Justice Committee on Feb. 2nd, 2017

[David Field]

We're obligated to provide services under the French Language Services Act of Ontario. We have, for example, a clinic in Vanier that's entirely francophone. We have staff who are francophones and provide services in French. Clients who phone for our services are able to receive services in French, as is required by law in Ontario.

One of the challenges we have is that sometimes we have service providers who can speak French but who cannot necessarily provide legal services in French, especially in smaller communities in northern Ontario. In Sudbury we have some support, but when you get into smaller communities in the north, the northeast particularly, there is a challenge for us as an organization.

We work very closely with the Office of Francophone Affairs, and we provide training for lawyers who are interested in doing work for and supporting francophone clients. We spend time seeking feedback from stakeholders in the francophone community about what we can do better. We have a positive relationship with the francophone community, but I think there's more we could be doing.

[The Chair, Liberal, Anthony Housefather]

Mr. McKillop.

[David McKillop]

One of the 76 clinics we fund in Ontario is called the HIV and AIDS Legal Clinic Ontario. It is funded by my organization.

We also see a lot of work with that community on the refugee side. The number one source country for refugee claims in Ontario is Nigeria, and many of those claims are LGBTQ claims. There are also a lot of them coming out of the Caribbean countries.

There are also lots of issues on the criminalization of non-disclosure of HIV status. If people are charged with that, and they qualify for our services, we would provide services to them.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. MacGregor, and then Mr. Kang.

Mr. MacGregor.

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

Thank you.

The Supreme Court has rejected arguments that there is a general constitutional right to legal aid. I wanted to look at the spirit of the charter, and specifically at section 15, where everyone is equal before and under the law, with equal benefit of the law and without any discrimination based on race, ethnic origin, colour, religion, sex, age, or mental or physical disability.

On December 13, when we questioned a representative from the Canadian Bar Association, Ms. Kerri Froc mentioned that you could make an argument under section 7 that some women may not have security of person when they can't get their cases against their abusers adjudicated. They're suffering under that. I respect the Supreme Court's ruling on this, but sometimes we have to go above and beyond that and look at whether the spirit of the charter is being complied with.

I would like to know your thoughts on this. When you look at the state of legal aid in Ontario and across Canada, do you think we are honouring the spirit of the charter? Are people really getting that protection under sections 7 and 15?

[David McKillop]

I think you raise an excellent point.

As I mentioned earlier, with many of the criminal services that we offer being constitutionally protected, I think in terms of sections 7 and 15, we're well on point in that area.

It is, though, the family law civil area where I think we do lack some protections. There will probably come a day when the interpretations of sections 7 and 15 do expand the protections afforded to family law clients.

I'll just give you an example of something that Legal Aid Ontario has done. Our financial eligibility, while increasing with the investments that the Ontario government has made, is still low. A single individual has to earn less than $13,000 to qualify for free legal aid services in Ontario. As a means to protect women—not exclusively, but primarily women—who are victims of domestic violence, we've actually raised the financial eligibility level to that which we use for our duty counsel services, which is significantly higher. That same single individual who might not qualify because they make $13,000, $14,000, or $15,000 would qualify under the duty counsel test because it has a $21,000 cut-off for a single individual.

We're trying to do our part, notwithstanding that no one is forcing us to provide services to vulnerable women, but I think you're going to see more growth in that area as courts do further interpret the sections.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll take a question from Mr. Kang, and then if I don't see anybody else we'll have a short break and then we'll take our next panel.

Mr. Kang.

[Darshan Singh Kang, Liberal, Calgary Skyview, AB]

Thanks, Mr. Chair.

Thanks, gentlemen, for appearing before the committee.

We are a diverse country, so my question is this. Does LAO have a blanket approach? Do you have some data on whether different ethnic communities are using the legal aid service? Do you have some data so you can steer your resources towards the community that needs the most help?

[David Field]

One of the things we've been doing with the community legal clinics, for example, is really looking at community legal needs. We have a number of legal aid clinics that focus on a particular community. We have a metro Chinese community. We have a South Asian clinic that looks at specific issues related to the South Asian community. We are spending time and energy looking at the differing needs of communities across the province.

I think we need to do more in terms of our general research. As I said, we have these specific clinics, but I think we need to do a better job in gathering data about the service delivery in the area of criminal law, family law, and how those are affected by the diversity in the province. I think we really have some work to do in that area.

[Darshan Singh Kang, Liberal, Calgary Skyview, AB]

The reason I'm asking this question is that there are cultural sensitivities, the language, etc., all of those things that could be kept in mind. Sometimes a language barrier causes a big problem. That's why I was asking that question.

I appreciate your keeping that in mind. Thanks.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Kang.

Thank you very much, Mr. Field and Mr. McKillop. It was a pleasure having you as witnesses. Your testimony has been very helpful to the committee.

We're going to take a short break while we get the next panel up. For those in the next panel, please come on up.

We will be resuming in about two minutes.

[The Chair, Liberal, Anthony Housefather]

It is an absolute pleasure to greet the members of our next panel. We have the Canadian Forum on Civil Justice, represented by Mr. Albert Currie. He's a senior research fellow.

Welcome, Mr. Currie. It's a pleasure to have you.

We're welcoming once again, from West Coast LEAF, Ms. Kasari Govender, the executive director.

Welcome, Ms. Govender.

Mr. Currie is going to be presenting first.

The floor is yours, sir.

[Dr. Albert Currie, Senior Research Fellow, Canadian Forum on Civil Justice]

Thank you.

I want to thank the committee for inviting me. It's very much a privilege.

I'm going to begin my remarks by highlighting the results of some research on the prevalence of legal problems experienced by the public. It's a body of research that has had considerable influence on the thinking about access to justice around the world. Then I'm going to try to highlight a few examples of responses from the legal aid world to the results of this research.

The entire body of research now consists of 25 studies that have been done all around the world. Four of these were in Canada, the first in 2004. The most recent is called “Everyday Legal Problems and the Cost of Justice in Canada”, which is a national survey that was conducted in 2014 by the Canadian Forum on Civil Justice. I'll briefly show you a few results from that survey.

We found that almost half, 48.4%, of adult Canadians experience one or more of what we call “everyday legal problems” within a three-year period. If you apply the weights and gross that up to the whole population, that's about 11 million people in a three-year period. Since people often experience more than one problem, that's 35 million problems. These are strikingly large numbers.

This is a percentage of people experiencing one or more problems, by problem type. You can see that consumer debt and employment are the major ones. This pattern is consistent with every survey that's been done around the world, in dozens of different countries.

I said there have been four national surveys in Canada—in 2004, in 2006, in 2008, and most recently in 2014. They've all come in with the same results. If you look at the 25 surveys around the world that I talked about, one of the remarkable things about the body of research is that they've produced very, very consistent results.

I want to emphasize that these are not problems that are resolved in the courts or by lawyers. The basic definition of the kind of legal problem these surveys deal with is any problem that is experienced by the public, whether or not that individual recognizes the legal nature of the problem, and whether or not they use any part of the formal justice system to resolve that problem. The vast majority of people have problems of all kinds, the normal transactions and transitions of everyday life, such as gaining employment, losing employment, contracting, and buying and selling all kinds of things. This is what I've called, in previous work, the legal problems of everyday life.

There are a couple of other interesting bits from the survey. We found that 67% of people experiencing these everyday legal problems did not understand the legal implications of the problem. I don't mean just a little bit; they had no clue. They said they did not understand at all. That's really interesting. It's kind of a striking result in the sense that you have such large numbers of people experiencing problems that they consider to be serious and difficult to resolve, and they have no idea of the legal implications of the problems they're facing.

Only about 7% of the people in this sample and in samples like it use the formal justice system to resolve their problems. Sixty per cent were self-helpers. That means they didn't access legal advice. They didn't access any kind of authoritative non-legal advice. They just tried it on their own.

Experiencing these problems comes at a cost. It costs individuals in terms of money, and it costs individuals in terms of intangible costs such as ill health and stress-related illness. It costs the state in terms of social services, employment insurance, health care costs, a whole range of things, when people have to rely on the social safety net as a direct consequence of the everyday legal problems they experience.

I'm going to leave a couple of reports for the committee. I'll give them to one of your associates at the end. There are more detailed results on this on the website of the Canadian Forum on Civil Justice.

This is not new. It's relatively new. It's an approach to understanding the legal problems experienced by the public that have resulted in a considerable shift in thinking over the years about access to justice and how to provide assistance to people experiencing this much larger number of legal problems.

I'll give you a couple of examples of the way that legal aid systems in Canada are responding to this. Generally, with digital delivery of services, one legal aid plan in British Columbia has developed an online dispute resolution problem-solving website to try to reach this much larger number of people. It's called MyLawBC, and has been developed by the Legal Services Society of British Columbia. It's a response to this issue of hidden problems and is trying to develop the capacity for outreach, if you like.

In my own research I'm working with several community legal clinics in southwestern Ontario that are partnering with community groups. The community groups are given the tools to help people identify legal problems, and the relationship between the community group and the legal clinic is like a pathway, then, for people to seek and find legal help.

A second thing that we're doing, just to give you an example of some of the innovations that are flowing out of this research, is called secondary legal consultation, where the lawyer in a legal clinic assists a service provider in a service agency to help their own clients. You'd have something like a case worker in the Canadian Mental Health Association who's trying to guide a client through an application for disability. The way that legal aid can try to reach out and serve more people, and do it relatively inexpensively, is to assist other service providers. We're working on an approach to that.

There are a lot more examples, but all I want to say, quickly, is that there's a huge amount of innovation occurring in some corners of legal aid in Canada. It's really interesting, and it's attempting to address the broad problems that have come out of the research I was describing.

I'm going to leave you with two ideas that occurred to me when I was writing out these notes. The first one is with respect to the body of research on legal problems. Think of access to justice as more than access to the courts, because there's an enormous world of unmet legal need out there that goes way beyond that.

The second thing is what this means for legal aid. Think of legal aid as more than just a transactional system that links lawyers with people appearing in courts but who can't afford to pay the costs of private legal fees. It's a policy instrument. Legal aid is a policy instrument to address access to justice issues, and there's an enormous amount of capacity for creative, innovative work in legal aid that ought to be supported.

I thank you very much for the opportunity.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Currie.

Now we will move to Ms. Govender.

[Kasari Govender, Executive Director, West Coast Women's Legal Education and Action Fund]

Thank you for having me back today to speak about legal aid.

As you likely know, West Coast LEAF is a legal organization that focuses on the rights of women and girls. We work doing litigation, law reform, and public legal education. We've worked extensively in the area of access to justice for women in a broad systemic advocacy sense, but we also recently delved into the direct service side of things because the crisis in B.C. is so bad. I will give you some more of the details about that.

First, to pick up on the innovation point, we have partnered with UBC law in Vancouver and opened the Rise Women's Legal Centre. The doors opened in May, just after I was here last time in April. The demand was huge. We knew there was a crisis; that's what prompted us to spend years in developing this model. We consulted with service providers across the province. We spent years building up private funding. There's no public funding in the clinic, unfortunately. We partnered with the university in order to open this clinic. Even with all that work, we were surprised that within two weeks of opening the doors, which was in May, we had a wait-list into September. The wait-list has hovered at about 100 women since then.

It's against that backdrop that I want to tell you a bit about the state of legal aid in B.C. It was gutted in 2002—family law in particular—and family law services were cut by 60%, particularly on the connecting people with lawyers side of things, so not the legal information as much as the actual direct representation and advice. As you've heard from my colleague here, there is some interesting innovation in legal services in B.C. around the information side of things, but there are really, really reduced services on the representation side.

There are three limitations to family law coverage. There's the financial cut-off, which is very low. You basically cannot make much more than minimum wage, depending on the number of dependants you have. There is a very large gap between those who are covered by legal aid and those who can actually afford a market-rate lawyer. It's also provided mostly when there is violence in the relationship; there is very little coverage outside of that. There are very narrow circumstances in other high-conflict families, but primarily the focus is on relationships in which there is violence.

If you qualify under those two criteria, you only get 25 hours of service. This is a real limitation. It's not designed in any way—even explicitly—to meet the needs of a full family law dispute. It's not designed to resolve custody and access issues or anything else. It's designed, essentially, to get you a protection order in situations of violence. In some circumstances it can cover some other interim orders, but primarily it's to get you a protection order. In some really complex cases, it's not enough to do even that. I'll give you an example of that in a moment.

I want to speak about the representation side of things, and the implications of not providing access to lawyers. In my view, legal information is really important, but it is far from sufficient in actually providing legal access to justice. The major reason is that there is no rule of law for those who can't afford it in family law. In criminal law, in other areas, there's still law and the law applies to you whether or not you have a lawyer to help you understand your rights. In family law, that's simply not true. I don't say this with hyperbole; I say this in a very practical sense.

We have a very progressive piece of family law legislation in B.C., which was very exciting when it was passed a few years ago. However, if you don't have access to somebody who can tell you your rights and somebody who can help you enforce those rights, they are totally meaningless. If you are sitting in a room with your spouse and it's just the two of you trying to resolve your custody issue, trying to figure out who's going to live where and where your assets are going to go, the law has zero meaning. That means the justice system that we are all proud of in this country applies, in family law, only to those who can afford it.

Women in particular are impacted by these cuts to legal aid for a number of reasons, primarily because women have lower incomes because of the pay gap in this country, and so they are less likely to be able to afford a lawyer. Those statistics are borne out by who is applying for family law legal aid and who gets it. Women are also disproportionately impacted by not having it. As women are still primarily the caregivers for their children, and they're still primarily the victims of family violence, the implications of not getting legal aid are particularly severe because their safety is at risk, and their children's well-being is at risk.

That also leads me to the disproportionate impact on children. If courts don't have access to the information they need to determine the best interests of a child, whether or not that is to stay with either parent, then the courts have their hands tied behind their backs in actually trying to meet their obligation to meet the best interests of children, and children suffer through that.

You've already heard a little bit, I think, about some of the costs of underfunding legal aid. I think I won't go there right now. I think I'll wait to see if there are questions on that. I'll just say it's more costly to underfund legal aid.

I do want to give you one example, though, which is that at the Rise Women's Legal Centre we've had clients come in with literally suitcases full of documents from over a decade of not having a lawyer. That means that while their family law issues could have been resolved fairly simply at the front end if they had been able to access even summary advice at the beginning, let alone have some minimal representation, now no private lawyer will touch those suitcases of documents. They're a complete disaster, and it's costing either the public purse or the non-profit community much more to try to resolve that one case than it would to be able to move things through quickly because of the level of complexity.

It also means that spousal violence can escalate. I had a case cross my desk recently—and again, we don't provide direct service in my office, but still we hear from the most desperate cases. A woman's file passed through my hands. She is desperately seeking protection from her abusive spouse. She has received legal aid. She has received extended services under legal aid, but all she's gotten are temporary restraining orders, protection orders, that keep expiring. She has now gone back to say, please give me more money so I can apply for a permanent care order. She is receiving death threats. The police have been involved. Her safety and that of her children is very seriously at risk, and she's being denied legal aid because she has used up all of her hours.

Where does the federal government come into this? You may know that the CEDAW committee, the UN committee that examines the Convention on the Elimination of All Forms of Discrimination against Women—basically the women's bill of rights—examined Canada's record earlier in the fall and released its concluding observations in December. It expressed explicit concern about civil legal aid in the provinces, and particularly the implications for women's equality of underfunding family legal aid. It specifically recommended earmarking funds in the Canada social transfer for civil legal aid to ensure that women have access to family justice, with a particular emphasis on victims of violence, indigenous women, and women with disabilities.

It is also explicitly concerned about the income-test thresholds, that gap I talked about between people who can qualify for legal aid and those who could afford to get a private market lawyer. I think that leads very clearly to the federal responsibility to step into this gap and what the feds could actually do while staying within their jurisdiction.

I'll leave it there and wait for comments. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you so much, Ms. Govender.

Now we will move to questions, and we will start again with Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much. Those were two excellent presentations here, and I have a number of questions.

Ms. Govender, there is the whole area of what gets funded and what doesn't get funded, and you set out very clearly the differences between family law and criminal law in terms of legal aid and other assistance. In the time that I practised law in both those areas, after a few years, I came to the conclusion that people who were going through family law problems were more devastated and more personally affected many times than people who were going through the criminal justice system. I found that people who go through the criminal justice system have a little better control of everything than many people going through the family law area.

I know it's a little bit complicated with respect to funding from the federal government, whether it's going to justice or it's under the social transfer, but what are your thoughts? Why are the cuts always in the family law area? Presumably there are people who understand that area of the law and how devastating and challenging it can be. You set out a number of things there. What do you think the reason for this is? It can't be just the complications of federal-provincial funding. Why is it that they always cut the family law funding?

[Kasari Govender]

I think that might have been alluded to earlier, but there's constitutional support for criminal law legal aid, for access to justice in criminal law, and access to justice in child protection, and in immigration and refugee matters to some extent. I would say that there should be, but there hasn't to this point proven to be, a constitutional mandate to provide access to justice in family law—

[Rob Nicholson, Conservative, Niagara Falls, ON]

But quite apart from the federal-provincial split and jurisdiction here, it wouldn't stop any province or territory from doing what it wants to do, yet you said that in 2002 they immediately cut family law when they were under some financial constraints.

[Kasari Govender]

What happened is that the money that was received by LSS, our legal services society, was vastly reduced. Their budget was cut dramatically. They had to decide what priority areas to put that remaining money into. They put it where they knew they would be sued right away, and they left the areas where they thought, “Well, we won't be sued right away. We'll see what happens.”

To put it crudely, that's what happened, and that is still what happens. When they are looking at their budget every year, they know that the family pot of money is the only money they can play with in any real sense. There were cuts. They totally eliminated poverty law services, so they went from serving over 40,000 people a year in poverty law to serving zero. Other provinces still maintain those poverty law services, but B.C. has none. They eliminated that one, which they had no constitutional obligation to do—or didn't think they did—and they cut back family law severely and kept only the bare constitutional minimum.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You are quite familiar with what legal aid has provided for, of course, in the Province of British Columbia. That being said, in the example you gave us of the woman who was being threatened by her ex-spouse or estranged spouse, you said she had used up her 25 hours. Is there no flexibility to apply to legal aid and say, “Just a second here. I appreciate that a couple of years ago I had to have legal advice, but 25 hours isn't going to cut it”? Is there no ability within the legal aid system in British Columbia that you know of?

[Kasari Govender]

That particular woman has now appealed and reapplied, even though she had already applied and appealed and been turned down. She's gone back for one last effort.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Was she turned down because they didn't think the threat was big enough?

[Kasari Govender]

It's a surprisingly common story. It's not just one person. I've heard it a lot. Part of the issue is that people are desperately seeking help and they don't know, nor should they have to know, that when they get a letter saying, “You have no further avenue for appeal,” that maybe sometimes if they call the office and get the right person, they might get a “yes”. It does happen occasionally, but that's not a functional rule-of-law system. They need to know that it's accessible from the outset and proper guidelines need to be in place to allow for that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'd love to pursue this further, but I should also ask a question of Dr. Currie.

Thank you very much for your testimony here today. Your list of all the different legal issues was interesting. I was glad that crime was the smallest one here. That's better for our society.

I noticed that people have more disputes with their neighbours than they do within their own family, which again was an interesting statistic.

That being said, you said—and I think you're quite correct on that—that either 60% or 67% of people have no real concept as to what their legal issues are. I remember one time in my own community of Niagara Falls that a number of lawyers got together for an evening, quite apart from the legal aid system, just to provide anybody who walked in the door some sort of legal advice or direction if they needed it. I always thought that was an excellent way of sort of steering people in the right direction. As I said, it wasn't formalized in the sense that legal aid was doing it, but it was something that was pro bono by the lawyers themselves.

Have you heard of any examples like that? Again, the idea is to get people educated or informed as to what their legal rights and issues are.