In 2015, Beverly McLachlin, then Chief Justice of Canada, declared that we have an access to justice crisis in this country. (See [1])
The cost of legal representation is beyond the means of many. In 2015, the national average cost of a two-day trial exceeded $30,000 for the first time. The numbers have not gone down since then, and in some cases, they have gone up. (See [2])
Given the costs of getting legal representation, an increasing number of Canadians are forced to represent themselves in court, at great risk to their rights and their psychological well-being.
Furthermore, because poverty in Canada is gendered and racialized, women and other vulnerable communities are most affected by the fact that legal aid is generally not available outside of matters of criminal law.
Moreover, the inability to access the legal system means that women remain in abusive relationships and/or continue to suffer harassment and other forms of discrimination in the workplace. These forms of violence are the main reasons why women live in poverty in the workplace. (See [3])
Domestic violence has risen during the coronavirus pandemic. Women need to access justice, especially in the family law context, but they are the least likely to be able to afford a lawyer. Even the most inexperienced family lawyer in Canada bills an average of $200 per hour. (See [4])
Without access to affordable and competent legal representation, individuals cannot navigate the civil justice system effectively. While a number of solutions have been proposed, these remain inadequate without the injection of more funding into the system. (See [5])
Canada should therefore:
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Implement an Access to Justice tax on corporate litigants, equivalent to 1% of all damages recovered by corporations in litigation (whether by way of judgment or settlement). Revenues generated by the tax will be used entirely to fund legal representation for individuals (especially in family law) who require representation but who cannot afford a lawyer.
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Implement a second Access to Justice tax on all members of the legal profession, equivalent to 5% of their net income from the practice of law in excess of the current median income in Canada. As above, revenues generated by this tax will also be used entirely to fund legal representation for individuals who cannot afford a lawyer.
- Adopt legislation requiring all lawyers practising before Canada’s federal courts, tribunals, and regulatory agencies to devote a minimum of 100 hours per year to pro bono legal representation of poor and low-income Canadians.
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Ensure that women have adequate legal representation, especially women trying to escape domestic violence, by increasing the scope of legal aid and ensuring the availability of duty counsel.
- Take other immediate measures to reduce the costs, complexities and delays that plague the family law system, an area of law that encompasses both federal and provincial jurisdictions.
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[1] https://www.scc-csc.ca/judges-juges/spe-dis/bm-2015-08-14-eng.aspx
[2] https://www.canadianlawyermag.com/surveys-reports/legal-fees/the-going-rate/269815
[3] https://www.leaf.ca/leaf-files-submission-to-the-law-society-of-ontario-access-to-justice-consultation/
[4] https://www.canadianlawyermag.com/staticcontent/AttachedDocs/CL_Apr_18_LegalFeesSurvey.pdf
[5] http://www.justicedevelopmentgoals.ca/sites/default/files/canadajdg_report19_en.pdf
