The Legal Problems of Everyday Life - The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians

Chapter II: Theory and Method

General Approach

Research on the nature and extent of civil justice problems attempts to support the development of publicly funded legal services on the basis of sound empirical knowledge. There are a number of ways in which legal services have traditionally been developed. Demand from potential consumers of the service is a common one. According to Bradshaw, expressed demand is a type of need reflecting people who show up at the door to request service.[10] The problem with expressed demand as an indicator of unmet need is that the expression of need is mediated by a number individual and systemic barriers that determine who is likely to show up to demand service. Consequently, for a variety of reasons, not all people have equal access to the law and to justice. Pressure applied by interest groups, intuitive judgements by administrators and the perceptions of service providers of their professional roles are other factors that might determine the ways in which services are planned and delivered.[11]

Demand-led and intuitive ways of assessing the level of unmet need are not without value. This is especially true historically when, characteristically during the early years of the development of legal aid, and probably similar to the early phase of the life cycle of any institution, demand so obviously exceeds both funding and the supply of service that it might seem absurd to question the "wisdom" of demand. The demand-led and intuitive approaches to assessing need are, however, all subject to biases of one kind or another. Empirical research is a way to represent, in a manner that is as unbiased as the research design will permit, a record of the problems experienced by the public, their difficulties in responding to problems, and the consequences of not having access to the assistance required to deal effectively with serious problems. In a way, admittedly lacking in qualitative depth, empirical research gives a voice to the public on a mass scale. In the case of legal services that are publicly funded, the presence of some reliable approach to gauging the needs of the public is all the more essential precisely because they are funded from the public purse. Research is one element in the complex mix of planning and developing legal services that encourages needs-based as a complement to the more traditional bases of demand-led program development.

Unmet Need

The idea of a needs-based approach to developing legal services is attractive and appeals to common sense. However, unmet need is an elusive concept. In the introduction to Paths to Justice: Scotland Hazel Genn and Alan Paterson remark that if policy makers are dismayed that "access to justice" and "the purpose of legal aid" are issues about which there is substantial disagreement, they will find that concepts such as "unmet need for legal services" or even the question as to what is a "legal problem" do not lend themselves to easy analysis either.[12]

Johnsen suggests two conditions that define a legal need. Legal needs are the legal problems that individuals cannot resolve effectively using their own means. A second condition is that the improvement brought about by the resolution of the problem ought to lead to improved welfare for the individual.[13] Although this may seem simple enough on the surface, there are many complexities in determining unmet need. The paths to justice are not always sure and certain. People may not recognize that what they experience as a problem of everyday life has a legal solution. The person may fail to take action based on the erroneous assumption that the problem is not important only to realize later on that the consequences are greater than had been anticipated. The person may take care of the problem on her or his own, only to find that because of the lack of professional or specialized assistance the resolution obtained without help was less than satisfactory. Even though a great many of the problems and disputes encountered in the daily lives of people have a legal aspect, owing to the plethora of legislation regulating so many aspects of modern life, the best solution may not be legal action. Philip Lewis made the perceptive observation that calling a problem a legal one says more about one possible solution to the problem than about the nature of the problem itself. He famously illustrates the point by saying that "if a tenant in a flat has a leaking roof he may be regarded as having a legal problem; does his lease provide that the landlord should do the repairs, and is the mechanism of the courts adequate to ensure quick action? But he may choose to get a ladder and not a lawyer"[14]

Often research does not attempt to define legal need explicitly or to measure it precisely. Dignan observes that there is no common definition across the extant research about what constitutes legal need or unmet legal need. In American studies unmet need is defined very broadly. The incidence of legal need is equated with the incidence of legal problems. The recent "paths to justice" studies conducted in the UK avoid defining legal need. Qualitative conclusions about the amount of unmet needs are drawn on the basis of the difficulties people have in accessing advice.[15]

Justiciable Events

This research is designed to examine the degree to which Canadians experience problems with aspects of legality and the extent to which some people experiencing certain problems may need assistance. The project attempts to take account of the conceptual issues described above. The design of this research follows the general approach developed by Hazel Genn in the pioneering Paths to Justice[16] research in the U.K. and followed by most subsequent legal needs research projects.[17]

As with the studies noted above, the first step in conducting this research is to establish the prevalence of justiciable problems experienced by people in a population. As noted in the previous chapter, a justiciable event is defined by Genn as "a matter experienced by a respondent which raised legal issues whether or not it was recognized by the respondent as being "legal" and whether any action taken by the respondent to deal with the event involved the use of any part of the civil justice system."[18]Justiciable events or problems may not represent needs. However, determining the prevalence of justiciable events among the population is the starting point that provides the basic framework for the analysis of people's experience in seeking assistance with problems and the consequences of experiencing justiciable problems.

To determine the prevalence of justiciable problems a national sample covering the ten provinces with a sample size of 6665 adults aged 18 years of age and older was carried out in March 2006. Interviews were conducted by telephone and the average interview time was 16 minutes. The margin or error for a sample of this size, for results representing the entire sample, is +/- 1.2 percent 19 times out of 20.[19] Detailed sample completion results are shown in Appendix A.

In the problem identification part of the questionnaire, respondents were asked if they had experienced any of 80 specific justiciable events or problems. The questionnaire is shown in Appendix B. These questions were similar to the 76 specific problems used in a previous survey conducted in 2004.[20] Based on the experience of the 2004 research, changes to several questionnaire items were made to make problem definitions more precise on the 2006 survey instrument. The wording of the questions was designed to maintain a high threshold level in order to eliminate trivial problems. Respondents were told at the beginning of the interview that the survey would inquire only about problems they felt were serious and difficult to resolve. The term "legal" was not used to describe the subject matter because it could not be assumed that respondents would define problems as being legal. However, each of the 80 questions was carefully designed to include legal content. Thus, the screen for problems of a "legal" nature was in the design of the 80 specific problems. Only problems with legal aspects were included in the list of problems from which respondents were asked to indicate whether or not they had experienced them. The problems were presented to respondents with wording that attempted to assure that the problem had a legal aspect and a possible legal solution. This was not difficult for most problems. Family law problems such as divorce or child support are unambiguously legal in nature. On the other hand, developing wording for consumer, employment and debt problems that narrows them to justiciable issues required greater caution. Every attempt was made to define the specific problems making up the broader problem categories included in the research so that only truly justiciable problems were discussed and analyzed. Although in surveys of self-reported justiciable problems there is always the possibility of ambiguity, the control for the legal nature of problems through the careful wording of the questions should assure validity.

The screen for seriousness was the high threshold wording of the questions. Respondents were asked if in the past three years they had experienced a problem that was serious and difficult to resolve in each of the specific problems they had experienced. The success of the threshold language relies on qualitative judgements of respondents as to the meaning of serious and difficult to resolve and is, admittedly, more ambiguous that the controls for the legal nature of problems.[21] The implications of this will be discussed in greater detail in chapter four. In addition, the wording of questions instructed respondents that the problem being queried should not relate to any other problem already mentioned.

In most cases, the 80 specific problems will be grouped into 15 problem categories for purposes of analysis, since presenting the results of a detailed analysis on all 80 specific problems would be overwhelming. Following the problem identification section, subsequent parts of the questionnaire dealt with respondents' attempts to resolve problems, the connections between the problems they had experienced, general non-legal impacts of experiencing justiciable problems, general attitudes toward society and the justice system and socio-demographic characteristics.

Other Problems

After being asked about the 80 pre-designed problems respondents were asked if they had experienced other problems that had not already been mentioned. Up to five additional problems could be identified by each respondent. About 5.6 percent of all problem mentions fell into the other category. Respondents identified a total of 9,398 problems, of which 8,873 fell within the 80 specific problems and 525 in the other category. Coders recorded some limited information about the nature of the other problems mentioned. The vast majority could be related to the existing 80 problem types. This inspires some confidence that the 80 specific problems provide comprehensive coverage of the types of problems commonly experienced by Canadians. Of course, the incidence of some problems might be related to seasonal factors, for example, employment issues in regions with seasonal resource-based economies or financial problems generally throughout the country when income tax filings are due. One cluster of problem types stood apart. This was a group of financial or business-related problems that were coded as: taxes/income tax issues, financial problems/financial aid/extortion/investments/stealing, property issue, business disputes with partners. These made up 76 of the 525 other problems.

It was decided not to recode the other problems into the pre-set categories for two reasons. First, it was not possible to tell if the other problem mentions were related to aspects of problems already mentioned. This is a distinct possibility since about 85 percent of all other problems mentioned were related to the existing problem types. Second, the legal content of the other problems volunteered by respondents could not be controlled. Including them would compromise the screening for legal content that was carefully designed into the survey instrument.

Excluding the other problems mentioned by respondents makes little difference to the overall measure of prevalence of problems. The average number of problems for the entire sample of 6,665 is 1.41 including the other problems and I.33 excluding them. The average number of problems for respondents experiencing one or more problems, including the 525 other problems is 3.05 and 2.99 excluding them. Finally, the percentage of respondents reporting one or more problems, including other problems, is 46.2 percent. The same figure is 44.6 percent excluding the other problems.

Sample Description

The sample is equally balanced in terms of gender; 50.1 percent of respondents are male and 49.9 are female. With regard to language of the interview, 76.6 percent of respondents completed the interview in English and 33.4 percent did so in French.

Respondents self-identifying as members of a visible minority group comprise 16.7 percent of the sample. This compares with about 15.9 percent according to the 2001 Census. Aboriginal people represent 2.2 percent of all respondents. It appears that respondents were very reluctant to reveal their ethnic origin. The response rate to the detailed ethnic origin question was only 16 percent. On the other hand, the response rate for the question asking if respondents were members of a visible minority group was 97.6 percent. Analysis in terms of detailed ethnic origin will not be possible. In the sample 15.9 percent of respondents reported they were born outside Canada. This is not far off the 18.4 percent Canada based on the 2001 Census.

The age distribution of the sample is a concern when interviews are conducted by telephone. It can be expected that older people might be more accessible by telephone and therefore are likely to be overrepresented in a telephone survey. This appears to be the case. The table below presents the age distribution for the sample and for the national population aged 18 years and older based on the 2001 Census.

Table 1: The Age Distribution of the Sample and the National Population
Percent in Each Age Category
Age Group 2001 Census Sample
18 to 29 26.8% 10.5%
30 to 44 28.7% 27.5%
45 to 64 29.0% 42.9%
65 and older 15.5% 19.1%

People under 30 are significantly under-represented in the sample. The sample population in the 30 to 44 age group represents about the same proportion as in the total population. The 45 to 64 age group is especially heavily represented in the sample and people 65 and older less heavily over-represented.

Respondents also appear to exaggerate educational achievement. The table below compares educational achievement reported by respondents with 2001 Census figures.

Table 2: Educational Attainment of the Sample and the National Population
Percent in Each Educational Attainment Group
Level of Education 2001 Census Sample
Less Than High School 31.3% 11.2%
High School or Other Post-Secondary Training 50.8% 56.1%
University 17.9% 32.7%

This is most certainly not an "accessibility effect" similar to what might explain the age distribution of the sample. It seems as if education reflects status such that people are reluctant to acknowledge low levels of educational attainment and, on the other hand, prone to exaggerate university education.

Just over 65 per cent of the sample, 65.9 per cent, reported being married or living as a couple. 34.1 percent were unattached including single, widowed and divorced. Couples with dependent children make up 37.3 percent of all respondents. Couples with children represent 28.7 percent. Among all unattached individuals combined, 27.1 percent have no children and 6.9 percent have dependent children.

With respect to employment, 61.5 percent of the sample were working, full or part-time, or were self-employed and 5.0 percent reported being unemployed at the time of the survey. The remaining 33.5 percent comprised respondents who were students, retired, staying at home full time or on some form of disability pension.

In terms of disability status, 11.6 percent of the sample reported that they had a physical or mental disability that frequently limited their ability to function at home, at work or at school or in other activities outside the home. About 1.3 percent of respondents reported being on a long-term disability pension.

Table 3 shows the income distribution of respondents and the same distribution according to the 2001 census of Canada.

Table 3: Income Distribution of the Sample and the National Population
Per Cent in Each Income Group
Income Category Sample 2001 Census
Less than $24,999 23.9% 54.2%
$25,000 to $44,999 29.5% 25.4%
$50,000 to 64,999 19.9% 12.2%
$65,000 to $84,999 12.5% 4.8%
$85,000 and Over 14.2% 3.4%

The survey covered the ten provinces.[22] Table 4 shows the percentage of respondents by province.

Table 4: Respondents by Province
Number and Per Cent of Respondents by Province
Province Number in the Sample Percent in the Sample Percent in the 2001 Census
Newfoundland and Labrador 260 3.9% 1.7%
Prince Edward Island 100 1.5% 0.5%
Nova Scotia 320 4.8% 3.0%
New Brunswick 320 4.8% 2.4%
Quebec 1565 23.4% 24.1%
Ontario 1700 25.5% 38.0%
Manitoba 350 5.3% 3.7%
Saskatchewan 350 5.3% 3.3%
Alberta 600 9.0% 9.9%
British Columbia 1100 16.5% 13.0%
Total 6665 100.0% 100.0%

By comparing the percentages of respondents with the percentage distribution of the population, it can be seen that the Atlantic Provinces, Manitoba and Saskatchewan were over-sampled to increase sample sizes for those small populations. Over-sampling also occurred in British Columbia. The sample size is disproportionately low in Ontario. However, the sample size for Ontario is large enough to support a robust analysis.

Finally, the sample is representative of communities of all sizes. Table 5 shows the percentage of respondents by community size.

Table 5: Respondents by Community Size
Per cent Distribution of Respondents by Community Size
Community Size Per Cent
Less than 5000 24.5
5000 to 24,999 10.4
25,000 to 99,999 11.8
100,000 to 999,999 24.4
1,000,000 and over 29.1