Justice Committee on May 2nd, 2017

[Mark Benton]

I think, Mr. Duvall, I'd have to put it in the framework of the attorney general of the day, who felt strongly that it wasn't appropriate for the province to fund people to have lawyers to argue in court about custody, access, and division of assets. He was quite clear about that. He was quite open about it. I'm happy to send you some of his media interviews. I was following them fairly closely at the time. It is the most restrictive family coverage in the country, except perhaps in New Brunswick. We still are basically running services that are triggered by emergencies.

But yes, it was basically a political decision around funding. In straitened times, when cuts needed to be made, what was government not prepared to continue to do.

[Scott Duvall, NDP, Hamilton Mountain, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair.

There is a possibility that the Association des collèges et universités de la francophonie canadienne, the ACUFC, is making use of. It contacted medical schools, because the deans of these schools were basically saying that there were not enough francophones enrolled to serve Canadians in official language minority communities in a robust way. The ACUFC contacted each student in the country's medical schools and conducted a survey to identify francophones and francophiles who were not enrolled in medical programs in French. They identified 640 medical students who could speak French and wanted to offer medical services in French. I would like to know if you or your counterparts are able to ask the same questions of students enrolled in law schools throughout Canada, to find out whether they intend, as part of a future law career, to offer services in French.

[Andrée-Anne Martel]

Thank you, Mr. Boissonnault.

The short answer would be yes. It's obviously a very interesting approach. Could the reality of medicine apply to law? Absolutely. Currently, in Ontario, we have the common law program in French. Are there students, in Ontario, who decide to study at the University of Ottawa Faculty of Law in English, even though they are francophones or francophiles? Absolutely. Is this a process that we should imitate? Yes, and I am taking note of that.

[The Chair, Liberal, Anthony Housefather]

Thank you, that was an excellent question.

Ms. Khalid, you have the floor.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair, and thank you both for your testimony today.

Mr. Benton, you mentioned that funding models are outdated with respect to legal aid across the country. You also went on to talk about a possible national standard for legal aid.

We had some discussion about that. I am wondering if it is possible, first off, to update or modernize the funding system while also creating benchmarks as conditions for provinces in terms of the implementation of legal aid across the country. If so, what kinds of benchmarks would you recommend?

[Mark Benton]

I mentioned earlier that the Association of Legal Aid Plans had gotten together with CBA and identified benchmarks, and I can provide those to you. It wasn't possible for me to talk to you about them meaningfully in 10 minutes, but they are important and valuable, and designed to be malleable to local circumstance, even within provinces and territories.

I believe that in Canada we have mastered the art of federal-provincial relations around setting standards while allowing local variations in ways that work. I work in other countries, in other federations, and they don't do it as well as we do. We value the diversity. We recognize that uniformity isn't one of the things that works for us. I think the fact of two founding nations sort of guaranteed that in our mix. I believe it's all possible. I think we do it with medical care in important and valuable ways, and that's a place we can look to. I think we do it in education, as well.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

In what ways can funding models be updated or modernized?

[Mark Benton]

I think that part of the piece.... Mr. Nicholson's questions alluded to this earlier, in terms of where the provinces are going to be on this if you're going to say.... Is it “We just want more money; leave it to us to spend”? I think, in fairness, that's often what everybody's heard.

I think the reality is that it's time to change the conversation. If you don't mind, I'm going to turn the question on its side for a minute and say that when I'm working in other countries people really have a difficult time understanding how we could have 13 different justice systems in Canada—14 actually. They have that difficulty, and I think Canadians do, too.

We have a sense of what ought to be basic standards, just as we do with health care. I think that model of our emotional attachment to health care and what we think and feel about it is what we need to bring to the discussion of how justice works in Canada. I think it's all doable. I think we're pretty good at it.

I will send you the material that I believe provides that standard. I do want to stress, though, that you can't do that at the current level of funding, so the discussion about what the priorities would be, and in what order they would come forward.... To Mr. Fraser's question about our financial eligibility and the extent of services being separate issues. They sure are, and they have different cost implications.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Khalid.

Mr. Falk, go ahead.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chairman.

Thank you to both of our witnesses today for testifying here at committee. I appreciate that very much.

Mr. Benton, you made a comment in your presentation that service was “unfriendly” and “unaccessible”. You made a broad swipe and said that it was probably because lawyers were doing the work or it was run by lawyers. I think Mr. McKinnon, Mr. Boissonnault, and I were the only ones not offended.

Can you comment on that a little further? Is there a systemic problem around why you find it unfriendly and unaccessible that needs to be addressed within the system?

[Mark Benton]

I've done legal aid for 30 years. I've had lots of indigenous clients, and I have run this plan, so I am accountable for this for the last 12 years. I was surprised that we were getting such a consistent.... Oh, sorry, and I'm a lawyer.

I said that I think it's because we're lawyers. It's because we are attached to procedural fairness: “Here are the rules that work in the courtroom. Here is what we're going to make sure happens.” That's what we are experts in. We'll do our best to make sure it's understandable to you, but that's not our first priority. Our first priority is making sure that procedural fairness works. That is what courts do. It is what they are for, and it is how we train lawyers.

But that's not what justice is for, and it's not what justice is to Canadians. Justice is accessible and meaningful. It is something that matters to them and their communities. We don't do a good job of that. Lawyers and judges don't do a good job of it. They're getting better. I work with some amazing judges and lawyers on this. There has really been a shift in the last five years, and I think it's going to shift some more. We talked earlier about the national action committee report on access to justice. I think that's a real hallmark of that kind of work. It calls for justice systems to be client-centred—not institution-centred, not lawyer- and judge-centred, but citizen-centred.

I think that's an important shift, one that takes us to the place where we start asking people what they think of our services. It has helped us a lot, as a legal aid plan, to actually go out to communities and say, “What do you think of what we do? We're figuring out ways to do it better.”

[Ted Falk, Conservative, Provencher, MB]

We talk about training people in lots of disciplines, but for whatever reason, in certain professions we neglect to train people through motivational seminars and customer service. I think that if we were to make a bit more of an effort, maybe we could resolve some of that.

[Mark Benton]

If that were a recommendation I could have made an hour ago, I would have done so. I think it's actually quite important, and it has been well documented. As we have the discussion about how access to justice works, it's going to work better the more we pay attention to what people need, rather than what lawyers and judges feel they should have.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Does anybody else have any questions for the panel?

If not, I want to thank you, Mr. Benton and Madame Martel, for your excellent presentations. You've really hit home with issues, with respect to official-language minority communities and indigenous communities, that we needed to hear as we are considering the solutions we are going to come forward with on legal aid.

We thank you very much.

Have a good day, everyone.

The meeting is adjourned.