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Law Times • march 19, 2018 Page 5 www.lawtimesnews.com Lawyers pan minister's response to legal aid study BY DALE SMITH For Law Times L awyers say that the federal justice minister's response to recommendations by a Commons committee on how to improve legal aid in Can- ada is disappointing. Federal Justice Minister Jody Wilson-Raybould tabled a re- sponse to the Commons justice committee's report on legal aid at the end of February, in which she promised more data collec- tion on who uses legal aid, but she would not commit to separ- ate funding transfers for legal aid to the provinces. The 2018 federal budget did promise more legal aid funding targeted toward asylum seekers and victims of sexual harass- ment in the workplace. Lawyers say that, although the funds help, the federal government's response is inadequate. "The government continues to be unresponsive to the issue that many Canadians don't qualify for legal aid and they can't afford legal representation," says Karin Stein, a lawyer with Carroll & Wallace Barristers in Ottawa and vice president of the Defence Counsel Association of Ottawa. Stein adds that legal rep- resentation is not only import- ant for serious offences but also smaller ones that can have huge impacts on peoples' lives and could keep them out of the jus- tice system. Avvy Yao-Yao Go, clinic dir- ector of the Chinese and South- east Asian Legal Clinic in To- ronto, says she thinks it's a good development that the federal government stated the import- ance of collecting data, espe- cially data segregated by race, gender and social demographic data. "That's an important improve- ment," she says. Go says this will help form future policy because it will give a sense of how accessible legal aid is to communities that are marginalized because of low in- come, gender or race. In her response to the com- mittee's 10 recommendations, Wilson-Raybould wrote that her department was acting on better data collection in collab- oration with Statistics Canada and engaging with provincial and territorial partners on best practices to enhance service de- livery. On the recommendation that legal aid be separated from the Canada Social Transfer to the provinces and territories, Wil- son-Raybould was resistant. "Government is commit- ted to maintaining the current structure of the CST, under which provinces and territories are free to spend the funds ac- cording to their own priorities," wrote Wilson-Raybould in her response. Regarding the recommenda- tion that the federal government increase its funding contribu- tion to provinces and territories for legal aid, Wilson-Raybould noted that it "would incur sig- nificant costs and requires further examination given the recent federal commitments to criminal legal aid and immigra- tion and refugee legal aid." The committee report noted that because Legal Aid On- tario allowed for Aboriginal self-identification with legal aid requests, it was determined that 15 per cent of legal aid cer- tificates in the province were issued to clients who self-identi- fied as Aboriginal. Regarding the other areas of the minister's response, Go says it seems to largely be justifying what is already being done. "I acknowledge that they have increased the budget for legal aid, but we know that there is a big gap between the funding re- ceived by legal aid and the actual need in the low-income popula- tion," says Go. "Even in Ontario, with the increase in funding, we know there are people who can't access legal aid, particularly for [the] civil law area." Go says family law is one of the most pressing needs, par- ticularly in cases of domestic violence, which the budget has not addressed. She notes that while some family law lawyers will accept legal aid, the number that can serve clients in the lan- guages spoken by her commun- ity is very small. The 2018 budget committed $12.8 million for legal aid for asylum seekers and $25.4 mil- lion over five years for victims of sexual harassment in the work- place. Stein says she is unclear as to how the funds for sexual ha- rassment victims will be em- ployed for complainants in sex- ual assaults and how they will qualify for funding. The funds for asylum seekers will be used by some members of her community, Go says, point- ing to refugee claimants from China, but she also points out that it will largely address the in- f lux of asylum seekers who have been crossing the Canadian border illegally. Those funds may stop the crisis from getting worse, Go adds, but it doesn't address the problems with the core funding of legal aid. "Ontario already has the best legal aid system in Canada, and we're still seeing problems," says Go, pointing out the commun- ity legal clinic system like the one that she runs. "You can imagine some of the provinces are worse." Graeme Burk, spokesman for Legal Aid Ontario, says the "measures proposed in this year's federal budget will enable us to continue to assist two client groups who are extremely vul- nerable. "There's no denying that this is a good thing," he says. Burk says that LAO agrees with the minister that there is a place for innovation and that it remains committed to working with law schools and continu- ing to develop specialized legal clinics. "Our chief concern is with the transfer payment of provin- cially delivered services such as civil legal aid through the Can- ada Social Transfer," says Burk. "Along with other legal aid plans in Canada, we believe that there needs to be a cost-sharing agreement on civil legal aid in the same manner as for criminal and refugee payments. This would ensure greater transparency and accountability for everyone." Go believes the recommen- dation around changing the CST is important because it will help address those provinces that haven't invested in their legal aid systems. "While the current Ontario government has been respon- sive to the needs of low-income people, including the needs of access to justice, who's to say the next government will be equally responsive?" says Go. "That's why it's important to look at structural issues like the CST, so that we have some kind of a basic standard that would apply to all provinces and terri- tories, regardless of which party is in power," adds Go. Stein says she was struck that there wasn't a commitment to better consult with prosecutors and the criminal defence bar to get the first-hand impact of what the lack of legal representa- tion has on the justice system. She adds that while more legal aid funding is always neces- sary, there should be a greater emphasis on addressing some of the root causes, such as man- datory minimum sentences, which are ensuring that more issues go to trial. "There are certainly a lot more cost-effective means at their disposal to keep the costs of the justice system down," says Stein. LT NEWS Avvy Yao-Yao Go says while some family law lawyers will accept legal aid, the num- ber who can serve clients in the languages spoken by her community is very small. The government continues to be unresponsive to the issue that many Canadians don't qualify for legal aid and they can't afford legal representation. 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