Canadian Bar Association Strategies to Make It Happen

By Gaylene Schellenberg Access to Justice in :

Gaylene Schellenberg ince 1985, the Canadian Bar Association has vigorously lobbied for increased Legal Policy Analyst access to justice through better legal aid. Inadequate funding for criminal legal aid is a concern, but the problem is even more acute for civil law matters, such Canadian Bar Association S 865 Carling Ave. #500 as those involving family law, refugee law, income support or tenants’ rights. While , ON K1S5S8 our primary focus is always on access to justice, we also stress that legal aid lawyers Canada [email protected] must be fairly compensated. After substantial advocacy efforts failed to yield satisfac- tory results, the Canadian Bar Association recently decided to litigate, although our lobbying efforts continue. Canada provides legal aid services in different ways. Some provinces and territories provide almost all services through staff-run offices. Others use a judicare model, where an individual applies to the legal aid plan, and if the plan approves the appli- cation, the individual receives a legal aid certificate. The individual then takes the certificate to a member of the private bar who accepts legal aid certificates, and that lawyer bills the legal aid plan according to any rules and restrictions. Some regions use a combination of these two models, and a few provinces have clinics that provide particular services, such as poverty law services dealing with workers’ compensation or tenancy problems.1 There are several pro bono programs across the country and many public legal information centers. In this article I give some background about Canada’s legal aid services and an overview of and rationale for the Canadian Bar Association’s advocacy efforts to improve those services. I also outline the development of the Canadian Bar Association’s constitutional challenge to clarify government responsibility to provide civil legal aid services when fundamental interests are at stake.

I. Canadian Bar Association History of Legal Aid Advocacy Established in 1985, the Canadian Bar Association’s Legal Aid Liaison Committee produced two significant national reports during the first three years of its exis- tence.2 In 1992, responding to what the legal community already saw as a crisis in access to justice, the Canadian Bar Association’s governing body, our National Council, endorsed a legal aid Action Plan. The following year, the National Council passed a Charter of Public Legal Services.3

1In most parts of the country, however, such services are unavailable.

2CANADIAN BAR ASSOCIATION,THE PROVISION OF LEGAL AID SERVICES IN CANADA (1985); id., LEGAL AID DELIVERY MODELS: A DISCUSSION PAPER (1987).

3Canadian Bar Association National Council, Resolutions 92-09-A and 93-11-A, respectively.

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Between 1994 and 1996, the Canadian was linked to a contribution at the Bar Association unsuccessfully lobbied provincial or territorial government against a proposed shift in responsibili- level. As with criminal legal aid, the ty in the federal funding mechanism for amount spent was readily ascertainable, civil legal aid from the federal govern- and the federal contribution had to be ment to the provinces and territories, spent on legal aid. The Canada Health with minimal accountability or trans- and Social Transfer replaced the Canada parency.4 Soon after, as expected, the Assistance Plan with a global, “no strings situation deteriorated, and in 1998 con- attached” transfer for several health and cerned lawyers asked the incoming asso- social programs, including civil legal aid, ciation’s President to put improving to give provinces and territories greater legal aid atop his priorities. Since then, autonomy and flexibility. The Canadian improving legal aid has been a priority Bar Association vigorously opposed this for the association. change. We feared that it could permit the option of no coverage at all for civil II. Our Challenges legal aid, and certainly politicians would rather direct funds to education or Our primary challenge has been to gain health—services that attract greater pub- recognition that access to justice is as lic support. fundamental a need as access to health care or education. We have tried to press No level of government in Canada seems governments, and particularly the feder- responsible for providing adequate civil al government, to guarantee that basic legal aid services. Provincial and territo- legal services will be available to every- rial leaders point to the federal govern- one where critical interests are at stake. ment and say that, given shrinking fed- To create political pressure, we have also eral transfers, they cannot do better. The tried to raise public awareness of what amount of the federal transfer notional- access to publicly funded legal services ly intended for civil legal aid services and can mean in people’s lives. the amount actually used for those serv- ices once the transfer is merged in a The different funding mechanism for province or territory’s general revenues criminal and civil law services is indica- are difficult to ascertain. The federal tive of the lower status of civil legal aid in Justice Department may acknowledge Canada. The federal Justice Department our concerns but argues that its involve- funds criminal legal aid through cost- ment ends with the global transfer. sharing agreements with each province Making matters even worse, no federal and territory since Canada’s Charter of department is even clearly responsible Rights and Freedoms guarantees proce- for civil legal aid.5 dural rights and a fair trial. The transfer mechanism works because the amount In 2002 British Columbia, one of transferred is clear: it must be spent on Canada’s largest provinces and one legal aid and a provincial or territorial where legal aid had been fairly well contribution is part of the calculation. funded, pushed the issue by eliminating most civil legal aid services in a dramat- The mechanism for federal funding of ic cut over three years. The federal gov- civil legal aid is different. Before 1995, ernment did not intervene. the Canada Assistance Plan matched federal funds to what a province or terri- A real lack of national information about tory actually spent; the federal transfer legal aid in Canada also makes it difficult

4Statutes of Canada. The change from federal funding for civil legal aid from the Canada Assistance Plan, repealed, 1995, c.17, s.32, to the Canada Health and Social Transfer is described more thoroughly below. Since 2004, the federal contri- bution for health has been placed in a separate designated transfer (Canada Health Transfer), and the global transfer renamed the Canada Social Transfer.

5The Justice Department has advised the Canadian Bar Association to obtain the interest and cooperation of four feder- al departments: Finance, Citizenship and Immigration, Justice, and Human Resources and Development Canada to dis- cuss civil legal aid. Ironically, our attempts to initiate discussions usually result in the other ministers directing us back to the Justice Department.

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to compare services, share information, or will consider legal aid a priority. join efforts for improvements. Provinces and territories each deliver legal aid serv- During recent election campaigns, the ices through a separate plan and various Canadian Bar Association featured delivery models. The thirteen plans meet access to justice as a major campaign annually, in different locations, but no issue. We used our website to suggest unifying body sets national standards. questions for members in challenging Some plans determine eligibility by look- electoral candidates. We sent to political ing at household income, while others use party leaders letters asking for their individual income, some consider gross views and posted their responses on our figures and others net, and some will factor website. in assets or require repayment or a contri- B. Advocacy Tools bution while others will not. For civil mat- ters other than family law, such as landlord The Canadian Bar Association publishes and tenant matters or denials of pension a Legal Aid Advocacy Resource Kit to benefits, only offers any compre- assist our members in speaking about hensive coverage through a system of com- legal aid more effectively and with a munity legal clinics. more consistent message. It contains background information and various tools, such as notes for a speech, a sam- III. Our Strategies ple letter to the editor, or questions and Our strategies are lobbying, policy devel- answers to anticipate in an interview on opment, and litigation. legal aid. The kits have been well used and are regularly updated. A. Lobbying In 2002–2003, as the Canadian Bar Legal aid is on the agenda at each meeting Association started to consider litigation as between the federal justice minister and a viable alternative to lobbying, we pre- Canadian Bar Association national presi- pared materials for lawyers considering dent, although the minister generally their own legal aid test case. A number of begins by repeating that civil legal aid is not arguments and resources to facilitate this within the Justice Department’s portfolio. kind of litigation were added to the Legal Canadian Bar Association branch presi- Aid Advocacy Resource Kit. dents also meet regularly with their respective provincial or territorial justice C. Policy Development ministers, and association staff members are in regular contact with government Once adopted by our National Council, officials. Canadian Bar Association resolutions become official Canadian Bar Association In fall 2005 the Canadian Bar Association policy and are policy “building blocks” for heard rumors that then Prime Minister further statements and initiatives on relat- Paul Martin had asked the previous justice ed subjects. Resolutions have covered minister to add responsibility for civil legal many aspects of the legal aid problem, and, aid to his responsibilities for criminal legal since 1985, the Canadian Bar Association aid. We were unable to confirm, before the has passed thirteen resolutions on legal aid call for elections, that this was true and, if and access to justice. so, whether this addition would be perma- nent. Earlier in 2005, then Justice Minister D. Legal Interventions Irwin Cotler had initiated discussions with In 1998 the Canadian Bar Association his provincial or territorial counterparts intervened at the Supreme Court of about a new civil legal aid fund, presumably Canada in J(G) v. involv- involving added transparency and ing the right to publicly funded legal accountability. There is no indication to representation in a child apprehension date that the new Conservative government case.6 A mother sought legal aid when

6New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46. Supreme Court of Canada judgments can be found at www.scc-csc.gc.ca/judgments/index_e.asp.

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the New Brunswick minister of health Legal aid attorneys volunteered to partici- and community services applied for the pate in a national e-mail conversation to temporary custody of her three children, communicate problems in their areas and but the mother’s request was denied report egregious stories that the Canadian because a certificate could only be issued Bar Association might potentially publi- for permanent guardianship applications. cize. Those stories went to all federal mem- Section 7 of the Charter, the Supreme Court bers of Parliament, as well as their coun- of Canada confirmed in 1999, gives parents terparts in the provinces or territories the right to a fair hearing when the state where the stories took place, and to nation- seeks custody of their children and access al and local media. to counsel through legal aid can be a key element of that right. The Supreme Court This project was more difficult to sustain held that Section 1 of the Charter did not than we anticipated. That the lawyer vol- save the province’s policy of fiscal unteers were already overcommitted restraint.7 However, the Court’s carefully perhaps made our requests for ongoing worded decision was limited to this partic- communication unrealistic. Also, the ular type of case, considering the complex- complexities of the lives of people living ity of the issues at stake and the ability of in poverty were obviously often not the parent to represent herself. amenable to becoming the kind of sto- ries that the media were keen to publi- The Canadian Bar Association recently cize. Still, we are contemplating ways to again intervened in Little Sisters Book and revitalize the Legal Aid Watch. Art Emporium v. Commissioner of Customs and Revenue Canada.8 We addressed the F. Considering Litigation question of awarding advance costs to By 2001 the Canadian Bar Association was ensure that not-for-profit and small for- increasingly frustrated with the results of profit organizations can pursue their con- our extensive efforts to improve legal aid. stitutional rights and protections when Only where courts had ordered govern- they claim a violation against a better- ments to provide legal aid services as con- funded entity, such as a government stitutionally required were those services agency. consistently available. The Supreme Court of Canada recognizes an obligation to pro- E. Creating Political Pressure vide legal aid in a few other types of cases A recurring obstacle to our efforts is the than criminal ones, for example, in certain absence of political will to address defi- child protection matters or upon arrest and ciencies in legal aid. To create pressure detention, and legal aid plans now cover on politicians by better informing the those services.9 We began to consider public about the people who need legal that meaningful progress might require aid and the circumstances that can Canadian courts to find that certain civil require people to seek legal representa- services must be available to comply with tion, and to correct misperceptions constitutional guarantees. That Canada’s about legal aid lawyers, we started a proj- Charter has been generally interpreted as ect called Legal Aid Watch in 1999. By applying only to cases involving state action featuring particular instances of people against an individual would present anoth- falling through the cracks in our legal er hurdle, for example, when a parent and social systems, we highlighted the requires legal aid in a family law matter.10 human consequences of inadequate legal aid and denied access to justice.

7Section 7 guarantees life, liberty, and security of the person. Once a Charter right is found to be violated, Section 1 can serve to “save” the offending state action if a balancing test demonstrates that the public interests at stake justify the violation.

8Little Sisters Book and Art Emporium v. Commissioner of Customs and Revenue Canada, S.C.C. File No. 30894, was heard on April 19, 2006. The same lawyers who are handling our constitutional test case represented the Canadian Bar Association.

9See supra note 6; see also R. v. Brydges, [1990] 1 S.C.R. 190.

10RWDSU Local 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. (See supra note 6 for link.)

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We asked eight prominent constitutional tional arguments on fundamental consti- scholars or litigators to consider the scope tutional principles, including provisions for expanding constitutional recognition of beyond the Charter such as the rule of law a right to civil legal aid. A report, called and judicial independence, arguments for Making the Case: the Right to Publicly Funded the federal government’s particular Legal Services in Canada, synthesized those responsibility for legal aid, arguments legal opinions.11 In 2002 our National around Canada’s international legal obli- Council adopted that report and endorsed a gations and relevant concepts from inter- litigation strategy.12 At that point the national human rights jurisprudence, Canadian Bar Association began seriously strategies for developing an evidentiary considering litigation as potentially our foundation, and a review of possible cases only recourse. for interventions. The committee present- ed a concise strategy for the case to the While the resolution was to “pursue a lit- Canadian Bar Association board of direc- igation strategy,” we were under signifi- tors in 2004. Following that, another grant cant pressure in the following months to allowed for a significant amount of detailed announce quickly the details of a consti- research in preparation for litigation.13 tutional challenge. We were sensitive to that pressure and how it might appear if G. Canadian Bar Association we delayed, but we were most concerned Test Case with our responsibility to approach con- stitutional litigation cautiously. The Canadian Bar Association ultimately decided to launch a comprehensive con- Two academics, two constitutional litiga- stitutional challenge to the systemic tors, a past President of the Canadian Bar problems with legal aid in Canada. The Association and experienced family law association will pursue the test case in its lawyer, and a community and race rela- own right as a public interest party since tions advocate formed a committee. we believe that no individual, or even a Complex issues required consideration group of individual plaintiffs, can com- before we could make a final decision mit to enduring a lengthy test case. We about litigating. Some of the initial ques- know that cases can be settled with indi- tions that the committee wrestled with vidual litigants just prior to trial, and were the kind of case to launch, the legal prior to any precedent being estab- arguments to make, what kind of litigant lished. We also know that an incremental or litigants would be best, how to find a approach in expanding the current litigant able to stay with the case possibly jurisprudence around Section 7 would through to the Supreme Court, what part not address the existing limitations of of the country and what court to file in, the case law, especially for civil legal aid. and, of course, how to fund litigation sure Also, we want broad recognition that to last for several years, given that civil legal interests can be fundamental Canadian Bar Association member dol- to life, liberty, and security of the per- lars were already committed for the ongo- son, not for just one area of law or type of ing operation of the association. case. We know that courts might recog- nize the fundamental problems, and the The committee gradually resolved these importance of the interests at stake, but questions. With grant funding, we com- then limit their finding to the fact situa- missioned legal memos on Charter argu- tion before them. Certainly courts have ments to support state responsibility for dealt with individual claims, but there legal aid under Section 7 (right to life, lib- has never been a systemic challenge to a erty, and security of the person) and legal aid program. Section 15 (the right to equality), constitu-

11VICKY SCHMOLKA, CANADIAN BAR ASSOCIATION, MAKING THE CASE: THE RIGHT TO PUBLICLY FUNDED LEGAL SERVICES IN CANADA (2002).

12Canadian Bar Association National Council, Resolution 02-05-A, Legal Aid Strategy (2002).

13One of the members of the committee, Dr. Melina Buckley, acted as our principal researcher throughout the develop- ment of our test case and is now part of our litigation team.

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The Canadian Bar Association argues that meaningfully access them without a the federal government, the British lawyer’s assistance. We are seeking a decla- Columbia government, and the British ration that the defendants are in breach of Columbia Legal Services Society have several legal and constitutional obliga- failed to provide what various domestic tions, and we are seeking an order of man- legal and constitutional guarantees require damus directing them to establish and and what international covenants that maintain a legal aid system that meets their Canada signed require. The association obligations to the people of British will bring the claim on behalf of “people Columbia. living on low incomes, and who lack suffi- cient means to obtain proper advice and While we could have brought the case in to obtain redress, including legal repre- any Canadian jurisdiction, we chose the sentation if necessary, in matters where province of British Columbia for several their fundamental interests are threat- reasons. In 2002 that province went from a ened.”14 We argue that vulnerabilities due fairly well-funded legal aid system to one to the frequent, systemic, and multidi- where little to no actual representation for mensional nature of the legal needs of poor civil legal aid is available. Cuts of 40 per- people, and the additional layers of regula- cent in the province’s legal aid spending tion imposed on poor people compared to fell mainly on civil law services. The system those that do not live in poverty, exacerbate retained legal representation where con- the need for publicly funded legal repre- stitutionally required, but the system sentation. The approach shifts from the replaced most legal representation for civil current limited recognition of legal repre- matters with various public legal education sentation as sometimes required for a fair services to facilitate self-representation. hearing to broader arguments for equal We filed our statement of claim in June access to justice. 2005.15 The chief justice of the British The Canadian Bar Association statement Columbia Supreme Court is acting as of claim argues that the federal Crown case management judge, and prepara- and the provincial government are obli- tion for discovery of documents is now in gated to provide legal aid in civil matters progress. As expected, the Canadian Bar for many reasons found within Canada’s Association will soon face a motion to Constitution Act of 1867, found under the dismiss our statement of claim since Charter, and derived from Canada’s obli- defendants argue, among other points, gations under international human rights that the association has no direct or gen- law. Legal representation must be available uine interest in this matter. when necessary to protect fundamental interests and to accord with the rule of law, IV. Conclusion substantive equality, and the independ- The Canadian Bar Association has tried ence of the judiciary. The association many different approaches for communi- argues that British Columbia’s civil legal cating what our members see on a daily aid is inadequate in that it excludes funda- basis; too many people cannot exercise mental interests from coverage, in its their legal rights or rely on their legal pro- financial restrictions that exclude many tections because they lack meaningful people living in poverty, and in the too- access to justice. While this work has not restrictive services that it covers. The areas achieved the desired improvements, we of law not adequately covered, such as fam- continue to press governments to make ily, prison, poverty and refugee law, involve legal aid a priority, to facilitate the efforts of complex and sophisticated substantive law concerned lawyers, and to share national and procedural rules, and litigants cannot information and strategies.

14Press Release, Canadian Bar Association, CBA Launches Test Case to Challenge Constitutional Right to Civil Legal Aid (June 20, 2005), www.cba.org/CBA/Advocacy/legalAid (Statement of Claim cl. 8).

15The documents related to our litigation can also be found on the Canadian Bar Association’s website,www.cba.org.

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At the same time, we have concluded that been overwhelmingly supportive of the litigation will be required to get results, association ’s efforts for access to justice. At and we have determined that only a the Canadian Bar Association 2004 annual broad and perhaps ambitious test case meeting, our National Council agreed to will bring to light the systemic impact of use association-deferred revenues for the inadequate legal aid. Discriminatory litigation, with each of our thirteen patterns and the need for overarching branches contributing proportionately. We remedies will never become clear by were able to retain counsel in February considering one case in one region at 2005 and were fortunate enough to find a one point in time. very experienced team of counsel prepared to make a significant pro bono contribu- The Canadian Bar Association is well tion.16 aware that our advocacy for legal aid is often dismissed as being self-interested We realize that we are relying on novel rather than regarded as genuine concern legal arguments, but we think that our for access to justice. We recognize that legal aid test case is based on sound courts generally defer to governments analysis and strategy and is ultimately on decisions about allocating resources winnable. As Canada’s national associa- and determining social policy. Proving tion for the legal profession, we believe that Canada has a positive legal obliga- we are the appropriate organization and tion to expand those cases in which it perhaps even the only organization that must provide funding for legal represen- can realistically pursue the fundamental tation will not be easy. We are aware of interests at stake through this challenge. the risks of litigation, such as a damaging The launch of our case has had a remark- precedent, negative political conse- ably coalescing impact within our mem- quences, or an adverse costs award. bership, and it has been a very exciting event for the Canadian Bar Association. Remarkably every tough decision about Our case presents a unique opportunity this project, for funding and otherwise, has to demonstrate the strength of the asso- received virtually unanimous endorsement ciation’s commitment to improving jus- from Canadian Bar Association members. tice, fairness, and equality, and we hope, Lawyers actually practicing the types of law through equal access to justice, to make a where legal aid is at stake, and those whose significant difference in improving the practices are removed from the issue, have lives of many people living in poverty.

16The Canadian Bar Association’s litigation team: J.J. Camp, Q.C. (and past Canadian Bar Association president), Sharon Matthews, Dr. Gwen Brodsky, and Dr. Melina Buckley. See their biographies on www.cba.org.

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