The cost of justice is beyond the reach of many middle-class Canadians, the chief justice of the Supreme Court said Thursday.

'Their options are grim: use up the family assets in litigation, become their own lawyers, or give up.'—Chief Justice Beverley McLachlin

Access to courts is necessary for people to obtain justice, but the cost puts it out of reach for anyone but the rich or the poor, Beverley McLachlin said in a text prepared for delivery to a Toronto audience.

"The Canadian legal system is sometimes said to be open to two groups — the wealthy and corporations at one end of the spectrum, and those charged with serious crimes at the other."

The first group has money, and the second legal aid. She added a third group, families who can get legal aid when the welfare of children is at stake.

But that still leaves average Canadians outside the system, McLachlin said. "Their options are grim: use up the family assets in litigation, become their own lawyers, or give up."

People who represent themselves — 44 per cent of litigants in one court — pose a challenge to the courts, because they don't know the procedures. They cause delays and increase costs, for the public and for the other side.

Lawyers and judges are making "modest progress" to help ease the pressure, she said.

Some lawyers offer free legal services, class actions allow groups of people to take on big causes, there have been some moves to simplify procedures, and thought is being given to adding coverage for limited legal costs to home insurance policies.

Social problems are justice problems

McLachlin also identified other challenges facing the court system.

Beverley McLachlin, speaking at a luncheon in Toronto Thursday, says Canada's legal system faces other challenges, including mentally ill people who are clogging the system.
(Aaron Harris/Canadian Press)

Mentally ill people (who may also be drug addicts) are clogging the system, after being arrested for disturbances or other similar charges.

"Such people are not true criminals, not real wrong-doers in the traditional sense of those words," she said, but have become a big factor in the system.

Quoting an Ontario judge, she said problem-solving courts where teams try to address the underlying issues are helping.

There are mental-health courts in Newfoundland and Labrador, New Brunswick and Ontario, while B.C., Manitoba, Nunavut and the Yukon are developing such courts.

She also highlighted the delays and the related problem of the length of  trials. A murder trial which typically took five to seven days now takes five to seven months, while the average length of a typical case in one Vancouver court doubled in six years to nearly 26 hours.

Charter appeals, expert witnesses and new rules on presenting evidence have all slowed trials, she said.

She noted the Ontario Court of Appeal cut down its backlog after the judges took back control of the proceedings from the litigants.