Legal system breaking down in Canada. Same problems no doubt found in other Western countries

if you can't afford a lawyer or don't qualify for a court-appointed one, you are basically f*cked if charged with anything. if the cost of going thru the legal system is beyond the reach of most people financially, you cannot have a fair trial, given the unlimited resources by the prosecution. same goes if the average guy tries to take on an agency or corporation.



Judge laments cost of going to court
More people representing themselves
Aug. 13, 2006. 07:17 AM
TRACEY TYLER
LEGAL AFFAIRS REPORTER


ST. JOHN'S, NFLD.—With the cost of going to court moving beyond the reach of the average Canadian, access to the justice system is an "ideal" for most people but not a reality, Chief Justice Beverley McLachlin says.

The time involved in going through the court system and cost of hiring a lawyer to take a case to trial is simply more than most people can afford, the country's top judge told a legal conference yesterday.

The number of people representing themselves is on the rise, she said. This places added strain on the judiciary, who struggle to help unrepresented litigants through the court process while at the same time trying to maintain judicial neutrality, McLachlin said in a speech to members of the Canadian Bar Association.

It all makes for a justice system that's less than optimal.

"We cannot, I believe, allow this to continue.

"In order to maintain confidence in our legal system, that system must be, and must be seen to be, accessible to Canadians — not just large corporations and not just people charged with crimes, but to all Canadians," she said.

"But by all evidence, it appears that our justice system is becoming less and less accessible to more and more Canadians."

McLachlin spoke at the opening of the association's annual four-day meeting. She questioned whether the "typical law firm's fee structure" is contributing to the problem. She wondered aloud whether law firms can devise more "creative" ways to bill clients, so the cost of having a case resolved remains in line with its complexity and the amount of money at stake.

At a news conference later, McLachlin told reporters her question wasn't meant as a criticism of law firms or a prescription for improving access to justice. But it's a question that should be asked when it comes to looking for possible solutions, she said.

"I'm not an expert in this and ... it would be presumptuous of me to say that law firms should do this or that," she said. "I raised it as a question for the bar to ask themselves.

"The way we bill: has that got anything to do with it?

"I can't answer that question. I think it's for the bar to answer that question."

James Morton, president of the Ontario Bar Association, said it's "a challenging question. Part of the difficulty is that law is a business and it has to support itself," he said in an interview.

"That said, the median income for a lawyer in Ontario is $60,000. Sixty thousand is a good salary, no question. But lawyers are not making the vast amounts of money they are perceived to be making.

"There is not a vast amount of room to change the legal fee structure," Morton said.

Lawyers have a long history of providing pro bono services, he said, adding that every lawyer he knows has cases they realize won't make them any money.

Morton said what's needed is a "restructuring" of the entire justice system to speed up the movement of cases.

"A lot of the cost is just because of delay," he said. "If delay is reduced, the cost of lawsuits will come down."

McLachlin said people should have equal opportunity to defend or assert their rights, regardless of their financial resources.

Judges and lawyers organizations across the country have been trying to come up with ways to deal with the growth in unrepresented litigants and to reduce the high cost of going to court, she said.

Governments have made moves too, she added, noting the Ontario government recently appointed former associate chief justice Coulter Osborne to look for ways to make the province's civil justice system less expensive. Canada should look to other countries for ideas, she said.

McLachlin also voiced concerns yesterday about a separate, but related problem: Superior courts across the country are playing short-handed.

Some 43 judicial positions are vacant as a result of retirements, waiting to be filled by the federal government. Meanwhile, the two-year terms of the lawyers, judges and laypeople who sit on committees in each province that review applications from prospective judges are set to expire on Oct. 31.

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