The forces shaping the access to justice crisis are deeply connected to the forces shaping the future of legal practice and legal education. Marginalized people are chronically deprived of access to legal services. The expanding role of the administrative state has created opportunities for public engagement that have increased the need for individuals and organizations to access timely and affordable legal advice. For its part, the legal profession is grappling with technological and social changes that are challenging traditional practice models and the role those models play in perpetuating unmet needs. Leading law schools, in turn, are starting to adopt innovative educational models to better equip the next generation of lawyers to address these demands.
The Public Interest Law Clinic sits at the junction of those forces. It began as a University of Calgary Faculty of Law experiment to provide students with credit for hands-on file experience in environmental matters. The focus was narrow and files were only worked on through the fall and winter semesters. Thanks to a $1-million gift from the Peacock Family Foundation, that experiment became the Public Interest Law Clinic which is able to take a much broader range of files and operate year round.
Canadian law schools, with the University of Calgary at the forefront, have been moving towards teaching performance-based skills and providing opportunities like those at the clinic. Today, the clinic works on impact litigation files (strategic litigation intended to impact conditions for many people in similar situations) including judicial review applications and human rights claims. The clinic also assists clients seeking legislative reform to understand the legal framework and their options for pursuing reform. The clinic’s course instructors are practicing lawyers who carry the clinic’s files on a pro bono basis. Each year, a new group of law students joins the clinic to address public interest issues through a combination of theoretical course work and direct file work. Students encounter access to justice issues as they research, write, and advocate to advance cases for real clients.
The clinic has two main purposes:
- to provide access to justice; and
- to provide a practical education experience.
Access to Justice
From the clinic’s perspective, the concept of access to justice can be divided into two broad projects: 1) closing the gap between people and the law; and 2) closing the gap between the law and justice. The first project involves addressing the way lawyers and courts operate to allow people to access the law. To an extent, the Public Interest Law Clinic deals with this issue by representing clients in court who might otherwise not be able to retain counsel. The clinic’s primary focus is on the second project: to pursue systemic change that closes the gap between the law and justice by reforming laws that operate unjustly.
Advocating for systemic change in public law matters happens on a case by case, law by law, and client by client basis. The clinic recognizes the pitfalls of deciding for itself what constitutes “the public interest” and actively engages its students to reflect on and question the clinic’s role in doing just that. When selecting cases, the clinic is guided by three principles: legality, democracy, and the rule of law.
Inaction or delay is an exercise of a public power as much as positive action.The principle of legality underlies the belief that there should be a reasonable way to challenge government decisions for their compliance with the law. The immunization of government decisions, whether made by elected officials or administrative tribunals, is inconsistent with an accountable and transparent government. The clinic takes cases relating to legal standing before tribunals and courts to protect this principle.
The principle of democracy, is conceived as genuine participation, self-government and effective representation rather than mere majoritarian rule. It holds that people ought to have influence on the decisions that impact their lives and communities. For example, citizens may want a regulatory body to consider more than monetary value of an action or wrongdoing in their decisions so that civic interests are advanced and preserved. Therefore, the clinic pursues cases to protect and expand the participatory rights of Canadians before administrative bodies.
Finally, when a government shows a lack of good faith in implementing the law, neglects its legal duties, or acts arbitrarily, it strikes at the rule of law. Inaction or delay is an exercise of a public power as much as positive action. Since all exercises of public power should find their ultimate source in law, the clinic advances cases that seek to enforce a minister’s obligation to implement the law as written.
The type of work done at the clinic under the three broad principles of the public interest has been varied. Last year, students:
- developed legislative proposals for reforming the Residential Tenancies Dispute Resolution Service;
- provided recommendations to the Canadian Food Inspection Agency to improve the regulations on the conditions of horses being transported internationally; and
- helped draft submissions for improving the environmental assessment process in national parks.
This year, clinic students are:
- supporting impact litigation to modify the way Alberta Environment and the Environmental Appeals Board interpret and apply their governing legislation;
- drafting materials for a Federal Court action to protect endangered fish in Alberta;
- advocating for the court to recognize that, when oil and gas companies can let go of environmental liabilities through the operation of bankruptcy and restructuring law, it has an enormous impact on Alberta farmers; and
- supporting a human rights commission complainant who wants health law to apply fairly to transgender patients.
In short, the broadest expression of public interest rests in developing a just society, free from arbitrary and unaccountable power.
Practical Education
When selecting cases, the clinic is guided by three principles: legality, democracy, and the rule of law.
The clinic also has a practical educational purpose. Canadian law schools, with the University of Calgary at the forefront, have been moving towards teaching performance-based skills and providing opportunities like those at the clinic. Law students learn from experience how to identify a public interest issue, find a public interest client, and take that public interest issue successfully to court. The clinic also encourages law students to think about the purpose of law and of lawyers. A law school teaches soon-to-be lawyers how to respond to emerging needs in the legal system, but should also encourage them to think about and shape what the legal system should look like in the future. Lawyers would often like to be involved in public interest cases, but lack the opportunity or skills to do so. Such opportunities rapidly become distant and unworkable once law students transition through articles and enter their first demanding years of practice. The clinic hopes to provide law students with the practical skills and theoretical knowledge needed to address public interest issues once they enter practice.
When a lawyer thinks back to their time at law school, they should remember the rules of court, limitation periods, and the rule against perpetuities; but far more than that, they should remember the guiding principles of our justice system: legality, democracy, and the rule of law.
About Christine Laing
About Drew Yewchuk
