LEGAL SERVICES IN CANADA*
| Date | 01 September 1977 |
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02441.x |
| Author | Rosalind Brooke |
| Published date | 01 September 1977 |
LEGAL
SERVICES IN
CANADA*
1.
Zntroduction
Between 1972 and 1975 major changes in the provision of legal
services had been implemented in Quebec, Manitoba and Saskat-
chewan. Legislation had been passed in British Columbia in August
1975, while the Osler Report in Ontario had recommended,
inter
ah,
control being taken from the Law Society (which administers
legal aid-as in England and Wales). In other provinces, Nova
Scotia, Newfoundland, Alberta and Prince Edward Island some
changes had been made
so
that
for
example salaried lawyers were
available in Nova Scotia and a public defender system had been
instituted in Prince Edward Island. However, far-sweeping changes
had come about in the first-mentioned provinces and this article
concentrates therefore
on
them.’ Quebec and Manitoba have
“
mixed systems,”
i.e.
judicare and salaried lawyers, while Saskat-
chewan is much closer to a fully salaried system. Ontario,.with its
English type judicare scheme, was said to have had the most
advanced in the country in the 1960s, but by 1975 both schemes
were seen to be failing to adapt policies and administration
of
legal
services in order to meet rising expectations and demands.2
In
1974 in
a
frequently quoted statement, the Lord Chancellor’s
Advisory Committee on Legal Aid commented that:
“(a) there are many people whose legal rights are,
for
a
variety
of reasons, at present going wholly by default;
(b)some of these are unaware even that they possess such
rights; others realise it but either do not know how to
obtain help
in
enforcing them
or
lack the money
or
the
ability,
or
both, to do
so;
(c) there is
a
severe shortage of solicitors in the country and,
*
The Canadian material was collected when the author was Visiting Professor,
January-June 1975, at the School
of
Social
Work,
McMaster University, on a
federally funded programme of the Department of Health and Welfare and acting
as consultant to the Canadian Council of Social Development for its Law and
Social Development Program. As far as possible it has been revised
up
to
September 30, 1976.
1
For the present system
see
federal Ministry of Justice,
The Delivery
of
Legal
Aid Services in Canada
(1974). There is no comprehensive history
of
legal aid in
Canada, but in addition to the above readers are referred to the report of the
Pr6vost Commission,
La Sociiti face au crime,
Vol.
2, tome
1;
La Sicurif4 judiciare
(6diteur officiel du Qukbec, 1968); and the Province of Ontario, Report of the Joint
Committee on Legal Aid, 1965. It should be pointed out here that where a French
language version has been used, the footnote reference refers to the title in
French. This does not indicate that only French language versions are available.
Up-to-date discussion is contained in Canadian Council of Social Development,
Access
to
Justice
(1975).
Chancellor’s Office, 25th Legal Aid Annual Reports, 19761975
(H.M.S.O.,
1975);
and the monthly
Bulletin
of the Legal Action Group, and its
The Future
of
Legal
Services
(1974); the Reports of the Lord Chancellor’s Advisory Committee for
1972-73, 1973-74, 1974-75; and the Law Society’s apologia in the Report of the
Law Society, 1973-1974 (H.M.S.O., 1974), Special Appendix 18, p. 36.
For
some of the most up-tb-date discussion on these issues
see
Lord‘
533
534
THE
MODERN
LAW REVIEW
[Vol.
40
mainly
for
economic reasons, their geographical distri-
bution is very ill-suited to serve many
of
the poor and
more disadvantaged sections
of
the community;
(d) there are considerable areas of the law, notably those
relating to housing, landlord and tenant matters and wel-
fare benefits, where expert advice and assistance is
urgently needed but is often hard to come by.”
There is not the space in this article to document the evidence
for
such conclusions, nor the reasons
for
the slowness with which such
evidence was accepted. The Lord Chancellors department’s inquiry
into the extent of unmet need for legal services confirms the views
of the Advisory C~mmittee.~ Lack of interest and of finance led to
delays
in
implementing the 1949 Legal Aid Act. Divided respon-
sibility between the Lord Chancellor’s Department and the Home
Office for civil and criminal legal aid has not promoted develop-
ment~.~ Additional finance from the Home Office via the Urban
Programme and the Community Development Project led to
bickering between the Home Office, the Lord Chancellor’s Office
and the Law Society,6 which was not helpful when there was little
money for experimental and innovative work in legal services.
In
1975 the Lord Chancellor was able to find E150,OOO short-term
finance for existing independent law centres, while two new ones
were being financed by the Urban P~ogramrne.~
No
law centres
have to date been set up under the 1974 Legal Aid Act.
In
1976
there were
20
independent law centres, approximately
100
legal
advice centres
(i.e.
these operate
on
a part-time basis, generally
with volunteer lawyers) and 87 citizens’ advice bureaux with
waivers of the solicitors’ practice rules to enable lawyers to give
ad~ice.~ However, income limits for legal aid are now to be
reviewed annually,l0 while there
is
a working party looking at the
question of financial assessment.”
In
the information and advice field the picture is also one
of
inadequate finance, duplication and yet under-provision, as well as
some exciting innovations, but above all
of
a
failure to define clear
priorities
on
the part of government agencies.” The lack
of
finance
for legal services has been seen as one of the major factors, and
the Lord Chancellor’s Advisory Committee have pointed
to
the
1972-1973 (H.M.S.O., 1974),p. 36.
3
Lord Chancellor’s Office, Report
of
the Lord Chancellor’s Advisory Committee,
4
Hansord,
House
of
Lords, June 15, 1976.
col.
1214.
5
Ibid.,
see the speeches
of
two ex-Lord Chancellors, Lord Hailsham at
col.
1225
6
Lord Chancellor’s Office, Report
of
the Lord Chancellor’s Advisory Committee,
7
Lord Chancellor’s Office, 25th Legal Aid Annual Reports, 1974-1975,
op.
cit.,
8
Hansard,
House
of
Commons, Written Answers, Jan. 26, 1976, col. 9.
9
Lord Chancellor’s Office, 2Sth Legal Aid Annual Reports, 1974-1975,
op.
cit.,
10
Ibid.
p. 37.
11
Ibid.
p.
39.
12
Rosalind Brooke (ed.),
Advice Services and Welfare
Rights
(19761, Chap.
1.
and Lord Gardiner at col. 1230.
1971-1972 (H.M.S.O., 1973), pp. 38-39.
p. 49.
p. 7.
To continue reading
Request your trial