In 2014, Canada’s Supreme Court said ensuring access to justice was “the greatest challenge to the rule of law in Canada today:”

Such barriers prevent individuals from fully benefiting from the justice system, and are often the elephant in the courtroom, so to speak.

“Access to justice is a combination of factors that basically cuts out a swath of people from having legal representation,” said Andrew Stewart, a Calgary criminal defence lawyer with 10 years of experience.

“When you do not have representation, either a person does it on their own at trial, which can be not great, or they simply feel compelled to plead guilty, which can also be an injustice.”

Charles Osuji is the managing partner at Osuji & Smith Lawyers, a full-service law firm focused on employment law. Osuji says that he encounters access to justice issues “on a daily basis.”

Everything from being unable to take time off work to go to court, to not knowing what free legal services are available, are access to justice issues. Visible minorities are disproportionately affected by these.

Often, the issue boils down to money.

In 2016 more than 16% of Canada’s visible minority population was below the low-income cut-off (after tax), nearly twice the national average of 9.2%, according to Statistics Canada.

In Calgary, the median after-tax income for individuals is $38,895. The low-income cut off (after tax) for an individual in a city like Calgary is $21,481.

For those living at the (after tax) low-income cut-off, hiring a lawyer for trial can represent nearly half of their income.

In Alberta, the median cost to resolve legal issues for those using a lawyer is $2,564. The cost of hiring a lawyer for trial can range from $1,500 to $10,000, depending on the lawyer’s experience.

Now consider that nearly half of all Canadians are $200 away from not meeting their debt obligations, and a quarter of them already don’t. Then factor in that nearly half of all adult Canadians experience at least one legal issue over any given three year period.

The threat of unplanned legal expenses is evident.

But Osuji has taken steps to address this issue. As the founder of a legal clinic in northeast Calgary, he provides several clients a month with basic legal information and helps those who would otherwise be unable to afford legal services. He’s also set up a contingency arrangement in his main practice, so that he only gets payment if his client wins.

“Talking from the perspective of an immigrant, sometimes new immigrants may be looking for [legal services], but don’t qualify for legal aid and can’t shoulder the legal costs themselves,” said Osuji.

“I can speak to the fact that there is a knowledge gap in the racialized community. Sometimes the racialized communities don't know that there's an opportunity to pursue a claim, either because of what they've read online or what I've seen on TV about how expensive lawyers are.”

Typically, financially stretched individuals turn to Legal Aid Alberta (LAA) for help. An independent, publicly funded, not-for-profit organization, LAA provides vulnerable Albertans with a number of legal services, including representation, in areas like family, criminal and immigration law.

But while LAA can help with some legal issues, it’s restricted to individuals who earn less than $20,021 a year.

While legal-aid lawyers charge significantly lower rates, clients are still expected to pay those reduced rates, as well as other court costs. If someone makes more than $20K a year, or their legal issue isn’t one that’s covered, they have to find help elsewhere.

Organizations like Calgary Legal Guidance (CLG), a pro bono legal service provider, try to fill that need.

Marina Giacomin, the executive Director of CLG, says that while LAA primarily focuses on criminal law cases with a high rate of incarceration, “pretty much everything we do is either an expansion or it fills in the gap of what Legal Aid does not provide,” she said. This includes things like minor infractions, civil law and landlord/tenant disputes.

Osuji believes that better representation in positions of legal authority could go a long way to help inspire confidence in the justice system among visible minorities.

He notes that Calgary doesn't have a Black judge, for example.

“With people burdened by their belief system and their cultural outlook as to whether the justice system will be fair to them, it would be nice for people to appear before the judges that look like them, judges that sound like them, so that they don't feel alienated from the system,” Osuji said.

For Giacomin, providing better access to justice includes taking people’s backgrounds and circumstances into consideration.

She believes one of the things that sets them apart from similar legal organizations is that the CLG partners their lawyers with social advocates and ensures their intake officers have training in social work.

In addition, the CLG takes a “trauma-informed” approach, which considers not just a client’s legal issues, but also the psychological experience that a person might have. This can be as simple as recognizing when an individual has had bad experiences with authority figures or suffered trauma, and acting accordingly.

Among their many programs is Sahwoo mohkaak tsi ma taas (Blackfoot for “Before Being Judged”), an Indigenous access to justice program. Sahwoo mohkaak tsi ma taas started in 2017 when the CLG noticed they weren’t getting as many Indigenous clients as they expected.

The program provides cultural support in accessing legal resources and includes an Indigenous liaison and advisory council with elders, law professionals and knowledge keepers.

Since the program’s inception three years ago, the CLG has seen an increase in the number of Indigenous clients from 6 to 10%.

While increasing access to justice for disproportionately affected communities can seem daunting, as citizens become more educated about the issues and demand change, things do improve.

“We know with any system’s change it's a little bit like turning the Titanic,” said Giacomin. “[CLG] has been here for 48 years, and I imagine there's probably another 48 years in our future. It's not going to happen overnight, but it is happening.”

Andrew Guilbert is an award-winning writer whose work has appeared in the Globe and Mail, Alberta Views, Avenue Calgary and Maisonneuve Magazine.

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