Justice Committee on Dec. 13th, 2016

[The Chair, Liberal, Anthony Housefather]

Good morning, ladies and gentlemen. It is a pleasure to call this meeting of the Standing Committee on Justice and Human Rights to order.

Today we are joined by three distinguished organizations to testify before us in our study on access to justice. We're joined by the Canadian Bar Association, represented by Kerri Froc, who is from the legislation and law reform group, and Doug Ferguson, who is a member of the access to justice committee. Welcome, Ms. Froc and Mr. Ferguson.

We're joined by the Canadian Council of Criminal Defence Lawyers, represented by Richard Fowler, who is the British Columbia representative. Welcome, Mr. Fowler.

We're joined by the Metro Toronto Chinese and Southeast Asian Legal Clinic, represented by Avvy Go, the clinic director. Welcome, Ms. Go.

We have agreed that the Canadian Bar Association will start, so I'm going to turn it over to you, and I think Ms. Froc will commence.

[Kerri Froc, Lawyer, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair and members of the committee.

The Canadian Bar Association appreciates the opportunity to comment on access to the justice system and legal aid, which is closely related to our mission.

The Canadian Bar Association is a national association representing 36,000 jurists across Canada. Among the association's primary objectives are to improve the law and the administration of justice, and it's in that context that we've provided our submission to you.

I'm appearing with Doug Ferguson, who is a member of our access to justice committee. He is also the director of the community legal services clinic at Western's law department.

I'll turn now to Doug Ferguson to address the substance of our submission to you.

[Doug Ferguson, Member, Access to Justice Committee, Canadian Bar Association]

Mr. Chair, it's an honour to appear before the committee today on behalf of the Canadian Bar Association. I want to thank you for inviting us to appear with you today.

The justice system in Canada today is in crisis. Many Canadians cannot afford legal representation, including the middle class. Court cases take years to come to a conclusion, and many Canadians do not understand their legal rights. Along with Parliament and the executive, the justice system is one of the three pillars of our democratic system. In other words, the justice system is the foundation of our democracy. If Canadians do not have access to the law they cannot obtain justice, and if they cannot have justice, they will lose faith in our democratic system.

Legal aid plays a major role in access to justice for many Canadians with low incomes. Our access to justice committee issued a report in 2013 on an initiative entitled “Equal Justice: Balancing the Scales”. I want to draw to members' attention two points from this report. First, spending per capita on civil legal aid—that is not criminal, not refugee, but everything else—declined by over 20% from 1995 to 2012. Applications for civil legal aid that were accepted declined by two-thirds. As for criminal legal aid, federal government contributions declined from about 50% of total cost to about 20% to 30%. Per capita contribution by the federal government for criminal legal aid declined by about 10% between 2008 and 2012. What are the consequences of this decline? Let me give you some examples.

For many years in Ontario, if you made the minimum wage you made too much money to qualify for legal aid. You were deemed capable of paying thousands of dollars to a lawyer to represent you. Family law is an area that is suffering greatly. In Ontario, and I believe it's the same in other provinces, anywhere from 50% to 70% of parties in the family courts do not have representation. These people are seeking child support, or they're seeking custody of or access to their children, and they can't navigate the system. It's too complicated, and because they don't have help and don't understand the family court rules, self-represented litigates clog up the court system. Cases are delayed, costs rise, and justice is not done.

Before going further I do want to recognize there have been some positive developments since 2012. The federal government added some funding in its last budget, and some provinces have made some improvements, but not for a minute should we believe that the funding issue has been resolved. It can only be described as a very small first step.

One of the most important recommendations in the Equal Justice report was to create national benchmarks for legal aid. This is the major point I want to make to you today. Canadians have the right to equality under the law, but under our current legal aid system, they don't get it. Each province and territory has its own legal aid system with different services, coverage, and standards. Financial eligibility differs from province to province, and coverage varies too. What is covered in one province may not be covered in another. For example, a tenant threatened with eviction and perhaps homelessness by a landlord may get legal aid representation in Quebec, but not in Ontario. Someone charged with shoplifting may obtain legal aid in Alberta, but not in British Columbia.

The CBA joined forces with the Association of Legal Aid Plans, which is the national association of all the legal aid groups in the provinces and territories, to formulate national benchmarks for legal aid, and these benchmarks were released this fall. There are six proposed benchmarks, and they are aspirational in nature. First is a national system that is sustainably funded and provides comprehensive, people-centred services tailored to local needs. Second is that services are to be provided to those with essential legal needs who are otherwise unable to afford assistance. Third is that legal services will be provided on a priority basis, which will vary across each province and region.

Fourth is that legal services will have a broad spectrum of services tailored to meet people's needs, circumstances, and capabilities. Fifth is that services must be of high quality, fully accessible, timely, culturally appropriate, and cost-effective. Sixth is that legal service providers should work collaboratively and be mandated to innovate, and work with other stakeholders to ensure an effective justice system. They would have indicators and measurements that must be aligned with those of other relevant organizations.

These benchmarks will ensure better equality among Canadians, while addressing local or provincial priorities.

There will be a cost to implementing these benchmarks. The cost, however, will not be as much as one would think. As you saw in our submission, studies in the U.S., the United Kingdom, and Australia show that on average for each dollar invested in legal aid, the social return on investment is six dollars, so a 6:1 ratio. Much of that six dollars is comprised of government spending in other areas such as decreased income benefits, increases in tax revenues, or decreased court costs.

The CBA has, over the years, called for these measures and we believe it's time to act before the deterioration in our justice system goes further. It's not just low-income persons who are being shut out of the justice system. It's the middle class, too, who cannot afford the cost of going to court.

The CBA calls upon the federal government to take two steps. First, we ask that it endorse and implement our proposed national benchmarks. Second, we call upon the federal government to remove civil legal aid from the Canada social transfer. You may recall that the transfer includes civil legal aid. We ask that they remove it and provide a separate, dedicated transfer for funding civil legal aid at levels that will support compliance with our benchmarks.

We'd be happy to discuss this issue further with members of all parties. This issue requires recognition of the long-term risk to our democracy if justice is not being done. It also requires the political will to deal with it.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Ferguson.

We'll go to Mr. Fowler.

[Richard Fowler, Representative, British Columbia, Canadian Council of Criminal Defence Lawyers]

Thank you very much, honourable chair and honourable members. It's a pleasure to be before you today. Thank you very much for the invitation to the Canadian Council of Criminal Defence Lawyers.

It's a pleasure to appear before you today and to assist you with respect to this very important topic. I've been a criminal defence lawyer for over 21 years. I've had conduct of trials and appeals in all levels of court in Yukon and in British Columbia, and I've appeared in the Supreme Court of Canada. I've appeared in 14 different supreme courts in British Columbia, and 36 provincial courts. Many of my cases have been funded by legal aid, managed by the Legal Services Society in British Columbia. I have about eight minutes to summarize my 21 years of experience with legal aid.

We live in a society governed by one pre-eminent constitutional principle, the rule of law, and yet very few members of society have the ability to hire a lawyer to help them understand the laws that govern all of us. There are many thousands of offences, not just under the Criminal Code but many other federal statutes and provincial statutes, and of course thousands of regulations and municipal bylaws. The people who pass our laws and create almost innumerable offences appear to put very little thought into how citizens can possibly expect to understand and defend themselves if they are ever charged with an offence. For example, in British Columbia, we modernized the family law and allocated no resources for legal aid, so 30% to 40% of family cases in the Supreme Court of British Columbia involve unrepresented litigants and all of the attendant costs in court for judges when these individuals appear without lawyers.

Many eminent individuals and organizations have studied legal aid or aspects of the justice system and commented on the necessity of proper provision of legal aid. In a report commissioned by the Law Society of British Columbia and the CBA, Len Doust, QC, concluded that legal aid must be considered an essential service. Legal aid should not be considered an afterthought, subsidiary to the needs of health and education, but as one means by which we educate individuals and keep people and families healthy. For many people, conflict with the law is an opportunity for change. As a lawyer, I'm often the first person to advise on the need for drug rehabilitation, alcohol rehabilitation, or mental and physical health needs. I regularly direct individuals to these resources.

The proper functioning of the criminal court requires well-trained, educated judges, crown counsel, and defence counsel. The provinces, by and large, have invested in judges and the crown, but have utterly failed to invest in legal aid, the means by which defence counsel learn to become barristers and advocates. We cannot afford to mentor the next generation of defence counsel through the funding of junior counsel in court. That's the only way you can learn to be a barrister, by being junior counsel to senior counsel. Without experienced, well-trained defence lawyers, the system will continue to struggle with delay.

The Senate is currently studying delay in the justice system. I had the pleasure of addressing that committee when they appeared in Vancouver earlier in the year.

We will continue to see trials go on longer than they should. This is not just my experience, but the conclusion of the LeSage-Code report that was commissioned by the Attorney General of Ontario, and it's also consistent with the comments of the Canadian Institute for the Administration of Justice report on mega-trials in Vancouver. Efficiency requires experienced lawyers. Studies have consistently shown, as my colleague said, that for every dollar invested in legal aid, there are economic benefits of between two to seven dollars.

This is, with respect, a non-partisan issue. The proper allocation of funds to legal aid can be supported philosophically, economically, empirically, politically, and ideologically. When I started in 1994-95, parking at the courthouse in Vancouver cost $3.50; it now costs $16. Legal aid rates haven't changed.

Society's most disadvantaged, society's poorest, our mentally ill, our impoverished, will often come into conflict with the law. How we help them at those times can be the difference between years more conflict with the law or addressing their needs and rehabilitation.

Healthy individuals equal healthy families. Healthy families equal safe communities.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Fowler.

Next we'll move to Ms. Go.

[Avvy Yao-Yao Go, Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic]

Thank you.

Thank you very much for inviting me. I'm here on behalf of the Metro Toronto Chinese and Southeast Asian Legal Clinic. I should mention that I'm also a bencher of the law society. The law society has struck a working group on legal aid, studying this very important issue, as we recognize that this is a critical issue that challenges all of us.

As I mentioned in my report, the clinic is a not-for-profit organization that provides free legal services to low-income members of the Chinese and Southeast Asian communities in the greater Toronto area. We provide a wide range of services in different areas of law, including immigration, employment, social assistance, housing, human rights, tax law, charter litigation, and anything that our clients need.

We were established in 1987. We're one of 76 community legal clinics in Ontario. Many clients served by our clinic face barriers in accessing the justice system, not only because they are poor but also because of their race, their immigration status, as well as the lack of linguistically and culturally responsive services in the justice system in general. All of those issues are compounded by the chronic underfunding of legal aid programs by both the federal and provincial governments.

A significant portion of our clients are individuals with complex legal needs, including people with mental health issues, immigrant and refugee women fleeing domestic violence or living in domestic violence situations, and non-status immigrants working in precarious job situations. Recognizing that the legal system often serves to perpetuate the disadvantages faced by marginalized communities, legal clinics like ours must engage effectively in advocacy work to address the underlying and systemic inequalities in our society and the inequalities faced by our communities, including racialized and immigrant, which are plenty. They experience higher unemployment rates, earn lower income, and are more likely to live in poverty, and as such, they are more likely to be homeless or in near homeless situations. Racialized community members face systemic racism in the criminal justice system and the justice system in general and are more likely to be overrepresented in the correctional system.

For all these reasons and more, access to justice, including access to legal aid and the fair representation in the courts and tribunal system are all important issues for these communities. Community legal clinics play a critical role in promoting access to justice. Clinics that serve specific ethno-racial groups, like ours, are keys to promoting access to justice for racialized communities.

However, a community legal clinic system can only succeed if it is part of a well-funded legal aid program that also supports the judicare system as well as duty counsel services in the courts and tribunals. Notwithstanding the recent increase to legal aid funding in Ontario, access to justice for most vulnerable individuals is still woefully inadequate. This is particularly true in family law, refugee law, and other civil law areas.

In Ontario, there is currently a funding crisis due to the deficit for refugee law certificates. Although legal aid expenses in refugee law cases have gone up from $17.6 million in 2013 to $22 million last year, the federal contribution has stayed the same at $7 million. We've heard about the drop in federal contributions in the criminal law area.

In attempting to address the funding crisis, Legal Aid Ontario has decided to claw back funding to legal clinics, which has affected our services as well. Given the ongoing challenges facing racialized communities and other marginalized groups in pursuing access to justice, in our paper we have made a number of recommendations. I'm going to highlight a few of them.

Number one, significantly increase the federal government's contribution to legal aid programs, and a significant portion of those increases must be earmarked for civil law and poverty law services.

Number two, adopt a racial equity impact analysis to examine and evaluate all laws and policies at the federal level to minimize, if not eliminate, the adverse impact of such laws and policies on racialized groups.

Number three, work with provinces and territories to create their own court challenges programs.

Number four, work with provinces and territories to develop a centrally accredited interpretation and translation service for all courts and tribunals.

Number five, develop a national access to justice strategy in tandem with the national poverty reduction strategy, based on social determinants of health, that recognizes the particular vulnerability of marginalized groups on the basis of race, gender, disability, and so on.

I know there is a suggestion about creating national benchmarks. We have some comments on that in our paper. I will make just one comment here. If you decide to develop a national legal aid benchmark, then one key suggestion that I would have is that these benchmarks not be set at a standard lower than what currently exists in Ontario, because Ontario has the best legal aid program in Canada.

In conclusion, an adequately funded legal aid program remains the key solution to promoting access to justice. As mentioned, rule of law is foundational to our constitution, and so is respect for minority rights. There is no rule of law if individuals are unable to recognize and enforce their legal rights due to a lack of legal representation. As for respect for minority rights, that rings hollow if racialized group members and other marginalized members continue to be left to their own devices when they appear before the courts and tribunals. The need to address this issue rests on all of our shoulders.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Go.

I want to thank all of the witnesses for being succinct and getting their statements in within the time limits. It's rare that that happens, so thank you.

We're going to start the questions with Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I will try to stay within the time limits myself, Mr. Chair.

Thank you very much for your testimony. This is very helpful to us to put this together. I know it's appreciated by everyone here.

I have just a couple of questions. One of the materials we were given here has a quote from an article on domestic legal aid's claim to equality, by Patricia Hughes. It's about 20 years old, but I'd just like to get your comments as to whether any progress has been made. I have a feeling there hasn't been that much progress.

Mr. Ferguson, you talked about the decrease in civil legal aid. Here's the quote from Patricia Hughes:

...men receive the assistance of the state in defending their abuse of women, while women receive less assistance fending off the abuse or removing themselves from it.

That statement is 20 years old. What's the situation today? Is it still the same? Has there been progress made in this area? It seems to me there might not be progress in terms of civil legal aid because....

[Doug Ferguson]

My understanding is that with respect to family law, 70% of the applicants for family law are women. They are still highly dependent on legal aid. As I mentioned, civil legal aid being decreased over the years has had a significant impact. In fact, you'll find, at least in Ontario and I can't speak to other provinces, that there's not much legal aid available in Ontario for family law except for child protection.

There are some duty counsels, of course, but they don't do trials. Their role for people is very limited.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Let me just ask you about lawyers. One of the suggestions in the paper “Reaching Equal Justice” was to make pro bono work mandatory. I know and you know lawyers who have taken on cases for which they haven't charged the client for everything that's been done. Sometimes you just try to help somebody.

What's this idea of making pro bono mandatory? I haven't practised legal aid law in Ontario in several decades, but I remember when they used to underpay us, and they took off 25% extra from the hourly rate for every hour. Supposedly that was our “contribution” to that. I wasn't too fussy about it then. I'm kind of curious as to what mandatory pro bono work implies for the legal profession.

[Richard Fowler]

Can I just address your first point about funding women in domestic...?

In British Columbia, if there's no risk of jail, which there wouldn't likely be for a first offender in a domestic assault situation where there are no serious injuries, that male won't get legal aid. The woman is unlikely to get legal aid in the domestic if there's a related family situation, so both individuals are going to be floundering within the justice system. We will then have the attendant costs of the court having to appoint counsel because it's not advisable, of course, for the man.... As we know, it's more often the man than the woman, but sometimes women are charged with domestic assault, too. However, it's not appropriate for the accused to be cross-examining the complainant, whether it's the husband or the wife, so we have attendant delays because the trial will have to be adjourned while counsel is appointed.

Then, of course, the related family case will be sidetracked because they really intersect. The family case will pass protection orders. There will be bail conditions under the Criminal Code. These won't be compatible, so applications will have to be made in the family court and in the criminal court, and none of these individuals have a lawyer. It's so inefficient. That's why a dollar invested can lead to seven dollars of savings. It's not a difficult issue.

In respect of the pro bono question, every lawyer who does legal aid does pro bono. The mandatory pro bono is directed, really, at the large law firms, where lawyers are making good incomes. They're being paid big hourly rates by corporations, very often, or by wealthy individuals. I think the mandatory pro bono is really aimed at those individuals and those large firms. As for the legal aid lawyers, we all do pro bono. A large percentage of the hours we spend on a case are not compensated. That's the reality, and it's getting worse and worse and worse.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Tell me the position of the groups. Should it be mandatory for the legal profession or legal firms to do pro bono work?

[Avvy Yao-Yao Go]

May I just suggest...?

Of course, access to justice is part of a key mandate of the law society, and it's one of our priorities. In fact, last year, at the strategic planning day at the law society, the suggestion of making pro bono mandatory for all lawyers did come up as one solution. However, it was very quickly shot down for a number of reasons. One was that it actually does not get to the heart of the problem that all of us are talking about today. In fact, it may penalize people who are already doing a lot of work, such as legal aid lawyers. It is not the solution at all.

But to address your first question, at our clinic, 25% of the clients who contact us for help seek help in the family law area. The majority of them are women. A significant proportion of them are in domestic violence situations, and a significant number of them will not get legal aid because of the very low income requirement to qualify for legal aid. Even with the new funding from the provincial government for Legal Aid Ontario, people still have to live way below the poverty line in order to qualify for legal aid. They have a slightly higher eligibility for people in domestic violence situations, but again, it's still very low and it doesn't cover all areas of law within the family law context.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Fair enough.

Mr. Ferguson, do you have any comment on the mandatory pro bono?

What about you, Kerri Froc?

[Kerri Froc]

The CBA policy that was passed by our council says that lawyers should aim for 50 hours a year, or 3% of billings. Our Equal Justice report is a visioning document—what does equal justice look like in 2030? In terms of what the official CBA policy is, that's in our resolution that talks about that being an aim of lawyers.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's an aim for lawyers. Do you consider that it should be mandatory within the legal profession?

[Kerri Froc]

What our policy says is that it's an aspirational aim. It's not mandatory in our CBA policy.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think you'd agree with me that lawyers do that in any case, or for the most part.

Let me ask you one last question. It's with respect to the CBA position on legal aid.

You said that there should be federal leadership and responsibility for both criminal and civil legal aid. Tell me what you mean by “federal responsibility”. As you know, with provincial programs, the provinces are usually pretty touchy. They usually just say, “Send us the cheque, and we'll know what to do with it.” Is that responsibility something moving that jurisdiction over to the federal level, or is it just for the federal government to become more involved?

[Doug Ferguson]

Of course, it's a provincial responsibility. There's no question about that. However, the Criminal Code is a matter of federal jurisdiction. The administration of justice is up to the provinces, but so is health. We think the federal government can play a constructive role. It has to be negotiated with the provinces, of course. They have to consent to it. I think in the circumstances if there's political will on all sides, they can come to an agreement that satisfies both sides.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you all for being here. I appreciate your testimony.

My question is for the Canadian Bar Association. In your brief on page 5, you say that in 2003 you called for a separate federal access-to-justice transfer to emphasize that access to justice should be seen as an essential public service and given similar recognition as health care under the Canada Health Act

First, do you still call for that? Second, what would that look like? The Canada Health Act basically provides a national framework. It designates the basic services we want to see right across the country and says that in exchange for each of the provinces living up to those standards, we will write a cheque. Is that the sort of thing we're talking about?

Third, would this extend to the level of medicare, say, some sort of legal care approach, where we have a single, publicly paid, private delivery situation, if that doesn't terrify the lawyers?

[Doug Ferguson]

With respect to the publicly paid system, there has to be some kind of minimum standard for income. This is not intended to be universal legal care we're talking about here. What that minimum income is can be negotiated. Whether it's the basic poverty level, whatever that may be, or something above that or below that, it has to be something that will....

Here's my concern. If someone has been charged for shoplifting, that will affect their whole life. They may have a defence, they may not, but they should be aware of their rights and dealt with accordingly. If they have a defence, they should be entitled to it and they should use it. These issues that come up are so important to a person's life. They need the ability to deal with it in a knowledgeable manner. As I said, even the middle class is having some difficulty.

I'm going to go off on a bit of tangent here, if I may. I'm speaking for myself here, not for the CBA. There's more than one path to justice. I think we should be looking at alternatives to going to court whether it's mediation or.... Actually, our access to justice report talked about having a system of triage where people coming into the justice system can be diverted to mediation, or counselling, or to court. There are various ideas. They won't cost much money. People may still need some legal services, but it would be minimized and more timely.

Timeliness is so important in this system. I'm told that in many areas of Ontario if you're asking for a Superior Court trial or civil court trial, you're looking two years into the future. Part of the reason for this is that the criminal system has to be given priority because of the recent Supreme Court decisions. However, justice delayed, as we all know, is justice denied, and it increases costs for everyone. It's not just a case of that. We have to find ways to find efficiencies, make things move faster, and still provide justice to individuals.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

Ms. Go has something to say.