Sunday, August 12, 2012

An open letter to Chief Justice McLachlin

The Right Honourable Chief Justice of Canada
Beverley McLachlin, P.C.
Supreme Court of Canada
301 Wellington Street
Ottawa, Ontario
K1A 0J1

Dear Chief Justice McLachlin:

The assumption is made you were accurately quoted.

We would like to offer our views regarding The Globe and Mail article based on The Manitoba Law Courts where our experience lies. There is no reason to believe it is any better or worse here than in other jurisdictions throughout Canada. In fact, it's likely a poster child or microcosm of what ails courts across the country.

1.0 Barriers To Legal System Must Be Lowered If Public Confidence Is To Be Maintained

Barriers to entry can take many forms. Why cannot standard legal documents such as Statements of Claim/Defence, Affidavits, Motions, Motion Briefs, to name but a few, not be registered, filed and expensed online? Is the technology not already in place? What economic impact does this have on litigants who are in a different Canadian jurisdiction much less outside the country?

Why are Daily Dockets not displayed electronically?

2.0 Not Enough Judges, Lawyers Are Expensive

If there are not enough judges whose fault? Surely, in any jurisdiction there must be qualified candidates lined up to share in the salary, pension, benefits and other perquisites of a judicial appointment.

In the past, you are on the public record as urging the legal profession to undertake more pro bono work as one way to increase public availability to the courts. Is there not another. Many litigants are well-educated. How many lawyers are prepared to allow them to draft as many of the legal documents required as possible, of course, subject to their final approval?

3.0 Action Committee On Access To Justice In Civil And Family Matters

Our preliminary research based on discussions with litigants here, as well as reading about problems with Family Court in the United States, Australia and just about anywhere else one chooses to turn, is they're in a mess. In short, a major re-think of the current business model is required .

We have not examined closely the aforementioned Committee but does it at least have some layperson direct involvement/input or, as so often happens, it is the legal system examining and passing judgment on itself in the absence of any citizen/taxpayer oversight? For example, what provision exists for men/women who have been through a divorce or child custody case to outline their experiences firsthand?

4.0 No One Will Solve This Alone

The "silver bullet" referenced in your comments could well turn out to be those citizens and taxpayers who must suffer through the inefficiencies a system that is in dire need of re-shaping. Who better to ask than the users who, in the end, are obliged to pay the cost.

5.0 Courts Have To Be Adequately Staffed

As previously noted, that is but half the equation the other being technology. The Supreme Court of the State of Indiana is about to embark on a year long pilot project that would see automated cameras and recording equipment replace the traditional court clerk in several courtrooms. Any jurisdiction anywhere in Canada experimenting with anything evenly remotely similar? Probably not.

6.0 Appeal to the Supreme Court of Canada

In the case of RCMP Officer Monty Robinson, it should be noted a petition to the Supreme Court of Canada is no guarantee of a Hearing. It decides not you.

Finally, Chief Justice McLachlin if there is one change you could make that would be everlasting it would be to do what you can to improve the audio in courtrooms. Time and time and time and ..... again we have attended Queen's Bench and Provincial Court Hearings where it is impossible, even sitting in the front row, to often hear Justices/Judges, much less lawyers and witnesses.

We were reminded yet again at the recent Douglas Inquiry where the Committee had to constantly remind Counsel and witnesses to speak louder - that is, when the audio equipment was not malfunctioning which, to date, has occurred several times. And how many millions of dollars will it cost before it has concluded?

Canadians like to pride themselves on having an open court system but is it really if the public gallery cannot hear half the time? If you can bring about the use of lapel microphones by Justices/Judges, lawyers and witnesses, you will have solved a seemingly simple but to date impossible problem.
And for that you will get our vote as the greatest Chief Justice in the annals of the Canadian judiciary.

Clare L. Pieuk

Media Citizen Journalist
Blog Master

Note: Any reply received will be reproduced verbatim. We welcome comments from our readers.
Public faces barriers in accessing Canadian courts chief justice says

Ian Bailey/Vancouver
Saturday, August 11, 2012
Chief Justice Beverley McLachlin delivers a speech at Carleton University in Ottawa on Tuesday, January 31, 2012 (Sean Kilpatrick/The Canadian Press)

The chief justice of Canada’s Supreme Court says the legal system risks a loss of public faith unless barriers to public access to the courts, especially for civil matters, are lowered.

Beverley McLachlin issued the warning Saturday during a rare news conference after a speech to the annual conference of the Canadian Bar Association.

“Being able to access justice is fundamental to the rule of law. If people decide they can’t get justice, they will have less respect for the law,” Ms. McLachlin told reporters.

“They will tend not to support the rule of law. They won’t see the rule of law, which is so fundamental to our democratic society, as central and important.”

Ms. McLachlin said the issue is especially relevant to civil courts, where there are not enough judges, lawyers are expensive – “I am not criticizing that, but it’s a fact” – and there are delays.

She said she had no quick-fix answers to the situation, which she described as occurring across western democracies, but called on lawyers, judges and government to unite to deal with the situation. The issue, she noted, is under review by the Action Committee on Access to Justice in Civil and Family Matters, which was created by the Chief Justice and is chaired by Justice Thomas Cromwell. Members of the committee include the Canadian Bar Association, Justice Canada, and the Canadian Judicial Council.

“Nobody’s going to solve this alone. There’s no magic bullet,” she said. “Everyone has to be working together.”

She said funding is part of the issue. “Courts have to be adequately staffed. You have to have court clerks; you have to have registrars; you have to have people to run the courtrooms.

“Everybody knows that and that costs some money, but you’re providing a public service. Whether it’s more or less (money), those are matters I can’t get into. I simply say courts have to be staffed. There are many other things that have to be done properly. It’s a complex picture.”

During her speech, Ms. McLachlin talked about some of what she described as the most difficult recent cases that have faced her court, referencing, among others, the Vancouver Safe Injection site appeal.

In September, 2011, the Supreme Court said, in a unanimous ruling, that the Insite clinic could stay open.

The court ordered the federal health minister to grant an immediate exemption to allow its operation.

Asked, during the news conference, if she could elaborate, she chose her words carefully. “It is difficult and it’s high profile and it matters a lot, and so it was simply one case that, I think, stood out amongst many in the year.”

She was also asked what she would say to those, in B.C. who are upset about the recent sentencing of former RCMP officer Monty Robinson, who received a 12-month condition sentence for obstruction of justice following a 2008 collision with a motorcyclist in Delta, B.C. The motorcyclist was killed.

“Appeal to the Supreme court of Canada,” she shot back, noting she could not comment on a specific case.

“There is in place a very good appeal system and an excellent set of courts of appeal across the country. If citizens think that a particular sentence is inappropriate then that is the avenue – at least appeal to the court of appeal. These issues have to be resolved in the court system.”

Ms. McLachlin, 69 and chief justice since 2000, said she has no plans to retire. Indeed, she said –“Lord willing”– she will be back at next year’s bar association meeting in her role.


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