Access to Justice - Reform Legal Aid in BC

We, the undersigned, call on the Attorney General of British Columbia to restore access and democracy to the struggling legal aid system of BC.

Since 2002, changes to legal aid funding, structure and governance in BC have resulted in reduced access to justice for women, new immigrants and refugees, and low-income British Columbians.

Legal aid funding was cut by almost 40 percent in 2002.  Since then, the legal aid system in BC has continued to experience restructuring and, more recently, further cuts.

The 2004 report Legal Aid Denied highlighted these findings:

- While the cuts and service reductions have impacted all British Columbians, they have had the greatest impact on women;

- The government takes in more legal aid revenue from a variety of sources then it spends on legal aid;

- Legislative and administrative changes have reduced the independence of the Legal Services Society (LSS) and its capacity to fulfill its mandate; and,

- Constitutional, international and human rights obligations of the BC government require an active change in policy direction to address the equality impacts of our current legal aid system -  for women, new immigrants and refugees, and low-income British Columbians.  

Since the publication of West Coast LEAF's report, the government has not introduced any substantive positive changes.  The impact of inadequate funding continues to undermine the entire justice system.  Over the past year, the LSS's continued lack of independence, the financial downturn and government underfunding have resulted in:

- more closures (5 of 7 regional offices and the Family Law Clinic in Vancouver),

- laying off of LSS staff (58 last year), and 

- civil legal aid for legal representation being available only for individuals whose income falls below a very low financial threshold and in limited family law and immigration matters. 

In April 2010, LSS cut more legal advice services, in particular by eliminating the LawLINE telephone service and eliminating the LSS portion of funding to Povnet (an on-line network of welfare advocates).

This severely limited access to public legal services has put the justice system into crisis - and one area in which this crisis is most evident is in family law.

The profound nature of family law problems and the inadequate resources available to resolve them are having a detrimental impact on women's equality in the province.  The cost of a family law dispute is beyond the means of many British Columbians - estimates put the average cost of a contested divorce in Canada at $12,562, and the average cost of a two day civil trial at $29,436.

Advocates from community organizations and transition houses anecdotally report that women regularly come back from the LSS offices having been told they were not eligible for legal aid, despite the presence of violence in their lives and their financial eligibility.

There is no legal representation through the LSS available for any civil legal issue relating to housing, welfare, disability pensions, debt (often grouped together as "poverty law" services), employment, or consumer-related legal issues.

It is clear that British Columbia is falling behind standards set in other parts of Canada and the world.

Cuts to legal aid have far-reaching implications, both for the immediate unmet legal needs of individuals and families, and on the many other services required to fill the needs and gaps that arise as a result, such as health care and income assistance costs.

Self represented litigants cost the justice system more than litigants with counsel.  Unpublished data from the BC Supreme Court tells us that where one or both parties are unrepresented in civil law matters, 17 percent actually go to full trial, compared to only 8 percent where both parties are represented.

A study done in the UK shows that legal conflicts are both more likely to afflict vulnerable people as well as to "reinforce characteristics of vulnerability (such as unemployment, relationship breakdown and illness)." Unresolved legal problems perpetuate social problems and therefore social costs.  A study done in Texas, USA, shows that legal aid services lead to economic growth in the community by increasing jobs, reducing workdays missed due to legal problems, creating more stable housing, resolving debt issues and stimulating business activity.  Reductions in legal aid spending, therefore, have a negative impact on spending and create an economic burden on the community.

These findings can be logically extended to legal aid services in British Columbia.  An investment in legal aid is an investment in our communities - and legal aid cuts are a shortsighted hazard to our health, our relationships, our social fabric and our economy.

Recommendations:  What should legal aid in BC look like?

Legal aid in BC should be a rights-based system.  A rights-based system would recognize that there is a human right to access justice and courts with adequate representation in all matters where human dignity is at stake. Human dignity is at stake in legal matters such as custody and access issues, property division in family law, spousal and child support, minor criminal offences as well as major ones, immigration and refugee matters, poverty law matters such as debt and access to social assistance, and employment matters, among others.  The government has a responsibility to provide access to legal representation in these circumstances where a person cannot afford to pay a lawyer themselves. The right to equality (enshrined in s.15 of the Canadian Charter of Rights and Freedoms), the right to security of the person (s.7 of the Charter) and the fundamental principle of rule of law require such access, not only as a matter of sound policy in a constitutional democracy, but also as a matter of law.

Mixed-model delivery.  A mixed model of delivery includes public legal services delivered through legal aid clinics, private lawyers paid through the tariff system and staff lawyers in community organizations.  A mixed model of delivery can meet the diverse needs of a diverse population, foster co-operation with a range of professionals both in and outside the justice system, create accessible public legal services through storefront clinics and interdisciplinary community organizations, and free up resources for test case litigation.

Independence from government.  Ultimately, the future of legal aid in BC demands a central organization with public accountability through a Board of Directors to coordinate private bar tariffs where appropriate, clinics specializing in subject areas with capacity to identify public interest cases, and support for non-profits and charitable organizations to hire and maintain practicing lawyers on staff. The organization that administers legal aid needs independence from government (which the current LSS does not have) in order to ensure government does not influence the administration of justice represented by legal aid.

Legal aid is a vital social service; not only because it is legally mandated and necessary for a functioning justice system, and not only because it is necessary to promote equality and justice in our society, but also because drastic cuts have cost Canadian society and tax payers in unmet legal needs and the resulting expenses of social exclusion.  Underfunding legal aid services is no longer a viable option in British Columbia. 

Thank you for your attention.  We look forward to a renewed and restored legal aid system, promoting justice and dignity for all BC residents.