Bold report shows Canada how to achieve true access to justice

Posted on October 12, 2013 in Equality Delivery System – opinion/editorials – Report on Canada’s court system provides a necessary road map to achieving true access to justice.
Oct 11 2013.   Editorial

It’s a situation that makes a mockery of equal justice for all. Ruinously high legal costs, a needlessly complicated court system and a misplaced focus on conflict instead of compromise are pushing justice beyond the reach of the average Canadian. But there is a way forward.

bold new report from an action committee of Canadian legal experts proposes a profound shift in the way courts, lawyers and litigants function in this country. Appropriately titled “A Roadmap for Change,” it calls for a user-friendly system, operating in plain language and geared to keeping people out of court unless there’s absolutely no alternative.

“The current system, which is inaccessible to so many . . . is unsustainable,” write the authors. “Access to justice is at a critical stage in Canada. What is needed is major, sustained and collaborative system-wide change.”

It’s estimated that almost 12 million Canadians will face at least one legal problem in a given three-year period. With about 40 per cent of marriages ending in divorce, family law alone involves a huge amount of litigation. “These are problems of everyday people in everyday life,” write the authors of the report.

But most Canadians are ill-equipped to cope. The average person earns too much to qualify for legal aid but not enough to readily pay for legal services necessary to navigate the existing system. Taking even a two-day civil action through to trial costs between $13,500 and $37,200 — an onerous burden given that the median individual income in Canada is about $30,000.

With access increasingly priced beyond their reach, many Canadians struggle to obtain justice on their own — without a lawyer — even though the system’s complexity, obscure jargon and tangled procedures leaves them at a severe disadvantage. According to the report, more than half the people embroiled in the legal system represent themselves in judicial proceedings, and “usually not by choice.”

For the sake of fairness, the system needs to better assist this growing legion of unrepresented litigants. To that end, the report envisions a cultural change making the justice system simpler, more coherent and better matched to the needs of the public. “Everyday legal problems need everyday solutions that are timely, fair and cost-effective.”

A landmark change sought in the report would be to turn overburdened courthouses into “multi-service dispute resolution centres.” Here people would find a host of alternatives to waging legal warfare. These would include mediation services, conciliation, dispute resolution by a judge and speeded up “mini-trials.”

Cases could be streamed through more effective, specialized court services such as mental health court, consumer court and a court specializing in municipal conflicts. And some matters, like small claims feuds, might even be settled through an online dispute resolution service. Authors of the report quote a noted British jurist who said: “We may well have something to learn from online dispute resolution on eBay and elsewhere.”

What’s envisioned is an entirely new way of thinking about justice and how it’s delivered. The foremost principle is to put the needs of the public first. And that’s a refreshing change.

The strong credibility of this reform is underlined by the expertise of its authors. As reported by the Star’s Tonda MacCharles, the final document is the result of five years’ study by a national committee and by workings groups comprised of more than 50 judges, lawyers and academics. Chief Justice Beverley McLachlin was instrumental in its launch. And now the panel has produced answers.

Implementing recommended change won’t be easy. No one department or agency has sole responsibility for the delivery of justice in Canada, note the report’s authors. Administration of justice is fragmented through national, provincial, territorial and local jurisdictions. As a first step, the report envisions creation of local “implementation commissions,” each with a broad-based membership drawn from the legal profession, “stakeholder groups,” and concerned individuals. This seems a logical way to proceed.

Canada’s justice system is in urgent need of comprehensive reform — that’s beyond debate. This report points a way to effect the change this country needs and it should guide all who oversee the administration of justice.

“For the system to be strong and effective,” conclude the report’s authors, “people must have meaningful access to it.”

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