Richard Fowler: Horgan government must support ‘meaningful access to justice’ by properly funding legal aid

B.C. has an access-to-justice and legal aid crisis. The recent provincial budget does nothing to address this crisis; up to eight pilot-project legal clinics is a band-aid on a severed limb. The government’s response to this crisis is to fill potholes when the bridge to access to justice collapsed a long time ago.

Every day, hundreds of our province’s most vulnerable and disadvantaged, including the mentally ill, people with disabilities and those who are socially and educationally marginalized, are having to deal with complex legal problems, including appearing in court, without the assistance of a lawyer.

Parents are going to court, struggling with the financial and emotional consequences of a family breakdown without a lawyer. Mothers and fathers who for many complex reasons are struggling raising their children are appearing in court without a lawyer — fighting against experienced lawyers representing the Ministry of Children and Family Development.

This very real crisis can be traced back to years of cuts and underfunding of the legal-aid system. Starting in 2002, the budget of the Legal Services Society was cut by 40 per cent over three years and has been starved of proper funding ever since. Legal aid for family law is now only available if there is a threat of violence or if the government is trying to have a child removed from their family permanently. Poverty-law legal services no longer exist.

Canadian democracy is governed by the rule-of-law. A fundamental principle of this rule is that every person within Canada is to be afforded the same protections of the law and justice. As stated by our former chief justice Beverley McLachlin: “There is no justice without access to justice.”

In his 2011 Report of the Public Commission on Legal Aid in B.C., Leonard Doust, QC, described legal aid as “a public service that is as essential as education, health care and social assistance. Indeed, the significance of the legal-aid system is that it picks up where our other social systems fail, and timely legal aid can often significantly reduce the strain on health care and social assistance.”

B.C. used to be a leader in the provision of legal aid in Canada. It now ranks very close to the bottom in terms of per-capita funding. This is despite the fact that Individuals and businesses who pay for legal services in B.C. pay a seven-per-cent tax on those services. When this tax on legal fees was introduced in March 1992, its goal was to fund legal aid. In 2017 the provincial government collected more than $210 million from the tax on legal fees yet it contributed less than $75 million to legal aid. In other words, the legal profession in B.C. generates more-than-sufficient revenue directly from the tax on legal fees to fund a legal-aid system that can adequately and fairly fill the needs of our most marginalized residents.

All lawyers in B.C. swear an oath to uphold the rule-of-law. All lawyers are ministers of justice, required by legal ethics to serve the cause of justice. In addition, our code of professional conduct obliges us to try to improve the administration of justice.

The Association of Legal Aid Lawyers was incorporated in 2018 with the specific goal of advocating for improved funding for legal aid and thereby improving access to justice. We are determined to see the Horgan government uphold the rule-of-law by providing meaningful access to justice through the proper funding of legal aid.

Richard Fowler, QC, is a director of the Association of Legal Aid Lawyers.

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