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March Pages 2017

THE ADVOCATE V O L . 7 5 P A R T 2 M A R C H 2 0 1 7 203 So let us deal with reality. It is a fiction to suggest that anyone can know all the law. This is reflected in our profession. The past 40 years have seen the practice of law becoming ever more specialized. The halcyon days of the “generalist” are long past. Within the many divisions of the law there are specialties, subspecialties and sub-subspecialties. The point is that the laws of this country create an overwhelmingly daunting and labyrinthine domain in which the vast majority of people require legal assistance to traverse. A great many can simply not afford this assistance. For them, equal access to the law, the very promise of the rule of law, has become unobtainable. The notion of equal access is chimerical in the absence of legal advice. On the issue of accessibility some have said that in this age of technology, computerized “self-help” guides are of valuable assistance—that legal “do-ityourself” manuals can fill the gap. This suggestion is risible. Studies have shown that such guides are of little assistance to the average person. Mere comprehension will often be a barrier. Moreover, legal issues do not lend themselves to simplistic solutions. They are fact driven, nuanced and subject to a host of rules, procedures and laws which make for a very dynamic and uncertain process. This is why persons with legal training are essential to the proper functioning of the justice system. A stark illustration of the under-funding of legal aid is seen in the plethora of unrepresented litigants currently before our courts. This situation is at an all-time high and carries with it inefficiency, delay and greatly increased costs. Nor are these costs simply financial. There will inevitably be a price paid in pure justice terms. Our system is neither designed nor equipped to cope with the unrepresented litigant. It is a fiction to suggest otherwise. Another myth to be dispelled is that the provision of legal aid is not an essential service. The Doust Report put paid to any such assertion. Mr. Doust was emphatic on the point: “The legal aid system will remain precarious until it is fully recognized as an essential public service on par with healthcare, public education, and social assistance.” Len Doust’s words echo those of Chief Justice McLachlin, who stated in 2002: “Providing legal aid to low-income Canadians is an essential public service. We need to think of it in the same way we think of healthcare or education. The well-being of our justice system—and of the public’s confidence in it—depends on it.” The ills that flow from the failure to properly fund legal aid are countless. To attempt to catalogue them is far beyond the scope of these remarks. The


March Pages 2017
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