CBABC president wants frayed justice system to be an election issue

  • March 08, 2017

By Jean Sorensen for Canadian Lawyer Magazine

The Canadian Bar Association's B.C. branch is hoping to raise the issue of British Columbia’s frayed legal system during the May 9 provincial election campaign, especially legal aid.

The CBA B.C. branch has issued a 27-page report — “An Agenda for Justice” — that outlines the dire need for more resources to be allocated to B.C.'s courts and legal aid system.

"We want it to become an election issue and because there is a surplus [in the budget]," says CBABC president Michael Welsh, adding that now that the provincial government has extra funds, some of it should be directed toward improving the B.C. judicial system.   

"It is essentially broken as it is unable to adequately provide individuals with justice in the courtroom," he says. The report targets four main areas: access to justice, support for B.C. families, public safety and community fairness and creating a stable business environment. The report says B.C. is not meeting needs in any of these areas as only one per cent of government expenditures are directed into the legal system. Funding has been cut since 2002 when the government closed 24 courthouses and the Legal Services Society closed 45 offices. 

"Today, there is no fat to trim and the system is seriously frayed,” states the CBABC report.  

Especially hard hit in B.C. has been legal aid for families, and Welsh estimates that at least $20 million is needed to begin to fix the system as it is heading toward what he calls a “crisis.”  Currently, 40 per cent of family law cases in provincial court and up to 15 per cent in B.C. Supreme Court do not have representation.

"It will start to put things back in place and provide adequate legal aid for families," Welsh says. 
Lawyers undertaking legal aid need more funding as well. B.C. legal aid lawyers are paid between $84 and $92 an hour.  

"There are more and more lawyers who are just not willing to do legal aid as it is not financially viable. You can't run a law practice out of the trunk of your car,” says Welsh. 

By comparison, Newfoundland's rate is $135 an hour and Ontario's is $136, while even B.C.'s Ministry of Children and Family Development pays lawyers $134 an hour. The CBABC is asking for legal aid tariffs to be brought in line with the child ministry's rate.  

Another second major access to justice issue is lack of courts and staffing. Welsh says there have been instances where sheriffs have been flown into Vancouver from the Kootenays so that courtrooms can operate as there is a lack of staff. The report calls for a funding increase to the Court Services Branch so that courtrooms, (also in smaller communities), can operate more efficiently and reduce the case backlogs. Adequate staffing in smaller communities would also allow judges, when available, to travel to these areas and deal with cases on a more frequent basis. 

The CBABC report is also calling for a fixed complement of judges. While seven new provincial court judges were hired in January, these judges are only offsetting retirements expected during the year.   

The report looks at the difficulty of bringing new lawyers into B.C. rural and northern communities as many of the existing lawyers retire. 

"Younger lawyers are often carrying a crushing student debt," Welsh says, and they can't afford to go to smaller communities where revenues may be lower. The report recommends provincial student loan forgiveness if lawyers stay for five years. "It is not an expensive proposition," says Welsh as it provides government with a means of drawing in professionals to rural areas.

B.C., like other provinces, faces a huge challenge in finding new ways of dealing with indigenous men making up 20 per cent of the population in prisons in Canada while indigenous women inmates account for 35 per cent.  
"Everyone is looking at these issues," he says, adding that money is being invested to find a way for the justice system to work for the indigenous people rather than as an instrument that suppressed them. 

The report features a list of recommendations such as expanding the First Nations Court program, amending statutes that allow governments to use limitations as a defence for historical abuse, diversion programs and it looks at underlying causal effects of individuals who land in the justice system.  

Further CBABC recommendations set out include: 

  • The government develop and implement a technology strategy with features such as videoconferencing for dealing with cases in remote areas; 
  • The seven-per-cent provincial sales tax on legal services be eliminated. If it can't be eliminated, then the funds should be directed back into legal aid;
  • Increase funding to the B.C. Family Justice Centre so more staff can be hired to carry out assessment reports within a six-week time frame and also hire more trained mediators and family justice counsellors to reduce wait times; 
  • Work with the federal government to establish a Unified Family Court, which has been done in other provinces, so that issues can be resolved faster in overlapping family matters; 
  • Amend the Consumer Protection Act eliminating potential confusion regarding the cost of borrowing and the interest that accrues on reverse mortgages; 
  • Expand restorative justice so that it becomes a tool that Crown prosecutors and police can use to deal with cases and ensure there are trained staff members in place to handle these cases; 
  • Amend the Commercial Tenancies Act (which is essentially the same as when it was passed in 1897) to better streamline the dispute resolution process for commercial landlords and tenants; 
  • Amend the Class Proceedings Act to harmonize with other Canadian provinces and allow individuals to opt out rather than opt in.