Justice Committee on Dec. 13th, 2016

[Voices]

Oh, oh!

[Ted Falk, Conservative, Provencher, MB]

I don't agree with the answer. I just gave him an easy question.

[Richard Fowler]

I'd be happy to talk to you. We have a different perspective. I appreciate that.

[Ted Falk, Conservative, Provencher, MB]

Certainly, when we create addictions among people and when we promote addictions, it will increase the use of our legal system. It will increase the necessity to provide legal aid.

[Richard Fowler]

We provide alcohol. Does that promote addictions? Are we going to go back to prohibition? I don't know. The sad reality is that some individuals deal with the problems they face as a result of their intersection with a difficult world by going to chemicals. We know that. It happens in every country in the world. It's happened in every generation going back thousands of years. People chew this leaf, they do this, they do whatever, as a way to ease some kind of internal pain. I'm sorry, but it's true.

[Ted Falk, Conservative, Provencher, MB]

There are better solutions, but thank you.

[Richard Fowler]

Maybe. I just don't know if we've found them yet.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

I'm going to get a response from all three of you. I'll start with you, Ms. Go. This morning I was reading a paper entitled “Canadian Jurisprudence Regarding the Right to Legal Aid”. It went over several Supreme Court cases, and it recognized that there is no overarching constitutional right to legal aid in Canada. However, when you read section 15 of the charter, which clearly states, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination”.

You look at the CBA's report and the very stark regional disparities. Even though we've had a Supreme Court ruling on the fact that there's no constitutional right to legal aid, I'm wondering if the spirit of the charter is being met across Canada. Instead of having the government being reactive, is there an opportunity for the government to be proactive in honouring the spirit of section 15?

[Avvy Yao-Yao Go]

I think certainly I would highly question whether the spirit of section 15 is being met and whether the spirit of the rule of law, which is the foundational principle of our Constitution, is also being met. It's not just across Canada. Even within Ontario, where it's one of the best-funded legal aid programs, you see disparities. We talk about the gender issue in terms of the difference between access to family law versus criminal law. You will see a gender difference in that aspect.

Of course, if you look at the fact that racialized group members are two to six times more likely to live in poverty, then you see a racial aspect as well. The impact on racialized groups and their access to legal aid is also affected as well. All of those issues, I think, come under section 15, but also I think, as Ms. Froc had mentioned, section 7 is an issue as well, and that has been used in some of the cases with respect to a constitutional challenge to access to legal aid for child protection cases, for instance.

I would say that the same argument goes with many other areas of law. When you're being evicted from your home, you should get access to legal aid.

[Kerri Froc]

Could I just answer it?

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

We'll go along.

[Richard Fowler]

I see it as a rule of law issue. It's a fundamental principle of our democracy that we are all bound to obey the same laws, and we pass laws constantly that have complex offence provisions and penalty provisions. Yet we do not provide any resources realistically to the bulk of society, the middle class and many impoverished people, to assist them in dealing with any potential transgression of the law. You can't even get legal aid to explain the law to you. If I do X, am I going to be in breach of this new statute that the provincial government passed? It's silly in a way when you look at it that way.

[Kerri Froc]

I would argue in fact that the court hasn't completely adjudicated on the extent to which the government has an obligation to provide civil legal aid funding. In the G. (J.) case before the Supreme Court, the court dealt with an element of that in child protection proceedings. In Christie, what the court said was that under the rule of law there is no generalized right to legal services, but to the extent to which in other circumstances there's a constitutional right....

My specialty in my area of study as a post-doctoral fellow is women's constitutional rights. What I look at there is in terms of the right to equality. Is the right to equality being satisfied when there's such underfunding of civil legal aid, which is mostly used by women, for example.

Looking at section 7 and the right to security of the person for women, is that being satisfied when abused women can't get away from their abuser because they can't access legal aid to have their cases adjudicated? So I would push back from that a little bit in terms of, not talking about the spirit of the charter, talking about the actual provisions of the charter and what is required by the provincial and federal governments in that regard.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

I have just a quick question.

Mr. Ferguson. I was wondering if you could provide the chair and the clerk the report that deals with Australia implementing its national benchmarks?

[The Chair, Liberal, Anthony Housefather]

Once it's translated, it will be distributed.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Okay, great.

Mr. Ferguson, if the government were to implement the national benchmarks for public legal assistance services, do you think that would be the hallmark of a progressive government? A quick yes or no answer, please.

[Doug Ferguson]

Yes.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

If my colleagues agree, I just have brief question.

Previously you were asked what the amount is that the federal government should contribute, what you would recommend that this committee tell the government we should contribute. I think it's difficult to come up with a number and we can always find formulas, but I think the most likely formula is that this current formula penalizes the working poor. It seems very clear that people on social assistance can get legal aid and a working poor person is discriminated against because they have a job and they're trying to sustain their families at a very low income level.

I think the real question that we should be asking witnesses is what level of income is it or what type of person today is not qualifying for legal aid who should qualify and what should this committee recommend that these national benchmarks, if we had them, be set at, and then from that we can extrapolate how much funding is needed. Does anybody have any ideas on what that amount should be?

[Doug Ferguson]

Yes, Mr. Chair. The benchmarks call for people who live at or below 150% of the low-income measure to be considered to be financially disadvantaged. That is found at the StatsCan website. There's a reference there in our report.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Ms. Go.

[Avvy Yao-Yao Go]

The other day I was at a round table with the minister responsible for the poverty reduction strategy. I think even the discussion around how to define “poverty” is ongoing—whether you look at the low-income cut-off or a low-income measure. Different people have different opinions, but I think it's a certain measure of low income.

Once that is defined, then I think anyone who falls under that should be able to get legal aid.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Fowler.

[Richard Fowler]

I don't think we can have a single benchmark for every area of the law. If somebody is about to lose their liberty, or their house, or their child, that may require a different threshold than some other kinds of problems. I just look at it that way. I think it has to be issue driven and consequence driven, because that's where the net saving is going to be. If you get it right at the front end, you get the most savings.

If somebody doesn't lose their house, doesn't have their child taken away when they shouldn't have had their child taken away, when other services could assist their family, that's when you realize the most benefit. Maybe that would mean that the threshold is higher, for example.