Access to justice before the law is one of Canada’s most fundamental rights.
“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”
― Martin Luther King Jr., Letter from the Birmingham Jail
Access to justice before the law is one of Canada’s most fundamental rights. Without it, the rule of law is diminished, if not rendered meaningless. Access to justice is founded on at least three principles:
(1) Equality before the law regardless of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered;
(2) The financial ability to get legal assistance when you need it; and
(3) Having the courts resolve your legal dispute in a timely manner.
Recent events remind us that many in North America do not benefit from the equal application of the law. While we are heartened by the meaningful conversations that are taking place on the nightly news and around dinner tables, the concurrent public denial of fundamental liberties, such as the right to peaceful protest, serves as a painful reminder that we have a lot of work to do as lawyers and as a society more broadly. As Chief Justice Wagner of the Supreme Court of Canada noted in relation to access to justice, “real access depends on action and the necessary resources to make that action happen.”
We must ask ourselves what is the role of lawyers in this struggle. For, as stated by Honoré de Balzac, “Laws are spider webs through which the big flies pass and the little ones get caught.” This image captures not just the inequities in our legal system, but the tangible effects of those inequities on people.
While our legal system presumes that everyone is equal before the law, equity requires that justice be blind. Pre-judgement on the basis of stereotype or discriminatory belief does not exist when justice is sightless. Equity also requires that individuals have the right and benefit of counsel. Those who are represented have the benefit of being informed of their legal rights, the benefit of knowing what tools and services are available, and the benefit of knowing how to achieve them under the law. Simply put, lawyers help our legal system avoid prejudgment, educate individuals on their rights and empower individuals to obtain remedies. Self-represented individuals do not have these advantages.
This inequity is starkly demonstrated in the criminal context. The State has the benefit of a robustly funded Crown and police force; whereas, the self-represented litigant has themselves. Not only does this jeopardize the right to liberty for the individual, it risks reinforcing inequalities that our justice system is supposed to ignore. As stated by Chief Justice Wagner,
A lack of access to justice reinforces existing inequities. An accused without legal representation may decide to plead guilty when he might have been acquitted or convicted of a lesser crime with a lawyer’s help. He may be wrongfully convicted. He may be sentenced to a longer prison term than he would have received had he gotten legal advice. Out on bail, he may not be given the support he needs to comply with his bail conditions. In the end, those who can’t access legal services may spend more time in jail. It has profound effects on people’s lives.
A denial of access to justice is therefore not a “pre-occupation of the left”, a “minority issue” or a “legal issue”. It is not an issue that the majority can simply view with sadness but take no action. To the contrary, it is and should be the fundamental pre-occupation of our society. As eloquently stated by Chief Justice Wagner,
[i]t’s a democratic issue. It’s a human rights issue. It’s even an economic issue. Let me explain...We are very lucky to live in a stable and peaceful country. We trust that legal wrongs will be set right. Let’s never forget that the first victims of a tyrannical and oppressive state are always the judges and lawyers who stand up for people’s rights, and the media who report on them.
But the more difficult it becomes for people of a certain class, education, or income level to get justice, the more we put public confidence at risk. Look at the self-represented middle-class parent fighting for child custody. Look at the person accused of a minor crime whose legal aid lawyer struggles to competently do the work in the limited hours legal aid will pay for. Even with people like all of you working very hard to prevent it, every day our system fails someone.
Over time, this will diminish public confidence. In an extreme scenario, it could lead to social unrest. It’s not the kind of thing that will happen overnight – but it keeps me up at night.
It is undeniable that the right and benefit of counsel is central to ensuring that individuals receive timely and effective justice, not just for the lucky few, but for all.
On the occasion of the Chief Justice’s press conference Remarks by the Right Honourable Richard Wagner, P.C. Chief Justice of Canada, online at: https://www.scc-csc.ca/judges-juges/spe-dis/rw-2019-06-20-eng.aspx.
Remarks of the Right Honourable Richard Wagner, P.C. Chief Justice of Canada, online at: https://www.scc-csc.ca/judges-juges/spe-dis/rw-2018-10-04-eng.aspx#fnb1.
As stated by the Chief Justice of Canada Richard Wagner in 2012, “if you don’t make sure there is access to justice, it can create serious problems for democracy”, Chief Justice Richard Wagner quoted in Kirk Makin, “Supreme Court judge warns of ‘dangerous’ flaws in the system,” The Globe and Mail (13 December 2012), page A1.