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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
CALGARYChief 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
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
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
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
"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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