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Submission to the legal aid task force

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Mr. Chairman and members of the task force, you have in your materials four papers presented by the B.C. Civil Liberties Association. They are:

  1. Brief in support of a comprehensive legal aid plan
  2. Report on civil legal aid
  3. Report on criminal legal aid
  4. Brief on costs to accused on acquittal.

I would like to commence my submission on behalf of the Association by posing the questions: Why have legal assistance? What is the importance of legal aid.

The Association believes it is a question really of “what kind of society do we want?” The answer, we suggest, is that we want a democratic society, one with freedom and justice for all as the goal.

We take the position that there are certain fundamental precepts to making democracy effective for all persons. These fundamental precepts include:

  1. Equality before and under the law, and the equal protection of the law, and this implies a second precept, which is:
  2. That the same law shall apply for rich and poor, for weak and strong. That is, the poor must not be denied equal access to the law because they are without adequate economic means. Nor should the poor be denied a proper defence to a legal suit against them, or to prosecution against them.

These precepts have been the foundations of our reports on legal aid in 1963, 1970 and 1972. In these reports we have taken positions on both civil and criminal legal aid. We were concerned about the large numbers of persons who, because they lacked adequate money, were unable to obtain legal counsel in court cases. In these reports, we stated our position as follows:

In criminal cases:

…so long as we have the adversary system, it is essential to the administration of justice that both sides be fully and thoroughly presented, and the administration of justice has long been accepted as a function and responsibility of the state. In our view, the assistance of counsel should be a right made effective to the accused by the state through the use of public funds.

In civil cases:

The administration of justice according to law is one of the hallmarks of a civilized society. Another is the protection of the weak against the strong, whether that strength be physical or economic. Both of these factors require that judicial determination of disputes should be readily available… (with limited exceptions, we therefore recommend that) legal aid should be available to every resident of the province for any civil court proceeding commenced in this province, whether at first instance or on appeal, and whether the defendant be the plaintiff, defendant or any other party.

During the 1970s our Association took the view that considerable progress was made towards establishing a satisfactory legal aid scheme in British Columbia. It was during this period that the following developments occurred:

  1. There were legal aid tariff payments to lawyers for representing criminal defendants in proceedings that could lead to their imprisonment.
  2. There was tariff payment for lawyers doing family law matters on legal aid where a client’s mental or physical safety, or the health or safety of her children were or might be affected by the legal proceedings.

The tariffs were not adequate, and did not as a rule compensate the referral lawyer for preparation time. Lawyers were paid for time in trial or hearing, but not for the all important task of preparing for the trial or hearing. This was, and remains, a great inadequacy of the tariff system.

In addition, the coverage of domestic disputes by legal aid was not sufficiently broad. There were a great many matrimonial disputes that needed to be covered by legal aid, which were not.

And there was still no universal legal aid scheme. There was no payment of legal fees to counsel on other civil, non-tariff matters, although some of these were done, and are done, by staff lawyers of the Legal Services Society.

Most often it is the criminal cases and the family law cases that are considered worthy of legal assistance in a scheme whereby lawyers would be compensated by the state for their work on behalf of indigent or poor clients. However, the Association has always adhered to the view that there are many cases worthy of tariff legal aid which are not criminal cases, and not directly family law cases. Some examples of these “non-tariff” cases, for which no payment for legal fees is available are:

  1. Wrongful dismissal cases: those where the sum in question is too small to interest a lawyer in the usual contingency fee arrangement, and where there is no trade union representation, but where nevertheless the case is of great importance to the particular client.
  2. Residential foreclosures, of which there have been many in B.C. in the recent period.Personal bankruptcies.

    All cases before administrative tribunals including cases before welfare, unemployment insurance, workers’ compensation, rentalsman cases, etc. In particular, there is a great importance to appeals from these decisions and a need for legal aid to be available to the appellant.

At the moment, it is possible for the legal services society staff lawyer to do a case, or perhaps there may be a referral to a private lawyer on a pro bono basis. Many lawyers are willing to take such cases.

But this pro bono system for these very important cases is very inadequate. Such cases may affect a person’s livelihood, his or her security, health or that of his or her family. Yet, because there is no access to counsel, and no right to counsel, or because there is only a right to unpaid counsel (who must also consider economic imperatives and must often give free cases a low priority), representation of the client may be ineffectual or nonexistent.

In this time of economic recession, there is a tendency to think in terms of the cost of legal aid. The Association is concerned that the cost of not providing legal aid leads to greater social cost in the end. For example, the single parent who is unemployed, and who cannot prosecute her claim for maintenance or division of marital assets, may end up being a welfare recipient only because she does not have adequate legal representation.

Similarly, a single parent who does not have counsel to assist her in barring an ex-spouse from access to children, or to herself, where there is mistreatment of her or her children, is a situation which may ultimately lead to greater social and economic cost to society as a whole.

Legal is not a frill of the welfare state; it is a necessity of the democratic society.

Legal aid is cost efficient, both economically and socially.

In our briefs, we have called for particular attention to some groups, particularly disadvantaged groups, such as native persons, immigrants, the poor, the unemployed and single parents.

The cost of not providing a satisfactory legal aid system, so that all can participate in the social and economic system and have equal access to the courts, may be the growth of disaffection and social alienation.

The dangers are greater, not lessened, in times of economic stress and high unemployment. Legal aid must be a greater, not a lesser priority in the times that we are presently experiencing in this province.

Therefore, the British Columbia Civil Liberties Association urges the members of this task force to recommend to the government the immediate restoration of legal services to the level that they were at before the present series of cutbacks; we further urge the removal of the 12.5% counsel fee deductions, and the recognition that the present tariff fees are inadequate at best; we further recommend the abolition of the user fees which have been imposed on legal aid clients.

And further, we urge the government to expand the mandate of publicly funded legal aid to ensure that no litigants, or potential litigant, pursuing a bona fide claim, is prevented by financial instability from pursuing that claim. There would, of course, be some exceptions; our ASsociation would except from legal aid, claims advanced in the ordinary course of business, speculative ventures for profit or proceedings after judgment for liquidated sums.

Our Asociation is cognizant that many other organizations, from the organized Bar and from other groups, will be making representations to you with respect to criminal and family legal aid, and therefore I have purposefully not dealt to a great extent with criminal legal aid. However, I would like to make a few comments on the Association’s position on the matter of criminal legal aid.

We previously have taken the position that renumeration to a lawyer in a criminal legal aid case should be 90% of the fee that might be charged to a person of average means by a private lawyer for the same matter. Although we recognize that economic considerations may make this impossible at present, we do feel that immediate consideration must be given to raising the tariff by providing fees for pre-trial preparation in criminal cases. In addition, aid should also be available for criminal cases where no jail term is involved—it must be remembered that the stigma of criminalization is still a risk in a case where the accused will not be given a jail term. It is fundamental that there can be no fair trial without benefit of legal counsel.

There is another aspect of legal services in criminal cases. I speak of the matter of awarding costs to a successful criminal defendant. All of us involved with the criminal justice system recognize that there is tremendous personal and financial cost, and loss of reputation, when the government has chosen to prosecute an individual for a criminal offence. Such losses are never regained by an acquittal.

We have proposed that where charges are dismissed or stayed or withdrawn, the accused person should automatically be entitled to an award of costs. These costs should include counsel fees, witness fees, travel and accommodation expenses and lost wages.

In summary, the Association asks that you give recognition to the crucial function which legal assistance has in our society here in the province of British Columbia. We ask you to urge the government to follow through on funding sufficient to allow the Legal Services Society to perform its mandate of providing state funded legal assistance in accordance with the present legal services legislation. In view of the priority that legal assistance must have in our society, we urge you to ask the government to expand, not contract, this most valuable social services, to recognize how indispensible legal assistance is to a free and democratic society.