FORSETH – The case for considering legal aid an essential public service

Premier John Horgan with Attorney General David Eby. (Image: Facebook)

WE ARE CURRENTLY in the midst of Access to Justice Week, to which B.C. Attorney General David Eb, stated he was thrilled at its creation and welcomed to all who have “… gathered to take part in dialogue and information sharing on the justice system over the course of this week.”

The University of British Columbia (UBC), Thompson Rivers University (TRU) and the University of Victoria (UVIC) are taking part in conversations around the province to identify and develop ways to increase access to justice.

Attorney General Eby stated that, “… barriers facing access to justice cannot be overcome without a concerted and collaborative effort to create change.

He then went on to say, “My ministry is working to ensure that everyone in B.C. experiences equal access to justice.

Is that accurate, however … is it true?

According to a news story from the CBC earlier this year … the BC government has pledged, in its 2018 budget, to increase investments in the justice sector, promising a total of $56 million over the next three years, stretching across programs from Indigenous services to increased staffing.

But, according to the Canadian Bar Association’s B.C. branch … while the additional funding is welcomed, it only covers a quarter of what is needed to provide services to families and others who cannot afford legal fees.

That statement followed a paper which the Law Society of B.C. released on March 3, 2017.  The document, A Vision for Publicly Funded Legal Aid in British Columbia, was very clear in a number of points that government seems at least from the outside looking in, to be ignoring.  For example, it states at the outset that:

Some of Legal Aid’s economic, social, and philosophical value won’t be easy to quantify, and that in fact it cannot be reduced to a line item in a provincial budget.  Even in saying that, however, we also need to recognize the limited resources society has to direct to a wide range of public goods, and strive not to treat the justice system or legal aid as black boxes that are immune from scrutiny.

What a dilemma!

In going back and looking at funding for legal aid, which I have done on several occasions in the past, there is no arguing that 30 odd years ago government hit it with several funding cuts … this despite growing demand.

In 1997, according to the Law Society of B.C., the government froze funding, requiring the Legal Services Society to eliminate its $18 million deficit by 2001.  Then in 2002, the provincial government reduced funding to the Legal Services Society by nearly 40 per cent.

The result of this was that poverty law services were eliminated … family law services were curtailed … a workforce was reduced in size by 74 per cent … and 60 branch offices were replaced with seven regional centres.

Funding has always been, and remains, a critical issue for a sustainable legal aid.  Since the mid 1990s there has been a reduction in both provincial and federal spending on legal aid.

Again, quoting from the 2017 paper … some people qualify only if they are living at subsistence levels (social assistance), leaving out the working poor.

Eligibility rates do not keep pace with inflation and budgetary targets are often met by offering legal aid for fewer matters, to fewer people, or only partial assistance or repayment requirements.

Justice can be achieved when people have access to knowledge that allows them to manage their affairs in a fashion consistent with their rights and obligations.

And just as importantly … the rule of law and the promise of a just society are also supported by helping people live lives in a manner that reduces the need to interact with the formal civil and criminal justice systems.

Would that not then indicate that legal aid can help to accomplish those objectives, but only if adequate funding is provided?

Here’s the thing: government, big business, and those with financial resources in excess of what it costs to live, have the funds to seek justice.  The Law Society paper of 2017 says … these powerful forces in society have access to the full arsenal of means to manage risk and resolve disputes that implicate legal rights and responsibilities.

As we have just read, however, for those who are the working poor, justice is not something to even dream of achieving.  The hardship caused by the role of money in our justice system falls far short of addressing the unmet legal needs in society.

I noted with great interest a fact that I had not, up until the point of reading the 2017 document, even considered.

The fact that healthcare and education are publicly funded systems masks the true costs of those systems from its users. 

However, with the exception of legal aid, and few other options … the cost of accessing justice is borne by the individual with no assistance from society.  When one accounts for all the necessary expenses of life, most people will have little money left to afford traditional systems of justice or access to many of the services lawyers provide when addressing a legal issue.

Prior to healthcare being funded through taxes raised by all levels of government … people would not be able to afford the cost of accessing hospitals, walk-in clinics, or the services of doctors … and the same could be said for education.

Again, quoting the Law Society of B.C., “… as a society we have recognized that healthcare and education … are necessary for the well-being of society … when individuals enjoy equal access to justice, the welfare of society is enriched and its core values are secured.”

That costs money, however, and as already stated, governments of all political stripes appear to be more interested in providing LESS funding.

And surprise, surprise, we certainly are not going to hear about that.  No, instead government uses their typical flashy media extravaganzas to announce things they should be doing.  Things like paving highways, providing necessities in seniors home, building classrooms, etc.  You know, the things of good governance.

Here is what the Law Society’s Vision for Public Legal Aid in British Columbia looks like:

The rule of law is the foundation of our democratic society. Every person must have the opportunity to understand how the rule of law affects their daily lives. Legal Aid is an essential service necessary to ensure all persons have that opportunity and understand its effect and to access our justice system.

A survey by the Law Society indicated that virtually all in the legal field thought government ought to view legal aid as an essential public service, and especially when it came to the following areas:

  1. custody/guardianship 49 per cent
  2. mental health reviews 47 per cent
  3. child support 46 per cent
  4. access/parenting time 46 per cent
  5. and child abuse 45 per cent

The issues and problems with Legal Aid are not unknown to the BC NDP government … nor were they by the Gordon Campbell and Christy Clark Liberals before them.  I’m not guessing at this … it’s fact … as this journey over just four years shows:

JULY 7, 2014

we have almost 95 per cent of people in our family courts unrepresented … single moms cannot get a lawyer. They are expected to go up against former spouses who very often can afford to pay a lawyer … roughly 40 per cent of people who are accused of criminal offenses are forced to fend for themselves in court because they can’t afford a lawyer.

SEPT 26, 2016

Mother says abduction case highlights B.C.’s family legal aid shortcomings … to be eligible for legal aid in family law cases … the person must also meet a financial eligibility test — a level that is essentially set at the poverty line … very limited level of assistance for people in emergencies … of those who apply for legal aid, 75 per cent are women … three out of five applications are refused.

MARCH 8, 2017:

It is essentially broken as it is unable to adequately provide individuals with justice in the courtroom“.  B.C. is not meeting needs … only one per cent of government expenditures are directed into the legal system. Funding has been cut since 2002 when the government closed 24 courthouses and the Legal Services Society closed 45 offices.  “Today, there is no fat to trim and the system is seriously frayed,” states the CBABC report.

JULY 2017:

Angela Marie MacDougall, the executive director of Vancouver’s Battered Women’s Support Services, said she often refers her clients to the legal aid society but remains concerned for the future. “Temporary isn’t sufficient when we’re talking about a vulnerable population.

Ms. Birgit Eder, a member of the Trial Lawyers Association of British Columbia’s legal aid action committee, said there was a time when every British Columbian who needed a lawyer had one, no matter what their financial status, but that is no longer the case.  “Our legal aid system is broken.”  She said that is a direct result of provincial government under-funding … Gordon Campbell’s government cut the legal aid budget by 40 per cent in 2002.

In 1992, a provincial sales tax was applied to legal services in B.C.  The tax was in the amount of seven per cent (7%), which despite later denials by the BC Liberals, was to be used towards the cost of Legal Aid in B.C.  The government of the day did reference that the revenue from the tax would offset the escalating costs of legal aid, and by 2013 revenue from this tax was approximately $150 million dollars.

That money, however, was not being applied to legal aid.

In July 2014 NDP Attorney General critic Leonard Krog, felt fine to criticize the BC Liberals for misappropriating what he indicated should have been used for Legal Aid.  He commented that the $74.5 million budget was nowhere near the $92+ million dollars Legal Aid had received as a budget a decade earlier … and went so far as to criticize the Liberals for cutting expenditures at the expense of low-income British Columbians.

Krog was quoted saying, “… two-thirds of the people who actually apply are denied… if you’re low income, your chances of getting legal aid the way we knew it in this province are very, very slim indeed.”

AND SO, let’s flash forward to 2018.  The BC Liberal government has been replaced by the NDP, and everything is better … right?

Not so according to Bill Veenstra, president of the B.C. Branch of the Canadian Bar Association.  On Feb. 26 of this year, in an article in the Lawyers Daily, he commented that while …  the increases will improve access to justice to many within the province, including those in Indigenous, rural and remote communities … he warned the new legal aid funding was only about a quarter of what was needed to provide family law assistance to qualifying individuals.

Those comments were in response to the provincial budget, delivered by B.C. Finance Minister Carole James, where only $4.8 million in additional funding was added to the Legal Aid budget.

In that same story, Kasari Govender, who is the executive director of West Coast LEAF (Women’s Legal Education and Action Fund) said … “safety, dignity, and well-being of women and children are at stake when legal aid services are chronically and woefully underfunded, as they are currently in British Columbia.

I’ve harped on this before, and I’ll harp on it again.

If the government is going to apply a fee to recycle tires, electronics, etc, that fee should be applied to that task and only to that task.

If the government applies a fee on wildlife licenses (ie: fishing and hunting), the entire fee should be used for that.

In the case of the new taxes, which will be applied to legalized cannabis later this month, that money should be used for education, recovery, counselling and more.

Every penny of the Speculation Tax, related to housing, should be applied to create more affordable housing.

In some cases, this happens, in some not.  And when it comes to the 1992 provincial sales tax, which was applied to legal services in B.C., nowhere near the seven per cent is applied to Legal Aid.

If we are going to ensure that all British Columbians, no matter what their economic status, will be on an equal footing before the courts, then more needs to be done … and the recommendations set out by the B.C. Branch of the Canadian Bar Association need to become government policy:

  • there should be a fixed number of judges so that court cases can proceed quicker – there should be a list of judges available who can be appointed immediately when needed
  • government needs to develop and implement a technology strategy with features such as video conferencing for dealing with cases in remote areas
  • the B.C. Family Justice Centre needs increased funding so more staff can be hired to carry out assessment reports within a six-week time frame and also hire more trained mediators and family justice counsellors to reduce wait times
  • B.C. should work with the federal government to establish a Unified Family Court, which has been done in other provinces, so that issues can be resolved faster in overlapping family matters
  • Amend the Consumer Protection Act eliminating potential confusion regarding the cost of borrowing and the interest that accrues on reverse mortgages
  • Expand restorative justice so that it becomes a tool that Crown prosecutors and police can use to deal with cases and ensure there are trained staff members in place to handle these cases;

And, again, as I and others have long stated … the seven-per-cent provincial sales tax on legal services should be applied towards the total cost of legal aid, family justice, and restorative justice.

So, as we continue with Access to Justice Week, let’s hope that Attorney General Eby remembers the two comments he made regarding the ability of all British Columbians to be able to do that – access justice.

One, “… barriers facing access to justice cannot be overcome without a concerted and collaborative effort to create change.

And two … “My ministry is working to ensure that everyone in B.C. experiences equal access to justice.

In Kamloops, I’m Alan Forseth, and I hope you’ll join the discussion on this, or any other topic presented here.  Do you agree … disagree?  Post your thoughts in the Comment Section directly below.

Alan Forseth is a Kamloops resident and former member of the Reform Party of Canada and the B.C. Reform Party, and a past and current member of the BC Conservative Party. His blog is My Thoughts on Politics and More.

About Mel Rothenburger (8126 Articles) is a forum about Kamloops and the world. It has more than one million views. Mel Rothenburger is the former Editor of The Daily News in Kamloops, B.C. (retiring in 2012), and past mayor of Kamloops (1999-2005). At he is the publisher, editor, news editor, city editor, reporter, webmaster, and just about anything else you can think of. He is grateful for the contributions of several local columnists. This blog doesn't require a subscription but gratefully accepts donations to help defray costs.

2 Comments on FORSETH – The case for considering legal aid an essential public service

  1. You must mean like going to the dentist or doctors at $1000 per day per locum or ICBC rates for those who have never made a claim and don,t drive a Lamborgini or dream about owning a house in the lower mainland or pay taxes in Kamloops or pay the looming BC hydro rates or try to miss the Kamloops potholes etc. Isn’t being a BC ‘ite a joy? We as Canadians have the highest personal debt of western society. No bloody wonder.

  2. Making access to law more affordable…by curtailing the exorbitant fees lawyers charge, Mr. Forseth. Why don’t we?

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