Legal Aid Review: “Legal aid is not broken in BC. It has simply lost its way."

  • March 05, 2019

By Ian Mulgrew for The Vancouver Sun

The B.C. government should radically change the way it delivers legal aid by opening community clinics staffed by lawyers and advocates to serve the needy, says a new review that lawyers immediately discounted.

Jamie Maclaren, who conducted the three-month study, wants Victoria to embark on the ambitious plan and broaden the scope of Indigenous aid to include more preventive services that are “not premised on agreeing to state intervention or correction which imposes stigma.”

“My report recommends the development of community legal clinics providing family law and poverty law services, specialty clinics, Indigenous justice centres, an experimental ‘criminal law office’, and a ‘major case team’ of lawyers and paralegals specializing in long and complex criminal cases,” he said.

A more balanced service-delivery mix rather than the current fee-driven model would allow for the distribution of cases among tariff, clinic or staff lawyers according to who is best suited, Maclaren argued.

But lawyers’ groups said the fine-sounding rhetoric has been heard before — echoing Len Doust’s commission on legal aid in 2011 — and the 25 recommendations are impossible to evaluate because there are no cost estimates attached.

Attorney-General David Eby reacted tepidly late Monday when releasing the 71-page report entitled Roads to Revival, saying only that he will carefully review it.

Maclaren replied: “I’m obviously hoping for much more in the coming days.”

Mark Benton, CEO of the non-profit Legal Services Society, applauded but warned the report was a wishlist without funding — more family services, more Indigenous services, and more use of technology.

“We haven’t had our budget approved for the year, so we don’t know how many of these recommendations will be acted upon by government,” he added.

Richard Fowler, of the Association of Legal Aid Lawyers, maintained the report did not resolve the current crisis — the government must commit a substantial amount of extra funding to legal aid or lawyers will withdraw services beginning April 1.

“You can’t really say much about the value of recommendations when the cost of those recommendations is not even considered,” he insisted. “It’s a report that doesn’t have enough analysis to support the recommendations.”

Fowler pointed to the call for an experimental criminal law office with a team of staff lawyers, paralegals, administrators and support workers.

“In reality, that’s exactly the kind of law offices there should be, but because of the wholesale undercutting of the tariff in the last 30 years, lawyers cannot do it,” he said. “He recommends an equal number of paralegals, if not more, to the number of lawyers — he clearly has zero idea of how much this will cost.”

The provincial government provided about $80.7 million in funding last year for legal aid.

In 2002, Legal Services Society funding was $88.7 million — about $145.9 million in today’s dollars, factoring in inflation and population growth, according to calculations by the Association of Legal Aid Lawyers.

When he started practicing back in 1994, Fowler recalled parking at the courthouse was $3.50, today it is $16 — legal aid rates in the same period have risen from $80 to $88 an hour: “There’s been a 10 per cent increase in legal aid and about a 400-plus per cent increase in parking!”

Still, he acknowledged Maclaren’s broader themes were commendable — that legal aid is essential to the rule of law, and change will require much greater funding.

“The bottom line is this province cannot afford to not have a better legal aid system,” Fowler emphasized.

The Trial Lawyers Association of B.C. agreed.

“It is disgraceful that we do not do more to support families and low-income British Columbians as they struggle to deal with family break-ups, including the apprehension of their children, by properly funding legal aid,” it said in a news release Tuesday.

“It is unacceptable that legal aid lawyers who help the most marginalized people in our community have seen only one pay increase in over 25 years.”

Maclaren, executive director of Access Pro Bono, asserted: “Legal aid is not broken in B.C. It has simply lost its way.

“Years of underfunding and shifting political priorities have taken their toll on the range and quality of legal aid services, and especially on the people who need them.”

Appointed Oct. 4, Maclaren received submissions from 130 individuals and 12 organizations, heard from 240 people across 37 different municipalities, stakeholders including Legal Services Society staff, judges, lawyers, legal advocates, articled students, law students, legal-aid plan administrators, non-profit service providers and the public.

“The total time of my personal consultations exceeded 100 hours,” he said.

“I also drew from my own experience of serving about 1,500 low-income clients over 13 years as a pro bono clinic lawyer in Vancouver’s Downtown Eastside.”

In 2017/18 — across criminal, family, immigration and child protection — the Legal Services Society issued 26,061 contracts (down from 28,286 the year before) to 930 lawyers.

A generation ago, there were about 1,500 lawyers doing the work.

“Low tariff rates have steadily eroded lawyers’ capacity to serve British Columbians in need,” Maclaren explained. “They have weakened the bonds between the legal profession, (the Legal Services Society) and government. Most concerning of all, over nearly two decades, they have visited harsh and indelible consequences on the lives of B.C.’s most vulnerable residents.”

His recommendations included a call for more objective legal data.

“B.C. would benefit from an independent and overarching body that is mandated and resourced to coordinate the collection and analysis of standardized justice system data from across the province. The data could then be used to assess the individual and aggregate performance of justice sector organizations — like (the Legal Services Society), the B.C. Prosecution Service and the courts — against national benchmarks.”

Margaret Mereigh, Canadian Bar Association B.C. branch president, was glad Maclaren adopted the association’s 2016 proposal for integrated services that are sustainably funded, evidence-based and people-centred.

“We hope the government now chooses to fund the recommended reforms,” she said.