Voices of Justice Magazine

#VOICESOFJUSTICE
#VOICESOFJUSTICE

THAT THERE IS
SUCH A THING
AS JUSTICE, AND
THE VALUES
THAT WE HOLD
FOR THE WORLD
ARE REPLICATED
IN A SYSTEM OF
REHABILITATION; OF
TRANSFORMATIVE,
RESTORATIVE,
REPARATIVE,
JUSTICE
EQUITY, FIGHTING
STIGMA, AND
COMBATING
MARGINALIZATION
YOU HAVE TO HAVE
SOME JUSTICE
TO START WITH.
THE CURRENTLY
STRUCTURED
SYSTEM REQUIRES
THAT YOU HAVE
A SIGNIFICANT
AMOUNT OF
RESOURCES AS A
PRECONDITION
OF GOING IN THE
DOOR, AND THE
COMMUNITIES OF
PEOPLE WE’RE
TALKING ABOUT DO
NOT HAVE THOSE
RESOURCES. THEY
DON’T HAVE A
DOOR
THAT PEOPLE HAVE
CONFIDENCE THAT,
WHEN THEY HAVE
A LEGAL PROBLEM,
THEY HAVE A WAY
TO RESOLVE THAT
PROBLEM THAT IS
FAIR, ACCESSIBLE
AND EQUITABLE
IT MEANS CONSUMERS
GETTING ACCESS TO
LEGAL SERVICES WHEN
THEY NEED THEM
WHAT
DOES
ACCESS
TO
JUSTICE
MEAN
TO
YOU?
THAT YOU’RE ABLE TO
ACCESS A FAIR DECISION TO
RESOLVE YOUR DISPUTE
SIMPLE, EFFICIENT,
AFFORDABLE,
UNDERSTANDABLE,
AND FAIR
ACTUALLY BEING ABLE
TO FIND A WAY TO
SOLVE THE PROBLEM
TO BE ABLE TO
SPEAK WITH A
KNOWLEDGEABLE
ADVOCATE IN A
REASONABLE
PERIOD OF TIME, IN
A CULTURALLY SAFE
WAY
GIVING PEOPLE HELP
THE KEY IS THAT
IT’S NOT JUST
PROCEDURAL. IT’S
THE INFRASTRUCTURE
OF HOW WE
INTERACT WITH ONE
ANOTHER AND IT
OUGHT TO SERVE
ALL OF SOCIETY IN
A WAY THAT MAKES
OUR LIVES MORE
FULFILLING
THE MEANINGFUL
ABILITY TO
UNDERSTAND THE
LEGAL PROBLEM: TO
KNOW WHEN YOU
HAVE A PROBLEM,
WHEN TO SEEK
ADVICE, AND TO
UNDERSTAND THE
NATURE OF THE
PROBLEM
IT MEANS
PREVENTION
OF PROBLEMS,
MANAGING LEGAL
PROBLEMS,
MANAGING DISPUTES,
AND I THINK IT
MEANS ACCESS TO A
GOOD LIFE AS WELL
– A LIFE THAT IS NOT
CONSTRAINED IN
NEGATIVE WAYS

OUR STORY
Since 2017, The Justice Hack has hosted B.C.’s largest access-tojustice-focused
hackathon. The event brings together leaders in
technology, law, government and justice to discuss access to justice
issues, and to brainstorm and build solutions.
The pandemic prompted us to pivot. For Access to Justice Week
BC 2021, we decided to highlight the voices of people who are
helping to enhance access to justice in British Columbia. In the
pages ahead, we feature conversations with lawyers, leaders,
entrepreneurs, advocates, and innovators. We discuss the barriers
to justice that persist, and the ways in which people are working to
break them down.
We would like to thank all of the individuals who participated
in and supported our inaugural Voices of Justice project. We are
grateful for their time, and for the work they are doing to make
justice more efficient, more fair and more accessible to all.
This first magazine is small, and does not come close to capturing
all of the voices that champion access to justice in B.C. We are
blessed to have so many wonderful people in this province who
have dedicated their lives to improving the lives of others.
We continue to explore ways of building community around access
to justice. If you are interested in learning more about our work, or
would like to collaborate on a future project, please connect with
us at thejusticehack.org. We would love to hear from you.
HAYLEY WOODIN
Editor, Voices of Justice
Chair, The Justice Hack
@hayleywoodin
BRANDON HASTINGS
Interviewer, Voices of Justice
Founder, The Justice Hack
@bhastingslaw
#VOICESOFJUSTICE

PAGE 4

INSIDE
6
10
14
18
22
26
30
34
38
42
46
50
55
THE HON. ROBERT BAUMAN
THE HON. DAVID EBY, QC
SHANNON SALTER
JACK NEWTON
LYRA MCKEE
RENZO CARON
SHARON SUTHERLAND
JANE MORLEY, QC
DARIN THOMPSON
DR. KATIE SYKES
TOM SPRAGGS
ADRIENNE SMITH + barbara findlay, QC
RESOURCES
#VOICESOFJUSTICE

CHIEF JUSTICE ROBERT BAUMAN
PAGE 6

WE ARE REALLY THE TAIL IN THIS
WHOLE PROCESS, AND WE SHOULDN’T
BE WAGGING THE DOG
The Honourable Robert Bauman is Chief Justice of British Columbia,
the British Columbia Court of Appeal and Court of Appeal of Yukon.
What is Access to Justice BC, why did it start and what are its goals?
It’s really created a platform of people interested in justice issues
across the spectrum. It includes lawyers and judges, and other leaders
of the legal profession. It also includes representatives from the
Ministry of Attorney General, members of the public, lay litigants who
would represent themselves in proceedings, business people from the
chamber of commerce, notaries, elected politicians, and representatives
of First Nations and local governments.
It’s a tremendously broad section of the greater public in British
Columbia. And really, that’s what’s critical to the movement – the fact
that it is widely based and welcoming of all different points of view and
perspectives. In this type of social issue where we’re trying to galvanize
a movement towards some meaningful solutions, it seems to me the
broader the tent, the better. And so we’ve been getting larger and larger
and larger, and I suspect that’s what we’ll continue to do.
It’s created this forum in which all these various people with competing
interests and complimentary interests can come together and discuss
ways of addressing what is indeed a crisis in our country, and that is
the ability of citizens to access the justice system in a meaningful way:
knowing your legal rights and being able to exercise them.
#VOICESOFJUSTICE

What has been the impact of Access to
Justice BC’s Triple Aim, and what are
some projects that may have followed the
Triple Aim template?
The Triple Aim is a reflection of my belief
that words matter, and common vision
matters. It’s easy to be cynical and say,
“Well, those are just words. That’s the
vision, where’s the reality?” And we hear
that, but the fact is that a common vision,
which people can rally around, is an
extremely important concept, an extremely
important development and extremely
important accomplishment. That’s what the
Triple Aim is. It’s something that over 50
justice organizations and individuals have
subscribed to as being a common vision of
ways of improving the system and what we
want to see in a justice system.
A lot of our progress so far has been
consciousness raising, momentum building.
We haven’t resolved the access to justice
challenge in British Columbia and Canada by
any means. Some would say we’re not being
very quick and doing so at all. I hear that,
but the fact is, we built I think a momentum
in this province around a vision for action in
this area. We’ve also created measurement
techniques for determining if we are
making progress. It provides for common
measurement, which, of course, is critical,
so that we’re always comparing apples and
apples.
What is the significance of Access to
Justice BC’s four pillars (being usercentred,
collaborative, experimental and
evidence-based)?
They really say it all. I think the usercentred
aspect of our vision is probably the
most important, because it takes away the
traditional view that judges and lawyers are
what matter in this system, and therein lies
the hope for reform. It turns that on its head,
as it should be, to concentrate on who we’re
all working for, and that is the people who
use our system. And to the extent our system
isn’t comfortable for those who use it, we
failed; isn’t accessible for those who use it,
we failed.
Evidence-based is important. Experimental
also is a critical core for me. That is a
willingness to say to ourselves, “Our
existing efforts are wanting, they are not
answering the challenge, at least in the 21st
century.” We have to be prepared to test
new initiatives, we have to be willing to
open ourselves up to experimenting in areas
where our innate conservatism is challenged.
I’m as conservative as anybody else in this
profession. I value the oldest institutions
as much as anybody else does. But I also
recognize that unless we are open to new
ideas – and some of them will be radical and
disruptive – we’re bound to simply repeat
our mistakes in the past.
What do you think is the most important
next step for the profession in terms of
increasing access to justice?
I think awareness of the problem is step one.
Everyone knows that there is a problem.
A willingness to be part of the solution,
as opposed to simply acknowledging the
problem and moving on to our daily lives,
comes next. There are lots of comfortable
pews in the legal profession where you can
practice your entire life without worrying
about any of these problems.
But the fact is, I think lawyers are generally
starting to become aware of the problem,
and willing to become part of the solution. A
willingness to try something new is critical.
Disruptors prompt our imagination – the
people who say, “Why not? Or what if?” as
opposed to, “That’s not the way we do things.”
PAGE 8

I’ve seen leadership in this area coming from
major firms. Without being cynical, they
know that it’s in their interest to get involved
in this area. I’m seeing major firms taking an
active interest in the new legal landscape,
and a leadership interest in that area. And
that’s great, because they’ve got the resources,
and frankly, they’ve got the talent to be
leaders in this area, and they’re stepping up.
The Court of Appeal has itself been innovative
and disruptive in this area. Why
was change important and what allowed
change to happen quickly?
We’re a really radical bunch here! But seriously,
it was kind of a no-brainer. Necessity
breeds innovation, and we certainly had
necessity in March when everything shut
down. So necessity prompted us to do things
we might not normally do.
Our rota is tremendously manageable, and
for the most part, we do not hear evidence.
We simply don’t face the challenges the trial
courts do in that regard. That allowed us to
pivot relatively quickly. I credit my colleagues
with being flexible, and resilient. They’ve risen
to the occasion, to the challenges we face
with a truly electronic record. And believe
me, there are some challenges there.
Has your idea of justice changed over the
past five years since Access to Justice BC
began its work?
It has. I think the most important thing is to
think about who’s at the centre of all this,
and when you start thinking that way, all of
a sudden, we become less important, unfortunately.
We are really the tail in this whole
process, and we shouldn’t be wagging the
dog. The courtroom is the last place that we
end up in the system. And in many ways, at
times it can be perceived to be a failure to
end up in the courtroom. In the development
of jurisprudence and important legal principles,
the courtroom is not a failure. But
for ordinary citizens, they may be forgiven
for thinking they failed when they end up in
court.
So a concept of justice being much broader
than the courtroom – and including understanding
and knowing your legal rights,
knowing when you have a legal issue, and
an ability to understand its ramifications as
a citizen – is what I’m talking about when I
talk about access to justice. I see the judicial
branch, which I have the privilege of leading
in British Columbia, as being not the end part
of the problem, but rather, I see us as being
part of the leadership group that gets involved
from the very beginning of the access
issue. That makes us not only relevant, but
more relevant, perhaps, to the whole issue
than we’ve ever imagined ourselves.
EVERYONE KNOWS THAT
THERE IS A PROBLEM.
A WILLINGNESS TO BE
PART OF THE SOLUTION,
AS OPPOSED TO SIMPLY
ACKNOWLEDGING THE
PROBLEM AND MOVING
ON TO OUR DAILY LIVES,
COMES NEXT
#VOICESOFJUSTICE

ATTORNEY GENERAL DAVID EBY, QC
PAGE 10

THERE’S NOW A DESIRE TO HAVE SERIOUS
CONVERSATIONS ABOUT FUNDING BIG
INITIATIVES AND BIG REFORMS
The Honourable David Eby, Q.C., is the Attorney General of British Columbia.
What accomplishment are you most proud of in
terms of addressing access to justice challenges
for British Columbians?
It’s hard to choose one. I think the piece that stands
out for me was supporting the establishment of the
Association of Legal Aid Lawyers and addressing
a long-standing legitimate grievance of legal aid
lawyers in the province – that they were dramatically
underfunded compared to other actors in the
justice system, and that they were increasingly unable
to recruit younger lawyers, because the rates
simply were way too low.
Addressing that, and supporting the ongoing operation
of the Association of Legal Aid Lawyers with
operating funding, is really important to me, because
it establishes a foundation that hopefully will
last well beyond this government, and won’t put legal
aid lawyers back in the position that they were
before the election of our government in 2017.
#VOICESOFJUSTICE

What is the biggest lesson you’ve taken away
from addressing challenges related to the
pandemic?
Like so many aspects of the pandemic, there’s
profound challenge and injustice that was done
to people when we had to put in place public
health measures, and when the courts needed
to restrict appearances quite dramatically in
order to respond, especially in the early days of
the pandemic. But the silver lining of it for me
was I have a very changed relationship with the
courts. We have regular meetings where we go
through different issues, and the back and forth
has really improved the ability of government
to respond to the long-standing concerns of the
courts, and vice versa, to express government’s
interest in improving access to justice through
the courts adopting new technologies, which is
something that the courts, thankfully, have very
enthusiastically embraced.
THAT SET THE STAGE FOR
THE COVID RESPONSE AND
THE COVID LEGACY
The other lining inside the silver lining, is
that, because of COVID, there’s now a desire
around supporting the judiciary’s operations
as an independent branch of government. It’s
a historic problem with governments – “The
courts are working, so let’s just leave them
to work. They’re not perfect. There’s lots of
challenges, but they’re working okay.” There’s
now a desire to have serious conversations
about funding big initiatives and big reforms.
It is profoundly likely that in 2022, prisoners
will not move around the province anymore in
sheriff’s vehicles for court appearances; that
people with family law matters will not be, as
their first step, showing up in a courtroom, and
that they will be appearing virtually to work
with family justice counsellors before they
end up in a courtroom. That program is being
expanded quite rapidly.
There are huge changes around document
management coming. When we started prepandemic,
each courtroom didn’t have its own
dedicated phone line. And now we’re talking
about making sure that there’s high speed
PAGE 12

THE SILVER LINING OF IT FOR ME WAS I HAVE A VERY
CHANGED RELATIONSHIP WITH THE COURTS
internet access, and that there are opportunities
for electronic document management and all
these other pieces. On the Provincial Court side
– up-front ways of appearing, so that people can
resolve and triage a lot of their problems before
they appear in front of a judge. They don’t have
to take the whole day off work, they can do it on
their phone, and they can resolve many of their
issues before they show up in court, which takes
a huge burden off families emotionally, and also
of court time. I’m really excited about some of the
big changes that are underway and coming, and
COVID made those things possible – obviously at
a huge cost – for many British Columbians.
Do you expect this responsiveness to people’s
needs will carry forward post-pandemic?
The primary interest of the courts, rightly, is
that justice is done and that it’s seen to be done.
Pre-COVID, the court signed an agreement
with government that they would take a usercentred
focus, and they would think about the
experience of people going through the courts,
which may not sound particularly revolutionary,
but it was a very significant acknowledgement
of not just justice done and seen to be done, but
also the person for whom justice is done or to
whom justice is done, that their experience going
through this is actually something that judges
should be thinking about, and government should
be thinking about actively.
That set the stage for the COVID response and
for the COVID legacy. The Court of Appeal going
to Zoom hearings very early on in the pandemic
reflected their understanding, not just that people
needed to have their appeals heard and settled
and finalized, but also that they could move
nimbly. All these pieces taken together reflect a
shift in understanding that enabled the COVID
response and will enable the COVID legacy of
increased user experience focus in the justice
system.
And we’re kind of edging towards that. In the
Civil Resolution Tribunal, for example, there
is no COVID backlog. They operated entirely
virtually and they were set up perfectly for
that. Inadvertently, the kinds of benefits that
flow in terms of accessibility and ease of access
is something that just happens in terms of a
COVID response. You need to be able to appear
virtually, you need to be able to have documents
electronically and that’s actually easier for people.
What is one access to justice barrier you hope
to address over this next term?
I think our biggest challenge is COVID. The
issues around getting court dates, court time, the
availability of judges – it was challenging pre-
COVID, to the point that we are opening a new
courthouse in Abbotsford, and were looking at
how we could alleviate family law pressure, even
pre-COVID. This is our big challenge, and this is
essential.
To have a Jordan-related headline – that’s the
Supreme Court of Canada case that says you’ve
got to get people to trial within a certain timeline,
otherwise, those charges will be stayed by the
court – is something that strikes fear into the
hearts of politicians. For a person that has a
dispute, and to want to resolve it and not being
able to get in front of a judge within a timeline
that makes sense – I don’t think there’s anyone in
a B.C. court that doesn’t believe that their dispute
is significant. That’s why they’re there in court.
And so to have that really important dispute and
have to wait for an extended period to have that
heard, I think that’s the biggest challenge and the
biggest opportunity that faces governments and
the judiciary.
#VOICESOFJUSTICE

CRT CHAIR SHANNON SALTER
PAGE 14

Shannon Salter is the Chair of British Columbia’s
Civil Resolution Tribunal.
How has the Civil Resolution Tribunal adapted
to the pandemic?
We were really lucky to be well placed when
the pandemic struck. We already had primarily
a remote operation, and we primarily already
provided our services remotely as well. It was
really a matter of bringing our frontline staff
home so that they could work from their homes,
then just quickly pivoting to think about how it
is that we could help parties who were affected
by COVID-19. We kept our doors open 24 hours a
day, seven days a week, just as we’ve always done.
But having the capacity to pivot quickly allowed
us to focus on our participants, many of whom
we knew were being affected in terms of their
health and mobility, also economically. We put in
place a few measures to make life a bit easier for
them. We let people know that if they needed an
extension of time due to COVID, they could just
send us an email – no big application process. We
exercised discretion over fee waivers a bit more
broadly to accommodate people who are suffering
financially, and we pressed pause on issuing
default orders so that people wouldn’t be caught
unaware by a default order that they hadn’t had a
chance to respond to.
Did you notice any specific trends in terms of
what people needed from the CRT?
Some people are asking for more time because of
COVID. And that’s fine – we have the discretion to
be able to extend deadlines. We’re also noticing,
very slowly, the kinds of disputes are changing
because of COVID. We track how many disputes
we get in any given week, and before COVID, that
was about 130 to 135 every week. After March,
that took quite a dip, and then it’s slowly coming
back up again. It’s an interesting case study,
because we stayed open, of what COVID-19 did in
terms of demand for justice services during that
initial phase.
One of the things that we’re looking at doing
some future scoping for is how COVID-19 might
impact the kinds of disputes we receive. Already
in the last few months, we’ve noticed a big uptick
in, unsurprisingly, breaches of contract claims,
lost deposits for weddings and other events that
had to be cancelled due to COVID-19. We have
received about 25% more strata disputes this
year, compared to last year, and I think it’s probably
not too big a leap to speculate that’s due to
the fact that people are spending a lot more time
at home, in closer quarters in strata communities.
That’s likely going to aggravate existing tensions,
and also draw attention to issues that already
existed in these communities.
It’s helpful to think about it in different phases.
There was this shock phase where people were
just trying to adapt to the fact that their employment
may have suddenly ended, the health of
their family members may have been affected,
child care may have been impacted, and so on.
There’s the emergency phase, and then there’s
the long phase where we’re all kind of adapting
and having to get by. And of course, this has hit
some of us a lot more than others. For the CRT,
we’ve really relied on technology. But I think our
bigger resilience tool has been the fact that we’ve
been very flexible. We were designed in partnership
with community legal advocates who serve
those with vulnerabilities, those who are already
experiencing access to justice barriers. What
we saw in the pandemic is so many of us were
experiencing more of those barriers: many more
of us were experiencing health impacts, mobility
impacts, and economic impacts. The flexibility
built into the CRT was able to scale up to handle
the fact that there were many more participants
who were impacted by those circumstances.
TAKING THE STATUS QUO AND ADDING A ZOOM
HEARING ON TOP OF IT IS NOT ACCESS TO JUSTICE
#VOICESOFJUSTICE

How do the CRT and the Solution Explorer
work together to deliver a flexible,
at-home, always-on approach?
The Solution Explorer is like the front-end
of the CRT. It’s free to use and it comes from
the idea that people deserve and need free,
up-front legal information, as well as tools
to help them resolve their dispute on their
own. Often, people can’t afford a lawyer, and
they may not live in a community where
finding legal services is very easy. Through
the Solution Explorer, we ask people questions
about their problem, and then use
their answers to give them tailored, plain
language legal information on what their
rights are and what their remedies might be.
Then we can give them tools, like template
letters, that they can send to the person that
they have a dispute with to try to negotiate
a solution.
Now, if all of that fails, and they have to start
a dispute with the CRT, our hope is that
they’re at least coming into it from a place
of knowledge, having some confidence that
they know a little bit more about their problem
and what might be the likely outcome.
We want people to have that information at
the beginning, rather than midway through
the process where they may discover that
this thing they’re very upset about is not in
fact a legal problem.
How does the CRT work with case managers
and arbitrators to provide dispute
resolution?
The CRT is not an adjudication-centric model.
Tribunal members like me are not the
centre of the organization. Instead, everybody
has their very specific role to play, and
these teams within the CRT work hand-inhand
to help people resolve their problem.
Adjudication is treated as a last resort that’s
necessary when the parties can’t agree, and
they can’t reach a collaborative solution.
It is necessary because it gives people
closure and certainty, but it’s not the heart
of what we do. The idea is that you slowly
escalate the amount of time and energy
and money that’s necessary to resolve the
dispute based on how complex and intractable
it is. The Solution Explorer is absolutely
free. After you apply for dispute resolution,
we add layers of effort. The first phase is
negotiation – people can just start talking to
each other through a virtual chat platform.
The second phase is mediation, where one
of our case managers will help the parties
to reach an agreement if they can. And then
again, adjudication is there as a final resort.
Research shows that people tend to be more
satisfied with outcomes where they’ve had
a say in what that outcome is, and they’ve
agreed to it. We also know that in a lot of
cases, people have enduring relationships,
and the best hope of maintaining those relationships
is for people to reach an agreement
that they’re both happy with.
What is your elevator pitch on how the
Solution Explorer works, for someone
who has never been through such a system?
It’s like if you were sitting down and meeting
with an expert. The first thing the lawyer
would do is ask you some broad questions
about your problem, and then based
on your answers, they would get narrower
and narrower in terms of the information
that they provide to you. We know most
people can’t afford to hire a lawyer, but they
still need that tailored information in a form
that they can easily digest.
And so that’s what the Solution Explorer
hopes to give people, along with tools that
they’re not comfortable creating themselves,
which we can make very responsive to
PAGE 16

people’s particular problems. I think that’s
why the Solution Explorer is so popular.
We’ve had hundreds of thousands of people
use it, and it’s a model that’s being adopted
in other places in the world as well, which is
really exciting to see.
What is important for lawyers, law
students and others in the broader legal
community to know about the CRT?
I think the main point that I try to make
these days – as it’s becoming more
normalized to use Zoom and other
technologies in the public justice system –
is that collectively, I hope that we can move
past that. That was an important triage
mechanism when the pandemic struck, and
it’s proved that we can make rapid change,
and it was necessary. But I hope we don’t
stop there. I hope we dig a lot deeper to
do the much more difficult foundational
culture change that’s necessary to actually
meet the needs of the people to whom the
justice system belongs. Taking the status
quo and adding a Zoom hearing on top of
it is not access to justice. We have to do the
much more difficult foundational work of
reorienting the justice system using humancentred
design.
I HOPE WE DON’T STOP
THERE. I HOPE WE
DIG A LOT DEEPER TO
DO THE MUCH MORE
DIFFICULT FOUNDATIONAL
CULTURE CHANGE THAT’S
NECESSARY TO ACTUALLY
MEET THE NEEDS OF THE
PEOPLE TO WHOM THE
JUSTICE SYSTEM BELONGS
#VOICESOFJUSTICE

CLIO CEO JACK NEWTON
PAGE 18

LEGAL NEEDS TO GO THROUGH A
REALLY PROFOUND RETHINK OF HOW
LEGAL SERVICES ARE DELIVERED
Jack Newton is the co-founder and CEO of Clio, and author of The
Client-Centered Law Firm.
What do you think are some of the most important legal trends?
There’s a couple of data points I think about in terms of access to
justice. The first data point is from the World Justice Project, which
highlights that 77% of legal issues in the U.S. do not receive legal
assistance. There’s a huge unmet demand, and I describe this demand
as the latent legal market: 77% of the legal market is currently
completely unaddressed. As big as that $500-billion-a-year market
is, it’s currently only addressing the tip of the iceberg – the 23% of
legal leads that were met by a lawyer.
Data from Clio’s Legal Trends Report shows that lawyers identify
needing more clients as the number one thing they need to help
drive their firm forward and to help their firm thrive. I look at that,
putting on my economist hat, and wonder, “Why is there so much
demand that is unmet by lawyers currently? Why is there this massive
latent legal market?” On the supply side, where we have lawyers
that are hopefully ready and willing to deliver those legal services to
the consumers that need them, why are the majority of them telling
us that the number one thing they need is more clients? To me, what
this is evidence of is a lack of product-market fit between the way
lawyers deliver, price and package legal services today, and the way
that consumers actually want to consume those legal services. I think
it’s very clear that COVID has helped accentuate that disconnect in
terms of consumers and their ability to pay for legal services, and the
way lawyers are currently pricing and packaging their legal services.
But COVID has also done a lot I think to bring together lawyers and
the consumers that need their services.
#VOICESOFJUSTICE

At a past The Justice Hack event, you said
lawyers talking about access to justice is like
Starbucks talking about access to coffee. Can
you elaborate?
I think it’s a good way of framing the problem,
because I think lawyers and regulators of lawyers
alike often refer to access to justice like it’s
some externality and some problem that someone
else needs to solve. We often talk about
solving the access to justice problem like we’re
waiting for a deus ex machina kind of moment
where this gets solved for us, once and for all.
Howard Schultz went to Italy and experienced
cafe culture and great espresso, and founded
Starbucks thinking we could do better than
Dunkin’ Donuts. He didn’t complain about an
access to coffee gap that somebody else needed
to solve. He saw an access to coffee opportunity
that he could help address as an entrepreneur.
The gigantic opportunity – the entrepreneurial
opportunity – that exists for every lawyer out
there, is to look at this access to justice gap not
as an externality, not as something that someone
else is going to solve.
We so often talk about legal being commodified,
as if it’s a zero-sum game. But I think the reality
is that there’s an infinite opportunity out there
for lawyers that think about how they repackage
and rethink the way they deliver legal
services. I think we often hear access to justice
conversations immediately leap to a discussion
about doing more pro bono work. And this is I
think again a bit of a broken way of approaching
the problem. The way of solving this access
to justice gap isn’t to say the cost of legal services
should be zero. The way we’re pricing and
packaging services today as lawyers is incorrect.
We need to think more innovatively about
how we’re pricing and packaging our services.
When we’re talking about the 77% of consumers
that did not have their legal needs met, this
is Middle America. This is Middle Canada. There
are large swaths of the population, including
many lawyers themselves, that cannot afford
the average hourly wage rate of a lawyer.
There’s just so much data out there telling us
that there’s got to be a better way. Legal needs
to go through a really profound rethink of how
legal services are delivered, and that rethink
needs to be based on a client-centred perspective,
and built on a client-centred mindset,
as opposed to what in many ways today is a
lawyer-centred mindset. When we’re looking at
something as foundational as the billable hour,
it’s a very lawyer-centred concept. We had Seth
Godin speak at Clio Con back in October, and
one of the comments he made that resonated
with me really deeply was: people don’t wake
up in the morning with a billable-hour problem.
They wake up with a real problem, and they’re
looking to lawyers to help them solve those
problems.
What role should legal regulators and law
societies play, if any, in addressing this unmet
need that exists?
I think what regulators should be doing as
much as possible is stepping out of the way and
letting lawyers solve problems in innovative
ways. What regulators often inadvertently end
up doing is reinforcing the status quo. Reinforcing
the status quo is the safe way of practising
law and maybe the safe way of protecting consumers,
but it actually ends up achieving the
opposite of what we want. I think what we see
in regulators and lawyers with this innovative
mindset, is alignment. They want to increase
access to justice, and they want to help improve
this fit between how lawyers are delivering
legal services and how consumers want to
consume those services. We see the high-level
alignment, but I think we often see regulators
inadvertently acting as a drag coefficient to
innovation.
What the Law Society of BC is doing with their
sandbox is a great example of how you can foster
innovation. We need the jurisdictions that
still have their heads in the sand to lift them up
and see some of the cool work that’s happening
out there. Every law society leader should be
acknowledging that what we’re doing today
PAGE 20

isn’t working. You can’t look at the data and
say that we’re adequately meeting the legal
needs of the average consumer. I think that
ultimately the call to action that I would
want regulators and the leadership of those
regulatory bodies to acknowledge is that
there’s a problem and the status quo is not
what we should be trying to maintain. We
should be trying to innovate really rapidly
and really aggressively.
Why did you decide to start the Daily
Matters podcast?
We launched this broader project at Clio
that we called Project Aether, which was a
more expansive project that really had one
clear mandate: let’s help lawyers navigate
COVID-19 and the impact COVID-19 will
have on their law firms. Part of that was
launching a million-dollar relief fund where
we helped lawyers directly financially. We
launched a bunch of programming to help
lawyers undertake what we described as
this mass evacuation to the cloud. So many
lawyers with on-premise or pen-and-paper
systems needed to urgently move to the
cloud to work with their clients and colleagues.
We also wanted to make sure we
were sharing best practices and sharing
dispatches from the frontlines of COVID.
I was inspired by The New York Times’ The
Daily podcast. We thought there was the
opportunity to do the same kind of thing.
We published 101 episodes over the course
of the early stages of the pandemic. As the
pandemic played out, we had some very
important moments including discussions
around systemic racism and George Floyd.
Episode 75 is “The Future of Law Recap.”
Do you have any words of wisdom for
young or future lawyers?
Embrace the beginner’s mindset. I think
law school can very quickly change the way
you look at the world and indoctrinate you
in the way things have been done. I think
you just see so much opportunity in the
marketplace go unrealized, because of how
precedent-driven legal is. That’s a fine thing
when you talk about judgments and the
rule of law, but I think it’s a really horrible
thing to be so precedent-driven when it
comes to how we deliver legal services and
how we use technology in law firms. So my
recommendation would be to try to keep
your eyes wide open to the opportunities
that exist. Don’t accept the status quo to be
the correct way of doing it. The status quo is
very clearly broken.
The other thing I’d encourage is try to be a
bit more of a polymath. Do some business
courses, do some work with a startup, find
some way of getting exposed to technology
and entrepreneurial thinking over the
course of your education. That will pay massive
dividends for you over time. There’s a
million ways you can get that experience
and exposure, but embrace that opportunity,
because it’s one that will truly equip you
to approach these problems with the kind of
innovative mindset that is required today.
THE GIGANTIC OPPORTUNITY – THE
ENTREPRENEURIAL OPPORTUNITY – THAT
EXISTS FOR EVERY LAWYER OUT THERE,
IS TO LOOK AT THIS ACCESS TO JUSTICE
GAP NOT AS AN EXTERNALITY
#VOICESOFJUSTICE

PACE SOCIETY’S LYRA MCKEE
PAGE 22

WE BELIEVE
THAT LIVED
EXPERIENCE IN
THE COMMUNITIES
THAT WE’RE
SERVING IS
INVALUABLE TO
PROVIDING THE
BEST SERVICES
POSSIBLE FOR
OUR MEMBERS
Lyra McKee is Co-Executive
Director of PACE Society.
Can you tell us about PACE
Society?
PACE stands for Providing
Advocacy, Counselling and
Education. We are a for, by and
with sex workers organization
that was founded in 1994. We’ve
always been open to sex workers
of all genders, and we take a
very broad definition of what sex
work is. That includes escorting,
camwork, stripping, sensual
services, pretty much anything
the term can commonly be used
to define. We provide support
services to sex workers primarily
in the Downtown Eastside, but
also Greater Vancouver.
#VOICESOFJUSTICE

Why do you believe the by and for sex
workers model is advantageous?
We prioritize hiring sex workers and
community members with lived experience
in a variety of categories such as BIPOC
sex workers or community members, and
trans, non-binary and two-spirit community
members, because we believe that lived
experience in the communities that we’re
serving is invaluable to providing the best
services possible for our members. We use
the word members to be more inclusive than
clients. All of our services are delivered better
when peers are involved in the creation and
delivery of those services.
How might the individuals you serve face
barriers to access to justice?
Up until 2013, sex work was criminalized
more directly, and then once Bedford
happened, the Supreme Court case turned
over those sex work laws and the Harper
government instituted the Protection of
Communities and Exploited Persons Act. Sex
work is now asymmetrically criminalized,
meaning sex work itself is not criminalized,
but many aspects of the work are, such as
purchasing sex. Clients, advertising and
third parties procuring are all criminalized.
There’s a criminalization aspect that prevents
sex workers from organizing together, from
protecting each other, from accessing full
labour rights and unionizing. And then
there’s also stigma in society on sex work and
sex workers that impacts access to justice
and compounds with other types of stigma
and marginalization, such as racism and
transphobia and entrenched poverty.
A variety of compounding barriers – including
criminalization, stigma, lack of access to the
financial means to get legal representation,
and lack of access to information or resources
– prevent access to full labour and human
rights for many sex workers.
Can you elaborate on some of the specific
challenges involved in accessing legal
representation?
I think it really depends on who you’re talking
about. Not all sex workers face economic
marginalization. Some sex workers have
other jobs, or some sex workers earn quite a
bit of income from sex work, but a lot of sex
workers, especially street-based sex workers,
often face a high level of isolation and
marginalization, as well as a lack of steady or
sufficient income to access legal services.
Because of criminalization and stigma, sex
workers may have a lack of information about
their legal situation and the details of the
sex work laws that are used against them.
There’s an element of secrecy or isolation
that’s involved with the work. I would say
that it’s also a barrier that resources just
aren’t always readily available. Some streetbased
sex workers don’t even have access to
the internet, or the space and time to do the
research to find the right lawyer or find the
services they need.
What is PACE’s Gender Self-Determination
Project?
The Gender Self-Determination Project is
open to anyone who approaches us and wants
to get their name, legal name, or legal gender
A VARIETY OF COMPOUNDING BARRIERS – INCLUDING CRIM
MEANS TO GET LEGAL REPRESENTATION, AND LACK OF ACCE
FULL LABOUR AND HUMAN RIG
PAGE 24

markers changed in British Columbia. We
provide the fees associated with name
changes, and support on filling out all the
different forms and letting people know
where to send them. It’s a really exciting
project, and it definitely works to mitigate
some of those barriers that some sex workers
face, or community and trans community
members face, to getting name changes, and
gender marker changes.
It may seem small, but if you’re getting a job
somewhere, all of the documents that your
employer sees have your legal name and
gender marker on them. It’s a matter of not
just safety, but also comfort for people in
terms of employment, in terms of accessing
social services. These days, these little
things that most people take for granted are
really, really vital and inform every aspect of
people’s lives.
Could you address what Canada v.
Downtown Eastside Sex Workers United
Against Violence and Bedford v. Canada
were about and any ongoing advocacy or
research related to them?
PACE was able to intervene with a number
of other organizations, along with Sheri
Kiselbach – who used to work at PACE – in
Bedford V. Canada, which was challenging
the previous sex work laws that prohibited
solicitation and bawdy-houses and all these
different prescriptions against sex work.
Sheri was able to get standing to file
a challenge to the sex work laws as a
former sex worker, and then she joined
the Bedford case because it was already
going on in the Supreme Court. Those laws
were struck down, which was definitely a
victory. Unfortunately, it was a conservative
government that then instituted some new
laws that, it could be argued, were just as
harmful as the previous ones.
We continually look for advocacy possibilities
at the municipal, provincial and federal
levels, both toward the government and
to health authorities and various different
organizations and entities. We’re part of
several research projects ongoing and
looking at new ones as well, and continually
look for different ways to advocate for
decriminalization of sex work. There are
some new developments coming up that I
can’t really talk about yet, but exciting things
are happening in the law reform advocacy
area. It just kind of never ends for us.
Can you elaborate on how those new laws
could arguably be just as harmful?
Even though, technically, sex work is not
criminalized, pretty much every aspect of
work is criminalized. So it prevents sex
workers from ensuring each other’s safety, it
prevents sex workers from screening clients
appropriately before taking dates, it prevents
sex workers from having rights for the refusal
of dates that seem risky. They can’t file taxes
for fear of the government wanting to know
who their clients are or where their money
comes from. It’s very complicated, but I
would say that, because so many different
aspects integral to how the work progresses
are criminalized, usually, it’s really just as
bad as it was when prostitution itself was
criminalized.
INALIZATION, STIGMA, LACK OF ACCESS TO THE FINANCIAL
SS TO INFORMATION OR RESOURCES – PREVENT ACCESS TO
HTS FOR MANY SEX WORKERS
#VOICESOFJUSTICE

WE’VE COME A LONG WAY, BUT WE HAVE MUCH MO
THE BCFNJC’S RENZO CARON
PAGE 26

RE TO DO AS FAR AS
SUBSTANTIVE, MORE STRUCTURAL CHANGE
Renzo Caron is the Provincial Director of
Indigenous Justice Centres, created in partnership
between the BC First Nations Justice Council and
the Province of BC.
Tell us about your work with the Indigenous
Justice Centres, and how that work relates to the
BC First Nations Justice Strategy?
Indigenous Justice Centres (IJCs) are characterized
by the Justice Council as a transformative pillar of the
justice strategy, and they’re encouraged that the work
of the IJCs will make significant change to the delivery
of services to Indigenous people, and the overall
experience Indigenous people have with the justice
system.
There is a grossly disproportionate number of Indigenous
people in care and incarcerated. And that’s the
focus of the IJCs – to significantly address that issue.
There are also some more foundational changes that
need to be made as far as laws in and of themselves.
Those are part of more medium-, long-term work that
needs to be done in the province.
Right now there’s limited redress for Indigenous people
through the courts. We’ve come a long way, but we
have much more to do as far as the substantive, more
structural change. What I’m really working with is
more of the business model of delivery of services and
how that can be adapted to the best degree possible
under the current circumstances.
#VOICESOFJUSTICE

Do IJCs aim to help Indigenous people
navigate the existing judicial system, or to
provide alternative justice?
IJCs are designed to make easier not just access
to things like legal aid or court time, but also
access to alternative ways in which justice is
delivered, and access to dispute resolution and
restorative justice.
There were systems of justice in Canada before
settlement, and many of these systems have
been eroded and are no longer in existence.
For many communities, government legislation
and policies have taken away the strength of
community justice systems. However, the work
of the IJCs supports the rebuilding of those
systems. Our Merritt Nicola Valley Indigenous
Justice Centre is doing quite a bit of work in the
area for restorative justice and incorporating
the feedback, teachings and guidance of elders.
Education is a fundamental area for
reconciliation, and that’s one of the other
aspects of what the IJCs are attempting to do
and why the government’s assisting us along
the way. There needs to be education; for
people to factor the past into where things are
right now, and to consider that in where we
want to go.
What are some of the barriers to accessing
justice for Indigenous justice system users?
If people had access to justice at an earlier
stage, many of the compounding and more
complicated difficulties that arise upstream can
ideally be avoided, such as getting into conflict
again. The optimal time I would think to try to
catch something is when someone’s younger,
and to provide opportunities and supports such
as a safe place to live.
I’ve seen flexibility being afforded in recent
times, where young people have an opportunity
to have their matters dealt with alternatively,
such as a sentencing circle – where the offender
is situated in a circle with various other people,
members of the court services, their advocate,
and the victim, to have the matter addressed in
a communal setting so that the circumstances
are shared. The objective is to incorporate the
strength of the culture, and with that comes
acceptance, respect and kindness – something
we don’t see very much in the court system.
Often the system isn’t very kind. There’s an
authoritative side to our system, which is
intimidating. It can be threatening and it can be
daunting. What I’ve observed in proximity over
20 to 25 years as a practitioner, is the delivery
of services in a way that is more kind, and more
or less free of intimidation or fear. What we can
do is to try to create an environment where an
accused comes into an IJC and feels welcomed.
To create a bit of a more kind, warm, receptive
environment.
EDUCATION IS A FUNDAMENTAL AREA FOR RECON
ASPECTS OF WHAT THE IJCs ARE ATTEMPTING TO
US ALONG THE WAY. THERE NEEDS TO BE EDUCAT
WHERE THINGS ARE RIGHT NOW, AND TO CONSID
PAGE 28

I’m pleased to see many organizations
focus on cultural competency, and on
the importance of understanding, to the
best degree possible, the perspective of
Indigenous people as far as where they
come from, and what they’ve endured.
How are IJCs working to address existing
needs?
Alternative dispute resolution is an
important cornerstone, as far as changing
the way, and adapting and diverting the
way, things are already being administered.
We can be a point of contact in the justice
system and we can make a difference in that
regard.
Incorporating the knowledge that we
learned from Indigenous people and that
perspective into the practice is another.
These can be as simple as knowing a little
bit about the history of the area in which
some somebody lives, or knowing and
referencing news in the community to
break the ice, and have a little bit of a better
appreciation of someone’s context.
We need to be cautious about the pace
upon which services are delivered. Often in
our delivery of legal services – particularly
criminal law, even family – you go to the
courthouse, and it seems to be go, go, go, go,
go. Consideration could be given to the pace
and ensuring that people aren’t ushered
into the office in that hurried nature. Some
contemporary law offices do this already.
Once the lawyer’s interviewed somebody,
the legal assistant may take over and spend
a bit more time with the person and gather
some more information.
If you’re an adult, unless the Crown is
seeking a jail term, it’s very difficult to get
legal aid, unless you’re a youth. There are
many offences that don’t carry a jail term,
but they’re very punitive. These could be
circumstances that could be addressed in
collaborative discussions held with the
Crown and resources in the community.
Sometimes people are distraught. They’re
brought into the courthouse and it can be
traumatic. Sometimes they’ve lost their
job. Mental health is a big concern. There
is a staggering number of people that are
involved in the justice system, particularly
criminal, who are linked to mental health
and addiction. Related services can be
supported, and there’s a need for more of
those services. As a practitioner, I think
about how I could help people if there
were more resources. Sometimes there’s
a waitlist and it can be frustrating, but
some steps have been taken with these
Indigenous Justice Centres, and I’m very
encouraged. We’re still at a bit of an early
stage. We have quite a road left ahead of us.
CILIATION, AND THAT’S ONE OF THE OTHER
DO AND WHY THE GOVERNMENT’S ASSISTING
ION; FOR PEOPLE TO FACTOR THE PAST INTO
ER THAT IN WHERE WE WANT TO GO
#VOICESOFJUSTICE

PAGE 30
MEDIATE BC’S SHARON SUTHERLAND

I THINK WE NEED TO KEEP BREAKING
DOWN THOSE ASSUMPTIONS.
LET’S TRY SOMETHING NEW. LET’S
EXPERIMENT A LITTLE BIT
Sharon Sutherland is a mediator and the Director of Strategic
Innovation for Mediate BC.
What are you working on at Mediate BC?
I’m in this really quite exciting role because I get to be looking
at things that we can do to increase the ways in which we provide
collaborative dispute resolution services to people across
B.C.
I came into the role not terribly long before the start of the
COVID-19 pandemic. We had been talking about the ways in
which we could expand access to justice through different
types of pro bono and low bono services. As we went into this
shutdown in March, we decided that we could start a pilot project
immediately in response. And so we started the Quarantine
Conflict Resolution Service, and we’ve been delivering pro bono
and low bono services to anybody who has an issue that has
either been caused by or escalated by COVID-19.
There’s been huge waves of family conflict that often relate
to separated parents talking about where their children are
going to be and how parenting arrangements continue during
COVID. Vaccinations are likely to be another big decision. It has
strongly impacted workplaces. We’ve been trying to support
small businesses in particular, and employees who are trying to
figure out safety protocols. We’ve been involved with non-profit
housing and looking at the ways in which COVID has exacerbated
some conflicts between neighbours, which can literally lead
to eviction.
I’ve been very active in the last month or so in a pilot project
that we’re hoping to launch this month around non-profit housing
and eviction prevention services in conflict. We’ve also been
very involved in the new Child Protection Mediation Program.
#VOICESOFJUSTICE

How might lawyers and future lawyers
use preventative mediation?
I think we all know that if we can get into
some kind of productive conversation early
on, you don’t absolutely have to go through
the inflammatory process of filing claims.
In a lot of different areas, as soon as that
initial claim is made – or a child is taken into
care, or whatever it is – that starts a process
down the path and through the courts. As
soon as you’ve done that, you have to have
some kind of trust repair in order to actually
have conversations and come back from
that. So the potential to start those early
conversations in a collaborative way is, I
think, often a missed opportunity.
Having a different person in the room
changes the dynamic amongst parties very
dramatically, even if they’re not saying anything,
and it’s that change in dynamic that
is something I don’t think we take enough
advantage of. We’re trying to support our
clients, but we can’t be seen to be unaligned
in those conversations, no matter how collaborative,
productive and positive we are.
As lawyers, we can recognize that often
people come to us and they still do want to
have that collaborative conversation, they
just don’t know how to do it. They don’t
know to reach out for a mediator first. They
don’t know to ask a lawyer. There’s also
assumptions around what mediation looks
like. And for the client, it’s almost always, “I
have to sit across and make an agreement
with this absolute jerk that I can’t possibly
even talk to.” They don’t recognize there’s
so many different ways that the mediation
process can be flexible, and adapt to
what that relationship is between two
people to ensure that they actually can
communicate. I think that clients need a lot
more information from lawyers about what
mediation looks like.
What are some of the benefits of early
mediation?
In personal injury, I’ve seen some data
created in the U.S. around literal cost
savings to companies when one puts in
place policies around early discussions
and negotiations. From the perspective
of somebody who’s dealing with an
injury, those kinds of early meetings and
discussions can take away massive years of
stress.
One extreme case in the child protection
area, studies in a 2001-2003 Surrey court
project examined what happened to families
on a longitudinal basis over a two year
period, where they mediated really early,
within the first few months of a child being
taken into care. Where mediation took
place, children returned home six months
earlier, on average. It was really significant –
clearly some genuine consequences to doing
something early.
In the housing area, the San Francisco Bar
Association has a conflict intervention
service going that has been incredibly
meaningful in terms of preventing
homelessness. They are finding the earlier
they’re getting called in, the more effective
they are in preventing eviction and keeping
people in their homes. They’re developing
some restorative justice approaches where
they’re bringing entire communities
together to talk about how to ensure that
everybody can stay homed.
NOT EVERYTHING HAS A CREATIVE SOLUTION
PAGE 32

What are your thoughts on outcome
orientation in dispute resolution?
If you are on a litigation track, you have a
limited number of outcomes that you can
achieve by going to court. There are reasons
why things settle. But when they settle,
people have already framed everything really
clearly around possible consequences at
court, and those tend to be financial. Most of
the time, everything is framed around how
much money will change hands, and what
something – an injury, a contract failure – is
worth. It translates things in a way that isn’t
necessarily aligned with how people come in,
looking for results. Most people don’t come
in and say, “I want this amount of money for
this.” They say, “This is the damage I’ve done.
This is the injury to me. Here’s the problem I
have. It’s not fair, I want some kind of result
for it.” That doesn’t necessarily mean money,
but we frame it that way.
There’s a ton of different things that might
be at play that are more significant and
might be weighed really differently by the
clients. And the earlier you engage in those
discussions, the more likely it is that you’re
going to be able to focus on those things,
rather than be tied to what’s going to happen
at court. In a veterinary malpractice
case, the client and vet reached a determination,
that out of love for pets, they’re
going to jointly put money into a trust fund
in order to be able to provide insurance for
others who might be in the same situation.
I’ve seen small businesses negotiate around
things that they might have access to – like
free theatre tickets. There are different
things that can come out of those kinds of
discussions, and they can’t happen at court.
They never happen at court.
In family situations, being able to come
out with a way of talking to each other, and
plans and approaches to how they’re going
to actually manage things, is so profoundly
much more important than what was the
last little dollar value. I understand that
there are circumstances where that can’t
happen. Not everything has a creative
solution. But I think more people can find
one, and they’re way more likely to do it
if they’re given the opportunity relatively
early.
Any tips on encouraging opposing
counsel to engage in mediation?
The big challenge is often getting opposing
counsel to engage with you on something
that is more creative. Everybody assumes
that everybody’s coming from this
completely competitive perspective. There
has to be trust built, and it does become
easier over time.
One of the most important things to
recognize is that you can go through all of
these conversations, but sometimes you’re
not trusted until you’ve done a little bit
of a test. One of the things that happens
a lot in the mediations I do is that people
don’t trust each other to enter into an
agreement. As a mediator, what I’m doing
is encouraging people to say, “What are
the what-ifs? There’s no trust here, let’s
build a little agreement that will allow you
to demonstrate that you can be trusted in
this.” I’ve seen them work incredibly well
in workplace situations where people are
trying to go back to work together, and do
not trust each other. I think we need to keep
breaking down those assumptions. Let’s try
something new. Let’s experiment a little bit.
. BUT I THINK MORE PEOPLE CAN FIND ONE
#VOICESOFJUSTICE

A2JBC’S JANE MORLEY, QC
PAGE 34

WE HAVE TO FACE TRUTH FIRST, BEFORE
WE CAN COME TO RECONCILIATION
Jane Morley, Q.C., is the Strategic Coordinator for Access to Justice
BC and a principal of Restorative Solutions.
What is Access to Justice BC’s approach to accomplishing its goals?
Access to Justice BC is all about action being done by organizations
within the justice sector. It’s there to inspire action. What’s important is
that it isn’t just any old action, it’s certain kinds of actions that are really
going to change the situation for us in terms of access to justice. We
developed what we call the Access to Justice Approach, which is really
about a shift in the way that Access to Justice BC and the justice sector
deals with access to justice and justice reform. The shifts are to become
collaborative, to become user centred, to become experimental, and to
become evidence based. Not that there’s none of that already there, but
the tendency in the system has been to not be collaborative, but to act in
silos, and to not be user-centred, but to focus on the courts, as opposed to
the users of the system.
We are all, as lawyers, somewhat risk averse. And we don’t really like
to experiment because really good experiments will fail. You learn from
failed experiences, often more than you learn from experiences that are
successful. So that’s a big shift. And then evidence based – I think we can
see when we watch the health system how much more evidence based
it is than the justice sector, and that leaves us at a disadvantage, because
we don’t have the evidence that shows that what we’re proposing to do
actually makes a difference.
#VOICESOFJUSTICE

Are there any particular B.C. initiatives you’re
excited about that were created as a result of
Access to Justice BC’s work or involvement?
There are a lot of good things happening in B.C.
and it’s really quite impressive. What is interesting
is the response to COVID-19, which really has
forced experiment where there were assumptions
that things couldn’t be done. And they got done.
There was a lot of experimentation going on just
out of necessity. What I am encouraged by is that
there’s a lot more talk about looking at it from the
user perspective. I think that people are persuaded
that that’s an important thing to do.
What is a restorative approach to justice and
how does it work?
It’s something that was developed out of influence
from my work with First Nations and Indigenous
peoples, and that perspective – which is a
more holistic perspective. The idea is to treat conflict
not necessarily as a bad thing, but as something
that needs to be managed. It’s really about
managing it as a whole, as opposed to thinking of
it as disputes between two people that need to be
decided upon. We’re all individuals, we all think
differently. We have different cultures, we have
different values. So there’s going to be conflict.
But the real question is, how does one deal with
that conflict in a healthy way for the whole, the
good of the whole? And I think that that’s a systemic
kind of approach, which I’ve certainly taken
over into my thinking about access to justice and
how we should approach it.
What are some examples of how a restorative
approach might work differently than a more
private model of dispute resolution?
I’ve done a fair bit of work in workplace
disputes, where there may be a complaint about
harassment, for example. Going in and doing an
investigation about facts and deciding whether
there’s been harassment, and then recommending
a penalty – that hasn’t worked with organizations.
It usually leaves everybody unhappy. It interferes
with the manager’s ability to manage. Even if
someone is found not guilty, they’ve been hurt
by having the allegation. For the people who are
making the allegation, often it won’t be held up,
and then they feel that they’ve been negated.
Instead, you go into the workplace, and you say,
“This dispute is the tip of the iceberg. We have to
look underneath the surface for a lot of different
causes in order to figure out how to move forward
in a healthy way.” And usually, the answers are
not just about resolving a dispute between two
people. It may involve that, but it’s often the
group dynamics. There may be a need to change
some of the conditions of employment. There’s a
lot of different ways that one can approach it. And
if you take that more holistic approach that looks
at the health of the organization, then you’re more
likely to move forward in a positive way.
The other approach is one of capacity building.
Instead of going in as the expert that’s going to
find out what the problem is, diagnose it and
come up with the recommendation, you go in
and say, “How can we increase the capacity of
the organization to manage this conflict?” It
raises different questions. You do a lot of work
with leaders about how they will manage it, as
opposed to going in and managing it.
In terms of the individual people who feel
they’ve been wronged, what is their outcome
in a process like that?
I think it does get you asking questions about
what justice is. Lawyers tend to define it in terms
of disputes, and fair resolution of disputes. I think
that’s only an aspect of justice. When you ask
regular folk about what a just life is, it’s a good
life, it’s a good life where they can do what they
want to do. They can look after their children,
they can manage without conflict that gets in the
way and prevents them from fulfilling themselves.
I think it does lead to a different notion of what
justice is.
Can you tell us about your experience as a
commissioner on the Truth and Reconciliation
Commission, and how that might have shaped
PAGE 36

your approach to access to justice issues?
It had an enormous impact on my thinking.
And in part, I think the reason that I went
down this road of a restorative approach
to conflict is because of what I learned in
that situation. It also left me with a strong
sense of the injustice that we as a country
have done in terms of our relationship with
Indigenous people. It left me feeling that
that’s a really, really high priority to change
that relationship.
I think that’s part of the restorative approach
– that the focus is on relationship. That notion
that everything is about relationship is a
characteristic of many, if not all, Indigenous
worldviews. Our history as a country is
one of colonialism, and we have a wrong
relationship that needs to be righted. The
point about truth and reconciliation is that
we need to face the truth. And it’s only when
we do that, that we can turn our relationship
around and have a different relationship,
which is not one of ‘power over.’ We have to
face the truth first, before we can come to
reconciliation.
Is there any way to reconcile user-centred
design and restorative approaches to
justice with the justice system being,
almost by definition, a system that exerts
‘power over’?
I think there is, because I think the idea of a
user perspective is to ask a power question
like, “Who should be benefiting from the
justice system?” And I think we all as lawyers
would answer, “The people that the justice
system is supposed to serve.” But the power
in the setup does not necessarily reflect
that. Central to the different approaches that
Access to Justice BC has been promoting is
the user perspective. With the user-centred
approach, we turn everything upside down.
The system is primarily designed to work
for the service providers than for the people
served. If we start looking at it from the point
of view of the people served, we come to
different conclusions about how it should be
designed. We also stop being experts about
how it should be designed. If we’re going to
look at it from a user perspective, we need the
users to help us know what that perspective
is. We have to go outside the justice sector to
other disciplines that have knowledge that is
not legal knowledge, but is necessary in order
to understand what a user perspective might
mean.
Do you think there is a difference between
meeting the needs of justice system users
and justice?
It is a difficult question. I think they are
different aspects of the same thing. If one just
looks at justice as fulfilling the interests of the
people served by the justice system, I think
that’s too narrow a view. I do think the idea of
rights and the rule of law are crucial, but they
need to be looked at from the perspective of
why they are important.
In the case of family law, we put children and
families at the centre, and work from there
in order to get justice. I think there’s some
real power issues there. I also am at heart
a traditionalist and I really believe in the
rule of law and in the principles of justice.
So I don’t think it’s an either-or proposition.
I am quite influenced by a book I read by
Adam Kahane called Power and Love. Both
of them are drives that we have as human
beings, the power drive is the drive of self
realization, and the love drive is the need
we have to connect with other people. I’ve
become convinced that it’s not an eitheror
proposition with those. You need them
together. To paraphrase Martin Luther King
Jr., he said power on its own is abusive, and
love on its own is anemic. If you want to have
justice in the world, you need those two to be
working together. That’s how you get from
‘power over.’ The power doesn’t disappear,
but it’s a power that’s directed towards good
and just things.
#VOICESOFJUSTICE

AT THE END OF
THE DAY, I FEEL
LIKE WE OWE IT
TO THE PUBLIC
TO DO WHATEVER
WE CAN TO BUILD
A SYSTEM THAT
WORKS FOR
THEM
LAWYER DARIN THOMPSON
Darin Thompson is legal counsel with the Ministry of Attorney General. Any views or opinions
expressed below are Darin’s individually, and do not represent the Ministry.
You were fundamentally
involved with the beginnings
of the Civil Resolution
Tribunal (CRT) – what did
that look like?
I was in the Dispute Resolution
Office, which was focused
on different ways to resolve
disputes or ways to improve
the functioning of the current
justice system. Imagine things
like small claims pilot projects
to introduce mediation or
simplified trials. We worked on
a lot of projects like that and
were involved in the Supreme
Court Civil Rules rewrite that
launched in 2010.
Around 2011, government
decided they were willing
to rely a little more on the
administrative justice sector to
improve access to justice. That
led to the creation of the CRT.
We’ve already started to see
other provinces moving in that
direction. One of the unique
things that a lot of people
focus on was the way the CRT
used technology. But the CRT’s
processes are unique too. The
government basically opened
the door to try and do things
differently, and start with a
little more of a clean slate. You
can’t ever start with a perfectly
clean slate, but you can ask the
question of, “What would the
system look like if we could
start over? And what would
this process look like if we
could start over?” One of the
most exciting things is that it
PAGE 38

allowed us to focus on users
and on outcomes, rather than
just on process.
The project carried a singleminded
determination to
focus on the public and focus
on users and create a tribunal
that was as easy as possible
for people to understand
and access and use. It would
provide outcomes in a fast,
efficient, and affordable way
to address some of those big,
so-called wicked problems
that we face in justice: cost,
complexity, and delay.
To what extent was that
focus on users part of the
CRT’s development?
I’d been involved in projects
where everyone had worked
very hard to try and make
things as accessible and as
user-friendly as possible. But
the CRT implementation work
took much more concrete
steps to focus on users and we
had much more permission to
actually focus on users.
Before we got too far
designing and building, our
office was doing surveys of the
public and asking them how
they would want to resolve
disputes, or how often they
access the internet. We also
got to do online focus groups
with small and medium-sized
businesses, asking questions
like, “What do you need? How
would you prefer to resolve
disputes? Do you like to use
lawyers? Would you like to
do it yourself?” That spirit
carried through the project.
I think a lot of people working
to improve access to justice
recognize the value of focusing
on users. But I don’t think the
majority of people in these
projects have taken the extra
step of actually going out and
talking to users and letting
them co-design the future,
letting them tell you whether
they like your stuff while
you’re building it. There’s still
a lot of progress that I think
our profession and the justice
sector needs to make in this
regard.
What are the wicked
problems that exist in
justice and how can a userfocused
approach help
address them?
There are some parts of the
wickedness that are easy
to call out, and one of them
is finite resources. Money,
resources and time are in
limited supply. We really need
to care how much things
cost, unfortunately, which
is different than a classical,
philosophical approach to
justice that says, “Justice must
be done, leaving no stone
unturned: let’s let this inquiry
go on for as long as it needs
to for us to get to the bottom
of this issue.” That would
be great in a perfect world.
But in a perfect world, there
would be a perfect world.
And unfortunately, we live
in a world where we have
finite resources – often we’re
talking about limited public
resources.
The more difficult areas
to spot or to contend with
could be things like the
tension between asking
courts to change, while
still wanting to hold onto
their value associated with
being immutable, consistent
and standardized. It can
be really hard to figure out
what principles you need
to hold on to, and what you
need to change. There’s
also that tension many legal
professionals face where,
in some cases, their living
depends on the current
system.
These are all quite
complicated problems, but
if we care about access to
justice, then focusing on
users and building around
their needs is going to be the
quickest way to address the
access to justice problem,
however you want to define it
or measure it. User focus can
also have side benefits. If you
design everything from your
form to your process around
users, you’re probably going
to end up with something
that’s a lot simpler than what
we have now. Simple can often
mean more efficient, it can
also mean faster and more
focused.
People might be surprised –
system administrators might
be surprised – at how many
benefits they can actually
gain by focusing on users,
especially when it comes
to efficiency, time, reducing
errors, moving cases through
the system, and getting to
outcomes as soon as possible,
which is what we should all be
focusing on, provided it’s done
in a fair and just way.
#VOICESOFJUSTICE

What are your thoughts on
this tension between stakeholders
wanting to both
maintain some flexibility in
our system, but also wanting
a fixed set of rules?
What I like to do with these situations
is take a systems thinking
approach. What kind of
patterns can we see here? How
many cases do we see coming
through our system? And what
happens with most of them?
Do we have data? Let’s design
the system to very efficiently
and very appropriately handle
this process or this case that
we see all the time. You can
decide what you want to do
with the harder cases in a number
of ways. You might build
for it, or you might say they’re
so hard to build a system for
because they’re so weird and
unique that we’ll just handle
them manually. All you have
to do then is figure out how to
spring those hard cases out of
your very efficient system.
Unfortunately, I think what
we do too often in our justice
systems is treat every case like
it’s going to be the hard case;
treat every case as if it’s the
first time we’ve ever seen one
of these things come through.
The other thing we do is treat
every case that’s filed with the
justice system as if it’s going
to go to trial. The data shows
about 1% to 2% of filed cases
get to trial, yet we design the
system as if every single one of
them is going to get to trial.

What is the relationship
is between justice and
meeting user needs?
When people use an
argument that’s basically the
equivalent of, “This is justice,
and justice takes time, and
justice needs this.” I often
compare it to medicine.
Medicine has to contend with
all of the same issues and
pressures that justice has to
focus on. They can only buy
so many neonatal intensive
care machines, they can only
have so many beds and burn
wards open. And if a doctor
is doing an operation on
somebody, they can only take
so long to make a diagnosis.
They can’t do every single test
in the world.
I try to consider the way
those constraints might also
apply to justice, and realize
that if we build a system
that’s too expensive and too
slow and too complicated for
people to use, even though
that’s what the ideals of
justice require, it’s not really
valuable to the public if they
can’t access it, or if we can
only afford to run it for one
year. I think I fall on the side
of the public, but I also care a
lot about fairness and doing
what’s right. It’s a big tension.
But at the end of the day, I feel
like we owe it to the public to
do whatever we can to build a
system that works for them.
#VOICESOFJUSTICE

PROFESSOR KATIE SYKES
Katie Sykes is an Associate Professor in Thompson Rivers University’s
Faculty of Law.
PAGE 42

IF WE HAVE A
PROFESSION THAT IS
HARD TO GET INTO
AND HARD TO SURVIVE
IN FOR PARTICULAR
GROUPS OF PEOPLE,
WE’RE REDUCING
ACCESS TO JUSTICE
Can you tell us a bit about what you do, and
any particularly exciting access to justice-related
research you’re working on?
My research and writing on innovation grew
from teaching, and it really grew from when
I first started here at Thompson Rivers
University (TRU) seven years ago. I came here
as a person new to being a full-time professor,
thinking, “There’s a lot in legal education
that is ripe for change.” There are needs that
our students have as they go out into a legal
services ecosystem that traditional legal
education isn’t fully preparing them for. I felt
this kind of professional responsibility to the
students to build that into my teaching.
The main thing I’ve been working on for the
last two years is a research project with the
Civil Resolution Tribunal (CRT). The CRT is
I think one of the most exciting innovations
in access to justice and the marriage of law
and technology. There’s a lot of interest from
other jurisdictions, but there really is no other
independent, empirical, legal research project
on it. We managed to get in there first, because
it was new. Me and my team have an article
that is going to be coming out in the Windsor
Yearbook of Access to Justice.
#VOICESOFJUSTICE

Is that going to be the end of the project
or will it continue?
This particular study is funded by the Social
Sciences and Humanities Research Council
of Canada. The main pieces we’ll produce
are the one article that’s already finished,
and the second article about stakeholder
perceptions. There is actually an article
that one of my students wrote on her own
that grew out of this project. There’s a
mechanism in the CRT called a notice of
objection for small claims, where – if you go
through the CRT process, and you don’t like
the outcome, for any reason or no reason
– you can file an objection and start like a
De Novo process at Provincial Court, which
is unusual for a tribunal. So my student,
Rebecca Dickson, wanted to answer
whether this enhances access to justice,
and she got all of this data on the cases that
had had notices of objection filed and what
happened to them. She has a piece coming
out in the UBC Law Review, which is terrific.
I have a book proposal in the works. The
project is far from over. I think it’s really
great if more people researched what is
happening with the CRT. The preliminary
research that we did, which is very much
exploratory, is really ripe for more empirical
work to be done on it.
One of the questions we wanted to explore
was how this compares, and does it enhance
access to justice, compared to the baseline,
and the baseline is the traditional courts.
It’s challenging to do that, because there’s
not a whole lot to measure it against. One
of the more interesting things we did in
the survey is we asked people if they had
done both. And actually, some people had.
We had 49 respondents and I think roughly
about a quarter of them had done both –
more than we had expected. So we could
actually ask people how the two compared.
Not surprisingly, people did find it easier to
use the CRT, but there’s this more granular
information that is pretty interesting.
You teach a course that is groundbreaking
in its responsiveness to
students’ needs. What was the impetus
for the course and how was it developed?
It’s been a really interesting evolution.
When I first arrived at TRU, I had this idea
to prepare people for the future of law
practice. I didn’t have that much of an idea
what that was, except that I knew when I
was an associate at a law firm, it did not
have much to do with what I learned in
law school. I had to start with these basic
nuggets: you need to know how to use
Excel, what billing is, and all this practical
stuff. The law faculty let me develop this
passion project course that started out as a
thing called Lawyering in the 21st century.
The main assignment was a pitch project.
Students had to do a pitch competition
at the end of the semester, imagining
ways to do legal services better. I learned
about a course that has been running at
Georgetown University Law Center – a
collaboration between Tanina Rostain,
a visionary law professor, Neota Logic,
a legal software company, and the Legal
Services Corporation, which is the main
provider of access to justice stuff in the
U.S. Students got to use Neota Logic’s
software to build applications for access
to justice. I was jealous. I thought, “This is
amazing. I wish we could do this.” Through
some weird combination of miracles and
chance, I managed to talk the law faculty
into licensing this thing with Neota. We
ran a course and we had teams of students
building apps for use by non-profits. It was
very hard to do the first time, but it’s been
a very transformative experience for the
students. It really makes them think about
breaking down legal problems into a series
of steps and decision trees.
We just did a run of that course in the fall
2020 semester, which was really exciting
because we worked with the Law Society of
BC, and four teams did projects that were all
PAGE 42

supported by the Law Society. Two of
them were on professional ethics rules
– one on the relatively new client ID and
verification rules that are part of the antimoney
laundering initiative, and one on
conflicts. The other two were to do with
mental health and substance abuse in the
legal profession. They were sort of like little
self-assessment apps for issues in that area.
It’s something that the students were very
passionate about and committed to. They
really care about mental health becoming
an increasingly recognized and understood
issue in the legal profession. If we have a
profession that is hard to get into and hard
to survive in for particular groups of people,
we’re reducing access to justice.
To what extent do students learn about
litigant experiences?
I think about trying to incorporate the
perspective of clients into teaching
regular courses. I teach first year. We’re
indoctrinating you into this entirely new
world, but we also want you to step back
and take a critical perspective on that and
think about this other thing too. It’s a lot.
My colleague Ryan Gauthier and I are
trying an experimental thing this year.
We’re having our whole class of 120-odd
torts students do a settlement exercise,
and they’re going to use the CRT platform,
because the CRT actually gave us a back-end
sandbox sort of thing so the students can
run a fake dispute through it. We wanted
to give them direct experience around the
fact that most things end in settlement.
The students are going to play the roles of
lawyers and clients, so they’ll have at least a
little bit of experience putting themselves in
the shoes of the client.
We haven’t done this before, but we’re
really excited about it. We think it’s going
to be at least fun, even if it’s maybe a little
chaotic the first time. It was driven by both
of us wanting to incorporate more of that
understanding of the client’s perspective,
looking at the realities of litigation, along
with the legal principles and the ability to
read the appellate cases.
What would you suggest could be the
most impactful thing the legal profession
could do in order to improve access to
justice, if you had to pick just one?
Don’t be hung up on the monopoly idea of
the profession. I think that it is not going
to last. Even if we like its advantages, we’re
just going to have to reconcile ourselves
to a world where it isn’t a thing anymore.
I think the business reality is that other
service providers are already finding ways
to encroach on what lawyers have thought
of as traditionally their territory. And if
our attitude as a profession is fighting to
protect that shrinking area of monopoly, I
don’t think that’s a good way forward for
us. I don’t think that vision gives me hope
for the future of the profession. I think if
we are more focused or more open to new
possibilities, new markets and ways to
serve them, then we have a much brighter
and much more hopeful future. That is also
a future that is more conducive to access to
justice for the public.
IF OUR ATTITUDE AS
A PROFESSION IS
FIGHTING TO PROTECT
THAT SHRINKING
AREA OF MONOPOLY,
I DON’T THINK
THAT’S A GOOD WAY
FORWARD FOR US
#VOICESOFJUSTICE

BENCHER TOM SPRAGGS
PAGE 46

IT’S REALLY JUST A JOURNEY OF
THOUSANDS OF STEPS TOWARDS A
CLEARLY DEFINED GOAL. INNOVATION
WAS A BY-PRODUCT OF THE JOURNEY
Tom Spraggs is a Bencher of New Westminster County, principal of
Spraggs Law, and a legal technology innovator.
You were Chair of the BC Law Institute. What was that like from a
lawyer’s perspective?
One of the things that I love about the law institute is they take a really
deep, methodical approach to law reform. Sometimes you’ll see a client
or someone in the community, and they’ll say, “They should change that.”
And the law institute actually gets to examine potential change, and then
what change looks like from a legal perspective.
In 2016, your law practice won an innovative workplace award. Can
you tell us a little bit about how you’ve been innovating?
One of the things that I reflect on often, and it probably stems from when
I did my MBA, is that the most successful business people are not the
people you see on reality TV who fire people and make a trademark of
it. They’re people who are humble, they’re plotters, they’re constantly
looking to do micro-iterations of improvement. I started to realize that
was the pathway forward, that it’s really just a journey of thousands of
steps towards a clearly defined goal. Innovation was a by-product of the
journey.
#VOICESOFJUSTICE

I’ll give an example. One of the things that I really
find purpose in is helping others. And it’s so great
to be a lawyer. There are really two camps: there
are lawyers who don’t like their job, and lawyers
who love their job. I love my job. I think it was
Martin Finch, Q.C., that shared at a Canadian Bar
Association meeting not so long ago, that very
regularly, people forget about the role of lawyers.
Think of it this way, he says: the doctor brings
you in, the priest usually takes you out, but the
lawyers get you through. It is a reminder of how
important the work we do is to helping those
around us. So a lot of innovations happened
around customer service, like how to consistently
scale customer service so that everyone’s having
a genuinely positive experience. It starts with
the customer experience, and then you learn
things that are surprising. You get a lot of clients
that want more of what you’re giving, if you’re
doing it right. In addition to the customer service
approach, I started to realize that what I thought
clients wanted, and what clients actually want,
were not the same thing.
Any thoughts on how lawyers, especially
young lawyers, can cultivate that sense of
purpose in their work?
I was reflecting on some of the things we did as an
organization this year, and one of them was read a
daily excerpt from a book by Ryan Holiday called
The Daily Stoic. It’s classical Greek philosophy.
I feel it’s not too controversial because the
courts refer to stoicism as a factor that generally
shouldn’t be counted against a plaintiff in a motor
vehicle case. Stoicism is much more developed
than this idea of someone suffering with a smile
on their face. Those are the kind of things that
if you search, you will find. Have a community
of lawyers that encourage each other. Wellness
is something that I think needs to be a pillar of
every lawyer’s daily routine.
What do you think lawyers can learn from the
pandemic?
I think if there’s one takeaway we have on 2020
– and it’s cliché – it really is that necessity is
the mother of invention. The takeaway for me
is, “Okay, we’ve done it that way for a long time.
But truly, can we do it another way?” That’s the
scary thing about law. We don’t have to have
one way to do things. And so for me, I’ve done
most mediations virtually, and they’ve been
better for clients. The transactional part of our
relationship with clients, stakeholders, courts,
colleagues – it hasn’t changed with modern
technology. Maybe there’s a way certain claims
of a certain value don’t require you to spend two
hours commuting. Maybe you don’t need to do an
appearance, maybe there’s a way you can check in
the chambers, and not have to wait around all day.
I think there are lots of different opportunities
going forward that clients will appreciate.
Based on your entrepreneurial experiences,
do you have any lessons learned in terms of
building commercially sustainable access to
justice products and services?
Keep it simple. If a client wants your services
and you can’t afford to deliver them at the price
they’re prepared to pay you, it’s either got to be
pro bono, or you’re making a loss. The definition
of business is making more than you spend
or spending less than you make. So there’s a
profound benefit in having your systems dialled
in. I’m going through a book called Traction by
Gino Wickman, and it’s just one of many ways to
find some assurances that if you follow a certain
sequence of processes, you’re going to be in good
shape.
Don’t be afraid to call a friend to share what’s
been working for you. I believe there’s a lot of
opportunity going forward for referrals. One of
the things that I’ve been observing is lawyers are
either too busy or too slow, and there’s a lot of
risk in taking on a file. There is temptation to take
on a file that you may not actually have proper
mentorship on, or proper knowledge to practice
in. When you’re licensed to practice in any area,
there’s an ethical obligation to make sure you’re
competent. But we know that there are ranges of
competency depending on your experience level.
That’s why they call it the practice of law, not
the science of law. That’s my view. And so I think
having a group like the Canadian Bar Association,
where we have practice groups, is really good
stuff.
PAGE 48

“
I STARTED TO
REALIZE THAT
WHAT I THOUGHT
CLIENTS WANTED,
AND WHAT CLIENTS
ACTUALLY WANT,
WERE NOT THE
SAME THING
”
#VOICESOFJUSTICE

LAWYER ADRIENNE SMITH
Adrienne Smith is a transgender human rights activist and social justice lawyer. Their website is
adriennesmithlaw.com.

LAWYER barbara findlay, QC
barbara findlay, Q.C., is a lawyer and founding member of the Sexual Orientation and Gender Identity Conference
(SOGIC). She was the 2020 recipient of the Georges A. Goyer, QC Memorial Award for Distinguished Service.
#VOICESOFJUSTICE

What are the top access to justice issues
for trans people these days?
Adrienne: They’re not anything at all to do
with the justice system. Trans people live so
far from justice, that accessing liberal rightsbased
systems of law is almost impossible for
most of them. Those who are able to interface
with systems like the courts and human
rights tend to be coming from some position
of privilege to start with. What I’m facing in
my practice is that nobody can afford a court
filing, nobody can afford any representation.
There’s insufficient legal aid for all of these
after-the-fact remedial efforts that don’t
prevent discrimination, violence, murder or
sexualized violence in the first place.
The system is opaque to unrepresented
litigants, and what that leaves us in is a
situation where – for most trans people
– their laws or their rights are only paper
rights. And there’s no easy way to enforce
them. We can’t have a conversation about
trans people, non-binary folks, gender queer
folks, and whatever passes for justice, without
acknowledging that there’s just no access at
all, for most of us.
Where do you think that conversation
should start?
Adrienne: I think government needs to
recognize that the access issue is a barrier
across the board; anywhere trans people
interface with a court or an administrative
system. For example, non-binary people are
almost entirely erased, or made invisible
forcefully, by every legal system everywhere.
I had a non-binary client who was going off
on medical EI, because they needed to bridge
their income while they recovered from
gender-affirming surgical care. The only way
to apply for medical EI is an online form. It
has this compulsory sex marker question. The
choices are M and F – these are sex markers
– which are very different than gender. The
question couldn’t be skipped. My client
had no choice but to be misgendered as a
precondition for benefits.
I phoned the lawyer at the Government of
Canada who I would have served a complaint
on and pointed this out, and reminded him
of his government’s human rights obligations
and their recent commitments to do
something about this, and said, “Can we fix
it?” And he said, “Yes, absolutely, we can.” It
took 36 months of negotiating. Now there’s
an X sex marker option, (which is mislabelled
as gender). It says M, F and X. It feels like a
Pyrrhic victory, because no one’s gender is
X, and because it is not a problem that ought
to have existed in the first place. There are
literally thousands of places just like this,
where the system imports binary sex options
for no good reason, other than that we
usually collect them. On the bright side, overt
misgendering stopped for this application,
just before 10 million Canadians applied for
COVID benefits through this form.
What would you say are the bright lights, if
any at the moment, in the access to justice
retransform?
Adrienne: Recently we had a fantastic
decision come down from the BC Supreme
Court, it’s called A.M. v Dr. F, 2021 BCSC
32. Young people’s right to consent to their
own health care, despite unsupportive
parents’ objection, was confirmed. We’re just
reinforcing what the Court of Appeal said in
A.B. v. C.D., 2019 BCSC 604, aff’d 2020 BCCA
11 and it’s profoundly frustrating that either
of these issues needed to be litigated, and
that the court is being drawn into this unfair
debate about the merits of trans people.
To what extent is justice or legal resources
accessible to the trans community?
Adrienne: These things are largely inaccessible.
We know this is similar but not the same
as the oppression that BIMPOC [Black, Indigenous,
Mixed-race; and People of Colour] folks
face, which reduces their access to any kind of

justice. And when there’s an intersection and
that overlaps, it’s a particularly profound and
deep problem. The Catherine White Holman
Wellness Centre has a free legal clinic, which
is the only place in British Columbia where
you can see a trans lawyer for free. Unlike
other clinics, we’re not addressing an area
of law – we’re addressing a population of
need, which has lots of different legal issues.
Being able to see people and tell them, “I’m a
trans person, so I don’t need an explanation
about your life,” is such a rare and important
feature. We talk about culturally appropriate
care for other groups of folks, and it’s equally
true for trans folks.
In my experience, for people who come
through the free clinic, where barbara and I
volunteer, just explaining that there are rights
that apply to them, and they’re not necessarily
going to lose access to their children because
they’re trans – people do not believe that the
law protects them, and that is because their
experience is that it never has.
The clinic provides summary legal advice;
name change and gender change form assistance.
We notarize forms for free, and we do
some limited pro bono representation for
some of the more compelling cases. The Law
Foundation of BC has just decided to fund us.
We’re talking with our community about what
exactly their needs are, so that we can meet
those with this parcel of funding for which
we’re very grateful.
barbara: Before you get to the question
of access to justice, you have to have some
justice to start with. The currently structured
system requires that you have a significant
amount of resources – generally money, but
if not money, at the very least time, commitment,
intelligence, ability – as a precondition
of going in the door, and the communities of
people we’re talking about do not have those
resources. They don’t have a door. The legal
system as a whole is designed as an alternative
to violent resolution of conflicts between
citizens, and so it maintains the power of the
state. This is – all in all – not a bad goal. But it
is a bad goal, if really what you mean is that
you are offering a non-violent dispute resolution
mechanism only for the people who are
fighting about property.
What guidance might you have for a cisgender
lawyer who may want to engage in
this area?
barbara: As a cisgender lawyer, our duty is to
take leadership from trans folk. As lawyers in
general, we’re not really trained on how to do
that. We have a fiction called taking instructions,
which really means you listen to the
client describe their story, and then you tell
the client what you’re going to do. And if they
don’t like what they hear, they go someplace
else or they don’t proceed. In social justice
terms, it is a crucial professional competence
to understand that you cannot treat any case
of a trans person walking through your door
like another legal case. The very first thing
you do is figure out what you don’t know, and
how you’re going to remedy your ignorance,
because that’s our work to do. That’s true for
any marginalized community, but it is a lesson
that we don’t, as a profession, know how to
do.
The next thing is you don’t phone up your
local trans lawyer Adrienne Smith, who has
167,000 other things to spend their time on.
Phone somebody like me, another cisgender
lawyer, who is knowledgeable in the area, and
who can help you get up to speed. If together,
we conclude that we need some direction
from trans folk – we’re not sure what the
political, social justice context consequences
are of the various positions we might take
on behalf of clients – then that’s the time to
consult.
Adrienne: There’s this really important line
that comes from disability activism that people
who use drugs have really adopted into
their organizing, which is “nothing about us
without us.” Because if you get a lawyer who
thinks they’re going to go and change the law
#VOICESOFJUSTICE

and push in this way, they may not have
considered the implications of a bad decision,
which certainly has happened. It’s a different
model. It’s not a professional, legal person,
doing a task of law and working some skills
magic. It’s part of a movement-building
exercise, rooted in survival, that really
belongs to this community. It’s different than
how lawyers have this adversarial system
when rational enlightenment actors meet
each other on equal grounds. So much more
time and energy does, and should go, into
making sure we’re moving together; than into
the paperwork of doing law.
barbara: One of the legal areas I’m currently
working on is the issues that surround
parentage for trans folk and legal parentage.
Part 3 of the Family Law Act sets out rules
about who gets to be a parent, when. The
conversation around law reform in that
area is how to begin with the experience of
birthing parents, whoever they may be, and
their partners, also whomever they may be.
The recognition of parenthood for what the
law would call non-traditional family forms is
a big deal. The interesting thing for me about
trans issues, or any of these kinds of issues,
is that, along with doing all the work that is
rewarding because we believe we’re making
justice more accessible, at the same time, all
of our own ideas about what’s natural, what’s
normal, what’s usual, what’s acceptable, are
changed in ways that are very exciting and
liberating. We have been straitjacketed in
an M-F world. And you look around and you
think, “Why exactly are we collecting gender
again? We gave up putting race on birth
certificates decades ago.”
Adrienne: I would also challenge people to
rethink the way that we’re doing law. And at
the risk of getting too nerdy, there’s this word
metaphor, which means bridge, when you
move from a thing you know, to a thing you
don’t know. This is generally how we organize
in law: you go from what you think you
know, you find a precedent that was similar,
you read other cases that have similar facts,
you expect a similar legal outcome. And in
this way, we’ve arrived at this place of trans
law that is adjacent to queer liberation, that
comes out of particularly lesbian activism,
and comes out of feminist activism, comes
out of collective rights organizing, like the
kind we see in trade unions and in Indigenous
communities and in racialized communities;
into a container that is unfamiliar to those
places.
We practise law with an X lens, and I think
there’s a better way. I think there’s a way
to move from the communities towards
the justice that they want, without getting
caught up in the container of whether this
application needs to be filed with a petition
or an application. I think our approach
to intersectional oppression needs to be
intersectional anti-oppression. If we work in
silos, we’re not going to get there.
barbara: I would like to echo that, because
– and I would say that for all of my career – I
have never, ever considered the law first. I
have always started with the problem that my
client is having. I’m old enough to have lived
through criminalization and legal invisibility
and no human rights for lesbians and gay
men. And in that context, and then in the
trans context, there was nothing. The best
you get is invisibility, and the worst you get is
active, facially discriminatory legislation. So
you cannot start with the law.
WE TALK ABOUT
CULTURALLY
APPROPRIATE CARE
FOR OTHER GROUPS
OF FOLKS, AND IT’S
EQUALLY TRUE FOR
TRANS FOLKS

RESOURCES
We asked Voices of Justice participants to recommend statistics, books and resources related to law, access to justice and the legal
profession. These are intended to inspire, and are for anyone interested in learning more about the themes discussed in this magazine.
BY THE NUMBERS
Trans women are four times
more likely than cis women to be
sexually assaulted.
100% of trans people have a stateconferred
problem, which is that
they are required to carry labelled
cards that specify their gender
in a circumstance where that is
completely unnecessary.
Approximately 1% to 2% of
cases that are filed with court are
resolved in a trial, and yet we treat
100% of cases like they’re going
to be.
There is no COVID-related delay at
the Victoria courthouse where we
implemented the new family law
program.
77% of legal issues are not
addressed by lawyers.
Of the nearly 50% of us who have
legal problems, 80% never connect
with a lawyer. The number of cases
that go to trial is around 1%.
The population of Indigenous
people in B.C. is approximately
6%, and yet 60% of children in
care are Indigenous.
A huge percentage of the public’s
legal problems are not addressed
because they don’t know they have
them.
We have a data void in the justice
system. We don’t collect or analyze
data in a way that allows us to
make good policy choices about
the way our system operates.
The vast majority of people don’t
seek lawyers for legal problems.
READING
A Mind Spread Out on the Ground
by Alicia Elliott
Administrative Burden by Pamela
Herd and Donald P. Moynihan
Braiding Sweetgrass by Robin Wall
Kimmerer
Building Bridges by Ardith Walkem
Canada’s Indigenous Constitution
by John Borrows
Justice and the Politics of Difference
by Iris Marion Young
Online Courts and The Future of
Justice by Richard Susskind
Power and Love by Adam Kahane
Rules for a Flat World by Gillian
Hadfield
The Client-Centered Law Firm by
Jack Newton
The Future of the Professions by
Richard Susskind
The Justice Crisis edited by Lesley
A. Jacobs and Trevor C. W. Farrow
The New Lawyer by Julie
Macfarlane
The Second Machine Age by Erik
Brynjolfsson and Andrew McAfee
The Talmud
To Save Everything, Click Here by
Evgeny Morozov
Tomorrow’s Lawyers by Richard
Susskind
ROLE MODELS
Adrienne Smith
barbara findlay, QC
Chief Justice Robert Bauman
Darin Thompson
David Eby, QC
Dr. Katie Sykes
Erin Levine
Gillian Hadfield
Jack Newton
Jane Morley, QC
Janet Mock
Joe Arvay, QC
Julie Macfarlane
Justice Gary Cohen
Kari Boyle
Lyra McKee
Renzo Caron
Richard Fyfe, QC
Senator Murray Sinclair
Shannon Salter
Sharon Sutherland
Tom Spraggs
RESOURCES
Access Pro Bono
Accesstojusticebc.ca
Cbabc.org
Normal Life by Dean Spade
Legal Trends Report from Clio
Legalevolution.org
Lss.bc.ca
Probono.net
Representingyourselfcanada.ca
Tony Robbins’ books
Transrightsbc.org
Trauma-Informed Lawyer Podcast
CREDITS
The Justice Hack thanks all Voices
of Justice participants for their time,
candor and leadership. A special
thank you to Access to Justice BC
for supporting the project. Photos
on pages 12 and 40 are courtesy of
the Province of BC’s Flickr account.
All interviews have been edited and
condensed for length and clarity.
#VOICESOFJUSTICE