Conclusion: Advancing Community Justice Help
Our report considers the current paradigm that, in Canada and most comparative jurisdictions, has seen a strong focus on the provision of legal services by lawyers. We consider the implications of that paradigm on access to justice, primarily on people living on low incomes or facing other social disadvantages who are experiencing law-related problems. We suggest that framing access to justice to include the concept of legal empowerment could lead to a more meaningful approach that encompasses support for community justice help.
Our report also canvasses the spectrum of community justice help, giving examples that illustrate its breadth and nature in Canada and comparative jurisdictions. We include notes on program evaluations of those services. And we consider, briefly, how community organizations take advantage of technology to improve or expand their community justice help. The report also reviews relevant academic literature that evaluates or speaks to the quality of community justice help.
In this section, we offer concluding thoughts on our review of the literature. We reflect on and identify key findings, highlight knowledge gaps, and suggest next steps.
Key findings and reflections
Our review shows that existing regulatory frameworks in Canada, although lawyer-centric, include long-established permissions for non-lawyer roles, some of which can be associated with community justice help. Further, there are other permissions within the current regulatory frameworks that provide bases for community justice help activity.
This leads to our first finding: Efforts and initiatives to shift the lawyer-centric paradigm towards greater roles for non-lawyers in general and community justice help in particular are to some extent about a shift in degree rather than kind.
Our review also indicates that, over recent years, regulators of the legal profession and the provision of legal services in Canada have taken some regulatory actions aimed at improving access to justice. While few of these actions are directly related to enabling or supporting community justice help, they may represent an incremental shift in the lawyer-centric paradigm of regulation. The action most potentially relevant to community justice help is the introduction of a power for limited licensing in Saskatchewan and Manitoba that has been specifically justified as a way to support not-for-profit provision of law-related assistance by non-lawyers in community-based organizations.
This leads to our second finding: Some recent regulatory actions, although not reflective of a shift in the paradigm of lawyer-centricity, are at least nudging the orientation of the paradigm towards modes of service delivery that more people may be able to access. But, insofar as these modes of service delivery operate on a for-profit basis, even if at a lower cost, they are unlikely to offer much of an advance in access to justice for people living on low incomes or experiencing other forms of social disadvantage and marginalization.
Although the lawyer-centric paradigm is therefore only gradually shifting towards expanded roles for non-lawyers and community justice help, it is important to note that the justifications for these regulatory actions are informed by a newer approach to researching and understanding access to justice. That newer approach brings increased focus to people-centered and empowerment-oriented, rather than lawyer- or system-centered, approaches.
This leads to our third finding: The newer approach to and understanding of access to justice may be altering the ground upon which the lawyer-centric paradigm has been erected and will likely only continue to exert pressure to shift that paradigm. We anticipate that this will lead to more deliberate regulatory action – formal or informal – to enable and support community justice help.
Our report also describes a spectrum of law-related assistance provided by not-for-profit community-based organizations and gives examples of organizations that illustrate the range of community justice help services, in Canada and other comparative jurisdictions. Community-justice partnerships are proliferating; many organizations serving marginalized communities are integrating law-related assistance into their range of services; court-based as well as navigator programs are offering process-oriented community justice help; and McKenzie Friends and court support persons provide moral, emotional, and other forms of support to people involved in a legal proceeding.
This leads to our fourth finding, echoing similar findings in other reports (including our own report in July 2020): The breadth and vigour of community justice help activity reflect the reality of where and how people address their multifaceted problems, including problems that may include a law-related element. Acknowledging and supporting this reality holds considerable promise for advancing meaningful access to justice.
Finally, our report discusses the growing body of evidence that indicates that not-for-profit community-based organizations, and non-lawyers in general, are, in the right circumstances, able to provide good quality and effective law-related assistance and are no more prone to deficiencies than lawyers.
This leads to our fifth finding: The adoption of a supportive and enabling approach to community justice help (by regulators, governments, and others) is a sound approach based on the evidence. There is not a body of evidence that indicates that doing so would put the public at risk of harm. We will return to this recommendation shortly.
Knowledge gaps
While a key finding is that community justice help programs and activities as surveyed in this report appear to be meeting real needs and there is no evidence that they are ineffective or are causing any harm (indeed, to the contrary), there are some clear knowledge gaps in relation to community justice help.
To begin with, there is a lack of detailed information on the true extent of community justice help programs and activities in Canada and comparative jurisdictions. To some extent this is understandable, because the organizations that are the primary providers of community justice help are myriad, diverse, local, and constantly evolving. And the law-related assistance they give is typically interwoven with other services they provide; these community organizations may not view their assistance as “legal” in nature. It would be challenging to maintain a comprehensive and current picture of the vast “community justice help” landscape.
More significantly, and more amenable to responsive action, is a knowledge gap in relation to the lack of publicly available evaluations of the effectiveness of current programs and activities involving delivery of law-related assistance by not-for-profit community-based organizations. Our review has considered the limited literature available in this area and it supports the usefulness of such research.
Both program evaluations and independent, academic evaluations – qualitative and quantitative – can provide rich evidence that supports learning and improvement in the realm of community justice help. We would emphasize that, to be productive and constructive, not-for-profit organizations providing community justice help need to be heavily involved in, if not lead, these evaluation efforts. They are highly attuned to the needs of their communities and the broader problem of lack of access to justice faced by their communities.
On a related note, we suggest that the quality and effectiveness of community justice help should be evaluated in terms of benchmarks informed by the real-world alternatives offered by providers of legal services (e.g. what lawyers or paralegals actually deliver) and the alternative of no help at all. To put this the other way around, it will not necessarily be useful to evaluate community justice help acontextually and against an idealized standard.
Recommended approach and next steps
The preceding discussion and analysis have identified a range of current programs and activity that involve staff in community-based not-for-profit settings providing a variety of types of law-related assistance. The discussion has also revealed that there are two general approaches that regulators may take with respect to community justice help.
One approach involves legal regulators integrating these community justice helpers into their regulatory frameworks by issuing limited licences that authorize their activities, subject to various regulatory requirements and oversight mechanisms. In our view, this approach carries multiple problems, and has significant implications for the work carried out by these helpers. The other approach does not attempt to fetter or obstruct community justice help, instead recognizing it as part of the broader justice ecosystem, acknowledging the importance of its community-based integrated services, and actively supporting that role.
We strongly recommend the second approach, for a number of reasons that are outlined in a separate study we have undertaken.355 To begin with, the reality of how and where people access help with many of their multifaceted problems, and the general lack of accessibility of licensed legal services providers, means that a supportive “gate-opening” approach, rather than a restrictive “gate-keeping” approach, will be more effective in improving people’s access to the various forms of help they may need. Further, given that the not-for-profit community-based sector is already overworked and under-resourced, any significant additional regulatory burden may be counter-productive.
In addition, it should be recognized that, when people are experiencing work-related, housing, income support, and immigration problems, they are experiencing issues that intersect with human rights guarantees, both domestic and international. Indeed, access to justice is an element of the adequate protection of human rights and a human rights-based approach should be adopted in efforts to improve access to justice. In short, restricting community-based supports that people seek to access to address these problems – when other services are generally not accessible – undermines human rights and offends the notion of a human rights-based approach.
Our recommended approach, then, focuses on supporting and enabling the real-world practice of “good quality” community justice help. In keeping with the key finding in this, and other, reports that existing community justice help activity appears to be of good quality, we have articulated, in our separate work,356 a framework that articulates many of the good practices already in place in community-based settings. The framework centres on three features of good quality community justice help and provides a set of indicative markers for each feature. For present purposes, we will reproduce only our formulation of the three features here:
We propose that community justice help be regarded as “good quality” when the following three features are present:
- Community justice helpers have the knowledge, skills and experience they need to assist people with the legal elements of their problems and to navigate relevant legal processes.
- Community justice helpers work within a not-for-profit organization and an ethical infrastructure that protects the dignity, privacy and consumer welfare of the people they are assisting.
- Community justice helpers provide support that responds to their clients’ needs in a holistic way, based on an understanding of the multidimensional nature of their needs, the social context of their lives, and the availability of other appropriate services in the community. In a nutshell, community workers know their clients and know their communities inside out.357
In turn, we propose that next steps on community justice help be informed by the “supporting and enabling” approach we recommend.
With respect to the range of possible next steps for the Department of Justice, we suggest the following possibilities:
- Investigate the potential for supporting and enabling community justice help to improve access to justice in areas of federal jurisdiction and in areas covered by intergovernmental program partnerships and related funding frameworks.
- Identify and rectify current barriers to or restrictions on community justice help in areas of federal jurisdiction, in particular, in the area of assistance related to immigration and refugee law provided by not-for-profit organizations.
- Fund and otherwise facilitate research to better understand the current extent of community justice help and to constructively and contextually assess its quality and potential areas of improvement.
- Fund and otherwise facilitate research to better understand how community justice helping organizations internally and collectively support the quality of their work.
- Fund and otherwise facilitate sector-specific or organization-specific projects, pilot, or other initiatives, aimed at elaborating, establishing, maintaining, evaluating, or improving the quality of community justice help.
- Fund and otherwise facilitate research that explores with particular focus and depth the actions taken and help sought by people living on low incomes or experiencing other social disadvantages to address their multifaceted life problems that may include law-related elements, as well as the efficacy of the actions and challenges associated with them.
- Foster domestic and international inter-jurisdictional information and knowledge exchange on community justice help activity and best practices.
- Date modified: