Publication of the National Council of Welfare
Legal Aid and the Poor
A Report by the National Council of Welfare
Winter 1995
Introduction
"Justice is open to all - like the Ritz Hotel."
Anonymous British Judge
Legal aid is in trouble everywhere in Canada. Skyrocketing costs are leading one provincial legal aid plan after another to threaten major cuts in services unless governments provide them with more funds. Private lawyers who do legal aid work have several times withdrawn their services (a polite expression for going o n strike) in order to obtain increases in their fees or to prevent reductions in fees. Low-income people with small, medium and even big legal problems are being turned away in droves by many of the plans.
The National Council of Welfare has always been concerned with legal services for low-income people. In the early 1970s, when legal aid programs were first being established in Canada in their present form, many policy discussions were held about ways to ensure that the services would be the best possible for the poor. We participated actively in these debates through the publication of a 1971 report The Legal Services Controversy: An Examination of the Evidence.
In the wake of the difficulties facing legal aid in recent years, many evaluations and proposals have been written. Almost all discuss these issues from the perspective of the two most powerful players involved, lawyers and governments. Lawyers want more money to be spent in ways which would not necessarily benefit the poor, bringing to mind early criticisms that legal aid in Canada was "a system by the legal professional for the legal professional with total indifference to the client - the poor."(1) Budget-conscious governments mainly want to contain or reduce expenditures.
The purpose of this report is to establish the extent to which legal aid programs meet the needs of the poor and to examine ways in which they might be improved. We start with an examination of the reasons why low-income people need subsidized legal assistance and the nature of the services they require. We then analyze the way in which legal aid programs work in Canada today and assess the degree to which the services they offer are capable of dealing with the legal problems of the disadvantaged.
This assessment demonstrates that Canada's legal aid programs do not serve the needs of the poor. Vast numbers of low-income people, particularly low-income wage earners, have almost no access to legal assistance at all. Poverty law services, which are by far the most important for the poor population, are given the lowest priority in almost all legal aid plans. In many jurisdictions, the methods used to deliver legal aid services are inefficient, wasteful, and even harmful to their clients, especially in the area of criminal law.
Overall, we conclude that what legal aid needs is not so much more
money as better management. We suggest important changes to ensure that the main beneficiaries of legal aid will no longer be lawyers, but low-income people.
Footnotes
Why Poor People Need Legal Aid
For people who have no money to pay court fees or hire a legal expert to advise and represent them, the right to subsidized legal services is the most fundamental of all rights. What use is a Charter of Rights and Freedoms guaranteeing your right to life and liberty, freedom of speech or equality before the law, if you cannot defend yourself against unjust accusations or discriminatory treatment? What is the point of laws entitling citizens to benefits, such as unemployment insurance or support payments from an ex-spouse, if program administrators or your ex-husband know you cannot afford the appeal or lawsuit required to get your rights enforced?
The law, according to former Justice Minister Mark MacGuigan, is "the basic regulator of society," an intricate set of rules that envelop our daily lives. If these rules didn't exist, he added, the result would be disorder: people would be threatened by arbitrary, brute force from whoever could obtain power, and we wo uld have no framework to secure our plans or expectations.(2)
Before legal aid, the vast majority of poor Canadians - meaning all those who did not know the law and were not articulate enough to speak for themselves - had little choice but to live without the protection of the law. If anyone such as the police, collection agencies and loansharks, exploitive spouses, landlords or government officials persecuted or cheated them, they were helpless and incapable of asserting whatever rights they may have had. The result, said then-Attorney General of the United States Robert F. Kennedy in 1964 about a similar situation in his country, was that "The poo r man looks upon the law as an enemy, not as a friend. For him the law is always taking something away."(3)
When are legal advice and representation essential to the poor? We
will consider this in different contexts, starting with cases where a poor man or woman has been accused of committing a criminal offence.
Footnotes
Criminal Legal Aid
When people who are not experts talk about legal aid in criminal cases, they often express little sympathy for those who are accused of wrong-doing. After all, many people say, most of them are probably guilty anyway, and people who commit criminal acts - especially violent ones - get off much too lightly as it is. If it were not for legal aid, some people feel, more criminals would be punished and society would be a safer place.
One way of changing people's views is to point out that 90 percent of the Criminal Code violations which come to the attention of the police in Canada are non-violent, and that in a large proportion of violent crimes, the offenders are not hardened criminals but acquaintances, friends or relatives of the victims. The ma jority of reported Criminal Code offences concern property crimes (accounting for 55 percent, with half being thefts under $1,000). The next two largest non-violent categories are minor property damage under $1,000 (called minor mischief, and accounting for 15 percent) and traffic offences (seven percent, mostly for impaired driving).(4)
The quickest change in attitude toward legal representation happens when it is you or someone close to you who is suspected of a criminal act. You then realize that all but the most minor criminal cases can be very complex, and that the police and court environments are so intimidating to non-initiated people that even intelligent, well- informed suspects who face criminal charges without the help of a lawyer can be found guilty of something they did not do. In most criminal prosecutions, the accused are poor, they have limited schooling, and little or no idea what is going on.
The main reason why representation by a lawyer is almost always essential in criminal cases is that the criminal justice system is an adversarial one. The role of the prosecutor, who is backed by the considerable resources of the police, is to present the evidence which will establish the guilt of the accused. Once the evidence has been presented, it is up to the defense either to offer contradictory evidence or to argue that the prosecution's case is insufficient. The judge and jury are neutral arbiters who weigh the evidence put before them but do not investigate the facts themselves.(5)
Because unrestricted state power can easily become a weapon of
oppression, and because our society believes that it is better to let some criminals go free rather than convict an innocent person, hundreds of rules have been developed over several centuries to protect the rights of the accused. For example, confessio
ns obtained by beating suspects are not admissible, there is a right to trial by a jury for more serious offences, some proof of criminal intent is required in
many cases, and there must be a minimum amount of evidence of guilt to
sustain a conviction. The fact that these rules are enormously complex, and require that accused people assert their rights at every stage of the proceedings and make many important strategic choices, led the U.S.
Supreme Court to declare in the 1950s that:
(R)eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer,cannot be assured a fair trial unless counsel is provided for him... Governments, both stat e and federal, quite properly spend vast amounts of money to establish machinery to try defendants accused of crime... That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indication of th e widespread belief that lawyers in criminal courts are necessities, not luxuries... From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.(6)
The Supreme Court of Canada has not yet taken a position on whether the Charter of Rights and Freedoms, whose relevant sections came into force in 1982, also give low-income Canadians a right to government-funded legal representation in criminal trials. The provincial appeal courts which examined the question concluded t hat although such a right is not specifically listed in the Charter of Rights, it may be indirectly guaranteed by sections 7 and 11(d) of the Charter, which give everyone the right to be presumed innocent, and the right not to be deprived of life, liberty, and security of th e person, except as a result of a fair trial.(7)
In several decisions issued together in September 1994, the Supreme Court considered the right to free legal services of people who have just been arrested in connection with a criminal offence.(8) One of the questions addressed was whether section 10(b) of the Charter of Rights, which gives arrested or detained people th e right "to retain and instruct counsel without delay and to be informed of that right," makes it mandatory to provide "standby" legal aid services on a 24-hour basis in all jurisdictions. According to the Supreme Court, section 10(b) does not impose such an obligation, but it requires that detainees be immediately and properly informed about the availability of legal aid services in the area, and be given an opportunity to contact them where they exist.
In these judgments, the Court made it very clear that it was not ruling on the question of whether the Charter guarantees a right to legal aid at trial and on appeal. If and when the Court hears a case on this broader question, it will almost certainly refer to the International Covenant on Civil and Political Rights, which Canada has signed. Article 14 of the Covenant states that everyone who is accused of a criminal act shall be entitled "to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case w here the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it." Although the Covenant does not have force of law in Canada, such international agreements can play an important rol e because our courts often use them to interpret enforceable laws such as the Charter of Rights.
Young people between the ages of 12 and 18 already have a guaranteed right to legal assistance under the federal Young Offenders Act, which came into force in 1984. It requires arresting police officers and court officers, at every stage of the judicial process, to advise accused young people of their right to be represented by a lawyer and to give them a reasonable opportunity to exercise that right. If a youth wants to be represented and legal aid is not available, the Young Offenders Act specifies, the youth-court judge must appoint a lawyer who will be paid by the Attorney General of the province if the legal aid plan does not cover it.(9)
Another compelling argument why the poor should be provided free legal services in criminal cases is that our criminal justice system is heavily biased against disadvantaged people. Part of this bias is due to the law itself. The Criminal Code offence of "disturbing the peace," for example, and quasi-criminal provincial Liquor Acts, forbid many types of behaviour in public, including drinking on the street and other unlicensed public places, shouting, swearing,loitering and being obnoxiously drunk. Such laws have a much greater impact on the poor, some of whom are homeless and many of whom spend a great deal of time on the street or in other public places to stay out of their overcrowded homes. In Canada in 1992, these laws were used to lay more than 100,000 charges against men and over 10,000 against women,(10)reminding us of the famous saying: "The law, in its majest ic equality,forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread." (11)
Prostitution is another case in point. Prostitution among consenting adults has never been a crime in Canada, but the Criminal Code makes it illegal to communicate in public places for the purposes of prostitution. The result is that the large propor tion of prostitutes who work in brothels, massage parlours, bars and "escort" services are almost never troubled by the law.(12) In Canada in 1992, about 5,000 charges were laid against female street prostitutes, many of whom live from hand to mouth.(13)
The bias against the poor is not so much in the law itself but in its implementation. There are many stages between the point crimes are committed and the point where offenders are sentenced, and the proportion of low-income people increases at each level. Describing this, a U.S. senator said:
Justice has two transmission belts, one for the rich and one for the poor. The low-income transmission belt is easier to ride without falling off and it gets to prison in shorter order. The transmission belt for the affluent is a little slower and it passes innumerable stations where exits are temptingly convenient.( 14)
To start with, most crimes are never reported to the police. In Canadian cities, even serious crimes like sexual assaults, other assaults and robberies go unreported in more than half of all cases.(15) Among the factors influencing the decision to report a crime to the police, it has been found, is the appearance of the offender. People who see a crime being committed are more likely to report it if the offender is of a different race than they are or is dressed in a way which indicates that he or she is of a lower social class. So-called "white-collar" crimes,including most employee pilferage, fraud and embezzlement, are not often reported because many companies prefer to deal with them internally. "Low-class" crimes like burglaries and car thefts are usually reported because it is required to collect insurance.(16)
In the stages following the reporting of a crime, the discriminatory effects of the justice system are even more evident. To summarize the problem in both the United States and Canada (and probably every other country in the world), criminologist Jeffe ry Reiman stated that:
For the same criminal behaviour, the poor are more likely to be arrested; if arrested, they are more likely to be charged; if charged, more likely to be convicted; if convicted more likely to be sentenced to prison; and if sentenced,more likely to be given longer prison terms than members of the middle and upper class es. In other words, the image of the criminal population one sees in our nation's jails and prisons is an image distorted by the shape of the criminal justice system itself. It is the face of evil reflected in a carnival mirror, but it is no laughing ma tter.(17)
The mechanism which produces this result, explains Canadian criminologist Thomas Gabor, is the large reduction in criminal cases which occurs at every stage of the judicial process. According to a 1987 federal government study, at most 8.5 percent of offences known to the police go through the entire process and e nd up with the imposition of a sentence.(18) The most important reason for this enormous attrition is that more than half of complaints of criminal acts remain "uncleared," largely because the offenders are never identified. In addition, police officers and prosecutors have a great deal of discretionary power to decide whether to pursue a case, so that no charges are laid in about a third of the "cleared" offences.(19)
The criteria used by police officers and prosecutors in deciding whether to pursue or drop charges are similar to those of witnesses who decide whether to report a crime. Suspects who fit the popular stereotype of the criminal, meaning that they are single young males, aboriginal or black, unkempt, disrespectful and o f low social status, have a much smaller chance of seeing their cases dropped. Studies of young offenders show that lower-class youths are much more likely to be referred to juvenile court, whereas youngsters from wealthier families are more often dealt with informally, such as by being turned over to their parents. Except when they engage in "disorderly" conduct like prostitution, most girls - although perhaps not most aboriginal or black girls - are released without charges, especially when they have male co-suspects. Higher-class defendants are seldom, if ever, brutalized by the police.(20)
The differential treatment of low-income accused continues through their trials and sentencing. Poor defendants are more likely to be held in prison while better-off ones are released until trial. A Halifax study of the outcome of criminal trials found that employed defendants who had been found guilty of minor offence s received significantly lighter sentences than defendants with similar criminal records who did not have a job. Even worse, the study showed that among first offenders who had been found guilty of a minor offence, 23 percent of the white defendants rece ived a discharge while none of the black defendants were granted one.(21)
Most damning about the discriminatory nature of our justice system are figures concerning inmates of Canada's prisons. Self-identified aboriginal peoples represent approximately three percent of the population of Canada, but they comprise about 11 percent of all people admitted to federal institutions, and 15 percent in the case of female offenders. The situation is even worse in the Western provinces, and worst of all in Saskatchewan. In that province, aboriginal peoples make up seven percent of the total population and 60 percent of those admitted to provincial pris ons.(22)
The final proof that Canada's justice system is flagrantly unjust toward low-income people is that 35 percent of the people admitted to provincial and territorial prisons in this country are there because of their failure to pay fines, ranging from a low of 14 percent in Newfoundland to a high of 44 percent in Quebec.(2 3) A study of 1982-83 admissions discovered that 76 percent of those admitted to Saskatchewan prisons for fine default were aboriginal peoples and that in Ontario, 60 percent of aboriginal admissions for fine default had been the result of violations of the Liquor Act.(24)
What can legal aid programs do about these injustices? If they
were well conceived and organized, they might be able to bring about important reforms. At the very least, they can make a crucial difference in many individual situations. A Toronto study found that accused people who were not represented by a lawyer w
ere more likely to be found guilty, and that in the frequent cases where accused people were charged with several related offences, those who were unrepresented were more likely to be found guilty of the most serious charge.(25) The
Halifax study cited earlier established that offenders without prior
convictions received lighter sentences when they had legal representation.(26)
Footnotes
Legal Aid for Non-Criminal Law
While criminal legal aid services are essential to provide a bare minimum of equal treatment to low-income people, these services are of no use whatsoever to the vast majority of the poor. In spite of the fact that disadvantaged people, and particularly disadvantaged single young men, are greatly overrepresented among criminal defendants, people charged with criminal offences make up a very small proportion of low-income Canadians. Most poor people have never been, and probably never will be, in trouble with the law. What they need are good civil law services.
The traditional view is that even if civil law problems affect a much greater proportion of low-income people, criminal legal aid should still have priority. Defenders of that position argue that the consequences of lack of representation are less drastic in civil cases (because there is no imprisonment) and that the imbalance is much greater in criminal cases because the opposing party is the state, with its considerable resources.(27)
In recent years, this long-standing view of the lesser importance of non-criminal matters has been challenged. It was pointed out that the state is also the other party in numerous civil disputes, including all those which involve benefits under government programs. As for criminal cases having more drastic consequences, civil disputes can have effects which are just as severe, such as the removal of a child from his or her parents' home in child protection cases,the involuntary commitment of psychiatric patients, and the deportation of refugees.(28) A legal aid staff member commented that a tr ibunal decision on whether a widow will or will not be granted a pension has long-range stakes which are more important than those involved in whether a man accused of impaired driving for the second time is or is not going to spend a short time in jail.(29)
Others have pointed out that the vast majority of criminal legal aid clients are men, while most of the beneficiaries of civil legal aid are women. As a result, the present system of preference for criminal legal aid might be in violation of the provision of the Charter of Rights and Freedoms requiring that equal serv ices be provided regardless of sex.(30) The emphasis on criminal services not only makes it harder to serve women's basic needs in the areas where services are already provided, but also ties up funds which could be spent on innovative services specifica lly geared to women, such as legal assistance for victims of family violence.
As well as needing more civil than criminal law services, low- income people have a much greater need for civil law services than people with average incomes. Middle-class people seldom need a lawyer. A recent survey found that half of adult Ontarians have used professional legal services three times or less in the ir lives. The most frequent uses were real estate/mortgage transactions (44 percent), wills/estates (18 percent) or divorces and other family matters (eight percent).(31) The majority of poor people have much greater legal needs. For one thing, "If you are poor, you depend on the law, regulations, and bureaucracies for the necessities of life."(32) Chances are great that you will have problems at some point, and more likely at many points, requiring knowledge of laws and regulations concerning your ma in source of income, such as social assistance, unemployment insurance, workers' compensation, disability benefits or pension programs for the elderly poor.
Low-income people are also much more likely to need legal assistance as consumers.(33) They are the prime targets of consumer fraud, as unscrupulous operators take advantage of their helplessness or disabilities to misrepresent the price or quality of their merchandise. Interest on sales and loans is disguised to fool people with little education. Small Claims courts, initially perceived as "people's courts," are in fact collection agencies where corporations and professionals (accounting for 77 percent of plaintiffs in a Windsor, Ontario study) obtain judgments without opposition against low-income respondents.(34) Collection practices against he poor are harsh and often illegal.
Housing is the other area where many low-income people need legal services, in part because "Slum landlords are notoriously delinquent in fulfilling their obligations to provide services and repairs."(35) Cockroaches and dangerous electrical wiring ab ound in poor urban areas and inadequate enforcement of housing codes is the rule rather than the exception. Landlord-tenant disputes over repairs and illegal rent hikes frequently escalate, leading to rents being withheld and notices of eviction. Discrim ination against prospective tenants who are welfare recipients, or parents, or members of visible minorities, are also common problems, and single-parent mothers are particularly vulnerable to sexual harassment by landlords or building superintendents.(36 )
Lawyers involved with introducing civil legal aid services in various communities report that having "lawyers on our side" can have tremendous community-wide ramifications.(37) Welfare workers whose main concern used to be to save money by keeping benefits as low as possible start paying more attention to recipients ' rights and entitlements under the regulations. Collection agencies become slower to repossess articles or seize household furniture. Some landlords become quicker at making repairs. Children's aid workers are more hesitant to remove children from thei r homes. When a welfare mother was asked how she felt about the changes legal aid had brought to her community, she answered that it "makes me feel like a human being."(38)
In addition to these widespread problems, different groups of disadvantaged people have particular needs.
Women. As women make up close to 60 percent of the poor,(39) their special problems loom large in the provision of legal aid services. Many of these problems have to do with their current or past relationships. Single-parent mothers, and some women who still live with their husbands, need legal assistance for family law matters such as separation and divorce, division of matrimonial property, child custody and access and support payments. Some also have legal questions related to their roles as mothers, such as problems with child welfare authorities or the need to have a child's paternity legally recognized.
Women also need legal assistance as victims of crimes of violence. Although men (especially young ones) are as likely to experience such attacks, women tend to be assaulted by their husbands or ex-husbands, whereas men tend to be assaulted by strangers.(40) A recent national survey found that three women in ten had been assaulted at least once by their husbands or partners, including 15 percent by their current spouse.(41) Women and girls are much more likely than their male counterparts to experience sexual assaults and incest.(42)
Although most victimized women do not file criminal complaints, they often want legal advice - usually on both family and criminal law - to understand their options. Those who decide to report the assaults want information about their rights and responsibilities as complainants and witnesses, about the criminal justi ce process and courtroom procedure and about the progress of their case (such as whether formal charges have been laid, when the trial and the sentencing are likely to take place, etc.). Many want someone to accompany them when they testify in court.
Aboriginal Peoples. As mentioned above, aboriginal people are overrepresented in the criminal justice system. They are not only more likely to be sent to jail, but also more likely to be charged with and found guilty of criminal offences. Some of these offences, such as wife and child assault, give rise to needs for non-criminal legal aid services for their victims. For reasons we will return to later, the rate of domestic assaults has reached "epidemic proportions" in aboriginal homes.(43) Apart from that, and the multitude of problems aboriginal people experience because they are the p oorest of the poor, the main difficulty is that many of them live in rural or remote northern communities where legal aid services are difficult to obtain or inaccessible.
Immigrants and Refugees. A 1993 survey of immigrants and refugees who were clients of Vancouver multicultural social service agencies found that three-quarters reported at least one problem with one or more legal ramifications. Only nine perce nt of the problems were of a criminal nature (this included victims as well as offenders). The only two large categories related to government income replacement benefits (social assistance, workers's compensation, etc., accounting for 30.4 percent), clo sely followed by issues relating to refugee status,immigration, citizenship and passports (29.5 percent).(44)
The study also found great differences in legal needs depending on legal status and length of time in Canada. Among the newly arrived, refugee claimants have a desperate need to secure a legal entry into Canada. After the initial settlement period, both immigrants and refugees require assistance for a variety of situat ions including problems with unemployment insurance - especially for seasonal workers - and other government benefits, disputes with landlords or employers, and instances of racist treatment suffered by members of visible minorities. Later come concerns with citizenship and sponsorship of family members who are still overseas. Problems with the criminal law, mainly involving wife beating and charges against young people, were found almost only among those who had been in Canada for many years.(45)
People With Disabilities. For those who are disabled, wrote Judge Rosalie Abella, access to legal services is vital because it means access to the mainstream and integration.(46) It means having the possibility of enforcing equality laws such as human rights codes and the Canadian Charter of Rights and Freedoms, which require accommodations - such as ramps for wheelchair users, special telephone equipment for the deaf and hard of hearing, manuals on tape or printed in Braille for the visually impaired - to give disabled people access to the services everyone else in our society takes for granted.
The most helpless among people with disabilities are psychiatric patients who face involuntary commitment to mental institutions. The very fact that the commitment is involuntary means that there is a legal dispute between the medical personnel and the patient.(47) Often unable to voice their point of view, and label led in a way which destroys their credibility,mentally ill people need a unique form of legal aid, sensitive and very specialized.
Elderly People. By age 85 and over, so many elderly people suffer from serious disabilities that more than 40 percent of women and about 30 percent of men live in institutions.(48) Seniors in nursing homes and other group living arrangements a re very vulnerable to abuse and need someone to defend their rights. Financial exploitation by close family members is another danger against which elderly people with physical and/or mental disabilities need protection.
Quebec's Macdonald Task Force on Access to Justice wrote that people over the age of 65 were most frequently victims of financial and consumer fraud.(49) The task force speculated that this was because seniors are the least educated group in our society and the least well informed about their rights and possible re courses. It also makes sense that thieves would be particularly attracted toward persons who combine a low degree of financial sophistication with a modest, but solid bank account. Those elderly who do have savings might also want assistance to make their wills. The small number of low-income people who are interested in this service are much less likely than their middle-income counterparts to be able to use the do-it-yourself books on this subject which are found in many bookstores.
Finally, all the disadvantaged groups mentioned here could benefit
from legal actions to clarify their rights under the equality provisions of the Canadian Charter of Rights and Freedoms, which came into effect in 1985. The Charter can be used to invalidate any law or government policy or initiative which does not respe
ct the right of vulnerable groups to be treated equally.
Footnotes
Preventive Legal Aid Services
Many poor people who seek legal aid face an immediate crisis: they have just been arrested, they got an eviction notice from their landlord, their welfare payments were cut off, a judgment was issued against them, their child is to be removed from their home tomorrow, etc. This urgency is normal in criminal cases, but in civil conflicts it is strikingly different from the way better-off people operate. Higher-income Canadians involved in serious disputes typically get legal advice as soon as possible, negotiate through their lawyers before initiating any formal procedures, and agree upo n a settlement without going to court in 90 out of 100 cases.(50)
Part of the problem is that low-income persons, who have the least formal education, who often lead isolated lives, and who have usually suffered many injustices, are so badly informed they do not know or believe they have any rights. For example, poor tenants in a building whose landlord refuses to repair the furnace which has broken down in the middle of winter might not even suspect they have other options but to stop paying the rent, a course of action that will almost invariably lead them into deeper trouble. Because of this, it is essential that legal aid services have an important component devoted to outreach and public education.
Legal aid personnel can also help communities organize themselves into interest groups to defend their rights. Lawyers provide similar assistance to their affluent clients, helping to create organizations like the Canadian Manufacturers Association and the Business Council on National Issues. Low-income counterparts include associations of tenants, single-parent mothers, pensioners, immigrants, welfare recipients and homeless people. Collective actions sponsored by such groups are much more efficient. Instead of handling one or two individual cases for the least timid tenants from the building whose landlord will not fix the furnace in winter, for example, it is far preferable to have a tenants' association contact all the building's tenants and join their grievances into one powerf ul action.
Looking at questions collectively also makes it possible to develop innovative, more constructive approaches. In London, Ontario, in 1992-93, for example, the legal aid clinic was concerned that an average of 50 low-income families were being evicted from their homes every week, causing severe disruptions in their lives. In many cases, neither party wanted an eviction but it was the only solution available through the court. In the hope of finding a better way, the clinic set up a project to study the feasibility of developing a mediation service for landlords and tenants where less drastic co mpromises could be hammered out.(51)
Another type of collective approach is the test case, which is an individual legal action whose outcome can affect large numbers of people. Test cases can require considerable resources because they are often appealed all the way to the Supreme Court. One example of a test case is a challenge to the Ontario "man in the house" rule, in which the Court of Appeal ruled that a woman's social assistance benefits could not be stopped for the simple reason that she had a live-in boyfriend, when the boyfriend did not contribute to the maintenance of the household.(52) Another example is the F inlay case, in which it was argued that when a Winnipeg social assistance recipient had mistakenly been given more money than he was entitled to, the government could not deduct these overpayments later from his benefits without violating the terms of the Canada Assistance Plan.(53) Jim Finlay narrowly lost his case when four judges of the Supreme Court agreed with him and five did not.
Most important in the long term, lawyers for the poor can imitate
lawyers who lobby governments and other decision-making bodies on behalf of their affluent corporate and individual clients. Lobbying for changes in laws and programs is the ultimate preventive legal action. For one thing, as former Justice Minister Mar
k MacGuigan said, legislators obey the rule that the wheels that squeak loudest and longest get the grease.(54) If low-income people take no part in the decision-making process, more laws will get passed against their interests, making their lives even m
ore difficult and requiring even more legal services to get them out of trouble. On the other hand, one stroke of the legislative pen in favour of the poor, such as a law setting up an effective, automatic system for collecting maintenance payments, can e
liminate thousands of individual actions and significantly reduce the need for legal aid services.
Footnotes
How Legal Aid Programs Work in Canada
Under Canada's constitution, the responsibility for legal aid is shared between the federal and provincial governments. The most common justifications for a federal role in legal aid are the federal government's control over criminal law and its responsibility to enforce the provisions of the Charter of Rights and Fre edoms concerning the right to a fair trial. Provincial governments have a more global responsibility because they are in charge of the administration of justice and issues relating to property and civil rights.
In practice, the provinces (and the territories since 1971) have totally controlled the administration of legal aid programs for both civil and criminal matters. The federal government's role has been very important, however, because its financial contributions to provincial and territorial legal aid programs have gre atly affected the services provided. Federal contributions are made under two main programs: 1) federal-provincial agreements negotiated by the Justice Department, which provided for federal payments of 45 percent to 55 percent (75 percent to 90 percent for the Atlantic provinces) of the cost of criminal legal aid services which meet specified standards; and 2) the Canada Assistance Plan, under which Health and Welfare Canada (later the Department of Human Resources Development) contributed half of the cost of civil legal aid services for the needy. In the territories, the Justice Department agreements cover civil and criminal legal aid.
As a result of decisions implemented in the 1990 federal budget, the federal share of legal aid costs has steadily diminished in recent years. Payments under the Justice Department's agreements were frozen at their 1989-90 level for two years, then the cap was lifted slightly to allow for a one percent increase in eac h subsequent year. The growth in payments under the Canada Assistance Plan was limited to five percent a year for the "have" provinces of Ontario, Alberta and British Columbia. Combined with the fact that legal aid costs continue to skyrocket - rising b y 101 percent from 1988-89 to 1992-93(55) - this partial federal withdrawal precipitated a major legal aid crisis throughout the country.
By effectively eliminating its contribution to new civil legal aid expenditures in three provinces, the federal government was retreating from many areas in which it has jurisdiction, the most obvious being divorce, unemployment insurance and pensions. The main controversy is not about these subjects, however, but about legal assistance to refugee claimants and immigrants. Ontario and British Columbia, which together receive the bulk of newcomers to Canada, argue that the federal withdrawal is particularly unacceptable because most of the laws and procedures regulating immigration and refugee status determination, which can have significant impacts on legal aid costs, originate with the federal government.(56)
In addition to its regular legal aid contributions to the
provinces, the federal government runs two specialized legal assistance plans. One is the Court Challenges Program, whose purpose is to subsidize individuals and non-profit groups for test cases of national significance, mainly involving the Charter of R
ights and Freedoms. This program was abolished in 1992 but has now been reactivated. The federal government also operates the Indian Test Case Funding Program, whose goal is to fund appeals of cases relating to important, unresolved legal questions rela
ting to aboriginal peoples, such as interpretations of the Indian Act and Indian treaties.
Footnotes
Organization of Legal Aid Programs
All provinces and territories have programs under which people who have legitimate legal rights to defend or exercise must first pass a financial test, and those who are found eligible go on to receive fully or partially subsidized legal services. Apart from this basic similarity, there are enormous variations in all as pects of the various legal aid plans. They have different types of governing bodies, their financial resources vary greatly, and they use different models to deliver services.
Governing bodies. One of the characteristics most Canadian legal aid administrations are proudest of is their independence. The legal aid committee of the Canadian Bar Association described why this is important:
It is important that legal aid agencies are manifestly not the agents of government,the legal profession or any particular interest group.
They must be independent of government because it is so often on the other side of legal aid cases, be they child welfare, administrative tribunal or criminal. The legal profession should not directly control legal aid because it can too easily be seen as self interested in the level of tariffs [paid to private lawyer s] and types of delivery models... Finally, care must be taken not to have the administration of legal aid dominated by any particular faction of the community...
However, government, the legal profession and the community all have vital concerns with respect to legal aid. It follows that legal aid should be administered by independent, statutory bodies under the direction of Boards which reflect a balanced representation of the interests of government, the legal profession an d the community.(57)
In theory, all Canadian legal aid administrations except those of Ontario, New Brunswick and Prince Edward Island are run by independent commissions which operate at arms' length from both governments and lawyers' associations.(58) In practice, most commission members are appointed by the provincial or territorial gove rnments and the lawyers' societies, and some legal aid plans are less independent than they seem. In British Columbia, for example, half of the directors of the Legal Services Society are appointed by the lawyers' association (called the Law Society) and in recent disputes many people have accused the legal aid board of being controlled by the province's criminal lawyers.(59) In Alberta, the Law Society directly appoints two of the 15 members of the board and jointly appoints ten of the rest with the provincial government. In Quebec, the legal aid plan is s o integrated in the provincial public service that its commission cannot increase the plan's staff without Treasury Board approval.(60)
The least independent legal aid governing bodies are in Ontario,
New Brunswick and Prince Edward Island. Both the Ontario and the New Brunswick Legal Aid Plans are under the direct control of lawyers' associations - the Law Society of Upper Canada in Ontario and the
Law Society in New Brunswick. Prince Edward Island is the only jurisdiction whose legal aid services are not operated at arm's length from the government; the director of legal aid reports to the Deputy Attorney General.
Footnotes
Financial resources. Governments are the main source of revenue of all Canadian legal aid plans. As Table 1 on the next page shows, the federal and provincial governments account for 89 percent of all funds, ranging from a low of 81 percent in New Brunswick to 100 percent in Prince Edward Island and Quebec. Other minor sources of income of the plans include contributions from clients, shares of the interest earned by the sums lawyers hold in trust for clients, levies from lawyers, and various grants and donations.(61)
Table 1 also indicates the shares of each jurisdiction's legal aid revenues which are provided
by the province/territory and by the federal government. The federal allocation was
proportionately largest in Nova Scotia and Saskatchewan, at 68 percent and 55 percent of total
revenues. The lowest relative federal contributions were to Ontario and Alberta (both at 21
percent) and to British Columbia (24 percent). Overall, the federal government contributed an
average of 28 percent of total legal aid budgets in 1992-93. The comparable figure for 1989-90,
which was the year preceding the federal cuts, was 39 percent. Clearly, the federal austerity
measures are having a substantial impact.(62)