We understand that needing doctors and medical care is just a part of life. We are happy to distinguish ourselves from our southern neighbours on the grounds that we are a society that ensures a health crisis does not result in financial ruin. In the course of our lifetime, most of us will also find ourselves in a situation where we need a lawyer. Whether it’s a divorce, a car accident, a business dispute, an eviction, or a criminal matter, one time or another, we will require a lawyer to advocate and advise us as we navigate the complex judicial system.
But for most Canadians, a legal crisis will often have devastating financial consequences. Legal questions and problems, like health-related issues, are part of everyday life, yet, in contrast to our health care system, our legal system is unaffordable and thus inaccessible to most. But it doesn’t have to be this way. A universal, publicly funded system of legal representation could be the solution.
As people with knowledge and experience of the legal system, we understand how our justice system can wreak havoc on the finances of ordinary families, whether it’s a fiancé maxing out credit cards in a hopeless effort to save their partner from deportation or a parent taking out a five-figure loan to provide an adolescent child with the most basic of defences in court. Strong and legally significant cases are abandoned just because clients run out of money to pay for their legal representation. We all know that a lawyer is essential if you want to get a fair shake before a judge, but the reality for most people is that they simply cannot afford one.
Research has shown that roughly half of Canadians over 18 will face at least one civil or family justice problem over any given three-year period. However, while the need for legal support and representation is common, few qualify for legal aid and fewer can afford the high fees demanded by our country’s lawyers. Eligibility for legal aid depends on the province or territory and the type of legal service required. To qualify, a single individual’s gross income must fall below $26,000 in Manitoba, for instance, $18,795 in Ontario, and $14,400 in Nova Scotia.
Thus, when faced with a legal problem, the majority of Canadians essentially face two choices; either self-represent or be ready to pay thousands, often tens of thousands of dollars, a price we can ill afford. And yet, our taxes pay the salaries of every other professional working in the justice system; from the legislators, to the law professors, the police, the prosecutors, the court stenographers, the prison wardens, the parole officers and so on. It seems on the surface an absurdity that the line on public funding for our judicial system is drawn precisely where it matters most: ensuring that everyone has equal access and standing before the law.
In response to the question of affordability, the Supreme Court in Pintea v Johns asked the courts to treat self-represented litigants more fairly and endorsed a set of principles ostensibly to guarantee that those who self-represent have equal access to the law. Some advocates like the National Self-Represented Litigants Project (NSRLP) have suggested lawyers “unbundle” their legal services and instead of handling whole files should offer small contracts for particular tasks. While these measures may help in some instances, we can be under no illusion that there can be anything fair in a courtroom where a self-taught legal newbie is facing off against (usually several) experienced lawyer(s). Self-representing is like trying to remove your own appendix with the help of WebMD; there’s a good chance you’re going to make things a lot worse and a very slim chance you’ll succeed.
What Canadians deserve is a system that provides universal legal representation available when it is needed. It is easy to imagine such a system modelled closely on what we have in healthcare today. Every family could have a lawyer to manage routine matters, such as home sales, wills, representation in some criminal matters and so forth, and could be referred to a more specialized lawyer if the situation necessitates further help. This would provide a far greater measure of fairness and more equitable access to legal support.
Underlying the case for a universal, publicly funded system of legal representation is the understanding that requiring a lawyer is not a failure of the individual but a part of everyday life. We don’t blame people for getting sick and needing a doctor’s help, and the same should apply when someone requires legal support. A universal system of legal representation recognizes that competent and consistent legal support cannot remain unaffordable to ordinary people; rather, public accessibility is an essential part of any fair and legitimate system of justice.
Kieran Szuchewycz is a legal assistant based in Winnipeg. In 2017, he appeared before the Alberta Court of Queen’s Bench as a self-represented litigant in Szuchewycz v Canada 2017ABQB 645 and succeeded in bringing the court to declare the candidate wealth test (Canada Elections Act) unconstitutional.
Katharina Maier is an assistant professor in the Department of Criminal Justice at the University of Winnipeg who conducts research in the area of punishment, policing, and public health.