Foreword

Summary

I am pleased and honored to have been asked to offer a brief foreword to this important new book on the experience, practice and possibility of JDR.

Irrespective of country of origin, lawyers in the Western tradition have long understood the civil action as critical to civilized co-existence. For us, a claim brought before an independent arbiter, expert in the law, is civilization's substitute for vengeance and therefore essential to social order. Our fellow citizens look to the decisions of courts to learn how the law applies to the citizen, so that they may order their conduct and affairs so as to comply with the law. Through the independent operation of the courts, society also orders itself in the certain knowledge and belief that all can have a remedy for a wrong, and that no one, no matter how powerful, is above the law.

For decades, however, and for various reasons, the law's capacity to discharge this function in a timely and accessible way has been constrained. Resourcing is limited. As a result, courthouse construction and judicial appointments have not kept pace with population increase. The law governing many areas of private activity has become more complex, and trials have lengthened as a consequence. Family litigation has proliferated in a system that was not designed with families in mind. The cost of legal services is prohibitive for most people. And criminal justice, with its constitutional imperative of a speedy trial, (quite rightly) tends to receive the highest priority.

Those of us who still militantly believe in justice and in the system that administers it should hope and press for brighter days. Unless all have reasonable access to justice and, where necessary, to the civil action, we risk finding ourselves living in a society where the strong and well-resourced will always prevail over the weak. Hence Chief Justice Dickson's caution, over 30 years ago:

[T]here cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who shall decide who shall and who shall not have access to justice.

(Supreme Court of Canada 1988)

The stakes, therefore, are high. A system key to preserving and advancing civilized society is at risk of failing those whose support sustains its public legitimacy.