Reasonable Doubt: Access to justice matters to us all

The ability for anyone to take part in our court system is a matter of social justice. Read Kevin Yee’s piece to see what access to justice means for him.

Access to justice is a hot topic these days.

To show just how bad the state of legal aid is, advocates often point to the plight of individuals who have no choice but to represent themselves in criminal courts, family proceedings, and immigration tribunals, and rightly so—this is where those in the justice system have the most at stake. Their liberties, livelihoods, and loved ones are in jeopardy.

Even if you do not have such concerns yourself, access to justice matters to us all. It is not only about ensuring fairness for criminal, family, and immigration matters. It is about ensuring that anyone can have meaningful and effective participation in the dispute resolution systems we have in place.

Anyone can find themselves having to navigate the courts. You may need to go to the courts to resolve a dispute with your employer/employee, landlord/tenant/strata council, creditors, business associates, et cetera. I was struck by the importance of an accessible justice system while attending court chambers recently.

By “chambers”, I don’t mean the judge’s chambers in American movies. In chambers, a judge or a master hears procedural (i.e. pre-trial) matters of lawsuits in a courtroom. My matter was one of dozens scheduled that day in chambers. As I sat in the gallery and waited for my matter to be called, I watched intently as lawyers presented their cases to the presiding master and made various requests.

When one particular matter was announced, a lawyer rose from the gallery and approached the counsel’s table. An elderly Chinese woman and a younger man followed and sat at the other end of the table. I wondered if they were mother and son, with the son acting as interpreter.

The lawyer introduced himself to the master as the counsel for a banking institution seeking a court order to move to a further stage in foreclosure proceedings. Based on where the two other individuals sat, I figured they were not with the banking institution but were the homeowners. As is often the case with foreclosure matters, I suspected they attended chambers to ask the master for more time to pay their debts.

In a matter of minutes, the lawyer laid out the details of the homeowners’ mortgage and his petition. As someone who does not practice in the area, I struggled to keep up. I made out dates, numbers, and some “legalese”, and filled in the gaps as to what the petition was about. The master asked the lawyer questions in rapid succession. The lawyer gave equally fast and concise answers. The master finally paused in his questions and unceremoniously announced that he would grant the petition.

A few seconds of silence fell upon the courtroom. The lawyer quietly packed up and started out of the courtroom. The younger Chinese man, seizing the opportunity, stood up hesitantly from the counsel’s table. He asked in broken English if he could speak. The master pointed out that he made his decision in the matter already. The man clearly did not seem to understand how the matter was concluded. After all, he hadn’t spoken at all.

The master explained that the two were not permitted to respond to the petition because they did not have legal standing. They had apparently failed to file proper paperwork to notify the other side and the court of their intention to speak on the matter. A few seconds of uncomfortable silence followed. Realizing that the master had nothing else to say to them, and having nothing to add, they slowly turned to leave the courtroom. Confusion and dread were written all over their faces.

Now, I do not know the details of that case. I was a mere bystander. I do not know the specific ramifications of the court order made that day or the consequences on those homeowners. And to be clear, I am not criticizing the court. I do not suggest that the court was unfair or harsh. On the contrary, I have often seen firsthand how the courts try to level the playing field for self-represented parties by taking the time to explain certain issues that arise in their cases or to grant them adjournments for better preparations.

But what I realized that morning was just how daunting the court system can be without assistance. By “assistance”, I do not only mean representation; this includes adequate understanding of the process itself. And this is saying nothing about any language barriers that may exist.

Perhaps the notion of access to justice does not concern you because you aren’t at risk of conviction or deportation. But to me, this ideal is far broader than that. It is to ensure that people have a basic understanding of the court process and the means to get the assistance for fair and effective participation. After all, can it be said that those homeowners really had access to justice? They were the ones who were most affected by any decisions in the foreclosure proceedings. Yet they did not even have a real understanding of the process itself.

There are advocates for better legal aid funding and accessibility of the courts who are far more persuasive and eloquent than I. My point is simply to hear them out and get the facts because this is an issue that affects us all.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.