Access to justice in a neurotypical world

By Emily Bielech

Currently, 1 in 66 Canadians between 5 and 17 years of age have been diagnosed with Autism Spectrum Disorder (ASD). ASD is a disorder that affects communication and behaviour, and is characterized by atypical cognitive function – in other words, individuals with ASD think, reason and remember differently than neurotypical individuals (those who do not have ASD). As these young people transition into adulthood, many are faced with a crisis. There is a lack of public services in Canada tailored to meet the needs of adults with ASD, especially those with High-Functioning Autism (HFA). This service gap extends to the justice system, particularly in its provision of aid to self-represented litigants. Often, individuals with cognitive differences such as HFA receive disability benefits, and are therefore unable to access legal aid because they do not make the low-income cutoff. At the same time, they are unable to afford a lawyer. It is therefore reasonable to assume that an individual with HFA would likely be required to proceed as a self-represented litigant.
 
Neuro-diverse individuals are more likely to face barriers to meaningful access to justice. We must take these barriers, and the varying abilities of neuro-diverse people to surmount them, into account when providing our services as legal professionals. Although ASD, as the name suggests, represents a spectrum consisting of Autism subtypes that range from individuals who are severely impacted to those with HFA, there are some behavioural commonalities across the spectrum. These commonalities can include challenges with social interaction and communication. A litigant’s ability to communicate with the judge, with duty counsel, and with the clerks who file court documents can make or break a case.
 

Best Practices in Designing Self Help Resources
One key innovation that could help neuro-diverse individuals to represent themselves is to
increase the clarity and navigability of online legal resources.
 
Regarding the clarity of the information, people designing such resources should pay specific attention to how information is organized and synthesized. Online resources can be adapted to meet the needs of individuals with HFA by minimizing the amount of information present on a web page, and by making the relationships within that information explicit. For example, information organized in a linear fashion, such as by using numerical steps, is easier to comprehend. The steps for initiating a civil claim for wrongful dismissal could look something like:

• Step 1) Do you think you were dismissed from your job without proper notice?
• Step 2) If the answer is yes, read your employment agreement. What does it say about notice of termination?
• Step 3) Does your agreement comply with the minimum notice period set out in the below charts? (If you are employed by the government of Canada, use Chart A; if employed by the government of Alberta, use Chart B)
• [Insert charts specifying the minimum notice for various periods of employment under both federal and provincial legislation]
• Step 4) Did your employer comply with the minimum notice period in the chart?
• Step 5) …

 
In terms of the navigability of web pages, design and layout can be improved by a greater level of personalization. Personalization allows a user to have the option of, for example, selecting pop-up pictures that explain the text or hearing an audio recording of the information when they place their mouse over a specific word or phrase. Allowing the user to set their ideal combination of audio, pictures, icons and ratios of symbols to text, and other streamlining mechanisms such as reduced screen clutter and less scrolling, can also be beneficial to neuro-diverse users. Ideally, these design changes could be implemented so as to remain unobtrusive for neurotypical individuals, who may either find these tools helpful or wish to bypass them.
 
Connecting Neuro-Diverse Individuals with Expert Helpers
 Connecting neuro-diverse individuals with helpers who know how the justice system functions is also a viable solution. I propose an increased role for communication intermediaries. These non-lawyers are already present in some courtroom settings to aid in the giving of testimony and have experience assisting individuals who have difficulty communicating. Intermediaries could be made available to neuro-diverse individuals using technology such as an online chat system that supplements, and is accessible alongside, pre-existing web resources. Another way to achieve affordable assistance is through “unbundling”, when a lawyer offers their services in parts or tasks, rather than for the entirety of the litigation/claim.
 
Until solutions such as these are implemented, it is not likely that a litigant with HFA would be able to successfully represent themselves without assistance. We still have work to do as a profession in terms of providing equitable access to justice for neuro-diverse individuals.

Emily Bielech is a third year law student at the University of Alberta, Faculty of Law. This post is based on a research paper that she completed for a class in access to justice taught by Professor Anna Lund.