The People’s Court

Doctors are paid for through our taxes. Why not lawyers? Alex Hutchinson examines a case for universal legal care
It’s been an unusually invigorating year for legal reform activists. After more than a decade of neglect, what they like to call the “silent crisis” — the increasing inaccessibility of the justice system to average Canadians — has finally begun to tug at the edges of the public conscience. Newspapers are writing urgent stories about people like the Vancouver single mother who was forced to represent herself in an ultimately unsuccessful six-year custody battle with an abusive ex, because the $750 a month she earned as a part-time teacher, supplemented by subletting rooms in her house, disqualified her from legal aid. Canada’s chief justice, Beverley McLachlin, has sounded the alarm about the “epidemic” of self-represented litigants clogging the courts. And a pair of cases arguing that civil legal aid is a constitutional right have recently made it all the way to the Supreme Court, albeit with uniformly disappointing results so far. Most surprising of all, however, was conservative US radio personality Rush Limbaugh’s modest proposal, delivered during a rant about universal health care: “[If] it’s going to be mandatory, the government is going to make us go the doctor, then I have an idea,” he spluttered. “I think the government should make every American have access to a lawyer.”

In drawing this parallel, Limbaugh (who should know a thing or two about doctors and lawyers) might have inadvertently made the best case for putting “universal legal care” — an idea long resisted in Canada — on the political agenda. After all, if we think universal health care is such a bright idea, why wouldn’t the same arguments apply to the legal system? In both cases, the issue of basic access to a fundamental human right collides with the crippling cost of unforeseeable, low-probability calamities. You may not die from the negligence suit brought against you by the mailman who slips on your icy steps, but it can certainly ruin your life. Surely the least you deserve is a fair crack at defending yourself, even if you can’t afford the $60,000 tab for a typical three-day trial.

But lofty moral arguments don’t cut much ice in these efficiency-loving, tangible-results-demanding times. Those fighting to maintain medicare know that their strongest arguments come from the fact that Canada (like every other country in the world, save the Marshall Islands) actually spends less of its gdp on health care than the US does, and by many measures produces better outcomes, thanks in part to a broadly applied focus on prevention and early intervention. As strange as it sounds, legal reformers can make a similar case for universal legal care (let’s call it ulc) — one that rests as much on pragmatic considerations as it does on any national sense of altruism. That’s because a growing body of evidence suggests that letting someone’s minor legal problem go unresolved for the lack of a brief consultation with a lawyer is just as foolish — and, ultimately, expensive — as neglecting to treat a mole until it has metastasized into a gigantic, life-sucking, budget-busting ER job.

You may be under the impression that Canada already has a reasonable approximation of ulc. After all, we spent $659 million on legal aid programs in 2006–07. It is true that if you’re accused of a criminal offence that could put you behind bars and you earn less than, say, $13,000 a year (depending on where you live), you will be provided with a lawyer. Otherwise, you’re on the hook for lawyer’s fees that can average over $300 an hour, until your money runs out — which, if you inhabit the vast middle ground between dirt poor and Conrad Black, won’t take long. And if your case falls under the umbrella of civil law (you’re being sued or evicted), family law (you’re fighting for custody of the kids), or administrative law (you’ve been unjustly fired), your chances of qualifying for assistance are even slimmer. As a result, somewhere between 40 and 70 percent of trials now feature overmatched laymen bumbling through labyrinthine court procedures without the help of a lawyer.

These problems are now considerably more widespread than they were in the 1960s, when Canada’s legal aid system was created from the informal patchwork of pro bono services offered by lawyers at the time. The system gradually expanded until the 1990s, with the federal and provincial governments splitting the costs roughly fifty-fifty. In 1995, the federal government stopped matching provincial spending on civil legal aid, causing it to dwindle across the provinces. More generally, program cuts in the past decade and a half have pushed even criminal legal aid toward the bare minimum set out by court decisions.

One consequence has been an increasing reliance, once again, on pro bono initiatives, a noblesse oblige approach that critics say subjects justice to the whims of market forces; studies have found, not surprisingly, that pro bono activity increases when the legal profession is flush with cash. The number of private lawyers willing to accept legal aid cases, which pay about $80 per hour, is also dropping precipitously — a serious concern given that they outnumber staff lawyers by almost ten to one in our system. Even if the money was there, though, it’s not clear that simply jacking up fees is the right solution. A study conducted in the US last year found that private lawyers on hourly fees took longer to resolve cases, were more likely to go to trial, and once at trial were more likely to lose, earning sentences for their clients that were eight months longer, on average. And each case handled by private lawyers cost taxpayers an additional $5,800.

Of course, the current crisis is not just about cuts. “Over the last three decades, the role of law has steadily increased,” says Melina Buckley, a Vancouver lawyer and legal researcher specializing in access to justice. To a greater extent than ever before in history, our relationships with one another and with the state are regulated by law, and that carries with it an inevitable complexity that prevents us from turning back the clock to simpler, pre-legal aid days. “Just look at family law, which was virtually non-existent in the ’60s,” Buckley says. “It’s very positive that we have family law that sets out obligations upon marital breakdown. But if you can’t understand it on your own and you can’t get the assistance you need, then it’s meaningless.”

Buckley’s soft-spoken demeanour belies a fierce crusading streak that has most recently found expression on a four-person legal team assembled by the Canadian Bar Association to file a test case arguing that the failure to provide minimum levels of civil legal aid in British Columbia is a violation of constitutional rights. In late April, she and other members of the team gathered at the law offices of Camp Fiorante Matthews, a calm, carpeted oasis on the fourth floor of a modest brick building in downtown Vancouver, for an eleventh-hour strategy session. J. J. Camp, a prominent litigator (think hepatitis C and its $1.6-billion settlement) and the senior member of the team, summed up the situation: “We’ve gone down to ignominious defeat at every level,” he began, smiling wryly, “except one.” After dismissals by the BC Supreme Court and the BC Court of Appeal, the team had three days left to fine-tune its written arguments to persuade the Supreme Court of Canada to hear the case.

First filed in June 2005, the case alleges that the exclusions and restrictions in BC’s civil legal aid constitute “a systemic denial of access to justice to and systemic discrimination against Poor People.” Approaching the issue from this moral high ground — as a public-interest test case rather than a suit based on wrongs done to a specific individual — is one of the reasons the lower courts have thus far refused to hear the case. But attempts to bring individual cases to court to argue for the right to legal representation have also failed to get a hearing.

In 2003 and 2004, the BC Public Interest Advocacy Centre litigated on behalf of four clients, none of whom could afford a lawyer, who were being sued by the government for alleged overpayment of disability and income assistance benefits. One was a single father of three who was suffering from leukemia and who had developed a permanently disabling condition after undergoing a bone marrow transplant; the others were in similarly difficult situations. The government’s response: it simply dropped three of the suits and settled the fourth out of court, rendering any arguments about the constitutional right to counsel moot. “And then they wrote a letter saying, ‘Well, if you have any more clients like this, just give us a call,’” Buckley says, shaking her head. “We couldn’t believe it.”

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7 comment(s)

DouglasAugust 11, 2008 15:55 EST

In the US, all people who have been arrested have the right to an attorney and, if they cannot afford one, may have one appointed for them. These attorneys come from the Public Defenders office of the city or county in which they were arrested. The costs are picked up by the government (i.e. taxpayers). These attorneys are, in any number of cases, used as the basis of appeal when the person is subsequently charged, tried, and convicted. The cause for appeal is "incompetent counsel." I would not be in a hurry for universal legal assistance.

RickAugust 11, 2008 17:43 EST

You guys crack me up. In all fairness, it's nice to see this in print. However, everyone cries "My Rights, My Rights" and no one ever mentions the pain, sufferings, and poverty that is injected into children's lives while the "smart" people continue to think about this some more.

As managers of this country, judges and legislators suck big time.

At the very least, fast track custody cases and move divorce and divisions of property to civil court where everyone can blow their financial futures without affecting children's lives. Not to mention endangering them while their well being is been decided.

LauraAugust 11, 2008 20:04 EST

Actually, Douglas, the basis for your argument is absolutely false. In fact, only a tiny percentage of appeals are based on what the courts call "ineffective counsel" (and that's the proper term of art, not "incompetent counsel"). A claim of ineffective counsel is exceedingly hard to sustain on appeal, and most appellate counsel won't even bother advancing the argument unless the allegedly ineffective conduct is incontrovertibly egregious. And even in the tiny number of cases where the argument is advanced, the overwhelming majority of decisions reject it. So if your point is that appointing counsel is fruitless because it only begets more litigation — well, that's simply dead wrong and has no basis in fact.

ChrisAugust 12, 2008 10:38 EST

The topic of “ineffective” or “incompetent” counsel is an interesting one. I have been fighting a battle with the Canadian legal establishment that began, over eight years ago, with conduct that was much worse than merely ineffective or incompetent. My sole complaint to the B.C. Law Society elicited the bizarre response that the lawyer in question had no obligations to me whatsoever.

I have since been, of necessity, self-represented through a series of actions that have resulted in five tribunal decisions and four Superior Court judgments (the first of which was, crucially, in my favour). The legal issues now being addressed in tort are not the result of the facts of the original case. They result from my discovery that all of the previous litigation depended on statutory language that had never been debated or passed by the legislature. It is on the books (and still being used) because of a surreptitious and illegal “amendment” that could not possibly have been made without the complicity of legal establishment. For bringing this case forward, I have been deemed by a Supreme Court judge “misguided” or worse. I am appealing that outcome and will apply for leave to the Supreme Court of Canada if necessary.

Lack of competence in the legal profession is a pervasive problem. More consequential though is a lack of integrity: a lack of respect for the fundamental principles of justice, including the Rule of Law itself.

AnonymousAugust 20, 2008 09:37 EST

Universal Justice exists- but it costs money.
American Public Defenders are State Employees.
Conflict of interests occur when disputes arise
between citizens and the State. When push comes
to shove, Public Defenders protect their employer,
not their client. Do Canadians want to be American?

Francesco SinibaldiAugust 23, 2008 12:37 EST

The sensibility of a fallen desire.

The long vigils
of the night fall
on the ground
with a fine
sensibility, and
even that sunshine
invites me to cry
near the sound
of a finger: I dream
you my dear,
I remember your
fate.

Francesco Sinibaldi

AnonymousSeptember 20, 2008 17:53 EST

The article on ULC poses several interesting questions, but the inflation of numbers to justify the position are a little disconcerting. It's stated that a 3-day trial averages $60,000. If you allow for $10,000 in disbursments, that is still 200 hours charged at $300 an hour (which you can find many capable lawyers that charge less). I have heard a weeklong trial averages $30,000 from counsel I know.

Second, carry insurance, you will not have to fight the mailman who slipped on your walk if you have homeowner's insurance (it's also not the mailman suing you, but his insurance).

For avoiding costs in family law, get a prenup, don't have children, and behave like rational adult people not squabbling morons who want to spend $5000 bickering over a $2000 dining room suite.

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