Canada’s legal system doesn’t work for the majority: “Startingly frank speech” by Supreme Court Chief Justice Beverley McLachlin

“We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able to access our justice system.”

– Chief Justice Beverley McLachlin, University of Toronto conference, 2011 Typical! The presentation and article have been removed.

Legal system doesn’t work for the majority: Supreme Court judge by Ian Mulgrew, Feb 16, 2011, The Vancouver Sun

Canada’s top judge is warning that the legal system doesn’t work for ordinary people and courts are fast becoming the domain of the rich – or the indigent.

In a startlingly frank speech at a University of Toronto legal conference, Supreme Court of Canada Chief Justice Beverley McLachlin last week was especially critical of high legal fees -now averaging nearly $340 an hour.

“Do we have adequate access to justice?” Justice McLachlin asked.

“It seems to me that the answer is, no. We have wonderful justice for corporations and for the wealthy. But the middle-class and the poor may not be able to access our justice system.”

Her speech was a near-perfect echo of one delivered in November by B.C.’s top jurist, Provincial Court of Appeal Chief Justice Lance Finch, her former benchmate. He, too, said the situation is unfair and that the profession must address “the elephant in the room.”

“Everyone knows it’s there, but no one wants to talk about it -I think it is time to open the conversation. … No matter how much we may all wish to avoid the subject, high legal fees are an issue that must be addressed.”

The chief justice agreed and gave the discussion even more urgency.

Like Justice Finch, Justice McLachlin in her critique focused on the monopoly lawyers enjoy with the implicit warning that if the profession doesn’t fix this problem, governments will -and the bar might not like their solution.

“If you’re the only one who can provide a fundamental social need from which you benefit, I think it follows that you have to provide it,” Justice McLachlin said.

Various Band-Aid measures are being tried, such as selfhelp Internet sites; judges and court administrators are becoming more accommodating to self-represented litigants; simplified rules and procedures are being adopted.

In an interview last year, Justice McLachlin drew the analogy between legal help and medical care -sometimes you can go to the drugstore and get a pill; but a lot of times, you need an expert who can diagnose the ailment, determine the proper treatment and present you with options.

No matter how many how-to websites are created or freeadvice lines are staffed, people still need lawyers.

And, at the moment, any protracted court battle can generate legal costs that will crush middle-class wage earners.

Denied reasonable access to the courts, Joe and Joan Six-Pack are increasingly being invited to solve their own problems through self-help or vigilantism.

“We can draft the best rules in the world and we can render the best decisions, but if people can’t have access to our body of law to resolve their own legal difficulties, it is for naught,” Justice McLachlin said.

And this is not only our problem -it’s a concern in Britain, America and other jurisdictions that have seen a more and more complicated body of modern law develop and legal fees rise accordingly while governments reduced legal aid programs to funding only those facing serious criminal charges or the indigent.

Here’s the rub, however: most of the legal troubles faced by the middle-class are family or financial in origin.

Most can usually be resolved quickly and easily if addressed promptly, but can quickly spiral out of control if allowed to fester.

No matter what your metaphor -the elephant in the room or the writing on the wall -the situation is alarming.

As Justice McLachlin said: “How can there be public confidence in a system of justice that shuts people out; that does not give them access? That’s a very dangerous road to follow.”

Access to justice becoming a privilege of the rich, judge warns by Kirk Makin, Feb 10, 2011, The Globe and Mail (updated April 29, 2018)

The middle class has been shut out of a justice system that caters primarily to the very rich and the very poor, the country’s top judge has told a group of legal luminaries.

Chief Justice Beverley McLachlin of the Supreme Court of Canada said on Tuesday that the middle class cannot hope to pay legal fees that average $338 per hour, leaving them little option but to represent themselves in court or go away empty-handed.

“Do we have adequate access to justice?” she asked a University of Toronto conference on the problem. “It seems to me that the answer is no. We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able to access our justice system.”

Chief Justice McLachlin said that a court proceeding can easily swallow up a litigant’s bank account or home equity. “How can there be public confidence in a system of justice that shuts people out; that does not give them access?” she asked. “That’s a very dangerous road to follow.”

The Chief Justice’s voice rose as she discussed a monopoly lawyers have on legal services. “If you’re the only one who can provide a fundamental social need from which you benefit, I think it follows that you have to provide it,” she said.

“And I don’t think it’s enough to say we are providing it for the rich and the corporations. You have to find a way to provide it for everybody.”

Chief Justice McLachlin said that denying citizens access to courtrooms can endanger democracy. “On a macro level, access to justice promotes social stability,” she said. “It obviates the need for self-help and vigilantism.

“We can draft the best rules in the world and we can render the best decisions, but if people can’t have access to our body of law to resolve their own legal difficulties, it is for naught,” she said.

Her speech capped a day in which judges, lawyers and academics from Canada, Britain and the United States bemoaned the fact that middle class people in the court system suffer from a combination of rising legal fees, increasingly complex procedures [intentional to keep us ordinary citizens out, of course!] and the unavailability of legal aid to all but the poorest litigants.

The measures they debated to bring justice back to the middle class ranged from creating a universal legal insurance plan to legal hotlines and panels of legal experts capable of providing advice online.

Echoing a recurring theme, Chief Justice McLachlin said there is little data on how many middle-class litigants have been driven away by the high cost of civil justice. However, she said that U.S. studies have found that up to two-thirds of middle-income individuals with legal needs do not approach a lawyer because of the cost.

Legal Industry Cost Reality Check, added in 2020:

End Legal Industry Cost Reality Check!

“We know enough to know that we have an urgent problem,” remarked Ontario Court of Appeal Judge Stephen Goudge, a participant at the meeting. “We have to get on with creating solutions rather than trying to get a perfect understanding of the problem.” Fast Forward to 2020: Still nothing for solutions anywhere in Canada, just ever increasing legal fees, photocopying and court costs, with procedural complexities getting more insanely ugly by the year, apparently intentionally to keep us ordinary souls out, forever out. And then there is the serious matter of all nine judges – including Beverley McLachlin – on Canada’s top court knowingly publishing lies in rulings to smear the applicant and grossly exceeding the Judicial Council’s time limit of 6 months to release rulings. The top court nastily took a year and a day to rule in Ernst vs AER, which was a very simple preliminary matter of law.

Others volunteered horror stories from the audience – such as Ontario Court Judge Marion Cohen, who said that she regularly sees the effects of a dearth of legal aid funding for family law cases.

“I don’t think legal aid is robust at all,” Judge Cohen said. “It is as decimated as it has ever been. Low income people have duty counsel, but middle class people don’t. Very few people have lawyers at all.”

Former Ontario attorney-general Marion Boyd said that a free legal-advice hotline run by the Law Society of Upper Canada cannot keep up with demand. “The increase in the number of people calling is substantial,” she said. “We have very many more requests for service than we have lawyers.” …

One proposal for reform, known as “unbundling,” involves a client hiring a lawyer for one specific aspect of a case – such as drafting a statement of claim or conducting oral arguments on a legal motion.

Another proposal was that judges and court administrators transform a lawyer-dominated courtroom culture to one that bends over backward to accommodate self-represented litigants. HA! As if the rich and polluting public health-harming corporations will ever let that happen!

This entry was posted in Other Lawsuits. Bookmark the permalink.