Wake-up call from top judge

TheStar.com – opinion/editorials
Published On Mon Aug 15 2011.

Four years ago, Beverley McLachlin, Canada’s chief justice, delivered a blunt warning. “The most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve,” she told the Empire Club of Canada. “Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system.”

Now an international survey has confirmed that justice has slipped out reach for millions of Canadians. The World Justice Project, a multinational initiative to advance legal rights, ranked Canada 9th out of 12 rich countries in its global index when it came to providing its citizens with access to civil justice.

“That’s not terrible, but it does show that we’re not doing as well as we should,” McLachlin told lawyers at their annual conference in Halifax. “I think the Canadian Bar Association and other groups concerned about justice have to recognize that is an area in our justice system that needs attention.

The finding stood in sharp contrast to Canada’s performance in other categories: a clean judiciary, stable laws, effective enforcement, freedom from political interference.

“People feel they cannot take the step of finding of lawyer or launching a lawsuit,” McLachlin said. “They fear expense. They fear delay. In the family law area, they fear getting mired in processes that actually exacerbate the dispute and have bad consequences for the children and for preserving as much of the family assets as can be preserved.”

When she first raised the issue, the bar association scrambled to set up an access-to-justice committee, lobby policy makers and encourage lawyers to do more pro bono work. Yet little has changed.

“There is no evidence that despite all of our initiatives, access to justice is improving,” admitted Melina Buckley, who chairs the committee. The legal profession needs to ask why. Are its services overpriced? Are its members unwilling to sacrifice any of their billable hours?

Governments also must do better. The right to a fair trial is guaranteed in the Constitution. Yet legal aid is offered only to the poorest of the poor. Many services are not covered. Most provinces are cutting funding.

McLachlin suggested that legal insurance might be a way to go. The possibility is worth exploring. But asking people to buy protection from prohibitive legal fees is a sorry response to a long-standing problem.

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