Thank you very much for inviting us to appear before you today to talk about the very important issue of access to legal aid. I would like to address not only the challenges, but also the opportunities that exist in this area.
Legal Aid Ontario, or LAO, is Canada's largest legal aid plan. It provides services to over 4,000 low-income people in the province of Ontario every day through a mixed-model system that includes private bar, staff, telephone-based, and online services. LAO has a budget of approximately $450 million and is also responsible for funding and oversight of 76 independent legal aid clinics across the province.
In Ontario we have been fortunate to be able to expand eligibility thanks to a generous investment by the provincial government. The financial eligibility thresholds had not been adjusted for two decades in Ontario when an independent study commissioned by LAO established that one million fewer low-income Ontarians were eligible for a legal aid certificate in 2011 than had been eligible in 1996. The gap population of low-income Ontarians was found to be more likely made up of families, children, the working poor, indigenous people, and members of visible minority groups.
With this recent increase in provincial funding, LAO has been able to implement three consecutive 6% increases to financial eligibility since 2014 as part of a long-term plan to raise eligibility thresholds to the 2011 low-income measure over eight to ten years. We have also been able to expand the range of services that are eligible for legal aid coverage. We think this is extremely important and we support the idea of establishing national benchmarks for the provision of legal aid services in the future.
We also think there is more that can be done to expand access to legal aid and access to justice. For example, Legal Aid Ontario has experience in developing and implementing vulnerable client strategies that improve and prioritize services for vulnerable and marginalized groups. We have developed aboriginal justice and mental health strategies and we will soon be introducing a domestic violence strategy. A racialized community strategy is also in development.
Our focus is on groups that are disproportionately represented in the criminal justice, child protection, and correctional systems and on groups that face particular challenges and barriers due to marginalization, or in the case of victims of violence, fear for their safety. We believe that the federal government should continue to encourage legal aid services that expand access to justice for vulnerable and marginalized groups.
The use of technology can also increase effectiveness and efficiency, and it can also expand access to legal aid services. Legal Aid Ontario has used technology in a variety of ways, from providing telephone summary legal advice, to introducing an electronic worksheet that allows all services provided to a client by duty counsel to be captured in a single record, meaning that the client has to tell their story only once. To broaden and improve access, reduce barriers, and simplify the client's experience, all of these things are important and are a useful use of technology. In the future, LAO anticipates moving to expanded chat and electronic services.
The federal government's support for more effective use of technology by legal aid plans would be a positive contribution that could help eliminate duplication of work and support more consistency and uniformity in the ability of plans across the country to use technology.
Another opportunity of federal government support lies in the areas of data collection and outcomes reporting. Legal aid plans across Canada are just starting to develop capacity in this area. Because LAO has a aboriginal self-identification question, we now know that 15% of legal aid certificates in Ontario are issued to clients who self identify as aboriginal. Knowing more information about our clients enables us to improve our services.
LAO is like other legal aid plans in that criminal law services make up its largest single area of service delivery by area of law. The financial demand that criminal law services places on legal aid plans leaves fewer resources available for providing services in other areas of client need such as family law. We think that the federal government can be of assistance in reducing demand for criminal legal aid services and the disproportionate impact and involvement in the criminal justice system has on vulnerable and marginalized groups by continuing to focus on initiatives and reforms aimed at reducing criminal justice system delay and addressing the overrepresentation of indigenous Canadians and the criminalization of persons with mental illnesses.
Specifically, LAO would like to recommend that the federal government continue to pursue sentencing reforms to reverse the legislative trend over the last decade. There is an opportunity to revisit mandatory minimum sentences, to increase the availability of conditional sentences, and to promote alternatives to incarceration for less serious offences and less serious offenders.
Problems with the bail and remand system have been well publicized of late. In Ontario, the remand population in provincial institutions is larger than the population of persons serving a sentence.
LAO has developed a bail strategy and is playing a key role in the province's new bail initiatives. We would like to see the federal government develop a new legislative framework for bail and remand.
It is worth noting that the introduction in 2003 of a new legislative framework, the Youth Criminal Justice Act, to address the over-criminalization of young people, provided and proved to be very successful in reducing youth incarceration.
Refugee claimants fleeing persecution and torture and other cruel treatment are among the most vulnerable people in Canada. World events, including the recent developments, are changing the landscape and narrowing the options for these vulnerable people. Only this week the federal government has reaffirmed Canada's commitment to welcome refugees.
In the first two quarters of this fiscal year, LAO experienced a 45% increase in refugee applications for legal services compared to last year. That number is only expected to grow. LAO has been successful in obtaining additional in-year funding from the federal government to assist with this year's pressures, and is grateful for this assistance, but we have serious concerns about the future. We ask that the federal government increase its contribution to refugee services and ensure equal and adequate access to justice as the demands for refugee legal aid services continue to grow. We believe there must be a mechanism for adjusting the federal contribution to respond to fluctuations and increasing demand.
LAO also sees opportunities for the federal government to contribute by supporting greater collaboration among all refugee system partners by supporting the addition of countries to the Immigration and Refugee Board's expedited country list—as claims that proceed by being expedited are less costly for legal aid—and by supporting the regularization of the status of over 3,000 legacy refugee claimants who have endured long delays in having their claims addressed.
Finally, the problem in accessing the family justice system is well known. Improving and expanding access to legal aid family law services has been an area of focus for Legal Aid Ontario. We offer a number of new services such as mediation and information and advice services that emphasize early intervention and a greater focus on resolution. We would like to recommend the federal funding assistance for family law be specifically targeted to expand access to family law services and reduce the number of self-represented litigants in the family justice system, with an emphasis on supporting front-end early intervention services.
Again, I would like to thank you for the opportunity to appear before you and to provide you with these ideas for ways in which the federal government can increase access to legal aid and access to justice.
I welcome any questions you may have.
Thank you very much, Mr. Chair.
Mr. Field and Mr. McKillop, thank you very much for appearing before the committee today.
I want to visit specifically the issue of civil legal aid. On December 13 last year, we heard testimony from the Canadian Bar Association about the Canada social transfer and how there tends to be finger pointing between the federal government and the provincial government. That can be true for a lot of different areas. The federal government can say that they do fund civil legal aid, that it's in the Canada social transfer. Then the provinces can say that, no, they don't, because we use that money for other stuff.
We have testimony from colleagues of yours from other provinces, specifically Alberta, who appeared before the Senate committee. They've noted that the announcement of new funding for legal aid programs doesn't really do all that much.
What I want is a little bit more testimony from you on the Canada social transfer and to know how we should prioritize funding for civil legal aid. Do you find, as in Ontario's example, it sometimes gets lost in the mess?
I certainly agree with what Mr. Field said.
Right now there are only three countries on the planet that are considered “expedites”, and those are Syria, Iraq, and Eritrea. For instance, Syria is not on the expedite list, so any unsponsored refugee claimant has to go through a full refugee hearing. It's a very expensive and lengthy process, and it's becoming lengthier.
The new refugee determination process that was introduced in 2012 has very tight timelines associated with it as to when a hearing must take place, and that system is already developing its own backlog. We still have what are called the “legacy” claimants who are from the previous refugee determination system. There are about 3,000 of them in Ontario. Nationally I think it's closer to about 5,000 or so. Both systems now have their own unique back issues that they need to resolve.
Could refugee determination be more of an administrative process? Does a refugee claimant from Syria really need to go through a full hearing process, or can a board member from the IRB, the Immigration and Refugee Board, have a look at the paper file and determine that on its face it meets what could be considered a proper refugee claim and adjudicate it accordingly without the need of a hearing?
Thank you, Mr. Field and Mr. McKillop, for being with us today.
I have two quick questions. One is, what are you seeing in terms of representation of members of the LGBTQ2 community, that is, two-spirited trans folk who are living rough because of troubling circumstances and then getting in trouble with the law?
I'd also like to know what statistics you have on services in French.
I know that the Government of Ontario is focusing a lot on the rights of francophones outside Quebec.
I'm interested in knowing what your official languages or francophone client load is like.
The Supreme Court has rejected arguments that there is a general constitutional right to legal aid. I wanted to look at the spirit of the charter, and specifically at section 15, where everyone is equal before and under the law, with equal benefit of the law and without any discrimination based on race, ethnic origin, colour, religion, sex, age, or mental or physical disability.
On December 13, when we questioned a representative from the Canadian Bar Association, Ms. Kerri Froc mentioned that you could make an argument under section 7 that some women may not have security of person when they can't get their cases against their abusers adjudicated. They're suffering under that. I respect the Supreme Court's ruling on this, but sometimes we have to go above and beyond that and look at whether the spirit of the charter is being complied with.
I would like to know your thoughts on this. When you look at the state of legal aid in Ontario and across Canada, do you think we are honouring the spirit of the charter? Are people really getting that protection under sections 7 and 15?
I think you raise an excellent point.
As I mentioned earlier, with many of the criminal services that we offer being constitutionally protected, I think in terms of sections 7 and 15, we're well on point in that area.
It is, though, the family law civil area where I think we do lack some protections. There will probably come a day when the interpretations of sections 7 and 15 do expand the protections afforded to family law clients.
I'll just give you an example of something that Legal Aid Ontario has done. Our financial eligibility, while increasing with the investments that the Ontario government has made, is still low. A single individual has to earn less than $13,000 to qualify for free legal aid services in Ontario. As a means to protect women—not exclusively, but primarily women—who are victims of domestic violence, we've actually raised the financial eligibility level to that which we use for our duty counsel services, which is significantly higher. That same single individual who might not qualify because they make $13,000, $14,000, or $15,000 would qualify under the duty counsel test because it has a $21,000 cut-off for a single individual.
We're trying to do our part, notwithstanding that no one is forcing us to provide services to vulnerable women, but I think you're going to see more growth in that area as courts do further interpret the sections.
I want to thank the committee for inviting me. It's very much a privilege.
I'm going to begin my remarks by highlighting the results of some research on the prevalence of legal problems experienced by the public. It's a body of research that has had considerable influence on the thinking about access to justice around the world. Then I'm going to try to highlight a few examples of responses from the legal aid world to the results of this research.
The entire body of research now consists of 25 studies that have been done all around the world. Four of these were in Canada, the first in 2004. The most recent is called “Everyday Legal Problems and the Cost of Justice in Canada”, which is a national survey that was conducted in 2014 by the Canadian Forum on Civil Justice. I'll briefly show you a few results from that survey.
We found that almost half, 48.4%, of adult Canadians experience one or more of what we call “everyday legal problems” within a three-year period. If you apply the weights and gross that up to the whole population, that's about 11 million people in a three-year period. Since people often experience more than one problem, that's 35 million problems. These are strikingly large numbers.
This is a percentage of people experiencing one or more problems, by problem type. You can see that consumer debt and employment are the major ones. This pattern is consistent with every survey that's been done around the world, in dozens of different countries.
I said there have been four national surveys in Canada—in 2004, in 2006, in 2008, and most recently in 2014. They've all come in with the same results. If you look at the 25 surveys around the world that I talked about, one of the remarkable things about the body of research is that they've produced very, very consistent results.
I want to emphasize that these are not problems that are resolved in the courts or by lawyers. The basic definition of the kind of legal problem these surveys deal with is any problem that is experienced by the public, whether or not that individual recognizes the legal nature of the problem, and whether or not they use any part of the formal justice system to resolve that problem. The vast majority of people have problems of all kinds, the normal transactions and transitions of everyday life, such as gaining employment, losing employment, contracting, and buying and selling all kinds of things. This is what I've called, in previous work, the legal problems of everyday life.
There are a couple of other interesting bits from the survey. We found that 67% of people experiencing these everyday legal problems did not understand the legal implications of the problem. I don't mean just a little bit; they had no clue. They said they did not understand at all. That's really interesting. It's kind of a striking result in the sense that you have such large numbers of people experiencing problems that they consider to be serious and difficult to resolve, and they have no idea of the legal implications of the problems they're facing.
Only about 7% of the people in this sample and in samples like it use the formal justice system to resolve their problems. Sixty per cent were self-helpers. That means they didn't access legal advice. They didn't access any kind of authoritative non-legal advice. They just tried it on their own.
Experiencing these problems comes at a cost. It costs individuals in terms of money, and it costs individuals in terms of intangible costs such as ill health and stress-related illness. It costs the state in terms of social services, employment insurance, health care costs, a whole range of things, when people have to rely on the social safety net as a direct consequence of the everyday legal problems they experience.
I'm going to leave a couple of reports for the committee. I'll give them to one of your associates at the end. There are more detailed results on this on the website of the Canadian Forum on Civil Justice.
This is not new. It's relatively new. It's an approach to understanding the legal problems experienced by the public that have resulted in a considerable shift in thinking over the years about access to justice and how to provide assistance to people experiencing this much larger number of legal problems.
I'll give you a couple of examples of the way that legal aid systems in Canada are responding to this. Generally, with digital delivery of services, one legal aid plan in British Columbia has developed an online dispute resolution problem-solving website to try to reach this much larger number of people. It's called MyLawBC, and has been developed by the Legal Services Society of British Columbia. It's a response to this issue of hidden problems and is trying to develop the capacity for outreach, if you like.
In my own research I'm working with several community legal clinics in southwestern Ontario that are partnering with community groups. The community groups are given the tools to help people identify legal problems, and the relationship between the community group and the legal clinic is like a pathway, then, for people to seek and find legal help.
A second thing that we're doing, just to give you an example of some of the innovations that are flowing out of this research, is called secondary legal consultation, where the lawyer in a legal clinic assists a service provider in a service agency to help their own clients. You'd have something like a case worker in the Canadian Mental Health Association who's trying to guide a client through an application for disability. The way that legal aid can try to reach out and serve more people, and do it relatively inexpensively, is to assist other service providers. We're working on an approach to that.
There are a lot more examples, but all I want to say, quickly, is that there's a huge amount of innovation occurring in some corners of legal aid in Canada. It's really interesting, and it's attempting to address the broad problems that have come out of the research I was describing.
I'm going to leave you with two ideas that occurred to me when I was writing out these notes. The first one is with respect to the body of research on legal problems. Think of access to justice as more than access to the courts, because there's an enormous world of unmet legal need out there that goes way beyond that.
The second thing is what this means for legal aid. Think of legal aid as more than just a transactional system that links lawyers with people appearing in courts but who can't afford to pay the costs of private legal fees. It's a policy instrument. Legal aid is a policy instrument to address access to justice issues, and there's an enormous amount of capacity for creative, innovative work in legal aid that ought to be supported.
I thank you very much for the opportunity.
Thank you for having me back today to speak about legal aid.
As you likely know, West Coast LEAF is a legal organization that focuses on the rights of women and girls. We work doing litigation, law reform, and public legal education. We've worked extensively in the area of access to justice for women in a broad systemic advocacy sense, but we also recently delved into the direct service side of things because the crisis in B.C. is so bad. I will give you some more of the details about that.
First, to pick up on the innovation point, we have partnered with UBC law in Vancouver and opened the Rise Women's Legal Centre. The doors opened in May, just after I was here last time in April. The demand was huge. We knew there was a crisis; that's what prompted us to spend years in developing this model. We consulted with service providers across the province. We spent years building up private funding. There's no public funding in the clinic, unfortunately. We partnered with the university in order to open this clinic. Even with all that work, we were surprised that within two weeks of opening the doors, which was in May, we had a wait-list into September. The wait-list has hovered at about 100 women since then.
It's against that backdrop that I want to tell you a bit about the state of legal aid in B.C. It was gutted in 2002—family law in particular—and family law services were cut by 60%, particularly on the connecting people with lawyers side of things, so not the legal information as much as the actual direct representation and advice. As you've heard from my colleague here, there is some interesting innovation in legal services in B.C. around the information side of things, but there are really, really reduced services on the representation side.
There are three limitations to family law coverage. There's the financial cut-off, which is very low. You basically cannot make much more than minimum wage, depending on the number of dependants you have. There is a very large gap between those who are covered by legal aid and those who can actually afford a market-rate lawyer. It's also provided mostly when there is violence in the relationship; there is very little coverage outside of that. There are very narrow circumstances in other high-conflict families, but primarily the focus is on relationships in which there is violence.
If you qualify under those two criteria, you only get 25 hours of service. This is a real limitation. It's not designed in any way—even explicitly—to meet the needs of a full family law dispute. It's not designed to resolve custody and access issues or anything else. It's designed, essentially, to get you a protection order in situations of violence. In some circumstances it can cover some other interim orders, but primarily it's to get you a protection order. In some really complex cases, it's not enough to do even that. I'll give you an example of that in a moment.
I want to speak about the representation side of things, and the implications of not providing access to lawyers. In my view, legal information is really important, but it is far from sufficient in actually providing legal access to justice. The major reason is that there is no rule of law for those who can't afford it in family law. In criminal law, in other areas, there's still law and the law applies to you whether or not you have a lawyer to help you understand your rights. In family law, that's simply not true. I don't say this with hyperbole; I say this in a very practical sense.
We have a very progressive piece of family law legislation in B.C., which was very exciting when it was passed a few years ago. However, if you don't have access to somebody who can tell you your rights and somebody who can help you enforce those rights, they are totally meaningless. If you are sitting in a room with your spouse and it's just the two of you trying to resolve your custody issue, trying to figure out who's going to live where and where your assets are going to go, the law has zero meaning. That means the justice system that we are all proud of in this country applies, in family law, only to those who can afford it.
Women in particular are impacted by these cuts to legal aid for a number of reasons, primarily because women have lower incomes because of the pay gap in this country, and so they are less likely to be able to afford a lawyer. Those statistics are borne out by who is applying for family law legal aid and who gets it. Women are also disproportionately impacted by not having it. As women are still primarily the caregivers for their children, and they're still primarily the victims of family violence, the implications of not getting legal aid are particularly severe because their safety is at risk, and their children's well-being is at risk.
That also leads me to the disproportionate impact on children. If courts don't have access to the information they need to determine the best interests of a child, whether or not that is to stay with either parent, then the courts have their hands tied behind their backs in actually trying to meet their obligation to meet the best interests of children, and children suffer through that.
You've already heard a little bit, I think, about some of the costs of underfunding legal aid. I think I won't go there right now. I think I'll wait to see if there are questions on that. I'll just say it's more costly to underfund legal aid.
I do want to give you one example, though, which is that at the Rise Women's Legal Centre we've had clients come in with literally suitcases full of documents from over a decade of not having a lawyer. That means that while their family law issues could have been resolved fairly simply at the front end if they had been able to access even summary advice at the beginning, let alone have some minimal representation, now no private lawyer will touch those suitcases of documents. They're a complete disaster, and it's costing either the public purse or the non-profit community much more to try to resolve that one case than it would to be able to move things through quickly because of the level of complexity.
It also means that spousal violence can escalate. I had a case cross my desk recently—and again, we don't provide direct service in my office, but still we hear from the most desperate cases. A woman's file passed through my hands. She is desperately seeking protection from her abusive spouse. She has received legal aid. She has received extended services under legal aid, but all she's gotten are temporary restraining orders, protection orders, that keep expiring. She has now gone back to say, please give me more money so I can apply for a permanent care order. She is receiving death threats. The police have been involved. Her safety and that of her children is very seriously at risk, and she's being denied legal aid because she has used up all of her hours.
Where does the federal government come into this? You may know that the CEDAW committee, the UN committee that examines the Convention on the Elimination of All Forms of Discrimination against Women—basically the women's bill of rights—examined Canada's record earlier in the fall and released its concluding observations in December. It expressed explicit concern about civil legal aid in the provinces, and particularly the implications for women's equality of underfunding family legal aid. It specifically recommended earmarking funds in the Canada social transfer for civil legal aid to ensure that women have access to family justice, with a particular emphasis on victims of violence, indigenous women, and women with disabilities.
It is also explicitly concerned about the income-test thresholds, that gap I talked about between people who can qualify for legal aid and those who could afford to get a private market lawyer. I think that leads very clearly to the federal responsibility to step into this gap and what the feds could actually do while staying within their jurisdiction.
I'll leave it there and wait for comments. Thank you.
I'd love to pursue this further, but I should also ask a question of Dr. Currie.
Thank you very much for your testimony here today. Your list of all the different legal issues was interesting. I was glad that crime was the smallest one here. That's better for our society.
I noticed that people have more disputes with their neighbours than they do within their own family, which again was an interesting statistic.
That being said, you said—and I think you're quite correct on that—that either 60% or 67% of people have no real concept as to what their legal issues are. I remember one time in my own community of Niagara Falls that a number of lawyers got together for an evening, quite apart from the legal aid system, just to provide anybody who walked in the door some sort of legal advice or direction if they needed it. I always thought that was an excellent way of sort of steering people in the right direction. As I said, it wasn't formalized in the sense that legal aid was doing it, but it was something that was pro bono by the lawyers themselves.
Have you heard of any examples like that? Again, the idea is to get people educated or informed as to what their legal rights and issues are.
Legal aid is always going to have limited resources. There always has been and always will be a limited amount of money that the state is prepared to spend on the poor. That's the root of the problem.
With these partnering arrangements, we're trying to leverage the enormous resources that are already out there in the community—services and agencies that have significant financial and human resources, that have an identity of interest—with legal aid plans, because ultimately we're trying to address issues of poverty. If you can do that, you can magnify the impact of legal aid enormously. It's a little bit of work and it's a very different way of delivering legal aid, and a very different way for lawyers to think about what they do than has traditionally been the case. That's part of the solution.
Again, part of it is to recognize that what you want to achieve is early intervention. You want to get as far upstream as you possibly can. A lot of that can be achieved through early-stage information and assistance mechanisms that can be provided, not only by legal aid. Don't forget that across the country there has been, for the last 40 years, a network of public legal education associations, the primary mandate of which is to provide legal information. It used to be about the law and how the justice system works. They're evolving, as well, to provide information that's solution-oriented to help people address their problems.
To address the other part of your question, for the 67% who experience problems—at various levels of complexity, I admit—who haven't a clue about the legal implications, and for the smaller percentages who didn't recognize the seriousness of the problem at all, didn't know where to go for help, had really no idea what sort of help they might need, the legal information and early assistance self-help dimensions of legal aid are probably the direction to go in.