A report last month from the Canadian Bar Association describes the state of access to justice in Canada as “abysmal – and getting worse.” Why? Let us count the ways.
The bar association estimates that, two decades ago, at least 95 per cent of people appearing in court were represented by a lawyer. Today, “anywhere from 10 to 80 per cent of litigants are unrepresented, depending on the nature of the claim and the level of court.” One study estimates that half of all family law litigants have no lawyer. Cases are becoming longer and more expensive, yet the number of people who qualify for legal aid is falling. In Ontario, for example, a single person earning more than $208 a week is not eligible for legal aid. That’s half the minimum wage.
Led by the Chief Justice of the Supreme Court, Beverley McLachlin, judges have long tried to call attention to the problem. Last year, Ontario Superior Court Justice D.M. Brown said that the country’s courts were becoming “only open to the rich.” He was commenting on a case before him involving an alleged $1.2-million fraud; the family being sued was well on its way to spending as much as $800,000 fighting the action. “If we have reached the point where $800,000 cannot buy you a defence to a $1.2-million fraud claim, then we may as well throw up our collective hands and concede that our public courts have failed,” said Justice Brown.
The bar association estimates that over the next three years, 45 per cent of Canadians will “experience a justiciable event.” Over a lifetime, each of us can expect multiple encounters with the justice system, some potentially very costly. In many ways, our legal system is a model, and works extremely well. But cost and complexity are limiting access. If you get your day in court, but at a back-breaking price, or without proper legal advice, is that justice?