THE EVOLUTION OF LEGAL AID POLICY IN BRITISH COLUMBIA 1950-1976: A STRUCTURALIST ANALYSIS by Janie M. Cawley M.A., Simon Fraser University, 1975 THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY SPECIAL ARRANGEMENTS Janie M. Cawley 1991 Simon Fraser University April 1991 All rights reserved. This work may not be reproduced in whole or in part, by photocopy or other means, without: permission of the author. APPROVAL Name : Janie M. Cawley Degree : Doctor of Philosophy ~itleof Thesis: The Evolution of Legal Aid Policy in British Columbia 1950-1976: A Structuralist Analysis Examining Committee: B. P. Clayman, Chair ,I Simon N. verdunpnes; J1 S. D. SenioF7Supervisor . - Robert M( ... ~orqon,.--, Ph.D. Brian E. Burtch, Ph.D. ,. Delloyd atha~h.D. - - -- Jerbme Joseph Atrens, Professor Faculty of Law University of British ~olumbia External Examiner Date Approved: / PARTIAL COPYRIGHT LICENSE I hereby grant to Simon Fraser University the right to lend my thesis, project or extended essay (the title of which is shown below) to users of the Simon Fraser University Library, and to make partial or single copies only for such users or in response to a request from the library of any other university, or other educational institution, on its own behalf or for one of its users. I further agree that permission for multiple copying of this work for scholarly purposes may be granted by me or the Dean of Graduate Studies. It is understood that copying or publication of this work for financial gain shall not be allowed without my written permission. Title of Thesis/Project/Extended Essay The Evolution of Legal Aid Policy in British Columbia 1950 - 1976: A Stmctumlist Analysis Author: .- "-, - .-- @&ire) Janie M. Cawley (name) ABSTRACT This dissertation applies a modified structuralist analysis, as developed by Gough, to the evolution of legal aid policy in British Columbia in the period 1950 to 1976. This analysis is combined with a detailed consideration of the viability of an interest group interpretation of legal aid reform. Structuralist interpretations focus on the limits imposed on reform by prevailing ideology and the constant need of capital to accumulate. Interest group analysis focuses on the interaction of various elements of the policy community in their quest to expand or limit legal aid reform. Sources consulted include private papers, public archives, interviews with persons involved in legal aid development, newspapers, and secondary works. Legal aid in British Columbia was initiated by the organized Bar as a means to increased legitimacy; the Bar's primary goal was to enhance the image of the profession through improved public relations. Its demands on government, however, were shaped by its anti-interventionist ideology grounded in fear of government control of the Bar. The Government was moved to take action in the area of legal aid reform by its need for increased legitimacy. The Social Credit Government, intent upon maintaining conditions favourable to capital accumulation, took only incremental action in the area of legal aid. The Government was thus content to leave the provision of legal aid to the legal profession, with the attendant costs borne in large part by other agencies. iii The election of an NDP government in 1973 brought a shift in ideological orientation and initiative for legal aid reform shifted from the Bar to the Government. The pace and direction of reform were, however, blunted by the reluctance of the Bar to engage in anything other than traditional legal aid activities. In 1975, deteriorating economic conditions and a change of government brought legal aid reform to a halt, but not before the State had consolidated its control over all aspects of legal aid in British Columbia through the creation of the Legal Services Commission. The NDP wished to control the development of legal aid reform to circumvent the objections of the Bar and hasten social reform. DEDICATION In Memory of My Father C.H.R. Cawley and In Appreciation of My Mother J.M. Cawley Acknowledgements There are many people who helped me throughout the long course of this dissertation. I would like to thank Paul and Pat Brantingham for introducing me to the topic, and my Senior Supervisor, Dr. Simon Verdun-Jones, for seeing it through to completion. I am also grateful to the members of my committee, Dr. Rob Gordon, Dr. Brian Burtch and Professor Deloyt Guth, for their comments and criticisms of this ever evolving dissertation. Special thanks are due to the staffs of the Simon Fraser University Library and of the Legal Services Society Library; and to Diane Matters of the Provincial Archives and Robin Kierstead of the Court House Archives for the assistance they gave me in obtaining the materials necessary for the preparation of this work. Special thanks are owed to Philip Amos for his editorial skills and patience; to Jean Poole and Stacy Slade for their typing assistance; to my daughter Tonie for her numerous bibliography searches; to Aileen Sams for seeing me through a decade of deadlines; to Mary Lee Stephenson for her constant optimism; and to members of the 3 AM production crew, Laurie Henderson and Jeannie McIntosh, for both persistence and endurance. I would like to thank Diane and my family for their patience, support and faith that it would get done. I would like to make special mention of Natasha and a host of others who are glad it is over. TABLE OF CONTENTS Approval ............................... ii Abstract ...............................iii Dedication .............................. v Acknowledgments ........................... vi Table of Contents ......................... vii List of Tables .......................... xii List of Abbreviations ....................... xiii CHAPTER I: INTRODUCTION: LEGAL AID REFORM AND THE WELFARESTATE .................... 1 CHAPTER 11: LEGAL AID IN CANADA: THE HISTORICAL CONTEXT ....................... 11 A . An Overview ........................ 11 1. Legal Aid Development in England .............. 12 2 . LegalAidintheUnitedStates ............... 17 B . The Historical Context: The Emergence of Legal AidinCanada1922-1969 .................. 21 1. The Advent of the Welfare State .............. 28 2 . Legal Aid in the Welfare State .............. 32 C . Involvement of the Federal Government ............ 55 D . Conclusion ........................ 76 CHAPTER 111: THEORETICAL INTERPRETATIONS OF THE LEGALAIDREFORM ................... 90 A . An Overview ........................ 90 1. Social Reform .. Needs Studies .............. 92 2. Comparative Studies ...................102 3 . Interest GroupTheory .................. 118 vii a. The Pluralist Base of Reform Analysis .......... 130 b . Neo-Marxist Interpretations of Reform ..........139 c . A Modified Structuralist Interpretation of Reform .... 146 4. Structuralist Interpretations of Legal Aid Reform ... 161 B . A Modified Structuralist Model for Analysis of Legal Aid Reform ....................... 177 CHAPTER IV: LEGAL AID IN BC 1934-1969: DISCOUNT LEGITIMACY ..... 193 A . An Overview ....................... 193 B . Legal Aid Provisions 1934-1965 ............... 197 C . The Introduction of Poverty Law .............. 221 D . FormationoftheLegalAidSociety ............. 230 E . Conclusion . ...................... 249 CHAPTER V: LEGAL AID IN BC 1970-1972: A BREEZE OF SOCIAL UPHEAVAL 1970-72 .............. 262 A . An Overview ....................... 262 B . Crisis of Legitimacy .................... 264 C . Administrative Consolidation of the Legal Aid Society ... 270 1 . Funding ....................... 272 D . Expansion of Coverage ................... 280 1. Duty Counsel ...................... 281 2 . Juvenile Matters .................... 284 a . Divorce ....................... 286 E . Civil Legal Aid and the Community Law Office Approach ... 291 F . Initiative for Reform ................... 298 G . Impact of Federal-Provincial Negotiations ......... 310 viii 13 . Conclusion ....................... 312 CHAPTER VI: LEGAL AID IN BC 1972-75: KEEPING THE CAMEL'S HEADOUTOFTHETENT ................ 324 A . An Overview ....................... 324 1 . The NDP ....................... 325 a . The Justice Development Commission .......... 328 2 . Federal/Provincial Cost-Sharing ............ 330 B . Catalyst to Crisis: Reformunder the NDP .......... 332 C . Change of Government and the Provision of Legal Aid .... 337 1 . Regional Offices .................... 338 2 . Creation of a Civil Tariff and Increase of the Criminal Tariff .................. 341 3 . Dutycounsel ...................... 343 D . The Government Takes the Initiative ............ 346 1 . Other Programs ..................... 347 2 . Provincial Government Funds for VCLAS ......... 348 3 . Regional Office Expansion ............... 349 4. Expansion of the Court Worker Program ......... 351 5 . Funding ....................... 354 E . Expansion of Coverage of Summary Conviction Matters: A Joint Endeavour ............... 356 F . The Leask Report ...................... 361 G . Criticism of the Leask Report ............... 366 H . TheLegal Services CommissionAct ............. 375 1. The Legal Services Commission .............. 379 I . RenegotiatingtheFPA ................... 382 J . NDP and Restraint ..................... 384 K . CLOts v . Judicare ..................... 388 L . Conclusion ....................... 394 CHAPTER VII: IMPLICATIONS AND SUGGESTIONS FOR FUTURE RESEARCH ... 412 A . An Overview ....................... 412 B . Contributions to the Legal Aid