Canada’s justice system has become out of reach for many of those who need it most, according to a new report by the Canadian Bar Association that calls on the federal government to restore legal aid funding to the level it was at in the mid-1990s as part of a systemic overhaul to be completed by 2030.
The summary report released Sunday at the organization’s annual convention said while legal aid funding has increased over the last five years, it’s still down about 20 per cent overall compared to pre-1994 levels.
Furthermore, the federal government has gradually reduced its share of funding for both criminal and civil legal aid. Up until 1995, the report argues, the federal government split the cost with the provinces and territories 50-50. It now contributes just 20-30 per cent of the cost.
“Like health care, justice is a shared governmental responsibility,” says the report. “A reinvigorated federal role is imperative if we are to reach equal justice.”
The report calls on the government to return to 50 per cent cost sharing in criminal matters and to establish a “dedicated” contribution to civil legal aid. It also calls for legal aid services to be expanded and improved.
“The reduction in federal spending overall, increased complexity in the substantive law and growing demands for criminal legal aid have placed pressure on legal aid providers to ration services — in a way often inconsistent with the general purpose and public policy values underlying the program,” says the report.
“In some places, people qualify only if they are living at subsistence levels (social assistance), leaving out the working poor.”
The lack of access to legal assistance, the report says, has resulted in a spike in the number of unrepresented litigants. While most pronounced in family court, it’s estimated that 10-80 per cent — depending on the court and subject matter — of litigants represent themselves.
It means court staff are more often forced to “walk a fine line” between providing legal information and advice — the latter of which they’re forbidden from providing, says the report. Studies also suggest “unrepresented parties” lose their cases more often and more severely than those with representation and that self-help legal services only really benefit those with “higher levels of literacy.” The growth of unrepresented litigants, the report adds, has also led to an entire pro bono industry.
“When people receive appropriate assistance in reading and preparing documents and making arguments, or get timely legal advice and representation, it saves public money in the long run and results in better outcomes,” the report says. “Plus, the overall justice system functions more smoothly and effectively, to everyone’s benefit.”
But legal aid isn’t the only answer. The report outlines a number of other ways to facilitate access to justice and improve the system overall.
The report calls for “law as a life skill” courses to be integrated into the school curriculum and for legal training modules to be available in the workplace as well as to new immigrants, adults entering retirement and young adults entering the workforce.
It also calls on the justice system to make better use of new technologies, for legal expense insurance to become commonplace and for the creation of a “universal Canadian legal health checklist” as a means of preventing legal troubles before they surface.
“Just as the health system aims to both prevent and treat disease, so too the justice system should aim to prevent legal problems in addition
to providing assistance when they arise,” the report says.
“The legal health checklist model ties together ideas of prevention, resilience and increased legal capability. A number of legal practice
websites encourage people to have an ‘annual legal health checkup’ or offer checklists of situations in which legal needs or issues often
arise.”
The report also encourages the “team delivery” of legal services whereby lawyers, paralegals and other experts work together to offer a wider range of more affordable legal services and calls for greater investment in legal research and development and the creation of a Canadian Centre for Justice Innovation.
tcohen@postmedia.com
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