Systemic Underfunding of BC Provincial Court and Legal Services Society
“Laws grind the poor, and rich men rule the law”, Oliver Goldsmith 1764, The Traveler
It has oft been stated that the measure of a civilization is how it treats its weakest members. Unfortunately, if that is the case then the Province of British Columbia is seriously lacking in many ways.
According to a CBC article BC has had the highest level of child poverty six years running. Why are so many children living in poverty? There are many reasons, one of which is the serious underfunding of the Legal Services Society, which provides legal services to those in need of emergency assistance to obtain restraining orders, property division orders, and child and spousal support orders.
Systemic underfunding of the Legal Services Society began with the election of the Liberal Government in British Columbia. Gordon Campbell became premier after leading the opposition from 1993 to 2001. While BC’s ailing economy was in drastic need of an overhaul, one would have thought the focus would have been on improving the business sector infrastructure, while ensuring that a sufficient social safety net was maintained to assist BC’s working poor and those on social services.
Unfortunately Mr. Campbell’s focus on “reform” has been much more in line with the “Great Leap Forward” in China and Stalin’s “Fiver Year Plan industrialization” policies.
Mr. Campbell’s plans, in my opinion, have focused on “reviving the flailing” BC economy by eliminating services to the working poor and to those receiving social assistance, rather than on providing a sound infrastructure in which business can thrive.
Since coming to power, the BC Liberal Party has continuously reduced and/or eliminated services to the poor and disenfranchised by reducing and/or eliminating social benefits to the poor including access to Justice. All the while implementing policies that serve to further harm the working poor and those on social services by eliminating their access to justice.
In example, funding to the Legal Services Society has been well documented by the Coalition for Public Legal Servicesas follows:
The November 3rd announcement follows extensive cuts to legal aid services in 2008/2009:
The elimination of the Non-Emergency Family Tariff
The severe reduction of Extended Services to cover allow lawyers to prepare for lengthy family cases
The removal under the child apprehension tariff of Alternative Dispute Resolution Services, to resolve matters out of court
The loss of coverage for Committal Hearings in family court, leaving low-income persons in jail under the committal hearing process unable to get a lawyer or any legal representation
Cuts to Family Duty Counsel in small towns and urban centers outside of the Lower Mainland
The loss of coverage for breach charges in criminal court, even where crown is seeking jail time;
Cuts (reductions) to the SCAP program (coverage for long criminal trials).
The elimination of the LawLINE and of LSS’s contribution to POVNET
Significant cuts to outreach and education services through out BC vis-à-vis significant cuts at LSS head office
The closure of family law clinics in Vancouver and Surrey, and the Nanaimo Justice Access Center, which provided both civil and family law assistance
Significant cuts to Immigration law funding
Cuts in funding to TRAC (Tenant Resource & Advisory Centre) and BCCPD (BC Coalition of People with Disabilities)
All of this is on top of a 40% funding reduction by LSS between 2002 and 2004 that:
Closed 85% of the legal aid offices throughout BC, including the elimination of rural Community Law offices which used to provided a wide range of legal aid services in many small towns and cities, including in remote areas
Cut the LSS budget from 90 million to 55 million and resulted in the cut of legal aid staff from 460 to 155 (a 75% staff reduction)
Wiped out all legal aid Poverty Law services
Eliminated all assistance for Human Rights complaints
Targeted Family Law for harsh reductions by cutting family law by 60% (from 22 million to 9 million), eliminated the Non-Emergency Tariff, and significantly reduced eligibility, thus wiping out any real legal assistance to thousands of low income persons
The impact on the poor and disenfranchised in BC has been compounded by the fact that the BC Liberal Government has coincidentally initiated a systemic underfunding of the Provincial Court of British Columbia, which has been commented on by the Provincial Court Judiciary more and more of late. In a recent decision Judge O’Byrne, in a decision involving undue delay in bringing a matter to trial in R. v. Archibald, 2010 BCPC 273 had this to say about the ongoing underfunding of the Provincial Court:
Here, as I have said, the delay is prima facie 36 months. As to the explanations for the delay, both counsel took great pains to point out how the delay was not attributable entirely to their side. I find that each individual delay is unremarkable; seven to nine months between dates set for trial to continuation are not that unusual. What is unusual here is the totality of the delay, 36 months.
 The only delay I could even attribute to the accused is the Workers’ Compensation delay from March to October 2010, but even if I deduct that from the whole time, it is just over seven months, it still leaves 29 months of delay. Surely it is not the fault of Mr. Archibald that when the Attorney General addressed the systemic or institutional delay of not having enough judges by appointing Mr. Archibald’s counsel, Mr. St. Pierre, a Provincial Court Judge, he also occasioned specific delay to Mr. Archibald’s case. That is one of those unexpected and non‑tactical circumstances that occurs in these courts.
 His Honour Judge Webb goes on in his decision in Darren Bryan Williams, referring back the court in Askov saying:
However, the lack of institutional facilities can never be used as a basis for rendering the s. 11(b) guarantee meaningless . . .
. . . For the criterion of institutional resources, more than any other, threatens to become a source of justification for prolonged and unacceptable delay. There must, therefore, be some limit to which inadequate resources can be used to excuse delay and impair the interests of the individual.
 Further, in quoting from Morin, Judge Webb cites the court as follows:
The Court cannot simply accede to the government’s allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. . . This period of time may be referred to as an administrative guideline.
 Now in this case, and in this province, even with the appointment of Judge St. Pierre on March 17th, 2009, the Provincial Court of British Columbia is still unable to cope with the increasing caseload with a judicial complement below the 2005 level of 143 judges. Even with the recent appointment of five new Provincial Court Judges in September of 2010, the dire situation of the Provincial Court has not been addressed.
 For example, the Surrey criminal backlog would require three Provincial Court Judges sitting criminal law, full‑time, two years to restore wait times to appropriate levels. Until the recent September 2010 appointments, British Columbia was the only province in Canada to suffer a reduction, 17.35 per cent, in its judicial complement over the years 2005 to 2010. The ratio of police officers to Provincial Court Judges has gone up from 50 to one in 2000 to 73 to one in 2010. The office of Crown counsel has as well increased their full‑time equivalents from 408 in 2005 to 459 in 2010. New cases per judge are also increasing. There are in excess of 30,000 traffic tickets awaiting trial dates.
 Repeated attempts have been made to draw the lack of adequate judicial resources to the attention of the Attorney General and the Government. To some extent, the recent appointment of five Provincial Court judges is a response to these attempts, but this belated response deals only with past crises in the most critical areas of the province. For example, Sechelt has been without a resident judge for almost one year, Penticton has needed judicial help for over a year, and Kamloops had to replace the Provincial Court Judge that was appointed to the British Columbia Supreme Court in the spring of this year. No additional increases to complement have occurred in 2010. Nothing has been done to address the approximate 16,000 criminal cases in our backlog that are older than 180 days up to the end of 2009/2010.
 In both the Kootenays, see R. v. Williams, unreported, Cranbrook, 25926, May 6, 2010, the decision of Judge Webb I referred to, and the Cariboo Northeast, R. v. Ollenberger, 2010 BCPC 93 (CanLII), 2010 BCPC 93, trial judges have commented on the known lack of judicial resources as being a key reason for cases being dismissed for unreasonable delay.
 In the Ollenberger decision, for example, I referred to the decision of my brother Judge Brecknell in a case called Zagwyn, where the following is stated:
The failure of the government to act has now imposed a crisis upon the Cariboo Northeast District. Simply put, without additional appointments, the Cariboo Northeast District no longer has sufficient judicial resources in Prince George to meet the caseload. Matters have been scheduled from January through September 2010 on the basis of a complement of five full-time judges and one part‑time senior judge. With the reduction of one full-time judge, the remaining judges cannot hear all of the existing cases at the times they are presently scheduled.
Priority will [therefore] be [assigned to cases] as follows: bail hearings, child apprehension [hearings], youth in custody trials, urgent family matters with allegations of violence or interim matters of access and custody of children, and adult trials or adult in-custody trials will receive the highest priority.
After those priorities are dealt with, the next order of priorities will be guilty pleas and sentencings, consent family and civil orders, and serious criminal matters where the accused is out of custody.
The situation in British Columbia grows more dire by the day as the Courts continue to be backlogged, families in crisis who cannot afford a lawyer cannot get Legal Services Society funding for basic emergency services, as now, as noted in the Vancouver Sun, there are now only approximately 900 lawyers in British Columbia still willing to work under the existing Legal Services Tariff, down from 1,400 when the Liberals took over the Provincial Government in 2001.
By Terrance E. Hudson