Legal aid funding not worth crowing about?
Is the B.C. government downplaying the most significant provincial investment in legal aid in a generation for fear of public blowback over putting so much money into lawyers’ pockets?
To put it in perspective, the $20 million a year more committed by Attorney General David Eby for lawyers’ fees is twice the budget for this year’s mental health and addictions ministry service plan.
And the pact reached with the Association of Legal Aid Lawyers (ALL) radically changes the way the government interacts with the bar and pays for legal fees — the non-profit Legal Services Society (LSS) may no longer decide what it pays lawyers, who are independent contractors.
It also is a U-turn from the previous Liberal administrations’ beggarly funding approach and the opposite tack taken by Ontario Premier Doug Ford, who earlier this year slashed $133 million from that province’s legal aid budget.
Yet since Oct. 15, when he announced the deal reached six weeks earlier, Eby has been reluctant to flesh out what amounts to nearly $46 million more in spending over the next two and a half years in addition to the LSS’s roughly $93-million annual budget.
Perhaps because not a dime will go to expand scant services or loosen choking eligibility rules?
This expenditure was vitally needed because legal aid lawyers last had a fee hike more than a decade ago, and were earning so little that in many towns no lawyer would take a legal aid case.
The number doing the work had fallen to about 1,000 from about 1,500 at the turn of the century — this fee increase will attract more lawyers, ensure experienced lawyers will keep doing the work and provide security of service for the most vulnerable.
Still, it took until Wednesday before the 19-page text of the historic Aug. 30 consensus was released — the agreement between Victoria and ALL on tariffs and future negotiations, an appendix listing legal aid services now designated “essential” in the event of a future service withdrawal, and a memorandum of agreement between ALL, the government and the LSS about going forward.
In particular, the memorandum notes: “The parties recognize that there is a need for improvements to the legal aid program in B.C. and that legal aid improvements will not be effective if undertaken in isolation, without the investment of sufficient time, or without the engagement of appropriate stakeholders. The Ministry is developing a comprehensive Legal Assistance Strategy to ensure that people are able to access services that are appropriate and proportionate to their needs and capabilities.”
The parties agreed to meet no fewer than three times by June 30 to discuss coverage, eligibility, assignment of junior counsel and authorizations for expert witnesses.
Any items agreed upon by that date will go to cabinet for consideration in the 2021-22 budget.
The three will also have no fewer than four meetings before June 30, 2021 to discuss any unresolved matters. Two of these additional meetings may include other stakeholders.
You would think that Eby would be pleased to crow about these landmark moves. Instead, when asked to clarify a few points, the ministry provided an email that cannot be attributed “to any specific person.”
“While the agreement commits to future tariff negotiations with ALL, it does not confirm the negotiating agent that will be negotiating with ALL,” the email said. “It does, however, commit that the province will consult with ALL before determining who the negotiating agent will be.
“Government will be engaging in policy consultations with ALL and the Legal Services Society over the term of the new agreement, and has committed that ALL will have access to a formal, ongoing tariff negotiating process going forward.”
The impetus for the funding about-face was likely the growing body of evidence that barriers to justice cost the economy and governments too much money — not to speak of their emotional and personal price.
The World Bank late last month issued a report, A Tool for Justice: The Cost-Benefit Analysis of Legal Aid, that compiled research from 50 countries.
It concluded every dollar not spent on access-to-justice measures costs governments $2.35 for health, unemployment and social services.
And a new report released by the Canadian Forum on Civil Justice at Osgoode Hall Law School has also found greater funding for legal services actually saves money and provides a return on the investment.
“Across a diversity of justice programs, services and mechanisms around the world, spending on justice results in significant economic and other benefits that generally significantly exceed the value of the investment,” authors Lisa Moore and Trevor Farrow said.
“In most cases, the rate of return on investment in justice services and programs was between $9 and $16 for every $1 that is spent.”
The report maintained axing spending on legal assistance almost exclusively results in increased costs to the government, the courts and communities that exceed expected savings.
The conclusions echo findings in many jurisdictions — legal budget slashing is often counterproductive.
A false economy can be produced when already stretched legal services are trimmed and, conversely, significant benefits typically flow from spending on legal aid programs.
These investments can pay off in terms of economic gains as well as in personal and collective well-being.
Yet there’s a curious lack of political chest-beating over this game-changing strategy: Maybe because people will bristle at the money going to lawyers? Maybe because the government will be hoisted on its own petard in negotiations with LSS staff lawyers, prosecutors and others?
Maybe a bit of both.