Legal aid should be publicly funded and available to all members of a democratic society, particularly those who are vulnerable or disadvantaged, says a new report from The Law Society of British Columbia.
“All people, regardless of their means and without discrimination, should have access to legal information and publicly-funded professional legal advice to assist them in understanding whether a situation attracts rights and remedies or subjects them to obligations or responsibilities," says the report entitled: “A Vision for Publicly Funded Legal Aid in British Columbia,” issued by the LSBC Legal Aid Task Force.
Nancy Merrill, who chaired the nine-member task force, said: “Everyone should have universal access in terms of a diagnostic service and be able to find what legal services are available.”
While the vision was designed to be inclusive rather than excluding sectors of society, Merrill said the task force did not “drill down” to examine who should provide this advice. The advice would also consider the individual’s ability to access the free market for legal services.
The task force, struck in Sept. 2015, was charged with developing a vision of legal aid for the LSBC that was in line with s.3 of the Legal Profession Act. For the past 15 years, the LSBC has been silent on the issue.
The report, though, stops short of advocating for universal legal aid. Merrill said that the full range of fully funded legal services (advice through to court appearances) would go to a society's more marginalized or at-risk individuals. The LSBC vision sets these out as legal issues involve the state where liberty or security of the individual is at risk; children whose security is at risk; people with mental or intellectual disabilities that impair their ability to access government or community services; family law where the physical, economic, or emotional security of a family is at risk; persons disadvantaged because of poverty, and immigrants and refugees.
Merrill acknowledges these categories are similar to those that the Legal Services Society lists as eligible for legal aid. The difference, she said, in the range of problems that should be considered. The LSBC vision is broader.
“LSS is quite limited in the support it can give,” she said, adding that reduced funding has narrowed the scope of cases it can handle such as criminal cases resulting in the possible incarceration or family law matters that involve domestic violence.
“They (LSS) have had to make difficult decision and decide how best to use their resources.”
While the task force report’s view of legal aid is different from the scope of aid currently provided, it is not "meant to prescribe to government, the Legal Services Society, or any other bodies as to what their vision of legal aid needs to be."
Merrill said the task force report, which has now evolved into a LSBC legal aid committee, has attempted to refrain from “government-bashing.” Rather it sets out a long-term vision and position for the LSBC benchers and subsequent benchers to adhere to.
The LSBC vision is premised on the concept that justice is a fundamental human right but not all individuals have means or ability to pursue that right and that Indigenous people, especially, have been historically disadvantaged in their ability to achieving that right.
The report says the two main barriers to obtaining legal services are the cost and the complexity of the law as it relates to cases. The number of self-represented litigants going to courts plus the time that these cases require — as individuals struggle with the process and concepts of law — all point to the need for more funding to ensure that individuals are receiving justice, it says.
The report also touched upon the need for building a business case for broadening public funding of legal aid. Merrill said this is an aspect that the new legal aid committee is aware of. She said such a business case would be complex but some known figures are available such as self-litigated court cases taken, on average, three days longer and that has impacts on court costs.
The report draws similarities between B.C.'s publicly-funded health care and education systems. Few individuals would be able to afford the true cost of medical care or education today, it says.
“When one accounts for all the necessary expenses of life, most people will have little money left to afford traditional systems of justice or access to many of the services lawyers provide when addressing a legal issue,” the report says. “Money dictates the nature of justice most people will realize in their lives.”
In the same vein that publicly funded health care and education provides a benefit to society, so does publicly funded legal aid, the report argues, as law defines daily interactions, rights and responsibilities, commerce transactions, and, the ordered existence of society and government.
"The rule of law and the promise of a justice society are also supported by helping people live lives in a manner that reduces the need to interact with the formal civil and criminal justice system," the report says.
The report also touched on one of the basic problems that affect legal aid today in B.C.
"The majority of defense counsels who take on legal aid work do so at an economic loss," the report says, noting low tariff rates. “No one is getting rich doing legal aid work.”
A LSBC commissioned study looked at lawyers carrying out legal aid and found most do so because of professional responsibility or the interesting nature of the work. The study also found 40 per cent of legal aid lawyers lost money on cases, while 46 per cent broken even while only 12 per cent managed a profit. Sole practitioners were more likely to break even or turn a profit.
Respondents mentioned the legal aid billing system as a deterrent as well as tariffs. The report considered means of encouraging lawyers to undertake more legal aid work such as giving continued education credits and emphasizing the importance of providing legal aid services to new lawyers entering the profession. It also emphasized the importance of having members of the legal community stress to the public and to their members of the legislative assembly in B.C. the importance of a comprehensive legal aid system and its benefits to society.
The task force members serving with Merrill were Richard Peck (vice-chair), Pinder Cheema, David Crossin (life bencher), Tom Christensen, Lance Finch, Linda Thomas, Sarah Westwood, and Janet Winteringham. Prior to being appointed to provincial court in January, Judge Patricia Stark participated in the task force but was not involved in the drafting of the report.