Ordinary Canadians face difficulties in accessing our costly and complex justice sys

[Roy D. Cooke, Sr]

http://www.torontosun.com/2011/08/26...ession-deja-vu

Legal profession deja vu

Ordinary Canadians face difficulties in accessing our costly and complex justice systems



By Alan Shanoff ,Toronto Sun First posted: Sunday, August 28, 2011 12:02 AM EDT | Updated: Friday, August 26, 2011 09:05 PM EDT

Earlier this month Governor-General David Johnston gave a stirring speech at the Halifax Canadian Bar Association meeting.
He chided lawyers that “for many today, the law is not accessible, save for large corporations and desperate people at the low end of the income scale charged with serious criminal offences.”
I would have added the wealthy to the list, but that is a mere quibble.
The point is that we are reminded each year, not just by the governor general but by many distinguished judges, of the difficulties ordinary Canadians face in accessing our justice systems: Cost, complex court procedures, and delays.
Yes, there has been some progress. We have some new civil justice rules.
There are initiatives to reduce the number of appearances in criminal cases.
But the changes are occurring at a glacial pace and have little meaningful impact.
Johnston reminded lawyers that in exchange for having a monopoly on providing legal services, lawyers are “duty bound to serve our clients competently, to improve justice and to continuously create the good.”
He warned them if they fail to meet their obligations “society will change the social contract” and if they don’t “embrace new ideas and innovation” then change will be “forced” upon them.
Unfortunately, instead of a feeling of optimism, I have a feeling of deja vu when I hear of such speeches. I remember hearing similar admonitions in law school in the 1970’s.
It’s easy just to criticize, so instead here’s my list of suggestions:
• Make our laws easier to understand. Put them in plain English.
• Get rid of the technical cumbersome procedures that inhabit our legal systems.
• Keep court offices open at least one evening a week or one day each weekend, so people can file their legal papers without missing work.
• Put a lawyer in each court office to provide free advice on procedural and minor legal matters.
• Kick lawyers out of small claims court. Leave it to paralegals and self-represented litigants.
• Make it easier to challenge lawyer’s bills. Require lawyers to provide estimates of their bills at the outset, along with litigation budgets. Utilize standard form retainer agreements approved by the Law Society. Require lawyers to provide each client with a standard form disclosure document, explaining the alternatives to litigation
• Re-examine the need for adversarial contests in various types of claims such as minor employment disputes. Carve out more areas for paralegals. Why shouldn’t properly trained paralegals be allowed to handle simple divorces or wills?
• Courts and judges should embrace modern technology. Why can’t most appearances before trial be handled via electronic means, allowing lawyers to remain in their offices and preventing waiting in court?
• Finally, allow cameras in lower courts; it will serve to educate the public and keep everyone on their toes.
In 2008, Chief Justice Warren Winkler of the Ontario Court of Appeal chided critics saying, “There is no shortage of critics who speak of nothing besides its (the civil justice system’s) failings. But when they do, they distort and oversimplify.”
Perhaps, but as even he has conceded “the sombre fact that we are now dealing with a civil justice system that fails to be accessible to many, and upon which pressures continue to mount. The number of people who cannot afford a lawyer, and who are forced to represent themselves in important legal proceedings has ballooned in the last 10 years. Chief among the reasons for this development is the cost of litigation. Even people of ordinary means can no longer afford to pay a lawyer to see a case through to the end.”
The bottom line is real change can happen, but only if those in power allow it.