TORONTO - Middle-class Canadians are increasingly frozen out by the cost and complexity of Canada's judicial processes, says the chief justice of the Supreme Court.

A Canadian of average means may have to consider remortgaging their home, gambling their retirement savings or forsaking their child's college fund to pursue justice, Beverley McLachlintold a crowd of about 150 in Toronto Thursday.

"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. "Hard hit are average middle-class Canadians."

Those with some income and a few assets may be ineligible for legal aid and therefore without choices, said McLachlin. "Their options are grim: use up the family assets in litigation; become their own lawyers or give up. The result may be injustice."

Access problems, long trials, delays and deeplyrooted social problems challenge a court system that, 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, more than 44 per cent 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 that 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 per cent from the previous year, according to statistics from the Canadian Centre for Judicial Statistics.

Prostitution, other sex-related offences and fraud cases take the longest 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.

National Post

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