Saturday, December 03, 2005

Will Access to Justice Be Restored in B.C.'s Northern and Rural Areas?

{The following is an unrevised version of the paper delivered to the joint meetings of the BC Political Studies Association and B.C. Studies at the University of Northern British Columbia in May, 2005.--MC}

The Legal System and Access to Justice in B.C.’s Provincial North

"The civil element (of citizenship) is composed of the rights necessary for individual freedom --- liberty of the person, freedom of speech, thought and faith, the right to own property and to conclude valid contracts, and the right to justice. The last is of a different order from the others, because it is the right to defend and assert all one’s rights on terms of equality with others and by due process of law." –T.H. Marshall


The past two decades have seen an expansion of the legal rights and legal consciousness of Canadians that goes well beyond the acquisition of specific new substantive and procedural guarantees contained in the Charter of Rights and Freedoms. Law’s ‘citizen-constitutive’ role has made debate surrounding competing models of legal aid and associated policies and institutions affecting access to justice all the more important. Links between the content of citizenship and access to justice have also made the application of neoliberal ideas to justice reform both extremely difficult and politically charged.

This paper looks at the delivery of legal services in northern and rural British Columbia in order to draw greater attention to a comparatively neglected aspect of these debates. Legal historians have described how resistance to the imposition of British law and legal ideology lasted longer in rural and northern areas than in southern population centres, and how the very notion that legal services were entitlements of citizenship came decades later to the North. To what extent has the postwar expansion of legal aid and court services and their subsequent curtailment and reform (as part of a worldwide retreat from universalism that is stressing the more effective management of limited resources and de-emphasizing the achievability of truly equal access to justice) impacted northern communities? What differences exist between legal service utilization patterns between northern/rural and southern/urban communities? What specifically regional dimensions are there to the politics and policy choices concerning access to justice? Finally, as British Columbia stands at a crossroads in the development of legal service delivery, we need to ask: which model is best suited to northern and rural B.C. communities?

1. Funding of Legal Aid and Delivery Models Prior to 1981

Legal aid prior to 1979 was run by the Legal Aid Society, administered in branch offices in cities throughout B.C. under the direction of the Ministry of the Attorney-General, who were billed by private members of the criminal bar. Some services (legal education and poverty law) were also funded by the Legal Services Commission of B.C. In 1978, the Legal Aid Society and the Legal Services Commission were amalgamated into the Legal Services Society.
In 1972, the federal government, through the Department of Justice Canada, had negotiated legal aid cost-sharing agreements with the provinces. The federal government committed to contributing approximately 50% of the cost of providing criminal legal aid services in each province. The program was meant to provide legal assistance to accused people who had little or low incomes and were charged with an offence for which incarceration was likely upon conviction or were facing extradition or were appealing a judgement relating to these types of situations. Aside from setting these minimal coverage goals, including coverage for young offenders facing closed or open custody, the cost-sharing agreements did not dictate eligibility criteria or how a provincial legal aid plan should provide services.
Provinces provide criminal legal aid services through different service delivery models — government-funded legal aid clinics and private practice lawyers paid a set hourly rate or a tariff per type of case. In British Columbia, certified members of the criminal bar billed the province, but this ‘judicare’model became more complicated after 1978, with tensions occasionally emerging between the judicare component (inherited from the criminal work of the Legal Aid society) and the ‘staff’ component inherited from the Legal Services Commission. This tension was apparent in many smaller centres, as the differing market conditions in northern and rural British Columbia sometimes led to a greater emphasis on the staff model, particularly with respect to civil matters (i.e. family, immigration, and poverty law, and legal education). In later years this tension would become more pronounced, as the New Democratic Party government moved toward regionalization of law offices and the creation of community boards for legal services as well as other social services.

2. The 1980s and 1990s: The Debate over Delivery Models

A watershed in the history of the delivery models debate was the 1981 Burnaby study. This was the first in a series of Canadian studies which purported to show that staff lawyers could deliver legal aid at less cost and with a similar quality of service compared with judicare in criminal law cases. Later studies, in particular the 1984 Department of Justice Evaluation of Legal Aid in B.C. and the 1987 Canadian Bar Association Discussion Paper, provided mounting empirical evidence and argument in favour of a larger staff component. Nevertheless, these conclusions were vigorously disputed by representatives of the private bar, who argued that data presented in these and other reports were skewed by their failure to take into account the less complicated nature of services provided by staff lawyers and the higher quality of service, and choice, provided by the private bar.
This debate has been well described and documented Albert Currie’s article on Legal Aid Delivery Models in Canada. What is not mentioned in Currie’s article, and not given extensive treatment in either the CBA Report or the Burnaby study, is the regional dimension of the data, which suggests that the arguments in favour of the staff model are stronger in rural and northern parts of the province, where the private bar tends to be less plentiful in relation to either demand or need. Deborah O’Leary, the Manager of the Prince George Branch Office since 1984, has stated that generally speaking the areas west and north of Prince George have experienced supply and demand conditions for lawyers that are the reverse of those obtaining in the south, with higher turnover in family law and a criminal bar that is significantly less available. In some areas (e.g. Prince Rupert, Fort St. John, and sometimes even Quesnel) it has been, and continues to be, difficult to find lawyers who will do legal aid law.
The election of a New Democratic Party government in 1991 added more fuel to the delivery model debate. A 100% tariff increase in June 1991, coupled with high volume increases of 22% in 1991/92, led to a revenue shortfall of $21 million, despite a doubling of the government allocation. The government appointed Timothy D. Agg to conduct a review of legal aid services and to make recommendations for a long-term financial and service delivery. Besides detailing the causes of the Legal Services Society’s serious financial deficit and the underlying problem of underfunding, Agg identified management and organizational problems resulting from conflicts within the Legal Services Society and between the management of the Society and the bar; and service delivery problems, including “excessive priority given to criminal legal aid, to the detriment of family and civil/administrative poverty law service” and “inconsistent availability of service in many communities throughout the province, most notably in family and other poverty law matters”. Accordingly, the Agg Report made a number of significant recommendations that would lead the province away from a model of legal aid that (with the exception of poverty law) was delivered almost entirely by private bar lawyers at that time. These recommendations included:
· “Adopt a more flexible mix of tariff and staffed services, with increased use of paralegals and increased use of paralegals and increased collaboration of, and support to, lay advocates.
· Ensure equitable allocation of resources to family, civil/administrative and criminal law services.
· Reduce criminal tariff by approximately 10%, with the savings allocated to improving the family and human rights tariffs; establishing a limited civil tariff; considering a senior tariff; reducing carrying of disbursements on family cases; tieing future tariffs to comprehensive policy on public sector lawyer compensation
· Adopt a three-year plan to: expand staff of local offices; increase the number of local offices; and improve working relationships between tariff and staffed services. Finance this plan by assigning about 25% of current tariff caseload to staff delivery. In third year, staffed services may handle up to 50% range of present tariff caseload.
· Increase local access to service throughout the province, and ensure choice of counsel where appropriate.
· Place responsibility for local/regional services under the control of community boards, with authority for local budget, staff and service planning. The society will set service delivery standards, ensure quality control and accountability, establish provincial service policy,and maintain fiscal control. Provision is made for consistency in wages, benefits supervision, seniority and career mobility.”
In 1994, a Reform package based largely on the discussion of these and other proposals was introduced that included a tariff reduction, a client contribution program, and a proposal to move to 50 percent staff lawyer system. The private bar reacted strongly against the mixed model proposal, and in July 1994 the Association of Legal Aid Lawyers withdrew their services. The result was a tri-party accord in September 1994 between the government, the Law Society of B.C. and the Legal Services Society, which limited the number of staff lawyers to about 15-20 percent of total service delivery, or 90 lawyers. What is significant to note for the purposes of this study is that, while the north undoubtedly benefited from the opening of Community Law Offices and Native Community Law Offices the full implementation of the Agg Report would have been particularly advantageous for rural and northern communities---assuming that lawyers could be found to fully staff the offices.
Federal-Provincial Finance
Meanwhile, changes in federal-provincial finance continued to provide a context, and a spur, for provincial innovation.
Federal funding for civil legal aid matters began in the late 1970s as part of the Canada Assistance Plan funding to the provinces, and the funds provided were linked to those actually spent. In 1994-95, this funding was rolled into the Canada Health and Social Transfer (CHST) and became an unconditional transfer payment to the provinces. At that time, approximately $99 million of federal money was being provided for civil legal aid services. Federal support for civil legal aid services is part of what is now called the Canada Social Transfer (CST) and is not specifically identified or allocated. This in turn helped to set the stage for reduction in the scope of the civil law component of legal aid under the B.C. Liberal Government in 2002.
In 1990-91, the federal government capped its legal aid contribution at approximately $86 million. Following policy review exercises in the 1990s, federal contributions dropped, falling to $82 million in 2000-2001. The trend was reversed in 2001-2002 when $20 million was added to the criminal legal aid budget on a temporary basis. In 2003, the federal government committed to increasing the amount available for criminal legal aid services to $126.5 million for 2003-04 and for 2004-05.

Patterns of Conflict involving the Private Bar, and Consequent Constraints Upon Policy –Making

The history of private bar protest and work stoppage is interesting because the variety of contexts which have provoked disagreement illustrate the general factors constraining policy-making. An examination of the following three disputes are illustrative:
1. the 1991 Legal Aid Strike (against low tariffs), which occurred after the Hughes Report recommendations for increased tariff rates were not fully met, and which led to the creation of the Association of Legal Aid Lawyers (ALAL);
2. The July 1994 withdrawal of services by ALAL as protest against the mixed model proposal of the NDP government following the recommendations of the Agg Report, (as described above); and
3. The recent protests and legal challenges against underfunding of legal aid—including the successful challenge of the Social Services Amendment Act (no.2), 1993 in the Christie case, in which Madame Justice Koenigsberg of the B.C. Supreme that the 7% Social Services Tax (SST) on legal services for individuals earning less than $28,000 per year was a breach of the constitutional rights of low income persons by impeding access to justice. The recent (February, 2005) Charter claim of a right to civil legal aid promises to be even more significant.
Each of these conflicts had different dynamics in the north. During the 1991 Legal Aid strike Prince George lawyers continued to take referrals, unlike their counterparts in the south. During the 1994 dispute the bar in Prince George withdrew duty counsel services (i.e. the limited free legal advice afforded to individuals in custody or to speak to sentencing if a plea is entered), which then had to be filled entirely by staff lawyers. While this was a burden on staff, it led to staff lawyers being increasingly requested by the criminal accused, even in murder cases, providing additional evidence that the quality of staff lawyers was not inferior to the private bar. The current legal challenges to the SST and the dropping of civil legal aid, if both prove to be ultimately successful, could be disproportionately significant to poorer rural, northern and native communities that no longer have Community Law Offices offering family or civil law advice---such as the ones that existed in Quesnel, Burns Lake, Dawson Creek, Fort Nelson, and the former NCLO in Prince George.
How Much did Community Law Offices and Native Community Law Offices improve Access to Justice in Northern and Rural Areas?
After 1982 all new offices were opened in smaller, northern communities, doing a lot of “poverty law”--- eligibility for and administration of social assistance, dealing with conflicts between Indian bands and band members, Canada Pension Plan appeals, disciplinary hearings at local jails, and other work supporting the welfare state infrastructure of the north and rural area, and much of it being done by para legal staff. Some of these communities in the 1980s and 1990s even lacked telephones, so the availability of an office was a certain improvement of access to justice.
While some of the independence of CLOs and NCLOs has been questioned (the NDP movement towards hands-on community boards and regionalization may have contributed to administrative costs and coordination problems, as well as financial accountability in certain cases) there can be little doubt that access to justice was significantly improved.

3. Service Cuts and Reorganization of Legal Aid in B.C. 2002/2003

Prior to the cuts to the legal aid budget announced in August 2002, there were branch offices in Prince Rupert, Prince George, Fort St. John, Williams Lake and Smithers, as well as either CLOs or NCLOs in Quesnel, Burns Lake, Dawson Creek, Fort Nelson and Prince George. Now in this same area there are just two branch offices, in Prince George and Terrace. Applications and referrals have dropped in each successive year between 2001 and 2004, as follows: 2000/2001: 5,041 applications and 3, 924 referrals; 2002/2002: 4,0444 and 3,581; and in 2002/2003: 2,219 and 1,768. Staff in the Prince George Office report that this decline in applications did not just occur because the coverage of legal aid had been cut to just criminal and family law involving violence; the decline came even for services that were still available. Furthermore, there was not just a significant drop in the towns where branch offices, NCLOs and CLOs were closed, but a noticeable decline even in Prince George. The best explanation that the Legal Services Society has for this phenomenon is that the announced changes to the LSS’s coverage policies and the accompanying political environment of retrenchment have created the false impression that even criminal legal aid services and family law matters involving violence were being cut back.

The Legal Services Society could point to two aspects of its service that improved after August 2002, and one other experiment that will improve support for family law services. One was that the over-all percentage of applications resulting in referrals had risen about 10 percent since 1999, to 79.8% in 2002/2003. The other was the enhancement of the society’s overall legal information service with the expansion of the Law Line into a province-wide toll free service in September 2002, with improved technology and increased staff, handling a volume of inquiries that rose from a monthly average of 799 in April-July 2002 to 2,000 in January-March 2003. There has also been an establishment of a family law duty counsel pilot projects in 11 communities across the province, with two of these being extended to Prince George and Terrace in 2003/2004. Courthouse closures and consolidations have not been as serious a problem as expected, largely because the planned closures in 100 Mile House and Vanderhoof were not put into effect.

Nevertheless, the impact of the 2002 cutbacks had can be said to have been disproportionately adverse for the north. Many of the places where offices closed had a high proportion of First Nations people: Burns Lake, Smithers, Hazelton, New Alyansh, Fort St. James, Fort St. John, Masset and Skidegate. These NCLOs helped native people with a large number of “poverty law” issues (e.g. helping people with status cards, band conflicts, social assistance and family law issues) that are now limited to Law Line advice/self-help services, but not actual representation, other than the introduction of the pilot projects in family law duty counsel.

Unfortunately, the reduced scope of family and poverty law coverage after August, 2002 did not free more funds for criminal legal aid or for more discretionary spending by local boards. Those financially eligible persons who faced imprisonment or deportation if convicted, or who suffered from domestic violence, did not, generally speaking, benefit from appreciably greater resources. As the Prince George Office Manager put it, “We were given less, and told what to do with it.”

4. Conclusions: Complex Mixed Models and the Future of Legal Services Delivery in the North

A cynic could be forgiven for thinking at first glance that legal services, and in particular legal aid, have ended up right back where they were at the beginning of the 1990s: so radically underfunded as to constitute a “crisis” , a crisis that is more severe for aboriginal clients and citizens in northern and rural areas; tariffs that are too low to ensure the participation of a quality private bar, especially in the north and in smaller communities; and an insufficiently extensive and well-funded staff lawyer component, which is especially important in local markets where criminal, family and poverty lawyers are in short supply. It does appear that the north, which benefited greatly from paralegal work and the creation of community law offices, has probably been disproportionately hurt by the funding cutbacks.

But on closer inspection, one can also find some evidence of dialectical progress. The mixed model of service delivery is here to stay, with a choice of local counsel typically available in both civil and criminal cases. An examination of the caseload in the seven regional branch offices shows that the staff component of legal aid services has been tailored to local market conditions: in Vancouver and Victoria, where there is a surplus of criminal lawyers, staff are concerned almost exclusively with family law, while interior branch offices are more evenly divided between criminal and family law duties. The Agg Report recommendations and subsequent NDP expansion of legal aid may not have provided a cost-efficient form of legal services delivery to the north, and therefore may not have been the most sustainable model.

Several factors could, over time restore greater equality of access to justice in the North:

1) A UNBC Law School ? While there does not appear to be a Northern law school in the works in the near future, the advent of a such a school would provide a supply of lawyers without biases of southern trained layers against rural and northern practice, as well as a steady supply of students who could be trained to provide legal aid clinics and paralegal assistance in criminal, family, immigration and poverty law matters . Even in the absence of a law school, one could imagine endowing each of the seven regional LSS offices with an articling student at a total annual cost of not much more than $300-400,000 per year. Two of these students would be in Terrace and Prince George.

2) Successful Legal Challenges Although the current political climate is not favorable to the restoration of federal shared-cost programs, there are strong philosophical arguments for making an exception for access to justice, and these arguments could be mandated by the courts if the recent Canadian Bar Association challenge claiming a basic right to civil law legal aid is upheld.

3) A New Client Base The broader category of people who qualify for family court duty counsel reaches into the unionized labour force and the middle class; this class of people and the services available to them could conceivably be expanded in the future, increasing the broader community’s stake in access to justice.

4 Continued Technological Improvements While an expanded call centre is no substitute for personal advice, and advice is no substitute for representation, we can expect improvements in the effectiveness of such services as the computer literacy of the client base improves.

5 Change of Government or policy One can easily imagine an experienced former judge like Wally Oppal recognizing the costs associated with having so much self-representation in the court system, and the value of increasing qualified representation for the poor. The NDP is committed in its 2005 election platform to increasing funding for legal aid, noting that cuts in funding of 40% hurt women and the poor in respect of human rights and poverty law services; the NDP is also committed to restoring the budget for native court workers.

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