Victims of Crime Research Digest No. 12

Access to Justice for Victims of Crime

By Susan McDonald

Former Chief Justice Beverley McLachlin once called access to justice “the central justice issue in Canada today.”Footnote 88 This article will explore the idea of access to justice for victims of crime, though in doing so will ask more questions than it answers.

What does Access to Justice Mean?

What does access to justice mean? Who gets to define it? And does it mean the same thing to everyone? Is access to justice different for the petitioner in a divorce case and the victim of an assault? To try to answer these questions, this article will review Canadian research on access to justice and links to international dimensions, such as the Goals of the United Nations 2030 Agenda for Sustainable Development (SDGs), to better understand what access to justice for victims means and how it is being measured.

Access to justice has traditionally been seen as access to lawyers (e.g., legal aid) and court-based processes (Macdonald 2005, 20).Footnote 89 In more recent years, the concept has taken on a much broader definition, one that recognizes that access to justice goes beyond the formal structures and needs of the justice system to incorporate a citizen- or people-focus.Footnote 90 Many lawyers have championed this work. Indeed, the Canadian Bar Association and the National Action Committee on Access to Justice in Civil and Family Matters both released significant reports in 2013 on access to justice.

The Honourable Thomas Cromwell, former Justice of the Supreme Court of Canada, defines access to justice as having the knowledge, resources, and services to use the justice system in family, criminal, and civil law (Cromwell 2012, 39). Osgoode Hall Law School law professor Trevor Farrow and his research team interviewed 99 Canadians in the Greater Toronto Area, asking respondents to define “justice.” The responses were then organized into themes, including the following:

Farrow further notes that “Good laws, rules, judges, educators, lawyers and courtrooms are all important. However, these are not ends in themselves, rather steps along the path to justice and access to it.” (2014, 983)

Access to Justice at the Department of Justice Canada

The Department of Justice Canada (JUS) considers access to justice a fundamental value of the Canadian justice system. It is part of the Minister of Justice’s mandate to ensure “a fair, relevant and accessible justice system for all Canadians.”Footnote 91 Developed through an internal working group several years ago, JUS defines access to justice as:

Enabling Canadians to obtain the information and assistance they need to help prevent legal issues from arising and help them to resolve such issues efficiently, affordably, and fairly, either through informal resolution mechanisms, where possible, or the formal justice system, when necessary.Footnote 92

This definition acknowledges that:

6. The justice system extends beyond courts and tribunals to include an extensive informal system (e.g., information sources, self-help strategies, and other options for resolving disputes). Using formal or informal systems to increase access to justice is key to achieving fairFootnote 93 and just outcomes.Footnote 94 The government and the whole justice system thus save money by better allocating and distributing resources.

7. There is a need to develop Canadians’ understanding and literacy of, and capability to navigate, the legal system. This can be done through a range of measures (e.g., providing all Canadians with basic legal training) that enable individuals to better manage their legal problems, i.e., those that can be decided by a court of law (see McCoubrey 2015).

8. Other conditions often make it harder for victims to access justice, i.e., to report crimes, seek assistance, and take part in criminal trials. These include:

These principles illustrate that definitions of access to justice can be broader. They can also include resolution mechanisms outside the formal justice system, as well as information that goes beyond strictly legal issues. While access to justice may be defined differently depending on the context, the definition should ensure that victims are able to report crimes, seek assistance, and fully participate in criminal proceedings.

Research and Writing on Access to Justice for Victims

Over the past few years, JUS has searched for peer-reviewed research articles on victims and access to justice. It found a significant body of literature in Canada and internationally on access to justice in general (see McDonald 2017) but little that focused on victims. Only a few pieces are reviewed here. The language used in articles about access to justice is not normally used in writing and research, hence the limited findings.

Legal scholars Mary Jane Mossman and Patricia Hughes completed a significant report for JUS (Mossman and Hughes 2004) entitled, Re-Thinking Access to Criminal Justice in Canada: A Critical Review of Needs, Responses and Restorative Justice Initiatives (Mossman and Hughes 2004). This report, while dated, reviews selected literature, including the shift from access to justice being about fairness and equality to being about balancing budgets and cutting deficits. The authors also examine the public and private dimensions of justice, cautioning about privatizing criminal justice, and calling for continued community involvement. They argue that valuing the individual victim over the public interest, thus creating a call for stiffer sentences, fosters the law and order political agenda that can be so popular among citizens.

Ultimately, the authors conclude that it is not possible to resolve what may be the competing roles of the Crown prosecutor and the community, or the competing perspectives of an offender and a victim. It is equally important to ponder how restorative justice can meet the goals of substantive equality, as well as meet the needs of victims, accused Indigenous peoples, and other offenders. On the needs of Indigenous peoples in a criminal context, the issues of overrepresentation, as both accused and as victims, are as relevant today as they were when the report was first released 15 years ago.

Mossman and Hughes (2004) introduce the idea of restorative justice as a mechanism by which victims of crime can achieve access to justice. In her article in the tenth issue of the Victims of Crime Research Digest (Wemmers 2017), Professor Jo-Anne Wemmers examines the use of reparative justice in cases of sexual violence and the importance of victims being able to choose how they would like to proceed in the civil, criminal, or administrative justice systems.

During the past decade, there have also been legislative reforms in Canada, including the Canadian Victims Bill of Rights (CVBR). The CVBR enshrines in legislation some elements of access to justice, including the right to participation and the right to information. In the current issue (No. 12) of the Victims of Crime Research Digest, Professor Marie Manikis (2019) discusses victim and community impact statements, which exemplify victims’ right to participate in their case. Victims and their right to information about their case, about the criminal justice system, and about restorative justice is the subject of another article in Issue No. 10 (see McDonald 2017).

Sexual assault and the criminal justice system’s response to it in Canada and other countries have been under close scrutiny in the past few years. For example, a February 2017 Globe and Mail feature article by Robyn Doolittle highlighted the problems caused by the use of the classification term “unfounded” and different investigation practices by police services around the country (Doolittle 2017). In another article at that time, in the Toronto Star, the author noted (del Gobbo 2017):

We need to fundamentally rethink the way that the law handles sexual violence. To do that, we should start by asking survivors what “justice” means to them.

For some survivors, justice means reporting their assaults to police. It means participating in a criminal trial process that protects them.

But for other survivors, justice means repairing the harm caused by the offender’s actions through healing and reintegration. It means holding the offender accountable through voluntary measures that engage the community and prevent future crime. It means understanding sexual violence as the product of complex systemic forces that impact different groups differently. It means working together with offenders to promote gender equality in our society.

One response to these concerns was to establish the Coordinating Committee of Senior Officials (CCSO) Working Group on Access to Justice for Adult Victims of Sexual Assault, an ad hoc group comprising federal, provincial, and territorial victim services, Crown attorneys, and police. This working group released its report, Reporting, Investigating and Prosecuting Sexual Assaults Committed Against Adults – Challenges and Promising Practices in Enhancing Access to Justice for Victims, in the fall of 2018. In the preface, it defines access to justice:

Access to justice is a principle that flows from respect for the rule of law and, as such, is a fundamental value of the Canadian criminal justice system. For adult victims of sexual assault in particular, access to justice means that: victims feel comfortable reporting crimes to police; police investigations are conducted thoroughly in an objective and timely manner; charges are laid where they meet the legal criteria; and, prosecutions are conducted fairly, with supports provided to victims. While a sexual assault victim may face many challenges in the aftermath of a sexual assault, this report focusses solely on criminal justice system barriers that a victim may face following a sexual assault, which impede access to justice. (2018, Preface, emphasis added)

The report focuses on practices in the jurisdictions that encourage victims of crime to report to police, support the victim, and improve the efficiency and effectiveness of investigations and prosecutions of sexual assaults.

The group contracted Indigenous experts Patricia Barkaskas and Sarah Hunt to prepare a paper on Indigenous perspectives. The paper, entitled Access to Justice for Indigenous Adult Victims of Sexual Assault, highlights that systemic violence has been, and continues to be, a key barrier to justice for Indigenous people and communities. They note:

Within the settler colonial context of Canada, the process of redefining justice for Indigenous survivors must be understood as always delimited by the structural factors which continue to deny Indigenous peoples’ self-determination at individual and collective scales. (2017, 33)

Barkaskas and Hunt (2017) argue that while many criminal justice professionals recognize the systemic problems in the current system when responding to sexual violence towards Indigenous peoples, they continue to advocate for a blended model in which Indigenous communities would work with the traditional criminal justice system. Others are skeptical of Canadian justice systems and believe that they can only obtain justice outside the judicial system, particularly when sexual violence occurs within Indigenous families. The authors comment, in both the executive summary and in the main report, that:

Many efforts to define access to justice for Indigenous survivors have sought to contend with the impossibility of true justice for Indigenous people whose lives are always bound up in colonial systems and ideologies. Rather, access to justice has been defined through the lens of avoiding the perpetuation of trauma through actively centering Indigenous knowledge, perspectives and voice. (2017, 34)

Another Canadian report that explored access to justice was released by the former Canadian Research Centre for Law and the Family in 2017, entitled Access to Justice in Indigenous Communities: An Intercultural Strategy to Improve Access to Justice (Wright 2017). The report focuses primarily on the relationships between Indigenous communities in Alberta, police, and others in the criminal justice system. Through a series of focus groups with key stakeholders, the report found that the most common legal issues were child welfare and criminal problems, including substance-related charges and traffic issues. It prioritized four key areas: 1) addressing the needs of youth in the court system; 2) formalizing partnerships between agencies; 3) improving legal rights literacy for all; and 4) making the court system accessible. (Wright 2017, 12)

An article by Clarke et al. (2016) describes the findings from an evaluation of the pilot project Access to Justice for Victims/Survivors of Elder Abuse. This project was launched in 2010 as part of the Welsh government’s six-year integrated strategy for tackling domestic abuse. The pilot project was developed to address the needs of older people in domestic settings and make it easier for them to access criminal and civil justice. Although elder abuse very often involves criminal behaviour, criminal investigations and, ultimately, prosecutions, are rare. As the authors note,

Accessing justice is not only a human right but in some instances may be the only effective way of protecting the individual. The use of criminal or civil justice processes and the provision of welfare support are not incompatible or mutually exclusive interventions, but can complement each other as long as an appropriate balance is achieved which recognises the wishes of the individual. It is essential that service providers adopt a person-centred approach when discussing the criminal, civil and welfare options available. (Clarke et al. 2016, 209)

A 2010 study JUS completed with the Ottawa Police Service Elder Abuse Section shows similar results. It showed that 17% of elder abuse files reviewed (77 out of 453 files) resulted in charges being laid (Ha 2013, 32). Officers interviewed as part of the study noted that those numbers did not reflect the challenges of each file, making it more complicated to assess what the appropriate response should be.

Interestingly, while very similar to the Clarke study, this 2010 JUS study does not mention “access to justice.” It suggests that there is a great deal of research and writing on access to justice for victims of crime, both in peer-reviewed journals and in government and civil society reports, but it doesn’t use the language of access to justice. If the language is not included, the article will not show up in any search.

Measuring Access to Justice for Victims

Where access to justice for victims is clearly defined, what are the anticipated outcomes? Are these outcomes being achieved? How is access to justice for victims being measured? There are many different ways to measure access to justice. In the mid-2000s, researchers at the University of Tilburg, Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution (TISCO), developed a framework to ensure that researchers view access to justice from the perspective of the person experiencing the problem (Gramitkov et al. 2008). Researchers at TISCO developed a tool that measured the cost, the quality of the process, and the quality of the outcome. Within each dimension, there are specific indicators, which are measured on a five-point scale. Consistently measuring the indicators makes it possible to consistently score and construct scales and indexes to represent the cost and quality measures.

A study by Laxminarayan (2010) illustrates how lawyers can use this framework and measurement tool to improve/measure the experiences of victims going through the justice system: first, by exposing the costs of justice; second, by asking victims about important aspects of their particular procedure or trial, e.g., Was your right to submit a VIS explained to you?; and third, by specifying what characteristics are required for a satisfactory outcome. Lawyers can use this approach regardless of which pathway a victim follows, for example civil proceedings or restorative justice proceedings.

JUS has developed an access to justice index (the Index) for federal administrative bodies (McDonald 2017) based on this framework (Gramitkov et al. 2008). The Index is intended to be a self-assessment tool for tribunals and other administrative bodies to determine how well they are ensuring access to justice for their constituents. Most recently, the Index has been adapted to measure program outcomes for seven of JUS’s funding programs that include “improving access to justice and well-being” as long-term outcomes. One of those funding programs, the Victims Fund, offers examples of projects that improve access to justice for victims of crime and their family members. One is the Child Advocacy Centre model for child victims of violence; another is the Family Information Liaison Units, which provide Indigenous families with information about their missing or murdered loved ones in a culturally appropriate way.Footnote 96 JUS has developed and supported these initiatives alongside a growing understanding that access to justice goes beyond access to legal representation.

International Dimensions

There are also very clear international dimensions to access to justice. Most important, Canada supports the United Nations 2030 Agenda and the 17 sustainable development goals (SDGs).Footnote 97 The SDG framework includes a goal to ensure access to justice for all (SDG 16.3).Footnote 98 This is an exciting development for those in the justice field because access to justice has never before been included in development goals, and all countries have signed on to reach these goals by 2030.

The Innovation Working Group of the Task Force on JusticeFootnote 99 released a report in February 2019 on how to achieve SDG16.3. The report concludes that the access to justice gap in the world is significant and that justice systems are not meeting people’s needs. Recommendations to meet these challenges include reframing justice so that it responds to people’s needs and considers the fairness of their relationships, with a focus on outcomes.

Within the Government of Canada, JUS is responsible for reporting on progress on SDG16. The international dimensions provide an opportunity to join a broader global conversation about access to justice for victims of crime. This global conversation includes “legal needs” or “legal problems” surveys.

Current Research – The National Legal Problems Survey

Countries around the world are conducting national legal needs or legal problems surveys, self-reported surveys that measure access to justice. In Canada, the National Legal Problems Survey (NLPS) was first championed by JUS, which conducted three separate cycles in 2004, 2006 and 2008. In 2014, the Canadian Forum on Civil Justice developed a fourth cycle, adding a section on criminal problems, but only for an accused. Most of the research on victims of crime falls within criminal justice, but the findings from these previous cycles show that civil legal problems are far more prevalent than criminal legal problems. (Currie 2016)

JUS has partnered with Statistics Canada to conduct the NLPS, with support from the Department of Women and Gender Equality. The NLPS is designed to identify how often middle- and low-income Canadians face primarily civil legal problems and how much help they need with these problems. The study measures not only the prevalence of legal problems, but how Canadians attempt to resolve them, and the effect on Canadians` health, well-being, and finances.

JUS worked with other federal departments and agencies to find out what policy priorities the survey could address and the final content for testing. In particular, JUS has added questions for respondents about being a victim of, or witness to, a crime, along with a question on the relationship between the perpetrator and victim to identify incidences of family violence. Of interest are the synergies between the criminal justice system and access to justice there and in the civil and family justice systems. For example, does spousal violence trigger other legal problems, or do legal problems trigger spousal violence? The likely answer is both, but there will be data to illustrate this assertion and to help the justice system respond better to the needs of these victims.

If it secures funding partners, the NLPS will collect data in the spring of 2020 and produce results the following year. The survey represents a great opportunity to address significant data gaps on the intersections of family, civil, and criminal justice, both domestically and internationally.

Conclusion

Based on this brief review, it is clear that access to justice is not just about accessing courts and lawyers, but has evolved in recent years to be more citizen-focused and to include responses beyond the traditional justice system. It is also clear that access to justice for victims of crime means something different for different people: being able to report a crime to police; being able to participate in a criminal justice process; being able to access information. It could also mean being able to participate in a restorative justice process to address the harm caused by the offender, or presenting a victim impact statement at a parole hearing.

This review also shows that research, especially in Canada, is not always characterized as “access to justice” research. This speaks further to the importance of adopting the language of the SDGs, which has been accepted by the 193 countries of the UN General Assembly. SDG16 gives us a common language to frame an issue and to respond to challenges. For example, is the issue a lack of services for victims of crime in northern and remote communities in Canada? Or is the issue a lack of access to justice for victims of crime in northern and remote communities? Finally, this review confirms that access to justice flows from the rule of law and is part of JUS’s mandate to ensure “A fair, relevant and accessible justice system for all Canadians.” Much more research needs to be done to understand what access to justice means for victims of crime. This short article is but a glimpse at the literature on the topic and leaves much more to be explored.

References

Action Committee on Access to Justice in Civil and Family Matters. 2013. Access to Civil and Family Justice: A Roadmap to Change. Toronto: Action Committee on Access to Justice in Civil and Family Matters. Accessed February 17, 2019 at http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf.

Barkaskas, Patricia, and Sarah Hunt. 2017. Access to Justice for Indigenous Adult Victims of Sexual Assault. Ottawa: Department of Justice Canada. Available upon request from rsd-drs@justice.gc.ca.

Canadian Bar Association. 2013. Reaching Equal Justice Report: An Invitation to Envision and Act. Equal Justice: Balancing the Scales. Ottawa, Canadian Bar Association. Accessed February 17, 2019 at http://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/EqualJusticeFinalReport-eng.pdf.

Clarke, Alan, John Williams, and Sarah Wydall. 2016. Access to Justice for Victims/Survivors of Elder Abuse: A Qualitative Study. Social Policy & Society. 15:2, 207–220.

Cromwell, Honourable Thomas A. 2012. “Access to Justice: Towards a Collaborative and Strategic Approach.” University of New Brunswick Law Journal 63:1, 38.

Coordinating Committee of Senior Officials Working Group on Access to Justice for Adult Victims of Sexual Assault. 2018. Reporting, Investigating and Prosecuting Sexual Assaults Committed Against Adults – Challenges and Promising Practices in Enhancing Access to Justice for Victims. The report can be accessed on the website of the Canadian Intergovernmental Conference Secretariat at: http://www.scics.ca/en/product-produit/reporting-investigating-and-prosecuting-sexual-assaults-committed-against-adults-challenges-and-promising-practices-in-enhancing-access-to-justice-for-victims/.

Currie, Ab. 2016. Nudging the Paradigm Shift: Everyday Legal Problems in Canada. Toronto: Canadian Forum on Civil Justice. Accessed February 9, 2019 at: http://cfcj-fcjc.org/sites/default/files/publications/reports/Nudging%20the%20Paradigm%20Shift%2C%20Everyday%20Legal%20Problems%20in%20Canada%20-%20Ab%20Currie.pdf.

Currie, Ab. 2009. The Legal Problems of Everyday Life – The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians. Ottawa: Department of Justice Canada. https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr07_la1-rr07_aj1/rr07_la1.pdf

Del Gobbo, Daniel. February 5, 2017. In cases of sexual violence, justice can come from outside the courts. Toronto Star. Accessed February 17, 2019 at https://www.thestar.com/opinion/commentary/2017/07/25/in-cases-of-sexual-violence-justice-can-come-from-outside-the-courts.html.

Farrow, Trevor C.W. 2014. What is Access to Justice? Osgoode Hall Law Journal 51:3, 957–983.

Gramatikov, Martin, Maurits Barendrecht, Malini Laxminarian, Jin Ho Verdonschot, Laura Klaming and Cory van Zealand. 2008. A Handbook for Measuring the Costs and Quality of Access to Justice. Tilburg University, Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems (TISCO).

Ha, Lisa. 2013. Police Responses to Elder Abuse: The Ottawa Police Service Elder Abuse Section. Victims of Crime Research Digest, 6:29–35.

Laxminarayan, Malini. 2010. Measuring Crime Victims’ Pathways to Justice: Developing Indicators for Costs and Quality of Access to Justice. Acta Criminologica 23:1, 61–83.

Legal Aid Ontario. The Domestic Violence Strategy. Legal Aid Ontario: Toronto. Accessed January 28, 2019 at: http://legalaid.on.ca/en/publications/paper-Domestic-violence-strategy-2017.asp#footnote-3.

Macdonald, Roderick A. 2005. Access to Justice in 2003: Scope, Scale and Ambitions. In J. Bass, W.A. Bogart and F.H. Zemans, eds., Access to Justice for a New Century – The Way Forward. Toronto: Irwin.

McCoubrey, Sarah. 2015. Building Legal Literacy, Preventing Crisis. Ottawa: Department of Justice Canada. Available upon request from rsd-drs@justice.gc.ca.

McDonald, Susan. 2017. The Development of a Canadian Access to Justice Index for Federal Administrative Bodies. Ottawa: Department of Justice Canada. Available upon request from rsd-drs@justice.gc.ca.

McDonald, Susan. 2016. The Right to Information. Victims of Crime Research Digest. 9: 16–21.

Mossman, Mary Jane, and Patricia Hughes. 2004. Re-Thinking Access to Criminal Justice in Canada: A Critical Review of Needs, Responses and Restorative Justice Initiatives. Ottawa: Department of Justice. https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr03_2/index.html.

Report of the Innovation Working Group of the Task Force on Justice. 2019. Innovating Justice: Needed and Possible. Pathfinders Task Force on Justice. Accessed February 11, 2019 at https://www.hiil.org/wp-content/uploads/2019/02/Task-Force-on-Justice-Innovating-Working-Group-Report.pdf.

Research and Statistics Division. 2000. Expanding Horizons: Rethinking Access to Justice in Canada. Ottawa: Department of Justice. https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/op00_2-po00_2/index.html.

Wemmers, Jo-Anne. 2017. Judging Victims: Restorative Choices for Victims of Sexual Violence. Victims of Crime Research Digest, 10: 12–17.

Wright, Alysia C. 2017. Access to Justice in Indigenous Communities: An Intercultural Strategy to Improve Access to Justice. Canadian Research institute for Law and the Family: Calgary.

Susan McDonald, LLB, PhD, is Principal Researcher with the Research and Statistics Division, Department of Justice Canada. She is responsible for victims of crime research in the Department and has extensive research experience on a range of victim issues.