It is essential for Access to Justice.

By David Dundee

On April 17th the CBABC will be one of the sponsors of A Day for Legal Aid at the Vancouver Public Library. It will occur during the annual Law Week activities. The feature will be a panel discussion hosted by our president, James M. Bond, at which representatives from the Bench, LSS, lawyers and community service groups will be asked to address the title question.

I thought I might lead off by saying a few words about why legal aid is important to me and why it should be important to the CBA and its members.

As with most of my colleagues, I do not accept legal aid referrals because I need to. We would do much better financially without them. We do it because we feel an obligation: to the clients, to the judges and to the system. We know the good it can do and how helpless many of our clients would be without it. We also know the time it saves in court and the efficiencies it brings to the system. You have only to drop in for a day in criminal or family remand court to understand that.

But we also know that legal aid is broken. It gets more so as time goes on and the last fourteen months or so have seen some of the most damaging and potentially irreversible changes in a decade. It is dismaying and it has caused many lawyers, especially senior counsel, to reconsider our involvement.

President Bond has made legal aid a top priority for the CBABC and he is to be commended for it. Yet I also know that for many CBA members it is hard to get animated about this issue. They hear LSS say how everything is fine, they hear folks like me rail against the tide and they wonder whom to believe. Some, too, think this is just a political issue and that the CBA should have no part of it.

For those, I would remind you of two things. Firstly, while the Supreme Court of Canada would not recognize a generalized right to legal counsel, it did affirm “the important role that lawyers play in ensuring access to justice and upholding the rule of law.”¹ That role is so vital that it has been given constitutional protection in certain cases, primarily where the power of the state is brought to bear against its citizens, in the form of criminal charges or actions to take away one’s children.

I would only add that state oppression can also arise in social justice (poverty law) cases. In my field, family law, state power may not be involved, but there are many examples of economic, physical or emotional oppression. All need legal aid to correct the balance and a depressingly few get it.

Legal rights are an illusion if one does not have the means or education to exercise them. Access to justice must be more than just an open courthouse. Nor is legal information any substitute for training, experience and professional judgment.

Legal aid is an essential element of our criminal and family justice system, yet it is consistently neglected and underfunded. While judges, Crown counsel, court staff and police get regular raises, legal aid gets left behind – or cut. While senior Crown get promoted, senior defense counsel leave legal aid in disgust.

Secondly, I would remind all of us that the seven pillars of the CBA include commitments to: (a) improve the law; (b) improve the administration of justice; and (c) improve access to justice. These are core values and for good reason. The law and the administration of justice are the institutions we serve. They are the house we live in. If we do not value and protect them, we can hardly expect the government or the public to do so.

Legal aid is in crisis. President Bond proposes we do something about it. I support him in that effort and I urge all members of the Branch to do the same.

1. BC (AG) v. Christie 2007 SCC 21, at para 22

David Dundee is a lawyer with Paul & Company and Co-Chair of the Kamloops Family Law Section.

This article was published in the April 2010 issue of BarTalk. © 2010 The Canadian Bar Association. All rights reserved.