Thoughtful change is better

By Caroline Nevin

"May you live in interesting times” is either a blessing or a curse, depending on what’s going on around you. In the case of the justice system, and those advocating for fair and meaningful access to it, these are interesting times indeed.

The good news is that everyone now agrees that there’s a problem with access to justice, and that it’s no longer possible to manage the effects of prolonged systemic strain. (As we all know, recognition of a problem is the first step on the road to recovery!). Everyone inside and out of the justice system knows that change is necessary. Even better news is that there is a lot of talent and goodwill within the Bar, judiciary, legal organizations and Ministry of Justice that is squarely focused on coming up with solutions to make things better. Given the opportunity such as the open consultations of Len Doust, QC last year and Geoff Cowper, QC this year, stakeholders within the justice system consistently step forward to participate and provide their experienced perspectives and best ideas.

On the bad news side of the equation, however, both politics and money are factors in the current debate – an often fatal mix when it comes to resolving complex issues. As a result, we’ve seen some strange initiatives receive political and/or financial support in the name of access to justice. Earlier this year, there was aggressive lobbying of government MLAs to support allowing non-lawyer notaries to provide a number of legal services without lawyer supervision. More recently, Bill 44 (the Civil Resolution Tribunal Act) will result in the allocation of much-needed public funding not to the courts but instead to a new parallel system of dispute resolution for small claims, which – a first for B.C. – actually prohibits lawyers unless conditions for an exception can be met. 

With thoughtful discussions among a broad group of people committed to building a better justice system, the concepts underlying the scope of practice proposal and Bill 44 could have evolved into constructive solutions with long-term benefit to the public. Positive, long-lasting change is very possible, but not without the full engagement of everyone involved in the system.

Affordability is one of the topics often raised in discussions about access to justice. Someone who cannot pay for necessary legal services is clearly disadvantaged in terms of any meaningful “access”to the justice system. Access means much more than the ability to enter a courtroom; that’s why the CBA has been such a fierce advocate for legal aid funding and a tireless promoter of pro bono practice. It’s also why we have supported Law Society of B.C. initiatives to expand the components of legal practice that can be done by paralegals and articling students, with the public safeguard of lawyer supervision. These changes will provide tangible benefits to the public, and are the result of significant discussions among the Bar, government and the judiciary.

There are many different ways to describe access to justice, but I like this simple definition proposed by Alberta lawyer Douglas Mah in a recent CBA National article: “All persons have equal opportunity to fairly and ably enforce or defend their legal rights within the justice system.” The key to making positive change in access to justice in B.C. lies in all of us being willing to engage others in thoughtful, unbiased discussions about how we can best improve equality, fairness and the protection of legal rights. Let’s embrace these “interesting times” and the opportunities for change – and dialogue – that they bring.

This article was published in the June 2012 issue of BarTalk. © 2012 The Canadian Bar Association. All rights reserved.