Thank you very much to the committee for its invitation.
The BC Civil Liberties Association is the country's oldest and largest civil liberties and human rights legal organization. We work at the federal level and provincially to sustain, defend, extend, and uphold human rights and freedoms in Canada. We have a very long history on the topic of legal aid. In fact, the very first position paper that our board adopted in April 1963 was on the topic of criminal legal aid. In our report, among the recommendations, we argued something that was novel at the time, which was that legal aid is the responsibility of government. We called for a comprehensive legal aid plan, guaranteed in statute and not dependent on the charity of lawyers as legal aid had been up to that time in Canada. We've continued to advocate on the issue over the half-century since.
I'd like to return to a question that Ms. Khalid asked the Department of Justice witnesses here in December: why do we provide legal aid to start with?
We take the position at the BCCLA that there are certain fundamental precepts to making democracy effective for all persons, and that these fundamental precepts include equality before and under the law, and the equal protection of the law. This principle implies a second precept, which is that the same law shall apply equally for the rich and for the poor, for the weak and for the strong, and that is, more precisely, that the poor must not be denied equal access to the law because they are without economic means.
We think legal aid—and we're not alone—is fundamental to the rule of law. Sadly, we're very distant from these ideals, as you've heard from other witnesses. In the 50 years since our original submission, despite many developments in the creation of legal aid plans across the country, we're now in the midst of a crisis in access to justice, as has been pointed to by our colleagues at the Canadian Bar Association, a crisis marked by underfunding, a patchwork of disparities from province to province, a fragmentation of people's cases, in which marginalized or poor people have very complex legal problems but may get assistance in only one area and not in another. All of this has had a disproportionate impact on women, people with disabilities, members of racialized communities, indigenous people, and new immigrants, who are overrepresented in the low-income population.
As I testified last year to the Senate committee looking at delay in the justice system, in B.C., my home province, in real dollars, the amount spent on legal aid has dropped about 40% since 1995. That's 40%. In 2002, the Province of B.C. cut legal aid funding by 38% and shut down many of the branch offices and clinics across the province. To cope with the reduced amount of money that was being given to the Legal Services Society for legal aid in B.C., it had to reduce the eligibility, resulting in an increase in self-represented individuals. Right now in B.C. the qualifying cut-off is $18,000 in income, or $36,000 for a family of four. As you've heard from other witnesses, it's exceedingly difficult, if not.... It's impossible for someone making $18,000 a year to afford a lawyer to properly defend them in a criminal trial, never mind civil issues. Poverty law services were cut at that time. Everything to do with rental housing, disability entitlements, and social benefits entitlements was cut, and the majority of family law services were cut at that time as well. In family law, for example, before those cuts were made, 15,000 cases were approved for family legal aid, whereas last year in the province of B.C., there were 3,800 cases approved.
You've heard about the network of community legal clinics in Ontario, and you've had witnesses testify from those, including Ms. Avvy Go. We don't even have those in B.C. any more. They were completely eliminated. We used to have 14 community legal aid offices and 14 first nations legal offices. Those were consolidated to seven offices at one point, and then cut down to just one office outside of Vancouver for the whole province of B.C.
Who has tried to take up the slack? Lawyers have, through the law foundation funding a small network of front-line community layperson advocates to give legal information but not advice.
All of this is admirable and important, but it is not the same as publicly funded legal aid for poverty law services, for family law services, and so forth. This network, as hard as it tries, and as skilled as those individuals are, is not adequate to the daunting task that has been left before it through the cutting back of these services.
All in all, each year, several millions of dollars' worth of services are provided through philanthropy and through the goodwill of lawyers in B.C., but it is simply not enough. The increase in the federal budget this year brought some help in this regard, but with great respect to the government, $88 million over five years divided by 13 jurisdictions clearly doesn't go a very long way.
In terms of recommendations—because I want to get to that, and perhaps we can talk about other things more in questions—we think that this committee ought to be recommending that the federal government resume a leadership role in and set the tone for the provision of legal aid in Canada.
In 2011 the first recommendation of the Public Commission on Legal Aid in B.C. that we endorsed, from Leonard Doust, QC, was that legal aid needs to be recognized as an essential service. Legal aid, for people who are unable to meaningfully afford the legal services they critically need to meet their absolute needs, should not be viewed as a frill. It should not be viewed as an add-on or a luxury. Rather, it is an essential part of a just society. The Chief Justice of the Supreme Court of Canada has said the same thing, that providing legal aid to low-income Canadians is an essential public service. It needs to be recognized as such.
In support of this, we repeat our support of the recommendations made in B.C. at the time, that eligibility thresholds should be modernized nationwide. You've heard a lot of evidence about the varying eligibility thresholds. We say that the eligibility measures should be connected to a statistically determined measure of poverty, such as the market basket measure. To deal with the people who are in the middle, in the gap that you've heard about, legal aid should be provided to a category that you could call the “working poor”, at up to 200% of that income measure or cut-off on a sliding-scale contribution system. That could be worked out province to province.
We strongly urge the committee to recommend that the federal government come back to its original position to fund or cost-share 50% for criminal legal aid. Also, civil legal aid ought to be taken out of the Canada social transfer and treated separately, as with criminal legal aid, so we can make sure that is provided uniformly from province to province—obviously, working with provincial counterparts.
We think there needs to be a strong commitment to the funding of family law and poverty law. Ms. Govender from West Coast LEAF spoke eloquently about the cascading problems that can result when basic family law services, outside of abusive situations, are not covered, and how it's in the public interest and the best interests of children that those needs be better met than they are now.
We do support the CBA's recommendation for benchmarks as part of that funding discussion with other jurisdictions in Canada, but we share the caution that's been expressed. We want to make sure that we are generally benchmarking up and not benchmarking down. As much as those in Ontario—and I won't take any wind out of their sails—will complain about the inadequacy of legal aid in Ontario, it is by far better than, for example, that in B.C., where I live. We certainly don't want to be going down. We would like benchmarks to pull us up.
I'll quickly conclude with a few more recommendations.
I won't elaborate on this, but mandatory minimum sentencing is one thing that's causing a huge burden on the legal aid system. As you've heard, people are not able to plead out, or are not choosing to plead out and shorten trials or eliminate trials and so forth because of mandatory minimum sentences. We know the government is looking at that already, and Parliament will be too.
We support, as well, a continued commitment, and particularly in these times, an increased commitment, to the provision of legal aid in immigration, particularly in refugee areas, where there are very serious human rights interests at stake.
Finally, we think that any look at improving legal aid nationwide should consider the whole panoply of services that can be provided.
In Ontario, we see a network of community legal clinics providing one kind of service. We see duty council in the criminal courts, which is not something that is as widespread in other provinces. Of course, there is also the model of providing certificates, referrals, or contracts to private bar lawyers. All of these things work together to make sure that far more people will be able to access critical legal services in the future.
Thank you very much.