Access to justice by another name | Medina Eve Abdelkader
Monday, August 10, 2020 @ 1:19 PM | By Medina Eve Abdelkader
|Medina Eve Abdelkader|
Learning a new discipline is a process of acculturation, and at this stage of our education we have not yet been fully cultured in the law.
And as someone not yet completely acculturated into the legal sector, one thing has become obvious to me about access to justice: there is a fundamental gap between the way that legal professionals think about justice and the way that the public thinks about justice.
One need only look to civil justice movements for evidence of this gap. #MeToo is a rallying cry to believe survivors of sexual assault and sanction those who commit those criminal or civil offences. #TransLivesMatter is a rallying cry to uphold the rights of all people to life, liberty and the security of person. #BlackLivesMatter is a rallying cry to combat systemic discrimination among front-line workers in our criminal justice sector.
While the legal profession concerns itself with the little details and discrepancies upon which cases are won or lost, the public takes to the streets and to their Twitter feeds to express the ways in which the legal system is failing them.
Access to justice advocates in the legal sector often argue that we need more resources. Indeed, the legal system is underfunded. They gripe that we need to make access to justice more of a political priority in order to secure more funds for the legal system. They are absolutely correct.
But the source of that problem is a more abstract one; the fundamental disjoint between the way in which the profession and the people characterize individual and collective legal rights.
As legal futurist Richard Susskind remarked, "… patients don't really want neurosurgeons. What they want is health." Likewise, citizens do not want lawyers — or judges, or paralegals or clerks, for that matter. What they want is justice. They want equality. They want their rights to be upheld, and when they are not upheld, they want reasonable avenues to be heard and advocate for themselves.
Over the course of both the 20th and 21st centuries, we have seen a steady increase of public support for the access to justice agenda. But "The Law" continues to operate as a discrete system, inaccessible to the vast majority of those who would benefit most from its protection.
The result is a public perception that the justice sector has lost sight of what the law is really about. We have alienated the public to the point that 65 per cent of Canadians do not seek redress for their legal problems because they "think that nothing can be done, are uncertain about their rights, do not know what to do, think it will take too much time, cost too much money or are simply afraid."
We may have designed a system that administers laws, but if 65 per cent of people are disempowered to advocate for their rights, we are failing to adequately administer justice. Those Canadians ultimately opt to forgo their rights rather than engage with the legal system.
In some ways, the justice sector is suffering from a public relations problem; Canadians — or at least 65 per cent of them — are not empowered to engage with the legal dimensions of their lives. For those Canadians, the law might appear to be more stick rather than carrot; an onerous, uphill battle, one which they would rather avoid.
That perception — nay, distrust — of the justice system is the loose string in a sweater that, when tugged, has the power to unravel a modern democracy. We are bearing witness to this in the United States, where cracks in the criminal justice system have expanded into chasms separating the rich and the poor and eroded the public's confidence in the rule of law as an organizing principle. It is, of course, much more complex; but the result is nonetheless a broken contract between the state and its people.
For years, the legal profession has been asking how can we increase access to justice in Canada.
What we should be asking is how might we reconcile the ways in which the public and the profession characterize justice? How might we maintain the integrity of the legal system while designing legal services that do not alienate the public? How can we translate the law in a way that empowers legal literacy among Canadians? How might we reduce the cumbersome administrative overhead of legal processes?
Modern political movements are sending an important signal to the legal community: the administration of justice is not only about upholding the rule of law, it is also about making the law accessible as a tool for administering justice. These movements tell us that the public sees access to justice as part of a bundle of democratic rights, and that as legal professionals, we need to fundamentally reorient ourselves around the public internalizes justice.
This means designing more practical mechanisms for Canadians to enforce their rights and settle disputes that are not only in line with the rule of law, but that are also desirable, viable and feasible. The public is not only calling for the rule of law to be upheld, but also, that the law to be available to the public as a justice-seeking tool.
It's up to the legal community to answer that call.
Medina Eve Abdelkader is a JD candidate at the University of Victoria Faculty of Law. She holds a bachelor of arts in political theory and a master of design in strategic foresight & innovation. Prior to law, she worked as a design strategist in Toronto. Medina's legal focus is at the intersection of human rights, bioethics and corporate law. She works at the Access to Justice Centre for Excellence, serves on the board of directors for the Vancouver Island Human Rights Coalition, and is a certified Gladue report writer. She can be reached via Twitter, LinkedIn or her website.
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