Access and justice

By Shibil Siddiqi

This post is part of our Personal perspectives on access to justice series.

Access to justice

Traditionally access to justice has been seen as providing access to dispute resolution tools, including effective access to courts and tribunals.

With dispute resolution effective access is key, and necessarily includes the provision of competent legal services to ensure that parties to a dispute can navigate the technical requirements and barriers established by a formal dispute resolution mechanism such as the justice system.

While access to justice is vital in all disputes, it is particularly pertinent in areas that impact upon fundamental rights and the basic necessities of life. No one should have to lose their liberty, family, residency status, home or source of income without a fair shot at due process.

What access to justice means for my clients

For the clients that use the services of legal clinics every day, access to justice means far more than a technical fix that lowers the cost of litigation to manageable levels, or allows for affordable access to competent counsel through legal aid mechanisms.

It is also the expectation of a just result (one that extends beyond procedural fairness and reaches substantive notions of justice) in any particular case.

This is because, in my view, the term access to justice contains two different and equally important emphases: access and justice. Access to justice then is not simply about access to the justice system or being able to decode the language of the law; it is about access to substantive justice, and about the need for broader social justice.

An important distinction for clinic clients

The distinction is important to clinic clients, who may find themselves receiving access to a justice system that offers little substantive protection.

For example, let’s say Sarah is a client who gets laid-off from work and is then evicted for being unable to afford the rent. She would be correct to believe that she was denied access to justice, even if she received an impartial hearing with diligent representation and robust procedural protections. The problem for Sarah and clients like her is not access to justice, but access to justice.

A result embedded in the law that prioritizes property rights over fundamental human rights such as housing would not be considered just by the client on the brink of homelessness. Thus it is not only access that needs to be more equitable, but justice itself.

The need to reflect on justice as much as on access

True access to justice requires reflection on justice as much as on access. While the law has always paid tribute to justice, it has also traditionally been exclusionary. As many critical legal scholars have pointed out, the law has traditionally been an instrument of the status quo that protects privilege and colonial and other forms of domination.

But the notion of justice is a subversive and destabilizing one. As the philosopher Emmanuel Levinas wrote, “Justice means the constant revision of justice, expectation of a better justice.”

And the law has long been a battleground (or as scholars would say, a “site of contestation”) for those wedded to progressive notions of justice, that is, to the “expectation of a better justice.”

This was just as true for the Magna Carta, which terminated the law as the sole preserve of the sovereign and established rule of law (at least for the landed male aristocracy), as it is for the Charter of Rights and Freedoms.

A shift in Canada’s legal and social frontiers

Dedication to the idea of justice has dramatically shifted Canada’s legal and social frontiers.

For instance, we have come a long way from when the Supreme Court of Canada held that discrimination on the basis of pregnancy was lawful as it was not the same as discrimination against women (Bliss v. Canada (AG), [1976] 1 SCR 170).

Individual rights have become more deeply entrenched, womens’ rights have been expanded (Bliss was overturned by Brooks v. Safeway Ltd, [1989] 1 SCR 1219), and gay marriage has been recognized.

These changes have taken root not because they were strictly required by the letter of the law, but because, through progressive litigation and consciousness raising, our notions of justice have evolved akin to the “living tree” that is our constitution.

A vision for access to justice

But much more work needs to be done.

Social and economic rights trail far behind civil and political ones, and group rights (fundamental to Aboriginal communities) have foundered where individual rights have thrived.

To date, Canada recognizes no right to housing [an area of ongoing clinic litigation-see Tanudjaja v. Attorney General (Canada) and the LAO blog on this subject-] or minimum levels of economic sustenance.

Poverty and income inequality are on the rise across the country, and our Aboriginal communities have for decades endured Third World levels of deprivation.

If these issues offend our sense of justice (and they should), then this outrage should be reflected in our notions of access to justice. That is to say, our notions of access to justice should include legislation and legal interpretations that are socially just and responsive to fundamental human needs.

In conclusion…

Access to justice is thus as much about technical access as it is about substantive law reform and systemic advocacy. It is about consciousness raising with respect to creating a more just society. It is about crafting progressive narratives of law that view individuals in their complete human and social contexts rather than as abstract legal fictions possessing bundles of rights that can be dispassionately adjudicated in law.

Providing access to the justice system does play a crucial function; it allows clients to be heard.

However, clients living in poverty don’t just want to be heard; they want to be understood. They desire not only results that are lawful, but results that are just.

Access to justice, then, is about transforming the law from something the poor and marginalized experience as being oppressive to something that is emancipating.

This is a tall and aspirational order. Expectation of a better justice always is.

Shibil Siddiqi

Shibil Siddiqi is a lawyer at Neighbourhood Legal Services, a community legal clinic serving Toronto’s Downtown Eastside. He is also a Fellow at the Centre for the Study of Global Power and Politics at Trent University.

His practice includes residential tenancies, co-operative housing, human rights and administrative law. He has a strong interest in Charter issues and public legal education. He has travelled to Afghanistan, where he worked with the Afghan parliament, and helped set up a legal aid clinic in Kabul.