Legal Aid's Coming Denial of Service

The government-funded agency that provides legal aid in British Columbia is advising its lawyers not to book any hearings for criminal and child protection cases in the last six weeks of the fiscal year because it is running out of money.

"Because some very busy courts are about to set hearing dates for that time period, we strongly recommend that you avoid booking hearing dates for your criminal and child protection cases or doing any hourly paid legal aid work from February 17 through March 31, 2014," says a Sept. 4 Legal Aid Brief to lawyers from the Legal Services Society (LSS). "You might consider booking hearings for your non-legal aid cases in this period."

A spokesperson for the LSS said the recommendation is being made out of caution while the agency continues negotiating with the provincial government for more funding. LSS chief executive officer Mark Benton was unavailable for an interview by publication.

"It is akin in the health care sector to saying 'Don't book any surgeries in February or March, because we're short of money and we're going to shut the Nanaimo Regional Hospital,'" said Leonard Krog, the BC NDP's critic for the attorney general. "Imagine the outcry."

Legal aid provides funding for lawyers in certain kinds of cases for people who can't afford to pay their own way. Krog said it has been hammered by the government for the last 12 years, but that talking about making the service unavailable is unprecedented.

"It's hard to believe in some respects that's the state we've reached. The fact this is being contemplated tells you how dreadful things have become."

'Factors outside our control'

The LSS is short $2.5 million for criminal cases and $500,000 for child protection cases, according to a brief from Benton in the newsletter.

"What is unusual this year is that while we have had a 12 per cent increase in referrals for child protection cases, the demand for criminal legal aid has not increased and yet criminal tariff costs have gone up," the newsletter said.

"Over the past several months, we have determined that this increase is driven by external factors outside our control," it said. "These factors include federal legislative changes such as the Safe Streets and Communities Act, the Provincial Court backlog reduction initiative, and renewed capacity in the Provincial Court due to the appointment of judges and prosecutors."

It now takes about half as long to get a case to trial in many of the province's courts than it did before, it said, so the LSS is receiving bills sooner. "As a result, LSS is paying for more services this year than we had budgeted for. Another way to put this is that this year, we expect to receive about 58 weeks of bills for services provided in 52 weeks."

The situation will stabilize in a few months, but the LSS is legally required to balance its service costs with its revenue each fiscal year, meaning it is unable to bump the increased costs ahead to when things even out, it said. It also has to bill for services in the fiscal year they are provided.

The newsletter said the LSS has been discussing the problem with the B.C. Ministry of Justice since May, raised it with Attorney General Suzanne Anton in July and discussed it with Chief Judge Thomas Crabtree in August. Discussions with Anton continue, and the LSS board expects to meet with her again in late September, it said.

The board is looking at ways to reduce service costs for criminal and child protection cases, but is waiting until after the next meeting with Anton before making a final decision.

Gov't helping with budget: Anton

The LSS's contingency plan is to cut service from mid-February until March 31, 2014, according to the newsletter. "LSS would continue to take applications and issue referrals, and we would have the discretion to authorize payment in cases where there is exceptional risk to the client, but as a general rule, we would not pay for the majority of criminal or child protection services provided by counsel during this period."

The Tyee asked the Ministry of Justice for an interview with Anton or someone else who could provide an update from the government's perspective. A spokesperson sent a statement by email, attributed to Anton. It noted her July and upcoming meetings with the LSS and said "they are working closely with the staff in my ministry to manage their budget."

The government is providing LSS with $72.5 million to deliver legal aid and it is "a government priority to balance the budget, and all the branches within my ministry are working extremely hard to ensure that they stay within their budget," Anton's statement said.

"We are focused on timely and accessible justice, and legal aid is an essential part of providing justice to British Columbians," it said.

Krog said the province has a moral duty, and likely a constitutional duty as well, to provide legal aid services to people in need.

The government may view the threatened service freeze as a negotiating tactic, but it shows how serious the situation is, he said. "The fact this is being contemplated tells you how dreadful things have become," he said. "You don't resort to this kind of stuff unless things are pretty desperate."

The legal aid system gets $20 million less a year now than it did 12 years ago, without even factoring in increased pressure from population growth and inflation, Krog said.

People expect government services to be available year round, but there may be less of an outcry from a freeze on legal aid than there would be from shuttering a hospital or temporarily cutting the electricity supply from BC Hydro, he said.

"The percentage of the population who are going to rely on legal aid in a given fiscal year is smaller than the population that will rely on health care or public education," he said. "The government is causing pain to a small population because it believes it can get away with it."

There's still time to find a solution, Krog said, but he warned, "If they don't solve this, the public relations consequence will be significant," as will the consequence to people who need the service.