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The hard truth about legal aid

It's hard to get all stakeholders working together to put pressure on governments to act.

Ripped and crumpled image of lady justice

Access to legal services is an issue that affects a great number of Canadians, as everyone is likely to experience a legal problem at some point in their lives. When not addressed properly, that problem can often spiral out of control and spread to other areas of our lives – particularly for more marginalized people. And yet, legal aid funding is hardly ever brought up as an election issue—as the last federal campaign demonstrated.

Could it be that Canadians don't care enough about people whose lives are upended by their legal problems?

"There is this sense that somehow they have brought it upon themselves," says Jill Perry, managing lawyer (family) with Nova Scotia Legal Aid. Getting people to care about legal aid tends to be difficult because those who make use of it are already marginalized by poverty or race. There is also a tendency to stigmatize the need for legal aid, among those who believe it "helps criminals get off."

What's more, speaking out against the chronic underfunding of legal aid, as the CBA does, can come across to the general public as self-serving to lawyers, says Patricia Hebert, a family lawyer with Gordon Zwaenepoel in Edmonton.

"As lawyers, we don't benefit from the individual decisions about whether legal aid is covered or not in our province," says Hebert, who is the CBA's national representative to the Supreme Court's National Action Committee on Civil and Family Law. "It is a collective need."

To some extent, our governments recognize that need. Every Canadian province and territory provide some level of publicly-funded legal aid. But the system in Canada is a patchwork across provinces, with Ontario most recently making cuts as part of their deficit reduction plans.

According to the most recent figures from the Department of Justice, total expenditures on legal aid in Canada reached $948.6 million in 2017-18. Overall, half of legal aid expenditures were for criminal files, six per cent went to immigration and refugee matters, and 44 per cent targeted all other civil cases.

Over 598,000 legal aid applications were received in 2017-18. Of that number, more than three quarters received approval for full service. But financial ineligibility is the most common reason cited for refusal.

Eligibility qualifications and services vary across the country. Most programs provide better coverage for criminal law issues than they do for civil law disputes, and financial eligibility remains the key criterion for determining who gets funded. But the income ceilings are low. In the case of a single person in Quebec and Alberta, it is a little above $20,000 for a civil law matter. In Ontario, it rises to $22,720, but in British Columbia, the figure falls below $20,000. With eligibility ceilings that low, none of the programs come near meeting real demand for legal help among lower- and middle-income Canadians.

And yet, there is plenty of evidence that legal aid is necessary, not only for access to justice, but for broader benefits for society. A recent report from the World Bank and the International Bar Association pointed to the false economy of not providing legal aid, as it tends to shift the costs of unresolved problems to other areas of government spending.

Hebert points to studies that show that every dollar spent on legal aid saves the government $6 in spending on social services. But the return on investment is difficult to track because it's measured over the long term and spread out across different levels of government and different departments.

There are other reasons to support more sustainable funding for legal aid. As the CBA's 2014 Equal Justice Report argues, adequate representation makes the justice system operate more smoothly. "When people receive appropriate assistance in reading and preparing documents and making arguments, it saves public money in the long run and results in better outcomes," the report reads.

But even within the legal community, it's challenging to get lawyers to lend their voices to support increased funding. One reason is that many of them run practices that are far removed from the legal-aid needs of the public.

"In many ways, it's the same battle of trying to get some government support for people who really need it and who can't afford lawyers," says Erin Durant, a senior associate with Borden Ladner Gervais LLP in Ottawa. "For a lot of people in the civil bar, it isn't their day-to-day, and they don't come into contact with these people."

Durant is one of the lawyers who led the charge to save Pro Bono Ontario when it was due to shut down for lack of funding last year.

Fortunately, she says, Pro Bono Ontario managed to get enough senior members of the community, including some retired judges, to speak out in its favour. Even so, the federal government, the provinces, and also the law societies have yet to step up to propose a long-term solution.

There has been some positive news coming out of British Columbia recently. In October, the province's attorney-general, David Eby, announced an agreement with the Association of Legal Aid Lawyers and the Legal Aid Society, committing $20 million a year more to cover legal-aid fees. In November, he announced the government would open eight new legal aid clinics in the province at a total cost of $2 million earmarked to improve access to justice.

And in the lead-up to the October federal election, the Liberals pledged more funding to immigration and refugee legal aid services. The CBA welcomed the announcement, but also called on Ottawa to commit to adopting funding principles for a national, integrated system of public legal assistance.

The CBA also launched a Legal Aid Matters campaign to put pressure on party leaders and candidates during the campaign.

Hebert says the lack of stable funding will remain an ongoing concern. Provincial legal-aid bodies can come up with a service and ensure they get proper training, only for the funding to be cut, and it becomes difficult to restore lost capacity if funding is restored.

This can produce a vicious cycle of sorts. The changing nature of what is and is not being funded by legal aid, as well as the administrative requirements, contributes to turning lawyers off of the issue, says Hebert.

"All of those pieces sometimes make doing legal aid work unattractive to lawyers who have options to do other types of work," says Hebert. "Many lawyers just step back and take some pro bono cases from time to time."

Perry, who also sits on the steering committee on the National Action Committee, confirms that the wrangling around funding can fuel the cynicism about access to limited resources.

What's more, many of those with a front-row view of the problem aren't in a position to speak up. Judges, in particular, see firsthand the havoc that underfunding of legal aid wreaks, but worry about interfering directly in political matters, says Michael Spratt, a partner and criminal lawyer with Abergel Goldstein & Partners LLP in Ottawa. Their restraint – beyond the Chief Justice raising the issue on an annual basis when talking about access to justice – is a hindrance to a better understanding of the stakes.

"Judges see day-in and day-out what happens when there are unrepresented accused before the court," says Spratt. "They see their court time wasted, and they see efficiencies lost that defence lawyers can bring, and they also see a higher number of individuals pleading guilty or making decisions that they might regret at some future point because there is no advocate on their side."

According to Perry, the work of the National Action Committee has made some progress on this front by bringing together lawyers from across the country with judges. "That's one actual sign of progress that I've seen over the last decade," she says.

Dr. Julie Macfarlane, a law professor at the University of Windsor and project director for the National Self-Represented Litigants Projects, disputes that Canadians don't care about legal aid. She says the real problem is a lack of stakeholder culture in the legal system.

"Lawyers tend to be inward-facing in terms of their business model and their practice – they don't tend to be outward-facing," says Macfarlane. "They're interested in running their practice as a business. They're only marginally interested in what the rest of the general public thinks."

It's especially true when lawyers have enough paying clients, adds Macfarlane, because they don't have to think about legal aid.

"It takes a particular kind of public service mentality for lawyers in private practice to be interested in legal aid at all," says Macfarlane. "I believe this should be a public service profession and that everyone should be interested in the delivery of legal services to as wide a number of people as possible."

Durant echoes the sentiment.

"Lawyers have an obligation to advance access to justice," she says. "Lawyers have a duty to ensure that people have access to legal services in some form, and if we don't, there's no one else to help these people. We need to take this obligation seriously, and if it means lobbying the government or supporting justice organizations, we have a role to play."