Access to Justice

Access to legal aid facing challenges

From the Kelowna Capital News

The office of a non-profit organization that provided legal advice to those in Kelowna who could not afford it will soon be closed.

The closure is the closest visible sign of a wider collision between an increasing demand on legal services and a decline in the ability to pay for them.

The Legal Aid office in Kelowna is located1664 Richter St. It is one of the most recent victims to fall to budget cuts within the non-profit Legal Services Society.

Similar regional offices in Kamloops, Prince George, Victoria and Surrey along with the Justice Access Centre in Nanaimo are also on the chopping block this year.

The offices are currently scheduled to close on April 1. The cuts affect four positions in Kelowna and six in Kamloops, a mixture of staff lawyers, paralegals and administrative support staff.

The Justice Access Centre provides legal information and advice to people involved in separation and divorce.

This spring will also see the end of the civil LawLine service and the Community Advocate Support Line.

LawLine is a telephone service designed to help low-income B.C. residents who do not qualify for a legal aid lawyer.

Operators provide advice on debtor’s assistance, employment and family law, health, estate law and seniors issues, housing law and income security law-related issues.

The Community Advocate Support Line connects advocates with a lawyer who will provide legal advice, coaching and information to help them in their work on behalf of clients.

These telephone legal advice services are both scheduled to end on March 26.

Legal Services Society communications manager Brad Daisley said the society is in the process of hiring local agents.

Those agents are intended to fulfill some of the duties office staff currently do, including the provision of intake services to enable local access to legal representation, providing public legal education and information, providing legal advice, engaging in outreach and liaison activities with community, Aboriginal and legal groups and scheduling duty counsel.

Daisley noted that expressions of interest have been received from those wishing to become local agents, and will continue to be received up to Feb. 15.

According to the society’s estimated timeline, the agents would be hired, trained and start offering services byMarch 29.

Legal Services Society executive director Mark Benton noted the cuts are the by-product of the financial equivalent of a “perfect storm.”

He pointed out that as the recession began to occur, falling interest rates dropped and took with them the interest-based funding the LSS receives from trust accounts.

Benton added that two years ago, the LSS received $3 million just from the Notary Foundation, and this year the expectation from that funding source has been reduced to $200,000.

“It’s a very steep decline, and we were running a lot of our discretionary programs from that funding.”

Benton said funding from the Law Foundation takes the form of an annual grant, which the LSS continues to receive even though the foundation is currently running into deficit spending.

He pointed out the government delivers more than 90 per cent of LSS funding and continues to maintain their level of delivery.

“What we also saw as the recession started to set in was a very marked increase in the demand for legal aid.”

Benton noted rising unemployment made more people eligible for legal assistance. He added that when there is fiscal stress in the economy, that stress is reflected in domestic relationships.

Benton said the LSS has seen a 20 per cent increase in the demand for family law services.

“Our core funders, not withstanding their commitment, have been hard-pressed to maintain funding.”

Benton said a third dimension of difficulty is added by the LSS no longer being allowed to operate at a deficit, when the society had been in deficit spending for the past two years.

“Right now, we are projecting a multi-million dollar operating deficit. We need to balance that budget for next year.”

Benton said the situation spurred the LSS to look carefully at its long-term plan and put limits on the amounts of service provided.

He noted the society’s principle focus now is on maintaining services and reducing administrative costs.

Benton said these reductions have applied to a simplified billing system for lawyers hired by LSS and also to a look at how the society operates its legal aid application process.

He pointed out that moving the process to the province-wide call centre was the cheapest way for the LSS to process applications from people seeking assistance.

“They could apply either through the local agent or the phone service, but the phone service will be the predominant way.”

Benton added that the move frees up funds from administration and allows the LSS to put the money into services.

He noted the move to close regional offices and employ local agents freed up more than $1 million.

Benton said the LSS looked at the range of services provided and realized it needed to be realistic about revenue and service demand.

“Our vision of returning to the legal service model of before 2002 was not something we could realize in the future.”

Benton noted that such a return would require tens of millions of dollars from government and private sources.

He said the LSS has restricted its focus to legal aid in criminal, family, immigration and mental health matters.

Benton pointed out narrowing the focus of services provided allows the society to do the best it can with the resources it has.

He said an increasing body of social science research notes timely advice on legal problems can help avoid costs incurred on social services.

Benton added that the LSS does not believe that government and private sources will be able to financially provide those services in the current economic climate.

“I think there’s a much broader need for legal aid, but realistically we have to focus our services on where we can make a difference and where our government sets its priorities.”

Benton pointed out the LSS receives no government funding for civil law services.

He said he had no doubt that there would be exceptional service from local agents in Kelowna, but they would not match what was available from the Legal Aid office.

He added that the closure was no reflection of the calibre of the people working there.

The Kelowna law courts are the proving ground for one of the society’s pilot projects to improve the delivery of duty counsel services.

Benton noted that the pilot project involves a single duty counsel lawyer dealing exclusively with minor criminal offenses such as breaches of probation or failures to appear in court.

He noted this is one of the areas where the LSS had limited service in criminal law due to budget constraints.

Benton pointed out that national statistics show such minor offenses as the fastest growing area of criminal offense, with a similar trend reflected in B.C.

He said the final report on whether having a dedicated duty counsel for such offences is more effective.

He noted costs are not reduced, but it may be a more efficient way to operate and enhance the level of duty counsel available.

“We obviously believe this helps the court as well.”

B.C. Ministry of Attorney General public relations officer David Townsend said the decision to make the cuts was an internal one, made by the Legal Services Society.

He noted that the LSS does receive government funding from the ministry, but that funding has not been cut.

The NDP’s critic for the attorney general ministry, MLA Leonard Krog, said it is typical for the government to pretend they have no responsibility for anything they fund.

He pointed out that the bulk of the budget for the LSS is provided by the ministry of the attorney general.

“The money that comes from the Law Foundation and the Notary Foundation is drying up, but the mandate to deliver legal aid is still the government’s responsibility,” he said.

Krog added that the current Liberal government had already cut the legal aid budget by more than 40 per cent after being elected.

He also doubted whether replacement services instituted by the LSS would be able to fill the gap.

“I don’t think it’s going to be a cost-effective service, and the lawyers going on strike in Kamloops tells you what the legal community thinks of it.”

A group of Kamloops lawyers withdrew all family and criminal court duty counsel work beginning Jan. 11 in protest of the cuts.

Krog noted the seven per cent legal services tax brings in more than enough money to fund Legal Aid, but he said portions of the tax are diverted into general government revenue.

“The fact is that we’ve starved the legal aid system around the province.”

While access points to legal assistance are being reduced, the demand for those services continues to increase.

Elizabeth Fry Society agency coordinator Aimee Thompson said the closures will affect the amount of legal assistance available to the society’s clients.

The Elizabeth Fry Society is a non-profit organization that works primarily with women involved in the justice system.

The organization also operates a sexual assault counselling centre and works with women who become involved in all forms of violent situations.

Thompson said Elizabeth Fry staff have found that when women are at the contemplation stage of leaving a violent domestic situation, they want to find out what their rights are or ask for more information about family law.

She said a number of the women are referred to Legal Aid or to the Lawline telephone service.

Thompson noted that staff also use the Community Advocate line to get more specific legal information or to get advice from a lawyer.

“There are alternatives, but they’re not going to be funded and have the same kind of mandate that Legal Aid had,” she said.

Thompson noted that the EFS has contacted several other legal organizations in an attempt to find alternate sources, but pointed out that access to Legal Aid and the Lawline telephone service has helped streamline a legal process that people often find confusing and frustrating.

She said the LSS previously saw resources cut in 2002 and thought services would be rebuilt from there, rather than suffering further rounds of cuts.

“My sense is that we are going through a phase of much more deprivation and punishment.”

She noted there is a reliance on the criminal justice system to provide counselling and assistance after people have gone through it.

“I think we should all be concerned that our most vulnerable citizens are being scooped up by the criminal justice system and criminalized before they have access to social and justice services.”

Thompson said the effects of the work of local agents being hired as replacements will depend on the individuals hired.

She noted that a Legal Aid outreach worker currently attends a local committee to create change for women experiencing violence.

Thompson pointed out one of the valuable pieces of work performed by LSS employees is delivering direct information to citizens and being part of community efforts.

She said the local agent may see the community contact as valuable and provide time for their staff to do that work, or may decide it is not something mandated within their contract with LSS.

Thompson’s hope is that the LSS will select someone who would like to maintain current services.

“We kind of have to have faith that the Legal Services Society will continue to meet its mandate.”

Still, Thompson added that the LSS would be doing so with decreasing resources and an increased demand on its services.

For advocates working for the Elizabeth Fry Society, the Legal Aid office and telephone service closures will mean more time needed to acquire basic legal information.

“We do provide that information, but we can’t do it all.”

Thompson has been with Elizabeth Fry for eight years and has seen the increasing demand on legal services.

She noted that new client request intakes have more than doubled in the past year.

Thompson added that the numbers of women being charged in domestic violence situations have also increased, as have the general numbers of incarcerations.

She pointed out that with less access to legal aid, more people are pleading guilty than would have if they had professional assistance.

The ramifications of the guilty plea in a domestic violence situation continue beyond the initial sentence.

Thompson pointed out that any record of domestic violence will affect that individual’s future, including the custody of their children if they have any and the degree of their further involvement in the family law system.

“You end up having a person in a very stressful situation, getting snared in these processes.”

Thompson noted that some of these situations could be resolved by not charging people in the first place but getting them the help they need and making their rights known to them early on.

“I think Legal Aid has tried to do that, along with others.”

She pointed out the cuts ultimately increase the burden on remaining providers, a burden that cannot help but increase when staff that deliver a service are removed.

Thompson noted the provision of legal aid is necessary.

“These are people’s rights, these are Charter rights that people have access to. We want people to have participatory access to the justice system if they need it.”

Kelowna Women’s Resource Centre coordinator Micki Smith also expressed concern about the closures.

Smith noted many of the services the regional office provided will no longer necessarily be available.

She pointed out the streamlining of the application process may shut out applicants who would only be eligible for legal assistance on closer examination of their situations.

“There are a number of situations where on the surface it might appear that someone might not be eligible for legal aid.”

Smith added that if more time is required to determine someone’s eligibility, she was concerned about those people having access to legal assistance.

She pointed out that a person could be on a criminal charge but may not necessarily be eligible for legal assistance if it does not appear they would receive a jail sentence.

Smith gave the example of a woman with a severe mental impairment who was told she would not be covered by legal assistance because she would not receive jail time.

Smith noted the woman would still garner a criminal record. She added that the woman was fortunate enough that a staff lawyer from LSS was available during the time when she showed up to court, but gaining that assistance was a matter of luck and good timing.

“It’s concerning that people are not going to have that.”

Smith noted that community advocates do not have the legal expertise to fill in the gaps.

She pointed out that local advocates are inundated with cases, despite their lack of formal legal training.

“It’s going to be really challenging. As advocates in the community, we need to have access to legal help as well.”

Smith noted that legal services have been denigrated since the mid-1990s, making it harder for people to ensure their rights are protected.

She said people should have access to good legal counsel but she anticipates that more people will have to represent themselves in court.

“I anticipate judges are not going to be happy. The court systems are already backed up, I can’t imagine how much more it’s going to be backed up if people have to represent themselves.”

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