March 9, 2007 – Globe and Mail

Top judge sounds alarm on trial delays

KIRK MAKIN

JUSTICE REPORTER

The Chief Justice of Canada's Supreme Court warned yesterday that the justice system is increasingly plagued by trials that drag on too long, litigants who cannot afford a lawyer and unjustifiable delays.

The problem of sprawling trials has become "urgent," Chief Justice Beverley McLachlin said in a speech to Toronto's Empire Club. "Not too many years ago, it was not uncommon for murder trials to be over in five to seven days. Now, they last five to seven months."

Civil trials have also ballooned in length, Chief Justice McLachlin said. In just six years, she said, the average length of a trial in Vancouver expanded to 25.7 hours from 12.9 hours.

Delays in simply getting a case to the trial stage come at a tremendous cost to both those caught up in the justice system and to the notion of true justice, she added.
"Not only is there an erosion in the witnesses' memory with the passage of time, but there is an increased risk that a witness may not be available to testify through ordinary occurrences of sickness or death. As the delay increases, swift, unpredictable justice -- which is the most powerful deterrent to crime -- vanishes. These personal and social costs are incalculable."

In recent years, eroding access to justice has been a growing concern within the legal commnity. Senior judges at every level have expressed alarm, but yesterday's statement -- coming from the country's top judge -- carried particular weight.

Chief Justice McLachlin deplored the fact that courtrooms are "filled" with litigants who cannot afford lawyers and instead try to navigate complicated legal procedures and arguments on their own. "Others simply give up," she said.

She said that wealthy litigants can generally afford private lawyers, and those at the lowest income levels tend to qualify for legal aid. "Hardhit are average, middle-class Canadians," she said. "They have some income. They may have a few assets, perhaps a modest home. This makes them ineligible for legal aid.

"But at the same time, they quite reasonably may be unwilling to put a second mortgage on the house or gamble with their child's education or their retirement savings to pursue justice in the courts."

Chief Justice McLachlin said that, in many cases, people simply cannot wait years to obtain a resolution to a business dispute or a family matter. The end result is that parents may consume precious family assets fighting for the custody of a child, or they may give up altogether.

"Such outcomes can only with great difficulty be called 'just,' " she said.

"It is not only the self-represented litigants who are prejudiced. Lawyers on the other side may find the difficulty of their task greatly increased, driving up the costs to their clients. Judges are stressed and burned out, putting further pressures on the justice system. And so it goes."

Chief Justice McLachlin added that the presence of a self-represented litigant has the undesirable effect of forcing a judge to abandon his or her role as impartial arbiter to help the litigant present his case.

The sources of a great many trial delays include increasing complexity of legal motions under the Charter of Rights, the use of expert witnesses and unnecessary adjournments, the chief justice said.

Chief Justice McLachlin also expressed concern about the number of mentally ill people who are cycled through jails.

However, she noted that more and more special courts are being created to deal with their problems.