It's justice, not charity that's wanting

by Rob Wipond, November 2010

A public inquiry is revealing how BC’s Attorney General is letting BC’s legal system plunge into disarray and widespread injustice.

Let’s throw judges, Crown prosecutors and stenographers off the taxpayer gravy-train. Victims of crimes can pay the thousands of dollars per hour necessary to take criminals to court.

Sound like an unfair, unjust and, well, hugely stupid suggestion? Then is it really conversely acceptable to stop funding criminal defence lawyers?

This question was asked repeatedly during the Public Commission on Legal Aid in Victoria in October. The province-wide Commission was launched by the Canadian Bar Association, Law Society, and other legal organizations after years of growing public concern. By day’s end, it was clear BC’s justice system is in alarming trouble.

The BC Legal Services Society (LSS), the semi-independent agency administering legal aid for people in poverty or charged with crimes, long struggled with underfunding. But in 2002, the BC Liberals cut its budget 38 percent, to $55 million. Though funding has climbed back partially to $69 million, the devastation has been much more extensive than many realize. This is because about half of LSS dollars were going to defences for serious crimes—those couldn’t be trimmed because they’re required by law. That meant other LSS services had to undergo more extreme cuts. 

As presenter after presenter to the Commission made clear, chaos has ensued ever since. 

The Law Society expressed non-confidence in BC’s Attorney General as LSS staff were reduced 75 percent, and 85 percent of legal aid offices closed. Entire categories of less serious criminal matters, including probation breaches and drug offences, were heavily or wholly de-funded, as were most family, civil and poverty justice matters. Education programs and the LawLine advice service went quiet. Payment levels stalled and lawyers began withdrawing—today, half as many lawyers provide any legal aid services as in 1996. Meanwhile, the economic downturn has increased demands for services.

The array of people being harshly affected due to the family, civil and poverty justice cuts was highlighted during presentations by organizations like Together Against Poverty Society and the Action Committee of People with Disabilities.

A tenant can’t get help preventing unfair eviction. A senior is struggling on her own to appeal pension reductions. A mentally handicapped person can’t negotiate complicated disability assistance applications; another lost control over a trust fund and can’t get help to get his money back. A woman leaving an abusive ex-husband is caught in divorce proceedings with all her assets and her children at stake, and there’s no one to help untangle the legal morass. Government bureaucracies, and BC’s many quasi-judicial administrative tribunals covering everything from employment and safety standards to hospitals and seniors’ homes, can get away with breaking the law when handling complaints, with no one knowledgeable enough around to challenge them.

Cuts are hitting First Nations particularly hard, testified Gordon Edwards from the Native Courtworker and Counselling Association, where family and poverty justice issues often intertwine with criminal ones. With no one to assist or represent them, many Aboriginal offenders have trouble understanding or following court orders, or struggle getting to court from rural areas. Consequently, failure to appear, failure to fulfil community service, breaking probation or restraining orders, and similar “breaches” have proliferated.

“Five to seven years ago, ‘breaches’ was around the number ten or fifteen [most common offence] in the province,” said Edwards. “Today, it’s number one.”

Unfortunately, those relatively minor offences often lead to costly trials and jail time, clarified Edwards, because it’s now impossible to get legal aid to help defend yourself before breach charges.

The provincial government has shown little interest in this commission, but Stephen Fudge, president of the BC Crown Counsel Association representing the Attorney General’s (AG) public prosecutors, concurred that such cuts have negatively affected “fairness, efficiency and safety” in criminal justice, too. 

The central problem? “The number of trials of self-represented persons has increased dramatically,” explained Fudge.

Typically, 80 percent of cases are negotiated outside of expensive courts. Now, said Fudge, fewer people can get lawyers, and the result is lengthier, costlier processes. Worse, most agreements aren’t worth their paper when inexpert defendants have no legal advisor. Trials frequently derail into clarifications of rights and processes, all of which must be explained on record and often cause adjournments. Even violence is increasing, said Fudge, because self-represented defendants with pre-existing troubles can descend into confusion, anger and paranoia “facing the machinery of the state alone”.

“The most egregious example” of where all this is leading, according to Aleem Bharmal from Vancouver’s Community Legal Assistance Society, is exemplified in BC’s Mental Health Review Panel process.

CLAS is funded through legal aid to represent people incarcerated under BC’s Mental Health Act. Bharmal described BC’s unusually draconian laws as giving psychiatrists so much power to indefinitely incarcerate innocent people that it “very clearly” is “unconstitutional” and a “fundamental human rights violation.” But last year alone, underfunding meant CLAS had to refuse hundreds of requests for help to appeal incarcerations before review panels. Yet if you represent yourself, said Bharmal, psychiatrists can simply declare the evidence against you is too dangerous for your mental health for you to even hear. 

“We’re all supposed to be in this to ensure people are treated fairly,” summarized defence lawyer Michael Mulligan. “But that’s not happening.”

After his presentation, Mulligan explained to me legal aid rates in many criminal matters are so low, taking such cases has become partly a charitable act. “The problem is,” he notes, “we can’t leave fairness and justice to the happenstance of people’s charity, any more than we can leave the medical care of people to hoping that doctors might be charitable.”

Does he expect the Commission’s work to help?

“Hopefully, it raises the level of public debate,” says Mulligan. “Hopefully, it would provide some baseline if somebody is inclined to take a principled position and fix this in future.”

Is the problem that legal aid has become intertwined with social services, which this government apparently hates?

Mulligan wonders too, and suggests it’s currently popular to declare oneself “tough on crime” and social assistance; however, how we treat our most vulnerable citizens and our accused wrongdoers is “a measure” of our decency and fairness. He elaborates: “The measure of somebody who’s the Attorney General ought to be, ‘How are you doing in terms of [ensuring] that people in the justice system are treated fairly?’ It’s a measure of us as a society, and a measure of the Attorney General.”

So how does Attorney General Mike de Jong measure up?

In their service plan report, the AG’s office outlines their (appallingly pathetic) 2009/10 performance targets: For example, they’d hoped 25 percent of BC adults would agree our civil and family justice system does a “good job” of “ensuring a fair process for all parties,’” and 18 percent would agree it was effectively “determining the appropriate outcomes of disputes.”

Were even those minimal targets reached? It seems the ministry chose not to participate in the most recent BC Stats survey, which anyhow “has been discontinued.” 

Nevertheless, some telling numbers remain: Between the page 13 overview and page 18 discussions of these civil and family justice performance targets, all of the numbers change; evidently, no one even bothered to double-check what the ministry was claiming its targets would be. 

And surely, that’s the best measure of de Jong and this Liberal government.

 

Rob Wipond lives below the poverty line, but still wouldn’t qualify for legal aid.