BC Law Society's better late-than-never legal aid vision

  • March 07, 2017

By Ian Mulgrew for The Vancouver Sun

A generation after the incoming B.C. Liberals decimated the Legal Services Society — slashing its budget by 40 per cent — the Law Society of B.C. has endorsed a very different, far more expensive vision of legal aid.

Adopting a 28-page task-force report, the benchers who govern the regulatory body say legal aid should be funded as an essential public service like education and health.

Staggeringly, it ends 15 years of virtual silence by the professional watchdog over the controversial slash-and-burn decisions.

“The Law Society envisions a legal aid system that provides assistance to anyone, regardless of means, in identifying when a legal problem exists and what services are available to help them, and, in certain cases, provides legal advice and representation to people of modest financial means,” said president Herman Van Ommen.

Suffice to say, that will cost a lot more money than the provincial government provides — roughly $80 million annually. In the last B.C. NDP budget for 2001-2002, legal aid received about $88.3 million.

“Exactly how much funding is required, and for what types of programs, will form part of the difficult work that lies ahead,” said the task-force report.

“It is essential for the Law Society to undertake that work with government, the Legal Services Society and other justice system participants in the spirit of constructive dialogue.”

The chronic underfunding of legal aid has led to fewer lawyers participating, problems with recruitment, staff retention, succession planning, remuneration levels and burnout arising from consistently strained capacity.

For the last seven years members of the Trial Lawyers Association of B.C. have been protesting with work stoppages, service withdrawals and other demonstrations.

In 1991, the hourly tariff was $80.

The 2016 rates, unchanged since 2006, were: $84 ($55 in 1991 dollars) for less than four years experience; $88 for four to 10 years’ experience; and $92 for more than a decade’s experience.

Legal Aid Ontario’s 2016 top tier was $136. 

After surveying lawyers, the new report says an average rate of $175 an hour is needed.

A commission into legal aid suggested much the same half a decade ago and there have been numerous calls over the years for the B.C. Liberals to address the carnage caused by the policies of their first administration in 2001.

The savage cuts eliminated poverty law services, family law services were curtailed, seven out of 10 legal aid workers lost their jobs and 60 branch offices were replaced by seven regional centres.

The legal services budget has never recovered.

That the law society stood by mutely was surprising — it was a critical player in the development of legal aid.

But its vocal advocacy ended at the turn of the century with the ascendancy of the B.C. Liberals.

The society’s lack of involvement in the legal-aid debate mocked its statutory duty to uphold and protect the public interest by preserving the legal rights and freedoms of everyone — including the poor and needy.

In Dec. 2014, a law society committee recommended the benchers create a task force to explore what it could do to improve legal aid.

The nine-member, blue-ribbon group was struck in Sept. 2015 and did not mince words in its report: “The Task Force believes that the Law Society has not taken a leadership role in the debate over legal aid for the last number of years and that as a consequence the voice of an important part of the justice system in the province has been lost.”

The society says equality of access to justice is necessary for a democratic society to work.

Last month the Canadian Bar Association-B.C. Branch issued a report also urging the revitalization of legal aid along with more funding for other services.

“B.C.’s recent budget was a step in the right direction, but it fell far short of the estimated $20 million needed (solely) for family law legal aid to help B.C. families in crisis,” Michael Welsh, branch president, added Tuesday.

Self-representation has become a problem not just because the ill-informed and unprepared gum up the system, but also even more worrying for civil society is the corrosive disillusionment caused by the inequality in outcomes that often occurs when an amateur lawyer faces an experienced attorney.

Attorney General Suzanne Anton said: “While I applaud the Law Society for bringing its voice to the conversation about our justice system, raising legal aid tariffs to $175-hour would amount to an increase upwards of $53.5M to the Legal Services Society’s current budget of $74.8 million. Our government takes a different approach from those who would take a ‘business as usual’ approach and spend more money on the same services.”