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Access to Justice – A Complex Affair.

Legal Realism

Legal realism and its extension, law in society, postulates a core tenet, that law is the product of human emotions, not objective nor static, and definitely not sacrosanct. Whether by design or inadvertence, the rules of the legal system and indeed the lawyer’s rules of professional conduct feed into this narrative by placing human emotions as an important determiner of the quality of laws and law practice.

For instance, the Rules of Professional Conduct is replete with instances of the lawyer’s duty to maintain public confidence in the administration of justice. Substantively, there are several instances where the ordinary man’s test is the measure of how decisions are to be made. Now that it is fairly settled that the public perception of the law is intricately woven into its fabric and that the sanction of the public is an exemplar of good law or administration of justice, we can now step back for a moment to discuss a thing that I have noticed about the law in practice. Having practiced and observed the practice of law in two jurisdictions, Nigeria and Canada respectively, as well as completed graduate research on the theme of access to justice, two points come to me when considering access to justice.

 

Firstly, there are several barriers to access to justice and these barriers exist in Canada. They include financial capacity and a procedure-heavy legal system. Secondly, different societies through different means have tried to bridge these barriers, including liberalizing representation before the courts. In Canada, unlike in Nigeria, the option does not swing from two extreme ends of a spectrum, that is lawyer-represented or self-represented. Canada has a middle point that allows for Paralegals to represent clients in specific areas and forums. I will focus on self-represented litigants in this note.

I will focus on them for two reasons, firstly, aside from headline legal disputes that the whole community learns about, which are few and apart, self-represented litigants are those that tend to come in contact and indeed see the legal system in play, upfront. Secondly, they are people whom you generally would assume are less cynical about the quality of the law to provide relief to the vulnerable, hence their conviction to approach the court in the first place, believing that if they told the Judge what happened, they would get relief. My involvement with law practice has however, thrown up instances where self-represented litigants complain bitterly about how the law is rigged, and how the lawyers manipulate the process, and how the judges are corrupt and how justice is never served to the ordinary man. I have actual empirical evidence of what I just wrote here, I have read emails, I have taken calls and I have seen actual tribunal submissions where these sentiments were expressed.

Already, we are losing the plot, we are failing our audience here, the public who are supposed to measure the quality of law. So what do I say to this, isn’t this bad for the system when we create cynics out of hitherto believers? For one, these system-made cynics are the most ardent purveyors of the treatise of what is wrong with the system, sometimes grossly exaggerated. I worry that even my answer will be suspect to these newly minted-cynics. It is that law is a process, and it is a process for a reason. There has to be certainty around the law, it is the foundation upon which all human interaction and indeed the society is built. That is why we have relevant facts as opposed to your aggrieved facts. It does not mean that the system is corrupt because your grievance is not a relevant fact, you may be passionate about it, but it is not a relevant fact. Some understand this. I had a client bring flowers to my previous employer because he appreciated the advice not to “waste” his money on a non-cause-of-action grievance. Relevance is just one of the many other mechanisms in place to ensure the law’s quality.

These mechanisms enhance the objectivity of the law, not reduce it. Litigants should do well to consult lawyers or paralegals or (sparingly advised) take time to study the area of law before self-representing. It will help them to access justice.

Article Written by
Ifeanyi Nwokolo Law Clerk

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