Renewing Our Commitment to Legal Aid |
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Background: The Emergence of Legal Aid
Paper written by Eugene Kung, Barrister & Solicitor, Vancouver
Although access to justice provisions have existed since 14951, legal aid as a state-funded organization did not emerge until the 1970s. Until the state became involved, legal aid was largely a function of charity by the legal profession. The discussion about legal aid has been framed by the end to which it is perceived as a means, rather than as an end in and of itself2.
Indeed, the legal aid discussion has been dominated by two conceptions of the role of legal aid. The first conception sees legal aid as necessary for upholding the internal logic of our adversarial legal system by ensuring that all parties have representation. In other words, the end to which legal aid is a means is the efficient administration of the justice system. It was this administration of justice conception that informed the American Public Defender model in the 1920s.
A second conception also emerged in the 1920s which envisaged legal aid as a socially integrative mechanism. “[T]he rationale for legal aid was not the deficiency of the legal system but the fundamental deficiency of society itself…failure to provide for adequate legal aid would affect society at its very roots.”3 Put simply, legal aid was seen as a means to better social integration.
This social integration conception informed the Canadian Bar Association’s work during World War II4 when it offered free legal services to the armed forces in response to an overwhelming demand in family and civil law matters caused by the dislocations of war5. It was decided that members of the armed forces should have support for legal issues that arose because of the members’ service to their country. Legal services were made available in most areas of law, including family law, were eventually extended to dependents of service people6.
When, in the late 1960s, the federal government first started examining a legal aid program, Prime Minister Trudeau favoured the social integration conception, and began by providing grants for neighbourhood legal aid clinics through the department of Health and Welfare in the early 1970s.
Robert Kennedy was an advocate
for those with limited resources
The social integration conception was also emerging in the United States as a part of their strategy in the War on Poverty. U.S. Attorney General, Robert F. Kennedy summed up the conception when he stated:
We have secured the acquittal of an indigent person – but only to abandon him to eviction notices, wage attachments, repossessing of goods and termination of welfare benefits…[We] have to begin asserting rights which the poor have always had in theory – but which they have never been able to assert on their own behalf…[we] need to practice preventive law on behalf of the poor7.
In the meantime, the “Great Canadian Debate on Legal Aid”8 had begun. The Department of Health and Welfare sponsored conferences discussing the reform of the legal system while provincial Law Societies looked at improving charity-motivated legal aid. Finally, the Department of Justice examined federal involvement in legal aid services within the traditional legal framework.
The debate continued for some time9, divided by the two conceptions of legal aid. In the end, it was the Department of Justice’s administration of justice conception of legal aid that was adopted by the Committees on Federal-Provincial Relations and Social Policy, which facilitated the negotiations. The Department of Health and Welfare’s social integration conception lost favour, in part, due to broader criticisms of the department’s other programs by the provinces and by professionals10.
In 1972, the first federal-provincial legal aid agreement was signed between the federal government and the government of Quebec.11
Following the ‘Great Canadian Debate’ the conception of legal aid was grounded in the technical administration of justice conception. The administration of justice falls under the constitutional responsibility of the provinces12, and so the federal government limited its legal aid involvement to financial assistance primarily in criminal matters through cost sharing agreements.
What is clear from this short overview is that the perception of the function of legal aid will inevitably change its form. Initially, supporters focused on the internal logic of the adversarial system. This resulted in a conception of legal aid as a remedial function of the administration of justice and ultimately, support primarily for criminal matters. In the work of the CBA during WWII, legal aid was seen as a mitigating factor for issues arising out of military service and thus coverage for members of the service and their families was more inclusive.
As a state-funded legal aid system emerged, it was also envisioned as a means to a different end that included its ability to secure an individual’s substantive right to equal access to justice and alleviation from poverty. This resulted in the creation of neighbourhood legal offices which also focused on law reform and larger policy issues. These two conceptions would continue to inform the debate in the following years over the delivery and funding of legal aid.
Notes from this page:
1 In 1495, Henry VII proclaimed the In Forma Pauperis Act which allowed for judges to assign counsel to the poor.
2 Dieter Hoehne, Legal Aid in Canada, (Queenston, ON: The Edwin Mellen Press, 1989)
3 Ibid
4 Hoehne, supra n.2, p.50.
5 Richard L. Abel, “Law Without Politics: Legal Aid Under Advanced Capitalism” (1984-85) 32 UCLA Law Review 474, p.543.
6 By 1945, the War Work Committee estimated that it had overseen 5550 matters nationally with 2400 falling under family law, 900 under housing issues and 134 under criminal law, Hoehne, supra n.10, p.52 & p.55.
7 Hoehne, p. 63 n.114
8 Hoehne, supra n.2, p.112.
9 see Hoehne, supra n.2, ch 3.3.4.
10 Hoehne, supra n.2, p.155.
11 Hoehne, supra n.2, p.153.
12 The Constitution Act, 1867. s. 92 (14), the administration of justice in the territories falls under Federal powers and thus, legal aid is funded entirely by the federal government. In 2000/01, the approximate amount for this was $2 Million (source: A Short History of Federal Funding for Legal Aid).
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