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OP I N ION BY JIM MIDDLEMISS BACK PAGE Legal aid a W hen I went to school, we were taught the basic necessities of life were food, cloth- ing, and shelter. Now, it is food, cloth- ing, doctors, and lawyers, according to Leonard Doust. It seems a sad state of affairs when access to a lawyer is deemed a basic necessity of life. In March, Doust, a Vancouver law- yer at McCarthy Tétrault LLP who led the Public Commission on Legal Aid in British Columbia, issued his report based on 11 days of hearings across B.C. involving numerous groups. He said legal aid ranked equally to health care, educa- tion, and welfare and recommended it be deemed an "essential public service." He recites the phrase "essential public service" 27 times in the 68-page tome, or about once every second page, as if the more you mention it, the more likely it will happen. "The case for recognizing legal aid as an essential public service is a very strong one," he writes, "founded on the tripartite basis of sound social and economic policy, a moral commitment to fairness and justice for all of our citizens, and legal and constitutional rights. Along with education, healthcare, and social assistance, it is the fourth pillar of our steadfast commitment to a just society." He doesn't want to limit legal aid only to those of marginal means. It's like public health care. In Doust's nirvana, "some level of legal aid service should be avail- able to all. There is no question then there is an important public good in providing legal information and assistance to all British Columbia residents." His report is long on the need to expand the legal aid social program beyond criminal matters into everything from debt to housing and even employ- ment. "Government has a responsibility to provide access to legal representation in these circumstances when a person can- not afford to pay a lawyer." He slams legal aid cutbacks and bemoans a system that "has been stripped down to almost exclusively cover only those services that have been proven in court to be constitutionally required." Imagine the gall, a Canadian social pro- gram that only delivers what is constitu- tionally required? Like many legal aid advocates, Doust believes the Charter of Rights and Freedoms should be interpreted to ensure legal aid includes civil matters. He argues that legal aid should be deemed an essen- tial public service on the basis that by nipping legal problems in the bud, it cuts down the public costs of wasted court time and lowers costs associated with health care and welfare. Interesting arguments; however, his report is short on specifics. Nor does he build a business case to prove his point. He merely states it as fact and relies, instead, on hearsay evidence. He tosses in some reports from foreign jurisdictions such as Texas, New York, and Australia, to further make his case — evidence that would muster at most a passing glance by most courts in Canada. He writes, "there is no magic bullet or panacea that will cure the defects within our legal aid system." Yet, Doust con- stantly criticizes funding levels, and baldly asserts: "The requirement of increased, stable, long-term public funding for legal aid is non-negotiable. . . ." Doust's panacea then would appear to be more cash for legal aid. How much is not clear. Tax dollars are finite, good intentions are not. According to Statistics Canada, legal aid plans spent a sizable $762 million in 2009-10 on 500,000 Canadians. That's 46 JUNE 2011 www. CANADIAN Lawyermag.com about $23 for every Canadian. Spending was up four per cent from the previous year, more than inflation. At a time when think-tanks warn that health-care spending is unsustainable and roads and sewers are crumbling, it's hard to believe there is an appetite among Canadians to expand legal aid beyond the bare minimum. Most Canadians would rather their tax dollars go to fund chemo- therapy for an 11-year-old cancer patient, than pay a lawyer to argue a breach of probation case brought on by a convicted thief's lack of moral conduct and certainly not to pay a lawyer to deal with an aggres- sive bill collector. As reports like Doust's mount and advocates use the Charter to persuade judges to order governments to pay for lawyers in an increasing range of ser- vices, legal aid is becoming a public tick- ing time bomb. Governments need to look at other solutions to the problem of overburdened courts and lack of access to justice. It's the complexity of laws and the ever-expanding waistline of legislation and regulation into areas such as social assistance, marital breakdown, unemploy- ment rules, workers' compensation fights, and landlord-tenant disputes that have created the growing need for legal advice. The state should start there when looking for solutions to justice problems. As for legal aid advocates, rather than mouthing platitudes and demanding blank cheques, they could win support by providing cost estimates and making a business case for rejigging the way legal aid is delivered. There is a long way to go in this debate before taxpayers will be convinced more of their hard- earned money should go to paying for lawyers. Jim Middlemiss is a Toronto lawyer and co-owner of WebNews Management Corp. He can be reached at jmiddlemiss@ webnewsmanagement.com. SCOTT PAGE tickin g time bomb