Mr. Chair, honourable members of the committee, hello.
Access to justice goes beyond legal aid. While legal aid is important to ensure access to justice, its availability is restricted by income and the field of law in question. Access to justice in both official languages goes beyond access to legal aid. In this regard, we are submitting two recommendations today.
Here is our first recommendation:
||The House of Commons Standing Committee on Justice and Human Rights recommend that the federal government make sustainable investments in legal projects aimed at helping Canadians understand their rights in the official language of their choice.
This first recommendation stems from the following issue: the question of access to justice is not an issue for multinational corporations. It is an issue for middle class citizens who become involved in day-to-day legal issues. Here are a few examples: employment, divorce, child custody, housing, and social assistance. Often, people dealing with such legal issues do not have the financial means or access to information in the official language of their choice to obtain the legal services they need. They make too much money to qualify for legal aid, but not enough money to afford a lawyer. In this regard, the AJEFO believes the federal government can further equal access to justice in both official languages by supporting innovative projects that complement the existing traditional legal aid model.
The AJEFO has spearheaded two such projects: first, the Ottawa Legal Information Centre, the first of its kind in Ontario; and second, CliquezJustice.ca, an easy to understand legal information portal. I will give you a concrete example of the services offered through these projects. Take Beatrice, for example. Beatrice is a single mother of three. She works as a cashier in a local store. Beatrice is suddenly fired without reasonable cause. Her home is at risk and this situation will affect her custody of her children. Beatrice needs access to justice, in the language of her choice, but she makes $25,000 per year and therefore does not qualify for legal aid services.
Our organization, the AJEFO, has developed an approach to help Beatrice find the information needed to facilitate her access to justice: Beatrice visits the Ottawa Legal Information Centre, where she is welcomed in both official languages and where she can speak French. She has a free meeting with a lawyer, who refers her to CliquezJustice.ca to help her understand her rights in terms of employment, housing, and child custody. Without providing legal advice, the lawyer gives Beatrice the legal information she needs to take the appropriate actions to resolve her issues. Thereafter, Beatrice can navigate CliquezJustice.ca to further her research. That was our first recommendation.
Here is our second recommendation:
||The House of Commons Standing Committee on Justice and Human Rights recommend that the federal government invest in the creation of legal tools for legal professionals to help them offer services in the official language of their client's choosing, specifically in official language minority communities.
We believe every Canadian faced with a legal issue should have access to a legal professional, such as a lawyer, who has the necessary tools—precedents, for instance—to offer legal services in the client's preferred official language. This second recommendation stems from the following issue: most legal tools are only available in English in common law jurisdictions.
I'd like to share an anecdote that we hear far too often from our members: New parents Emile and Mathieu meet with their lawyer, Mr. Leblanc, to draft their will. They live in a common law jurisdiction. Mr. Leblanc receives instructions from Emile and Mathieu in French. However, Mr. Leblanc only has access to an English template of a will. Emile and Mathieu can either choose to receive an English will or pay to have the template translated. We would argue that imposing extra costs on them does not provide equal access to justice in both official languages.
The AJEFO has a solution to this. In 2013, we launched a Canada-wide portal called Jurisource.ca. We provide free legal tools such as precedents, lexicons, checklists, forms, and professional development training. These tools are just as beneficial to members of the public as they are to professionals working in the legal field. They reduce research time for legal professionals as well as the costs incurred by the client. Let's take the scenario involving Mr. Leblanc: with a French precedent, available on Jurisource.ca, Mr. Leblanc can draft Emile and Mathieu's will in French.
In closing, I highlight that access to justice remains a real issue for all Canadians. However, francophones living in linguistic minority communities face the added challenge of obtaining equal access to justice in French. Statistics demonstrate that marginalized and middle class Canadians often do not have adequate access to justice. This challenge is exacerbated when clients must choose between proceeding in French, increasing delays and consequent additional costs, or proceeding in English.
I hope to have provided a clearer picture of alternate solutions to improve access to justice, beyond the traditional view of legal aid.
Please feel free to visit our offices in Ottawa at 85 Albert Street, suite 1400. I would gladly answer any questions you may have.
Thank you very much.
Committee members, ladies and gentlemen, I'm going to speak broadly about legal aid in Canada. I will speak briefly to some issues of indigenous access to justice, which legal aid plans are working on right now, and I would welcome any questions more broadly that you might have.
I've spent about 30 years working in and around legal aid. I also get to do some international development work in legal aid, so I have a perspective that's a little broader than do many people who work in legal aid on a day-to-day basis.
I agree that access to justice is more than legal aid, but legal aid is the principal tool for access to justice for many low-income people in this country. The problem is that we really don't have a national legal aid program. What we have is a series of 13 provincial and territorial legal aid programs, with very little consistency among them. They don't even define what a case is in the same way. What we see are really historical funding patterns rather than strategic and purposive funding patterns. This is particularly so with the federal funding, which is typically, for provinces, a contribution agreement-style funding to provincial legal aid plans. Territorial funding is a little bit different and involves more details than I'll go into here.
The real problem is that we have funding models that were designed in the 1970s and that have deteriorated significantly since then. They started as fifty-fifty cost-sharing agreements, and are somewhere in the low twenties right now in terms of the contribution value. What we have is very little strategic development and not quite as much innovation as we'd like to see.
My first recommendation is that there ought to be increased, sustainable, and strategic federal investments in legal aid. It's important. It's important for how the justice system works, not just for how people experience it or how they resolve their problems but for the efficiency of the system itself.
My colleague referred to financial eligibility, the number of people who don't get legal aid. In the 1970s when that fifty-fifty cost-sharing agreement came to be, financial eligibility standards were very flexible. They were based on a real ability to afford a lawyer. These days, the highest most generous ones are one of the poverty measures. Below that, there are many legal aid plans that have eligibility standards that fall below Canadian standards for poverty. It is shameful, but it's a reality of what happens when funding becomes squeezed at a number of different levels.
My second recommendation is that we have a sense of a national standard. A federal national standard for eligibility for legal aid is important, it's valuable, and it's what should be central to what Canadian legal aid is. That may differ from community to community as costs of living differ. Nonetheless, we manage to define poverty in ways that are flexible in that regard. There's no reason that ability to afford a lawyer couldn't be done the same way.
Third, we don't have a standard for legal aid beyond the bare minimum court-required standard for criminal legal aid and for child protection legal aid. There's nothing that we could call a Canadian standard for legal aid. As is probably obvious to you, that could be an area for federal engagement. It is not at the moment. It's important. It's important because when we go across the country, there are places in which, for example, family legal aid, even for those who are eligible for it, only gets them a restraining order. It doesn't resolve the problem, and it doesn't move them to a resolution and allow them to get on with their lives.
Those are my broad comments about legal aid.
There's a third area that's increasingly prominent from an international perspective, and that is legal aid plans being a policy adviser to government, largely because they see more areas of the justice system than do other parts of the system. They represent criminal defendants, family litigants, and refugees. They often provide public legal education and legal information. They are out-of-court problem-solvers. They manage large cases, and in some cases, they are actual policy advisers. This is something that the International Bar Association is recommending in its new set of guidelines for legal aid, and it seems to be an area in which there's a value to be added and a way in which legal aid can assist through committees like this and assist government broadly in policy development.
Those are, generally, my recommendations, particularly with regard to legal aid.
With regard to indigenous access to justice, this is a big deal for legal aid. In British Columbia—the statistics I have—30% of our criminal clients are of indigenous heritage. About 28% of our family clients are of indigenous heritage, and about 42% of our child protection clients have indigenous heritage. Now I know those are just numbers, but the number that goes with those is 6%. That's the indigenous population in British Columbia. They are suffering legal problems at a higher rate than the general population. They're marginalized in significant ways from justice system functions, and there is very little that's being done to address that systemically within the justice system.
Looking at our own domains in British Columbia, we discovered that, notwithstanding the cultural sensitivity training and all the other pieces that we do to try to build effective bridges into those communities, our services were found to be unfriendly, unaccessible, and simply not communicated in an effective way. That's because legal aid plans tend to be run by lawyers. They tend to be administered by lawyers. They tend to be focused on justice system values rather than the importance of what people want when they appear in front of us. This isn't peculiar to indigenous communities; it's just extreme in indigenous communities.
Here is a list of recommendations I have in that regard. My recommendations are based on about three years of consultations down at the community level. These are not political consultations but rather more pragmatic ones.
There needs to be funding to establish and operate a network of community advocates to support people using the justice system. These are not lawyers; they may not even be court workers. They are people in the community who know what's happening. In health care there are navigators, and an analogue to that is needed in justice.
There ought to be professional development and training to build intercultural competency within the justice community, including skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism. This isn't just about lawyers, though it includes lawyers. It includes everybody in the system. The Truth and Reconciliation Commission calls to action cover that quite clearly.
Provide funding to support the availability of quality-assured Gladue reports. As you may know, Gladue reports are a sentencing aid that apply to the indigenous population. They were set in the mid-1990s by federal legislation. I'm sure it won't surprise you that there are 13 justice jurisdictions, and there are 13 different ways Gladue reports are prepared and presented. There is no quality control nationally. There is nothing that you would recognize really from one jurisdiction to the next that it's a Gladue report other than the title. This is an area that was introduced through federal legislation. It has been litigated several times, but we still are not getting to the place where quality reports are prepared and presented in every jurisdiction in this country, and they need to be.
I recommend the inclusion of indigenous perspectives and practices in the existing system through committing to substantially increase the number of indigenous judges and lawyers in ways that we are not doing yet. Funding for first nations courts, Gladue courts, and other indigenous-based practices that appear.... In British Columbia we have first nations courts. Anecdotally, at least in the studies under way, they appear to make a real difference, particularly to serial offenders who are held accountable by the elders of their communities rather than a judge, though the elders have the support of the judge. To speak to those folks, who as you might imagine are on a legal aid plan, often means they're frequent flyers for us. To have them leave the system is a huge achievement, and we support both the training of the elders and the provision of counsel in those courts because it gets better results.
The federal funding for restorative justice programs is a good start, but it's only just a good start. It has been there for years. It doesn't, at least from the legal aid perspective nationally, appear to be coherent and strategically focused. It should be, and it should be expanded. It gets great respect in the communities where it works, and the communities themselves benefit because the capacity of the community to address legal issues is addressed effectively.
Mr. Chairman, those are my comments in the time available.
Thank you, Mr. Boissonnault.
For a francophone in a linguistic minority community, bringing proceedings in French is more expensive and takes more time. I can give you some practical examples. I talked to you about Béatrice's situation, but I can go even further.
AJEFO members often share anecdotes with me. For example, in Ottawa, express motions are processed on Friday mornings. The lawyer arrives; his documents are prepared in French. But once they get to the express motion, which lasts from 15 to 20 minutes, we find out that the judge is a unilingual anglophone.
What happens then?
We cannot pursue the process, because the judge does not understand the content of the documents. The 15-to-20-minute motion is delayed until the afternoon. This means in practice that the client, who has paid a lawyer to prepare the motion, will have to cover the lawyer's fees for a full day.
I can give you another example, a situation that happened in a court in Ottawa. This concerned a civil matter motion lasting an hour or less, for which we were entitled to a bilingual proceeding under the Courts of Justice Act. We called the court the day before the presentation of the motion and were told that no bilingual judge was available. The motion was therefore delayed three, four or five months.
For the client, the real consequence is that the lawyer, who was already ready, has to prepare a second time. This consequently implies higher costs. There are also more delays. Ultimately, the person who wanted to have his case dealt with in French suffers. Like Béatrice, this person can choose English or wait longer and pay more to have his case dealt with in French.
Thank you for your question.
In fact, since July 8, 2016, we have had the Supreme Court decision on the Jordan decision, which states that all criminal cases must be heard within 18 months for cases heard in the court of justice and within 30 months for cases heard in the superior court of justice. In Ontario, and throughout Canada, we are currently seeing the effects of the Jordan decision.
Firstly, criminal cases have priority. We are moving forward in this respect to ensure that there are no stays of proceedings, as has happened since the Jordan decision.
Secondly, because many criminal proceedings are dealt with as a priority, civil proceedings are set aside. I will give you a concrete example. I often meet with members of the AJEFO. One of them contacted the court, the Ottawa courthouse, to ask the question directly. He asked whether a motion drafted in French took longer to handle than another in English. The response was that the motion in French takes one month longer to be dealt with.
The answer to your question is that yes, if someone chooses a trial in French, there is indeed an impact on the proceedings, and there are additional delays, additional costs and harm caused by these delays.