Aug. 14, 2005. 08:43 AMTRACEY TYLER
"While we have a great justice system, increasing numbers of Canadians do not have access to it," Chief Justice Beverley McLachlin of the Supreme Court of Canada told the opening conference of the Canadian Bar Association here yesterday.
"This has serious repercussions for the justice system, which is based on litigants being represented by lawyers. Even more serious are the repercussions for the public."
Pre-trial meetings and trials become longer as judges struggle to explain the process to unrepresented parties, all while having to be careful they don't appear to favour one side, McLachlin said.
Ironically, say legal experts, those who go it alone for financial reasons often end up adding to the cost and complexity of court proceedings.
McLachlin said money is just one of the issues.
"It would be facile and simplistic of me to attempt to tell you what I think the problems are," she told reporters at a news conference following her speech. "It's not just a money problem. It's a complex problem that requires more than just a simplistic solution."
The problem is particularly acute in family courts, where "the cost of litigation uses up precious resources that could better be used in providing housing and clothing for children and parents," the country's top judge said.
One possible solution being tried in the family courts of some provinces, McLachlin said, is to make mediation and counselling services available in order to resolve custody and property disputes more quickly, cheaply and with the least rancour possible.
In her speech, McLachlin said part of the answer may lie with the country's richest law firms, which she suggested might do more to offer free legal services to those who can't afford a lawyer.
"I wonder whether some of our largest and most profitable law firms might be more active in constructively supporting their lawyers who would like to give more time to pro-bono work."
Government, judges and lawyers all have to do their part, McLachlin said.
That may be difficult for lawyers, who already feel they are on a "treadmill" and often face "serious pressures" to bill for 2,000 or more hours of work each year, which adds up to 65 or 70 hours in the office each week, she added.
Judges are so concerned about the problem that the Canadian Judicial Council has undertaken a study on unrepresented litigants, hoping to understand the dimensions of the problem, she said. But already judges across the country are reporting that the number of self-represented litigants is rising, she added.
McLachlin said she's also concerned about the process for naming federally appointed judges, who sit on the Supreme Court of Canada, provincial superior courts and courts of appeal.
A House of Commons standing committee on human rights and justice will hold hearings this fall on how the process can be improved.
Another vacancy is about to open up on the Supreme Court. Justice Jack Major has announced he will retire on Dec. 25. The process for appointing his successor, however, will be the same used by Justice Minister Irwin Cotler last year in naming Justices Rosalie Abella and Louise Charron to the top court.
That system fell far short of what many critics had hoped for.
In contrast to the process underway for the confirmation of Justice John Roberts to the United States Supreme Court, Canada's newest Supreme Court appointees were not questioned. Instead, Cotler appeared before the justice committee to explain whom he consulted with and the personal and professional qualities that merited the appointments.
While from her vantage point, the Canadian judiciary already meets high standards of competence, impartiality, empathy and wisdom, McLachlin said it's legitimate for the public to seek the best process possible.
But, she stressed, it's "equally legitimate" to insist the process respect the independence of judges and all appointments be made on the basis of merit.
"I think this is a political matter, the appointment of judges. They're studying it and it's their job to find a good system. I'm not interested so much in the mechanics."