By Sarah Burningham
I’ve been reflecting on the Supreme Court’s recent decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, and, in particular, the Chief Justice’s statement linking the rule of law with access to justice. Though the case is set in the context of a challenge to court tariffs, I believe the decision has larger implications for our profession. It reinforces the idea that access to justice is of foundational importance to the functioning and constitutionality of our legal system, thus highlighting the importance of access issues to all lawyers, law students and legal academics.
Access to justice is not an intangible constitutional norm, but rather an issue with every-day effect, which is particularly visible to lawyers. Given our training and our familiarity with the legal system, lawyers are uniquely positioned to understand the challenges associated with inaccessible justice. We are best placed to appreciate the frustration and confusion of self-represented litigants, to experience delay and inefficiency in the courts as a result of access to justice problems, and to be alert to the damage to the justice system’s reputation caused by inaccessibility. Lay people may not always appreciate the importance of access to justice, but we do. Accordingly, we have a duty to support programs and projects that facilitate access to justice.
As lawyers, we hold a privileged position in society. We have received specialized knowledge and training that provides us with the potential to impact the law, the legal system, and the lives of others in our community. We have benefited from our legal education. It has provided us with opportunities, careers and incomes which may have not otherwise been available to us. We have benefited from our community. It has provided us with a place to practice our profession. We have a duty to use our skills and knowledge to support and better our community in whatever ways we can. Given our intimate knowledge of the legal system and problems with access to justice, many lawyers desire to volunteer with access to justice programs in order to give back to our communities. Those of us who find ourselves short on time or energy can also contribute to facilitating timely and effective access to the courts for low income people by financially supporting access to justice programs. In these ways, we can do our part to facilitate access to justice and also uphold the rule of law.
Sarah Burningham is a a PhD candidate at the University of Ottawa and has a term position at the University of Saskatchewan as an assistant professor. She received her LLB from the University of Saskatchewan and her BCL from the University of Oxford.