Why legal aid matters in this federal election

  • October 08, 2019

By Patricia Hebert for The Lawyer's Daily

Take a look at the people in your neighbourhood, where you live or work — the people that you meet when you’re walking down the street, as the Sesame Street song says. Some, you can’t help but notice, are already in trouble — people asking for money, or sleeping on the street. But others who might look like they have it all under control could be one legal issue away from personal disaster.

Think this is not your problem? Too many people assume that those who need legal aid are only repeat criminals, drains on the system — losers, to be blunt. Not so. Canadian research shows that 45 per cent of the population over 18 will face an issue requiring legal assistance in any given three-year period — issues that can happen to anyone, like an unjust firing, or divorce or child custody arrangements, or an illegal eviction.

When people don’t get the legal help they need at the right time, those problems get worse and spread to other areas of their lives. A person fired without cause might end up on social assistance. That homeless person might have been unjustly evicted, and insecure housing could mean he or she can’t keep or get a job. People already living on the margins tend to have more complex and intersecting legal needs, so ignoring those needs can really compound their existing problems and reinforce social inequalities.  

A report on access to justice published by the Canadian Bar Association in 2013 noted that people working full-time for minimum wage qualify for legal aid in only a few provinces across the country — and minimum-wage earners are unlikely to have money to spare for a lawyer. Too often, even those whose incomes are low enough that they do qualify for legal aid can’t get it, because legal aid plans are forced to limit the kinds of cases they’ll cover.

Federal government contributions to legal aid started declining in the mid-1990s, and in spite of a few recent infusions, not much has gotten better for civil legal matters, like family law, tenancy issues and income security, where it’s desperately needed. At the same time, Canada has increased spending on prisons and policing even though the crime rate has declined. Most of the federal justice budget goes to policing and corrections, while about 2.5 per cent is devoted to criminal legal aid.

It seems to be a mystery whether any federal funds go to civil legal aid at all; the feds say they contribute in transfers, but most provinces disagree. And while governments argue over who’s responsible, people without other options are often left to represent themselves in court, trying to navigate our increasingly complex laws. This in turn adds an additional strain to an already overburdened justice system.

Everyone in Canada deserves justice — to assert the rights we all are supposed to have, and to defend against unfair state action when necessary. Making stable, sustainable legal aid funding an election issue is not just speaking to an idealistic notion.  

Legal aid isn’t a handout for people who get themselves into trouble, it’s a vital component in access to justice, and access to justice for everyone is a cornerstone of any society that honours the rule of law. And there’s a strong and convincing business case to be made for the benefits to government of ensuring that legal assistance is there for those who need it.

The Canadian Bar Association is challenging the federal parties to explain how, if elected, their governments would take a leadership role on this important issue, and how they would prioritize spending to ensure that vulnerable citizens are not further disadvantaged by the system.

We need the federal government to take a principled approach to helping meet essential legal needs, not only because it’s the right thing to do, but also because it makes good economic sense.

#LegalAidMatters. What are you going to do about it?

Patricia Hebert is a family law practitioner with Gordon Zwaenepoel in Edmonton and the CBA’s representative to the national Action Committee on Access to Justice.