But it’s time to revive the debate

by David A Paul

There are many issues before us as a profession, but perhaps the most important one facing us, both as lawyers and as members of Canadian society, is the issue of legal aid.

I know that there is fatigue on this issue. I know that many of us have fought hard for years and made every argument possible on the topic, as forcefully and passionately as civilized limits allow, to no avail. If anything, our legal aid system is in much worse shape now than at any time in my legal career. But that only heightens the need to speak out, in the face of the desperate need of those who require legal representation and cannot get it.

There are many men and women in this province, not just the ones who make the news, who have had their hopes of legal representation eradicated with dire cuts to BC’s legal aid system. Increased provincial funding is denied on the basis that the federal government should be footing more of the bill; and the federal government won’t step in because the provinces have argued vehemently for independence in spending, so there’s no guarantee that more dollars to the provinces will result in a better justice system.

In the middle lies a battlefield of wounded families and individuals, lost in an imbalance of power with those who have the resources to use the justice system against them – including the government itself. All this while close to $100 million dollars makes its way from paying clients’ pockets to provincial coffers through a tax on legal services – a tax no other profession has to collect, nor any other lawyer in the country.

It is clear to me that there is a major public discussion needed on this issue, and that lawyers must lead the way in fomenting that debate. As a society, we need to determine whether or not we are still committed to the founding principles of our system of justice – fairness, equality before the law, due process, the presumption of innocence until proven guilty, accessibility, and the right to legal counsel. When I look at the treatment of those without legal representation versus with it, I get a clear sense that those principles become less important in the eyes of some if there is a financial cost to society in putting them into practice.

Lawyers are dedicated to upholding and protecting those principles every day. There is a critical need for our society to re-examine the foundations of our justice system, and think hard about what the principles mean in practice. If they are still held to be important, each of us needs to tell those responsible for funding the justice system, both provincially and federally, that they must meet our expectations without finger pointing or political game playing. Put our money where we want it to go, because we are a lesser society without it.

It’s time to remind our politicians that they were elected to be leaders not just for economic gain, but for social improvement as well. They are the stewards of all that has come before, and while there is often an argument against maintaining the old ways of doing things, there is never an argument for abandoning the core principles that make a society worth living in.

The legal aid system can and should be improved, but it won’t happen without a financial cost. Justice, real justice, with certain basic guarantees for every one of us, regardless of any lack of wealth or power, does not come for free – or at bargain basement prices.

This article was published in the December 2002 issue of BarTalk. © 2002 The Canadian Bar Association. All rights reserved.