Delayed justice is justice denied

Justice comes at too high a price: McLachlin
Katie Rook, National Post
Published: Friday, March 09, 2007
TORONTO - Middle-class Canadians are increasingly frozen out by the cost and complexity of Canada's judicial processes, Beverley McLachlin, Chief Justice of the Supreme Court, said yesterday.

Many Canadians would have to consider remortgaging their home, gambling their retirement savings or forsaking their child's college fund to pursue justice, Chief Justice McLachlin told an audience of about 150 at the Royal York Hotel yesterday.

"Access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them become their own lawyers, or try to," she said.


Chief Justice of Canada Beverley McLachlin leaves the Royal York Hotel in Toronto yesterday after speaking at the Empire Club. She says the judicial system is getting too expensive for middle-class Canadians, who might have to remortgage their homes or spend all their savings to hire a lawyer and mount a defence.
"Hard hit are average middleclass Canadians."
Those with some income and a few assets may be ineligible for legal aid and therefore without choices, the Chief Justice said.

"Their options are grim: use up the family assets in litigation; become their own lawyers or give up. The result may be injustice."

Chief Justice McLachlin discussed how access problems, long trials, delays and deeply rooted social problems challenge a court system which, she said, is nonetheless the envy of other nations.

Injustice is, at times, compounded when people choosing to represent themselves are without the proper legal knowledge to do so. In some courts, almost half of cases involve a self represented litigant, she said.

"Putting the facts and the law before a judge may be an insurmountable hurdle.

The trial judge may try to assist, but this raises the possibility that the judge may be seen as helping or partial to that person. The proceedings adjourn or stretch out, adding to the public cost of running the court."

Criminal and civil trials are becoming increasingly lengthy. Cases which at one time were heard within seven days now take more than seven months to wind through the system, she said.

The mean elapsed time from first to last appearance for adult criminal court cases was more than seven months in 2003-04, up 14% from the previous year, according to data from the Canadian Centre for Judicial Statistics.

Prostitution, other sex-related offences and fraud cases take the longest time to resolve, an Adult Criminal Court Statistics report states. Criminal courts in 10 provinces and territories dealt with 450,000 cases stemming from more than one million charges in 2003-04.

References to the Charter of Rights and Freedoms are adding to increased trial times, while changes in the law of evidence and the use of expert witnesses add additional delays, she said.

"As the delay increases, swift predictable justice, which is the most powerful deterrent of crime, diminishes. These personal and social costs are incalculable," the Chief Justice said.

"Whether the litigation has to do with a business dispute or a family matter, people need prompt resolution so they can get on with their lives. They cannot wait for years for an answer. When delay becomes too great the courts may no longer be an option. Many people look for other alternatives or they simply give up on justice," she said.


Apart from dissuading people from seeking justice, delays and high costs prevent the courts from dealing with some issues that deserve examination, she said.

"The fact is, I believe, some cases should go to court. They raise legal issues that should be considered by the courts for the good of the litigants and for the development of the law."

Chief Justice McLachlin lauded Ontario's Court of Appeal for considerably reducing delays in the past decade.

But cases involving drug addicts and the mentally ill continue to overwhelm Canadian courts, she said.

"Such people are not true criminals, not real wrong-doers in the traditional sense of those words. They become involved with the law because they are mentally ill, addicted or both."

She applauded the development of specialized courts, including mental health and drug courts, which help ease the load.

© National Post 2007