In Canada, we proudly call ourselves a “just society.” We are fortunate that the rule of law is a cornerstone of our constitution. Through it, everyone — all public and private persons, institutions and organizations, including government — is bound by and entitled to the benefit of laws publicly made. However, without a properly funded system of legal aid, a “just society” is a hollow promise and the ability to ensure that the law applies equally to all persons suffers greatly.
The most vulnerable members of communities throughout B.C. require professional legal services when they face threats to their liberty and safety. Without access to legal assistance, these individuals and their families may be at risk of physical harm, emotional trauma and economic insecurity, which can lead to additional draws on already scarce community resources. Yet since the mid-1990s there has been a reduction in both provincial and federal spending on legal aid. Legal aid went through a dramatic transformation in 2002 when legislative changes and funding reductions led to a restructuring of legal aid services, which in B.C. are provided by the Legal Services Society. The changes eliminated legal aid for poverty law, restricted family law to child protection and emergency services in cases involving domestic violence, and decreased the society’s budget by nearly 40 per cent over three years. Rising costs and declining revenue forced further cuts to services and staffing in 2009 and 2010.
Funding has always been, and remains, a critical issue for sustainable legal aid. Unlike medical services or education, legal representation is not provided by the state to those who are in need of it. Lawyers provide legal expertise to interpret laws, and advocacy expertise to bring cases to court. But legal representation is costly, and the enforcement of legal rights comes at a price. There are a great many people — the poor, the working poor, and many Indigenous persons in particular — who cannot afford to access legal services respecting legal issues that they may face. These can include criminal charges, child apprehension issues, familial relationship concerns, and immigration problems. The Law Society of BC believes that every person, regardless of their means, should have access to the protection of the law.
While the legal profession must continue to find ways to ensure that its services are affordable, it cannot shoulder the entire burden. For the rule of law to have meaning, legal aid funded through the state is crucially important to help people obtain legal representation when their legal rights or responsibilities are at issue if they do not otherwise have the financial ability to do so.
In 2002, Chief Justice McLachlin stated that, “providing legal aid to low-income Canadians is an essential public service. We need to think of it in the same way we think of health care or education. The well-being of our justice system — and of the public’s confidence in it — depends on it.”
The Law Society has recently created a vision for legal aid. It outlines a vision that legal aid should:
support the ability of all people to access justice and specifically to protect the rights of the most disadvantaged and vulnerable members of society;
assist people in the exercise of those rights to obtain appropriate remedies, and to enjoy the benefits of professional legal advice concerning those remedies; and advise people about the obligations and responsibilities imposed on them as members of a democratic society, subject to the rule of law.
The Law Society views legal aid as a method of providing everyone, regardless of income and without discrimination, access to general information and publicly funded professional legal advice to assist those people in understanding whether they face a legal problem, and if so, what remedies or obligations they may need to consider. The vision, however, also identifies that the most disadvantaged and vulnerable people in society are entitled to additional publicly funded legal services, up to and including legal representation before courts.
In its pre-election platform, the BC NDP government pledged to increase funding for legal aid and courthouse staff by 10, 15 and 20 per cent through the next three fiscal years. That would be a start. We hope to see a firm commitment to restore legal aid funding to levels that will permit everyone in B.C. to benefit from the rule of law.
Nancy Merrill, QC, is second vice-president and chair of the Legal Aid Advisory Committee for the Law Society of BC.