Justice Committee on Dec. 13th, 2016

[Avvy Yao-Yao Go]

As to the federal government's role, there are two ways of looking at it. On the one hand, a lot of the laws that pass at the federal level have a direct impact on legal aid. Although the administration of the criminal justice system is provincial, criminal law itself is a federal jurisdiction. Every time the law is changed, it will affect the legal aid program. The same is true with immigration law, and with refugee law.

On the other hand, you can look at it the same way you look at the housing issue or the poverty reduction strategy. It is a strategy that includes a lot of different components. There are components that have a provincial government kind of mandate, but there are also components that fall under the federal mandate. Rather than trying to decide which is in which mandate, if you come up with a comprehensive plan looking at how to address this issue in partnership with the provinces, I think then you will have a better solution. The different provinces may have different solutions as well.

[Richard Fowler]

I will just add to that. One of the...I'm going to say “problems” but it may not be the right word. However, the fact of the matter is that criminal law is a federal jurisdiction but it's administered provincially.

Let's take an example of an individual who is charged with murder, and he's convicted. He will end up going into the federal correctional system, and he may be there for a number of years. In the meantime, he has an appeal ongoing. If he is successful in his appeal, he'll be immediately taken out of the federal institution and put into a provincial institution, a pretrial. Let's say that he's then retried and he's acquitted. That's been a huge waste of two years in a federal correctional facility. It's been a waste of resources in the provincial facility, and he may have had a new trial because his first trial didn't go properly because of the inexperience of his trial counsel who is a poorly trained, poorly paid young lawyer—no disrespect to that lawyer.

If we invest at the front end and ensure that the first trial goes appropriately, all of those wasted expenses won't accrue. That's why, again, we see a 7:1 or 5:1 payoff for every dollar invested in ensuring that the system runs correctly at the front end.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. MacGregor.

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

Thank you, Mr. Chair.

Mr. Ferguson, I want to follow up on the line of questioning from Mr. McKinnon.

It's quite obvious in your report, on page 2, that you directly tie the current difficulties in access to public legal assistance to the federal government's decision to transfer funds to the Canada social transfer back in the 1990s.

Mr. McKinnon quoted from page 5 of your report. Just above where he quoted, it says that in the year 2000 you urged “the enactment of federal legislation to establish access to legal representation as an essential service”.

This committee is going to be issuing a report. We're going to have some recommendations, and of course we want those recommendations backed up by witness testimony. For our recommendation to the Minister of Justice from this specific report, can you give us some ideas of what key components you want to see in that legislative framework so that hopefully we do see a government bill come as a result?

[Doug Ferguson]

One thing we need to recognize is that when a person has legal problems, there is a ripple effect. It affects their income, it affects their employment, it affects their health, and it affects their housing. What we have to recognize is that any framework has to take that into account. There are going to be other issues we need to deal with.

I don't think there has been a study done in Canada yet, but I'd like to see a study done by some academics, perhaps from my own institution, on that issue. There is no question that it happens, so there has to be a multidisciplinary approach to this. Also, that could involve, whether it's diversion into other.... I'm talking about a triage system, and so on.

The other issue that I've come to see from working on this report is what I call the silo effect. We have 13 provinces and territories, each with an attorney general. We have, I'm guessing, 50 different courts among all the provinces and the federal system. We have the different legal aid plans and so on. It is so difficult to get all the pieces to work together and get everybody talking. We have to find a way to coordinate and have these common goals; otherwise, this will be totally in vain. We'll just be talking into the wind here. There has to be a national effort at every single level.

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

Thank you.

I think it was mentioned in the opening testimony that 70% of family law applicants are women.

[Doug Ferguson]

Correct.

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

Since 1995 when the government changed civil legal aid to the Canada social transfer, the consistent federal response, when pressed on this problem, has been that money for civil legal aid is in the CST; it's there. The consistent provincial response is that the federal government gives no money for civil legal aid. We see this story play out between the provinces and the federal government in so many different areas.

Given that women are such a huge majority of the users of civil legal aid, what can we do to help women access the legal system to make sure that, when we're conducting a gender analysis, there is equal treatment not only for women but also other disadvantaged groups?

[Doug Ferguson]

The key there is the funding, of course.

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

Yes.

[Doug Ferguson]

I think that taking it out of the social transfer, the CST, would be a good start. Also, the benchmarks would be helpful, too, because you're quite right; it's not just women in family law. My clinic, for example, handles a lot of landlord and tenant issues and many people with mental health issues. I had one case in which a gentleman who came to us had brain damage from an accident and was tossed out by the local housing authority. He was going to be homeless unless he found somebody to live with.

You don't hear about those stories in the newspapers, but this is real. It's out there. That's why I'm talking about having a multidisciplinary approach, having specific targeted funding by legal aid outside the social transfer, and hopefully coming to an agreement with the provinces on what that money is for. There has to be an agreement. I don't see the federal government being able to impose that, nor do I see them giving the money without strings.

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

For my next question, I'll get all three of you to respond, starting with you, Mr. Ferguson, because it was your report. In your “Reaching Equal Justice” report, on page 52, you go into detail on the costs to society and so on.

For the record, from all three of you, I want some of the personal experiences you've seen of the cascading effects when we don't fund legal aid properly and what that result is for society. As you mentioned, we tend to look at these things in silos, but it's important that they don't happen in a vacuum. It's a holistic approach. If we can save money in other areas by directing this targeted funding, I'd love to hear your feedback on that.

[Doug Ferguson]

For example, in London—and I can only speak to London—at the landlord and tenant board, there is a duty counsel who does not do any hearings. He simply meets with people ahead of time. They go in there on their own against landlords who have sophisticated lawyers or paralegals. If they're being evicted, they become homeless. Where does that go from there? Well, they go to the Salvation Army or something. There's an extra cost to the province, and perhaps, for Ontario Works and so on, or for disability payments. You name it, it's going to cascade through the system—

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

May I also, because my time is limited, get a lawyer to answer? Sorry, Mr. Ferguson.

Mr. Fowler.

[Richard Fowler]

Let's take a very simple situation. A young individual with a family has developed an addiction problem, for whatever reason, and he has started stealing from his employer. He's going to be charged with theft. He may or may not make bail. Let's say he makes bail. His mental health will deteriorate. His family circumstances will deteriorate. His marriage will deteriorate. What may flow from that may be some domestic conflict, and then we have the family court involved. The Ministry of Children and Youth Services will become involved.

What we need to do is look at this as a holistic unit where one of the individuals has some problems, but we need to help the whole unit. The health ministry needs to be involved. The Ministry of Children needs to be involved. The criminal justice system needs to be involved.

You've talked about what role the federal government can play. They have tremendous moral suasion, I would say, over the provinces. They transfer an enormous amount of money to the provinces. I would strongly suggest that, as a precondition to receiving some of those transfer payments, we establish national standards for legal aid and for transfer payments on health, because the criminal justice system and the health system are intimately linked.

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

Ms. Go, quickly, please, could I have your perspective?

[Avvy Yao-Yao Go]

I would suggest that in terms of a legislative framework, or other frameworks, you look at requiring a race impact and gender impact analysis of the programs and the funding that is being spent on legal aid. In terms of the cascading effect, basically you will be better off going on social assistance in order to get legal aid. If my clients still have low-paying jobs and are fleeing domestic violence, they will not get legal aid.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you, ladies and gentlemen, for coming in and providing your very valuable testimony.

I have a constituent who is working at a minimum wage job, is the mother of three children, and is going through divorce proceedings. It's tough for her. She can't afford it, and she has come to me looking for help. This study is very important not just to me and not just to this specific lady, but I think to all Canadians.

Over the past year, we've really looked at how we can improve access to justice. We've looked at the court challenges program. We've allotted funding for that. We know that at the federal level we're providing transfers to the provinces. The province itself is doing the work to make sure there's access to justice, but still, access to justice is elusive for a lot of Canadians. What's lacking? The different levels of government are trying, but why are we not succeeding? Why is there this gap? If you can, please explain this.

[Avvy Yao-Yao Go]

I'll start. It's that the funding just isn't adequate at all to meet the needs. The example of Ontario is that even if you live below the poverty line, you will still not get legal aid if you don't meet the very low financial eligibility requirements, and at the same time, the government is spending more and more money on the criminal justice side. There is more investment on the other parties within criminal justice, for instance, the police, the crowns, the courts, and there is no relative increase to legal aid so the system becomes more and more lopsided.

Whether it's in criminal, whether it's in family, you just don't have the same level of funding to meet the needs.

[Richard Fowler]

In British Columbia, we have the provincial sales tax on legal fees, so that 7% of all legal fees is a provincial sales tax to the province. It was brought in ostensibly to fund legal aid. It now just goes into the general revenues. Last year British Columbia raised about $160 million on the provincial sales tax on legal fees and they contribute around $80 million to $90 million to legal aid, so every year they are putting about 80% or 90% into general revenues from the provincial sales tax.

If we dedicated the whole amount of the PST, we would have a reasonably good legal aid plan for criminal law. It wouldn't address all of the other issues, but we have to start seeing the actuarial benefits for the investments. It's quite simple. You put a dollar in; you save this amount. Once people start looking at the system more holistically, get health involved, get housing involved, and look at not just individual people but individuals as parts of families, and families as parts of society, we will start to see the benefit to investing, and it really is an investment in legal aid.

[Doug Ferguson]

It comes down to priorities. The provinces have been under a lot of pressure to fund health care and education, in particular, and as a result, the justice system has not been given a priority. We're operating now, members, with a 20th-century or even a 19th-century court system in the 21st century. We need to have a really hard look at that.

As I said earlier, this is a foundation of our democracy and that's been lost in the discussions. This is so important to our system of government.

If I may just change gears slightly, going back to Mr. MacGregor for a moment, the Commonwealth of Australia put together an agreement to set some national standards for legal aid in 2015. We have a copy of that agreement here. My point is that it can be done in a federal system.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Is it just a matter of money? Is it just a matter of funding? Is that what the lack is, or do we have some issues with our process? How is each individual province and territory tackling the issue of access to justice? Are we lacking something at the provincial level with having an efficient process and providing that access? Do we need a national strategy?

Many of you have mentioned that we do, but how do we deal with issues of different demographics for each province and territory in coming up with a national strategy? I personally don't think that money is the only issue here. There does need to be an improvement of the process in which we provide access to justice.

I'd like your thoughts on that.

[Richard Fowler]

The simple fact is that every participant in the criminal justice system is talking about access to justice and making changes, so the rules committees of various courthouses, certainly in British Columbia, are revising the rules. They're revising the forms. They're simplifying the process, but it doesn't matter. At the end of the day, the law is complex. Unless individuals can get a lawyer at the front end to assist them in managing their way through the justice system, it does not take long for things to go sideways, for individuals to self-represent in the criminal courts. What happens when they self-represent in the criminal courts is that appeals are likely. In the family court it just takes so much more time.

The reality is that we have to start not only looking at all of the other processes that will increase access to justice but increase the budget for legal aid at the same time, and to understand that defence lawyers and family lawyers are an intricate, integral part of the system. They're not just an add-on. The system will not work without them, and that's been shown time and time again.

[Kerri Froc]

What we're trying to do with the benchmarks is broaden the discussion from “the system needs more money”, which it obviously does, and the need for belt tightening. We're trying to open up that discussion.

For example, there needs to be a coordination between the justice systems and other areas—health, social services, that kind of thing. That's what I think our last benchmark really speaks to, the need for a coordination of the system and also a coordination within jurisdictions. We recognize very well that there are going to be differing priorities in different jurisdictions, and we're saying that our benchmarks allow for a flexibility in that, so that local priorities can be reflected in those benchmarks. We need to have a common language to have a discussion and to know what, concretely, the goal is that we're trying to meet.

What we're trying to say with the benchmarks is that we need all of the stakeholders, provincial government and federal government, to meet and collaborate and agree upon common aspirational goals to do all of these things. Yes, it's money but it's also the need to look not just at legal representation but at triage, to look at different paths to justice and make those a reality for people.

In the example you gave of your constituent, it's also a matter that in criminal legal aid there has been seen to be and there are foundational constitutional principles at play, but there needs to be a deeper recognition, particularly for groups such as women, that there are also constitutional rights at play: section 7 rights, the section 15 right to equality, and section 28, which says that women's rights have to be taken equally seriously as those of men. The right to liberty for an abused woman, for example, has to be taken equally seriously.