The Legal Problems of Everyday Life - The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians
Chapter X: The Paths to Civil Justice in Canada
The introductory chapter set out a broad framework for this research, the broad view of access to justice compared with the more narrow view of access to the justice system. We see the sense of this when we compare access to criminal justice with access to civil justice. Access to criminal justice is strongly system-driven. The need for assistance in criminal matters is triggered by the criminal charge and the court appearance, and is related in the number of unrepresented accused at various stages of the criminal justice process. Because people have many more options for resolving justiciable problems in civil matters, including not acting on them at all, and because the number of areas of life touched by the civil law is so great, access to civil justice is a far more complex matter. Civil justice is not as system-centered as criminal justice. The number of unrepresented litigants in family and civil courts, while an important problem, is only the tip of a very large iceberg in civil justice.
This research shows that civil justice problems are pervasive in the lives of Canadians. People can and do choose many paths to justice, with varying degrees of success. Many people do, indeed, experience a problem, resolve it satisfactorily largely by on the strength of their own resources and get on with life. However, many people fail to act to resolve their justiciable problems, mainly because of common barriers to access to justice; not knowing that something could be done, not knowing their rights and not knowing where to find assistance among the most frequent of them. Many of the self-helpers achieve outcomes that they consider to be unfair and, among those, some feel, in retrospect, that some help would have produced a better outcome. Many people who do not resolve their problems feel that the situation is becoming worse.
Just under a fifth of all people who report justiciable problems experience multiple problems, defined in this study as three or more problems occurring simultaneously. These are not random occurrences. Problems tend to cluster and justiciable problems can trigger others. This trigger effect suggests the presence of the process of social exclusion, in which multiple problems bind together to form a sort of Gordian knot. It was observed that people who experience multiple problems are more likely to experience the problems related to debt, housing, social services and disability pensions; all indicative of social exclusion and dependency on forms of social assistance. There is evidence that the fall into social exclusion is a descent into troubled lives of dependency on publicly funded services.
Life is seamless and experiencing justiciable problems can trigger not only other justiciable problems, but problems related to health and other aspects of social well-being. One third of respondents who experienced a justiciable problem said that the legal problem triggered a problem related to high levels of stress and emotional difficulties. About one quarter indicated they experienced physical health problems as a direct consequence of the justiciable problems. In both cases, people were likely to rely more heavily on the health care system as a consequence. This represents a direct cost to the health care system that arises as a result of experiencing civil justice problems. Other aspects of social well being can be adversely affected by peoples' experiencing justiciable problems. Adverse life-style consequences such as increased drug or alcohol consumption, violence or the threat of violence, behavioural consequences for the children of people experiencing justiciable problems and an erosion of a sense of safety and security of life are all causally related to experiencing justiciable problems.
It is abundantly clear that justiciable problems are not contained within legal silos. There is a causal relationship between experiencing justiciable problems and health and social problems. Experiencing multiple problems, not achieving a satisfactory outcome to problems and having unresolved problems grow worse all predict a greater likelihood of health and social problems. What we do as a society to deal with justiciable problems has a direct effect on the well being of many people experiencing them and, more generally, on the kind of society we are constructing for ourselves and for our children.
The evidence also suggests that experiencing justiciable problems produces a lack of confidence in the fairness of the laws and the justice system. People who experience multiple problems, who perceive that the outcomes of their problems were unfair, who feel that the situation relating to unresolved problems has become worse and who fail to obtain helpful assistance with their problems feel that the justice system is less fair than their more fortunate counterparts. Because justice is a central social institution embodying core social values, this is likely an expression of a lack of justice and fairness characterizing the society in general. The laws and the formal justice system are the symbolic embodiment of this disenchantment and this is not to say, however, that the justice system and just nature of the society are not being tarred with the same brush.
Certain social groups are more vulnerable than others to a variety of negative outcomes related to justiciable problems. In particular, the disabled stand out as a group that is particularly vulnerable. Targeting of services should take into account the combinations of factors that signal increased vulnerability, including multiple problems.
Overall, these results suggest that it would pay dividends in social terms to put in place mechanisms to assist people in resolving justiciable problems. This applies not only to assistance for self-representing litigants appearing in court. It suggests the potential value of a continuum of service approach that would assist a wider range of people with a much broader range of problems. Law lines that provide telephone assistance already exist in several jurisdictions. One Self Help Centre that provides assistance to self-representing litigants in family and civil matters has been tried successfully. The self help center concept could easily be expanded to meet the needs of a broader range of clients, for instance, people who must appear at administrative tribunals to resolve justiciable problems and people who might be able to resolve problems largely on their own with reliable public legal information and some limited hands-on assistance. These kinds of legal services are the possible foundation of a "continuum of service" approach to providing legal services that could address the range of justiciable problems identified in this research. This envisions an access to justice network approach to justiciable problems in which a range of services is linked, providing the appropriate level and type of service to the particular problem. Traditional legal aid with its emphasis on in-court representation services becomes one element in the network of access to justice services. In view of the connections between justiciable problems and problems related to health care and other aspects of social well-being, the network of access to justice services linked by referrals to the full range of services implicated in the cluster of inter-related problems experienced by individuals. Also, the clear evidence of multiple problems and trigger effects suggests that early intervention and preventative strategies might be of considerable value. This is a vision of"joined-up" justice services inspired not primarily by, although at the same time not ignoring, the over-crowded courts and the miseries of people who have to appear in them without legal counsel. It looks at justice services from the point of view of the range of problems that are experienced by the public and not only from the perspective of the courts.
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