Pressure builds for adequate funding

Through the efforts of the Access to Justice Coalition and Women’s Access to Legal Services (WALS) Coalition, supported by the BC Branch, efforts to gain more funding for Legal Aid are finally achieving significant profile and attention.

With the Coalitions’ combined force of more than 100 community groups lobbying for action, the New Democratic Party Convention recently passed a resolution urgently calling on the provincial government to “immediately increase legal aid funding to adequate levels, in order to ensure that poor and disadvantaged men, women and children of BC will have access to the justice system.” Convention delegates further resolved that “the New Democratic Party urgently speak out in support of its policy commitment not only to equal protection under the law, but also equal access to the legal system for all people of BC.”

The active presence of the Coalitions at the NDP Convention followed a passionate and compelling presentation to the Legal Services Society (LSS) Board, asking the Board to recognize the human effects of years of cuts to eligibility and services. Focusing on the real stories of individuals denied Legal Aid, the Coalition asked LSS to hold the government accountable for its mandate to provide Legal Aid to those who need it. Specifically, LSS has been asked to submit to government a “mandate” budget (reflecting the actual dollars required to fulfill its mandate).

In the past, the government has dictated the amount it will provide to the Legal Services Society, without regard for the impact that “cap” has had on service delivery options. This has made operating a demand-driven service a virtually impossible task, requiring pre-emptive cuts where possible, to mitigate future fluctuations in demand.

Many individuals, women in particular, have suffered from cuts to Legal Aid coverage for family law matters. For example, Legal Aid is no longer available for applications or respondents to applications to increase, decrease or enforce maintenance orders. Legal Aid is no longer available for applications to vary custody or access unless there is a proven substantial risk of harm to the children, or changes to access are required to ensure the applicant’s safety. The criminal bar has seen a 34.3 per cent reduction in tariffs since 1991, and additional reductions through the complete elimination of payment for some services (e.g. prison visits). Once again, there have been significant cuts to poverty law, including lay-offs of staff lawyers who do this work. All this in the face of a growing demand for Legal Aid services.

In 1997, the LSS Board was required to introduce more dramatic cuts in services and eligibility in response to a stringent cap on provincial government funds, and a requirement to pay back a $20 million “shortfall” caused by meeting demands in service prior to the introduction of the reduction in funding. The government responded that these cuts were “acceptable”. Do the people of BC believe that a system which denies equal access to justice is acceptable? Do the people who are being denied access to legal services every day? The Coalitions--and the BC Branch--say “No”.

As Kay Stockholder, of the BC Civil Liberties Association, so eloquently argues on page 16 Legal Aid is not a social service. It is a fundamental requirement of a legal system which is founded on the principle of equality of every person before the law. The systems which are responsible for administering the laws of Canada are incredibly complex. While self-representation is always an option, it is something which we cannot allow to become the only option for some. Our system of justice is compromised when Legal Aid is not available to assist a person who cannot, by reason of economics or life circumstances, access legal counsel or representation. This is the basic premise underlying the actions of the Coalitions.

In addition to these important social policy issues, the Branch is also forwarding the concerns of our members whose practice includes Legal Aid work. Many of our private bar colleagues are experiencing severe financial and professional strain, because of inadequate and delayed payment for Legal Aid services. Those of us who work in LSS offices face the daily challenges of increasingly urgent cases and of turning away people in genuine need of Legal Aid.

The strain is being felt across the province. Concerns of the private bar in Prince George, for example, resulted in a series of resolutions passed March 18 by more than 90 per cent of those attending a meeting of criminal bar lawyers. Actions designed to protest the continued underfunding of the Legal Aid system include: attending a “Lawyers Study Session” on the last working day of each month; refusing to act on a Legal Aid basis on any Category One offences of sexual assault charges; refusing to act a as Duty Counsel or to make applications for judicial interim release on Legal Aid; and bringing Rowbotham applications in all suitable cases.

This dramatic action raises the legitimate question of why we, either as the Bar or as concerned community groups and citizens, have been pushed to public protests and lobbying when the government already has the means by which to adequately fund Legal Aid? Since 1992, a seven per cent tax has been imposed on all legal services in BC. This Social Services Tax--the only tax targeted at professional services in the province, and the only such tax on lawyer fees anywhere in the country--was introduced to “offset” the cost of Legal Aid. Based on the best financial information available to us, it is estimated that the Social Services Tax plus the federal government transfer payments for Legal Aid total at least $24 million more than the provincial government is currently allocating to the Legal Services Society. Thus, up to 30 per cent of the tax collected on legal services--which our clients believe they pay to support Legal Aid--is being used to fund other government priorities.

Our objective is simple: hold the provincial government accountable for living up to its commitment to adequately fund Legal Aid. If you want to get involved--by educating yourself about the issues, talking to your local MLA, or actively participating in the Coalition--please contact the BC Branch office or Doug Robinson, QC or Mayland McKimm, the two Executive Committee members leading the Branch’s involvement in this issue.

This article was published in the April 1998 issue of BarTalk. © 1998 The Canadian Bar Association. All rights reserved.