Sample Criminal Law Paper on Access to justice in Canada’s criminal jurisdiction

Canada’s criminal law is governed by the exclusive jurisdiction of the Canadian federal
government by its legislative powers. The Constitutional Act of 1867 gives the legislature the
power to legislate or enact criminal law under section 91(27). Criminal prosecutions are also
brought under the name “Queen in Right of Canada.” Access to justice in criminal law is a
fascinating area of law in Canada. The Charter of Rights and Freedoms grants everyone the right
to instruct and retain counsel on detention or arrest. The Constitution also protects the ability of
the public to gain physical access to the court and to understand what is going on during court
proceedings. The narrow view herein is therefore that the access to justice is equivalent to the
access to courts (ACLRC, 2016).
The Legal Aid Alberta vision claims that everyone can access justice and thereby achieve
resolutions that are fair and lasting. Low-income people are also granted legal assistance.
However, in R v Moodie 2016 ONSC 3469, Justice Ian Nordheimer does not embrace these
policies. He stayed the charges against the accused person, one Tyrell Moodie while awaiting the
provision of counsel that is funded by the state. The charges levelled against him were serious
and they raised very complex legal issues. The justice opine d that the legal aid guidelines of
Ontario were having no rational relationship to what constitutes the poverty levels in the country.
He therefore rejected the Crown’s suggestion to let Mr. Noodie raise funds. He was also a part-
time employee oat a Girls and Boys club and lived with his mother and was facing a very serious
drug charge. He was therefore not a viable candidate for a bank loan neither can he be able to
pay his legal bills since he would not be able to get another job legitimately. He opined that the
legislature had the legitimate role of setting legal aid levels and that at times it would be just and
appropriate for a person to undergo a criminal trial while unrepresented. This case therefore

ACCESS TO JUSTICE IN CANADA’S CRIMINAL JURISDICTION
brought to light the fact that Canadians can actually undergo criminal trials and face criminal
sanctions and imprisonment without having counsel to represent them in court. This happens
because they are poor (Woolley, 2016).
Courts are usually not necessarily willing to facilitate an accused person with counsel. In
this instance per se, in R v Martin 2015 NCSA 82, the Court of Appeal of Nova Scotia described
how the accused person had represented himself in defending himself with regards to 25 to 26
charges on evasion of taxes. He successfully had the charges dismissed against him based on
Charter grounds. This result was however reversed on the summary conviction appeal where he
was still representing himself. He was denied legal aid for appeal even though the Crown
acknowledged the fact that the accused did not have the financial avenues nor resources to be
able to retain a lawyer. However, the Court of Appeal never appointed counsel for him because
his case was not complex. It would therefore make a determination and the Crown had the duty
to offer its assistance in ensuring that a fair trial is adduced to the appellant (Woolley, 2016).
Such setbacks as poverty that makes poor Canadians attend court without having lawyers
to represent them especially I criminal charges raises many questions as to the kind of system
that actually exists. The rule of law connotes the perception that people are not to be subjected to
legal consequences except where they are justified legally. This therefore connotes a system that
is adjudicated fairly i.e. with regards to its systems of argument and procedures and as to the
view of lawyers who are a necessary part of the system (Woolley, 2016).
A comparison with other legal systems shows that access to justice, which is embraced in
almost all constitution s every individual country worldwide is still subject to various debates.
Professor Zander argued, “…but I know of no way of assessing to what extent “justice” was
done in a sample of cases whiter civil or criminal. The question is too elusive, too complex to

ACCESS TO JUSTICE IN CANADA’S CRIMINAL JURISDICTION
unravel/ it would require knowledge of too many unknowable facts. The concepts of justice in
legal cases I suspect is too deep for any research project.” Zander examine the protection of
human rights and the changes in the criminal and civil areas of justice in the United Kingdom.
He argued that the Access to Justice Act of the UK had heralded major restrictions on the
concept of access to justice itself. He thus argued that the reforms do not spring from a desire
that is geared towards improving the access to justice but from the need of the Treasury to
control the budget. Even though his arguments were founded on the United Kingdom’s set up,
his analysis has given demonstrations on how political goals of limiting spending may affect the
access to justice definition in the legal context and how it may have indispensable consequences
for social justice as well. In Canada, the ideology of access to justice has been greatly influenced
by the works of Florence Access-to-Justice Project. This has offered a comparative assessment of
worldwide initiatives that have further contributed to broad conceptions of this concept.
According to Garth and Cappelletti, there exists three waves of access to justice reforms; the first
wave deals with legal aid provisions, the second with a group of procedural and substantive
reforms that enable legal representations to be more diffuse by incorporating consumer and
environmental protections while the third wave is labelled as the Cappelletti and Garth “Access
to justice” approach due to its aspirations to attack barriers comprehensively and articulately.
This third wave focused on changes in structure of courts, procedures, use of paraprofessionals in
the bar and on the bench, use of lay persons, modifications of substantive laws to avoid disputes
and facilitate resolutions and use of informal or private dispute resolution mechanisms.*** the
second wave has improved criminal trials with regards to the requirements accruing to
prosecutorial disclosure, broader sentencing options and the considerations of the impact of
criminal activities on victims and their communities (Hughes & Mossman, 2001).

ACCESS TO JUSTICE IN CANADA’S CRIMINAL JURISDICTION
Access to justice in Canada has also been described to be ‘abysmal’ according to the
report of the Canadian Bar Association. The report stated that there is unequal access to justice
all over Canada. Justice that is not accessible costs the whole nation and it expels its most harsh
consequences on the poor people or the poorest community within the country. The field of civil
law has also seen an n increase in the number of people that are representing themselves. Many
people in the country earn just enough money and hence they would not qualify for legal aid
services but at the same time they do not also earn just enough to be able to pay a lawyer. They
therefore find themselves in their own courtrooms. The court staff is also under pressure to walk
a fine line with regards to dealing with legal documents like forms or offering legal advice of
which they cannot provide (Graham, 2013).
Access to justice has different definitions to different people. In the narrowest sense it
represents the formal ability for one to appear in court but it actually engages the wider social
context of the court systems and the barriers in the system that various community members
undergo. Access to justice is an old concept that until to date is still undergoing reforms in
Canada. Its narrowest concept is the right to appear in court. This refers to a person’s formal
right to defend or litigate as per the liberal 19 th and 18 th century states. Cappalletti and Garth
argued on this point that even though access to justice was considered to be a natural right,
governments did not see the need or feel like there were positive obligations upon them to ensure
the protection of this right using affirmative action programs. The second aspect of the foregoing
is that access to justice connotes the advocacy attributed to those that cannot afford it. Access to
justice seemed to focus on practicing law for the poor people. The goals herein is to provide legal
representation to individuals that are impoverished and cannot afford legal advice. The
complexity, cost and delays of the legal system were sought to be mitigated through this. This

ACCESS TO JUSTICE IN CANADA’S CRIMINAL JURISDICTION
then formed the foundation of poverty law clinics and legal aid today. The legal aid movement in
Canada has expanded over time and it includes the access to legal advice even for the middle-
class. This is also the position held by the Canadian Bar Association’s Natural Access to Justice
Committee which has framed access to justice to mean the ability of middle-class and low
families to get legal information of legal help that they require. A broader definition of this
concept has also been opined to mean the need or push to advocate for people that cannot afford
lawyers. It also focuses on the limitations and inadequacies that are within the legal aid system.
This approach builds the model of legal aid and it also calls for reforms in the justice system by
simplifying formal and procedural requirements and the implementation of mechanisms for
third-parties and group claims (Macdonald, 2005).
The outcomes are also supposed to be equal with regards to access to justice. The advent
of Canadian Charter of Rights and Freedoms in 1985 brought the idea of equality that would
result in a shift towards a broad conception the ideology of access to justice. This approach
therefore looks beyond the equality of opportunities for the underrepresented or underprivileged
litigants. Instead aims to achieve an equality of outcomes by tackling barriers that are faced by
those that true to access the serviced of the judicial system. This approach argues that genuine
access to justice should be considered in light of variables that are social in nature and that have
historically possessed a negative impact on the capability of certain groups or individuals to
access justice. These variables include factors like gender, disability, sexual identity, class,
racialization and aboriginality (Macdonald, 2005).

ACCESS TO JUSTICE IN CANADA’S CRIMINAL JURISDICTION
References

ACLRC (2016). What is Access to Justice? Five Different Ways of Considering Access to
Justice. Retrieved from: www.aclrc.com/what-is-access-to-justice
Graham, J. (2013). Access to justice in Canada ‘abysmal’ and ‘radical reforms’ need to be made
to legal system, report says. The Canadian Press. Retrieved from:
www.nationalpost.com/m/wp/news/canada/blog/html?b=news.nationalpost.com/news/ca
nada/access-to-justice-in-canada-abysmal-and-radical-reforms-need-to-be-made-to-legal-
system-report-says
Hughes, P., & Mossman, M. J. (2001). Re-thinking Access to Criminal Justice in Canada: A
Critical Review of Needs, Responses and Restorative Justice Initiatives. Research and
Statistics Division, Department of Justice Canada.
Macdonald, R.A. (2005). Access to justice in Canada today: Scope, scale and ambitions.” Bass J.
Woolley, A. (2016). Access to Justice in Criminal Law. Retrieved from:
www.slaw.ca/2016/06/27/access-to-justice-in-criminal-law/

ACCESS TO JUSTICE IN CANADA’S CRIMINAL JURISDICTION