Thank you very much.
Committee members, ladies and gentlemen, I'm going to speak broadly about legal aid in Canada. I will speak briefly to some issues of indigenous access to justice, which legal aid plans are working on right now, and I would welcome any questions more broadly that you might have.
I've spent about 30 years working in and around legal aid. I also get to do some international development work in legal aid, so I have a perspective that's a little broader than do many people who work in legal aid on a day-to-day basis.
I agree that access to justice is more than legal aid, but legal aid is the principal tool for access to justice for many low-income people in this country. The problem is that we really don't have a national legal aid program. What we have is a series of 13 provincial and territorial legal aid programs, with very little consistency among them. They don't even define what a case is in the same way. What we see are really historical funding patterns rather than strategic and purposive funding patterns. This is particularly so with the federal funding, which is typically, for provinces, a contribution agreement-style funding to provincial legal aid plans. Territorial funding is a little bit different and involves more details than I'll go into here.
The real problem is that we have funding models that were designed in the 1970s and that have deteriorated significantly since then. They started as fifty-fifty cost-sharing agreements, and are somewhere in the low twenties right now in terms of the contribution value. What we have is very little strategic development and not quite as much innovation as we'd like to see.
My first recommendation is that there ought to be increased, sustainable, and strategic federal investments in legal aid. It's important. It's important for how the justice system works, not just for how people experience it or how they resolve their problems but for the efficiency of the system itself.
My colleague referred to financial eligibility, the number of people who don't get legal aid. In the 1970s when that fifty-fifty cost-sharing agreement came to be, financial eligibility standards were very flexible. They were based on a real ability to afford a lawyer. These days, the highest most generous ones are one of the poverty measures. Below that, there are many legal aid plans that have eligibility standards that fall below Canadian standards for poverty. It is shameful, but it's a reality of what happens when funding becomes squeezed at a number of different levels.
My second recommendation is that we have a sense of a national standard. A federal national standard for eligibility for legal aid is important, it's valuable, and it's what should be central to what Canadian legal aid is. That may differ from community to community as costs of living differ. Nonetheless, we manage to define poverty in ways that are flexible in that regard. There's no reason that ability to afford a lawyer couldn't be done the same way.
Third, we don't have a standard for legal aid beyond the bare minimum court-required standard for criminal legal aid and for child protection legal aid. There's nothing that we could call a Canadian standard for legal aid. As is probably obvious to you, that could be an area for federal engagement. It is not at the moment. It's important. It's important because when we go across the country, there are places in which, for example, family legal aid, even for those who are eligible for it, only gets them a restraining order. It doesn't resolve the problem, and it doesn't move them to a resolution and allow them to get on with their lives.
Those are my broad comments about legal aid.
There's a third area that's increasingly prominent from an international perspective, and that is legal aid plans being a policy adviser to government, largely because they see more areas of the justice system than do other parts of the system. They represent criminal defendants, family litigants, and refugees. They often provide public legal education and legal information. They are out-of-court problem-solvers. They manage large cases, and in some cases, they are actual policy advisers. This is something that the International Bar Association is recommending in its new set of guidelines for legal aid, and it seems to be an area in which there's a value to be added and a way in which legal aid can assist through committees like this and assist government broadly in policy development.
Those are, generally, my recommendations, particularly with regard to legal aid.
With regard to indigenous access to justice, this is a big deal for legal aid. In British Columbia—the statistics I have—30% of our criminal clients are of indigenous heritage. About 28% of our family clients are of indigenous heritage, and about 42% of our child protection clients have indigenous heritage. Now I know those are just numbers, but the number that goes with those is 6%. That's the indigenous population in British Columbia. They are suffering legal problems at a higher rate than the general population. They're marginalized in significant ways from justice system functions, and there is very little that's being done to address that systemically within the justice system.
Looking at our own domains in British Columbia, we discovered that, notwithstanding the cultural sensitivity training and all the other pieces that we do to try to build effective bridges into those communities, our services were found to be unfriendly, unaccessible, and simply not communicated in an effective way. That's because legal aid plans tend to be run by lawyers. They tend to be administered by lawyers. They tend to be focused on justice system values rather than the importance of what people want when they appear in front of us. This isn't peculiar to indigenous communities; it's just extreme in indigenous communities.
Here is a list of recommendations I have in that regard. My recommendations are based on about three years of consultations down at the community level. These are not political consultations but rather more pragmatic ones.
There needs to be funding to establish and operate a network of community advocates to support people using the justice system. These are not lawyers; they may not even be court workers. They are people in the community who know what's happening. In health care there are navigators, and an analogue to that is needed in justice.
There ought to be professional development and training to build intercultural competency within the justice community, including skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism. This isn't just about lawyers, though it includes lawyers. It includes everybody in the system. The Truth and Reconciliation Commission calls to action cover that quite clearly.
Provide funding to support the availability of quality-assured Gladue reports. As you may know, Gladue reports are a sentencing aid that apply to the indigenous population. They were set in the mid-1990s by federal legislation. I'm sure it won't surprise you that there are 13 justice jurisdictions, and there are 13 different ways Gladue reports are prepared and presented. There is no quality control nationally. There is nothing that you would recognize really from one jurisdiction to the next that it's a Gladue report other than the title. This is an area that was introduced through federal legislation. It has been litigated several times, but we still are not getting to the place where quality reports are prepared and presented in every jurisdiction in this country, and they need to be.
I recommend the inclusion of indigenous perspectives and practices in the existing system through committing to substantially increase the number of indigenous judges and lawyers in ways that we are not doing yet. Funding for first nations courts, Gladue courts, and other indigenous-based practices that appear.... In British Columbia we have first nations courts. Anecdotally, at least in the studies under way, they appear to make a real difference, particularly to serial offenders who are held accountable by the elders of their communities rather than a judge, though the elders have the support of the judge. To speak to those folks, who as you might imagine are on a legal aid plan, often means they're frequent flyers for us. To have them leave the system is a huge achievement, and we support both the training of the elders and the provision of counsel in those courts because it gets better results.
The federal funding for restorative justice programs is a good start, but it's only just a good start. It has been there for years. It doesn't, at least from the legal aid perspective nationally, appear to be coherent and strategically focused. It should be, and it should be expanded. It gets great respect in the communities where it works, and the communities themselves benefit because the capacity of the community to address legal issues is addressed effectively.
Mr. Chairman, those are my comments in the time available.
