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A history of access to justice | Sam Goldstein

Wednesday, March 06, 2019 @ 9:04 AM | By Sam Goldstein


Sam Goldstein %>
Sam Goldstein
What the term access to justice means has evolved over time since it first became an issue in the early 1970s to describe the growing concern that class should not be a barrier to obtaining legal advice from a lawyer on how to assert your legal rights.

Lawyers who had been giving legal advice and assistance to defendants in criminal courts voluntarily since the late 1950s were replaced with a professional staff of lawyers that were funded by the legal profession, the province and the federal government. This duty counsel system grew into the community clinic system today that provides legal advice in more than just criminal law to low-income people.

Charter litigation in the 1980s spawned a new demand for lawyers. Once again, there was the concern that class should not be a barrier to the public to take advantage of new-found rights and freedoms. In this spirit, the federal government established a court challenge program to assist Canadians in litigating equality rights.

Starting in the 1990s, government budgets came under severe economic pressure to reduce the scope of its services, and lower interest rates decreased the funds available from the professional legal community. Ontario Legal Aid, the provincial agency tasked with the responsibility of managing the duty counsel and community clinics, found itself with less money to carry out its mandate but an increased demand because of several Supreme Court of Canada decisions that placed a financial responsibility on government to uphold many of the rights and freedoms guaranteed in the Charter.

Government’s response was to reduce the main cost of legal services, namely lawyers, by educating the public directly on what their legal rights are, what documents to use, where the courts and offices are, and how to conduct your own trial. This has all been made possible with the use of the Internet.

Access to justice, traditionally, focused on a progressive liberal philosophy that equalized differences between classes by providing low-income earners with government services that would not be otherwise available to them. Access to justice was seen to be an important issue because without these services an individual would not be able to assert legal rights that were statutorily or constitutionally available to them.

The discussion about access to justice today is no longer about making sure low-income people can afford a lawyer or get legal advice, nor is the discussion about asserting the legal rights of an individual. Access to justice has become mired in the language of identity politics that demands government recognize the inherent dignity of a various group.

Nowhere is this more clear than in the Law Society of Ontario’s decision to drop Upper Canada from its name, its adoption of a statement of principles, its decision to take on the responsibility of providing an articling program — even its recent decision to build a unisex changeroom. Each initiative is described as removing yet another barrier to justice.

What does justice really mean in these contexts? Becoming a lawyer or getting hired is an opportunity to be earned. Locker numbers or space is based on demand. What people think cannot be legislated against. Yet not to change the society’s name, not to provide articling jobs, not to adopt a statement of principles, or not to build a unisex changeroom, is seen as an affront to the group making the demand.

Clearly access to justice is no longer about ensuring poor people can afford a lawyer. That is the danger of this new meaning of access to justice. Identity politics spends society’s time and money that should be going toward providing the poor with lawyers on symbolic solutions to nonexistent problems.

Sam Goldstein is a Toronto criminal lawyer. You can e-mail him at sam@samgoldstein.ca, follow him @Willweargloves or visit www.samgoldstein.ca.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer's Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.