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Aug 12, 2007

Access to justice a `basic right'

Country's top judge says the system's high cost is an `urgent' problem that must be addressed, But lawyer's recent accusations of money-grubbing among his peers won't help, chief justice says

Tracey Tyler
Legal Affairs Reporter

CALGARY–Chief Justice Beverley McLachlin has issued a call to action to governments, lawyers and judges to find solutions to the access-to-justice "crisis" imperilling the country's legal system, which is now too expensive and complicated for the vast majority of Canadians.

In a speech to the Canadian Bar Association yesterday, the country's top judge declared access to justice "a basic right" for Canadians, like education or health care.

Although McLachlin has spoken out about the problem in the past, she sharpened her remarks yesterday and went further than she has before, citing what she described as an "increasingly urgent situation."

The justice system risks losing the confidence of the public when "wealthy corporations," or the poor, who qualify for legal aid, have the means to use the court system, she said, noting that for "middle-class" Canadians, resolving a legal problem of any significance often requires taking out a second mortgage or draining their life savings.

A Toronto Star investigation this year determined the cost of a routine three-day civil trial in Ontario to be about $60,000, more than the median Canadian family income.

"The price of justice should not be so dear," McLachlin said in a speech to the bar association's governing council at the opening of a four-day legal conference here.

"Something must be done," she urged. "We must all get on the same track and move down it together."

There's "no point" in having a justice system that nobody can afford to use, McLachlin said. "We need to keep the justice system relevant and available to Canadian men, women and children."

Juxtaposed against McLachlin's concerns, however, are concerns from one member that Canadian lawyers are largely money-grubbing and unprincipled.

Former Bay St. lawyer Philip Slayton offers his stinging assessment in a book called Lawyers Gone Bad, which made a splash earlier this month via a cover story in Maclean's entitled "Lawyers are Rats."

Speaking with reporters at a news conference later, McLachlin acknowledged those sentiments aren't useful in developing the momentum needed to improve access to justice.

"I don't think name-calling and exaggeration helps," she said.

The kinds of lawyers described in the book, she added, don't reflect the many who routinely take cases all the way to the Supreme Court of Canada for little or no money.

Later, at a luncheon, former Ontario Chief Justice Roy McMurtry, who was being honoured for 50 years of public service, including work in establishing pro-bono legal services, also condemned the story.

"We should not be intimidated by scandalous, scurrilous articles, such as that which appeared in (a) recent issue of Maclean's magazine," McMurtry said.

While high hourly rates charged by lawyers are part of the difficulty – up to $800 an hour in Toronto – the access to justice problem is complicated.

It also stems from the changing nature of the criminal and civil trial process, McLachlin said.

"The cost of legal services does limit access to justice for many Canadians," she said. However, in the criminal justice system, pre-trial motions, which often involve constitutional challenges by accused people to the admissibility of evidence, have become common and often consume a great deal of court time, McLachlin said.

For example, people in jail awaiting trial are subjected to longer periods of pre-trial custody, while those granted bail still have to endure the stress of waiting for their trials, she said.

On the civil side, the use of pre-trial hearings known as "examinations for discovery," which can drag on for months and even years, as well as an increased tendency to rely on expert witnesses, is contributing to longer trials, McLachlin said, with often devastating consequences for litigants.

"People need prompt resolution of issues so they can move on with their lives or businesses."

The good news, she said, is in the past year, the legal profession and government officials responsible for the administration of the justice system have moved past simply talking about barriers to justice and are beginning to seek answers.

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