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Access to justice becoming a privilege of the rich, judge warns Add to ...

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 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.

"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."

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."

The conference was told that the legal problems the middle class encounter most frequently involve family discord and debt, and that many of these could be prevented with timely education.

Iain Ramsay, an English law professor, suggested that naive credit-card holders could be scared into living within their means if the government required credit-card companies to include warnings on their monthly statements, explaining how long it will take them to eliminate their debt at their current rate of payment.

"Shock tactics involving short, pithy statements that are relevant to their situation can work," he said.

Another speaker, lawyer Julie Lassonde, said that a similar approach could be taken to naive couples who intend to cohabit without knowing the basics of divorce, pre-nuptial contracts, custody and division of assets. "Perhaps the best wedding gift for my friends would be to sit with them and go through share some family law pamphlets," she said.

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.

Two lawyers with the Canadian Auto Workers legal services plan said that a 25-year-old program to provide members with pre-paid legal insurance has been a stunning success. "We could do the same for every Ontarian," said CAW lawyer Paul Vayda. "It is just a matter of scope."

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