Expanding Horizons: Rethinking Access to Justice in Canada

Appendix B (cont'd)

Appendix B (continued)

The Judgement of Wider Courts (continued)

A few roads less travelled but...

A few points were mentioned in each workshop like the need for more resources, even though some insisted that what might be required is also different types of resources. A case in point had to do with the new type of resources that restorative justice might require. The Elders, imposed upon by the community in the context of restorative justice, may very well develop a certain fatigue when the same persons are time and time again used by the process. This can only lead to the initiative falling out of grace.

But many points made forcefully at one moment or another in the discussions fell like a lead balloon, for one reason or another. Some of those would appear to deserve at least some mention in the proceedings of the symposium.

  1. The first one has to do with the basic inertia of the formal justice system. In the same manner that economists accept to speculate on a world without a Bank of Canada, it should be possible to speculate on the impact of some drastic reform or reduction of the formal justice apparatus. It is not in good currency to do so. This entails that many aspects of the formal justice system avoids serious scrutiny. For instance, the inflation of formal laws and regulations has generated an increase in courts activities galore. It might be worth exploring whether this expansion of the formal justice system has in fact increased or decreased the production of true justice in this country. Some have argued that the invasion of society by the “rule of law” as interpreted by courts may indeed have reduced the access to justice for Canadian citizens. The case made by Jacques Dufresne for a “justice douce” would call for a much-reduced role for the courts.
  2. The second point pertains to the importance of the financial aspects of the formal justice system. A system is made of a structure (a set of roles), a technology (some instrumentalities), and a theory (a sense of what the system is there for). The most effective way to destabilize the system and transform it may indeed be to modify its technology (Schon 1971). One may therefore ask whether it would not be important to tinker with the financial technology of the formal legal system. The fee-per-act remuneration in the health care system has had dramatic consequences on the structure of the sector. In the same way, the manner in which one remunerates lawyers can only have an impact on the practice of law and on the way in which citizens access to law via them. Consequently, any attempt to reform the formal justice system might require a modification of the financial infrastructure on which it is built. In the case of medicine, it is felt that only when one is seriously exploring the possibility of repealing the fee-per-act system can the industry be transformed. Comparisons between the Blue Cross system and the Kaiser systems in New York have revealed that the mode of remuneration may impact dramatically on the efficiency (doing the thing right) and the effectiveness (doing the right thing) of the industry. Indeed, the refusal to focus on “wordily” aspects of the justice system like remuneration may indeed prevent real change (Paquet 1994).
  3. The third point deals with the “rights and entitlements”focus of the justice system as it exists in the formal legal structures. This stands in sharp contrast with the “needs-based claims” of the citizens: the need to ensure that one can walk safely at night in our cities, the need for a divorce that will not cost $100,000, etc. It may be argued that the focus on rights has led the system either to ignore needs, or to regard rights as the only way to ensure that the needs for justice are met. In fact, there are all sorts of other legitimate problem solving mechanisms that come to mind and all sorts of new actors that appear useful when needs are becoming the focus of attention. Indeed, the purpose of the real justice system is to eliminate servitude, to attenuate unfreedoms. A needs-based approach may contribute significantly to eliminating the pro-courts or pro-formal justice system bias of the rights approach. The very creation of many wickets where citizens could find alternative ways to resolve their problems or satisfy their needs would do much to increase their freedom.

A few paradoxes

The many pressures being brought to bear on the justice system and the call to arms to ensure access to justice have compounded in ways that have led to some paradoxical situations. A paradox is a statement apparently self-contradictory. It is often the most important source of renewal since it calls for issues to be re-framed in order to avoid the contradiction.

The first paradox that struck observers at the symposium emerged, on the one hand, from the central recognition by most of the participants that in the carrying of justice there is no one-size-fits-all and that therefore issues must be resolved locally. On the other hand, the whole philosophy of rights has its basis in substantive equality. It is difficult to see how this call for substantive equality and sameness can be reconciled with local justice or different standards being applied according to circumstances. This paradox strikes at the heart of the formal justice system and challenges its present incapacity to provide the requisite amount of casuistry. Indeed, this is a paradox that is ever present in the Canadian context. Quebec has found it impossible to get the rest of the country to allow it to be equal but different, because as soon as one invokes le droit à la différence, this always strikes the opponent as tantamount to requesting a favorable or preferred treatment. Equal but different is however exactly what would appear to be the foundation of the new flexible system based on local justice, or the acceptance that there might be various windows to give access to justice.

The meta-level at which a paradox like this one can be resolved is one in which the equal but different is transformed into something like different but united. It suggests that there are ways to secure compromise and flexibility so as to have broadly agreed general principles (Magna Carta) and decentralized adjudication through different mechanisms and via different channels (local justice). The challenge of generating such meta-solutions will be an important one for jurists. Indeed, one of the value-adding contribution of the symposium has been to put such a paradox front-and-center and to suggest that it must be resolved if one is to be able to define workable conditions for an improved system of justice that would allow a requisite variety of access points and avenues or channels through or around the Fortress.

The second paradox is equally daunting. It suggests that the call for inclusion and participation in the justice process may challenge some fundamental features of representative democracy. Indeed, this sort of intervention in the judicial process (upstream in the case of preventive law, in the stream more directly or through alternative legal avenues, and downstream in the case of restorative law) challenges the usual democratic method of electing representatives or choosing officials, and then allowing them to take the decision for the collectivity.

The very participation in the justice process that is requested would appear to challenge the validity of the process of representative democracy that has generated and supported the existing legal order (Hermet 1997). Indeed, participation and inclusion are often seen as short-circuiting due process, as potentially derailing the normal ways.

It is unlikely that this can be resolved without a very serious reinterpretation of the very notion of representative democracy and of its legal institutions. Again, this is a challenge that the symposium has raised for the jurists to tackle, and one that calls for much creativity.

Conclusion

It is unwise for a rapporteur (however much freedom he has been granted in the dispatch of his functions) to use more air time than the palavers he is supposed to report on. So allow me in closing to mention some conclusions from the symposium deliberations. These conclusions are of necessity idiosyncratic since I could not be everywhere, but they should serve as a set of hypotheses that might be used to validate one’s own experience or in reading the detailed reports of the workshops note-takers.

It would appear that in order to improve access to justice, one might very usefully do a number of things in the short run.

First, it was clear that the development of an improved justice system (that would go much beyond the formal one and that would provide improved access to justice for the citizens) depends on an agreement about the sort of society we want and the sort of justice we want. It is important to bring forth such a Magna Carta defining loosely these values for only such a statement can serve as a sextant in the exploration of the different ways in which citizens should gain access to justice, and in the definition also of what is and is not acceptable.

Second, it was also clear that one cannot explore the different possible alternative mechanisms or alliances with other groups in defining an improved system of access to justice without a better knowledge of what experiments have been conducted, and with what degree of success, in Canada or elsewhere. Such a catalogue does not exist. It would appear crucial to ensure that it is prepared forthwith.

Third, there must be an explicit effort to encourage the maximum amount of experimentation and innovation in the development of better access to justice. This can be done however only if there is a change in the culture of the justice system. This in turn can only be effected as a result of explicit effort to pro-actively promote, foster and support innovation by the senior officials of the Law Commission and of the different departments of justice acting in concert. In a way, the symposium might be seen as Phase I in the process of development of the necessary cultural support for the exploration and search for better ways to continue.

These shortcuts may appear of limited import, but they are meant to prepare the way for more fundamental changes in the long run.

First, the combination of a loose statement of the Canadian philosophy of justice, a more complete catalogue of what works and does not work, and a pro-active support of innovation will tend to generate the emergence of basic national principles that may be of greater use in the development of a new architecture of more accessible justice institutions than a vague Magna Carta.

One could do worse in the definition of these national principles than to start with the suggestions of Amartya Sen who has put at the center of the whole process of social, economic and political development the freedom from different servitude or the elimination of unfreedoms due to lack of political margins of maneuverability, of social opportunities, of economic possibilities, and of transparency and security guarantees (Sen 1999).

Second, one has to strive for the establishment of a distributed justice system, a system where justice is available in a variety of forms, from a variety of sources, and through a variety of channels, so as to ensure that the citizen has a true access to justice. This is truly Phase II in the process of development of a new culture of access to justice. Already, the road to distributed governance has been explored (Paquet 1999) and it has been shown that it generates higher performance. The governance of the justice system needs to follow the same path.

But this drift toward a different justice system that is more distributed is unlikely to be smooth. The reason for this is simple: such a road is likely to be fraught with difficult times, but also with setbacks and mishaps. So, in the long run, one must also be able to ensure the requisite “negative capacity” (as Keats would call it), i.e., the capacity to keep going when things are going wrong. A third long-run initiative therefore entails the construction of the necessary support systems to help the reformers both in taking a creative part in this multilogue with the citizenry and in withstanding the chilling effect generated by setbacks in any change venture of this sort. For without such support system, reform is doomed.

Roy Lewis has analysed this sort of situation in a satirical mode in his famous What We Did to Father (1960) in which he portrays the experience of evolution of a community of tree-dwelling apes discovering fire, inventing tools and being carried forward by progress away from the security of their trees. In such a transitional world, every unfortunate turn of events is always an occasion for reluctant participants to denounce progress and to seek to launch a “back to the trees” movement.

One may reasonably anticipate that every setback in this massive transformation of the justice system will trigger another version of the “back to the tree movement”. It is therefore crucial that there be ways to immunize the justice system against such setbacks. This is one dossier where the justice system may have to turn to non-jurists for help.

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