Fight to Restore Funding to Legal Aid
Presentation on the need for the return of money to Legal Aid in Canada
To Hon.A. Mclelland
by 60 Canadian Equality Seeking Women's Groups
September 18, 1997
Ottawa, Ontario
Legal aid is a women's equality issue. It's a fundamental component of equality before and under the law.
It is your responsibility as the Minister of Justice, and as the Chair of the Social Union Committee to take responsibility for this massive problem.
Criminal legal aid which your department funds is now only available for those individuals who face the threat of incarceration. If an equality analysis had been undertaken before this decision were made, you would have known that this decision would have disproportionately negative consequences for women.
Women are more likely to be charged with offences for which incarceration is not the penalty. So for them, the penalty of a conviction is not incarceration which triggers entitlement to legal aid. It is the loss of their children, the loss of their ability to find work, and the prospect of almost certain incarceration if they come into conflict with the law again. And this is occurring at a time when we are seeing an increasing criminalization of women's attempts to protect themselves, their children and their records. Unrepresented individuals are more likely to be convicted, more likely to receive stiffer sentences.
This Department must take responsibility for this violation of women's equality and liberty interests. Criminal legal aid is badly underfunded.
In terms of civil legal aid, having a financial need for civil legal aid is no longer the criteria for receiving legal aid. Lots of Canadian women are financially eligible but can't get legal aid because they are not deemed to be sufficiently "at risk".
We consider this to be a hideous standard. It means that women have to get the shit beat out of them before they can access legal aid.
Even at that point, in some provinces they are being turned down for legal aid because their abuser has not been convicted; or they are getting legal aid but they are required to mediate their legal issues with their abuser, or they get legal aid but the cap on hours means that their legal interests are being badly compromised; legal aid was meant to avoid a 2 tiered system of justice: one for those who could pay and one for those who couldn't.
What we now have is: unfettered access to lawyers for rich people, compromised access to lawyers for those who are in danger or "at risk"; and no lawyers for every one else.
In 1997 more and more Canadian women are in court unrepresented. This is the canary in the coal mine the sign of system breakdown. To give you a clear understanding of how far things have deteriorated across the country here are some examples:
- immigrant women, whose sponsorship is withdrawn by a spouse (very often after incidents of abuse) are being denied coverage for an application to vary the terms of their immigration status, and as a consequence are being deported.
- rural women's access to legal aid coverage in 1997 in their own community is almost non- existent.
- women in Ontario report getting inaccurate information from Legal Aid ie "there is no coverage unless the father has threatened to abduct the children", or "only if he is convicted of assault."
- absurd caps and restrictions on family legal aid coverage have meant women are without counsel half-way through family law proceedings, where custody is an issue.
- in Alberta your province, there was a 42% decrease between 1994 and 1996 in civil legal aid certificate granted for divorce matters. 3494-2041
- there is no guaranteed legal aid coverage anywhere for welfare appeals, tenancy issues, WCB, EI or other poverty law cases - which deepens the financial crisis for poor women . Their cases and claims are never heard.
- Refugee women when making claims of gender persecution, are being denied legal aid coverage for their residency applications.
- even when there is coverage for refugee claimants, the tariffs are so low that lawyers simply refuse the cases
- when coverage is granted, the time-limited certificates expire. Women are forced to reapply again and again because of delays in the hearing process not in their control.
- there is no coverage to seek division of marital property and no coverage to pursue civil assault claims for sexual abuse cases.
- user fees of $25. in many jurisdictions are proving an effective barrier to access for many poor women.
- There are so many more examples we have heard - these are but a few. They draw an alarming picture of women being systematically deprived of legal entitlements and protection of law.
The introduction of the Canada Health and Social Transfer- over our objections- has meant that women's civil legal aid needs are up for grabs.
The federal government's priority has been to provide stable funding for criminal legal aid but not for civil legal aid.
Not only does this mean that the government has not protected women's equality interest, but through these funding decisions, it has further entrenched disadvantage for women.
Your responsibility as the Minister of Justice is to uphold women's equality interests. Upholding these interests, means not limiting the definition of "liberty" to the threat of incarceration. It means recognizing that women's "liberty"interests include being able to provide shelter, food and clothing for the children and the elderly relations for whom they are most often responsible. To obtain their "liberty", legal aid services must be made available to enable women to pursue their claims for child support, custody, access, spousal support, and for their claims of support from the state for such matters as social assistance. They also require legal aid in order to participate in public enquiries.
For women in conflict with the law, "liberty" also requires legal aid services for conditional release hearings, judicial review applications, and hearings before the parole board.
The definition of "security of the person" should include women's right to be free from violence in their home, on the street and in institutions. They are vulnerable because the state has failed to protect them. legal aid should be available to women to obtain restraining orders, peace bonds, and orders for exclusive possession of the home in order for them to secure their physical safety.
Funding for legal aid should also be extended to all cases in which the state is colluding against women. This includes funding for child apprehension cases, immigration and refugee cases and mental committal proceedings.
Women's greater experience of poverty is linked to the economic devaluation of their work inside the home, and their experience of discrimination in the paid workforce. They should therefore receive legal aid coverage for those problems arising from this experience of disadvantage. So, in addition to the need for coverage for legal problems arising from marriage breakdown, they should also receive coverage to pursue employment-related claims of discrimination, such as sexual harassment, pay equity, and employment equity.
Legal aid should also be available to permit women to challenge the bias which you have acknowledged to be present in the justice system, including substantive and procedural law bias. The "merit" test used to assess coverage for legal aid matters should be broadened to include the challenges to this bias in the justice system.
The federal government has an obligation to undertake extensive consultation to assess women's legal aid needs. Such a consultation should take full account of the diversity of women's experiences, and should use the results of this consultation to guide the creation of enforceable national standards in respect of civil legal aid coverage.
Finally, it is not acceptable for this government to hive off its responsibility for women and to wish us good luck dealing with the provinces.
We want more funding for criminal legal aid so that women can protect their liberty.
We want a new and stable fund of money for civil legal aid and we want that to be the responsibility of the Department of Justice.
You are the Minister of Justice. It is your obligation to protect our equality rights and we are expecting your commitment to take leadership for legal aid.