---

Michelle Mann is a Toronto-based consultant and freelance writer, specializing in social justice, human rights and Aboriginal issues. A lawyer with many years of practice behind her, Michelle now dedicates herself to consulting on and writing about legal, political and policy issues, particularly those with social justice implications.

The justice system is not serving Canadians as it should, despite its importance.

The criminal justice system may be the most intrusive venue through which we might encounter the law, but access to justice goes far beyond this.

It's not only unrepresented criminal defendants whose constitutional and other interests are at stake, but also low- to moderate-income citizens.

As noted by Judge Sturgessin 1928, "American Justice is open to everyone in the same way as the Ritz Hotel."

Is Canadian justice in 2006 any different? Many legal-aid advocates would say no. Civil legal aid, which provides legal counsel for the poor across the country in matters such as family law, is seriously underfunded and differs from province to province.

Yet without legal aid we cannot pretend that the economically disadvantaged have equitable access to justice.

Equal before the law, but not in access to justice

Section 15 of the Charter of Rights and Freedoms promises that all individuals are equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination on numerous grounds.

Granted, economic status is not one of those grounds on which one is protected from discrimination, though the Ontario Court of Appeal in 2002 added in "receipt of social assistance" as a category.

Clearly, however, equality rights and social exclusion are interconnected, and poverty facilitates exclusion.

Poverty and insufficient legal aid funding contribute to exclusion from the justice system and unequal protection and benefit of the law.

The rule of law, a fundamental cornerstone of any constitutional democracy, provides that everyone is subject to the law and no one above it, yet is silent on whether the law need be substantively available to all.

National reviews have indicated that provincial eligibility criteria for receipt of legal aid tend to be at or near social-assistance income levels. Accordingly, the so-called working poor often find they are ineligible, and effectively shut out from the justice system.

No small matter, particularly if child custody or immigration status is involved.

Of course, you could always try to represent yourself, to the chagrin of the court.

In the face of this inadequate funding for legal aid, in 2005 the Canadian Bar Association (CBA) launched a groundbreaking test case to establish a constitutional right to civil legal aid in British Columbia.The CBA plans to argue a broad right to equal access to justice for the economically disadvantaged in the first systemic challenge to a legal aid program in Canada.

Ultimately, the organization wants to see legal aid recognized as an essential public service, like health care, with national standards for both criminal and civil coverage.

David and Goliath

Meanwhile, though relatively new in Canada, class action lawsuits are increasingly a choice for average citizens who want to take on large entities. Whether it is organic farmers suing over the introduction of genetically modified organisms or low-income citizens pursuing Money Mart over its allegedly illegal fees and interest rates, class actions are emerging as a powerful tool for access to justice. They're a David and Goliath story, allowing citizens to band together and fight an entity they could not battle on their own.

Take for example, the recent Supreme Court of Canada approval of the certification of a class action against Inco brought by residents of Port Colborne, Ont., suing over alleged contamination of their property. The certification, the first long-term environmental one in Canada outside Quebec, means thatresidents can go after a company they allege has polluted their community for decades.

Yet many contend that class actions benefit lawyers, who take a cut. They suggest that adequate legal aid funding for lawsuits is the better answer.

In a case like this one, where the certification issue went to the Supreme Court prior to the trial even commencing, a class action serves the purpose of allowing citizens access to civil justice they could not otherwise afford.

Judges appear to be increasingly willing to certify class actions, in addition to awarding costs in advance of the outcome of litigation where the case involves the public interest and would otherwise not get heard.

Most cases, however, do not lend themselves to class actions, and citizens should not have to depend on judicial discretion for access to justice.

The justice system belongs to all citizens, regardless of wealth, but this principle is obscured by what currently is a two-tier structure.

YOUR LETTERS

As a lawyer who for many years acted for underprivileged Ontarians, I am well aware that the federal and provincial governments' decisions to not adequately fund the justice system is adversely affecting Ontarians.

Legal aid underfunding is only one manifestation of this underfunding, but it is an important one. By way of example, when I started practicing law almost 30 years ago, the Ontario Legal Aid Plan (now Legal Aid Ontario, or "LAO") paid me an hourly rate that was more than half of what I charged fee-paying clients, and LAO paid for almost every hour that I worked on the legal-aided client's file.

Today, although I am a top-rated lawyer, LAO pays an hourly rate that is only about twenty per cent of what I charge fee-paying clients. At that rate, I pay for the privilege of acting for legally aided clients, since it costs me more to operate my law office - before I see a penny - than what LAO pays me, per hour; and so, the more work I do for legally-aided clients, the more money I lose.

Even more important, however, LAO decides how many hours it will pay for my work, regardless of how many hours I actually spend on the file. This effectively means that I have to choose either to do a low-quality job for the client, using only the hours allotted to me by LAO, or I do a proper job and lose even more money on each legal aid file.

In fact, my firm has always decided that it will provide the same quality of service to all clients, which means that we are paid even less than 20 per cent of our usual fees by LAO. In one recent case, to which I just wrote LAO asking for an increase, I was paid less than a quarter of what I billed at legal aid rates.

That works out to about five per cent of what I charge fee-paying clients for the same work. Is it any wonder that fewer and fewer lawyers will accept legal aid certificates?

But - like the old K-tel commercials - there's more!

Under our federal constitution, the courts are administered by the Ontario Ministry of the Attorney General, which pays for, among other things, the rent and upkeep of the buildings, the salaries and benefits of the support staff, and the salaries and benefits of provincial court Judges and of superior court judicial officers (which the province also appoints) other than Judges; and to offset part of this cost, in civil matters the court charges fees for many aspects of civil litigation. But is it the federal government that appoints, and pays the salaries and benefits, of the Judges of the superior and appellate provincial courts.

One interesting result is that the province can identify a need for more superior and appellate court Judges, but all it can do is ask the federal government to appoint more Judges. As an economy measure, the federal government has, from time to time in the past, delayed doing so, or refused to do so, leaving the Ontario courts with fewer Judges than the Ontario government believes is required to adequately operate the justice system.

Also, as a result of interjurisdictional disputes, the federal government has in the past refused to make dual appointments - and pay the salaries and benefits - of provincially-appointed family court Judges, to enable them to sit as Judges of the Superior Court - Family Court (formerly known as the Unified Family Court), delaying its introduction to wider areas in Ontario.

One result of this bifurcation of responsibility for the administration of justice in Ontario is the inordinate amount of time that it takes to get a civil case to trial. Quite apart from their not being enough superior court Judges, the Charter of Rights guarantees a speedy trial for criminal cases, but it does not apply to civil matters.

One consequence of this is that the criminal justice system seems to receive priority in allocation of the already inadequate resources. Instead of committing more resources to the administration of civil justice, more procedures (such as mandatory mediation) are instituted, which cost the government very little but impose a further financial obligation on the litigants. The result is that the cost of a civil action keeps going up and up, and we tell all our clients that they must ask themselves, "How much justice can you afford?"

Some lawyers also contribute to the problem. A lawyer's job is to advocate for his client, and if exhausting the other side's resources is likely to lead to your client winning, because the other side decides to drop the case, then delay, obfuscation and uncooperative conduct of the litigation is in your client's interest. However, this tactic is just as likely to work against your client, and so most lawyers would like to improve the system, and as a body we do try to do so.

Unfortunately, most possible improvements to the justice system require that additional resources be devoted to the justice system, and the Ontario government simply does not appear to be ready to contribute anything more than pleasantries to the process.

Frank P. Oster | Toronto, ON