ST. JOHN'S, N.L. — Legal costs have risen to the point where nearly half of Canadians going to trial do so without a lawyer, creating a lack of adequate representation that has reached "epidemic" levels, says the country's top judge.

Judges throughout Canada on some days see up to 40 per cent of litigants who represent themselves at trial, armed with a weak or non-existent grasp of the law, said Supreme Court of Canada Chief Justice Beverley McLachlin.

"For average Canadians, access to justice still remains an ideal, not a reality," McLachlin told the Canadian Bar Association's annual conference Saturday.

"In order to maintain confidence in our legal system, that system must be, and must be seen to be, accessible to all Canadians - not just large corporations, not just people charged with serious crimes."

The increasing number of Canadians attending trial without legal advice requires judges to spend more time explaining the law, and combined with a glaring shortage of judges countrywide, has led to "judicial burnout," McLachlin said.

"The judiciary of Canada is trying to cope with this epidemic of lack of representation," she said.

There are currently 43 vacancies on federally appointed courts, some of which have been outstanding for more than a year, McLachlin said. In Ontario alone, there have been 11 Superior Court vacancies since February 2005, she added.

McLachlin said there is a growing trend for cases to be diverted out of the court system in favour of arbitration and mediation. She said such diversions should be seen only as part of an overall solution rather than a complete answer to the judicial system's woes.

One judge should be appointed each week just to keep up with those retiring from the profession, much less catch up on the enormous backlog of cases plaguing Canada's courts, she said.

"Rather than let things get so bad and then have a big push to make a lot of appointments and sit back and say, 'Well, now we've done our job,' the job is never done," she said at a news conference after her speech.

"You've just got to continue to do it on an ongoing basis."

While McLachlin has often bemoaned the lack of judges to oversee cases, she said the problem has only increased during her six-year tenure as chief justice.

Lawyers should consider whether their fees have pushed access to a fair trial out of reach for most Canadians, she said.

"These are people who come to court without legal representation and sometimes without any legal advice, so the judge is faced with telling them what the law is, telling them what procedures are available to them and trying to help that person while remaining as an impartial arbiter."