Women’s Rights to Public Legal Representation in Canada and Manitoba
Executive Summary

June 2002

Background

The Canadian legal system is in a state of crisis. Across the country, inadequate legal aid funding — both criminal and civil — means that the most disadvantaged Canadians in our society lack access to our judicial system. Current statistics support that Canadian women are the poorest of the poor at every level. Single mothers, immigrant women, elderly and disabled women and aboriginal women experience shocking levels of poverty. Women’s work is undervalued and women perform a disproportionate amount of unpaid work caring for children, the sick and the elderly. This further perpetuates the cyclic cycle of the feminization of poverty.

The current legal aid system was designed predominately by men from the male experience. It fails to accommodate women’s special needs and life experiences. The current system prioritizes serious criminal matters where there is a likelihood of incarceration, which primarily provides a benefit to Canadian men. The statistics speak for themselves:

• 58.11% of total legal services in Manitoba are used by men and males participation at every level is increasing while women’s participation is decreasing.
• 82.32% of criminal certificates are issued to men, while only 17.68% of criminal certificates are issued to women.
• Manitoba, similar to other provincial jurisdictions, currently has a statutory requirement to prioritize criminal law over civil and family law. 34.7% of employed Manitoba women work in the sales/service sector where bonding is usually required, as opposed to 20.9% of males. Being convicted of a lesser criminal offense often results in women losing their livelihood. When budgets are cut, women are hurt the most.
• Lesser criminal matters and important civil matters such as child protection and custody and support and protection for women suffering abuse are often not covered in provincial legal aid plans. The result of limited funds and prioritization shut Manitoba women out of legal aid programs, which they urgently need. This denies them equal protection and benefit of the law.

This situation is further exacerbated by Canada’s lack of national standards for legal aid funding and the provinces inability or unwillingness to adequately fund their legal aid programs. The Federal government committed funding for criminal legal aid on a 50/50 cost-sharing basis with the provinces, in 1972, however this has not been honoured. Currently, the federal government funds approximately 30% of all criminal legal aid. Federal funding for civil legal aid comes through the Canada Health and Social Transfer (CHST), which has risen in recent years. Large decreases (in real dollars) in the mid 90’s put a huge strain on health, education and social services. Provinces are bowing to pressure to put their funds into health and education where costs are escalating exponentially. Legal aid programs have to compete for these same funds. Furthermore, with these CHST block transfers, although the federal government is investing in these areas, the provinces have no accountability in how they spend these funds. As a consequence, legal aid is severely under funded.

Disparity in Legal Aid Coverage Across Canada

Across Canada, this situation causes a huge disparity in coverage, eligibility criteria, accessibility and quality and delivery of service of legal aid. Lack of funding, inadequate coverage and low eligibility thresholds are increasingly causing disadvantaged Canadians to either forego their rights in such important matters as child support or to resort to representing themselves in complex legal proceedings.

Legal aid should be about fairness, which is a fundamental feature of our justice system and our democracy. Canada’s legal system should be firmly based on the rule of law. The rule of law is undermined if there is no assistance for Canadians to enforce their legal rights and to protect themselves from being falsely convicted. The cost to society when legal representation is not available is huge.

Cuts to legal aid are causing the courts are being flooded with parties who are forced to represent themselves. Unrepresented litigants’ tax our courts and the judicial system causing expensive delays and making the justice system less effective. People loose out when they have important legal matters that are not among the services covered by our legal aid plan. The working poor are turned away because their income slightly exceeds the low eligibility guideline in spite of the reality that they certainly cannot afford to pay for their own legal representation. Tragically, many Canadians have no meaningful way to access or enforce the protection, which in theory they have according to Canadian law. This is especially so in family law matters where children are forced to live in poverty because the Child Support Guidelines are not enforced.

Women are the hardest hit in this situation. This system discriminates against Canadian women and must be reformed immediately.

Legal Aid and the Charter of Rights and Freedoms

The denial of legal aid funding for many kinds of legal proceedings — both civil and criminal — could be held to be discriminatory under Section 7 and 15 of the Charter. This is further complicated by the disparity in legal aid programs among the 13 provinces and territories. With regard to financial eligibility, matters covered, funds available to the program, and modes of service delivery suggest that in all programs significantly more legal aid funding goes to male applicants than female applicants.

Moreover, Section 36 of the Canadian Constitution Act is a constitutional commitment that requires the federal and provincial governments to provide essential public services of reasonable quality to all Canadians. Lack of legal representation to the most disadvantaged of Canadians and disparity in coverage from one province to another, from rural areas to urban, and from northern regions to southern, clearly violate s. 36. Canadian courts are continuously expanding the obligation of government to provide publicly funded legal representation. Requiring Canadians to proceed through costly litigation to obtain rights, which they are guaranteed under the Charter and the Constitution, is costly to society as a whole and brings the system of justice into disrepute.

Manitoba

Although the Manitoba government increased Legal Aid’s budget last year, their spending is only $9.66 per capita, well below the $13.46 per capita national average of provincial spending. Although Manitoba Legal Aid offers considerably more coverage than many provinces, it does so, on the backs of lawyers. This difficulty is compounded in rural and remote areas and especially in the area of family law.

• Manitoba lawyers contribute 10% to the Manitoba Legal Aid budget (the national average is 1%). However, Manitoba lawyers are paid the lowest hourly rate in Canada.
• Manitoba’s lawyers willing to accept legal aid certificates, has decreased by 40% over the last 3 years due to inappropriate compensation.
• Lawyers are propping up the legal aid system by providing services to legal aid clients for inordinately low fees and by contributing a considerable amount of work on a pro bono or free basis.
• Legal aid reform must more realistically compensate lawyers for their work to ensure the availability of counsel to needy clients.
• Manitoba continues to face a deficit and is forced to cut necessary legal services, like the Amicus Program, (which represent children in custodial disputes), property matters in family law and the Poverty Law Centre.

The Australian Model

The federal and provincial government should follow the lead of Australia in revitalizing its commitment to legal representation. They should commit to long term funding both criminal and civil legal aid on a 50/50 cost sharing basis with the provinces and territories, with increases to accommodate legislative initiatives and inflation. This model successfully creates uniformity in coverage and delivery.

M.A.W.L. Inc.’s URGENT RECOMMENDATIONS

Funding

1. Federal and provincial governments must immediately increase funding for legal representation. Legal representation should be recognized as an essential public service, like health care.
2. Federal funding for civil legal aid should be provided at the same stable manner as funding for criminal legal aid. A distinct fund should be provided to the provinces, separate from the CHST with national standards to ensure equal coverage, eligibility, accessibility and delivery. Federal funding should be guaranteed under a federal/provincial cost sharing agreement to allow for long term planning.
3. The cost sharing agreement must build in a formula for anticipating inflation and increase costs due to new legislation. New initiatives inevitably create new rights and responsibilities. Thus must be fairly obtainable and effectively enforced.
4. The legislation embodying national standards and cost sharing agreements should be sufficiently precise to ensure accountability, enforcement and uniformity throughout Canada.
5. The Federal Government must immediately increase its funding for criminal legal aid to ensure its prior commitment of 50/50 cost sharing with the provinces.
6. The Provincial governments have a duty to provide essential public legal services under their responsibility for the administration of justice. Provincial governments must increase their funding of public legal representation, and ensure greater coverage and greater fairness in the delivery of public legal aid.
7. Funding for civil legal aid should be expanded to include all family law matters, immigration and refugee matters, mental committal proceedings, and poverty law issues such as access to social welfare, adequate housing, disability benefits.
8. The test for financial eligibility should be the ability to retain counsel without suffering undue financial hardship. Financial eligibility rules should be increased to cover all Canadians below the national poverty levels, and the working poor where those persons are unable to acquire essential public legal service without impoverishing themselves or their family, subject to a reasonable contribution.
9. More innovative assistance should be provided to the working poor including interest free loans and contingency agreements where property is involved.
10. Both levels of government must examine alternative options other then the adversarial system. Mediation (where appropriate, not in abuse cases), Collaborative Law, Specialized Clinics and Alternative Dispute Resolution, all should be investigated and utilized more frequently where appropriate.
11. As an interim measure, while arranging the new cost shared agreement between governments, the Federal government must immediately revitalize its commitment to civil legal aid by providing a fund for divorce (which is under its jurisdiction) similar to its current funds for criminal legal aid, to stop the crisis in civil legal aid from further deteriorating coverage and service.

Accessibility

1. Legal aid systems must be more accessible in rural and remote areas. Administrations must provide incentives in these areas for private bar counsel to accept legal aid certificates.
2. The Canadian Bar Association’s recommendation for a National Civil legal aid Tariff should be implemented.
3. Legal aid tariffs must realistically compensate lawyers for their work to ensure availability of counsel.
4. Expanded eligibility programs should have graduated scales to much higher income levels to support the working poor in their need for legal representation.
5. Governments should create an independent administrative federal/provincial tribunal that is responsible for monitoring the accessibility and quality of legal aid programs across Canada.
6. All provinces should collect data and publish data pertaining to both civil and criminal legal aid usage, including the number of applications, appeals, rejections, applicants screened out prior to application, disaggregated by sex.
7. All provinces should collect and publish data regarding the legal outcome of cases in which litigants are not represented.
8. The process of determining whether a person qualifies for legal assistance needs to be more transparent. Increased public awareness is required about the criteria used and how the criteria is applied by legal aid staff.

Women

1. Each province should establish a separate Women’s Legal Centre to assist women with their legal problems, with staff trained to understand women’s diversity and special needs, including their life experiences related to abuse. Such clinics to be responsible for:
   1. Disseminating information on the availability of legal aid to women throughout the province;
   2. Assisting women with their applications for legal aid including appeals;
   3. Providing training to other legal aid staff throughout the province to ensure they are sensitive to women’s needs;
   4. Monitoring the accessibility of legal aid to women in rural and remote areas, including aboriginal women on reserves;
   5. Handling or monitoring all women’s applications for legal assistance;
   6. Keeping statistical data on all female clients’ involvement with legal aid including an evaluation process to monitor coverage and quality of service;
   7. Establish or re-establish funded Amicus Programs to represent children where necessary;
   8. Monitor new legislation (federal and provincial) to determine its effect on women’s needs for legal representation and make representations to the government with respect to the need for funding for women’s legal representation on all new legislation, including enforcement issues.
2. Federal and Provincial governments should consult with the Women’s Centres and adjust programming to ensure women’s legal needs are being met.
3. Legal Aid should immediately eliminate the prioritization of coverage for criminal matters over civil matters.
4. Legal Aid should provide increased coverage in civil matters, including:
   1. All family matters including support, custody, access, divorce, child apprehension and enforcement of orders;
   2. Assistance to women victims of violence and stalking to ensure that they obtain protection including exclusive occupancy, peace bonds, restraining orders, and claims to recover and seek compensation for lost property due to domestic violence;
   3. Claims of discrimination in employment including pay equity and sexual harassment;
   4. Issues dealing with sponsorship breakdown in immigration cases;
   5. Poverty matters including entitlement to social assistance, CPP disability claims, tenancy problems etc;
   6. Mental committeeship procedures;
   7. Property claims where women have no means to otherwise pursue same (in appropriate cases could be on a contingency fee basis);
   8. Using the merit test where applicable.
5. Governments should increase legal aid coverage in lesser criminal matters that significantly effect women such as summary conviction offences, cross-charging due to zero tolerance policies, applications for name removal due to the stalking legislation to ensure that women’s, current or future, employment opportunities are not adversely affected.
6. Ensure that a gender sensitive approach is followed in using alternative dispute resolutions and innovate options, including not requiring women to mediate in instances where they have been victims of violence.
7. Provide a special fund to assist lesbian women, women with disabilities, aboriginal women, immigrant women, women of visible minorities, to pursue issues of discrimination due to their diversity.

Manitoba

1. Manitoba government must immediately increase its funding to, at a minimum, the national average of contributions for provinces per capita
2. Manitoba should co-operate with the federal government in agreeing to national standards and a cost sharing agreement, which would see the federal government revitalizing its commitment to legal representation.
3. Manitoba Regulation 225/91 s.10 and 11 should be amended to eliminate the prioritization of criminal over civil matters, and to increase coverage in lesser criminal matters to ensure women’s employment or future employment wasn’t adversely affected.
4. Reinstitute funding for the Amicus Program.
5. Expand the Poverty Law Center.

MAWL
Manitoba Association of Women and the Law

Box 1240, Carman, MB, R0G 0J0
Telephone: 204-745-2028
Fax: 204-745-3513
email: mcbr@mb.sympatico.ca

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