Executive Summary

Overview

This report provides a review of recent developments in regulatory action and program activity aimed at improving access to justice through assistance provided by non-lawyers in community-based not-for-profit settings. We call this type of assistance “community justice help”. The purpose of this report is to explore and identify the potential for supporting and expanding the roles for community justice help in Canada.

The primary focus of our review is Canada, but recent developments in comparative jurisdictions are also considered. The report identifies some relevant regulatory action with potential to expand the scope for non-lawyer roles in general and community justice help more particularly. It also identifies a significant level of program activity in the realm of community justice help.

The report addresses recent developments in regulatory action and program activity from both descriptive and evaluative perspectives. Based on our review of the available evaluative information, we conclude that community justice help is generally of good quality, responding to people’s multifaceted needs, and is no more prone to deficiencies in quality or effectiveness than lawyers’ services. Consequently, this report recommends that next steps in relation to community justice help should aim to support and enable it.

Methodology

This report initially used a research methodology centering on review of primary legal sources (legislation on the regulation of the legal profession in the jurisdictions considered), primary regulatory literature (reports and other documents produced by regulators of the legal profession), and secondary academic literature. When we discovered that the secondary literature was somewhat limited, we expanded our methodology to selectively incorporate less formal literature generated by organizations involved in community-based not-for-profit non-lawyer activities and programs. We also conducted select telephone interviews to clarify certain information about program activity.

Terminology: Law-related assistance, law-related problem(s), and community justice help

This report uses the term “law-related assistance” to refer to the full range of forms of assistance relating to the legal element of problems that frequently arise in the course of people’s lives. That assistance spans a range, from the types of assistance that community justice helpers often provide, such as legal issue spotting and legal information, referral to lawyers, form-filling guidance, process navigation and accompaniment, to the types of assistance that lawyers and other licensed legal professionals typically provide, such as document drafting, legal advice, and representation in court or other dispute resolution proceedings. At times, the report also uses the term “legal services” to distinguish the types of assistance that are typically associated with lawyers and are the subject of the greatest regulatory control.

Rather than the term “everyday legal problem”, this report uses the term “law-related problem(s)” or “life-affecting problem with a legal element” in order to better reflect the reality that the problems people experience are often multidimensional (involving, say, health or financial elements) and therefore, not merely or singularly “legal” problems. In addition, our preferred terms assist in avoiding the assumption that the resolution of a “legal” problem must or should rely upon engagement with the formal legal system.

What distinguishes community justice help as a form of non-lawyer law-related assistance is that it is provided in community-based not-for-profit settings as part of a holistic approach to meeting the needs of marginalized people and communities. When it comes to our focused discussion of community justice help, we use the term “community worker” as a general label for the non-lawyers who provide law-related assistance for people’s life-affecting problems in community-based not-for-profit contexts.

The current lawyer-centric paradigm in Canada

Against the backdrop of the generally accepted objectives of regulation of the legal profession, all jurisdictions in Canada use a regulatory framework for the legal profession and the provision of legal services that is founded on a general lawyer-centric restriction. This foundational restriction is “lawyer-centric” because it prohibits all people other than licensed lawyers (or, in the case of Quebec, advocates) from engaging in the practice of law or, in the different language with similar scope of some regulatory frameworks, the provision of legal services. This general restriction is foundational in the sense that it has built upon it a variety of extensions and exemptions that permit a range of non-lawyers – people other than licensed lawyers – to engage in some or all activities that comprise the practice of law or the provision of legal services. At the same time, it should be noted that the provision of general legal information is not regarded as the practice of law or the provision of legal services.

We identify two types of extensions to the provision of legal services: one that authorizes other licensed legal professionals (such as paralegals) and another that authorizes employees or other supervisees of lawyers and other licensees (such as law clerks and law students). We identify five types of exemptions that permit law-related assistance activities undertaken by a range of people:

The use of these extensions and exemptions varies significantly from jurisdiction to jurisdiction.

We also note that non-lawyer roles can be based on the discretionary exercise of the inherent power of courts to control their proceedings, as well as the related rules of courts. In a number of Canadian jurisdictions, courts (or court rules) permit non-lawyers to represent parties in certain types of proceedings (primarily, in family law proceedings) or to act as support persons during court proceedings (so-called “McKenzie Friends”).

As the legal profession is primarily regulated at the sub-national level in Canada, there is no general regulatory framework applicable to legal professionals at the federal level. However, in some areas of federal jurisdiction, the federal government has enacted laws that impact the provision of law-related assistance, including by authorizing non-lawyers to appear as representatives in dispute resolution proceedings.

Given the range of exemptions and extensions that allow non-lawyers to participate in the provision of law-related assistance, the current regulatory paradigm for legal services in Canadian jurisdictions cannot be characterized as “lawyer-exclusive”. Nevertheless, the current paradigm remains substantially lawyer-centric, both in structure and practice. Yet the regulatory paradigm has long contained a range of permissions for delivery of a variety of legal services by different types of non-lawyers. This means that the provision of law-related assistance by non-lawyers has for some time been recognized to be both justifiable and feasible. Two long-standing examples are Indigenous Court Workers (nationally) and Community Legal Workers (in Ontario).

We see significant untapped potential in the regulatory schemes to support and expand the provision of non-lawyer assistance in the form of community justice help. Our recent paper, Community Justice Help: Advancing Community-based Access to Justice, suggests that the nature of community justice help makes it difficult to place within the category of legal services that are appropriate for regulation by law societies. And we further argue that community justice help is consistent with Canadian regulators' access to justice goals and should be supported and enabled, rather than undermined or subject to further regulation by lawyers.

The existing exemptions for provision by non-legal professions and occupations and for no-fee provision, noted above, offer apparent authority for community justice help – to the extent it may be seen to be the provision of legal services – to be provided in Ontario, British Columbia, Manitoba, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador. In Manitoba and Saskatchewan, it could in the future be permitted – again, to the extent that it is viewed as legal services – on the basis of the extension recently introduced to grant limited licenses on a case-by-case basis. In Alberta, it might arguably be permissible on the same informal basis that the current legal service provision by independent unlicensed paralegals is tolerated.

While the focus of this report is on the potential to support and expand the roles for law-related assistance to be provided by community-based not-for-profit non-lawyers, we note that regulators across Canada have undertaken a number of regulatory reforms and initiatives in recent years that are aimed at improving access to justice via lawyers, or mechanisms closely associated with or similar to lawyers. Examples of these regulatory actions include permitting licensed paralegals, unbundling of legal services (a.k.a. limited scope retainers), modifying conflict rules for pro bono legal service providers, and allowing civil society organizations to employ lawyers to serve their clients. These steps forward, however, have limitations in terms of their impact on increasing access to justice for communities and people experiencing social disadvantage.

Regulatory frameworks in comparative jurisdictions

This report reviews the regulatory frameworks of the comparative jurisdictions of the United States, Australia, and England and Wales in order to contextualize the situation in Canada. In our analysis, both the United States and Australia use a lawyer-centric paradigm for the regulation of the provision of legal services that is broadly similar to the Canadian paradigm. Of particular note is that the regulatory regimes in all three jurisdictions maintain a place for a range of types of non-lawyers to deliver a variety of types of law-related assistance, although it appears that Canada’s regulatory framework has probably gone the furthest in this respect. It also appears that regulators in the United States are presently devoting some attention to the potential of expanding types of non-lawyer law-related assistance that are available at no cost to users. Such attention is less apparent in the literature we have been able to review for Australia.

England and Wales is significantly less lawyer-centric than the other three jurisdictions reviewed here, in two ways. First, for a long time it has restricted non-lawyers from engaging in only a specific “reserved” sub-set of legal activities. Second, it has more recently allowed a range of designated licensed non-lawyer professionals to also engage in differing bundles of these reserved activities, along with lawyers. Outside those areas, there are few regulatory restrictions on non-lawyers providing legal services and they have been doing so for a long time, including offering services to community justice. This is not to say that there are not still practical barriers to community justice help in England and Wales, at least in the sense of ongoing and increasing lack of access to adequate funding and other resources.

Access to justice, community justice help and legal empowerment

Several research reports have identified common challenges for delivering law-related assistance to people living on low-incomes or experiencing other forms of social disadvantage and marginalization. When it is this demographic that is the focus of concern, the emphasis in this report on the potential role of non-lawyers in community-based not-for-profit settings is not accidental.

The nature and context of the life circumstances and needs of marginalized people and communities mean that non-lawyer forms of law-related assistance may be particularly important in terms of practicality and effectiveness. The practicality lies in the assistance being available at no cost from sources already embedded in and trusted and accessed by the community. The effectiveness lies in the assistance being available from helpers who are skilled in understanding and engaging the challenging social context of people living on low incomes or otherwise experiencing marginalization. We note that there is some limited evidence that access to justice may be relatively more available in the less lawyer-centric regulatory system of England and Wales, compared to Canada and the United States.

We argue that the problem of lack of access to justice can be reframed as a problem of lack of legal empowerment and that this reframing reinforces the justifiability and feasibility of expanding community justice help. Just as it can be argued that there is a need to move beyond lawyer-centrism in the regulation and delivery of law-related assistance, so too must we be aware that the ideal of access to justice, and ideas on how to improve it, may also be prone to lawyer-centrism. When the concepts and approaches of legal capability and legal empowerment are applied, the understanding of access to justice becomes more people-centered and empowerment-oriented, rather than lawyer- or system-centered. This leads us to exploring better support for the role of community justice help in advancing access to justice, especially in contexts of social disadvantage.

Looking at community justice help

This report provides an overview of program initiatives involving community-based not-for-profit non-lawyer provision of law-related assistance or, in other words, community justice help. We identify a spectrum of law-related assistance provided by community-based organizations that covers three main types of tasks and services:

While there is no basis upon which to quantify the extent of these programs, we speculate that there are many hundreds of examples across Canada, and in the US, the UK, and Australia, of not-for-profit community-based organizations providing law-related assistance across the general groupings of tasks and services on the spectrum. It appears that these jurisdictions have seen considerable, and increasing, activity in the realm of community justice help across these groupings in recent years.

Noting that it is virtually impossible to neatly categorize the range of organizations and the services they provide, we decided to illustrate the range by selecting and briefly discussing a sampling of programs in these jurisdictions. The mandates of the organizations delivering these programs, and the nature of the programs they provide, vary widely. The report also references program evaluations, for the programs we give as examples, where they are publicly available.

In describing the program activities in Canada and comparative jurisdictions, we divide them into three categories that roughly correspond to the three service groupings, as follows.

  1. Community-justice partnerships, including library-justice and health-justice partnerships

Partnerships in this group take many forms. Library-justice partnerships focus on training library staff on how to recognize a legal issue and on finding and accessing reliable, relevant legal information for library patrons.

Health-justice partnerships provide training and support to health care workers to increase their capacity to help patients identify legal issues and access relevant legal information. Many offer warm referrals and have legal services integrated directly into the health care setting.

Faith-justice partnerships offer members of faith-based or religious groups or institutions, or people who attend particular places of worship, direct connections with legal professionals. A number of such partnerships have emerged recently in the United States.

Cross-sectoral partnerships offer opportunities to connect people with a range of social services, including law-related assistance. In Ontario, Connecting Ottawa is a partnership-based network of over 50 community health, legal, immigration, disability, and social services. The initiative supports frontline workers in giving useful, accurate legal information to their clients, facilitates connections to other services, and provides a range of training programs for partner agencies to build their law-related knowledge and skills.

  1. Community services that integrate law-related assistance, including services in the areas of workers’ rights, support for recent immigrants, support for survivors of intimate partner violence, and navigators and community guides

Many grassroots, worker-led, community-based organizations have been at the forefront of advocating for the legal rights of their members, undeterred by the absence of a lawyer on staff. Community-based organizations in Canada and the US that focus on supporting workers provide a range of assistance, including helping workers in applying for benefits, helping workers to understand their rights and address employment issues, and advocating for fair, decent, and safe conditions of work.

Community-based organizations in Canada and the US that work in the area of immigration and refugee asylum support newcomers in their efforts to obtain legal status, permission to work or study, health care, and other legal documentation and entitlements that they need to remain in the country and live decently. Assistance varies across organizations and jurisdictions and may be provided by social workers, case workers, trained volunteers, coordinators, or students.

In the process of extricating themselves from an abusive relationship, survivors of intimate partner violence may have to engage with various legal processes, including criminal, family, and housing law, as well as income support. Organizations in Canada that serve survivors of intimate partner violence train legal or court support workers to provide a range of assistance, including accompanying women to court and lawyer appointments, providing education about the court process and how to complete legal documents, and connecting them to family law lawyers.

In recent years, navigator programs have emerged in Canada and other jurisdictions, in court-based and community-based settings, to provide process-related assistance to people engaged in a legal matter. Navigator programs in courts and tribunals vary across jurisdictions. Some use trained volunteers; others use specifically trained staff. They provide a range of support to self-represented litigants that can include assistance to help them physically navigate the courts, obtain legal and procedural information, understand their options, complete court paperwork, and get referral information.

Community-based organizations have also begun to adopt the “navigator” terminology to describe the process-oriented, law-related assistance that they provide. Some organizations provide, peer-to-peer support by training community members to serve as “community guides” and “peer educators”.

  1. McKenzie Friends and court support persons

The concept of support persons has gained attention in Canada in recent years, building on the existence of McKenzie Friends in the UK. The UK allows for a layperson, known as a “McKenzie Friend”, to provide “reasonable assistance” to self-represented litigants in court.

The role of McKenzie Friends and court support persons varies across jurisdictions. They can provide a range of assistance, including moral and emotional support, guidance in organizing documents and evidence, help understanding the legal court process and adjudicative forum, and accompaniment to a lawyer meeting or court, tribunal or other proceeding. Many community organizations in Canada that give law-related assistance also provide what might be considered “McKenzie Friend-type” assistance.

The report also discusses the different model of community justice help represented by the extensive network of independent charities in the UK called Citizens Advice. Citizens Advice offices are entry points for many people who need assistance and support on a wide range of issues, including those relating to benefits and pensions, debt and consumer matters, employment, housing, immigration, and numerous others. Highly trained advisors working out of local Citizens Advice provide information about processes, help clients communicate with the institutions they are dealing with, translate their stories to meet the requirements of claim forms or tribunals, negotiate informally with employers, and gather evidence to support their claims.

As well, the report briefly addresses the use of technology to support community justice help. Technology has played a variety of positive roles for the provision of community justice help in the form of online platforms, tools and channels for information sharing and service support; in the form of training; and in the form of mentoring and peer support, and referrals support.

Community Justice Help and Quality

Questions are sometimes raised about the quality of community justice help provided by community organizations, and how it compares in quality and efficacy to the services from a lawyer or paralegal. There appears to be only a modest body of relatively recent academic literature relevant to these issues, which we consider at some length.

We note the following key findings from the evaluative literature:

Conclusion: Key findings, knowledge gaps, recommendations, and next steps

A number of key findings are identified in the conclusion to the report:

  1. As non-lawyers already provide law-related assistance that aligns with the lawyer-centric paradigm, efforts and initiatives to shift the 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.
  2. 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.
  3. A newer approach to and understanding of access to justice, that is people-centred and empowerment-oriented, 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.
  4. The breadth and vigour of community justice help activity reflects the reality of where and how people address their multifaceted problems, including problems that may have a law-related element. Acknowledging and supporting this reality holds considerable promise for advancing meaningful access to justice.
  5. 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 also identify two main knowledge gaps:

  1. First, there is a lack of detailed information on the true extent of community justice help programs and activities in Canada and comparative jurisdictions.
  2. Second, and more significantly, there is a 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. We would emphasize, though, 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.

In keeping with the key findings in this report, and others, that existing community justice help activity appears to be of good quality, we recommend that it be reinforced and expanded via an approach that focuses on supporting and enabling it, rather than on controlling and regulating it. Drawing on other work, we offer a framework for this approach 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. We propose that community justice help is of “good quality” when:

  1. 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.
  2. 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.
  3. 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.

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 make the following suggestions:

  1. 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.
  2. 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.
  3. 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.
  4. Fund and otherwise facilitate research to better understand how community-based not-for-profit organizations that provide community justice help internally and collectively support the quality of their work.
  5. Fund and otherwise facilitate sector-specific or organization-specific projects, pilots or other initiatives, aimed at elaborating, establishing, maintaining, evaluating or improving the quality of community justice help.
  6. 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, help and challenges associated with them.
  7. Foster domestic and international inter-jurisdictional information and knowledge exchange on community justice help activity and best practices.