2nd Session, 41st Parliament,

Volume 149, Issue 56

Tuesday, May 6, 2014

The Honourable Noël A. Kinsella, Speaker

Unequal Access to Justice

Inquiry—Debate Adjourned

Hon. Mobina S. B. Jaffer rose pursuant to notice of February 6, 2014:

That she will call the attention of the Senate to the issue of poverty in Canada — specifically unequal access to justice.

She said: Honourable senators, this was an inquiry originally started by Senator Robichaud and, unfortunately, I was not able to speak to it before we prorogued, so I would like to finish what he said.

I want to begin by thanking Senator Robichaud for initiating this debate on poverty in Canada and for his dedication to this important issue. I want to complete what he had done, because at that time I wasn’t able to do it.

Today I want to focus on one particular devastating effect of poverty: unequal access to justice.

Honourable senators, when I attended the Canadian Bar Association’s Envisioning Equal Justice Summit, participants from all spectrums of the justice system spent two days considering how to move forward with this serious issue. Equal access to justice simply means that everyone has the same rights and protections under the law. This is essential in a democracy and fundamental to the rule of law.

However, for this to become a reality, we need to ensure that all people have legal help when needed, just like they have medical help when they’re ill. When a senior is unjustly evicted from her apartment or a refugee is deported without first exercising available procedural and substantive rights, we fail in our commitment to fostering a just society.

On the issue of equal access to stable justice, the 2011 World Justice Project rule of law index ranks Canada ninth out of 12 high-income countries. Canadians living in poverty are disproportionally affected.

In Canada’s court system, many litigants are seeking justice on their own, without the representation of lawyers. Studies show that outcomes are much better when people have access to professional advice. Legal advice comes in many forms, including information, assistance or representation, depending on the situation.

To ensure equal access to justice, we must first end poverty. This requires a holistic approach. Piecemeal policy amounts to a band-aid solution: a temporary fix to our justice and social system tragically devoid of a reliable safety net. Public and private organizations should work together to improve the situation.

Lawyers and other legal service providers are considering ways to get more services at more price points to more people. Let us examine what’s happening now. Lawyers are planning to continue doing pro bono work. The courts and judges are working to become more receptive and welcoming to unrepresented litigants, who are by far the majority in the court system.

The other part of this picture is leadership and public funding. All levels of government, and particularly the federal government, must recommit to being part of the solution. Easily understandable and accessible public legal information can be made available for everyone to allow people to prevent or avoid legal problems when that is possible.

Legal education at an early stage can equip young people to become legally capable for their encounters involving legal issues that they will undoubtedly face later in life. In other words, honourable senators, we must work to close the gap in the quality of education between public schools in poor neighbourhoods and affluent neighbourhoods.

Education is a provincial jurisdiction, but we need federal leadership to facilitate support systems and relationships between educators and legal professionals across Canada. Courts and other justice facilities should be reassigned to focus on the needs of people. For example, offering many legal services under the same roof would be very helpful to a single mother whose family lives in poverty and who has difficulty accessing public transportation.

It is critical that governments ensure that adequate funding is allocated to legal aid programs so they are there to ensure that legal help and professional representation are available for the most marginalized and vulnerable populations in our society when serious matters are involved.

Instead, to meet budgetary targets, legal aid plans have needed to lower their financial cut-off of who is eligible for help. Generally, a person working for minimum wage at Tim Hortons won’t get help. In Ontario, a person’s annual gross income must be less than $10,500 to qualify for legal aid. In British Columbia, the maximum is only a little higher at $17,760.

The other way that legal aid plans are forced to stay within the budget is to narrow what they offer in terms of services. Many do not provide any services for what is called poverty law, which means for such things as tenancy issues or problems with government benefits and income security.

Even coverage for family law, which can involve important and fundamental issues around custody of children or support for those children, is very limited in most jurisdictions.

Many are spending limited resources on websites, hot lines and brochures which can play a useful role. However, when a person is frantic with worry over an urgent family law matter, has literacy challenges, mental health or addiction issues, or doesn’t speak an official language, these resources cannot help. People in urgent situations tend to need someone to hear their story and step in to help, rather than being left to navigate complex processes on their own. This is not only a matter of decency, but it is also a matter of fairness and equality. This is a matter of good fiscal sense and sound public policy.

Many studies from abroad have put a price on the savings to the public purse achieved for every dollar spent on legal aid. While the results vary from country to country, depending on the methodology and other factors, a legal aid dollar is generally said to save about $6 or $7 of public funds in other areas: for example, social assistance when people are able to obtain child support.

Emerging studies in Canada have also found that investing in justice saves public money. Furthermore, unresolved legal problems take an incredible toll on individuals and families, often leading to serious health and financial problems which cascade into further legal problems with more serious consequences.

Despite a greater understanding of the devastating impact of unresolved legal problems on the lives of people in Canada, particularly of the more disadvantaged members of our communities, spending on justice is negligible in Canada. Justice spending continues to lose out against spending on health care, yet a small amount of reinvestment in justice would lead to savings in other pockets of the public purse, notably health care.

Simply put, investing in justice, and particularly in legal aid, is sound public policy. The current situation is commonly described as a crisis. Work is being done to address that crisis, but there is no national coordination; it’s like a body with no head. No coordinating brain is devising a sensible path forward. Government leadership is seriously lacking.

This is where the federal government needs to step up and take on this challenge, as it did at the foundation of modern legal aid programs in Canada in the early 1970s. The federal government makes a financial contribution for criminal legal aid, but that has diminished proportionately over the years at the same time as the pressures for criminal legal aid grow with the recent legislative changes. There is some constitutional obligation to provide funds for criminal help, and resources spent to meet that obligation take away from those for legal aid services.

Again, there is no leadership at the federal level. No federal minister is even responsible for civil legal aid. Whether a federal contribution exists for civil legal aid at all is controversial. The federal government says it makes a contribution through the Canada Social Transfer, but the provinces disagree that there is anything in the transfer for those services.

A Canadian expert in the area has described legal aid as a social program so tattered and torn as to be unrecognizable to what it was intended to be when first established. Members of the working poor and middle class are increasingly finding that access to legal help is unavailable and unaffordable, and our courts are literally swamped with unrepresented litigants.

We must always keep in mind that the reality is that these shortfalls hit the most vulnerable, marginalized and desperate populations the hardest.

Before I conclude, honourable senators, I want to recognize the incredible work that Dr. Melina Buckley, Ms. Gaylene Schellenberg and the Canadian Bar Association do to improve access to justice. These people and the Canadian Bar Association are on the forefront of those making sure all Canadians have access to justice. I thank them for working on our behalf and bringing this issue of access to justice to our attention.

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The Envisioning Equal Justice Summit that they hosted last year I hope will prove a springboard for more concerted policy action on this issue.

Today I have explored the issue of poverty as it connects directly to denials of justice every day in every province and territory; but the federal government and we, as senators, have an important leadership role to play in ensuring access to justice more broadly.

We are far behind the leadership shown by the central governments of other federal states, including the U.S, where President Obama established an Access to Justice Initiative in 2010, and Australia, where the federal government has developed a comprehensive strategic framework for ensuring access to justice for all Australians.

Honourable senators, we need to become part of this discussion and take a lead in finding a solution so that all Canadians will have access to justice. Without access to justice, we will dilute a just society that all of us worked hard to create.

Thank you.

(On motion of Senator Fraser, debate adjourned.)

 

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