Mr. Chair, former minister of justice, members of the committee, thank you.
The Barreau du Québec is the professional body that represents 26,000 lawyers in Quebec. Its mandate is to protect the public, in particular by governing the legal profession. Public protection also includes a societal aspect. Access to justice is an important societal issue that is related to our mandate.
We are pleased to contribute to the work of the Standing Committee on Justice and Human Rights with respect to legal aid since it is an issue that involves both justice and human rights. It is a fundamental issue. In 2002, the chief justice of the Supreme Court of Canada ruled that legal aid is an essential public service for all low-income Canadians. We must look at it in the same way as health care and education. The health of our justice system and public confidence in it depend on this.
Still relevant, these remarks are often used to call for the reform of legal aid as an essential service. As you know, the law is the foundation of democracy and of social cohesion, to the extent that the public has access to it. Access is often through legal aid.
More recently, a report from British Columbia took up the cause again.
It states the following:
We need to build a broad consensus which recognizes that legal aid is an essential public service. Along with education, healthcare, and social assistance, it is the fourth pillar of our steadfast commitment to a just society.
The Barreau du Québec believes in this principle and makes representations to various orders of government for it to be recognized.
Limited access to legal aid has a significant impact on the people who are deprived of fundamental rights, including equality before the law. Vulnerable people are convicted or waive their rights owing to a lack of adequate representation. There is also a substantial cost to the court system when individuals represent themselves.
In a society founded on the rule of law, it is essential for everyone to have appropriate representation. The state has a duty to provide such representation to the most disadvantaged and most vulnerable members of society. Quebec's legal aid network was established to provide legal services to all disadvantaged individuals, especially to the economically disadvantaged. It was created in the 1950s, when the legal aid system was based on lawyers providing services free of charge.
In the early 1970s, however, it became apparent that the system was lacking and that broader action was needed. Quebec's legal aid system as we know it today was created in 1973. The system in Quebec is hybrid in nature and includes permanent legal aid lawyers and lawyers in private practice who accept legal aid cases for which they are paid a negotiated rate.
I think Quebec's system differs from that in other provinces in that regard, as public-sector funding ranges from 40% to 55% every year. It is a hybrid system combining private practice and public practice.
The Quebec act respecting legal aid and the provision of certain other legal services had two related objectives: the individual defence of disadvantaged persons by lawyers and notaries, and the provision of legal information to disadvantaged persons with respect to their rights and obligations. The competition between permanent legal aid lawyers on salary and lawyers in private practice has helped keep costs down and reduce the bureaucratization of the system.
The first part of our presentation provides information about the system in Quebec, what is happening now, and the current discussions with the provincial government. We will then talk about the federal contribution, that is, the role the federal government should play with respect to legal aid.
As to Quebec's system, our representations reflect marginalized groups. Even though the eligibility thresholds reached minimum wage in 2016—which is catch-up from previous years—, the fact is that certain aspects of the 40-year-old system should be changed to ensure that it is still the best way of meeting the needs of the most disadvantaged members of society.
Quebec is the only province that uses annual income as opposed to monthly income to determine eligibility for legal aid. When a person requires legal services, however, it is often because their income has dropped, which goes unnoticed if one considers the person's income for the whole year. That is one of the challenges we face in Quebec as regards access.
The issue of designated clientele is another consideration. In its Reaching Equal Justice Report, the Canadian Bar Association defines the group as people living in marginalized conditions. According to Judge Cromwell's report, the poor and the vulnerable are particularly prone to legal problems.
According to the Supreme Court justice, individuals with lower income and members of vulnerable groups experience more legal problems than higher income earners and members of more secure groups. This reality concerns the legal community, and one of the solutions lies in the creation of specialized clinics to more effectively support the most disadvantaged members of society.
Ontario is being applauded for its efforts to set up legal aid centres specifically for certain client groups.
the African Canadian Legal Clinic, the South Asian Legal Clinic of Ontario, the Metro Toronto Chinese and Southeast Asian Legal Clinic, the Centre for Spanish-Speaking Peoples, and the Aboriginal Legal Services in Toronto.
These initiatives are designed to help singled-out client groups. The approach is in line with that set out in the Reaching Equal Justice Report. The cornerstone of the report is human justice based on human rights, in other words, taking into account all of the legal problems, challenges and disputes that both individuals and small businesses experience.
The first step would be to prioritize assistance for those with essential legal needs and to adopt the specialized clinic approach to avoid the stigmatization of those client groups. A comprehensive effort is necessary to disseminate legal information on a broader scale and to continue tailoring the information to people living in marginalized conditions, including those from racialized groups. Although the resources are sometimes in place, they are not accessible to these populations.
Ms. Chamagne discussed the problems with translation and interpretation. People who are unable to receive assistance in English or French in Quebec do not have access to these resources.
I addressed the fact that monthly income is used to determine whether a person qualifies for legal aid. The situation has been this way since 1996. As you can imagine, it creates numerous challenges for individuals who have lost their jobs and are experiencing financial hardship. People in these situations can experience a variety of legal problems: they may have been denied wage loss insurance or employment insurance; they may be unable to pay their rent; they may be accumulating debt or dealing with collection agencies; and so forth.
Service coverage is another factor. The range of services covered by legal aid has been reduced. For example, summary conviction offences, under criminal law, are no longer covered. That has an impact at the federal level, as well, given that some offences involve federal legislation just as much as provincial legislation. Legal aid is covered only when the individual faces the possibility of going to jail or losing their means of livelihood, or when exceptional circumstances exist.
We believe these conditions are much too restrictive. How many people plead guilty because they don't have access to a lawyer's services and cannot afford to defend themselves despite having sound arguments in their defence? Such situations can arise in cases of systemic or indirect discrimination including racial profiling.
How many people representing themselves have slowed down or delayed the legal process? This gives rise to additional costs, which may be difficult to calculate but are a familiar reality for any lawyer with courtroom experience who has watched an individual represent themselves.
Furthermore, consideration must be given to the ongoing negotiations regarding the fees of private practice lawyers for legal aid services. Quebec's lawyers are demanding the right to be compensated for legal aid work at rates comparable to those of their counterparts in other provinces, which is not currently the case. A flat fee is paid for many services regardless of the number of hours worked. That deters lawyers in private practice from accepting legal aid mandates. The statistics are telling: the number of private practice legal aid mandates has dropped markedly over the years, as has the number of lawyers accepting legal aid mandates.
Looking at the 15-year period between 2001 and 2016, we see a 20% decrease in the number of lawyers accepting legal aid mandates, despite the fact that the Barreau's membership rose by 37% during the same period. The difference is significant in terms of the drop in the number of lawyers accepting mandates.
Let us now turn to the federal government's involvement in legal aid. For our purposes, the government can facilitate better legal aid schemes mainly through financial support. With that in mind, the two elements I will talk about are immigration law cases and specialized clinics, which I touched on earlier.
I'd like to take this opportunity to recognize the reinstatement of the court challenges program, which was something the Barreau du Québec had been calling for. The ability to obtain funding for these kinds of cases contributes to access to justice.
Quite frankly, until just recently, I didn't know that the federal government funded legal aid services in cases involving immigration law and criminal law. According to the statistics we were able to obtain, in 2014-15, the commitment with respect to criminal matters was $23.4 million, in Quebec alone. For its part, Quebec contributed $134.1 million to the legal aid program.
Our first request is that steps be taken towards greater information transparency. A few years ago, a number of years ago, actually, the federal government contributed 50% of the funding and the province provided the other 50%. The transfers were then consolidated under federal-provincial agreements. Subsequently, during our negotiations with the Quebec government, it was challenging for us to find out what the federal government's contribution was and to make sure that the money went to Quebec's legal aid system. The issue is actually quite topical given that we are in negotiations right now and need the data in order to evaluate the system.
Of course, the federal government has a role to play in criminal law and immigration law. However, when the government decides, for better or for worse—I'm not here to pass judgment—that minimum sentences should be imposed and when it introduces further immigration legislation, making the practice of immigration law even more complex, it makes lawyers' jobs even harder. The complexity of immigration law has skyrocketed in recent years, and so too have the legal needs. The federal government is nevertheless responsible for ensuring that affected individuals have access to legal aid services and that those services are adequately funded.
The people eligible for legal aid in immigration matters are often facing serious threats. I mentioned human rights earlier. They are at risk of being removed or deported, have been denied citizenship, and have been separated from their families and loved ones. The hardship they face is beyond anything we can imagine. The requirements have multiplied and grown more complex over the past few years. It is our view that the federal government should take that new level of complexity into account when deciding how much it will contribute to legal aid.
Turning now to specialized clinics, I would point out that such clinics exist in the health sector and are tailored to the specific cultural needs of patients. Adopting a similar approach in the legal sector would only have positive effects. It would take into account Canada's multicultural and indigenous reality. Increased federal funding for legal aid should be geared towards communities that are often marginalized. Private specialized clinics require a commitment by the federal government. The purpose of these specialized centres is to provide representation to specific groups, with experts helping not just poor, but also marginalized, clients.
I will now summarize our recommendations.
First, legal aid funding should take into account new legislative requirements in immigration and the increased complexity of immigration law cases.
Second, federal legal aid funding should support private specialized clinics geared towards marginalized communities and groups.
Third, the method used to calculate federal legal aid funding should be available and the funding should be subject to greater transparency.