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