Justice Committee on Feb. 2nd, 2017

[Dr. Albert Currie]

Yes, I think very much to the credit of the private bar, there are a number of examples of weekly or biweekly legal clinics that are held in church basements and so on, that do try to provide that kind of information.

A good example of having something like that institutionalized is with Legal Aid Ontario. There's a major division of Legal Aid Ontario called Community Legal Education Ontario, or CLEO. They focus on providing people, through a variety of mechanisms—electronic means are becoming much more popular—with not only legal information but also interactive sources of dispute resolution and problem solving so that people can begin to resolve their own problems, take some steps, know where to go for help, and at least start the process before the situation is desperate.

The example I mentioned briefly before, MyLawBC, is somewhat similar. It seems to me that an important role for legal aid plans, as we call them in Canada, ought to be to provide that kind of continuum of service so they can begin to help people early on and help as many people as possible.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll go to Mr. Fraser now.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

Thank you both very much for your presentation today. We really appreciate your work in this area.

Ms. Govender, perhaps I could begin with you. To pick up on a point that Mr. Nicholson raised, with regard to the 25-hour maximum time that a lawyer can work on a file for a civil client, I take it that's in the family law area. Is that specifically what you were referring to?

[Kasari Govender]

Yes.

[Colin Fraser, Liberal, West Nova, NS]

That seems unfair, and it doesn't work well with our system, because obviously the amount of time on a file could very much depend on what the other side in an adversarial system was thinking. I would imagine there would be cases where, if they knew that the maximum time a person had representation for was 25 hours, they would just delay the matter and do what they could administratively to run out the clock on that litigant.

Do you see it that way, and is that actually the experience?

[Kasari Govender]

Absolutely. It's a very common experience and it's called litigation harassment. There is a lawyer on the other side, or potentially an abuser on the other side, who just runs out the resources. They bring all kinds of applications, everything they can think of to throw at the wall and see if they can exhaust the resources so that the person will walk away from whatever rights they have. One of the things you can exhaust is the financial resources, but you can also exhaust the legal aid hours.

So yes, it's a very common problem.

[Colin Fraser, Liberal, West Nova, NS]

As a result, and with the reduced resources for legal aid in British Columbia, has there been an increase in self-represented litigants, and has that caused any problem with delays in court or the court administration getting bogged down just because people don't understand the rules of evidence and procedure or all of the filings that are necessary? Has that experience been seen?

[Kasari Govender]

It's a huge problem. I don't have the exact statistics, but I think in the court of appeal over 50% of family litigants are self-represented. It's a significant problem for the court. It causes huge delays, and there are hard costs associated with those delays for everybody involved—for the other side, for the court, for the judge, for all the court processes, and of course for the person who doesn't have counsel. Both parties often don't have counsel, but particularly if there's one party, it costs them in missed work hours.

The research that's been done on the cost of underfunding legal aid goes both from within the court system all the way out to missed work hours, to housing and social assistance costs, to meeting the needs of people who are now unemployed. It sounds maybe far-fetched, but in fact there is significant economic research that shows that these costs are very real.

[Colin Fraser, Liberal, West Nova, NS]

From my experience in practising in family law, which was one area of practice that I did litigate in, oftentimes it would be the woman who would make an application for child support or to confirm custody or access provisions in a court order. I take it from what you're saying, then, that if the woman is oftentimes the applicant, they would now be the ones self-represented or appealing decisions that were made when perhaps they didn't have proper legal representation.

[Kasari Govender]

That's right, because her legal aid representation primarily covers her protection order. It only covers people where there's violence, and then it only covers enough hours to get the protection order. So when she's fighting over custody, she's generally doing that on her own.

[Colin Fraser, Liberal, West Nova, NS]

Just changing gears a little bit, do you see any role for law schools having legal clinics that could assist people in preliminary advice, or even mediation services, that may be available in a walk-in type of arrangement so that we could try to get agreements and maybe avoid the court process altogether?

[Kasari Govender]

To address the law school point first, I think there is an interesting and growing movement around clinical education and what that means for access to justice in the country. In B.C. in particular, as I said, we started the Rise Women's Legal Centre, in partnership with UBC Law. It is UBC students who primarily staff the clinic, along with two staff lawyers. I see a huge niche there for law students.

It's not pure efficiency. These are students who are learning. There's a dual access to justice goal. There's meeting individual client needs, but if that was your only goal, lawyers would be more efficient. There's also the secondary goal of teaching new lawyers how to meet community needs and what it means to practise family law and to actually understand the gendered issues, particularly the gender-based violence issues that underlie a lot of family law. So I do see a significant need there.

You asked me something else. Sorry, I'm missing the second part of your question.

[Colin Fraser, Liberal, West Nova, NS]

It was with regard to mediation services or walk-in services.

[Kasari Govender]

Oh, yes.

There is a push for mediation services in B.C. I think it's one we need to view with caution, from the access to justice perspective, because it can be seen as the solution to everything. Where there's violence and when there are power dynamics in a relationship, I don't think it's appropriate, and I think we need to be really cautious as to how we see that.

I also think that mediation can sometimes move faster if people understand their rights better, which they may not unless they can get at least summary advice at the front end to be able to understand what issues are even on the table. So there are even ways to make mediation more efficient.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Mr. Currie, I will turn to you on the same point regarding mediation services as a way to have, certainly in family cases, an agreement that could then be filed with the court to avoid the adversarial process right off the bat. Do you see that as a way to alleviate some of these problems?

[Dr. Albert Currie]

Yes. I think it's long been recognized that mediation is a much more humane way to deal with family disputes than is the court process. I'm not sure what to say except that I agree completely that mediation is a better approach. I'm not so sure that mediation is a cheaper approach.

[Colin Fraser, Liberal, West Nova, NS]

Why would it not be if it gets the matter resolved more quickly, which would be the goal of having mediation at the front end?

[The Chair, Liberal, Anthony Housefather]

This is your last question.

[Dr. Albert Currie]

I think if family disputes or any other sorts of disputes can be tackled early in the process—I think Kasari made this point—then the issue is probably going to be less complex and easier to resolve. The longer a problem festers, if you will, the much more difficult it will be to resolve it, for a variety of reasons. Sometimes it's just the hardened feelings between parties when things have dragged on for so long.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. MacGregor.

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

Thank you very much, Mr. Chair.

I'd like to thank both witnesses for appearing before the committee today.

Ms. Govender, the subject of pro bono work has come up before this committee as well, and the report that was issued, “Rights-Based Legal Aid: Rebuilding BC's Broken System”, states quite explicitly that “the justice system itself often falls back on an assumption that an increase of pro bono legal services offered by lawyers can fill the gap.” It goes on to say, “There is no basis in fact for this expectation.”

Can you just briefly relate some of your experiences regarding that statement?

[Kasari Govender]

Sure. Pro bono is really important. I don't want to undermine that. It's really important in terms of the spirit of the bar in meeting the needs of justice. In B.C., pro bono work is administered primarily through an organization called Access Pro Bono, which really struggles to connect family law clients with pro bono practitioners.

There are a couple of reasons for that. One is that we have a small family bar. I don't think this is unique to B.C. Not very many people go into it, for a whole number of reasons. A number of years ago, West Coast LEAF wrote a report called “Not with a ten-foot pole”. As you can tell from the title, it was about why people don't go into family law legal aid. They talked to law students about that. People are really hesitant to go into this area. That's one issue.

The other issue is that most people don't do legal aid. They meet the needs of high-income clients and they aren't meeting the needs of marginalized and community-based clients. That's a big reason why pro bono doesn't meet the gap. Also, this isn't an issue that should be dealt with through charity. There is that philosophical point. Those are important practical points, but there is a philosophical point about people getting access to justice. We all deserve access to justice, not because someone feels that out of the goodness of their heart they will provide these services.

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

Thank you.

I also hold in my hands here a letter from the Feminist Alliance for International Action, and I see that your organization was one of the signatories here. The letter was addressed to several ministers of the Government of Canada, and it has to do with the Convention on the Elimination of All Forms of Discrimination against Women. It notes that Canada once held first place in women's equality, back in 1995, but that we have now fallen to 25th place on the United Nations gender inequality index. In the CEDAW report, one of the main recommendations is to increase funding for civil legal aid and to specifically earmark funds for civil legal aid within the Canada social transfer. Can you just expand a little bit about that? Would you like to see that civil legal aid completely separate and totally earmarked the same way as for the Canada health transfer?

[Kasari Govender]

I would like to see earmarked funds go to family law and legal aid in the provinces. There is precedent for that with the transfer that was made on criminal legal aid. It can be done. I do think there is a role for the federal government in it. I think there was a case you referred to earlier with the previous panel.

There have been some important cases from the Supreme Court of Canada on access to justice. Yes, they have said that there's no generalizable right to counsel, but they have also gone far in saying that access to justice is a constitutional principle and that the federal government in particular, under the Constitution Act of 1867, has a jurisdictional role to protect the right to access justice.

I think there are a lot of reasons to support tied transfer funds. Where there isn't political will in the provinces, I think the feds can step in, in that capacity.

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

All right. Thank you.

Now, we've heard concerns about the delivery of legal aid in Canada. Because it falls primarily under provincial jurisdiction, there have been concerns voiced about the patchwork quilt. When you look at how British Columbia is doing in comparison to other provinces, and how women access the justice system in civil cases, where is the best place in Canada for a woman and where is the worst place? Do you have data on that?

I just wanted to emphasize the fact that we do have that patchwork quilt. Where is a woman getting the best service and where are they getting the worst?