Access to Justice: Saving pro bono help centres | Beverley McLachlin
Wednesday, March 06, 2019 @ 11:16 AM | By Beverley McLachlin
“Absolutely,” I said. A few minutes and a telephone call later a young lawyer arrived, and I explained to his camera the vital role Pro Bono Ontario plays in assuring access to justice and why its Law Help Centres must be saved. Many others — judges, retired judges and lawyers — did the same.
As I returned to my hotel room, I gave myself a reality pinch. Here I was, in one of the richest provinces in one of the richest countries in the world — a province and country that pride themselves on their justice system — begging for the continuance of something that helps thousands of people get their day in court or the legal advice they need to get on with their lives.
Canada has an excellent justice system. But it suffers from a notable failing — it fails to provide justice to thousands of its citizens. Lawyers and judges who work in courtrooms filled with unrepresented litigants know this to be true. But the wider world had also noticed; for example, Canada’s low grade on the access front has pulled down its ranking by the World Justice Forum in recent years. We can and should do better.
We are making progress. In recent years Canadians committed to ensuring access to justice — not just for the well-heeled but for everyone — have launched an impressive number of initiatives. One of the most promising has been the introduction of pro bono help centres.
Canada’s pro bono organizations connect clients who can’t afford a lawyer with lawyers who help them with those problems for free. They do this through walk-in clinics, online consultation services, telephone help-lines and programs aimed at needs like vulnerable children. Ontario’s Law Help centres provide a continuum of legal services that include legal drafting assistance, summary advice, courtroom duty counsel and lawyers who provide full representation and unbundled legal service as appropriate. They are a vital link between needs on the one hand, and legal services to meet those needs on the other.
As former Supreme Court of Canada Justice Thomas Cromwell puts it, “We’ve got lots of lawyers willing to volunteer their time and we’ve got thousands of people who need this help. All we need is some resources to help with the administration necessary to bring the volunteers and the people in need together.”
Pro Bono Ontario seeks to fill the gap between people who qualify for legal aid and those who can afford to hire a lawyer. The gap is large and growing.
Legal aid coverage has been diminishing since the 1990s; government funding for legal aid has remained stagnant while spending on areas like health care and education has gone up. Legal aid is now largely limited to criminal law, family law, refugee and immigration cases — and not everyone within these categories gets it. For example, the legal threshold in Ontario for legal aid to a single person is currently an income of $14,453. And if that person has assets over $1,118 she still won’t qualify.
This leaves a huge unmet need for legal assistance by the host of individuals and families who are working hard just to get by. When these people face legal problems related to matters like consumer debt, employment, housing and powers of attorney for property and personal matters, they have nowhere to turn. The result? Literally thousands of people trying to do it themselves and a host of unrepresented people crowding the courts.
The problem is that court processes are based on the assumption that the people before them will have legal help. When parties don’t have lawyers, court processes don’t work the way they should. Cases take longer; judges and lawyers are frustrated; and the unrepresented person is likely to obtain a worse result than the person who has a lawyer.
Pro Bono Ontario keeps records. These show that it has succeeded in helping people get legal help they would otherwise not have obtained. In 2018, for example, Pro Bono Ontario through its combined walk-in and telephone services in Toronto and Ottawa helped 27,390 clients get the legal advice and help they needed. Courts run better because litigants are represented by lawyers, saving public costs. Young lawyers get experience. And the legal profession is able to effectively fill its responsibility to provide access to legal help when it is needed. A win-win for everyone.
Yet despite this success, Ontario’s Law Help Centres faced a crisis last fall that threatened to shut them down. Pro Bono Ontario’s funding has always been precarious, provided by Law Foundation grants, Law Society help and fund-raising from the legal community. Yet without permanent funding, Ontario’s Law Help Centres lurched from crisis to crisis. In 2017 the Ministry of the Attorney General gave Pro Bono Ontario a one-time grant of $300,000, allowing it to keep its centres open for a year. In 2018, however, the Ministry declined funding, and stated no further funding would be provided. Pro Bono Ontario had no choice but to announce that it would be closing its Law Help Centers on Dec. 14, 2018, due to lack of stable funding.
So I found myself that November day making a video plea to keep Ontario’s court-based centres open. Others did the same. The campaign succeeded.
Gifts of $275,000 came in. And the Federal Department of Justice made a one-time grant of $250,000. It was enough to ensure that Ontario’s Pro Bono Help Centres would stay open until the end of 2019.
But the question remains, what will happen next year? Everyone who has looked at the problem of self-represented litigants agrees that Pro Bono Ontario fills an essential need in providing access to justice.
The urgent challenge is to build a sustainable financial base for Pro Bono Ontario. But who is responsible?
In British Columbia, Alberta and Saskatchewan law societies have been working on lawyer-funded programs to support pro bono law centres. Lawyers enjoy the exclusive right to provide legal services; with that comes an obligation to ensure those services are provided, not just to those who can afford them, but to all those who need them. The Canadian Judicial Council recognized this in its Statement of Principles on Self-Represented Litigants and Accused Persons: “Members of the Bar are expected to participate in designing and delivering legal aid and pro bono representation to persons who would otherwise be self-represented…” The Supreme Court of Canada expressly endorsed this statement in Pintea v. Johns (2017) SCC 23.
Governments are also part of the picture. The provinces are constitutionally responsible for the administration of justice within their borders — a responsibility that doesn’t stop with building courthouses and paying court staff. A court system built on a lawyer-representation model isn’t able to operate as effectively as it should if litigants don’t have lawyers. Responsibility for the “administration of justice” implies responsibility for ensuring that the justice system works effectively to actually deliver justice, not just for the well-endowed, but for everyone.
If we care about justice, we need to make strong pro bono service centres a permanent part of the justice system.
The Right Honourable Beverley McLachlin served as chief justice of Canada from 2000 to mid-December 2017. She now works as an arbitrator and mediator in Canada and internationally and also sits as a justice of Singapore’s International Commercial Court and the Hong Kong Final Court of Appeal. She chairs the Action Committee on Access to Justice in Civil and Family Matters.