Erosion of family assets in ligitation not `just,'
says top jurist
LEGAL AFFAIRS REPORTER
Middle-class Canadians who aren't
willing to mortgage their homes or gamble their life
savings to pay for help with their legal problems
face the "grim" choice of becoming their own lawyers
or giving up on justice altogether, says Chief
Justice Beverley McLachlin.
The "just society" Canadians have
come to expect includes the ability to turn to the
legal system, McLachlin says in a speech to be
delivered in Toronto today to the Empire Club of
But when Canadians are forced to
"use up the family assets" in litigation, justice is
merely an illusion, she suggests in an advance text
of her remarks.
"A person injured by the wrongful
act of another may decide not to pursue
compensation," says McLachlin. "A parent seeking
custody of, or access to the children of a broken
relationship may decide he or she cannot afford to
carry on the struggle – sometimes to the detriment
not only of the parent but the children.
"When couples split up, assets that
should go to the care of the children are used up in
litigation; the family's financial resources are
dissipated. Such outcomes can only with great
difficulty be called `just.'"
Meanwhile, those representing
themselves impose "a burden on the courts" and cause
"their own special forms of injustice," McLachlin
Unrepresented litigants can face
insurmountable hurdles trying to present their cases
and judges who try to help them run the risk of
appearing to favour one side, she says.
As the case wears on, the costs to
the opposing party – and the public – may rise.
Meanwhile, judges are getting "stressed and burned
out" from dealing with unrepresented litigants,
putting further pressures on the justice system,
McLachlin says in the speech.
While some "modest progress" is
being made to improve the situation, through
organized pro bono programs for example, much more
needs to be done to give ordinary Canadians genuine
access to the justice system, she says.
"The most advanced justice system in
the world is a failure if it does not provide
justice to the people it is meant to serve," she
McLachlin also says many cases drag
on too long, making the courts an unrealistic
"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. Often they cannot wait for years for an
"People look for alternatives. Or
they simply give up on justice."
While courts have promoted mediation
and arbitration as alternatives, "the fact is, some
cases should go to court" because they raise issues
critical to the development of the law, McLachlin
One bright spot is that criminal and
civil appeals in Ontario are being heard more
But criminal trial delays remain an
issue, with often "incalculable" personal and social
costs to those involved, including long periods of
pre-trial incarceration for an accused.
Then there's society in general. "As
the delay increases, swift, predictable justice,
which is the most powerful deterrent of crime,