Law Times

Law Times • April 22, 2013 NEWS Page 5 How do you measure access to justice? Lawyers on quest to identify surefire signs of fairness BY YAMRI TADDESE Law Times L CUTTING EDGE • TIMELY • INTERACTIVE awyers at the Canadian Bar Association are on a nationwide quest to identify the surefire signs of access to justice in Canadian society. The question behind the ambitious project is simple: If life expectancy and infant mortality speak volumes about the level of health in society, what are the telltale signs of justice? When it comes to concretely assessing how well the justice system serves litigants, Canada falls far behind countries like Australia, says Vancouver lawyer Melina Buckley. She recently published a discussion paper on the issue ahead of the CBA's upcoming Envisioning Equal Justice summit. The CBA is currently taking suggestions on how to create a system for measuring access to justice using uniform standards. "We have a shared sense that the access to justice 'problem' is growing and yet this is only an intuition founded on anecdotes," wrote Buckley in the discussion paper. "We are unable to give definitive answers to even most basic inquiries about barriers to access and we lack the capacity to pull together the fragmented data." More precise and accurate data will help determine informed priorities and decide what is and isn't working in the justice system, Buckley tells Law Times. "Because we don't have enough resources in our justice system, we have to make priorities over what kind of cases are going to get additional assistance, which ones we're really going to prioritize," she says. "And if we had better indicators about the outcomes of certain cases and what it means for society . . . we would be able to say this is obviously a priority." Advanced metrics for access to justice would provide the players in the system "a basis on which to evaluate the changes we make to see if we're actually improving access to justice," she adds. Various reports by legal aid organizations look at the speed of the processes and the number of applications accepted but these figures don't show the full picture, according to Buckley. "That would be one way of measuring if there's more need out there to meet but that would be a very inaccurate and incomplete picture because legal aid is provided in a very small number of matters," she says, adding legal aid doesn't cover several types of matters that are thus not part of the equation for calculating access to justice. Legal Aid Ontario measures access to justice according to the number of services provided to clients, an annual client survey, court delays, and the time it takes to process applications. LAO spokesman Kristian Justesen says the organization believes it's "very important to support the development of justice system metrics for the system as a whole and for legal aid specifically." "Metrics should be client-focused and driven by a client focus and sensitivity to taxpayers' dollars," says Justesen. The courts also look at the number of unrepresented people appearing before judges and draw conclusions on that basis. But the information available isn't necessarily of high quality, says Buckley. satisfaction of litigants is "It's unevenly collected. tricky as there are winMost of our sense of how ners and losers in the jusbig the access to justice tice system but that won't problem is is based on be a barrier to obtaining anecdotes when we read reliable results, she adds. about it in the newspaBuckley's discussion per, as judges [in terms paper cites other existing of] what we see in our metrics for access to justice courtrooms, as lawyers such as the World Justice [in terms of] what we see Project rule of law index in legal aid programs." and the Hague model of But the problem of measuring access to justice. measuring access to justice Once a system for starts at the very definition of it, says Buckley, who Canada is far behind other countries in Canada is in place, the adds there's no consensus assessing how well the justice system CBA's goal is to apply it on what the concept really serves litigants, says Melina Buckley. across the country. For its part, LAO is means. Some people define it as access to the courts while others see it in open to a quantitative index for access to the larger context of legal services that help justice "if it was clear, comprehensive, and had a high level of confidence from all acsolve problems as a whole. Coming up with one definition will tors in the justice system and the society it be a start, says Buckley. "We have to start serves," says Justesen. In a rare speech this month, Robert from that foundation and then we will [say], 'Well, are we talking about just access Bauman, chief justice of the Supreme to courts or are we talking about access to Court of British Columbia, urged lawlegal services that help to solve problems,' yers to "wake up, speak up, and shake up" about the issues in their profession. which is a much bigger picture." "We as lawyers, as you well know, are facEstablishing a set definition will be the easier of the tasks ahead, adds Buckley. ing significant challenges these days: Access "The harder part is then saying, 'OK, now to justice issues are daunting and potentially this is what we mean by access to justice. fatal to our profession as we know it," he said. Bauman mentioned the CBA's upcomHow can we measure . . . the extent to ing summit on access to justice as a crucial which our system is providing it?'" In the context of the courts, the ideal conversation. "I stress especially the Envimeasurement of access to justice would sioning Equal Justice summit taking place rely on factors such as the number of later this month," he said. The summit will take place in Vancoucases, their outcome, and the quality of LT the process, says Buckley. Measuring the ver from April 25-27. 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