Ian Mulgrew: Lawyers threaten strike over 'crippled legal aid
system in B.C.'
"This job action will be neither nuanced nor limited ...
These are not times of austerity."
Legal aid lawyers across B.C. have threatened to withdraw services April 1,
potentially leaving clients and criminal defendants without representation and
the courts in chaos.
In a submission to Attorney General David Eby dated Feb. 15 and obtained by
Postmedia News, the Association
of Legal Aid Lawyers said the strike was necessary because the rule of law
was threatened by the chronic underfunding of services for the needy.
Titled “Restoring Funding to Legal Aid,” the 72-page brief suggests six options
ranging from a $27 million band-aid to adding $114 million to return financial
support to levels enjoyed by the Legal
Services Society in the 1990s.
“A.L.L. is hopeful that through negotiation with government, adequate funding
for legal aid will move beyond being a subject for discussion and become a
reality,” the document stated.
“However, our directors have recommended to our 475 members, in the event
provincial funding is not immediately significantly enhanced, we should commence
withdrawal of our legal services on April 1, 2019.”
Members will soon vote on the job action, the brief noted.
“Based upon our polling of our members, feedback at community meetings, and
communications directly from members to A.L.L. and its Directors, we have
assessed that there is a high degree of support for a very strong job action,”
"A previous more nuanced and limited withdrawal of services in 2012 ...
failed to achieve the goals of its members. Those lessons have been learned.
This job action will be neither nuanced nor limited ...
Restoring Funding to Legal Aid"
“A previous more nuanced and limited withdrawal of services in 2012, organized
by a predecessor organization, failed to achieve the goals of its members. Those
lessons have been learned. This job action will be neither nuanced nor limited.”
A spokesman for the attorney general said the ministry would be “engaging with (A.L.L.)
to discuss their proposal.”
A spokesman for the group, Vancouver
lawyer Richard Fowler said underfunding damages public confidence in the
system, imperils fair-trial rights and impedes the ability of lawyers to work in
a manner that accords them the support and respect they deserve.
“All or nothing!” he quipped. “As lawyers, we take an oath to uphold the rule of
law and access to justice and legal aid are fundamental components of the rule
of law. We have an obligation to do something. The government isn’t doing
something so we have to do something. At the end of the day, it’s a complex
issue. Every lawyer will have to make their own independent assessment.”
He presumed the group wasn’t expecting the government to immediately write a
cheque for the full amount, but it was looking for action.
“A.L.L.’s membership has come together in solidarity with the dedicated purpose
of achieving change,” said the brief.
“That change must be significant, and it must come soon. These are not times of
austerity … The fiscal situation of the province is such that there exists no
reason to defer what must be done.”
The provincial contribution to L.S.S. in 2017/18 totalled $76,548,645, and to
match 1994 funding levels that would have needed to be $208,235,811, the lawyers
In 2002, L.S.S. funding was $88,776,475 — a level of support that would require
$145,885,265 today to keep pace with inflation and population growth.
B.C. ranks 10th of the 12 provinces and territories in per capita legal-aid funding
— the average (including federal contributions) for 2016/2017 was $23.98; B.C.’s
was $15.97. In 1992/1993, it was $25.22 — $39.72 in equivalent 2018 dollars.
“When fiscal times have been lean, (funding) cuts have been savage,” the
submission asserted. “When fiscal times have been bounteous, cuts, as well as
the slow strangulation of budgets that do not increase to reflect population
growth or the increasing costs of living, have been the rule.”
Indigenous people have been especially hard hit — although they number less
than five per cent of the population, they make up 60 per cent of the 7,200 kids
in care and a third of legal-aid criminal defendants.
The lawyers are particularly peeved because Victoria received more than $210
million in PST from their clients in 2017 while contributing less than $75
million to legal aid.
They have seen a pay raise only once since 1991 — a 10 per cent hike in 2006,
lifting the $80-an-hour tariff to an average of $88 an hour.
By comparison, Crown counsel wages have increased 111.3 per cent since 1994 and
the average weekly wage jumped 62.3 per cent.
A 46 per cent hike in their rates, the lawyers noted, would represent only “a
relatively modest increased level of tariff funding.”
Most importantly, the beggaring of legal aid means few qualify and, even then,
only for criminal support.
For example, a take-home income of more than $1,580 a month — $19,000 a year —
is the cutoff for a single person, the submission said.
There is scant chance of receiving support for family, refugee or a child
protection case unless there is violence, the government is trying to
permanently remove the child, or some egregious factor exists. Poverty law
services are defunct.
Although Eby received a review of legal aid last month, he has not responded and
the lawyers were dismissive of the three-month, one-person study.
“An approach that tinkers on the margins amounts to no more than rearranging the
“We are living with the shame of a crippled legal aid system in B.C.”
The number of legal aid lawyers has declined dramatically from about 1,500 in
1991 to 1,038 in 2017, notwithstanding the bar grew in that time from 7,201 to
The average income of the 650 doing criminal files was $46,325 (the median
$25,184); for the 520 family lawyers it was $21,050 (the median $11,775); for
the 39 child protection lawyers, it was $15,605 (their median $7,994), and for
the 90 immigration lawyers, the average was $18,163 (the median $8,314).
Of the roughly 1,000 taking legal aid cases, 911 earned less than $99,000 from
the work, and 669 less than $50,000.
Society of B.C. issued a seven-page ethics opinion on the withdrawal of
legal aid and duty counsel services in December — updating the regulator’s
previous advice that predated the leading 2010
Supreme Court of Canada decision on the issue: “Lawyers should always be
aware that discussion of such questions with Benchers, Law Society practice
advisers, or other experienced and trusted colleagues is the approach most
likely to identify a reasonable course of action consistent with lawyers’
ethical obligations, including whether or not to withdraw services.”