No Agreement on Legal Aid Funding
Justice ministers from across Canada met in Alberta this week to discuss funding for legal aid, but no agreement was reached.
According to provincial justice ministers, legal aid used to be shared equally with the federal government. However, since 2003 there has been no new funding from the federal government, meaning any shortfall is left to the province. What that means is that in some provinces like Alberta, federal contributions to legal aid have dropped to 16 per cent.
Andrew Swan, Manitoba Justice Minister, said,
I don’t understand how a government in Ottawa that claims to be in support of law and order would take away something that’s been very, very valuable.
The importance of legal aid in promoting access to justice was recently highlighted by Ed Montigny of the ARCH Disability Law Centre,
At its most basic, access to justice means an appropriate level of assistance with legal issues for people when they need help to protect basic rights or needs.
These basic rights include housing, access to social supports and assistance, education, employment, medical care, child custody, spousal or child support, defending one’s autonomy or obtaining protection from abuse.
When issues of crucial importance to a person’s basic well-being are at stake, assistance should be available regardless of a person’s ability to pay or understand the relevant legal processes. Denial or obstruction of such assistance can take many forms—such as financial, social, or systemic barriers.
Some suggest that increasing legal aid would increase unnecessary litigation in society. This does not necessarily have to be the case, as Montigny explains,
In a perfect world, everyone’s legal rights would be understood and protected by all. And if a person’s rights were threatened and they required assistance to protect their rights, they would have access to competent legal advice and support regardless of their ability to pay.
A legal professional providing assistance would have the resources to devote as much time as they need to ensure an issue was dealt with, and to feel confident in providing high-quality services to their clients. Such services would include accommodation of needs related to disabilities, and an understanding of the social and economic position of clients.
Ideally, litigation would be required in only rare instances. When problems arose there would be a variety of options available to resolve conflicts and to protect rights. Mediation and alternative dispute resolution would be available as well as counselling and other options that do not require litigation.
Fundamentally, all decision-making processes would ensure that people feel they are heard and respected and that serious consideration given to their claim.
As a nerd who actually understands business, having run my own, the very last sentence is the critical one… I judge my management by whether they make decisions in a way that shows they understand the concerns of all the people for whom they are deciding.
I don’t need to agree: I do need to know they’re making a good-faith effort. Anything else is an invitation to go elsewhere*.
–dave
[* In the case of a government or a judicial system, it’s more like the decision makers who are my surrogates get to go elsewhere.Perhaps like Frankenstein, by being chased out of town by a mob with torches and pitchforks (:;-)]
Law Societies cause poor legal aid funding. The majority of the population (taxpayers) cannot obtain legal services at reasonable cost (“the problem”). For decades law societies have watched, but still have no program in place to cope with the problem. So now it is very politically unwise for governments to improve legal aid funding.
Nonetheless, law societies publicly urge governments to improve funding while allowing the problem to get worse as to the damage it causes: (1) to the increasing thousands of lives damaged for lack of lawyer-services; (2) to the courts, clogged with self-represented litigants; (3) to the economic distress of the legal profession; and, (4) to legal aid’s diminishing funding prospects, as shown by the several cuts Legal Aid Ontario has suffered. Their monopoly over the provision of legal services requires that law societies make legal services available to everyone covered by that monopoly, which is everybody. Taxpayers help by funding legal aid’s ability to provide free legal services to poor people. But taxpayers can’t afford legal services for themselves.
The Treasurer of the Law Society of Upper Canada’s letter of Feb. 7, 2014, to Ontario’s Minister of Finance, cited Ontario’s Law Society Act s. 4.2, which requires the LSUC to “facilitate access to justice” for the people of Ontario, as a reason for the government to improve funding for Legal Aid Ontario. The letter goes on to “rub the Minister’s nose” in the history of poor legal aid funding. Such letters are like a bank robber demanding that the banks be financed better.
Law societies ignore the main cause of poor funding for Canada’s legal aid organizations–their failure to accept and act upon the proposition that “the problem” is their problem to solve. The duty to do so arises from the law that gives them the power to regulate the legal profession.
A law society that cannot make legal services available to the public that are, competently and ethically provided, and affordable, has no purpose.
Therefore, a new management structure must be put in place of law societies. The problem of unaffordable legal services requires expertise that lawyers don’t have. Therefore, law society Benchers are amateurs, and part-time amateurs at that. Their “Access to Justice” committees lack the necessary expertise and understanding of the cause of the problem. Were it otherwise, they would publicly accept their duty to make legal services affordable, and acknowledge that their failure to do so makes adequate legal aid funding much more difficult to provide because it means taking more money from taxpayers who cannot afford legal services for themselves.
I urge all lawyers who still have many years to work as lawyers to cut your loses–petition government to establish a new agency that has the express duty to make legal services affordable. You will suffer a very poor economic future while the current law society Benchers are happily and comfortably retired. They are senior lawyers with established practices. They are not hurting, but you are, as will your families depending on you.
Consider: the problem causes more damage in one day than all of the incompetent and unethical lawyers have caused in all of Canada during the whole of its history. But there is not one law society publication that says: (1) the problem is exclusively our problem to solve; (2) if we had been adequately responsive to public need, it would not exist; and, (3) it is our duty to again make legal services affordable.
See my article, “The failure of law societies to accept their duty in law to solve the unaffordable legal services problem,” excerpted on Slaw, Sept. 11, 2014. The full article is on the Social Science Research Network (the SSRN); and published on the Access to Justice in Canada blog, in 2 parts on August 12th and 14th. For more in-depth analysis, see my “access to justice” articles posted on the SSRN — Ken Chasse, member, LSUC & LSBC.