' father. Two days ago she received notification from social assistance that they had cut off her income assistance payments because they believed that her roommate was chipping in for groceries and other goods for her children. She has rent to pay and mouths to feed. There are no grandparents to turn to for help.

Social assistance tells Jane that she needs to have the decision to cut off her income reviewed. She must prepare written submissions and submit evidence proving her case. If the review is unsuccessful, she needs to have the decision appealed through a tribunal. She will likely need to attend a hearing and argue her case.

How does Jane learn about the legal procedures and various legal tests that she needs to meet in order to win her case? What if she loses because she does not have the skills to win? How will she buy food for her children or pay rent if she loses?

Scenario 2

John is not sophisticated. He knows little about court procedures or how to make legal arguments. He is charged with violating a no contact order with a family member that he had previously gotten into trouble with. Crown counsel is seeking a one-month jail sentence. He is not eligible for legal aid, even though he has limited financial means and is facing jail time.

In my experience, a 15-minute telephone call to Crown counsel by a lawyer would convince them not to seek jail time. John does not need first-class lawyering skills to prevent him from spending a month in jail. Most any lawyer could achieve a similar result. For John, the difference between spending a month in jail and probation is the size of his bank account.

Scenario 3

Middle-class folk, as well, cannot afford lawyers. Maggie makes $50,000 per year working at a local parts factory. She recently took a month off of work because she broke her femur. When she returns from work, her boss tells her that she's been laid off. Sorry, Maggie, tough economic times. You know how it is. The company simply can't afford to keep your position.

Strangely, a week later and the company is hiring for a similar position. It turns out that Maggie was actually fired because her boss thought she would cost the company money by slowing the assembly line.

Maggie may have a legitimate human rights complaint. She was fired for having a disability. She would likely be entitled to money for injury to dignity and wages she lost out on from being illegally fired.

Maggie needs to prove that she had a disability; that her boss fired her because of her disability; and, how much money the company owes her. She will likely need to conduct a multi-day court-like hearing. She might need to pay for doctor reports showing that she has a disability.

The problem is that Maggie has no idea what to do. Her former employer will probably hire a lawyer to poke holes in every argument she makes.

Unless Maggie is able to find a lawyer to take on her case for free or virtually free, she may be denied money that she is owed for no reason other than the fact that she cannot afford a lawyer.

On paper, the law provides all citizens with ways to protect themselves and sue someone who has wronged them.

In reality, meaningful access to the justice system is difficult or impossible if you cannot afford to hire a lawyer. Given that the average hourly rate for a lawyer in western Canada is approximately $200 per hour, it is not surprising how few people in our community have access to justice.

"We can draft the best rules in the world and we can render the best decisions, but if people can't have access to our body of law to resolve their own legal difficulties, it is for naught", says Justice McLachlin.

Many members of the legal community are working on the issue. The Canadian Bar Association continues to highlight access to justice issues. Lawyers continue to take on clients at reduced rates or for free. The Attorney General's office continues their creative efforts to simplify court processes for people without lawyers.

The problem has proven difficult to correct. The longer it goes unattended, the graver the potential consequences. Again, from Justice McLachlin: "How can there be public confidence in a system of justice that shuts people out; that does not give them access? That's a very dangerous road to follow"

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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