Chief Justice of Canada Beverley McLachlin believes reform is needed to reduce court backlogs, aid the increasing number of unrepresented litigants and improve the public's ability to use the legal system.
The Supreme Court of Canada justice was in Vancouver Wednesday for a forum sponsored by the Law Society of B.C. to express her concern that access to justice is in jeopardy.
Barriers are everywhere -- exorbitant costs, high legal fees, needless delays and archaic procedures. The legal system is becoming a last resort for those who can afford it, not a remedy for those who need it.
Yet it's not the poor primarily who are losing their right to a day in court; they often qualify for legal aid or pro bono help.
It's the middle class that takes it in the teeth: Too well off for a handout and not rich enough to pay the cost of exercising their constitutional rights.
On the criminal side, we need only look at the five-years-and-counting delay in the trial stemming from the raid on the legislature to realize there's a problem. Our rights to a fair and speedy trial or a hearing to get justice from a jury of our peers are going the way of the dodo.
Across Canada, as McLachlin pointed out, access to justice is problematic and legal institutions must look at ways of making themselves relevant and affordable in the 21st century.
The United Kingdom, she noted, is further down the road of modernizing the judicial machinery bequeathed by Henry II, but is no closer to solving the problems.
In the civil realm, England introduced user fees. But rather than improve access, the fees reportedly further discouraged use, causing court services to accumulate a huge deficit as people stayed away in droves.
Result: Festering resentment and a situation some argue is worse than before.
Ontario, too, has introduced reforms, giving judges more power to move cases along, limiting the pre-trial discovery process and making a host of other changes in the provincial civil system.
Queen's Park also streamlined procedures in large criminal trials, assigning Crown attorneys to provide legal advice to police at an early stage and creating a mandatory system of peer review in complex prosecutions so prosecutors don't make expensive decisions alone.
Good changes? We'll see.
Much is happening in B.C. as well, where civil, family and criminal reforms have been under discussion for most of the decade. But real change comes at a snail's pace.
The proposed amendments to the province's civil procedures, for instance, have sparked a virulent debate between many in the legal community and the champions of those changes, allies deputy attorney-general Allan Seckel and B.C. Supreme Court Chief Justice Don Brenner.
The increased case-planning meetings and front-end attempts at mediation will only increase costs for litigants, discouraging more people from exercising their rights, some lawyers say.
They see the English experience as a bad omen and raise numerous objections to the envisioned rules regime. Although the current civil proposals have been in the works for years, there is every reason to believe they may not be approved before the provincial election in May.
In the meantime, B.C. continues to impose court fees that are the highest in the land and truly do prohibit all but the wealthy from litigating. Access to justice?
I would start by reconsidering those fees and eliminating the provincial tax on legal services.
Still, there is a passel of thorny, complicated issues entangled here and no one has all the answers.