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Legal aid system has ‘lost its way’ in B.C.: report

Monday, March 11, 2019 @ 1:18 PM | By Ian Burns

A review of the B.C. legal aid system says change is needed in order to reverse years of underfunding and make it more effective, but an organization representing legal aid lawyers in the province is saying it does not go far enough because of a lack of focus on financial concerns and is threatening to withdraw its services unless action is taken to put more money into the system.

The review was announced in October by Attorney General David Eby and led by Jamie Maclaren, founding executive director of Access Pro Bono, a Vancouver-based organization that provides free legal advice to low-income individuals and non-profit organizations. In his report, which was released March 4, Maclaren said “legal aid is not broken in B.C. — it has simply lost its way.”

“Years of underfunding and shifting political priorities have taken their toll on the range and quality of legal aid services, and especially on the people who need them,” he said. “Still, the will exists in B.C. to make legal aid more accessible and effective for all of its many users.”

Greater independence from government in administrating legal aid, supporting an integrated system of community legal clinics and a focus on family, poverty and Indigenous legal concerns were among the 25 recommendations in the report.

“It is time to move beyond speculation and anecdotal information in redesigning legal aid services,” he wrote. “System reform should not be a linear process led by experts, but rather an iterative process involving continuous learning and adaptation that leads to improvement from the perspective of users.”

The Ministry of the Attorney General said in a statement to The Lawyer’s Daily it is “carefully reviewing Mr. Maclaren’s recommendations before determining next steps.”

“Our government is committed to making key improvements to legal aid in B.C. but it will take time and we want to be sure we get it right,” the Ministry said. “We are investing an additional $26 million in legal aid and we want to ensure maximum impact for our investment.”

Margaret Mereigh, president, Canadian Bar Association, B.C. Branch (CBABC)

Margaret Mereigh, president of the CBABC

Margaret Mereigh, president of the Canadian Bar Association, B.C. Branch (CBABC), said she was “pleased to welcome the report’s recommendations for meaningful change to legal aid in British Columbia.”

“Legal assistance service providers will need to collaborate with other providers to ensure a whole process — from outreach to after-care — is a success. They must work together to provide services that are fully accessible, timely, high quality, culturally appropriate and cost effective,” she said. “Our call for a system that cares about the user experience and includes tools to measure what works or what doesn’t is reflected in this report. We hope the government now chooses to fund the recommended reforms.”

Richard Fowler of Fowler & Blok, a Vancouver-based criminal lawyer who also serves as a spokesman for the provincial Association of Legal Aid Lawyers (ALL), said it was important Maclaren recognized the fundamental importance of legal aid to access to justice and the core problems for legal aid in B.C., but noted Maclaren did not deal with such issues as funding or tariff rates during his review.

“One of the fundamental problems is that legal aid has been starved for funding for many years by successive governments, and there’s been a lot of political interference in legal aid over the years,” he said. “You cannot evaluate the potential benefits of any of the recommendations without taking into account what they are going to cost — and I think one of the key flaws of the report is that nothing is costed.”

The Ministry said the review was limited to legal aid service delivery models because the models “should be determined before costs can be considered.”

Richard Fowler, Fowler & Blok

Richard Fowler, Fowler & Blok

“Unlike previous reviews of legal aid, this one focuses on the user experience of British Columbians receiving legal aid services, to determine the models that work best for them,” the Ministry said. “The aim is to advance the rule of law and improve access to justice.”

Fowler said ALL is asking for funding to be restored to the level it was at in 1992 before cutbacks began.

“We’re saying there has to be an injection of money that amounts to about another $100 million,” he said. “That would take the overall budget of legal aid in British Columbia to what it was in 1991, when legal aid was able to more adequately compensate lawyers for the difficult work they’re doing.”

ALL, which Fowler said consists of over 500 lawyers, is holding a vote March 13 on whether to begin withdrawing their services from the legal aid system, which could include taking on no new cases, withdrawal from duty counsel services and withdrawal from existing cases.

“Legal aid funding is so poor right now, lawyers cannot make a living or provide the quality of service clients need in terms of an office, administrative staff and those kinds of things,” he said. “So in the very short term what needs to happen is compensation needs to be addressed. Legal aid is an essential public service and if people are helped with their legal problems, they will end up costing other resources significantly less money.”

And the Trial Lawyers Association of B.C. (TLABC) threw its support behind ALL’s actions, stating in a release “the continued lack of support by government for legal aid, and thereby access to justice, undermines the rule of law.”

“It is disgraceful that we do not do more to support families and low-income British Columbians as they struggle to deal with family breakups, including the apprehension of their children, by properly funding legal aid. It is unacceptable that legal aid lawyers who help the most marginalized people in our community have seen only one pay increase in over 25 years,” the TLABC said.

The Ministry confirmed it is “engaged” in discussions with ALL.