Imagine you are a woman who recently left your husband because he was assaulting you. Without a lawyer, fighting for the custody of your two children requires you to cross-examine your ex-husband in court about the sexual and physical abuse you experienced in your relationship with him. Unless your net monthly income is less than $2640 per month, you will not qualify for publicly funded legal representation. (If you are a single person without dependents, the financial cut off for representation is even lower – less than you would make working full time on minimum wage).
Now picture yourself as a low-income renter. You’ve had ongoing difficulties with your landlord, but your apartment is safe and affordable so you don’t want to move. Then you find an eviction notice on your door, but you have no idea what it’s for. You dispute the eviction, but during your Residential Tenancy Branch hearing, the arbitrator and your landlord mention documents you have never seen. Suddenly the arbitrator says he is evicting you on two days’ notice. There is no publicly funded legal aid to help you.
These are just two examples of the current state of legal aid in BC. They are not outliers, but rather situations that people in this province face every day. We have seen little improvement since funding for legal aid was cut by 40% in 2002. BC has gone from having 45 legal aid offices throughout the province down to two regional centres, along with a number of contracted lawyers doing legal aid intake and scheduling around the province. While Ontario, for example, has around 80 legal aid clinics providing advice and representation, BC has none. Legal aid representation is currently unavailable for most family law disputes and all poverty law matters such as welfare or housing disputes (issues that may involve little money, but that significantly impact a person’s ability to meet his or her most basic needs).
In 2011 the Public Commission on Legal Aid issued its report “Foundations for Change” after considering oral and written evidence from stakeholders across the province. That report recommends recognizing legal aid as an essential public service, just like health care and education. To date, the provincial government has done little to act on the report’s recommendations.
Underfunding legal aid representation comes at a high price. The price is high for families and individuals struggling to resolve major legal problems in their lives, like disputes over the custody of their children or their eligibility for disability assistance. The price is also high for tax payers. Unresolved family and poverty law problems affect people’s ability to meet their housing and subsistence needs, which results in increased health and social assistance costs. Without legal assistance, many people are forced to represent themselves, which leads to delays and increased court operations costs. Others are unable to assert their rights at all and end up with unjust outcomes. If we are not motivated because the justice system is a fundamental pillar of a fair and equitable society, or by compassion for our fellow human beings, then at the very least, long term economic planning should be an incentive to adequately fund legal aid now.
How do we repair the legal aid system in BC? The Canadian Bar Association recently noted that it will take $50 million to restore legal aid to its pre-2002 levels. The bottom line is that legal aid needs investment.
The Ministry of Justice’s recent White Paper on Justice Reform is nearly silent on the issue of legal aid and the role it plays in ensuring a fair and accessible justice system. The need for poverty law legal aid is not mentioned at all. Part Two of the White Paper does offer the following commitment with respect to family law services: “Government intends to support LSS [the organization that administers legal aid in BC] to expand the family legal aid services it currently provides.” But the timeline for the implementation of this commitment is “2015 and beyond” and no other details have been offered.
Our justice system needs reform, and the provision of adequate legal aid is a key piece of that puzzle. It is a vital social service, necessary for the effective functioning of our justice system, which in turn is essential to a fair and equal society founded on the rule of law. Failure to ensure that all citizens have meaningful access to the justice system undermines our democracy.
Kasari Govender is Executive Director of West Coast Women’s Legal Education and Action Fund, and co-author of Rights Based Legal Aid, published by West Coast LEAF and the Canadian Centre for Policy Alternatives’ BC Office. Kendra Milne is a social justice lawyer specializing in poverty issues, and a research associate with the CCPA-BC.