Posted by Jacqueline Wilson, Counsel on August 26, 2019
Access to justice has two different but intersecting meanings. The first focuses on ensuring that a person who interacts with the justice system can do so with the legal and expert assistance they need to navigate a complex, and often perplexing, system.
The second focuses on the more substantive aspect of access to justice. Social justice lawyers advocate for access to real, true, substantive justice — not just procedural access to the system — and focus on changing the law to be more equitable for low-income and vulnerable people.
Ontario’s legal aid program strives to achieve both of these goals. The legal aid program seeks to achieve the first goal through community clinics, specialty clinics, duty counsel and certificates. It enables low- income and vulnerable people to retain a lawyer or paralegal to ensure they are not forced to fend for themselves in court or before a tribunal.
This does not singularly ensure that all other ills of the justice system are resolved, but at the very least people who obtain legal aid can present their case with the assistance of an advocate trained to navigate the legal system.
The July 30 Day of Action across Ontario to reverse the massive budget cuts to the legal aid program was primarily focused on the first concept of access to justice. Legal aid communities, including clients, paralegals and lawyers joined together to advocate against the ill-advised cuts to the province’s legal aid program.
They oppose the cuts because they know what it will mean for people who may now become unrepresented litigants: inefficient delays, unfair outcomes, or persons simply choosing not to exercise their legal rights at all.
As an example of the first type of access to justice, the Canadian Environmental Law Association (CELA) is a specialty clinic that represents low-income and vulnerable communities in tribunals and courts when they face environmental health and safety issues in Ontario.
These health and safety issues can be very serious, long-lasting or permanent, as exemplified by the contaminated drinking water tragedy in Walkerton in 2001. We know from our decades-long experience that our clients are not able to buy their way out of the problem and relocate to other locations.
We also know what it will mean for communities that will now have to fend for themselves on environmental or public health matters: they will either forgo appeal rights, or they will struggle to present their case in complicated and time-consuming legal proceedings. In short, these persons simply will not obtain access to justice.
As for the second type of access to justice, legal aid lawyers see every day that real, true, substantive justice remains elusive. We see that it’s no coincidence that low-income and vulnerable people suffer the brunt of environmental degradation and public health impacts from pollution in Ontario.
The experience of ongoing mercury contamination of the traditional food supply in a Northwestern Ontario First Nation is a prime example of this problem. The ongoing drinking water contamination issues on First Nation reserves across Ontario is another.
In this context, access to justice also means that speaking out to protect the vulnerable, systemic advocacy and law reform plays a key role in the overall legal aid program.
These activities help identify and amplify the voices of people who are not being treated fairly, and they aim at changing the system itself so that it becomes more equitable. Interestingly, the Law Society of Ontario’s Rules of Professional Conduct expressly contemplate that lawyers can and should seek legislative and administrative change in the public interest (Rule 5.6-2).
In reflecting on the recent Legal Aid Day of Action, it’s important to protect both visions of access to justice and consider what that means for legal aid clinics and advocates.
Legal aid is necessary to allow persons to have procedural access to the legal system.
Legal aid should also be a force for change to make our laws more reflective of substantive justice.
This article was originally published by The Lawyer’s Daily (www.lawyersdaily.ca), part of LexisNexis Canada Inc.