New Provincial Court Report: Fewer judges now than in 2010

The Provincial Court of British Columbia has quietly published an updated document (PDF) detailing both new judicial appointments and judges lost to the court between 30 September 2010 and 31 October 2012.

Boiling it all down, the numbers show that the court has a judicial complement of 123.80 full-time equivalent judges now, three judges less than the complement of 126.30 the court had this time in 2010, and twenty judges below the 143.65 judges the court had in 2005.

In 2010, the court published a powerful a report detailing the effects of the short judicial complement on the administration of justice, Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources (PDF), which ought to be mandatory reading for anyone with an interest in Provincial Court matters. The conclusion reached by the court is short and to the point:

"The Provincial Court of British Columbia is the only provincial court in Canada with fewer judges today than in 2005. In fact there are 17 fewer judges, and unless further appointments are made, this will result  in a loss of over 900 trial days in 2010 and over 1600 trial days in 2011.  

"To be effective in supporting the rule of law, and to fulfill its legal obligations to the public, the Court must process cases within a reasonable time. For most cases the Court is legally obligated to provide timely access and, as with other courts across Canada, seeks to manage its caseload according to accepted standards which reflect the relative public interest and priority of the different case types. 

"Given the reduction in the judicial complement the Court is unable to 'keep pace' with the new cases being presented to it. The current inventory of uncompleted cases is growing markedly, as is the delay for all case types other than youth court prosecutions. Increasingly the Court is failing to meet its legal obligation to provide timely access to justice."

The court has now released an update to the 2010 report (PDF), current to 30 September 2012.

CBABC Launches Legal Aid Campaign

The Canadian Bar Association, British Columbia branch has this morning launched a campaign (PDF) to pressure the provincial government to restore funding to legal aid. The newly-minted We Need Legal Aid website reviews some of the problems resulting from the cuts to legal aid and aims to build public support for the restoration of funding though social media.

The CBABC's effort follows up on the March 2011 release of the final report (PDF) of the Public Commission on Legal Aid, a joint project of the CBABC, the Law Society of British Columbia, the Law Foundation and other groups.

Legal aid in British Columbia is administered by the Legal Services Society, a non-profit organization funded primarily by the provincial government. The government began to implement a far-reaching series of budget cuts beginning in 2001 which have had a profound effect on the society's family law legal services (PDF), to the point where legal representation is only available where there is a safety risk, a denial of contact with a child or a risk that a child will be taken out of the province.

Please, read the commission's final report and take the time to visit the We Need Legal Aid website and get involved in the campaign.

Click on the "Legal Aid" label below for more information about the travails and tribulations of LSS over the last few years.

Changes to Vancouver Chambers Practice in Effect Monday

Chambers practice in the Supreme Court's Vancouver registry has been extraordinarily difficult for some time now. "Chambers" is where applications for orders before trial and applications for final orders on affidavit evidence are heard, and on any given day in Vancouver there might be forty or more applications set to be heard by a master and a twenty or more applications, usually lengthy ones, to be heard by a judge. However, each day only one judge and one master are assigned specifically to chambers and there's only four and a half hours in the court day!

Long wait times are nothing new but it has been increasingly difficult to get dates for lengthy chambers applications in reasonable time, and the overflow list of applications set for a specific date that could not be put before a judge or master is itself overflowing. (The court's list of available dates is publicly available on the court's website.) Opinion among the bar is mixed as to the cause, but three theories have risen to the top of the pond:

1. there aren't enough judges or masters;
2. court services is underfunded and there aren't enough registry staff; or,
   
3. the new Supreme Court Rules are somehow to blame.
   

Personally, I'm more inclined to number two; I know there are times in New Westminster and Vancouver where the court registry is drained of staff to serve as clerks in court and there still aren't enough staff!

Regardless of the ultimate cause, Chief Justice Bauman has announced (PDF) changes coming into effect in Vancouver on Monday 3 October 2011 intended to address these problems.

1. Registry staff will automatically bounce all applications where an application record is not received before the deadline prescribed in the court rules — 4:00pm on the business day that is one full business day before the date set for the hearing — rather than have them bounced by the court clerk.
   
2. Masters' chambers will be split into two lists, general civil and family law, and an extra master will be assigned to chambers when the list is full.
   
3. All applications set for judges' chambers under two hours will be sent off to Courtroom 31 to be referred to other courtrooms as judges become available, rather than having everyone mill around in the court registry.
   
4. Unscheduled applications, usually applications for short leave and for urgent orders, will go up to judges' or masters' chambers as before, but will be heard at the discretion of the presiding judge or master rather than automatically heard after short matters are heard.

I'm not sure what the practical results of 1, 3 and 4 will be, but I am excited about 2. This is the way things used to be until family and civil chambers were merged a number of years ago, and the assignment of an extra master will really help to clear the chambers lists.

Public Commission on Legal Aid Releases Report

The Public Commission on Legal Aid in British Columbia, a joint project of the Law Society of British Columbia and the Canadian Bar Association British Columbia, the Law Foundation and other groups, has released its Final Report (PDF) today.

In this report, the Commissioner, prominent Vancouver lawyer Len Doust Q.C., summarizes the history of legal aid in this province, from its establishment in the early 1970s to the critical budget cuts which began under Gordon Campbell's stewardship in 2002, the evidence gathered since the commission was established in June 2010, and finds that:

"Based on the evidence presented to me, I cannot come to any conclusion other than the services provided in British Columbia today are too little, their longevity or consistency too uncertain. This result is the consequence of the cutbacks and lack of sufficient and consistent financing, even though LSS has done its very best, and in my view has done everything possible, to accommodate the needs within their limited budgetary restrictions."

Mr. Doust reaches a number of specific conclusions about the current state of legal aid. To quote from the report:

• The legal aid system is failing needy individuals and families, the justice system, and our communities.
• Legal information is not an adequate substitute for legal assistance and representation.
• Timing of accessing legal aid is key.
• There is a broad consensus concerning the need for innovative, client-focused legal aid services.
• Steps must be taken to meet legal aid needs in rural communities.
• More people should be eligible for legal aid.
• Legal aid should be fully funded as an essential public service.

The Commission's nine recommendations are these:

1. "The Legal Services Society Act," the legislation which establishes the Legal Services Society, the organization which provides legal aid in BC, "should be amended to include a statement clearly recognizing legal aid as an essential public service."
2. "A new approach to defining core public legal aid services and priorities should be developed which merges the traditional legal categories approach (e.g., criminal law, family law, and poverty law) with an approach based on the fundamental interests of the most disadvantaged clients, where the need is most pressing and the benefit is likely to be the greatest."
3. "Financial eligibility criteria should be modified so that more needy individuals qualify for legal aid."
4. Regional legal aid centres should be established and "legal aid service delivery should be modeled on evidence-based best practices, which take into account the needs of economically disadvantaged clients for lasting outcomes and the geographic and cultural barriers they face in accessing public services."
5. "Justice system stakeholders ... should continue to take steps to expand public engagement and political dialogue on the urgent need to renew the legal aid system in British Columbia."
6. "The provincial and federal governments must increase funding for legal aid and provide this funding through a stable, multi-year granting process."
7. "The legal aid system should be more proactive, dynamic and strategic in its approach."
8. "Mechanisms to facilitate collaboration between public legal aid providers and private service providers ... should be established on both a province-wide and regional basis."
9. "Steps should be taken to develop, support, and recognize community advocates, legal advocates, paralegals, and lawyers who provide both public and private legal aid services in order to ensure the quality of these services."

It will come as no surprise to readers of this blog that I support all of Mr. Doust's recommendations unequivocally; it will also come as no surprise that Attorney General Barry Penner takes a different view, as the Globe and Mail has recently reported. The problem likely comes down to the money the federal and provincial governments are prepared to devote to the justice system versus its major funding competitors, health care, education and corporate tax cuts.

Canada's Chief Justice Comments on Access to Justice

Chief Justice Beverly McLachlin, a former luminary of the British Columbia bench and Canada's top judge since 2000, has made some important remarks about the accessibility of the justice system at a University of Toronto legal conference which have been loudly reported by the Globe and Mail and CBC.

Her Ladyship's comments were focused on the high cost of legal services, the inadequacy of legal aid services, and the monopoly lawyers have over the practice law. To quote from Kirk Makin's excellent article in the Globe:

“Do we have adequate access to justice?” she asked a University of Toronto conference on the problem. “It seems to me that the answer is no. We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able to access our justice system.”

These problems are particularly acute for middle- and low-income earners involved in family law proceedings in British Columbia. Middle-income families often wind up sacrificing the family home on lawyer's fees if a settlement cannot be reached in relatively short order. Low-income families often don't have the luxury of hiring counsel at all, and given the state of the cutbacks to legal aid imposed by Gordon Campbell's government in 2002, legal aid for family law problems is available only in emergency circumstances and for a limited retainer.

I agree with the Chief Justice's comments, but I'm not sure what can be done to correct the problem.

For low-income families, it seems imperative that full funding be restored to the Legal Services Society, but that's only a starting point and requires a very significant, if not prohibitive, budgetary commitment on the part of the provincial government.

For low- and middle-income families, I think we need to focus on two things. First, we need to have the basics of family law and family responsibilities taught in high school so that people enter the legal process from an informed position at least vaguely aware of their rights and duties as parents, spouses and litigants. Second, we need to move from the presumption enshrined in the Divorce Act and the Family Relations Act that court is the default setting for dispute resolution. Negotiation, mediation and collaborative law are generally faster and cheaper means of resolving family law disputes, and are arguably more effective in the long run; they should be where we turn first to find a resolution, and court should be reserved for emergencies, irresolvable disputes, cases involving abduction and threats, and cases involving domestic violence.

It goes without saying that more lawyers need to spend more time on pro bono clients. This however is a matter of individual choice and availability, and not an adequate reply to a problem which is fundamentally systemic.

Legal Aid News and Updates

LSS Launches Legal Advice Telephone Service (updated 24 November 2010)

On 1 November 2010, the Legal Services Society, the organization that provides legal aid in British Columbia, launched the Telephone Advice Line, rebranded as the Family LawLINE shortly thereafter, to answer questions about family law issues. The Family LawLINE is staffed by two lawyers who are available from 9:30 to 12:30 on business days. The service is intended for people who do not have a lawyer and do not qualify for representation through legal aid.

Callers must meet the legal aid eligibility criteria for legal advice, a different standard than the eligibility criteria for legal representation, and will be screened before being put through to one of the lawyers.

To contact the Family LawLINE, call:

604-408-2172 if you're calling from the Lower Mainland
1-866-577-2525 if you're calling from elsewhere

I understand that calls will not be put through after 12:00.

This is not exactly a replacement for the former LawLINE, one of the services axed with the budget cuts implemented on 1 April 2010, but it's a start.

West Coast LEAF Publishes Report

On 9 November 2010, West Coast LEAF and the Canadian Centre for Policy Alternatives published a new report on legal aid in this province titled Rights-Based Legal Aid: Rebuilding BC's Broken System (PDF). The report provides a detailed review of the funding cuts suffered by the Legal Services Society since 2002 and the consequences of those cuts, and offers some recommendations about how to fix things.

LEAF recommends that the provincial legal aid system be revamped to provide services whenever human dignity is at stake and funding a mix of specialized legal aid clinics, private lawyers paid through a tariff system and staff lawyers in community-based non-profit organizations. The report is well written and deserves a read.

LEAF's other work on family law, legal aid and legal services includes:

• Mapping the Gap: A Summary of Legal Resources for Women in British Columbia, 2010 (PDF)
  
• Legal Aid Denied: Women and the Cuts to Legal Services in BC, 2004 (PDF)
• Access to Justice Denied: Women and Legal Aid in BC, 2000 (PDF)
  

More Cuts to Legal Aid, Part 2

I have just learned that a number of family law lawyers and criminal law lawyers in Kamloops have formed a committee and voted to withdraw duty counsel services in response to the recent cuts to legal aid including the closure of their regional Legal Services Society office, and the impact the cuts will have on access to justice. The spokespeople for the committee are Graham Kay (250-374-1989) and David Dundee (250-828-9998).

The strike will begin on 11 January 2010 and affect Provincial Court criminal law matters and Provincial Court and Supreme Court family law matters in Kamloops and Merit.

Read Part 1.

More Cuts to Legal Aid, Part 1

The axe has fallen on the Legal Services Society once more. LSS, the organization which provides legal aid in this province, was first hit with funding cuts in 2002. Those cuts resulted in the scaling back of family law services and a refocusing of LSS's delivery model away from hands-on litigation assistance toward litigation advice and web- and telephone-based legal information services. On the bright side, this change resulted in a significant improvement of LSS's primary website and the development of a fantastic website on family law issues. On the less bright side, the funding of legal services for family law cases was nearly extinguished.

The new cuts will see the LawLINE advice service, the Community Advocate Support Line, and all but one of legal aid's regional offices by 1 April 2010. Although more than 50 staff members will lose their jobs and I understand that almost all of LSS's staff lawyers have been let go, LSS's executive director, Mark Benton, has said that service levels won't be affected.

An employees' group called Access to Justice has posted a news release about the cuts, a collection of links to other stories about the cuts and an online petition you can sign; please visit their website. LSS's 3 November 2009 news release is available here.

Bad News for Legal Aid

The CBC has reported that the Legal Services Society is in dire financial straits and will be slashing the funding provided for family law and criminal cases, cutting 38 staff positions including lawyer positions, and closing the Vancouver family law clinic.

This is really quite tragic, as it seems that LSS was only just beginning to recover from the devastating budget cuts imposed by Gordon Campbell's government in 2002 which saw the entire board of LSS resign in protest. Over the last few years, LSS had begun to set up new community clinics, like the one being closed, establish a new family law duty counsel program and a special website devoted to family law issues, as well as training outreach workers and community advocates across the province on family law issues and procedures.

You should expect that the axe will fall heaviest on LSS's family law programs today as it did in 2002, as the provincial government has a cost-sharing arrangement with the federal government on funding legal aid for criminal matters - in part resulting from the federal government's constitutional obligations - which is not matched in family law matters.

Update: 14 January 2009

LSS posted a news release on the situation late yesterday which gives some more details about the nature of the cutbacks. Here are the highlights from a family law perspective:

• referrals for mediation are being eliminated and extended services will be scaled back beginning on 31 March 2009
• duty counsel services will be "reduced" at "some courthouses" at some point
• 16% of Lower Mainland staff will be cut, which will result in fewer LawLINE staff and fewer staff lawyers, and the reduction of LawLINE servicefurther changes will be announced in the summer
  

Further changes will be announced in the summer.