Justice Committee on Dec. 13th, 2016

[Richard Fowler]

I differ from my friend a little bit. I think the answer to many of the problems in the criminal justice system with delays and inefficient trials is actually a proper allocation of funds, so that senior counsel can now train junior counsel, so that those junior counsel become the best possible lawyers, to make the best possible decisions about whether a case should go to trial, and when you're in trial, to make the best possible decisions about whether to argue this issue or not argue this issue. That's how you get efficiency. It's by making sure that criminal lawyers are as well trained as they can be.

I don't, with respect, think the answer to the problem is to bring more young people, more students, in to do cases without supervision. We need to train everybody to become as good a lawyer as they can be.

[Avvy Yao-Yao Go]

I'm somewhere between the two positions.

I see a difference between students, law students, articling students, and paralegals, because law students and articling students always work under the supervision of a lawyer. The lawyer is ultimately accountable for their work. I don't know about criminal law, but I think there are situations in other civil law areas where liberty is not at issue and where maybe students can play a bigger role.

I think I would use Mr. Ferguson's definition of what is essential. If you have liberty issues, where significant equality rights issues are at stake, then I think it's important to have proper legal counsel, and I agree with Mr. Fowler, as well. In Ontario, they have now started to fund a second chair for criminal law, so that senior counsels can work with junior counsels in order to train them on complex criminal cases.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair. Thank you all for being here today and for your thoughtful comments.

Ms. Go, you mentioned that one of the issues with legal aid services is the problem with middle-class people not being able to afford legal services. I believe you mentioned that. One of the suggestions that I've heard is to allow for contribution agreements for legal aid services. Last week, we heard from the department that only 7% of revenues come from contribution agreements or from the clients themselves making contributions to their legal aid services.

As you know, we have this problem where people who are very poor get legal representation, there's an automatic cut-off, and after that you're on your own. I'm wondering if you can comment on whether contribution agreements would be something that would work. Are they being attempted in provinces, and what does that look like?

[Avvy Yao-Yao Go]

In Ontario family law, for instance, there are cases where they will have contribution agreements. Usually if you have property, legal aid will make you pay at the end of the day. Those kinds of agreements do exist right now, but it still doesn't address the problem. I guess Professor Michael Trebilcock did a report, I think, in 2009, where he talked about how to expand legal aid to the middle class in order to get more buy-in for the legal aid program, because I think it speaks to some of the questions asked earlier. Why is it that we still have a problem today? Why is it that the government is not putting enough money into legal aid?

I think partly it's because the public does not see the value of legal aid, unless they're relying on it. How to expand legal aid to the middle class is maybe with contribution agreements and other kinds of programs, so that more Canadians understand the value of this kind of program, so there will be more buy-in, and so the government will put in more money at the end of the day.

[Colin Fraser, Liberal, West Nova, NS]

Mr. Fowler.

[Richard Fowler]

I agree wholeheartedly with what my colleague just said. The Law Society of British Columbia has struck a committee to study legal aid. We had a colloquium about a month ago, and one of the participants said that part of the issue with the funding of legal aid is a marketing problem. The public doesn't understand that there are real financial payoffs to investing in legal aid. If we can establish that with the right studies—and many of them have already been done—then we can recognize that this is really a bipartisan issue. It's about the strength and the value of our democracy and the individuals who are struggling to deal with issues within society, and I have no doubt that people will support wholeheartedly the proper funding of legal aid programs.

As for contributions, in British Columbia, it's the cut-off. In a criminal case, if you're below a certain line, then you get it, but if you're above it, then you don't. There have to be ways to ensure that people can contribute, so that they can get help, as well. It can be for people with some means, but not adequate means.

Yes, I agree.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Mr. Ferguson, do you have a comment on that?

[Doug Ferguson]

Yes, I agree with Mr. Fowler's approach.

He's quite right that it's black and white. You qualify or you don't. In Ontario, there are some contribution agreements, which you referred to. These would be for people who qualify from an income point of view, but they have some assets and they may be required to pay.

I think there's definitely room for that, and it would lower the cost of funding legal aid, if there's some kind of contribution agreement. There could be some element of lower legal fees associated with it.

[Colin Fraser, Liberal, West Nova, NS]

Very good.

Mr. Ferguson, I'm jumping to civil legal aid now. You answered a question, which I also had, from my friend Mr. Bittle a moment ago about the scope of civil legal aid. I'm wondering, though, about efficiencies in the system itself and whether legal aid could be part of those efficiencies. I'm thinking of efficiencies, within family services, most particularly for mediation, for people to have access to mediation to weed out the cases that can be resolved in the very first instance or after a short period of time without causing delay or clogging up the court system.

Obviously, it wouldn't be appropriate for cases of domestic violence and those sorts of cases, but do you see merit to it? Can legal aid play a part in those types of services?

[Doug Ferguson]

Yes, I see merit in it. I know that in some cases, when both clients are represented by legal aid, the legal aid service will act as a mediator to bring them together. That only makes sense.

I think, however, that we can go further than that. In the court system generally there is more scope for mediation. Some jurisdictions, I think, have some kind of mandatory mediation. They tried it as an experiment in Toronto. Ms. Go may know more than I do about that.

Mediation, then, is part of the answer, and this could be part of the triage we spoke of earlier. If the issues are resolvable, they should go to mediation sooner rather than later.

[Colin Fraser, Liberal, West Nova, NS]

Okay.

Mr. Fowler, let me ask you a question. You gave the example of a case in which it would save money if we had, in the first instance, a properly experienced lawyer, rather than a wrongful conviction and somebody spending time in a federal penitentiary or whatever.

Do you see merit, and how does it work, with regard to paying experienced counsel for certain cases, say in cases in which the person would be facing penitentiary time? Do we see a case for higher rates for those types of legal aid matters? Can we recruit experienced counsel to deal with those—experienced counsel such as you?

[Richard Fowler]

In British Columbia we have that; we have enhanced fees. The hourly rate is $120 an hour rather than the regular hourly rate for somebody with a 10-year call, which is about $91 an hour. If you look at what the cost of running an office is, however....

A good way to do the calculation is to ask, what does it cost the government to fund a senior prosecutor? The government pays their pension, their salary, their health benefits, their other benefits, their office expenses; $120 an hour doesn't even get close to what it costs to support a senior prosecutor.

Yes, that's the way to do it. You have to have a tiered system. This is what was recommended by the Code-LeSage commission, and it is what led to increases to legal aid, because senior counsel weren't doing the murder cases and weren't doing the cases that were scheduled for six months.

I say that the practice of law is about judgment. You're not born with judgment; you learn good judgment. The decision whether to make a motion for the exclusion of evidence under the charter or not is based on good judgment. Younger, less experienced lawyers are probably likely to err on the side of making the motion rather than having the courage not to make the motion, recognizing that it has very little chance of success. The difference in the length of that trial could be a month or two.

That's why investing in senior counsel who will train junior counsel to make those good decisions is all going to pay off in the end.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. We're at eight minutes on that turn.

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Good. Thank you, Chair, and thank you, witnesses, for coming.

Mr. Ferguson, I'd like to begin with you. You talked about essential services. Several of our committee members have asked questions about essential services. Can you tell me what services are currently covered that you perhaps think ought not to be covered?

[Richard Fowler]

That's an easy question.

[Doug Ferguson]

I'm just thinking here. I'm looking at Ontario, which is where my experience is. Coverage has dropped over the years, frankly, and I can't think at this point of a single instance of a service that ought not to be covered.

[Ted Falk, Conservative, Provencher, MB]

Okay.

Mr. Fowler?

[Richard Fowler]

I'm afraid I'd have to agree with that. I honestly cannot....

Of course, you're always going to say that there was one individual who got legal aid who shouldn't have gotten it, because no system you put in place is going to be without its flaws. There's always going to be somebody who creeps in, who doesn't disclose their income as accurately as they should have done.

What, though, is the cost of policing it better? Probably that money would be better spent by putting it into legal aid rather than trying to prevent the very few people who get it but shouldn't get it.

I'm sorry, I cannot think of a single service that is currently funded that shouldn't be. If you want to ask the question in reverse, I'm happy to answer it.

[Voices]

Oh, oh!

[Ted Falk, Conservative, Provencher, MB]

I think that was addressed already. Thank you very much.

I just wanted to ask the flip side of the question that was previously asked. Mr. Fowler, you wanted an easy question or you had hoped for one. You painted a very bleak picture of an individual that in order to fund an addiction started stealing from his employer, and it created marital problems and domestic abuse problems. It led to issues with child and family services. If we increase the availability to feed one's addictions, or facilities that would promote addictions, what do you think that will do for the need for legal aid?

[Richard Fowler]

Are you talking about safe injection sites?

[Ted Falk, Conservative, Provencher, MB]

Safe injection sites, legalized marijuana—these are all things that promote addictive substances and the use of those substances. What do you think that will do? You painted a picture already of what you think happens. Can you extrapolate from that a little further?

[Richard Fowler]

At the end of the day, this is a philosophical question. It's a very difficult thing. I appreciate that different individuals have different beliefs on this issue. I happen to come at it from a different perspective; I happen to think that safe injection sites actually save lives.

In Vancouver right now we have an absolute crisis with fentanyl. The irony of it is that we have a crisis with fentanyl because we tried to deal with addiction by changing how we dealt with oxycodone addictions. The composition of oxycodone changed to make it impossible to snort. You couldn't grind it up. We have an opiate crisis. This shows the intersection between health and the criminal justice system. We have a health crisis because opiates have been far more overprescribed in Canada than in any other country in the world. We are heavily embedded in the opiate prescription business as a way of dealing with pain.

If you go to Vancouver right now, we've had 700 deaths. We have street people walking the streets, patrolling the streets with the antidote Narcan to save people's lives. There are going to be addicts. History has shown us this. We've had prohibition. There are going to be addicts. It's whether you think the way to deal with an addict is with the criminal justice system. I would say it is not. Is it with the health system, or is it is with a combination of the two? In Vancouver, we try a combination of the two.

Until the fentanyl crisis we were doing better than we've done for years, in my submission. Many more addicts are being seen as a health problem rather than a criminal justice problem. In other words, the court system is no longer the first place they go. It's the place they go later on. We could talk about this for a long time. I don't generally agree with the proposition that funding safe injection sites or legalizing marijuana is going to create more of these problems.

Regulation of alcohol works better than prohibition. I think history has shown that. I think the regulation of marijuana, which is already widely available, is going to deal with the problem better. Having a source of marijuana that is regulated is far better than having it in the hands of organized crime.

[Ted Falk, Conservative, Provencher, MB]

See? You wanted an easy question and I gave you one.