B.C. legal aid challenge may end up hurting those it aims to help
Mark Benton, CEO of the Legal Services Society, wonders whether the latest constitutional challenge to B.C.’s beggarly family legal aid scheme will help.
There is so little money, the cost of simply responding to the well-meaning petition may further rob vulnerable women and children of services.
And Benton isn’t sure the courts offer a viable solution: the current medicare challenge, for instance, has consumed most of a decade and is mired; and even a win could have unexpected consequences.
“Back in the 1990s I was a real champion of this (legal) approach,” he explained.
“I published articles on how to do it. But what I learned in the early 2000s was sometimes what you think is the threshold becomes the ceiling. What happened here in B.C. is the government said, ‘Fine, there are charter rights — that’s what we’ll fund and no more.’ ”
The result was families in crisis received only bare-bones emergency support.
“It’s not that I’m ambivalent about it — I think this is an important issue,” Benton insisted.
“This affects a lot of people. We had one of the most expansive family legal aid programs and now we have one of the most restrictive family legal aid programs in Canada. So it means basically thousands of women are refused legal aid every year.”
There is a limited constitutional right to civil legal aid in certain circumstances, but defining it remains a live debate.
Across the country, cutbacks, neglect and higher eligibility criteria have frayed the legal safety nets maintained by the provinces.
The latest suit filed on behalf of the Single Mothers Alliance B.C. by West Coast LEAF and the B.C. Public Interest Advocacy Centre recalls arguments first made by the Canadian Bar Association.
It accused Victoria of failing to establish and maintain a civil legal-aid regime that ensured meaningful and effective access to justice for poor people when their fundamental interests were at stake.
The late B.C. Supreme Court Chief Justice Donald Brenner, however, dismissed the case on technical grounds in 2006 saying the lawyers’ lobby group had no standing.
The Supreme Court of Canada refused leave to appeal.
This time, the organizations have representative plaintiffs — women personally affected by the funding decisions.
The groups argue the existing legal aid program discriminates and violates the charter’s guarantees of equality and right to life and security of the person by putting women and children at risk of violence and intense stress.
After the Liberal party became ascendant in 2001, former premier Gordon Campbell’s administration savagely slashed the total legal aid budget.
Since the cuts, the LSS has been lobbying to have funding restored.
Benton insisted every meeting between the non-profit society and the government touched on the crying need — he appealed to every minister from former attorney general Geoff Plant, who ordered the slashing, to just defeated A-G Suzanne Anton.
“This is a problem,” Benton said.
“As to the need, we take no issue with that, and we know we are not meeting that need in most cases. Everywhere else seems to have better family law services and seems to do it regardless of the financial circumstances of the province.”
But even when he has money, Benton said, there are fewer and fewer lawyers willing to take a case because legal aid pays so poorly.
“As a measure of that, in the last year, we’ve had to fly lawyers into Kelowna to take cases.”
Now he’ll have to find money for the litigation, “and it’s expensive.”
No matter who forms the new government in coming weeks, both the Liberals and the NDP have promised more cash.
The Liberals have specifically earmarked $2 million for single moms and the NDP has committed an unspecified amount.
“Partly, the problem is the family justice system is not becoming simpler, it’s not becoming faster,” Benton said. “Problems fester, they tend not to get resolved so that the issues here are in some ways systemically driven.”
Benton thinks the federal government needs to be brought to the table.
“They used to fund up to 50 per cent of civil legal aid in Canada, directly reimbursing provinces for the cost,” he added. “They stopped doing that in about 1996 and really haven’t been engaged in it, except for immigration funding since then. … But divorce is federal legislation and they have responsibility in this domain.”