An Open Justice Commitment for Canada - Discussion Paper

Issue

The Department of Justice is proposing an Open Justice commitment be included in Canada’s 2020-2022 National Action Plan on Open Government.

Access to justice and open government are mutually supportive. Access to justice is a fundamental value in Canada, critical to maintaining and strengthening the rule of law, confidence in the justice system and democracy. However, accessing justice, particularly for civil and family matters, can be difficult for a host of reasons. Many Canadians do not understand the Canadian justice system or know how to find information and services that will help them with their legal needs. This is because they are not affordable, easy to find, timely or communicated in a way that responds to the needs of Canadians.

The Open Government Partnership Global Summit co-hosted by the Government of Canada in May 2019 and the UN High Level Political Forum provided valuable insight into the opportunities of an Open Justice commitment for Canada and the ways one could be used to support a people-centered approach to justice and advance the UN 2030 Agenda for Sustainable Development.

Background

i. Open Government and the Open Government Partnership

Open Government is a global movement that involves civil society, the private sector, and all levels of government. It is a governing doctrine based on the understanding that citizens have the right to access the documents and proceedings of the government to allow for effective public oversight and participation. Increasingly, it is being linked to innovation, digital services, stronger policies and enhancing trust in government.

The Open Government Partnership (OGP) is a global, multilateral initiative focusing on open government. Its core objective is to secure commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance, in partnership with civil society and the private sector.

The OGP formally launched on September 20, 2011, when the 8 founding governments (Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, the United Kingdom and the United States) endorsed the Open Government Declaration, and announced their countries’ action plans. Today, the OGP includes 79 national member nations and 20 local governments along with hundreds of civil society organizations.

As part of their membership to the OGP, countries are required to publish National Action Plans (NAPs) on Open Government to be implemented over a two-year period. Since joining the OGP in 2012, Canada has released four NAPs. We established a multi-stakeholder forum (MSF) in 2017 to serve as a platform for strengthening open government across Canada and to support ongoing engagement between government and civil society.

In this spirit of multi-stakeholder collaboration, the OGP is overseen by a Steering Committee (SC). The OGP SC is the executive, decision-making body of the initiative. Canada was the lead Government Chair of the OGP SC for 2018-19 and, as part of this role, hosted the 2019 OGP Global Summit. The Summit included participation from over 115 countries and provided an opportunity to promote Canada’s OGP leadership priorities of inclusion, participation and impact.

ii. Canada’s National Action Plan on Open Government

Canada is currently implementing its fourth National Action Plan (NAP) on Open Government. Canada’s 2018-20 NAP contains 10 commitments that together make government more accessible to all Canadians, to open the doors to public policy-making across the spectrum, and to strengthen Canadian democracy for the long term. The commitments are ambitious and innovative and reflect the growing sense that open government is a crucial counterbalance to democratic decline around the world.

NAPs, which are released every two years, are the key mechanism for Canada to establish its open government strategy and to communicate about the ways it is responding to citizen priorities and concerns. NAPs also allow Canadians to hold government to account on progress. Progress is tracked through self-assessment reports and reports by the Independent Reporting Mechanism (IRM). The IRM is developed by a researcher (usually an academic) in each OGP member country.

NAPs are typically developed in phases, including planning and priority-setting, engagement of stakeholders, and public review of draft commitments, prior to finalizing the plan. The Treasury Board Secretariat has undertaken initial planning and priority-setting for the 2020-22 NAP. Engagement with stakeholders and the general public will be held from November 2019 to April 2020.

iii. Open Justice

There is a growing recognition among the OGP that open justice is critical to the broader open government objectives of enhanced transparency, accountability, and citizen empowerment and participation. Open justice means that people have access to the information, resources and mechanisms necessary to effectively resolve their legal problems – problems that can impact many areas of their lives, such as housing, employment, education and health. Open justice commitments aim to increase access to justice, ensure fairness in application by promoting the rule of law, and enhance public trust in government institutions. As of April 2019 45 of the OGPs 99 member states have a total of 129 justice related commitments. Most commitments seek to improve access to justice-sector information through measures such as court records and statistical data about the judiciary. The remaining commitments deal with legal empowerment, strengthening judicial institutions, and improving legal system accountability. Strong open justice commitments are developed in an inclusive manner, with collaborative engagement of civil society, and aim to balance accountability and independence.

At the 2019 OGP Global Summit, there were multiple justice related events supported by Justice Canada, including a high-level meeting to discuss “Building a justice coalition in OGP”. The Meeting was co-chaired by the Parliamentary Secretary to the federal Minister of Justice and the OGP Deputy Director; the Deputy Minister and Deputy Attorney General for Canada, Nathalie Drouin, also addressed the gathering. The meeting brought together civil society and government colleagues representing Albania, Argentina, Armenia, Canada, Colombia, Czech Republic, Indonesia, Kyrgyz Republic, Morocco, Netherlands, North Macedonia, Senegal, Sri Lanka and Tunisia. The goal was to share what countries are advancing in terms of open justice, access to justice, and enforcing open government through OGP; how they are making links to global agendas such as the UN 2030 Agenda for Sustainable Development, the Hague Declaration, and the Buenos Aires Declaration in their national action plans; and to identify governments interested in becoming the founders of a coalition on “Opening Justice” within OGP. Meeting participants shared progress on justice related commitments that have been implemented through their NAPs and many expressed interest in further leveraging the OGP to advance justice-related activities and Sustainable Development Goal (SDG) 16.

iv. Links to the UN 2030 Agenda and Sustainable Development Goals

The key principles of open justice – transparency, accountability, innovation and partnership – are embedded throughout the UN 2030 Agenda for Sustainable Development. Adopted by Canada and all 193 UN Member States in September 2015, the 2030 Agenda is a 15-year global framework centered on an ambitious set of 17 SDGs, with 169 targets and more than 230 indicators. The SDGs cover the three interconnected dimensions of sustainable development: economic, social and environmental. Key to Justice Canada is SDG 16 which seeks to promote peaceful, just and inclusive societies. It reads: Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

SDG 16 identifies a wide range of targets, including significantly reducing all forms of violence and related death rates (16.1), promoting the rule of law at the national and international levels and ensuring equal access to justice for all (16.3), developing effective, accountable and transparent institutions at all levels (16.6), and ensuring responsive, inclusive, participatory and representative decision-making at all levels (16.7). Not only does SDG 16 stand on its own, it is also foundational to all 17 SDGs. Poverty, hunger and climate change cannot be addressed without justice. There is no peace without justice.

Justice Canada is the lead department for the Government of Canada in the implementation and reporting of SDG 16. In July 2019, Deputy Minister Drouin appeared before the United Nations High Level Review Panel (HLPF) as it reviewed Canada’s progress on SDG 16 under the theme Empowering people and ensuring inclusiveness and equality. Representing the Government, she spoke of the important role of justice noting: The Government of Canada is a staunch supporter of Sustainable Development Goal 16. Its inclusion in the 2030 Agenda marked a milestone and affirmed the critical role of peaceful and inclusive societies to achieve sustainable development and fulfil the promise to leave no one behind. Discussions at the HLPF recognized that the realization of SDG 16 is fundamental to the success of the whole 2030 UN Agenda.

The assessment of overall advancement indicated that the current rate of progress to implement the SDGs is off track and the world will fall far short of achieving the 2030 Agenda. Stronger leadership; greater involvement by civil society, youth and local communities; strategic cross sectoral partnerships and more accelerated actions will be required. Using OGP as a platform to advance implementation of all SDGs was recognized as a promising new best practice. Another area discussed in depth was the need for quality data to support SDG advancement and reporting. Reliable mechanisms for data sharing and statistics are required to monitor impact and direct action. SDG 16 was cited as being an enabler for the entire SDG agenda; a lack of progress on this key goal impacts all others. Using a people-centered approach to close the justice gap was discussed at multiple sessions, as was justice as a platform for prevention. There was general agreement that meaningful and ambitious actions are required if we are to achieve measurable change by the 2023 “midterm” report.

Canada has undertaken consultations on the Canada 2030 Agenda Strategy as well as the Canadian Indicator Framework (CIF). All federal departments will be accountable for implementing the 2030 Agenda, including examining policies and programs to identify gaps and areas where action is needed. The proposed new CIF includes a stand-alone ambition on access to justice and a related indicator that is people focused.

Conclusion

The Department of Justice proposes that the Government of Canada include an Open Justice commitment in its 2020-2022 NAP on Open Government with the dual-pronged objective of advancing open government principles and the SDG agenda by building on existing programming (Annex A).

Justice Canada’s active participation at both the OGP Global Summit and the HLPF has illustrated leadership and signalled Canada’s interest in furthering work being done to support open justice and SDG 16. Justice Canada will continue to show leadership as one of the founding members of the OGP’s newly formed coalition on justice and will work with partners and stakeholders to support a people-centered approach to justice that aims to address legal needs across Canada.

Annex A - Examples of Exisiting Programming on Access to Justice as of January 31st, 2020

1. Legal Aid

The federal government is responsible for criminal-law making (including criminal procedure), as well as law reform, policy development, evaluation and monitoring of national programs and Criminal Code amendments and the prosecution of Criminal Code and other federal offences in the territories. The provinces and the territories are responsible for enforcing the law and administering justice, and the provinces are also responsible for prosecuting offences.

Criminal and youth justice legal aid promotes public confidence in the criminal justice system by supporting the right to a fair trial and preventing criminally accused from going free simply because of lack of representation.

Provinces and territories are responsible for the delivery of legal aid and as a result, each operates a publicly-funded legal aid program. The legal aid plans are somewhat distinct from each other, with different delivery mechanisms, varying levels of financial eligibility and coverage provisions. The common goal they share is to ensure that those ‘in need’ are able to receive legal assistance when they cannot afford to hire a lawyer.

The Legal Aid Directorate at the Department of Justice provides contribution funding to provinces for criminal legal aid, and in the six provinces that provide the service, for immigration and refugee legal aid. The Department funds criminal and civil legal in the territories through consolidated Access to Justice Services Agreements (AJAs), which also include funding for Indigenous Courtwork services and Public Legal Education and Information.

The total federal allocation for criminal (in the territories, criminal and civil) legal aid in 2019-20 is close to $132.4 million. This includes additional funding provided in 2016, when the Government of Canada increased its support for criminal legal aid by $88 million over 5 years (2016-17 to 2020-21), followed by an additional $30 million a year ongoing beginning in 2021-22. Included in the $88 million, $2 million for each of the five years (2016-17 to 2020-21) is for innovation in the delivery of legal aid services.

The Department funds immigration and refugee legal aid to six provinces with on-going funding of $11.5 million. In response to demand, in 2017-18 the funding available was increased to $22.6M and in 2018-19, the funding was close to $27M. In 2019-20, the Department is providing close to $54.5M, with the goal of covering 100% of national expenditures.

The federal government does not directly contribute to civil legal aid, except for legal aid in immigration and refugee matters. Between 1966 and 1996, the federal government contributed funding to civil legal aid through the Canada Assistance Plan (CAP) and after 1980, this funding was provided on a 50-50 cost shared basis. In 1996, the Canada Health and Social Transfer (“CHST”), a block funding mechanism that did not involve cost sharing and did not specify eligible social program expenses, replaced CAP; the Canada Social Transfer (“CST”) replaced the CHST in 2004.

The CST is a “federal block transfer to provinces and territories in support of post-secondary education, social assistance and social services, and early childhood development and early learning and childcare”. The CST does not designate any funding expressly for civil legal aid, although civil legal aid is an “eligible expenditure”.

2. Justice Partnership and Innovation Program

The Department of Justice manages the Justice Partnership and Innovation Program (JPIP), which supports activities that respond effectively to the changing conditions affecting Canadian justice policy. Whether it is promoting or supporting newly reformed justice systems or improving the delivery of justice services, the Program allows the Department to develop and test these approaches in collaboration with organizations other levels of government.

2.1 Core Funding for Public Legal Education and Information (PLEI)

The overall objective of the Justice Partnership and Innovation Program (JPIP) is to support the Department’s policy directions on issues related to access to justice, family violence, violence against Indigenous women and public legal education and information (PLEI). A total of $2.37M core funding is made available annually through JPIP to ten provincial PLEI organizations (one organisation per province as designated by provincial governments).

PLEI core funding supports PLEI organisations in providing law information programs and services in a variety of ways, such as: websites, walk-in clinics, toll-free information lines and print and electronic publications. Moreover, PLEI organisations regularly work in partnership with community legal clinics, front-line social and health services, schools, media outlets and legal organizations such as legal aid programs, law societies and the private bar.

While PLEI organizations continue to serve disadvantaged or vulnerable populations, middle class Canadians have become significant users of PLEI services and resources. Examples of where this “middle class” demand is being seen include such legal areas as first time home buying and condominium law, wills and estates, powers of attorney and living wills. Moreover, in response to the rise of social media, PLEI organizations have developed educational materials for youth on topics such as cyberbullying and the unauthorized dissemination of intimate images.

2.2 Access to Justice Service Agreements in the Territories (AJA) – PLEI Funding Component

The goal of the Access to Justice Services Agreements (AJA) is to provide consolidated federal government funding support to the territories for access to justice services (including criminal and civil legal aid, Indigenous Courtwork and public legal education and information). Funding for PLEI made available to territorial governments through the AJA totals $0.49M per year ($163,333 per territory per year).

The AJA allow the territories the flexibility required to provide services in a challenging environment (vast distances, harsh climate, cultural/linguistic differences). Specifically, the PLEI funding component assists the territories in providing members of the public with the legal information they need to make informed decisions and to participate effectively in the justice system.

2.3 Legal Advice for Sexual Harassment in the Workplace (Legal Aid and JPIP)

In Budget 2018, the Government of Canada announced $50 million over five years in contribution funding towards outreach to, and legal support for, persons who have experienced sexual harassment in the workplace. The Department of Justice is supporting agencies and organizations across the country to deliver services as of 2019-20.

3. Other Programs that Increase Access to Justice at DOJ

3.1 Official Languages

The Department of Justice facilitates the participation of official language minority communities (OLMCs) and organizations in the development and assessment of the Department’s policies, programs and services having significant impact on the development of OLMCs. The Department also takes positive measures to ensure that programs and services reach OLMCs with a view to enhancing the vitality of these communities, supporting and assisting in their development, and fostering the full recognition of both English and French in Canadian society.

The Access to Justice in Both Official Languages Support Fund contributes to ensuring equal access to justice by supporting projects that meet its two objectives: to increase the capacity of the justice system and its stakeholders to offer justice services in both official languages; and to increase the availability and provision of legal information to OLMCs.

The Access to Justice in Both Official Languages Support Fund enables projects, such as Justice Hub centres, which provide access to law information in both official languages in order to support citizens in resolving their legal issues. This includes online projects through which Canadians can have access to legal information on a variety of subjects. It also supports the delivery of training, as well as the development of legal and linguistic tools, for justice system professionals so they can improve their ability to offer services in both official languages.

3.2 International Development

The Department of Justice also supports other countries in strengthening their capacity to promote the rule of law:

  • the Justice Undertakings for Social Transformation (JUST) project focuses on strengthening key Jamaican justice institutions; and
  • the Canada-Mexico Juvenile Justice Cooperation project aims to assist Mexican authorities in implementing their recent National Law on the Integrated Justice system for Adolescents.

3.3 Additional Measures

In 2017, the Government of Canada reinstated the Court Challenges Program to improve access to justice and hold the government to account for respecting constitutional and quasi-constitutional rights. With an annual budget of $5 million, the modernized Program provides funding to individuals and organizations who require financial support to access the courts to launch or participate in test cases of national significance raising official language rights and human rights. The Program is being administered by an independent third-party institution (the University of Ottawa), and funding decisions are made by independent expert panels appointed through an open, transparent and merit-based selection process. The Department of Canadian Heritage is responsible for overseeing the program.

The Department of Justice also contributes to the transparency of Government of Canada by developing Charter statements to accompany all Justice-led legislation.

3.4 Indigenous Justice Program

The Indigenous Justice Program (IJP) supports community-based justice programs that offer alternatives to mainstream justice processes in partnership with all thirteen provinces and territories. Currently, IJP supports 197 community-based justice programs that serve over 650 Indigenous communities. IJP’s objectives include: to assist Indigenous people in assuming greater responsibility for the administration of justice in their communities; to reflect and include Indigenous values within the justice system; and, to contribute to a decrease in the rate of victimization, crime and incarceration among Indigenous people.

IJP programs offer a range of services along the justice continuum including prevention, diversion and reintegration. In addition to dealing with criminal matters, many programs also offer civil and family mediation services. Priorities and areas of focus for each IJP program are based on the unique justice needs of the community they serve.

Justice diversion processes delivered by these programs aim to address the root causes of offending and draw on the cultural and legal traditions of the community the program serves. These processes are often based on Indigenous philosophies and restorative justice principles, working with victims, offenders and communities with a view to repair harm and promote healing. Programs partner with justice stakeholders and the community to work towards safer and healthier communities.

3.5 Indigenous Courtwork Program

Indigenous Courtwork services began as a community-initiated response in the early 1960s to address the unique justice challenges facing Indigenous people involved in the Canadian criminal justice system. The Indigenous Courtwork Program was established as a national program in 1978 and has since been supported by federal, provincial and territorial governments in partnership with Indigenous communities and delivery agency partners who design and deliver services. Most commonly identified factors contributing to the need for continued programming include the legacy of colonization and discrimination, socio-economic factors, complexity of the justice system, limited access to legal representation, as well as the need for information to support Gladue Principles and culturally relevant services. There is a small network of 160 full-time and part-time Courtworkers who are hired locally and respond to regional priorities. In 2016/2017, Courtworkers provided services to 75,000 Indigenous adults and youth involved with the criminal justice system (as accused persons, victims, witnesses and family members) in 435 communities across Canada. Courtworkers have a dual role:

  • providing information to clients on charges, court procedures, rights and responsibilities, bail, diversion, restorative justice and Indigenous community justice alternatives, support in accessing legal resources and community programming (including wellness, trauma, housing, family and employment services); and,
  • facilitating communication with court officials, accused persons, family members and communities to ensure understanding. As “Friends of the Court”, they also provide critical background and contextual information about the unique circumstances of the accused, and advise counsel of relevant Gladue factors in individual cases. The trust, confidence and rapport that Courtworkers build with clients are perceived as critical by court officials who otherwise would not have been able to gather that same information due to time constraints, cultural differences and mistrust of court officials.

3.6 Victims Fund

The Government of Canada supports victims of crime through the Federal Victims Strategy. The Victims Fund, which is a part of the Federal Victims Strategy, provides grants and contributions to support projects and activities that encourage the development of new approaches, promote access to justice, improve the capacity of service providers, foster the establishment of referral networks, and/or increase awareness of services available to victims of crime and their families. The Fund has multiple components including providing resources for victims and a support person to attend parole board hearings, Family Information Liaison Units which provide culturally relevant information to families of missing and murdered Indigenous woman and girls, and Child Advocacy Centres which provide a multi-disciplinary response to child victimization, to name but a few. The Fund does not provide criminal injuries compensation for victims of crime.

3.7 Canadian Family Justice Fund

The Government of Canada, through the Canadian Family Justice Fund (CFJF), is working to provide increased access to justice for families experiencing separation and divorce. The priorities of the CFJF are: fostering federal, provincial and territorial collaboration to make improvements to the Canadian family justice system; supporting the well-being of family members engaging with the family justice system; extending the reach of family justice programs, services and information to meet the needs of diverse and underserved populations; supporting alternatives to court for the resolution of family law matters; and, improving and streamlining the family justice system to support the simplification of family court processes, including information sharing between courts and family justice services and improved coordination with other parts of the justice system.

The CFJF has two funding components:

  • Family Justice Activities component provides funding to the provinces and territories for the provision to family justice services that support the needs of families experiencing separation and divorce.
  • Projects component supports provincial and territorial governments, not-for-profit organizations, associations, academic institutions and individuals in the following capacity;
    • develop, implement and evaluate provincial and territorial innovative family justice services and programs;
    • projects and activities that inform Canadians about family law issues such as parenting arrangements and child/spousal support; and
    • the development of new strategies, models and tools intended to improve access to family justice.
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