Public input integral for real equal justice

John Sims wants to make you angry.

The former deputy attorney general of Canada chairs the Canadian Bar Association’s access to justice committee, which has just released its full “Reaching Equal Justice Report: An invitation to Envision and Act,” fleshing out the summary unveiled at the CBA’s annual conference in the summer.

The 172-page tome outlines the “abysmal” state of access to justice in this country, and proposes 31 targets for the profession intended to transform the situation by 2030. Sims tells Law Times he’s hoping for an emotional response from those who make it through the report.

“Equal justice is impossible without public engagement, because governments respond to public pressure. That’s what is missing today. There’s no dissatisfaction or outrage at the things we’re falling short on. Until the public are aware of how badly we’re doing, they won’t bring that pressure to bear on government,” says Sims. “Now we need to get out, talk to people in practical terms about next steps, and make them aware of the issues.”

A number of the report’s targets rely on the CBA converting public anger into government action, with the authors calling for a return to 1994 legal aid funding levels by 2020, as well as eligibility expansion to cover all Canadians at or below the poverty line.

And it’s that reliance on external players and new money that makes legal thinker Mitch Kowalski skeptical about the report’s long-term impact.

“As a resource, the report is great. A lot of research and effort have been put into it in terms of the background and information on every recommendation. But in terms of whether it will actually do anything, I’d say, no, it’s probably going to gather dust on the shelf,” says the Toronto lawyer and author of Avoiding Extinction: Reinventing Legal Services for the 21st Century.

“It’s a bit light on what the CBA itself should be doing, beyond another study or focus group. The message seems to be that all the problems are really everyone else’s: the court’s, the law society’s, the government’s. You figure out how to pay for it and we’ll be here to do some consulting. If you’re going to do a report, then the lion’s share of the work should be done by the people who wrote it, rather than pointing fingers.”

Kowalski says he would like to have seen more focus on immediate, low-cost changes to the way law is practised in this country, including a full-blooded endorsement of alternative business structures, pioneered in the U.K. and Australia, which allow external investment in law firms.

The report calls in one target for a “wide range of alternative organizational models for the provision of legal services” aimed at low and moderate income Canadians by 2025, but says the jury is still out on ABS specifically, concluding “more research and evaluation is needed on the access gains” it provides.

“It seems a bit contradictory to me when you say you believe in this holistic approach to how legal services are going to be delivered,” Kowalski says. “Here’s one concrete thing they could do, to lobby for change in the way lawyers are allowed to structure themselves, and they say no.”

Sims says another CBA project, the Legal Futures Initiative, is looking in detail at issues such as ABS, and defends the report’s wide-ranging call to action.

“When we talk about government, it’s not just about money. Governments have a leadership role that they ought to play that they haven’t been doing,” he says. “Starting now, we’re saying let’s get together and talk about these ideas. The report is an invitation to engage. It doesn’t say we have all answers.”

With so many players involved in the justice system, many of them jealously guarding their independence, Sims says it has traditionally been tough to innovate in the sector. But he hopes that will change by 2030, when the targets expire.

“Although ambitious, these 31 targets are definitely possible. Ambitious to us is not a synonym for impractical or unachievable or impossible. On the contrary, with hard work, we think they are all very doable,” he says.

Julie Macfarlane, a professor at the University of Windsor’s faculty of law, says the 17-year timeline for the report’s targets could be “pretty depressing.”

“It may be realistic to say the degree of system and culture change needed is going to take that long, but only talking about that very large scale is not going to get us there. It has to begin immediately,” she says.

She hopes the CBA’s push for public engagement results in a two-way conversation, something her own research on self-represented litigants has shown is traditionally lacking.

“You can’t talk about access to justice unless you’re genuinely interested in what the users have to say, and we have done an absolutely terrible job in the justice system of listening and developing a system that works for the people who actually use it,” she says. “There’s something frankly hilarious in the idea that people don’t care about this, because I’ve been knocked over by a tsunami wave of people who care.”

Macfarlane says the issue of limited scope retainers is a microcosm of the legal profession’s slow adaptation to system users’ needs. She says many of her self-represented subjects made attempts to get help from lawyers without full representation, but were “baffled that lawyers wouldn’t take their money” to perform discrete legal tasks.

Some law societies have now amended their rules to allow such retainers, but the CBA report offers only a lukewarm commitment to see limited scope retainers “are [only] offered in situations where they meet the meaningful access to justice standard” by 2020.

“It seems time to stop saying we’re not going to do that because it’s not good for you. The public simply doesn’t believe it,” says Macfarlane.

“Change is hard. It brings out both the best and the worst in people and institutions. You get some heroes who really push the envelope, and are prepared to be creative, but it also brings out people’s defensiveness. That’s what you’re seeing here.”