The Right Honourable Chief Justice of Canada, Beverley McLachlin, P.C.
The Supreme Court of Canada
301 Wellington Street
Dear Chief Justice McLachlin:
Both Judge Gomery and you are to be commended for speaking out on an issue of such critical importance to Canadians - the accessibility and integrity of our legal system. Without it we have nothing.
As a layperson with no legal training I can address the access issue firsthand. The case in question (Manitoba Court of Queen's Bench File No. CI01-05-41995) involves an allegation the Canadian taxpayer funded Manitoba Metis Federation (annual budget approximately $25 million) was defamed by private citizens. To date the MMF has spent well over $100,000 in legal fees for litigation which will ultimately be shown to be frivolous and vexatious.
This is not about defamation quite the contrary. After anonymously receiving very disturbing documentation (turned over to Manitoba's Auditor General and subsequently transferred to his Ottawa counterpart), the lawsuit was launched.
It has been a crash course in learning about Affidavits, Motions, Cross Examinations, Examinations For Discovery, Written Interrogatories, Court Orders and most vexing of all The Manitoba Court of Queen's Bench Rules. I would particularly like to thank Winnipeg attorney Mr. Jeff Niederhoffer who in the early stages represented me until it was wisely decided not to mortgage my financial future on such an ill-advised and conceived lawsuit. He is a person of unquestioned integrity and ethics - a model for young lawyers beginning their careers.
Throughout this trying experience, my respect and confidence in Manitoba's judiciary has remained unshakable. While not always agreeing with Court of Queen's Masters Monin, Cooper, Lee and Sharp the law is the law.
Perhaps I can share two experiences with your colleagues and you both involving Madam Justice Deborah McCawley. The first was early March last year not long before I became self-represented. Counselor Murray Norman Trachtenberg had filed a Motion in an attempt to force me to turn over any and all documentation in my possession and reveal the source(s). It was necessary to ask for an extention so I could prepare a Motion (granted one month) to argue why I should not b e compelled by the courts to do so.
I began by stating I had the upmost respect for the law as evidenced by an unblemished record which does not include so much as an unpaid parking ticket. Expecting to be cut off at any moment, I proceeded to point out how in this instance I believed the system was being misused to legally bully, harass and intimidate individuals. With all due credit to Justice McCawley, I was allowed to finish my comments. I recall standing before her amazed I was able to say what I did. Toward the end of the Hearing, Madam Justice McCawley addressed Counselor Trachtenberg which left me thinking, "Thank God someone finally understands what this case is really about." To paraphrase My Lady she noted:
(1) The litigation had gone on far too long and she was determined to move the process along
(2) She was somewhat taken aback by the volume of filings by Counsel for the Plaintiffs
(3) It appeared there was more to this lawsuit than defamation
My enduring memory is of Counselor Trachtenberg eyes cast downward blushing slightly.
Approximately a month later, I again went before Justice McCawley to have my Motion heard. Unfortunately, I lost and had to provide 1,572 pages of documentation to Counselor Trachtenberg which I subsequently did.
On three or possibly four occasions, Her Honour repeated she was concerned about me and could not allow me to proceed to Examination For Discovery with documents which had been obtained by questionable means. When I expressed concern some could disappear or perhaps be shredded, she advised to carefully catalogue everything and, if necessary, the items could be subpoeaned at trial.
An unwavering respect for Manitoba's judiciary has encouraged me to enroll in my first law course (Defamation 101?) this Fall. Former attorney Mr. Niederhoffer noted some time ago in certain cases the Federal Government will pay the tuition for senior citizens who qualify to enter law school. Since I'm almost there, I may just do that although with all I have been through and learned they should fast track me directly into third year.
Clare L. Pieuk---------------------------------------------------------------------------Remarks of The Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
To the Council of the Canadian Bar Association
at the Canadian Legal Conference
Saturday, August 11, 2007
Access to Justice
Next, a matter that is close to my heart, as I know it is to yours, as officers of the Canadian Bar Association — access to justice. I have spoken about access to justice many times before, and will continue to do so, because access to justice is the essential foundation for our legal system to function and to maintain the confidence of the public it serves.
First, let me outline some of the most pressing concerns about access to justice. These are issues which many of you will have experienced in your day to day practice.
The cost of legal services limits access to justice for many Canadians. The wealthy, and large corporations who have the means to pay, have access to justice. So do the very poor, who, despite its deficiencies in some areas, have access to legal aid, at least for serious criminal charges where they face the possibility of imprisonment.
Middle income Canadians are hard hit, and often left with the very the difficult choice that if they want access to justice, they must put a second mortgage on their home, or use funds set aside for a child’s education or for retirement. The price of justice should not be so dear.
Self-represented litigants, some driven by cost, and some who simply prefer to represent themselves, place burdens on the courts and other parties to litigation. Judges must ensure that unrepresented litigants are treated fairly, while at the same time, not appearing partial to one of the parties.
Delay plagues both the civil and criminal justice systems. On the criminal side, delays may result in serious charges being stayed, since the Charter guarantees the right to trial within a reasonable time. Delays can result in long periods of pre-trial custody for accused persons. Even where an accused person is out on bail prior to trial, the stress caused long delays and unresolved charges may be considerable.
In both criminal and civil cases, witnesses are less likely to be reliable, as memories fade over time, diminishing the quality of justice. On the civil side, people need prompt resolution of issues so they can move on with their lives or businesses. They cannot wait years for their cases to be heard.
Long trials also place a strain on the courts and the parties in both the criminal and civil justice system. In criminal trials, pre-trial motions and evidentiary questions have become more and more time-consuming. In civil cases, the discovery process, in itself time-consuming, leads to more evidence being placed before the trier of fact, lengthening trials. Expanded use of expert evidence has also contributed to longer trials.
We need to come to grips with these problems, to enable the justice system to provide
accessible, efficient and timely resolution of legal issues for the public it serves.
In the past year, since I last spoke to you on this matter, we have seen an important change.
We have moved beyond the stage of discussing the problem to the stage of doing something about it. Across the country, at both the provincial and national levels, concrete steps are being taken to improve access to justice in the civil and criminal courts.
It is gratifying to see lawyers, law societies, and governments working together to strengthen Canada’s justice system. The judiciary recognizes that it must also play a part in improving access to justice. Everyone must be on the same track. The only way to achieve real and lasting results is for the bench, the bar and government to work together, all in the context of the community which we serve.
To this end, we have met with your President, Parker McCarthy. In June of this year I met with Parker, and several other representatives of the Canadian Bar Association. We had a wideranging and fruitful discussion about our shared concerns about access to justice – the problems I have already described of cost and delays which impair access to justice, and hurt public confidence in the justice system. We agreed that this is a problem which no one group in the administration of justice can solve alone. We must work together as judges, lawyers, attorneys-general and other elected representatives to solve these problems. At the end of the meeting, the Canadian Bar Association, and the judiciary made a commitment to work together with other players in the justice system to improve access to justice for all Canadians.
We recognize that the problem is multi-faceted and complex. We also recognize that each constituency — bar, bench, and government — are and must remain independent. It is neither necessary nor desirable to cede independence. It is both necessary and desirable that we talk to each other and work with each other, so that all the facets of the justice system — bench, bar and administration of justice — can together provide Canadian men, women and children with excellent and affordable justice.
Thank you. Merci
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