Searching for the Constitutional Core of Access to Justice

This paper posits that access to justice is both a large multifaceted concept with broad policy implications and also a constitutional commitment central to our legal system. It contends that the process of refining and giving contemporary meaning to the legal principle of access to justice is obfuscated by debate surrounding the broader policy concept because the duality plays into concerns over the respective roles of governments and the courts to ensure access to justice, which brings the justiciability of access to justice claims into question. The woeful state of civil legal aid programs across Canada is attributable in part to the confusion arising from this debate. The author proposes that a way forward can be found by disassociating the broad policy concept of access to justice from the narrower legal and constitutional principle. It is only this narrower meaning that gives rise to legal obligations and hence is within the purview of the courts. Three approaches to defining the constitutional core of access to justice are briefly explored: (1) access to the courts and the rule of law; (2) access to counsel and the right to a fair trial; and (3) access to justice and the equality benefit and protection of the law. Finally, the paper discusses Canadian Bar Assn. v. British Columbia as an example of a case that offers the opportunity to search for and further refine the constitutional core of access to justice if it can be untangled from the web of justiciability concerns