by Nikki Gershbain
The access to justice crisis
There has been much discussion in the profession recently about what the Chief Justice of Canada has referred to as a crisis in the justice system.
This crisis is shorthand for a number of systemic problems, including long delays, overly complex procedures, an erosion in legal aid funding, and skyrocketing legal fees.
Despite a shared belief that justice is a fundamental right of our democracy, the growing reality is that only the rich can afford the full benefits of the legal system.
For poor and low-income Canadians, the situation is particularly dire.
Increasingly, many people find themselves trying to solve their legal problems on their own, despite being ill-equipped to put their best foot forward in a system designed for professionals.
Others simply give up entirely on seeking justice through the judicial system.
The gaps in family law
In recent years, a series of civil legal needs studies have concluded that family law is the area of greatest need in Canada.
In Ontario, 60 per cent to 70 per cent—by some accounts even a staggering 80 per cent—of family litigants appear unrepresented.
The breakdown of a relationship, particularly where children are involved, can be one of the most stressful experiences of a person’s life. That experience is made far more challenging without representation.
The role of law students
My organization, Pro Bono Students Canada (PBSC), draws on the skills of trained and supervised law students to help fill some of the gaps in the system and support individuals in need.
Every year, about 1,600 PBSC students from 21 law schools and 8 provinces provide over 130,000 hours free legal services to low-income Canadians, and the organizations that serve them.
PBSC students are trained to fill out court forms and draft other legal documents, deliver legal education workshops, write legal memos – all under the careful supervision of licensed lawyers.
Law students are increasingly looking for meaningful, structured opportunities outside of the classroom. Each year, PBSC keeps a wait list of about 700 students hoping for a placement.
Student pro bono has the added benefit of creating a generation of lawyers committed to public service. We tell our volunteers that pro bono is an obligation of every member of the profession. In turn, more than 80 per cent report they plan to make it part of their practice on graduation.
PBSC’s Partnership with Legal Aid Ontario
Each year, PBSC recruits about 160 law students across Canada to participate in our Family Law Project (FLP). Under the supervision of duty counsel and advice counsel, the students help clients fill out their court forms, and make their way through the system with dignity and support.
In Ontario, PBSC operates the FLP in partnership with Legal Aid Ontario. Together, we train about 80 to 100 students per year to assist low-income, self-represented litigants who are ineligible for legal aid, but cannot afford a lawyer.
The FLP currently runs 10 months of the year at 8 courts – Jarvis, Sheppard, University, Newmarket (as of May, 2014), Brampton, Windsor, London and Kingston.
The project has received two awards and many accolades for the role it plays in assisting clients, creating better outcomes for families, and providing people with a positive experience of the justice system at an extremely difficult time of their lives.
Justice Harvey Brownstone has said that the North York court would “literally” implode without the PBSC volunteers. Clients regularly report they would be lost without the students.
The project also provides a pipeline into this under-serviced area of the profession. At several law schools, the FLP is the only program offering practical exposure to family law.
Law students and access to justice
At PBSC, we believe the time is now to look to Canada’s law students to help meet the growing gaps in legal services.
Fortunately, law students are on the profession’s radar screen. Several recent reports have set out prescriptions for our ailing system that include leveraging the talents and skills of students:
- The Cromwell Report, “Access to Civil & Family Justice: A Roadmap for Change“, calls on the profession to expand its reliance on trained and supervised law students.
- The Canadian Bar Association’s “Reaching Equal Justice: An Invitation to Envision and Act,” acknowledges the “great strides” PBSC has made in increasing access to justice, and calls on law schools to provide more of these opportunities for students.
- The Law Commission of Ontario’s “Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity,” recommends the expansion of student services, including PBSC’s Family Law Project.
Student pro bono is not a panacea to the access to justice crisis. Pro bono in general cannot, and should not, replace government legal aid programs.
It is, however, a critical if partial response to unmet legal needs. Law student pro bono helps more Canadians access the system, and trains law students to be better and more community-minded lawyers.
Law student pro bono is an idea whose time has come.
Nikki Gershbain is the National Director of Pro Bono Students Canada.