“When individuals enjoy equal access to justice, the welfare of society is enriched and its core values are secured.” That costs money however, and governments of all political stripes appear more interested in providing LESS funding
BC Attorney General David Eby |
We are currently in the midst of Access to
Justice Week, to which BC Attorney General David Eby, 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.
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.
Butt,
according to the Canadian Bar Association's BC 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 BC released on March 3rd,
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, its states at the outset that:
Some of
Legal Aids 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 thirty odd years ago government
hit it with several funding cuts … this despite growing demand.
In
1997, according to the Law Society of BC, 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%.
The
result of this was that poverty law services were eliminated … family law
services were curtailed … a workforce was reduced in size by 74% … 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 BC, “… 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:
- custody/guardianship 49%
- mental health reviews 47%
- child support 46%
- access/parenting time 46%
- and child abuse 45%.
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 of before
them. I’m not guessing at this … it’s
fact … as this journey over just 4 years shows!
... 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.
Mother says abduction
case highlights BC’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 8TH, 2017:
"It is essentially broken as it is unable to adequately provide individuals with justice in the courtroom". BC 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.
"It is essentially broken as it is unable to adequately provide individuals with justice in the courtroom". BC 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".
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 BC.
The tax was in the amount of seven percent (7%), which despite later denials
by the BC Liberals, was to be used towards the cost of Legal Aid in BC. 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.
Former NDP Attorney General critic, and current Nanaimo candidate for Mayor, Leonard Krog |
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 BC Branch
of the Canadian Bar Association. On February
26th 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 BC 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 BC, nowhere near the 7% 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 BC 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 videoconferencing for dealing with cases in remote areas
- the BC 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 counselors to reduce wait times
- BC 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.
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