The right to access to justice: expanding the court’s protections against a complex law

Abstract

The Canadian legal system has become increasingly inaccessible to those it governs. Cost, delay and complexity have created barriers preventing meaningful access to justice. To date the courts have recognized cost and delay as barriers that trigger a constitutional right to access to justice. This thesis argues that this constitutional right should be extended to include the barrier of complexity. Grounded in an expectation that Canadians understand both their legal rights and responsibilities, the complexity of Canadian laws and processes has created a fundamental contradiction where persons are required to adhere to laws that they cannot understand. Using both a qualitative content analysis research approach and a doctrinal analysis research approach, this thesis explores the history of complexity, its impacts on specific populations, and its modern day treatment by courts. It then concludes by providing a legal framework against which the constitutional right to access to justice can be extended to include the barrier of complexity.