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CBA Position on Legal Aid

A decade of cutbacks has left Canada’s legal aid system in crisis. The CBA has launched a major national initiative to raise awareness of the importance of adequate legal aid services to our system of justice and to try to resolve the crisis.

The CBA believes that lawyers have a responsibility to:

• actively support legal aid programs
• speak out against threats to state-funded counsel, including underfunding of legal services and funding cutbacks, and
• contribute to a positive dialogue on how to improve legal aid service delivery.

The CBA has five-point platform on legal aid reform:

• Legal aid should be recognized as an essential public service, like health care.
• Public funding should be confirmed as necessary to ensure access to justice for low-income people.
• Public funding for legal aid must be increased.
• National standards for criminal and civil legal aid coverage and eligibility criteria are required.
• The federal government should revitalize its commitment to legal aid.

Legal Aid is an Essential Feature of Canadian Democracy

Legal Aid is a Fundamental Feature of our Justice System and our Democracy.
Legal aid provides access to legal advice and representation to low income individuals. Without legal aid, the most disadvantaged people in our society would be effectively barred from protecting their rights and interests through the legal system. Our sense of justice and democracy demands that this barrier be removed.

Legal Aid is a Question of Fairness.
Fairness — blind justice with a balance in her hands — is at the core of our judicial system. If one party to a legal proceeding is represented by a lawyer and the other party is not, the fairness of the proceeding is called into question. This is especially true if the State is a party to the proceeding, for example in criminal law or child protection matters, and if the other party does not have the benefit of legal counsel because he or she has very limited financial resources.

Legal Aid is Required by the Canadian Charter of Rights and Freedoms
Several provisions of the Charter recognize the need for legal aid. It is an aspect of the right to a fair trial (section 11(d)), to life, liberty and security of the person (section 7) and to equal protection of the law (section 15). Although the courts have only applied Charter rights to legal aid situations in a few cases, it is clear that the Charter offers a constitutional safety net: a minimum service that must be made available by the government to those in greatest need.

Legal Aid is Promised in Canada's International Commitments.
Canada is a signatory to a number of international conventions and treaties that speak to the right to a fair hearing, the equal treatment of all persons before courts and tribunals and the entitlement to equal protection of the law. Canada has an obligation to put these promises into effect.

Legal Aid is Intrinsic to the Rule of Law.
Canada’s legal and political system is based on the Rule of Law, which holds that the government is bound by rules which are publicly known and cannot be arbitrarily changed. The Rule of Law is undermined if there is no assistance for people to use these rules to resolve conflicts.

The Current Status of Legal Aid Service Delivery

The crisis in legal aid has four facets: underfunding, discrepancies in coverage among jurisdictions, fragmentation in coverage within a legal aid program, and disproportionate impact.

Underfunding
Across the country, needy individuals with serious legal problems are turned away from legal aid and forced to represent themselves in complex legal proceedings. Large numbers of legal aid applicants are rejected in some provinces. The numbers are even more discouraging when you consider that some people don’t even bother to apply for legal aid, suspecting that their request will be rejected, and others are discouraged from completing the application process by legal aid staff who know that they do not meet the eligibility criteria.

Disparities in Coverage
There is inconsistent legal aid coverage throughout the country. For example, while Manitoba provides legal aid services to a woman to deal with child custody and support matters, British Columbia would not. The disparity in coverage does not afford all Canadians equal protection under the law. Essential public services of reasonable and comparable quality are not being provided equally across the country.

Fragmentation
Legal aid coverage is only available for specific legal problems and procedures in a jurisdiction. A lawyer cannot always provide full service to a legal aid client because funding is only available for one aspect of the person’s legal problems. Partial coverage is incoherent, unsatisfactory to the person in need of legal assistance and creates inefficiencies in the system.

Disproportionate Impact
Cutbacks in legal aid services, restrictions in eligibility for legal aid and a narrowing of legal aid coverage obviously have a direct impact on low-income people for whom the service is intended. The low-income population is made up of a disproportionate number of women, people with disabilities, recent immigrants, members of racialized communities and Aboriginal peoples.

Social Costs of Inadequate Legal Aid Services
When people cannot use the legal system to protect their rights or defend their interests, there are costs to the individuals and to society, as a whole. Here are some examples of the social welfare costs that can result from a person not being able to access legal services.
-the costs of incarceration
-the costs when an individual loses a job as a result of having a criminal record
-the costs of caring for children who are made wards of the state
-the costs of safeguarding women who are unable to get legal protection from an abusive spouse
-the costs of supporting a parent and children when the parent cannot establish and enforce support obligations.

Debates Over Delivery Models
For 20 years, discussions about legal aid have been dominated by debates over the merits of legal aid delivery models — legal aid clinics with staff lawyers versus judicare with legal aid provided by members of the private bar versus a combination of both. Research on the efficiency and cost-effectiveness of these models is inconclusive. Regardless of the merits of the different models, it is clear that the debate has stifled innovation in legal aid service delivery.

It is time for a fresh approach. Discussions about legal aid must be built on the strong constitutional and policy requirements for an adequate legal aid system. They must consider issues of access, quality of service and independence. They must engage the public in a more profound and nuanced understanding of the complex legal aid situation and of the bottom line — if legal aid fails, justice fails.

Constructive Solutions to the Legal Aid Crisis
Yes, there is a need for more money for legal aid services across Canada. But, there is also a need to find better, more cost-efficient and effective ways to deliver these services, based on:
-a client-centred approach
-a more flexible approach to legal aid service delivery
-a more complex, mixed model of service delivery, and
-a commitment to new approaches to service delivery.

A Client-Centered Approach
The starting point for legal aid reform must be a commitment to a client-centred approach. Too often, legal aid clients have had to fit into a system designed to meet justice system needs rather than their needs. The time has come to turn this around. We must consult closely with legal aid clients and low-income people in any reform efforts.

A More Flexible Approach to Legal Aid Service Delivery
Not all legal problems have to be solved through advocacy and court representation by lawyers. Focusing on client needs is likely to lead to the development of a broader range of services including public legal education and assisted self-representation and a broader range of appropriately trained, regulated and supervised professionals providing service. 

A More Complex, Mixed Model of Service Delivery
A complex mixed model is an integrated set of delivery mechanisms that are developed to deal with specific needs. Under a mixed model, legal aid service delivery could involve a variety of service providers and organizational structures, including staff lawyers, private bar lawyers, an expanded role for duty counsel, contracted legal services and specialized legal aid clinics.

 A Commitment to New Approaches to Service Delivery
Lawyers have an important role to play in fostering innovation in the delivery of legal aid services. We must be open to new ideas and supportive of pilot projects which test them out. 

The Federal Government has to Revitalize its Legal Aid Role
The federal government’s commitment to legal aid has waned over the last decade. This decline can be seen both in terms of a substantial decrease in the federal contribution to legal aid funding and a diminished role in legal aid policy development. A revitalized role for the federal government is essential to rebuilding legal aid in Canada.

Section 36 of the Canadian constitution gives the federal government the specific responsibility to ensure access to essential social programs to all Canadians, wherever they live in Canada. This responsibility was reaffirmed in the 1999 Social Union Agreement that provides a framework for federal, provincial and territorial relations. The Social Union Agreement is a strong platform on which the federal government can base a renewed and revitalized role in legal aid.

The CBA has long held the view that the federal government should take four main steps to ensure national equity in legal aid.
- increase its financial contribution to criminal and civil legal aid
- take a leadership role in negotiating national standards for legal aid
- enact federal legislation on essential legal services
- create a national civil legal aid tariff.

The CBA will continue to work closely with the federal government to achieve national equity in legal aid. In order to succeed in this goal, we must work to ensure that the Canadian public knows more about the central role of legal aid in our justice system and our democracy. We all need to understand and recognize that providing legal aid to low-income Canadians is an essential public service. We have to think of it in the same way we think of health care or education. The well-being of our justice system depends on it.

Getting Involved

For information about getting involved with the Legal Aid Liaison committee, contact Gaylene Schellenberg, Staff Liaison, at the CBA's National Office (1-800-267-8860, ext. 139; gaylenes@cba.org).