11 February 2011

Canada's Chief Justice Comments on Access to Justice

Chief Justice Beverly McLachlin, a former luminary of the British Columbia bench and Canada's top judge since 2000, has made some important remarks about the accessibility of the justice system at a University of Toronto legal conference which have been loudly reported by the Globe and Mail and CBC.

Her Ladyship's comments were focused on the high cost of legal services, the inadequacy of legal aid services, and the monopoly lawyers have over the practice law. To quote from Kirk Makin's excellent article in the Globe:
“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.”
These problems are particularly acute for middle- and low-income earners involved in family law proceedings in British Columbia. Middle-income families often wind up sacrificing the family home on lawyer's fees if a settlement cannot be reached in relatively short order. Low-income families often don't have the luxury of hiring counsel at all, and given the state of the cutbacks to legal aid imposed by Gordon Campbell's government in 2002, legal aid for family law problems is available only in emergency circumstances and for a limited retainer.

I agree with the Chief Justice's comments, but I'm not sure what can be done to correct the problem.

For low-income families, it seems imperative that full funding be restored to the Legal Services Society, but that's only a starting point and requires a very significant, if not prohibitive, budgetary commitment on the part of the provincial government.

For low- and middle-income families, I think we need to focus on two things. First, we need to have the basics of family law and family responsibilities taught in high school so that people enter the legal process from an informed position at least vaguely aware of their rights and duties as parents, spouses and litigants. Second, we need to move from the presumption enshrined in the Divorce Act and the Family Relations Act that court is the default setting for dispute resolution. Negotiation, mediation and collaborative law are generally faster and cheaper means of resolving family law disputes, and are arguably more effective in the long run; they should be where we turn first to find a resolution, and court should be reserved for emergencies, irresolvable disputes, cases involving abduction and threats, and cases involving domestic violence.

It goes without saying that more lawyers need to spend more time on pro bono clients. This however is a matter of individual choice and availability, and not an adequate reply to a problem which is fundamentally systemic.

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