Riding the Third Wave: Rethinking Criminal Legal Aid within an Access to Justice Framework

Albert Currie, Principal Researcher
Access to Justice and Legal Aid

© GOVERNMENT OF CANADA, 2004-06-15

The views expressed in this report are those of the author and do not necessarily represent the views of the Department of Justice Canada

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ABSTRACT

Criminal legal aid has traditionally been conceived as access to criminal justice. However, the traditional concept of access to justice has moved beyond the idea of access to justice as access to the justice system, and in-court representation by a lawyer. Employing the classic model of the evolution of access to justice by Cappelletti and Garth, this paper proposes that the revitalization of the restorative justice movement represents a major step in the evolution of access to criminal justice, and examines how adopting restorative justice approaches might make the delivery of criminal legal aid an integral part of a more modern concept of access to justice.

A NOTE ON THE CONCEPT OF ACCESS TO JUSTICE

The traditional concept of access to justice is easy to understand, although, because it becomes manifest in so many ways, is not easy to define precisely. Most generally, access to justice has traditionally referred to a range of institutional arrangements to assure that people who lack the resources or other capacities to protect their legal rights and to solve their law-related problems have access to the justice system.

The words “access to justice” are admittedly not easily defined, but They serve to focus on two basic purposes of the legal system – the system by which people may vindicate their rights and/or resolve their disputes under the general auspices of the state[1].

The origins of institutions for providing access to justice to the poor reach back for centuries in several European countries in which craft guilds and other organizations provided assistance to members with legal problems[2]. The modern point of reference for the access to justice movement is the rise of the welfare state, out of which the access to justice movement arose as a major element.

Especially in western common law countries, the legal profession has tended to dominate the institutions for providing access to justice[3]. Thus the hegemony of the legal professions has shaped the character of access to justice movement. Traditionally, access to justice rested on a rights-based paradigm[4]. Access to justice has meant access to the courts. Problems were defined mainly in legalistic terms, and resolved in the solutions to them being mainly those services provided by lawyers.

Traditional access to justice focuses on devising institutional arrangements so that people can exercise their rights within the existing justice system. Traditionally, the problematique of access to justice is overcoming barriers to accessing the justice system. These may be characteristics of individuals, such as poverty or language limitations. The barriers may be aspects of the justice system itself, such as complexity and cost. The barriers may be systemic problems. Curiously, even though the need for access to justice was based largely on a challenge to the effectiveness of the justice system to properly protect the rights of the poor and the disadvantaged, traditionally it does not challenge the central role of the system.

The concept of access to justice in the sphere of civil justice has been undergoing considerable change for decades. Modes of resolving disputes have progressively moved out of the courts and into a variety of forms of alternative dispute resolution. The pace of change in new forms of access to criminal justice has not occurred nearly so rapidly. This is no doubt because the criminal justice process leaves little discretion for persons accused of crimes, whereas in matters of civil law people can often choose a wider range of options in dealing with their problems. However, changes in concepts of access to criminal justice are beginning to gain prominence.

The idea has been current in the literature for some time that the problems thrown upon the door of the criminal justice system reflect the institutional failures of the educational, social services, and family systems. The justice system is ill-equipped to deal with these problems because of their underlying social and economic dimensions[5]. Recently, the restorative justice movement has taken hold as a major movement in the justice system. Restorative justice places an emphasis on dealing with the aftermath of crimes, and resolving the issues that brought the offender into conflict with the law in a manner satisfactory to the victim, the community and the offender [6].

The evolution toward more progressive forms of access to criminal justice has lagged behind the evolution of access to civil justice by decades. The argument in this paper is that the movement toward “holistic”; approaches in criminal justice, with restorative justice being the hallmark of the movement, marks a major, and apparently sustained, movement in the evolution of access to criminal justice.

Two recent justice events in Canada appear to confirm the observation in the title of Professor Clairmont's article. The restorative justice movement has moved from the margins to the mainstream of discourse about the most appropriate and effective ways of dealing with justice issues in Canada. In March 2000 the federal Department of Justice sponsored a national symposium on access to justice called Expanding Horizons: Rethinking Access to Justice in Canada[7]. The symposium was a one-day discussion among about one hundred justice system leaders and from other areas concerned with social justice issues. The symposium produced a number of themes that point the direction for rethinking the concept of access to justice, in both civil and criminal justice spheres[8]. The symposium revealed an enormous amount of discontent with the criminal justice system, a strong appetite for change, and a willingness to experiment with alternatives that depart from traditional concepts and processes.

In 1998 the Government of Alberta held the Alberta Summit on Justice. One hundred and fifty-one delegates were invited to the summit, 83 of whom were selected at random based on demographic factors such as age, gender, occupation and Aboriginal status. The mandate of the summit included the following: to identify issues and challenges, to determine effective ways to make use of justice system resources, to identify priorities for change and future direction. The Alberta Summit on Justice produced well over one hundred recommendations from nine groups of participants. Some of the recommendations were very similar to those arising from the department of Justice Symposium; that the system embrace alternatives to the formal justice system, and solutions to accessibility should be community-based[9].

This paper is an attempt to apply the emerging thinking about access to criminal justice to the field of criminal legal aid. The paper invites legal aid policy makers and managers to consider the role of criminal legal aid in the context of changes occurring in the criminal justice environment, of which legal aid is an integral part.


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