Bring #RealChange to Legal Aid Funding: Make Access the Trudeau Government’s Justice Priority

The promise of #RealChange that led Canadians to usher in a new Liberal government will undoubtedly bring on a tsunami of expectations among various interest groups.  It is at that moment that politics will crash into the best intentions of the new Trudeau Cabinet.

Witness the demise of the Ontario NDP government of 1990-95, caught between austerity enforced by a crippling economic recession and public service unions who felt betrayed by the party they helped elect.  The experience scarred Premier Bob Rae’s political future.  In a meeting with members of Southern Ontario Newspaper Guild (SONG), Rae later confided during a post-mortem of his government’s defeat that his biggest challenge was to convince members of his own caucus that they were elected for the benefit of all citizens, not simply those who elected them.

Rae’s advice is ever relevant today, the first working day of a new federal government.  The Trudeau government was elected, not only by core Liberal supporters but also by disaffected Red Tories (and many Blue ones), strategically-voting NDP and Green voters and those with no party leanings at all.  Also, as a matter of democratic principle, each member of the new parliament was elected equally by those who voted for the candidates they defeated.  (A very post-Cartesian axiom that I exist because of you – the foundation of modern representative democracy.)  To these we must add those who did not vote at all, among whom are those who are trapped inside the workings of our courts and tribunals without access to legal representation.

If the new government is to make good its promise, its ministers will have to reacquaint themselves not only with the election platform, but also with the fact that the party does possess a 400 year-old general theory of government originating with the likes of Locke, Rousseau and Bentham.  At the core of Liberalism (as the name suggests) is the promotion of individual liberty.  In the United States, the longest uninterrupted experiment of the theory, Liberalism is enshrined constitutionally in the phrase: Life, liberty and the pursuit of happiness.  The opposite of liberty is, of course, incarceration.

In Liberal economic theory, this has led to partial adoption of the welfare state in order to address the effect of poverty on freedom.  Ergo, the economic policy of the new government.  But at its root is a concept of justice by which freedom opposes its deprivation.  Crown attorneys in Canada have a dual role, a prosecutorial one to protect the public from criminals, and a quasi-judicial one to ensure that accuseds are not wrongfully convicted due to the disproportionate tactical and investigatory resources of the state. Crown attorneys cannot fulfill this dual function by themselves.  For the process to work properly, people facing penal sanctions must be represented by a qualified lawyer or else they do not know what rights they have.

From my perspective as a jurist, this government’s success or failure will be measured by the way it handles the justice file.  Contrary to those who decried the absence of justice issues in the election campaign, there were many, such as the call for an inquiry into Missing or Murdered Indigenous Women and repeal or reform of Bill C-51.  To these priorities there must be added another: Access to Justice (#A2J).  The first and most important way in which the federal government can and must improve A2J is a national legal aid action plan.  Contrary to the dubious value of the previous government’s advertisement of its Economic Action Plan, promotion of an infrastructure plan based on improving the justice system would be a most welcome use of taxpayers’ money.

Just imagine, during Hockey Night in Canada, a Government of Canada ad about legal aid!

In June, 2011, I had the privilege of addressing the Council of the British Columbia branch of the Canadian Bar Association, as a member of the President’s Panel.  My topic: provincial disparities in legal aid funding.  Ontario, I pointed out, had room to improve its legal aid system, but it did fund it 40% more than B.C. did.  According to the figures available at the time, Legal Aid Ontario posted an annual operating budget of $371 million, or about $29 per capita.  In contrast, I pointed out to my host colleagues that the budget of the B.C. Legal Services Society was $75 million, or about $17 per capita.  Of these amounts, the lion’s share of the revenue side of the balance sheet of each plan’s budget remains provincial government funding, topped up by federal transfers for criminal law, the Youth Criminal Justice Act, and refugee and immigration cases.  Although it is not as easy to arrive at comparative figures in 2015, the picture I painted in 2011 remains substantially the same today.

Legal aid addresses a host of social and economic problems.  The disproportionate incarceration of First Nations and black men, the disruption of childhood by the conflicts of family breakup, and cyclical crime from the use of narcotics, are all examples of Canadian social problems that could be alleviated by greater access to a front-line legal aid lawyer.  Because of the shared jurisdiction over criminal law and family matters, A2J is a quintessential federal-provincial issue in which cooperation has been absent for many years.

As lawyers, we must appeal to the new government to address the disparity by putting legal aid on the agenda of the first ministers’ meetings, and keeping it there until Canadians see real action taking shape.  It must be an issue at the highest level, because the Ontario Bar Association’s experience in Ontario is that legal aid funding requires action not only by the Minister of Justice but also by the Minister of Finance.  It is to the Finance Committee that successive OBA presidents have made an annual pitch for improved legal aid funding.  The Minister of Justice, no matter the political stripe, rarely requires reminding of the importance of legal aid to civil society and good government.  Let us start a new era of federal-provincial cooperation by instituting a level of funding that allows a transient citizen from Vancouver’s Downtown Eastside to the same level of legal aid as a resident of Toronto’s Downsview.

As a thinking profession, we must also appeal to the new government by reminding its ministers that their party’s core principles are founded on justice.  In the text that many of us studied and debated in law school, Rawls’ A Theory of Justice, the founder of modern legal liberalism outlined the first priority of the liberal state must be the protection of fundamental liberties and political processes.  According to Rawls, this protection depends on empowering all citizens to access those protections: “It dictates that social and economic policies be aimed at maximizing the long-term expectations of the least advantaged under conditions of fair equality of opportunity, subject to the equal liberties being maintained.”*  More than any bridge, watercourse or energy pipeline, access to justice is Liberalism’s essential infrastructure of government.  Now make it so.


*John Rawls, A Theory of Justice (Harvard University Press, 1971), p. 199

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