Taking Our Chief Justice to Task: The World Justice "Project"


Yet again, the Chief Justice of our Supreme Court, Madame Beverly McLachlin, is taking our government and our lawyers to task.

Addressing the current Canadian Bar Association annual conference in Halifax, the Justice pointed out that "Canada placed ninth in a recent ranking of 12 European and North America countries" respecting access to Justice, going on to explaining that the finding, by the "World Justice Institute"  underlines the fact that justice is increasingly available only to the wealthy or small minority who are so poor that they qualify for legal aid programs.

Well, first of all, the report is not from the "World Justice Institute", but, rather, by the World Justice Project.  Imagine my consternation when I sought out the study commented on, finding no such study existed.  A broadening of my search finally discovered the World Justice Project 2011 Rule of Law Index.

Which is interesting, if you actually read it, and don't rely on the sound-bite offered us from the press and our Chief Justice.

You see, it appears that we are actually doing pretty well in Canada.

According to the report:
"Canada is among the top ten countries in the world in four categories of the rule of law: limited government powers, order and security, open government, and effective criminal justice. Corruption is minimal and the country generally observes fundamental rights."
It is true, however, that Canada - while still a beacon on a world-wide scale for our Justice System, lags somewhat behind the other high-ranking countries relative to "access to justice", resulting, according to the report, from shortcomings in the affordability of legal advice and the lengthy duration of civil cases.

But here's something to think about.

The report comments, appropriately, that one of the fundamental principals of establishing the "Rule of Law" is that our laws are clear, easily accessible, and predictable.

This, I would suggest, also impacts on issues of "access to justice".

Because, like most professions, the cost of assistance is directly related to the effort required to provide that assistance.  And clear and consistent laws provide for quicker and less expensive legal assistance.  It provides for laws which are easier understood by the public in general, and hence requiring less need to resort to formal legal advice.

To demonstrate:

On every highway in Canada we have posted speed limits.  If you drive faster than said limit, you will be penalized by way of ticket.  This law is well understood, and very few people seek out legal advice for such matters where they come in conflict with the law - and if they do, lawyers can provide assistance, usually, quickly and at an affordable level.

Now then.

Lets look at the issue of spousal support in Canada, shall we?

The Divorce Act of Canada provides a broad framework to determine spousal support.  Basically, it suggests reviewing several factors, however, ultimately it is up to a Judge to determine what is "fair" all things considered.

Now then.

Our august Supreme Court of Canada, shortly after the last major amendment of the Divorce Act in 1985, released three decisions that lawyers referred to as the "trilogy" relating to spousal support, in the decisions of Caron, Richardson, and Pelech.  Those decisions provided a relatively clear and well-considered review and application of the considerations in the Divorce Act.

Which was good.

However - in what can only be described as the most tortured act of legal gymnastics in Canadian legal history, since then, the politicized Supreme Court of Canada has rendered a series of decisions, not overturning the trilogy, but suggesting that "we know that you believe you understand what you think we said, but we're not sure you realize that what you heard is not what we meant."

Over the past 20 years, the Supreme Court of Canada has reworked the concept of spousal support, into a mish-mash of what can only be called gibberish until it means, well, whatever you would like it to mean.

But it gets worse.

You see, if you and your spouse come to some agreement on this issue, you can't just have a lawyer paper it up for you and then rely upon it.


Our Supreme Court of Canada has opined that your agreement will not be valid unless there has been a full and complete disclosure of all financial information relevant to the issue of support.  And, if your lawyer doesn't insist upon it - and if the lawyer complies with the direction of our top Court, the lawyer certainly is required to review that information himself or herself, well, two things are likely:

a) The agreement will not be respected by the Court; and
b) The lawyer will be considered negligent by the Court.

So now.

Even relatively modest divorce files become massive disclosure missions for lawyers - and in seeking out and reviewing that disclosure - well, you guessed it, legal costs increase.

I've appeared before the Court of Appeal in our Province, where I have given every single piece of information requested by opposing counsel, submitted to examination of my client by opposing counsel, and still been met with admonishment from the bench as to why I didn't give MORE information yet.

All of this leads to greater delays and greater effort on the part of lawyers - not because they want to, but because the Courts tell them to.

And all of this leads to uncertainty.

And this leads to more effort to advise a client.

And this leads to longer trials.

And this leads to diminished access to Justice.

And - here in Alberta - we've recently "improved" our Rules of Court.  And now we find that the forms provided in the Rules are being rejected by Court Clerks at the request of Judges who find the Rules inadequate in responding to the needs of litigants - and, so, lawyers are required to revise documents again and again in response.



If you have concerns respecting "access to justice" My Lady, perhaps, just for a moment, you might want to take a good look in the mirror - and ask this fundamental question:

"Why isn't it easier for a lawyer to deliver timely and concise advice and assistance to their clients?"

And then catch yourself before you complain about the Government or lawyers.