« Je laisse à d’autres le soin d’inquiéter, de terroriser et de continuer de tout confondre. »

René Magritte

Preamble

This is a think piece. It is not meant to provide a definitive answer to the question of how justice will be ensured, how the role of ombuds and other less formal agents should evolve, and how ombudsing and other forms of less formal agents of justice might differ from place to place. On such matters, practitioners should have the final say. This paper aims only at provoking reflections on these questions, with a view to breaking out of the box of conventional thinking.

The paper is dealing with two separate problems: first, the need to broaden the concept of justice; second, the broadening of the role of ombuds in this new territory.

The first part is an examination of the problem of access to justice in a world that is becoming more diverse, complex and turbulent. It has been argued explicitly in the last decade that the formal justice system may not serve the community well, and that a more distributed, multiple-access, and open-source system of justice should be put in place.

The second part argues for a more creative role for ombuds and seeks to enlarge the portfolio of governance mechanisms by factoring in ombuds as “producers of governance” and particularly important agents of the governance of justice through their mediation work.

The judgment of wider courts

The expression “wider courts” may not be elegant, but it serves in drawing attention to the fact that the notion of access to justice does not connote only access to the courts and to the formal legal apparatus. The problem was raised in the year 2000 in a symposium organized by Justice Canada on the theme of Expanding Horizons: Rethinking Access to Justice in Canada. It was an invitation by the legal establishment to use lateral thinking in developing strategies for better ways to provide access to justice for Canadians.

At that 2000 meeting, many experts acknowledged the acuteness of the problem: a message of anxiety on the part of Justice Turpel-Lafond with regards to the way the justice system treats Aboriginal groups; a message of disconnection between the formal system of lawyers and courts and the real living law of everyday interaction from Roderick Macdonald, and a plea for more opportunities for citizens to participate more fully in the lawmaking process; a message of denunciation by philosopher Jacques Dufresne, who claimed that the formal judicial institution – the fortress is preventing the normal carrying of justice and is the source of injustice because of the lack of preventive justice – and argued for a justice douce (Paquet, 2000).