A Matter of 'access'? an Exploration of the Patterns Leading to the Non-Use of Law in Canada

Saturday, 21 July 2018: 09:00
Oral Presentation
Emmanuelle BERNHEIM, Université du Québec à Montréal, Canada
Dominique BERNIER, Université du Québec à Montréal, Canada
Dalia GESUALDI-FECTEAU, Université du Québec à Montréal, Canada
Marie-Ève SYLVESTRE, Université d'Ottawa, Canada
Julie PAQUIN, Université d'Ottawa, Canada
Despite the numerous reforms aiming at making courts more accessible to citizens in Canada and Quebec in the last 50 years, access to justice is still considered to be a pressing social issue. In line with past efforts to eliminate “barriers” to courts, the problem is generally conceptualized as matter of the judicial system’s capacity to meet existing “legal needs”, with the emphasis being put on structural issues such as the complexity and formalism of the legal system, the availability of legal information, and the costs and delay required for a judicial decision to be rendered.

The focus put on unmet legal needs suggests that there actually exists an untapped reservoir of problems ready to be seized by the legal system, with little consideration being given to the processes by which specific situations come to be perceived as “legal” ones by social actors, and the reasons why the legal system seems unable to fulfill the existing needs. Our research project aims at examining those questions by shifting the focus from the structural issues limiting access to justice to the subjective constraints (conscience and knowledge of the law, moral conception of justice, anticipated profits…) preventing individuals from either constructing their problems as legal issues or perceiving the legal avenues offered as valuable solutions. Starting from the idea that the non-use of law can result from deliberate choices (voluntary non-use), the inability to identify and/or construct problems in legal terms (involuntary non-use), or the differential impact of certain characteristics of judicial institutions on certain social groups (provoked non-use), we propose to document the patterns leading to the non-use of the law and identify the subjective and structural constraints at play in four case studies involving different areas of law (criminal law, consumer law, labor law and youth protection law).