The Coalition welcomes Commissioner Len Doust’s report both as an accurate reflection of the state of legal aid in BC and a clear vision of what it ought to look like.  It is obvious from reading the report that the Commissioner was deeply affected by what he heard:  “I have come to a much deeper appreciation of the devastation wreaked by the absence of adequate legal assistance and representation”.  

The ink was barely dry on the report before Ian Mulgrew in the Vancouver Sun declared “Doust’s analysis was long on rhetoric and anecdotes and short on data”.    The Commissioner reported on what he had heard over and over again from people in many different walks of life why legal aid has failed them and society.  This may not be “data” but it is factual and it can be verified.  If you dismiss it as rhetoric, you are missing the point.

The Commissioner states that  “legal aid is designed for those who simply cannot afford to pay for legal services…The large majority of the public is not aware of these needs, nor are they aware of the deprivation and damage that result from the failure to address them.  They are unaware because they have no contact with these individuals or their needs.”  Unless we decide to shine a light on these individuals and their needs, legal aid will not be fixed.  Investigative journalism just may have a role to play here as it has in the past in righting many a societal wrong.

The Commissioner identifies legal aid as “the fourth pillar of our steadfast commitment to a just society” along with education,  health care and social assistance.  All of these “pillars” interact in complex and extensive ways which combine to make it very difficult to attribute cause and effect, or in assigning costs.   It may not be immediately obvious but lack of legal aid can lead to much higher costs in other areas.  Our government budget systems are not sophisticated enough to track these.  But the fact is that lack of help for a legal problem can lead to loss of income, poor health and homelessness.  It can lead to child poverty.  It can lead to imprisonment.  All of these things add to costs in other areas of government.  This was recognized in Canada as long ago as the 1960s when the first federal funding for legal aid came from the federal health budget.  Just because we put labels on things like health, education, legal aid and social assistance asserting that they are discrete doesn’t make it so.

As the legal aid budget has shrunk over the last decade, fewer legal problems are eligible for assistance (notably the complete eradication of poverty law and the reduction in family law services) and fewer people qualify for legal aid on the basis of income.  The adoption of a consistent measure to qualify for legal aid whether the Statistics Canada low income cut-offs or a market basket approach, would insure that those most needy would get assistance.  We welcome the Commissioner’s recommendation that those whose income is up to double the cut-off line should receive legal aid as well provided they contribute financially.  It is no secret that the wages of the working poor cannot hire a lawyer.

If the justness of a society is measured by how it treats its most vulnerable citizens then this report has to be viewed as a failing grade for British Columbia.  Fortunately, it does outline the path we must take to achieve a pass.

This is a repost of  CCPA Policy note from Keith Reynolds:

Hats off to you, Mr. McKimm

February 17th, 2011 · Keith Reynolds · Provincial budget & finance

In the mountain of material presented with the 2011 BC Budget (OK, much of it was an electronic mountain) there was one remarkable nugget of candor.

Each ministry and agency is required to prepare a Service Plan that is published with the Budget. These were initiated originally to provide more transparency in government work. Over the years they have become increasingly opaque. Reshuffling ministries and changing the format in which information is presented makes it almost impossible to compare things over time. The Service Plans have largely become extended press releases.

But this year the Legal Services Society service plan broke the mold. The Society offers legal representation for financially eligible people with serious family, child protection, criminal, or immigration problems, as well as information and advice services designed to help people resolve legal problems on their own.

In the report outgoing Chair D. Maryland McKimm QC makes the following point:

As I depart, the Legal Services Society is on a stable, albeit significantly reduced, footing. In the board’s assessment, however, the society is now providing services far below what the board believes is needed to properly assist British Columbians with low incomes and to effectively support the efficient operation of the justice system.

Would that we could see this kind of candor in other ministry service plans. Health care funding in BC is the second lowest in Canada. The Finance Minister took great pride in this during the Budget lockup before reporters. In fact, the Budget documents show the government plans to actually reduce health spending as a portion of the GDP in coming years.

School Boards are in the same position. Yes, funding per student is up in dollar terms (though not up as much as inflation). But education spending as a percent of our GDP is falling. In 2009 education spending equaled 5.8% of BC’s GDP. By 2013 it is predicted to fall to 4.9%. From 2009 to 2011 education funding will actually fall by $27 per capita.

Post secondary education is probably the most important investment a government can make. Spending is virtually frozen and tuition fees continue to go up.

Environment funding is falling as are supports for the disabled and the arts.

This is the price we have paid for over a decade of tax cuts that largely benefited corporations and the well off.

So hats off to D. Maryland McKimm for penning the one service plan that had the courage to talk about providing services far below what British Columbians need.

How about a change to the good old days?  The upcoming Liberal leadership campaign will give us an opportunity to see if the Gordon Campbell Liberals were an aberration in their approach to legal aid.
Past BC governments since the early 1970’s, both Social Credit and NDP, provided more generous funding to legal aid than the Campbell government has.  While funding for legal aid may have gone slightly up or down depending on the government and the economic times, no government ever took the axe to legal aid. That is, until the Campbell Liberals came along. Legal aid never recovered from the 2002 cuts despite a reasonably sympathetic A-G in the person of Wally Oppal.
Past BC governments seemed to recognize the importance of legal aid and did not treat it as a political football. Now is a time when we can see if BC can return to that approach.
Legal aid must be accessible to those who require it.  It must cover a broad enough range of potential legal problems so that individuals and famillies can protect their income, their homes and their general health and welfare. Legal aid must be available to those whose income makes it impossible to obtain legal advice and representation using their own means.
Up until 2002, legal aid in BC deserved a passing grade on all three counts. While it was not ideal, it shines in comparison to what BC has had for the past eight years.
The current legal aid system is not accessible with two walk-in offices for the province. Family legal aid is bare bones; persons with other civil legal aid problems are just plain out of luck. Even criminal legal aid which survived the 2002 cuts relatively unscathed is found wanting as persons facing lengthy jail sentences often do not qualify. Finally, fewer and fewer people are able to access the meager services still available. A single person working full time at $10/hour will not qualify for legal aid.
The timing of Gordon Campbell’s exit could not be better. With the CBA lead public commission due to report, all leadership contenders will have a shiny new report to make them question what has been going on for the past eight years. It is time to build a strong consensus once again that our society requires a stable, adequately funded legal aid system.

Gordon Campbell resigned today. What can we attribute to him in relation to the state of legal aid and the justice system? What is the legacy he leaves behind? And will a change in Liberal leadership alter the course he set in 2002?

Here are Mr. Campbells words during a debate with Glenn Clark in an August 1998 published in BarTalk:

GORDON CAMPBELL: I have tremendous sympathy for all those who have been denied legal representation because the government has broken its promise to fund legal aid…Should we then reduce funding to legal aid? I don’t think so…We must be prepared to define a realistic mandate for legal aid coverage and make sufficient resources available to fund that mandate. This means that funding formulas must be stable, certain and predictable. At the same time we need to be honest enough to acknowledge that government revenues are limited and their allocation is fundamentally a matter of priorities.
 

Here is a snapshot of Mr. Cambell’s priorites after reducing funding to LSS by 40%:

LSS services in 2001:

• 17 Branch offices plus Head Office in Vancouver
• 14 Community Law Offices
• 14 Native Community Law Offices
• 441.9 FTEs
• Tariff’s paid out in millions:
• Family law: $20.7
• Criminal: $18.9
• Immigration: $5.2
• Human Rights: $.5
• Other: $2.2
• Poverty Law Clients served through staff lawyers, paralegals and clinics: 40,279

 LSS Services in 2009/2010:

• 2 regional centres (Terrace and Vancouver)
• 144.9 FTEs
• Criminal: $25.4
• Family law: $10.3
• Immigration: $1.9
• Human Rights: $0
• Other: $8.9
• Poverty Law Clients served through staff lawyers, paralegals and clinics: 0

When he took office LSS was an independent, arms-length organization, as it should be given the role of legal aid in providing legal representation to those utilizing the conflict-resolution structure that is our justice system, especially where the government is one of the parties involved (i.e. alleged criminal action or welfare fraud). LSS now has a Board in which the majority are appointed by the government, it can’t legally run a deficit (despite the unpredictability of legal cases), and the Memorandum of Understanding limits what legal subjects LSS can provide representation for.

 What is the cost of this legacy? No one has done rigourous data collection research to determine those numbers here in BC, so anything I write is purely speculative. Before I share the numbers I pulled up, consider this – according to BC research, it can be fairly estimated that about 250,000 people at any given moment have had a civil legal problem in the past three years AND DID NOT DEAL WITH IT BECAUSE OF A FINANCIAL OR OTHER BARRIER (such as language, access to a lawyer etc.) (see Carol McEwon, “Civil Legal Needs in BC” and the November 9th publication of  ”Rights-Based Legal Aid: Rebuilding BC’s Broken System” available on the BC CCPA and West Coast LEAF).

Category of Impact	Cost	Numbers from Canadian and BC research on unmet civil legal needs	Based on idea that 250,000 faced a barrier and therefore did not address their legal issue	Completely un-supported by research estimated cost in a 3 year period
Emotional/ Stress Related impacts	The Canadian Institute for Health Information reports that BC spends $5253 per person per year on health care. Not possible to determine what portion of annual health cost is directly tied to legal problem.	If 60% of people with civil legal problems experience emotional/stress related health issues in a three year period We arbitrarly applied 1/3rd of those individuals 3 year heath care costs to the heightened stress of their unmet legal need. It is not scientific, but not unreasonable as the amount could be 0-100% of their medical costs that year.	150,000 X $5253	$787,950,000
Physical Health issues	As above	53% of those reporting civil law issues report experiencing physical health issues as a result.	132,500 X $5253	$696,022,500
Safety and Security Issues	The Institute for Crime Prevention estimates of the cost of the Criminal Justice System is $676 per person in Canada per year	34% report experiencing safety and security issues relating to property or personal safety concerns, engaging the Criminal Justice system.	85,000 X $676	$19,000,000
Domestic violence	Domestic Violence can be tied into the nature of the legal problems, but there is also established research that there is a likelihood of an increase in violence post-separation. The Institute for Crime Prevention estimates violence against women costs Canadians $123 per person annually.	14% of respondents report violence in their lives as a result of a legal problem. This isn’t separated into domestic violence against women or stranger violence, but we will assume a relationship to domestic violence for the purposes of this exercise.	35,000 X $123	$4,305,000
Homelessness	BC Housing estimates that it costs $30,000 – 40,000 per homeless person in BC annually.	While homelessness is not recorded in the LSS study, if we estimate even .5% of this high risk group experience homelessness as a result of unmet poverty law and family law needs, we may capture some sense of the cost	$30,000 X 1250	$37,500,000
Workplace Safety	Worksafe BC estimates that workplace injuries cost BC $21,000 in healthcare and related costs	If knowing ones rights could prevent workplace accidents, and we estimate low benefits – say.5% of high risk group:	$21,000 x 1250	$26,250,000

So, Gordon has been in office for 9 years, so three times the total cost of $1.5 billion equals $4.5 billion. It’s possible (and I really mean possible as I am not an economist nor a social researcher) Gordon cost the public $4.5 billion because of an unwillingness to provide another 450 million to legal aid during his term in office. Hmmm…

A study done in Texas, USA, shows that investment in legal aid services lead to economic growth in the community by increasing jobs, reducing workdays missed due to legal problems, creating more stable housing, resolving debt issues and stimulating business activity; in fact, “For every direct dollar expended in the state for indigent civil legal services [legal services for low-income people], the overall annual gains to the economy are found to be $7.42 in total spending, $3.56 in output (gross product), and $2.20 in personal income.”[1]  Reductions in legal aid spending, therefore, have a negative impact on spending and create an economic burden on the community.

Either way you cut it, Gordon has cost us all. But most importantly, he may very well have cost many British Columbians their homes, their children, their personal safety, and their access to justice.

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[1] The Perryman Group “The Impact of Legal Aid Services on Economic Activity in Texas: An Analysis of Current Efforts and Expansion Potential” February 2009 at 1-3, 24 and 25.

So the Canadian Bar Association of BC - bless their hearts, minds and pocket book – have taken it upon themselves to do what the government won’t: ask the public what they think of the current Legal Aid system. They have engaged the services of veteran lawyer Leonard Doust to hold hearings around the province to try and collect the thoughts and opinions of others on what needs to happen to legal aid in BC. They have had important help from a group of legal funders and organizations.

The challenge they face is time – they have created a very short timeline for people to even hear about the Commission, much less find the time to apply to them to present.  As a result they may hit the second challenge – getting people out. One of the ongoing struggles with Legal Aid in BC is that those who need it to be healthy and robust, often haven’t identified how the legal problem might have been resolved if they had had a lawyer. British Columbians are so distant from the justice system, so disinterested in it as a system of conflict resolution they can rely on, so terrified of the costs, and so certain the system is broken, that they simply don’t have the time or space to complain about it.

Instead, our Legal Services Society is likely to go on the defensive and apply to be heard at every stop.  LSS seems to spend a great deal of its resources on attacking anyone who criticizes them. Instead of helping British Columbians by getting them legal help, LSS is writing submissions to the Commission, writing letter campaigns against West Coast LEAF, and defending their decisions.  The voices of the people who have tried to get family law legal aid, for example, are not being heard by LSS, despite the many efforts of advocates and organizations to give voice to that experience.

The Commission is the one place that vioce may be heard. The profession itself is so determined to make change that they are trying very hard to carve out some real and meaningful space for those voices in hopes they can pass it on to government packaged in a way the government will respond to.

The Coalition has worked hard to encourage everyone to get out there and talk to the Commission. Better the public generally than LSS – the organization that has, in fact, had its hands tied by policy decisions at the government level.  Too bad LSS doesn’t have something else to do with its time because ultimately both the Commission and the Coalition are trying to help them do their job.

This is our first blog. We hope to comment regularly on issues relating to Legal Aid in BC. Some of the upcoming topics will include: The Public Commission on Legal Aid; the Love is Not Enough Tour; Family Law and legal aid; stats on legal needs in BC; and so much more. Feel free to make suggestions for topics

Mostly we will talk bout civil legal aid – poverty law services, family law, immigration law. Criminal legal aid is a whole other category. It remains relatively well-funded compared to the other categories of legal issues British Columbians, but we would never argue that criminal law legal aid is perfect. In fact most recent changes at the Legal Services Society began cutting criminal legal aid for minor offences…this raises a whole host of issues and concerns for those of us who care about access to justice for low income people…but as I said, the goals of this Coalition are focused on civil legal aid issues.

So, given this is our first blog, I will use it to frame the issue.

1. What is legal aid? Depends on who you ask…actually there are definitions. According to legislation in BC, legal aid includes any services offered by the Legal Services Society of BC – aka LSS. The services of LSS have been slashed, changed, redefined and reorganized A LOT in the past decade, so that may not be a helpful definition. I will try again…    What is legal aid? Legal Aid includes legal services offered to people who can’t afford a lawyer when they need one. It could be written materials, website information, information provided by a knowledgeable person who has training, but isn’t a lawyer, legal information provided by a lawyer, legal advice from a lawyer, or actual legal representation.
2. What is legal representation – when a lawyer who is a member of the Law Society of BC, represents you in a legal matter – they give you advice, write letters for you, go to court and hearings for and/or with you, and argue before judges and government officials for you.

For those of us involved in advocating for a better legal aid system, the real gap in BC currently is in the inaccessibility of legal representation. There are many reasons getting a lawyer when you need one is hard in BC:

1. Cost. It’s really expensive to hire a lawyer. Partly this is because it is really expensive to be a lawyer.
2. Number of lawyers available. This is especially true if you live outside the Lower Mainland, and especially in family law (I’m going to leave this topic for another blog).
3. Finding the right lawyer. There are some great resources out there (CBA lawyers directory is one at http://www.cba.org/BC/home/main/) to help find a lawyer, but it is hard to find a lawyer that specializes in the kind of legal problem you want help with, one you get along with, and one that lives near you.

All three of this issues are access to justice ones. All of these things are issues that a good legal aid system should address. All of these are issues that are exacerbated if you happen to have a medium to low income (most of us), are managing a disability (stats Canada says 385,000 in BC), don’t speak English as a first language (over 1 million people and growing), are a single parent (80%plus are women), are Aboriginal (almost 200,000 and growing) or have any personal characteristics outside of childless, university-educated, Canadian-born of European descent.

The Coalition is working closely with the recently announced Public Commission of Legal Aid. The next blog will tell you all about it, but in a nutshell, a group of concerned lawyer’s organizations have taken it upon themselves to hire a Commissioner to travel around the province. The goal of the Commission is to collect ideas for a new Legal Aid system in BC. More on that anon.

We hope you will keep posted.