'We're in trouble': Advocates urge Ottawa to help close the access-to-justice gap

  • April 18, 2021

By Olivia Stefanovich for CBC News

Justice advocates want the federal government to use the federal budget to invest new resources in the legal system — which is experiencing a rise in self-representation, adding to the court backlog created by the pandemic.

The number of self-represented litigants involved in civil and family court cases has risen to between 50 and 80 per cent of all such cases over the past decade, according to Justice Canada statistics from 2016.

Legal advocates say those numbers are expected to grow as people struggle with the financial pressures of the pandemic. 

Experts say middle class Canadians are self-representing in court more and more because they can't qualify for legal aid and they can't afford to hire a lawyer.

Former Supreme Court of Canada chief justice Beverley McLachlin said she worries about access to justice.

"I do believe it is a crisis," she said.

"There's no magic bullet and there's always going to be some people, I imagine, who feel they haven't had full access. But we need to do much better than we are doing."

McLachlin said federal, provincial and territorial governments could consider a new system built along the lines of public health care to improve access to justice for ordinary Canadians.

"We could think about something the same, I suppose, at the legal aid level, or other matters that affect access to justice," McLachlin said.

The high bar set for qualifying for legal aid, and the services legal aid lawyers offer, aƒre also problematic, she said. 

"One worries about the efficiency of the legal aid schemes in terms of whether they can really provide the excellent care or the excellent service that the lawyers would like to support," McLachlin said. 

While some groups are working to provide resources for those who are self-representing, legal advocates say it's not enough to offset the needs of people who can no longer afford lawyers to navigate the complexities of the court system.

Scales of justice unbalanced, lawyer says

John Struthers, president of the Criminal Lawyers' Association, said Ontario's court backlog is reaching 100,000.

Struthers said the situation is being worsened by delays caused by pandemic interruptions and a 30 per cent cut to legal aid by the Ontario government.

"We're in trouble and we need help," Struthers said. "We're very, very concerned that we have tens of thousands of people trying to negotiate a criminal justice system on their own."

Struthers said cases involving self-represented litigants take longer, since they have to learn the system as they go.

The way funding is allocated now in the system leaves the scales of justice heavily weighted to one side, he said.

"No one gets very far by saying we are defending the defendants," he said.

"But effectively the entire system needs to have an equal, fair, balanced system in order to process people."

Struthers said he would like to see the federal government bring back the Law Commission of Canada, which was scrapped by former prime minister Stephen Harper's Conservative government.

The commission looked at problems facing the justice system and recommended solutions.

"It's an enormously positive step, if they intend to do this," Struthers said.

Justice Minister David Lametti declined an interview request with CBC News. 

In an email statement, Lametti's office said the Liberal government increased funding for federal immigration and refugee legal aid funding to $27.7 million in 2019 and $28.2 million in 2020 and 2021.

In 2019, the department said, it gave a top-up of $25.7 million for immigration and refugee legal aid services in Ontario after the provincial government made cuts.

It also said last fall's economic statement proposed to increase the government's legal aid support for provinces and territories, and it will be providing top-ups for immigration and refugee legal aid services in the coming year.

"Our government is committed to access to justice for Canadians and legal aid is an important component of that commitment," the statement said.

High legal costs forcing self-representation

Jennifer Muller said she had to give up her lawyer after spending six weeks and $20,000 on her family law case. 

"I could see the writing on the wall," said Muller, a board member with the National Self-Represented Litigants Project, which helps people who represent themselves in court. "It quickly erodes all of one's savings."

Muller said most middle-income people can afford a simple, transactional type of legal service, such as drafting or settling a will.

But family law matters are another story because they can last a long time and legal fees can easily amount to hundreds of thousands of dollars, said Muller.

Muller said she wants to see the federal government step in.

"It isn't robust enough to be able to really support or help the needs of all of the lower or middle class, middle-income earners, really, who are unable to afford legal services," Muller said.

The average cost of a lawyer for a two-day trial is $30,000, according to a 2015 survey by Canadian Lawyer Magazine.

Muller said the legal system is also hard to navigate for non-lawyers, regardless of their education levels.

"It was like trying to read things in another language," said Muller, who has a masters degree.

"Without legal training, it's very, very difficult and certainly impossible to level the playing field when there may be a lawyer on the other side of the courtroom. I'm not sure if we would call that justice."

Legal coaching services filling the gap

Lawyer Marcus Sixta created a service called Coach My Case to help self-represented litigants navigate the justice system. 

It allows people to hire someone as an adviser to help them draft documents, file papers electronically and navigate the system.

"There's a huge gap here in access to justice and I believe that the gap needs to be addressed by doing things a little bit differently and offering different types of services," said Sixta.

Sixta said he was shocked to see how many people were representing themselves while he was practicing family law.

Ian Holloway, dean of law at the University of Calgary, said such coaching services can go a long way toward helping people find their way through a "pretty frightening" system.

"The rule of law is one of the things that makes Canada one of the most desirable countries in all the world in which to live, but the rule of law is predicated on ordinary Canadians having access to the legal system," said Holloway.

"If the system is structured in such a way that ordinary Canadians don't have access to it, then the underpinnings of the whole basis of the rule of law look a lot more shaky."

Justice system needs to adapt

Holloway said he doesn't believe the justice system got worse — rather, society became more complex and the courts failed to keep up.

"I sometimes say to law students that one of the challenges is that we're pouring new wine into old bottles," he said.

Holloway said the justice system needs to acknowledge that not every legal dispute needs a fully trained lawyer. He said there is a lot more room for paralegals, legal assistants and legal technicians who can provide representation services.

Farrah Darosa began self-representing in a family court over child custody matter in 2012 after paying thousands of dollars in legal fees and not getting results.

"I wasn't where I was supposed to be," Darosa said.

After using coaching services through Sixta, Darosa said she saved tens of thousands of dollars and has been able to successfully advocate for herself in court.

"I definitely don't regret self-representing," Darosa said. "I only wish I had done it sooner in the beginning. It's very empowering as a mom and as a woman."