Thank you very much, Mr. Chair.
The Canadian Association of Refugee Lawyers—otherwise known as CARL, to make it easier—has about 350 members across Canada, consisting of lawyers and law professors, as well as law students. We have chapters in several universities across the country.
We focus on refugee protection as well as the human rights of migrants. Since our inception, we've been very active in the courts and in advocacy efforts before the government.
I want to emphasize the grave and huge differences between Quebec and Ontario in legal aid rates for refugees. My colleague, Maître Valois, is going to talk about the situation in Quebec. I'm going to focus on Ontario.
The main idea here is that there is a huge impact on the quality of representation, based on a tremendous difference between Quebec and Ontario in the legal aid tariffs. I believe the Quebec tariff for refugee claimants is something in the range of one-third of what it is in Ontario. We'll give you a brief synopsis of the impact that has had.
As an example, Legal Aid Ontario has a test fund, which has been used to fund court cases that create a precedent. This legal aid test fund money has been used to fund many of the main constitutional challenges in the field of refugee immigration law. It has been absolutely instrumental in enabling us to partake in complex cases, such as cases where individual lawyers who are working on legal aid tariffs could not possibly hope to mount a successful challenge, cases where you need expert affidavits and a tremendous amount of research.
For example, there's what's commonly known as “the doctors' case”, when we challenged the previous government's draconian cuts to health care for refugees and refugee claimants. That successful challenge was funded primarily by Legal Aid Ontario's test case fund.
The refugee law office, in particular, which is based in Toronto.... As a Montrealer, it's painful for me to have to say something positive about Toronto, but I'll overcome my—
I am going to speak in French.
I want to emphasize that legal aid is a huge and crucial component in refugee law. This is a very specific field of law. Refugee claimants are commonly eligible to receive legal aid for reasons you can well imagine. When they arrive in the country, they have no money to pay a lawyer.
The vast majority of lawyers we represent agree to take on legal aid cases because they are interested in refugee law and want to practise it.
It's important to understand the types of clients we see in our offices. It is easy to talk about the rights of refugees, but when someone walks into our office, the rights that need defending are basic rights such as the right to life, the right not to be raped, and the right to live reasonably well.
The reality of a refugee lawyer is that they must submit their client's file within 15 days of that person's arrival. The lawyer must then present the case to a member at an RPD hearing, and the member will determine the person's fate within 30 to 60 days. It's extremely fast, and the work has to be done with great skill and care.
We have to build trust with our clients, because they need to tell us everything, sharing extremely difficult events and details. We have to take the time to build trust with our clients and to understand the reality of the country they are from.
When we present a case before the IRB, we must know what is going on in our client's home country. If, for instance, we are representing someone from Yemen, a country where things are constantly changing, we have to make sure we are abreast of the current situation. We have to know who the various tribes are and take the time to understand the client and their reality, and the law, of course.
These requirements are not compatible with the high-volume nature of our work, but, unfortunately, that is what we have to do in order to survive and pay the mortgage. At the same time, I don't think we should have to face such a reality. Lawyers should not be forced to decide against representing refugee claimants because they won't be adequately paid for the work they do.
The right of asylum is a federal right across the country. It is administered by the federal government, not by the provinces. Nevertheless, discrepancies exist from one province to another. Some provinces do not provide legal aid, and the three largest provinces, Ontario, British Columbia, and Quebec, all have rates that vary greatly.
If a client's case is difficult or demanding, they can have trouble finding a lawyer who will agree to represent them. There may be a temptation to ask them to move to Ontario in order to find a lawyer. That is extremely hard for us to tell people because Quebec's refugee lawyers are very competent, but we can't do everything. We are not here to do volunteer work but, rather, to do a very important job.
I would be happy to answer any questions.
Thank you to the committee for inviting me.
Allow me to tell you a bit about myself. I spent 37 years working as a legal aid staff lawyer, which means that I was a paid employee. I practised in the Joliette region and the Eastern Townships, so mainly in Quebec.
Social law accounted for about half of my practice, family law represented a third, and general civil law made up the rest. I also did a fair bit of work with community-based social and consumer advocacy groups.
I was also the president of the Fédération des avocates et avocats de l'aide juridique du Québec. In that role, I was involved in negotiating collective agreements for legal aid lawyers and active in coalitions working to defend the legal aid system in the face of threats and cuts. I also called for increases to the eligibility threshold. For many years, it remained very low in Quebec and did not go up. Just about a year ago, it was raised to match minimum wage, which means it is still quite low.
I'd like to take a few moments to tell you about legal aid in Quebec. One of my colleagues spoke to you about one aspect of the system. When Quebec implemented its legal aid system, it opted to have staff lawyers all over the province and to ensure that eligible clients could choose to be represented by a staff lawyer or a private bar lawyer. Private lawyers representing clients have to agree to be paid at legal aid rates, which are very low when compared with those in Ontario. In comparing Quebec and Ontario, I should also point out that, despite having half the budget Ontario does, Quebec's legal aid system handles nearly twice the requests. Clearly, then, the choices that were made come at a cost. I think it's important to put that into perspective.
The idea behind having staff lawyers was to build expertise in what was called at the time poverty law. There was a recognition that poor and disadvantaged individuals had unique legal needs and that it was important to build expertise in the problems they encountered and in the ways to approach those problems. Those are the general features of Quebec's legal aid regime.
What assessment can we make of the regime today? Quebec's system is widely considered by Canadian observers to provide good coverage as compared with the regimes of other provinces. It is, to some extent, seen as efficient given that it operates at reasonable cost.
I should also note that the competition between staff lawyers and private lawyers helped ease the bureaucracy associated with the services of staff lawyers, although not eliminating it altogether. The fact of the matter is that, if clients can go to the private practice across the street for representation instead of yours, there is an interest in providing quality service.
Another important observation is that those who administer Quebec's legal aid regime unfortunately evaluate the work done by lawyers solely on the basis of case volume, thereby favouring mass practices rather than principle-based challenges or more difficult and demanding cases.
The system isn't exactly favourable to lawyers who do want to take on these cases. Nevertheless, the overall assessment remains positive when it comes to Quebec's regime, which could even be held up as a model for other provinces in some respects.
I would also like to share with you some observations that come from my personal experience and that, in my view, reflect the ideals that should characterize Canada's legal aid systems.
My first observation is that the law is not neutral. We teach law students that it is the emanation of immanent justice and so forth. The reality, however, is entirely different. The law also reflects the balance of power in society. Laws are not designed to help the poor or vulnerable. Lawyers who represent poor individuals must go beyond the normal limits of a lawyer's work, in my view. They must convince the judge to view the law in a different way and to change the jurisprudence. It takes imagination and, what I like to call, the capacity to elicit outrage, meaning that, when confronted with a situation that is unacceptable, the lawyer must find a way to bring it to the court's attention and to sway the judge. That works sometimes, but not always. It has to be done, however, and taking up those kinds of challenges must be one of the functions of legal aid.
My second observation is that, when you are poor, you are essentially living without the power to control your own life. The fact of the matter is that others always make decisions for you. For that reason, lawyers working on legal aid cases have to learn how to work with people rather than for people. Lawyers have a tendency to want to reassure people and tell them that they are going to take care of everything, but that does not help the person take control of their destiny. It is important to be mindful of that.
My final observation pertains to individual cases, trials, and even precedent-setting cases. All of those elements lead to some progress, but what really leads to progress is the work that lawyers and legal aid networks do with community groups in calling for changes that will lead to a more fair and equitable society.
Thank you. We will probably have an opportunity to discuss this further during the question and answer portion.
On my and the Law Commission of Ontario's behalf, I'd like to thank the committee for the opportunity to talk about this very important topic. Just by way of background, the Law Commission of Ontario is an independent agency in Ontario dedicated to advancing law reform and promoting access to justice. Some of you may have heard of our predecessor organization, the Ontario Law Reform Commission. The closest federal equivalent would be the Law Reform Commission of Canada.
I'm the executive director of the organization. Also, in a previous life I was responsible for developing policy at Legal Aid Ontario for a long time, so I'm coming at this from both a law reform and a service provider perspective.
By way of introduction, I would like to adopt the submissions of other organizations, such as the Canadian Bar Association and others, about the need to improve funding for legal aid and access to justice; the need for national benchmarks to gauge the progress of that funding; and, finally, the importance of establishing access to justice as an important national priority.
I actually don't want to talk about those topics. Other witnesses have spoken about those issues quite thoughtfully, and I don't have anything to add beyond what they had to say. I can answer questions on these topics, but that's not what I want to talk about. I want to bring to your attention what are, in my view, the additional components, the other parts, of what I think would be a comprehensive legal aid or national access to justice strategy. In my view, funding, benchmarks, and establishing legal aid as an important national priority are necessary but not sufficient components of a national strategy. In my view, again, there are six or seven things the committee should keep in mind if it is considering recommending or developing such a strategy.
First, I believe that a national strategy should acknowledge that there is a national access to justice crisis and that this crisis has many facets. There's a crisis in criminal law, family law, and poverty law, and in the civil justice system. There's a lot of commonality among legal needs and services and legal aid programs among these different areas, but they're not all the same. It's important that any national strategy combine both national benchmarks, for example, with the recognition that local priorities and local services have to be decided on, at either a local, a regional, or a provincial level. It needs to balance both the national perspective and the regional or provincial perspective.
Second, I think it's important to further acknowledge that in the last several years there's been a lot of work done on access to justice and legal aid policy-making. Indeed, on the civil and family side, we have something close to a blueprint or a plan. That, of course, is the 2013 report of the national action committee, the Cromwell report, which set out many good ideas and recommendations for how to address the access to justice crisis on the civil and family side. I don't think the Cromwell report was either complete or perfect, but it's a good start. I would caution you against any recommendation to redo work that's already been done. We are well down the road to identifying what might go into this national strategy, and I don't think we have to spend time and resources redoing thoughtful work that a lot of people have already participated in.
Third, further to Cromwell and other initiatives, there is something close to a national consensus on what the elements of legal aid should be and which services or what should go into the legal aid basket to have a healthy, really good legal aid program. Sometimes people talk about that as being the core services, essential services, or foundational services. There are different ways of describing it, but it really involves a number of different elements, a number of different areas of law. You have criminal law, family law, child protection law, poverty law, and immigration and refugee work. There's an acknowledgement that legal aid should focus on low-income populations. There's a further acknowledgement that legal aid services and priorities have to take into account the needs of vulnerable communities, be they racialized communities, persons with mental illness and addictions, or indigenous peoples. There is wide acknowledgement amongst everyone in the system that legal aid programs and priorities have to focus on the most vulnerable clients.
When people talk about a wish list for legal aid or access to justice, that's really the stuff they're talking about. Those are the constellations of services and priorities that people are interested in. There are certainly debates within the legal aid world and in the access to justice world about funding, but they're debates about whether you should spend more on criminal law versus family law, poverty law versus criminal law. They're not debates about the overall objectives of a really good system. They're debates driven by constraint. The system has to make hard choices between these different services.
Just for your information, I'll let you know that there is also a consensus, I think, about what the boundaries of a good legal aid program are. In my experience, no one suggests that legal aid should be doing insurance litigation, for example, or that legal aid resources should be used to fund a neighbour suing a neighbour over some kind of civil suit. There is a kind of consensus that the basket of services really should be the ones I listed.
I would also add that this is pretty much an international consensus within the Anglo-American world. There are equivalent conversations in England, the United States, Australia, and New Zealand. Those kinds of services really are the sort of legal aid services and access to justice objectives that people are talking about in those jurisdictions as well.
The fourth point I want to make to you may seem obvious, but it bears repeating because I think it's crucially important. That is, any national legal aid strategy should acknowledge that client needs have to drive the system, not institutional needs or the professional interests of lawyers or service providers. This is crucial. It's a debate in the legal aid and access to justice world that's been going on for some time. Client needs have to be the touchstone on which we judge all programs' priorities: services, funding, everything. It's not about providing lawyers with a living. It's not about ensuring that people make lots of money doing this kind of work. It's about what we do with public dollars to ensure that clients are being served properly.
That said, in my experience the interests of lawyers and of clients, in most cases or in the vast majority of cases, intersect. There is a perfect congruence between the interests of a lawyer or a clinic or a judge who wants to do good work and a good legal aid program. It's not true in every case, however. In cases where there is a conflict between the professional interests of the bar and client interests, in my view a national strategy should prioritize client interests and should be explicit about that.
The fifth point I want to make is that any national legal aid strategy should acknowledge that there is actually quite an expansive federal role in access to justice and legal aid. To give an obvious example, we know about our criminal law and the shared jurisdiction. Provinces administer justice, but you have important pieces of legislation—the Criminal Code, and narcotics legislation, for example—that are in the federal sphere. That's an obvious example of where there is a federal role and mandate. So too is immigration and refugee law an obvious area of federal jurisdiction. So too is the area surrounding indigenous issues. That's another area very important to legal aid programs. There is obviously a federal role there.
It's equally true in family law, although people don't know this as much. The Divorce Act is federal. Child support guidelines and unified family courts are all important access to justice initiatives, programs, or services, whatever you want to call them, that are in the federal sphere but have important implications for provincial legal aid programs.
Finally, it's not well known that in the poverty law area, where people typically think of provincial services—housing, for example, or landlord and tenant work—there are a couple of very important federal tribunals for income support, including the CPP and employment insurance. If you talk to poverty law advocates, they do a lot of work in those areas. So that's another area where there is a direct congruence of a federal program and access to justice.
As well, as has been talked about at this committee previously with regard to mental health and addictions, there is appropriately a national mental health strategy. As you have heard from many people, that has very important implications for legal aid at the provincial level. There is an important federal role. It's not just the provinces.
My sixth point is not one that is talked about a lot in the access to justice conversations or in the legal aid world. I'm coming at this from my law reform perspective. In my view, any national legal aid strategy, access to justice strategy, or provincial strategy, for that matter, has to look at issues respecting both the supply and demand for legal aid services. When we talk about funding, service gaps, benchmarks, or efficiencies, typically we're talking about the supply of legal aid. If we were economists, not lawyers, we'd say that's great, that you're talking about how to increase supply. Then we'd ask if you are talking about demand. How can you reduce demand for services in the first instance so you don't have to keep on worrying about making services more and more efficient, to try to squeeze more and more services out of every particular dollar? When you talk about reducing demand for legal aid services and promoting access to justice, you're talking about law reform or about changes in practices that advance access to justice goals, but you do it in a different manner.
I'll give you two examples, one federal and one provincial. The first example is the obvious one. It has to do with bail. Bail reform is on the agenda of folks across the country. It's been well documented and well researched that there are systemic problems with the provision of bail in Canada. The most obvious manifestations of that are the high remand population and the systemic issues for racialized communities, indigenous communities, in bail.
What's less well known is how bail policy drives legal aid costs. I'll give you a classic example, and it's a very real one. I'm speaking from Ontario's perspective, because that's the one I know best, but I think this is generally true across the country. The test for getting a legal aid certificate in Ontario, the most expensive form of service at Legal Aid Ontario and in criminal law, is the risk of loss of liberty. It goes without saying that if you are denied bail, if you're being held on remand, by definition you have lost your liberty and you meet the test for getting the most expensive service. That's a clear example of where a bail policy is a direct driver of legal aid costs. If there were work done to ensure that remand was done more thoughtfully, more fairly, and more equally, that would have a very beneficial impact on legal aid costs. Those resources saved from that area of law, from that service, could then be reinvested into other parts of the program.
I'll give you a second bail example. I think you've heard about this at the committee. It has to do with bail conditions. Again, we know through research and experience, as documented by the Canadian Civil Liberties Association, the John Howard Society, and other organizations, the very serious consequential impact of bail conditions. What that means on the legal aid front and the service delivery and service demand front is that although a person may be released from bail and is free and isn't being held in remand, the bail can have a number of conditions. A lot of those conditions are controversial, as I'm sure you've heard. From my perspective, a lot of those conditions are unnecessary. When someone is out with a number of conditions, it's often easy to breach those conditions. Once you've breached those conditions, you're brought back and, suddenly, you're not being assessed for a simple assault or something—which, in the scheme of these things, is considered less serious—but are up on a fail-to-comply charge or a fail-to-appear charge. These are contempt of court charges, which are more serious. These put you back into the loss of liberty threshold, and so on and so forth.
There's a family example. I hope someone will ask me about it because I'm running out of time.
The final thing I want to draw to your attention for a national strategy is that I strongly recommend, in addition to talking about funding, benchmarks, services, efficiencies, and demand, that you also talk about the importance of the provision of high-quality services. The quality issue is something that has been talked about in other jurisdictions at some length. In the U.K., the U.S., and some other jurisdictions, there is real emphasis at the federal level, the provincial level, and the service-provider level to improve the quality of lawyering so that you get better services. Hopefully, the services become more efficient at the same time.
You will often hear that quality is about paying lawyers more. That's part of it, but that's not all of it. There are other things that can be done that require a smaller investment. Training, panel management, peer reviews, mentoring, non-legal supports are the elements of a thoughtful and comprehensive quality strategy that I recommend be included in your deliberations.
Those are my submissions. Thank you very much.