Province taken to task for legal aid spending
It’s time B.C. started living up to international commitments and norms for providing legal aid, lawyers affiliated with the United Nations have told a provincial government-ordered review.
Lawyers’ Rights Watch Canada on Thursday delivered an eight-page submission urging the reversal of a generation of neglect documented in scathing reports by UN agencies from 2006 to July 2018.
The current legal aid plan falls so short of international obligations that the legitimacy of the provincial legal system was in question, said the committee of lawyers and others that has special consultative status with the UN Economic and Social Council.
“In addition to the profound underfunding of legal aid in B.C., the Legal Services Society since 2002 has lacked the independence from government control required by international law,” said Victoria lawyer Michael Mulligan, an activist on the issue for the past two decades.
“Because the government is responsible for the prosecution of criminal cases, and litigation with respect to the apprehension of children, it is not appropriate, or consistent with international law obligations, for the government to control the operation of the (society), by appointing the majority of board members and dictating how the organization is to provide services.”
He insisted independence was critical both to the administration of legal aid and to the delivery of services: “Legal aid clients are equally entitled to independent legal representation.”
An author of several publications on legal aid, Lois Leslie pointed out that equal protection under the law is a fundamental human right protected by international treaties binding upon Canada.
“B.C.’s current legal aid legislation is in violation of these undertakings,” she maintained.
Starting in 2006, the UN indicted the province for cuts to civil legal aid that resulted in “a situation where poor people, in particular, poor single women, who are denied benefits and services to which they are entitled to under domestic law, cannot access domestic remedies.”
Over the years it added “difficulties with access to justice for Aboriginal peoples, African Canadians and persons belonging to minority groups.”
The international body blamed the situation for “the disproportionately high rate of incarceration of Indigenous people, including women.”
And it complained increased unrepresented claims by asylum seekers had a major impact on the fairness of refugee determination procedures as the acceptance rate for unrepresented claimants was significantly lower.
B.C. has international obligations to ensure everybody’s right of equal access to the law and to the protection of their rights in courts and tribunals, said Catherine Morris, the group’s UN liaison coordinator: “That applies to all cases, including family and civil law cases.”
The group wants what the government would consider a new Cadillac-level statutory body delivering legal aid — “independent of executive control, that is mandated and resourced to provide an explicit right to adequate legal aid in criminal, civil matters and administrative matters where legal assistance is indispensable for a fair hearing to determine rights by a court or tribunal.”
Attorney General David Eby announced the review on Oct. 4 saying Access Pro Bono executive director Jamie Maclaren would examine caseload demand, differing legal aid models, duty counsel, legal clinics, major case coverage, paralegals, trends in legal aid needs and models used in other areas.
The AG insisted he wanted to ensure the government was getting the best bang for the nearly $90 million being spent annually.
Lawyers’ watch, however, also wants Eby to expand the oneperson review’s terms of reference and to give Maclaren more time to also consider the scope of coverage, client eligibility, factors affecting competency and effectiveness of service providers and wages.
Ontario and even Newfoundland and Labrador pay between $109 and $150 an hour for legal aid work while B.C. lawyers get between $84 and $92 an hour — and they haven’t had a raise since 2006.
“When rights are at issue and legal aid is denied or inadequate, the resulting inequality, discrimination and unfairness undermine the legitimacy of the legal system,” said the Lawyers’ Rights Watch executive director, Gail Davidson.
“As they say in Colombia, sin abogados, no hay justicia — without lawyers, there is no justice.”