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How to Improve Access to Justice

Earlier this month, the Canadian Forum on Civil Justice sounded yet another warning about "access to justice” – how high costs and complexity are shutting most Canadians out of the justice system.  Their report followed on the heels of August’s annual meeting of the Canadian Bar Association, organized around the issue of access to justice, and last April’s Envisioning Equal Justice Summit.  At the August CBA meeting, Supreme Court Chief Justice Beverley McLachlin called accessibility the most pressing challenge facing the administration of justice in Canada.  People’s lives, she reported, can be ruined when legal services are too expensive for them to get.

Canadians who end up in court too often lose their life savings as a result.

And the CBA has good reason to worry. Legal services are expensive, and Canadians who end up in court too often lose their life savings as a result.  Or, they represent themselves before the courts or other tribunals.  That's not just bad for them – trying to navigate an unfamiliar and often intimidating legal system. It's also bad for the legal system, since unrepresented parties impose costs on judges, court officials and other parties. Self-representation is especially a problem in family court.  “When people receive appropriate assistance in reading and preparing documents and making arguments, or get timely legal advice and representation, it saves public money in the long run and results in better outcomes,” according to the CBA. “Plus, the overall justice system functions more smoothly and effectively, to everyone’s benefit.”

Like all professions, the legal profession’s solution to this kind of problem is to demand more government funding.   “Like health care, justice is a shared governmental responsibility,” says the CBA. “A reinvigorated federal role is imperative if we are to reach equal justice.”  More federal money, with more pro bono work by lawyers and more work on “legal innovation” is their recommended suite of solutions.  This month’s report from the Canadian Forum on Civil Justice similarly recommends investing in education and “early resolution services” to head off problems before they get to court by modernizing and expanding the legal service sector.  Ie., more government money for more lawyers, especially through increased legal aid funding.

The high cost of legal services seems to be an annual theme of the CBA’s summer meetings.  Last August, Chief Justice McLachlin warned that access to justice was a crisis in Canada.  In August 2007, she complained “the price of justice should not be so dear.”  There was “no point” to a legal system that no one could afford to use.  As early as August 2000, she warned the CBA that the legal system was too expensive for most Canadians [Lawyers urged to chop legal costs, Tibbetts, Janice. Calgary Herald, 22 Aug 2000: A6].  And yet, despite working groups and task forces and studies devoted to the issue since then, legal services have not become any cheaper.  After more than a decade of complaints at the CBA meetings, it is time to consider a new approach. Maybe the high cost of legal services simply isn’t a problem the legal profession can tackle.  Maybe the legal profession itself is part of the problem.

Lawyers certainly come in for more than their share of criticisms – allegations of greed and unscrupulous conduct are not hard to come by.  But if we approach the problem of the cost of legal services as a policy problem, possible policy solutions become clearer.  To drive down the cost of legal services probably means making the legal business more competitive.  And that probably means boosting the supply of legal services.

We could simply add more lawyers to the system.  We could open more law schools, add new seats to the existing law schools, or cut the length of a legal education and train more lawyers with the existing resources.  We could also find ways to bring immigrant lawyers up to Canadian standards more quickly and open our borders to foreign trained professionals. With more people providing legal services, the price of a given service should drop. 

But if the problem is urgent, more drastic steps should also be considered.  Provincial governments could expand the scope of practice of paralegals, for example. Ontario already allows paralegals to provide some services on their own, and firms like X-Copper now regularly represent drivers charged with traffic and impaired driving offences. But in Ontario paralegals are regulated by the provincial law society – in other words, by the lawyers themselves.  And as the current dust up over mobile telephone regulation shows, market incumbents are wary of letting too many new competitors into a market.

Here’s a question for the CBA and the Chief Justice.  If access to justice is a serious challenge, is it time to re-think the legal profession’s monopoly on legal services?  After all, provincial governments don’t let ophthalmologists regulate optometrists.   Instead, where scopes of practice overlap, professionals compete against each other.  Trained optometrists provide dependable, competitively priced services to thousands of Canadians, while ophthalmologists provide a broader set of services at a different price.  In some jurisdictions, self-regulating dental hygienists work in areas independently of dentists.

There is no reason the market for legal services couldn’t be serviced by more than one profession.  Competently trained paralegals working as part of a well run professional college could provide affordable representation to some of the thousands of Canadians representing themselves in family court, criminal court or other legal encounter.  In fact, they already do.  We just need to free the paralegals from oversight by the lawyers’ profession.

The judicial system already handles many court proceedings through prothonotaries and deputy judges – professionals who do not draw judicial salaries but nonetheless provide important and accessible decision-making services to thousands of Canadians each year.

After more than a decade of CBA speeches, reports, and resolutions, let’s broaden the debate about confronting the high cost of legal services.