Op-ed by President and CEO John Panusa in the Globe and Mail

August 20, 2020

For Canada to truly recover economically, we need new thinking around access to justice. 

The COVID-19 pandemic has forced governments to make tough policy decisions quickly, with multiheaded, Hydra-like consequences for citizens. While protecting us from the worst ravages of the coronavirus, lockdowns and isolation are exacting a toll we are just beginning to pay. A rise in domestic violence, more families splintering, increased mental health and addiction issues, and higher levels of crime – these are, and always have been, the products of economic and social hardships.

A true economic recovery demands paradigm shifts to address these issues. Indeed, over the next months and years, pandemic-induced adversity and misfortune will send more Canadians crashing into the justice system – and they will bounce off a seemingly impenetrable morass of rules, delays, processes and costs.

The good news is that the topic of access to justice in Canada has inspired a Niagara Falls-like cascade of research papers over the decades. The bad news is that, as the years tick by, solutions somehow seem further in the mists than ever before.

Now is the time to make access to justice a keystone in our recovery and an integral part of Canadian society.

In a justice system traditionally built around in-person appearances, the numbers game is a primary challenge. After all, there are a finite number of courthouses housing judges and clerks to grind through the never-ending stack of cases during any given workday.

Within that already limited capacity, there is an hierarchy of priorities. Criminal matters are first in line due to legal requirements that they be tried within a certain time frame. Family matters are legion, but the high costs of litigation mean people often represent themselves, grinding the system to a halt as they generally have no fluency in the law and are forced to stumble through as best they can.

It can take two years for a couple to finally part ways through the courts, with all the stress and heartache that uncertainty entails during that time. It’s tough to be a productive member of society when so many questions remain in doubt, as litigation affects your share of the family property, custody of your children, your financial supports and so on.

Uncertainty can be just as ominous in the business sector. When commercial disputes take years to wind their way through the courts, investment decisions are delayed or even cancelled. Parties in many commercial disputes now eschew the courts altogether, choosing to go to arbitration instead. But arbitration doesn’t set legal precedent and thus cannot improve certainty – one key ingredient in the entrepreneurial risk-taking that will fuel economic recovery.

There is an emerging sensitivity to the power imbalances in this country, in which the wealthy and connected have the most access to legal services or are able to bend rules that are otherwise unyielding for the masses. Because trust is the prerequisite for authority, these imbalances are slowly but surely eroding our collective faith in our public institutions. A serious effort to elevate access to justice would begin to reverse this narrative for Canadians and replace cynicism with hope.

The pandemic has already bulldozed new pathways in our justice system. Holding hearings virtually, which would once have been unheard of, is now a commonplace approach. Our lawyers can work from home and advise and represent clients throughout the province, negating the need for anyone to pick up and trot down to the local courthouse, which can be a very long journey for those in rural areas. These new pathways must be paved for good, even after this pandemic. 

And while legal aid organizations across the country play a crucial role in access to justice, there is so much more that can be done. The expansion of specialized courts such as drug courts, mental health courts, Indigenous courts and so on provide off-ramps for those for whom the traditional justice measures are costly and wouldn’t be effective. As Robert Ingersoll, a noted lawyer and orator, once said: “Justice should remove the bandage from her eyes long enough to distinguish between the vicious and the unfortunate.” Specialized courts recognize that distinction and add a panel to the access to justice mosaic. 

Humans are hard-wired for fairness. It allowed us to build our great civilizations through cooperation and community. Access to justice reflects that fundamental desire for fairness and is a foundation for our economic recovery, our democracy – and ultimately our freedom. 

John Panusa is the president and CEO of Legal Aid Alberta and the Western Canadian Representative for the Association of Legal Aid Plans of Canada. He has a law degree from the University of Alberta and a Master of Law degree from the University of Cambridge, and has published works in The Lawyers Weekly, Edmonton Journal and Canadian Parliamentary Review.

Read John’s article originally published in the Globe and Mail (subscription required)