[1] Daniel Drache & Andrew Ranachan, eds., Warm Heart, Cold Country: Fiscal and Social Policy Reform in Canada (Ottawa: Co-published by the Caledon Institute of Social Policy, Ottawa and the Robarts Centre for Canadian Studies, York University, 1995); Jacqueline S. Ismael & Yves Vaillancourt, eds., Privatization and provincial social services in Canada: policy, administration and service delivery (Edmonton, University of Alberta Press, 1988); H. McKenzie & V. Shalla, Poverty in Canada (Parliamentary research Branch, 1988, revised 1994).
[2] The most trenchant criticisms have come from critical scholars. See: D. Laureen Snider, "Legal Aid, Reform, and the Welfare State", The Social Basis of Law: Critical Readings in the Sociology of Law, Toronto, Garamond Press, 1986, and Rand E. Rosenblatt, "Legal Entitlement and Welfare Benefits," in D. Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon, 1982) 262.
[3] That the "War on Poverty" was the "source" is a matter of common understanding amongst legal aid and poverty law activists, critics and scholars. For example, see: Ruth Margaret Buchanan, "Context, Continuity, And Difference in Poverty Law Scholarship", 48 University of Miami Law Review 999–1061 (1994); Ingrid V. Eagly, "Community Education: Creating a New Vision of Legal Services Practice" 4 Clinical Law Review 433–484 (1998); Marc Feldman, "Political Lessons: Legal Services For The Poor" 83 Georgetown Law Journal 1529–1632 (1995); Allen Redlich, "A New Legal Services Agenda" 57 Albany Law Review 169–86 (1993); Paul R. Tremblay, "Acting "A Very Moral Type of God": Triage Among Poor Clients", 67 Fordham Law Review 2475–2532 (1999).
[4] In Canada projects like Osgoode Hall Law School's Intensive Programme on Poverty Law led to the formation of community based legal clinics such has Parkdale Community Legal Services. The history, and approach to poverty and poverty law developed by Parkdale Community Legal Services is set out in Part III Infra. Much of it may be found in a 1997 Osgoode Hall Law Journal Special edition: "Parkdale Community Legal Services: Twenty-Five Years of Poverty Law". In particular, see: Shelley A.M. Gavigan, "Twenty-Five Years of Dynamic Tension: The Parkdale Community Legal Services Experience", (1997) 35 Osgoode Hall Law Journal 443–474; Frederick H. Zemans, "The Dream is Still Alive: Twenty-five Years of Parkdale Community Legal Services and the Osgoode Hall Law School Intensive Program in Poverty Law"(1997) 35 Osgoode Hall Law Journal 499–534.
[5] Two other law school based clinics were funded by the Department of Health and the Ford Foundation with Parkdale in 1971, at Dalhousie (where the Clinic still operates although on a reduced basis) and at the University of Saskatchewan (where the Clinic ceased to operate more than ten years ago), Zemans, "The Dream", Ibid. Note 4 at Note 15 and text.
[6] For an excellent description of the way these limits effected legal services see Eagley, "Community Education" and Buchanan "Context", Supra Note 3.
[7] The challenge and the conflicts are both captured well in Michael Blazer, "The Community Legal Clinic Movement in Ontario: Practice and Theory, Means and Ends" (1990) 7 Journal of Law and Social Policy 49–72.
[8] This is the issue that plagues the "case selection criterion" or "triage" debate. See Tremblay "Triage" Supra Note 3; but see: Justine A. Dunlap, "I Don't Want to Play God — a Response to Professor Tremblay" 67 Fordham Law Review 2601–2616 (1999).
[9] Many have noted this tendency in one way or another. None have documented it so thoroughly as Richard Abel in his massive study of legal aid throughout the industrialized world: Richard L. Abel, "Law Without Politics: Legal Aid Under Advanced Capitalism" 32 UCLA Law Review 474–621(1985) at 575–576; and Supra Note 3.
[10] Both in Canada and throughout the industrial world, the failures and the challenges facing legal aid have been attracting substantial interests from scholars, activists, and policy makers alike. For example see Supra Note 3, and, Mary Jane Mossman, "From Crisis to Reform: Legal Aid Policy-making in The 1990's", (1998) 16 Windsor Yearbook of Access to Justice 261–270; Mitchell A. Kamin, "Review: Rebellious Lawyering: One Chicano's Vision of Progressive Legal Practice. Gerald P. Lopez. Boulder: Westview Press, 1992" 28 Harvard Civil Rights-Civil Liberties Law Review 237–243 (1993); Erhard Blankenburg, "Private Insurance And The Historical "Waves" of Legal Aid", (1993) 13 Windsor Yearbook of Access to Justice — 185–201; Albert Klijn, "Dutch Legal Services Quality Incentives: The Allegedly "Perverse" Effects of the 1994
Legal Aid Act" (2000) 33 University of British Columbia Law Review 433–446; David J. McQuoid-Mason, "The Delivery of Civil Legal Aid Services in South Africa", 24 Fordham International Law Journal 111–142 (2000); Anne Opie and Dave Smith, "Needs Assessments: Knowing Disadvantaged Communities in Aotearoa/New Zealand" (2000) 33 University of British Columbia Law Review 405–431; Roger Smith, "Clinics in a Cold Climate: Community Law Centres in England and Wales" (1997) 35 Osgoode Hall Law Journal. However, the most trenchant criticisms have come from critical scholars. See: Snider, "Legal Aid" Supra Note 2; Abel, "Law Without Politics" Supra Note 9; and Marc Feldman, "Political Lessons"Supra Note 3.
[11] Douglas J. Ewart, "Hard Caps; Hard Choices: A Systemic Model For Legal Aid" A New Legal Aid Plan for Ontario (Toronto: Queen's Park Printer, 1997).
[13] The ideal of a politically informed case selection criterion is best promoted by Paul Tremblay who refers to it as "triage": Tremblay, "Triage" Supra Note 3; but see: Dunlap, "a Response" Supra Note 8. The concept has been evolving to encompass both a "community as client" analysis : Robin S. Golden, "Toward a Model of Community Representation For Legal Assistance Lawyering: Examining The Role of Legal Assistance Agencies in Drug-related Evictions From Public Housing" 17 Yale Law and Policy Review 527–561 (1998), to the development of specialized skills and approaches: Peter Margulies, "Political Lawyering, One Person at a Time: The Challenge of Legal Work Against Domestic Violence For The Impact Litigation/client Service Debate" 3 Michigan Journal of Gender & Law 493–514 (1996), and Jessica A. Rose, "Rebellious or Regnant: Police
Brutality Lawyering in New York City" 28 Fordham Urban Law Journal 619–665 (2000). Parkdale has been targeting these issues for many years; see: Dianne L. Martin, "Organizing for Change: A Community Law Response to Police Misconduct", Hastings Women's Law Journal, 4 (1993): 131–74; Dianne L. Martin & Janet Mosher, "Unkept Promises: Experiences of Immigrant Women with the Neo-criminalization of Wife Assault", Canadian Journal of Women and the Law, 8 (1995): 8–44; and Dianne L. Martin & Ray Kuszelewski, "The Perils of Poverty: Prostitutes Rights, Police Misconduct and Poverty Law, Osgoode Hall Law Journal, 35 (1997): 835–63.
[14] See Chapter 3., Infra, for a full description of the Parkdale Model.
[15] This is, in effect, the position of Alan W. Houseman, who responded critically to Feldman's call for an entirely "new" (and to him more "radical") approach: Feldman, "Political Lessons" Supra Note 3. Alan W. Houseman "Political Lessons: Legal Services For The Poor — a Commentary", 83 Georgetown Law Journal 1669–1709 (1995).
[16] Therefore Chapter 4. of the paper will consider legal issues affecting immigrant and refugee families, and in particular, children, as a topic worthy of federal concern and federal resources.
[17] Mary Jane Mossman noted the absurdity of limiting the federal share of civil legal aid to matters within federal competency in: Mary Jane Mossman, Civil Legal Aid Services in Canada: Policy Options (Ottawa: Department of Justice of Canada, 1990).
[23] Edgar S. Cahn & Jean C. Cahn, "What Price Justice: The Civilian Perspective Revisited," Notre Dame Lawyer, Vol. 41: 927 (1965–66). A similar, although less politically explicit view was offered by Kenneth A. Pye in "The Role of Legal Services in the Anti poverty Program," Law & Contemporary Problems, Vol. 31: 211 (1966). Pye concludes that traditional legal services overwhelms political organizing, but is less concerned about it.
[24] Harvard Law Review. "Neighborhood Law Offices: The New Wave in Legal Services for the Poor" Vol. 80: 805 (1967).
[25] Stephen Wexler, "Practicing Law for Poor People" The Yale Law Journal 79 (1970) 1049–1067.
[29] The proposition that the purpose of practicing law for poor people is to end poverty, rather than simply provide services to poor clients was developed into ten "rules" by Michael Fox in "Some Rules for Community Lawyers," (1980) Clearinghouse Review 1. This is, in effect, what Doug Ewart argued recently, Supra Note 11.
[30] John D, Honsberger. "The Ontario Legal Aid Plan" McGill Law Journal, Vol. 15, No. 3: 436.
[35] National Council of Welfare (by Larry Taman), The Legal Services Controversy: An Examination of the Evidence (Ottawa, September, 1971).
[36] Parkdale Community Legal Services, "Brief to the Task Force on Legal Aid," April 26, 1974 (in Community Legal Services in Perspective); Parkdale Community Legal Services, "A Report from Parkdale Community Legal Services," Canadian Community Law Journal, Vol. 3 (1979).
[37] For an excellent description of this process see Eagley, "Community Education" and Buchanan "Context", Supra Note 3.
[38] In Canada, just in time for an entrenched Charter of Rights and Freedoms, in the United States, in response to the new conservatism.
[39] R. J. Gathercole, "Legal Services and the Poor," in Robert G. Evans & Michael J. Trebilcock, eds., Lawyers and the Consumer Interest: Regulating the Market for Legal Services. (Toronto: Butterworths, 1982).
[46] Formal justice is achieved after each party has had an equal opportunity to tell their story to a judge and be heard in accordance with the legal norms of due process. Substantive justice, however, rests on the idea that the legal system is inequitable, structurally biased against the poor and the powerless. Legal reform to achieve substantive justice would aid in changing discriminatory laws which maintain these inequitable conditions. Ibid., p. 170.
[48] She sets out the history which led to the development of the neighbourhood legal clinic considered by reformers as the best vehicle to accomplish substantive justice and thus the dominant model to deliver in civil law in the United States (and frequently criminal law as well), while a judicare model (private lawyers chosen by the client and paid by the state) became predominant in several Canadian provinces, and usually covered both criminal and civil matters, in the traditional legal sense.
[53] Mary Jane Mossman, "Legal Services and Community Development: Competing or Compatible Activities," (1984) (in vol. 2 Martin PCLS 1990–91 material).
[54] This is essentially the case-work, individualized, formal justice aspect of the clinic versus the law reform, community action, substantive justice aspect of the provision of legal services for the community. This tension was identified in the early theory and literature regarding the community legal clinic model and the apportionment of time and resources towards each has since become a balancing act and debate of community legal clinics in practice.
[55] Rosenblatt, "Legal Entitlement" Supra Note 2.
[56] The sharp parallels with the arguments of neo-liberals promoting welfare reform are a reminder that there are very few new ideas. Rosenblatt, "Legal Entitlement" Ibid., pp. 265–267.
[61] Diana Pearce, "Welfare is not for Women: Toward a Model of Advocacy to Meet the Needs of Women in Poverty," (1985) Clearinghouse Review 412.
[62] Pearce was one of the first to write about the phenomenon that gender has become a determinant of poverty and that this feature is escalating it has become the "feminization" of poverty. She analyzes the circumstance of single-person heads of household who are women, and points out that it is not the lack of two adults that is associated with higher rates of poverty but the fact that it is a woman alone, attempting to run a family on her own, that is so highly correlated with poverty. Pearce "Welfare" p. 412.
[64] That is because although many women are poor for some of the same reasons that men are poor, much of women's poverty is due to two causes that are essentially unique to females: women most often are required to provide all or most of the support for their children and they are disadvantaged in the labour market. Ibid., p. 413. Similarly sharp distinctions can and should be drawn in other cases - in regard to youth, recent immigrants, racialized peoples, etc.
[65] Although her examples are American, the same distinction is drawn in Canada: See Dianne L. Martin, "Passing the Buck: Prosecution of Welfare Fraud, Preservation of Stereotypes", Windsor Yearbook of Access to Justice, 12 (1992): 52–97, a study of welfare fraud prosecutions based in part on Parkdale cases.
[69] Her crucial insight, applicable to others as well, is that advocacy on behalf of poor women must proceed from the understanding that gender discrimination is a key element behind the feminization of poverty. At the same time, it cannot be assumed that all policies designed to combat gender discrimination will be effective for (all) poor women. Ibid., p. 418.
[70] John McCamus, A New Legal Aid Plan for Ontario (Toronto: Queen's Park Printer, 1997).
[71]For example, see: Patricia Hughes, "New Brunswick's Domestic Legal Aid System: New Brunswick (Minister of Health And Community Services V. J.G." 16 Windsor Yearbook of Access to Justice 240–251 (1998); and D.A. Rollie Thompson, "Legal Aid Without Conflict: Nova Scotia" (1998) 16 Windsor Yearbook of Access to Justice 306–324..
[72] Albert Currie, "Legal Aid Delivery Models in Canada: Past Experience and Future Developments" (2000) 33 University of British Columbia Law Review 285–317.
[73]See the references Supra Note 3 and Note 10. And see: Ann Southworth, "Lawyers And The "Myth of Rights" in Civil Rights And Poverty Practice", 8 Boston University Public Interest Law Journal 469–511 (1999).
[75] Of course legal aid has always been subjected to significant budget limitations, particularly in the case of civil legal aid. It is a fallacy advanced by neo-liberal politicians that concern with the cost of social programmes is something new that they have brought to the fore. It is, however, a fallacy of considerable purchase in contemporary policy debates.
[76] Ewart, "Hard Caps" Supra Note 11 at pp. 11–12.
[84] Parkdale Community Legal Services, Report to Department of Health and Welfare (February 1972) from Zemans, "The Dream" Supra Note 4 at note 22.
[85] Dianne L. Martin, ed., Intensive Programme in Poverty Law at Parkdale Community Legal Services, Cases and Materials, Volume I. Toronto: Osgoode Hall Law School, 1991, p. 3.
[86] Martin, "Intensive Programme" Supra note 9, p. 6. Twenty law students per semester work under the joint supervision of a community legal worker and a staff lawyer.
[87] For a discussion of this "movement" (and its evolution into a "system") comparing Canada with the United States, see Gathercole, "Legal Services" Supra Note 39.
[88] Jacqui Greatbatch, "The Immigration Group: An Integrated Approach to Casework, Law Reform and Community Development", (Toronto, Parkdale Community Legal Services, 1989) Appendix A.
[89] Ron Schacter, the lawyer head of the Immigration and refugee Law division at the time (1993 and 1995) describes the interventions, as the Clinic represented the Canadian Council for Refugees, in "The Cases of Ward and Chan", Osgoode Hall Law Journal, 35 (1997): 723-735.
[90] An extensive literature has documented the phenomenon. For example see Drache, Ismael, Mckenzie, Supra Note 1.
[91] The practice has been fairly well examined, and almost universally decried in the literature, Jenifer M. Bosco "Undocumented Immigrants, Economic Justice, and Welfare Reform in California", 8 Georgetown Immigration. Law Journal 71-94 (1994) and Liza Cristol-Deman & Richard Edwards, "Closing The Door on The Immigrant Poor", 9 Stanford Law and Policy Review, 141-155 (1998).
[92] There are efforts in the US to deny citizenship to US born children of "illegal aliens" (and a debate about how best to counter-act them), a move successfully implemented in Britain. See: Michael Robert W. Houston, "Birthright Citizenship in the United Kingdom and the United States: a Comparative Analysis of the Common Law Basis for Granting Citizenship to Children Born of Illegal Immigrants", 33 Vanderbilt Journal of Transnational Law, 693-738 (2000). That is not the law in Canada.
[93] Another is found in the accounts of the Clinic's taking up of the issues of police misconduct, and of the plight of street prostitutes. The scope and history of the Clinic's response to policing issues is in Martin, "Organizing for Change" Supra Note 13, and in a shorter version, along with the story of the Clinic's involvement in Prostitutes Rights, in Dianne L. Martin & Ray Kuszelewski, "The Perils of Poverty: Prostitutes Rights, Police Misconduct and Poverty Law, Osgoode Hall Law Journal, 35 (1997): 835-863.
[94] John Dent, "Mom is Here Illegal" The Denial of OHIP to Canadian Children Based on Parental Immigration Status: A Violation of International Human Rights?" Unpublished paper submitted in compliance with the requirements of the Intensive Programme in Poverty Law, Osgoode Hall Law School, York University, Toronto, 2000. Abstract attached in Appendix B. This is not unusual. Student papers have been instrumental in a wide range of cases and initiatives: see: Martin & Kuszelewski, Ibid., and Gavigan, "Twenty-five Years" Supra Note 4.
[95] There is a lively debate about the role and efficacy of what the Clinic calls "test case litigation" and what is known as "impact litigation" in the US literature. The practice at the Clinic is that a decision to launch a test case strategy is made by the Board who are very mindful of this debate. See for example: Amy Bartholomew & Alan Hunt, "What's wrong with rights?" University of Minnesota Law School Journal 9 (3) 1-58, (1991); Stephen Brickey & Elizabeth Comack, "The role of law in social transformation: Is a jurisprudence of insurgency possible?", Canadian Journal of Law and Society 2, 97-119 (1987); Gwen Brodsky & Shelagh Day, Canadian Charter Equality Rights for Women: One Step forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989); Board of Directors, Parkdale Community Legal Services, "Poverty Law and Community Legal Clinics: A View
From Parkdale Community Legal Services" (1997) 35 Osgoode Hall Law Journal 595-601.
[96] The importance of skill and energy addressed to gathering the facts is too often ignored by those seeking change, but it is absolutely crucial to both litigation and to lobbying and other strategies. For an illuminating discussion of the importance of facts in this type of litigation see: Mary Eberts, "New Facts for Old: Observations on the Judicial Process", in Richard Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery, 1991), 467.
[98] Rosenblatt's case study of the "legalization" of welfare entitlements represents the most thorough and thoughtful, Rosenblatt, Supra Note 55.
[99] In the context of police reform, An M.A. thesis studies a citizen police reform group, details its initial effectiveness but suggests the members were ultimately co-opted into the "policing discourse", and that the process is almost inevitable with "extra-governmental" reform groups. Maeve W. McMahon, "CIRPA: A Case Study of the Reform Process and the Police Institution". A Dissertation submitted in conformity with the requirements for the degree of Master of Arts in the University of Toronto, 1983. Much of her data also appears in: M.W. McMahon and R.V. Ericson Policing Reform: A Study of the Reform Process and Police Institutions in Toronto, Centre for Criminology, University of Toronto, Toronto, 1984. See Martin (1992) Supra Note 13 for a response.
[100] Snider, Supra Note 2 and discussion at Notes 44-52 inclusive.
[101] The significance of broader determinants of health to the health status of populations is now widely recognized (see e.g., National Forum on Health and accompanying background papers). A number of Canadian writers, feminists in particular, have begun to examine privatization and its effects on women both generally and with specific reference to social assistance and health care. See, for example: Patricia and Hugh Armstrong, Wasting Away: The Undermining of Canadian Health Care (Toronto, Oxford U. Press, 1996); Issa Bakker, Rethinking Restructuring: Gender and Change in Canada (Toronto, U. Toronto Press, 1996); J. Brodie (ed) Women and Canadian Public Policy (Harcourt Brace, 1996, Toronto).
[102] Zemans, "The Dream" Supra Note 4 at Notes 12-17 and accompanying text.
[103] This material is available from any public heath department and was effectively utilized in: Shari B. Fallek, "Health Care for Illegal Aliens: Why It Is a Necessity", 19 Houston Journal of International Law, 951-981 (1997) from the perspective of the public health costs associated with these measures.
