And the battle for legal aid rages on
Much effort was devoted this year to developing and promoting the CBABC’s Agenda for Justice before the May 2017 provincial election. The NDP made several campaign commitments in the justice area – most importantly to strengthen access to justice and community safety with additional funding for legal aid and more sheriffs in the amount of at least $15 million in the 2018 budget year and $20 million in the 2019 budget year.
In recent months, the case for legal aid has repeatedly been made by several justice sector organizations. In addition to our Agenda for Justice, the national CBA adopted benchmarks for legal aid. Also at the national level, the Canadian Forum on Civil Justice has issued a series of reports examining the costs of not providing adequate access to justice. Within British Columbia, our Law Society has adopted “A Vision for Publicly Funded Legal Aid,” and has been actively advocating for that vision, while a coalition of other legal organizations has done its own advocacy with respect to legal aid.
All of these organizations understand that we must continue pressing government to ensure a properly funded legal aid system. Much of our advocacy focus this year has been on working with the new Attorney General, David Eby, to remind him of the importance of proper legal aid funding, and ensure that the commitments made during the campaign find their way into the budget to be delivered in February 2018. We have made clear to him that the profession wants to be part of the solution to the challenges in legal aid and to access to justice generally.
The CBABC has had two major focuses in its legal aid advocacy. The first is securing proper funding for legal aid in family law matters. Since funding cuts announced in 2002, the Legal Services Society has had no funding to provide family law legal services for the majority of family law matters – services are only provided where there are actual or threatened safety or violence issues, or to resolve a serious denial of access to children, and then only to resolve that immediate problem. A great many people cannot afford to access legal services to help them navigate the system, resulting in roughly 40% of Provincial Court hearings in family matters having at least one party not represented by counsel.
This has significant impacts on those going through family breakdowns as well as in the court system itself. In many cases, parties struggle to present their positions, or to resolve their cases expeditiously. Those unable to move their situations through to a successful conclusion often end up requiring assistance from other government programs. The extra time and attention required of judges and court staff puts extra strain on, and requires more, judicial and court resources. A properly funded family law legal aid system is essential.
A second area of focus is the legal aid tariff. The current rates paid to lawyers performing legal aid work have been increased just once since 1991, do not provide reasonable compensation for the services provided, and in most cases do not even cover the cost of a lawyer’s overhead. Rates paid to lawyers acting for BC’s Ministry of Children and Families are nearly 50% higher ($135/hour vs. $84 to $92) – as are the rates paid to lawyers doing legal aid work in Ontario.
Increasing the tariff amounts has its challenges in the political world. However, at some point the system becomes unsustainable as lawyers face increasing costs for overhead as well as the effects of inflation generally. The number of lawyers in BC who are prepared to take on legal aid cases has dwindled as more realize they simply cannot afford to act.
Minister Eby has indicated a willingness to tackle both of these issues. The CBABC will continue to work with him as budget day approaches. The legal profession needs to continue pressing our MLAs to make legal aid a priority, especially in family law, and be ready to support any move to increase tariffs. I am happy to hear from you with respect to any of these issues.