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Access to Justice: Looking at the people behind the labels | Beverley McLachlin

Tuesday, April 02, 2019 @ 9:08 AM | By Beverley McLachlin

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Beverley McLachlin %>
Beverley McLachlin
Access to justice has two sides — one procedural, one substantive. The procedural side is concerned with giving people access to the legal information and legal services that they need — their hour with a lawyer or their day in court. The substantive side is concerned with ensuring that they access real justice once they are in the system.  

Both aspects of access to justice are important. And both may be hampered by false labelling. Human beings use labels to make sense of life. In daily contact with an array of different people, they slot them into categories — poor or rich; friendly or hostile; like me or not like me. Nothing wrong with that; it’s how we get through life.

But when we mislabel people, we may deny them justice. An inappropriate label may cause us to consign them in a category that is beyond help, so we turn away. Or it may cause us to falsely treat them like someone they aren’t, overlooking their personal circumstances and thus treating them inappropriately.

These label-induced injustices may affect both sides of the access to justice coin. Under-inclusive labels may result in denying a person access to a lawyer, court or remediation opportunity, excluding the person from help. On the other hand, over-inclusive labels may cause us to overlook a person’s real situation and deny her the justice appropriate to her situation.

I was brought face to face with the problem of mislabelling people a few months after I retired from judging. I moved to Vancouver. I had a condo there, but no car. I decided to buy a transit ticket to help me get around.

One afternoon I got on the Main Street bus. The rain was teeming. I pushed up the stairs and found a seat. I looked around the crowded, steamy bus. My eye glanced on a man opposite me. His face was battered, his hair long and unkempt. He looked like he hadn’t slept in a real bed for weeks. He seemed to be staring at me. I looked away.

Then I heard a voice. It was the man, forcing me back. “Are you Beverley McLachlin?” he asked.

“Yes,” I admitted with surprise, meeting his eyes at last.

“I want to thank you for everything you did,” the man said. “For Canadians, for us.”

What was he thanking me for, I wondered? And then I reflected. I thought of the INSITE safe injection centre down the street that the Supreme Court of Canada had saved from closure. I thought of the way drug courts, mental health courts and other special courts just a few blocks away had helped thousands of people get off the revolving courtroom door cycle. I thought of cases like Gladue that emphasized the need for sentencing judges to consider the unique background and situation of Indigenous offenders.

“Thank you,” I replied, “I appreciate your words.” And your lesson, I added in my mind. I had come away from my brief encounter with this man humbler and wiser. I had looked at the man’s dishevelled state and unconsciously categorized him as “other.” When he looked at me I had looked away, not wanting to make eye-contact, not wanting to be involved. I had not seen him for what he was — an articulate Canadian who was grateful to those who work for better justice. In a word, I had mislabelled him.

How many times, I wondered as I got off the bus, do people in the justice system — police, court workers, lawyers, judges — inadvertently mislabel people, thereby denying them access to justice.

The mislabelling of exclusion — denying people the help they need because of unconscious biases — is wrong. But the mislabelling of inclusion can also be insidious. Instead of looking at the real person with a particular background, culture and antecedents, we treat the person as if she were like everyone else. That can result in injustice.  

That is the lesson of R. v. Gladue [1999] 1 S.C.R. 688. Jamie Tanis Gladue was a young Indigenous woman from British Columbia charged with manslaughter for stabbing her boyfriend, who had been repeatedly insulting her. The judge sentenced her to three years in prison. He took into account the many aggravating factors and Gladue’s clean record. But he did not take into account her traumatic past and other factors related to the fact that she was Indigenous. He ruled that because Gladue lived off the reserve, s. 718.2(e) of the Criminal Code, which requires a sentencing judge to consider Indigenous factors in sentencing, did not apply to her.

In other words, Gladue, since she was no longer on the reserve, should be treated not as who she really was, but as any non-indigenous offender.

The Supreme Court of Canada held that excluding Indigenous people from special consideration of their unique Indigenous culture and backgrounds when they lived off-reserve was wrong. The purpose of s. 718.2(e) was not confined to Indigenous people living on reserves, Justices Peter Cory and Frank Iacobucci wrote — it was the broader purpose of addressing the historical problem of severe over-representation of Indigenous people within the criminal system — a system that was obviously failing Indigenous people by refusing to look at them for who they were.  

If we care about access to justice, it is important to build better courts, train better lawyers and find new ways to connect people to the clinics and lawyers and justice institutions they need. But it is also important to remember that access to justice is about more than infrastructure. It is about people — real people with their own problems, their own pasts, their own unique stories. Let’s not let false labels get in the way of providing real access to justice to real people.

The Right Honourable Beverley McLachlin served as chief justice of Canada from 2000 to mid-December 2017. She now works as an arbitrator and mediator in Canada and internationally and also sits as a justice of Singapore’s International Commercial Court and the Hong Kong Final Court of Appeal. She chairs the Action Committee on Access to Justice in Civil and Family Matters.