What is justice?
It is widely stated that we have an access to justice (A2J) crisis in Canada. You will get a variety of answers, though, if you ask people what they think this means and what we can do about it. As Lois Gander points out in her article in this issue of LawNow, one reason is that ‘justice’ can have several meanings:
- Procedural justice is about whether decisions that affect participants are made fairly. Fairness requires decisions made in a reasonable time by impartial, neutral, unbiased decision-makers; consistent rules that are knowable in advance; and usually the opportunity for some kind of input when a decision is going to affect you.
- Retributive justice is about punishing deserving wrongdoers for their past improper behavior in a way that is proportionate to that behavior and morally acceptable. The punishment is meant to both ‘set things right’ between the wrongdoer and society and to deter others from similar future behavior.
- Restorative justice takes the emphasis off punishment and moves it to healing the victim and repairing the harm that the crime has caused to the victim and relationships in the community. Willing victims participate in the process, meeting with wrongdoers to talk about how they have been affected and what it will take to restore them. Wrongdoers are asked to take responsibility for their actions and to make amends. The process is meant to bring real change to the wrongdoer and to bring their future behavior back into line with what the community expects.
If you want to dive deeper into what justice means on a philosophical level, watch Michael Sandel’s free Harvard lecture series on YouTube titled “Justice – What’s the Right Thing to Do?”. Professor Sandel argues that justice is about how wealth, opportunities, rights and powers are divided between members of a society. The hard questions start when we ask, “What are people entitled to?” and the even harder question of “Why?”. Professor Sandel says we can approach those questions by thinking in turn about what it means to maximize welfare, to respect freedom or to cultivate virtue. There will be disagreements in society about what ‘welfare’, ‘freedom’ and ‘virtue’ mean. People will not always agree about what we should do if we can only get more of one of those things at the cost of giving up something from the others. Debating those hard questions, Sandel says, can help to understand what justice means to us. The questions he poses go right to the heart of what we want our society to look like, how we think we should be treated and how we should treat others.
What is access to justice?
If we have different ideas about what makes a ‘just society’, then it makes sense that we will not agree about what proper access to justice means. Each of us sees the world through the lens of our past. A white, middle-aged, stable, privileged, capable, university-educated, healthy male with a good steady job in a major city will experience the world in profoundly different ways than someone who is – insert one or more of the following – female, a person of colour, in poverty, a young person, an immigrant, LGBTQ2S, physically challenged, suffering from addictions, isolated, Indigenous, a residential school survivor (or the descendant of one), a survivor of domestic abuse or sexual violence, or a member of the one in five people in Canada who experience a mental health problem in any given year. When it comes to A2J, our backgrounds matter. Two of us can have exactly the same legal problem but totally different experiences because of who we are and everything that has happened in our lives up to the point the problem occurs. People with different experiences, backgrounds and capabilities will need different ways to solve the same legal problem.
The type of legal problem will also affect what A2J requires. Consider the following situations:
- You are in a dispute with a store about returning something you bought.
- You are a parent who disagrees with your former partner about money or some aspect of your children’s upbringing.
- Your landlord won’t fix the stove in your basement suite.
- You have a dispute with someone over a contract, a will, an injury you suffered or a debt.
- You are accused of a crime.
- You are a victim of a crime.
- You are a victim of a violent crime.
- You have been wrongfully convicted of a crime.
- You are Indigenous and being asked to testify in a court that terrifies you, in part because you see it as a symbol of colonialism and oppression.
- You are new immigrant turned down for a job you are qualified for or, having found a job, being forced to work more hours than you think you should.
- You are a farmer, and a company wants to build a pipeline across your land.
- You disagree with a government policy and are not being allowed to protest peacefully.
Because there is such diversity of participants, life experiences and situations, we cannot think of A2J as just one thing, having one solution.
Problems one through four are examples of civil or family matters, which are disputes between people or organizations. These are ‘justiciable’ problems – ones that have legal elements, whether or not the people involved know it and whether or not they have taken any steps to come up with a solution.
People with different experiences, backgrounds and capabilities will need different ways to solve the same legal problem.In the introduction to their recent book The Justice Crisis – The Cost and Value of Accessing Law, editors Trevor Farrow and Lesley Jacobs describe the evolution of thinking about what A2J means in civil and family matters. The more familiar approach, they say, is concerned with people in a dispute having access to courts and lawyers and the ability to have a decision made. They then describe a growing alternative approach they call meaningful A2J, based on “people’s ability to access a diverse range of information, institutions, and organizations – not just formal legal institutions such as the courts – in order to understand, prevent, meet, and resolve their legal challenges and legal problems when those problems concern civil or family justice issues.” Meaningful A2J can be measured by whether paths are available to address and resolve the legal problem or complaint. This seems like a good measuring stick. If a participant in a civil or family law dispute cannot find a way to resolve it, despite their best efforts, then they do not have access to justice.
Problems five through nine are criminal in nature. A2J will require some of the same things needed in civil and family cases but whether it exists more often involves considering larger societal issues. In criminal matters, the state prosecutes a person or organization suspected of breaking a criminal law. The state is powerful. It creates the laws, investigates the crimes and decides (in most cases) whether to lay charges. Whether a person thinks they have access to justice or not might depend on whether they think the laws and processes are legitimate. The state controls almost everything so the pathways metaphor used above doesn’t fit quite as well.
… meaningful public legal education builds a better, more inclusive society.Watching the news of the day provides plenty of opportunity to think about what access to justice can mean in criminal matters:
- In Canada, the Gerald Stanley trial for the killing of Colton Boushie raised issues of how police investigations are conducted, when rural residents should have the right to plead self-defence or defence of property when they kill someone who comes onto their property, jury selection rules that effectively exclude Indigenous people, and how racial dynamics and cultural competence of lawyers and judges can affect the process and outcomes (see the extensive analysis here).
- Also in Canada, the 2018 acquittal of Raymond Cormier, who was on trial for causing the death of young Tina Fontaine, was met with outrage, prompting calls for more to be done to protect Indigenous youth in government care.
- Protests following the killing of George Floyd have raised issues of systemic racism and funding of police forces in the United States but also in Canada.
In these cases, A2J is about more than procedure. The justice conversation becomes one of what we want our society to look like. From the Stanley case, do we really want reconciliation? Is it even possible? (and a host of other questions). From the Cormier case, how do we prevent what happened to Tina Fontaine from happening again? From the Floyd case and others like it, does a just society require an ‘iron hand’ and militarization of police forces to maintain order or does it require the opposite?
If we have different ideas about what makes a ‘just society’, then it makes sense that we will not agree about what proper access to justice means. The final three scenarios are examples of legal problems that are neither purely civil nor criminal. A legal problem might be about human rights (example ten). It might come from dealing with any of the hundreds of administrative tribunals across Canada (example eleven). It might be about rights that come from the Canadian Charter of Rights and Freedoms (example twelve).
A2J is best thought of as an aspirational goal that we want to keep moving towards. We can always be taking steps to make things better, even if we will never agree on what complete success would look like.
What is the role of public legal education?
The public legal education work we do at CPLEA helps increase A2J. Meaningful public legal education (borrowing the word from Professors Farrow and Jacobs) is about so much more than giving someone a brochure to explain how a law works (although we do love that part!). It helps individuals by raising their legal capabilities and understanding, hopefully helping them avoid problems in the first place. It helps individuals by shifting the perspective from that of legal system insiders to that of the participants themselves. What problems do they have? What is their perspective? What do they need? How can we help them find a path to a solution? What information can we give others to help them avoid similar problems?
In addition to helping individuals, meaningful public legal education builds a better, more inclusive society. Individuals informed by public legal education have the opportunity to be better citizens. Heathy debate by individuals informed by meaningful public legal education will generate ideas about what justice means and what we want it to mean, how we can best increase access to it and about what kind of society we want. The best ideas will rise to the top.