Legal aid strike would plunge courts into chaos
Lawyers say chronic underfunding hurts public confidence, imperils right to fair trial
Legal aid lawyers across B.C. have threatened to withdraw services April 1, potentially leaving clients and criminal defendants without representation and the courts in chaos.
In a submission to Attorney General David Eby dated Feb. 15, obtained by Postmedia, the Association of Legal Aid Lawyers (ALL) said the strike was necessary because the rule of law was threatened by the chronic underfunding of services for the needy.
Titled Restoring Funding to Legal Aid, the 72-page brief suggests six options ranging from a $27-million band-aid to adding $114 million to return financial support to levels enjoyed by the Legal Services Society (LSS) in the 1990s.
“ALL is hopeful that, through negotiation with government, adequate funding for legal aid will move beyond being a subject for discussion and become a reality,” the document stated.
“However, our directors have recommended to our 475 members, in the event provincial funding is not immediately significantly enhanced, we should commence withdrawal of our legal services on April 1, 2019.”
Members will soon vote on the job action, the brief noted.
“Based upon our polling of our members, feedback at community meetings, and communications directly from members to ALL and its Directors, we have assessed that there is a high degree of support for a very strong job action,” it warned.
“A previous more nuanced and limited withdrawal of services in 2012, organized by a predecessor organization, failed to achieve the goals of its members. Those lessons have been learned. This job action will be neither nuanced nor limited.”
A spokesman for the attorney general said the ministry would be “engaging with (ALL) to discuss their proposal.”
A spokesman for the group, Vancouver lawyer Richard Fowler said underfunding damages public confidence in the system, imperils fair trial rights, and impedes the ability of lawyers to work in a manner that accords them the support and respect they deserve.
“All or nothing,” he quipped. “As lawyers, we take an oath to uphold the rule of law and access to justice and legal aid are fundamental components of the rule of law. We have an obligation to do something. The government isn’t doing something, so we have to do something. At the end of the day, it’s a complex issue. Every lawyer will have to make their own independent assessment.”
He presumed the group wasn’t expecting the government to immediately write a cheque for the full amount, but it was looking for action.
“ALL’s membership has come together in solidarity with the dedicated purpose of achieving change,” said the brief. “That change must be significant, and it must come soon. These are not times of austerity . ... The fiscal situation of the province is such that there exists no reason to defer what must be done.”
The provincial contribution to LSS in 2017-18 totalled $76,548,645. To match 1994 funding levels, that would have needed to be $208,235,811, the lawyers calculated.
In 2002, LSS funding was $88,776,475 — a level of support that would require $145,885,265 today to keep pace with inflation and population growth.
B.C. ranks 10th of the 12 provinces and territories in per capita legal aid funding. The average (including federal contributions) for 2016-17 was $23.98; B.C.’s was $15.97. In 1992-93, it was $25.22, or $39.72 in equivalent 2018 dollars.
“When fiscal times have been lean, (funding) cuts have been savage,” the submission stated. “When fiscal times have been bounteous, cuts, as well as the slow strangulation of budgets that do not increase to reflect population growth or the increasing costs of living, have been the rule.”
Indigenous people have been especially hard hit. Although they number less than five per cent of the population, they comprise 60 per cent of the 7,200 kids in care and a third of legal aid criminal defendants.
The lawyers are particularly peeved because Victoria received more than $210 million in PST from their clients in 2017 while contributing less than $75 million to legal aid. They have seen a pay raise only once since 1991 — a 10 per cent hike in 2006, lifting the $80-an-hour tariff to an average of $88 an hour.
By comparison, Crown counsel wages have increased 111.3 per cent since 1994 and the average weekly wage jumped 62.3 per cent.
A 46 per cent hike in their rates, the lawyers noted, would represent only “a relatively modest” increase.
Most importantly, the beggaring of legal aid means few qualify, and even then, only for criminal support.
For example, a take-home income of more than $1,580 a month — $19,000 a year — is the cutoff for a single person, the submission said.
There is scant chance of receiving support for family, refugee or a child-protection case unless there is violence, the government is trying to permanently remove the child, or some egregious factor exists. Poverty law services are defunct.
Although Eby received a review of legal aid last month, he hasn’t responded, and the lawyers were dismissive of the three-month, one-person study.
“An approach that tinkers on the margins amounts to no more than rearranging the deck. We are living with the shame of a crippled legal aid system in B.C.”
The number of legal aid lawyers has declined dramatically from about 1,500 in 1991 to 1,038 in 2017.
The average income of the 650 doing criminal files was $46,325 (the median $25,184); for the 520 family lawyers it was $21,050 (the median $11,775); for the 39 child-protection lawyers, it was $15,605 (their median $7,994), and for the 90 immigration lawyers, the average was $18,163 (the median $8,314).
Of the roughly 1,000 taking legal aid cases, 911 earned less than $99,000 from the work, and 669 earned less than $50,000.
The Law Society of B.C. issued a seven-page ethics opinion on the withdrawal of legal aid services in December.
The opinion stated that discussion is “the approach most likely to identify a reasonable course of action consistent with lawyers’ ethical obligations, including whether or not to withdraw services.”