Reducing Access to Justice: Legal Aid in Ontario (Part 2)
Blog by Cassandra Beaulac and Arun S. Maini
To read part 1 of this series, please click here.
What is the cost of justice? Of preserving fundamental rights, like the presumption of innocence and a fair trial? Is it worth the cost?
The Liberal government of Canada, and the Conservative government of Ontario, have each chosen to reduce access to justice recently. In this blog we examine the access to justice provided by the Ontario Legal Aid Plan, and how the provincial government’s cuts to that program will impact Ontarians.
On June 12, 2019, the Ontario government of premier Doug Ford announced a funding cut to LAO – to the tune of 133 million – which is about 30% of LAO’s operating budget, retroactive to April 1, 2019. Those who are marginalized and living in poverty will now face the grim prospects of prosecution and an increased likelihood of conviction without a lawyer by their side. This arbitrary cut, made without advance notice, was met by widespread criticism.
There are many reasons why the drastic budget cuts to LAO are problematic for everyone.
To be blunt, the provincial government will no longer fund immigration and refugee services. It sounds harsh because it is. Provincial funding for refugee and immigration services is now completely eliminated. The federal government will now be tasked with covering the costs. In addition to escaping danger and threats in their country of origin, and navigating an unfamiliar legal system, newcomers will now, in many cases, have no legal representation.
Unrepresented Litigants Cost the System More
The provincial government has claimed that the LAO budget cuts will save the government money. But what seems initially to in be a saving is not the case when you look beyond the next quarter. Slashing the LAO budget will force many to navigate the criminal justice system unrepresented and without a lawyer. Unrepresented litigants disproportionately consume criminal justice system resources, both in the measure of efficiency, time and money. Unrepresented litigants have trouble moving their cases through the already bureaucratic system that licensed lawyers in Ontario spend at least seven years in educational training for. This makes their cases more expensive to prosecute, and inevitably more expensive for the taxpayer. If unrepresented litigant cases are spending too much time moving through the courts, this only means that more charges will end up being thrown out because of unconstitutional delays, and limiting the resources available for other cases. At the end of the day, “saving” a dollar is actually doing the opposite of its intended purpose: it will cost Ontarians more in wasted court time; result in more cases being thrown out; and in more wrongful convictions of people unrepresented by counsel.
As unrepresented accused persons are more likely to be unfamiliar and unattuned to the process, they are more likely to be steamrolled, and end up pleading guilty, even when they are not. Simply put, it’s not a fair match. Our criminal justice system is one that is adversarial and can only work well (and fairly) if the prosecution and defense counsel are an equal match. Self-represented accused persons stand no chance against the resources of the state and the experience of a prosecuting lawyer. No amount of online research or binge-watching of Law and Order will prepare a self-represented accused person for court.
Do You Qualify for Legal Aid?
How do I know if I am eligible for legal aid? Qualifying for legal aid is not “black and white.” There is no set automatic eligibility. Amongst other qualifiers (such as facing a charge that carries with it the possibility of jail), an individual will likely qualify for a legal aid certificate if their annual gross family income is lower than the amount in this column:
Many people who are disenfranchised and live in poverty are not captured by LAO’s low-income measure formula. For example, the average one-bedroom rent in Toronto is $2,107 per month. The average cost for childcare (such as preschool or private daycare) is $1,594 per month. The average utility bill of a Toronto apartment is $144 per month. A TTC monthly pass $151.15 for adults, and only discounted to $122.45 for seniors and youth. The costs of living provide for only those living in absolute, destitute poverty to qualify for legal aid. This does not mean that those who do not qualify for a legal aid certificate are well-off.
So what happens if you are not eligible for the certificate program, but still cannot afford a lawyer? This is where community legal clinics fill the very big gap for those who awkwardly fall somewhere outside the formula, missing LAO’s certificate program cut-off. Now, many community legal clinics have been forced to reduce operations, lay off staff, and turn would-be clients away. Many community legal clinics, like Toronto’s Parkdale Community Legal Services (“PCLS”) offer a wide-array of legal services in addition to criminal law, such as landlord-tenant law, wrongful dismissals, and small-claims matters. Amidst an affordable housing crisis in Toronto, PCLS, along with Ontario’s other community legal clinics across the province, will scale back its landlord-tenant legal services, despite the province recently scrapping rent control for new units.
What You Can Do if You Don’t Qualify
Bearing the brunt of the LAO budget cuts will prove trying in the upcoming months. For those who are not eligible for the LAO certificate program, and are ineligible (or unable) to receive legal assistance through a community legal clinic, try the following:
(1) Call LAO’s toll-free number (1-800-668-8258). This service is available Monday to Friday, from 8 a.m. – 5 p.m. This service can provide you with “summary advice” (free help from a lawyer), provide you with information about legal aid services, and information about your legal aid application, if you have made one or are considering making one.
(2) Speak with duty counsel at court. Duty counsel are lawyers who work at court and provide immediate legal help. They can help you quickly assess your legal problem, tell you about your legal rights, obligations and how the court works, and help you inside the courtroom with adjournments, bail hearings, guilty pleas and sentencing.
(3) If you are detained or arrested, call the LAO duty counsel hotline. Every person in Ontario, no matter what their income is, can contact duty counsel service for immediate legal advice when they are detained or arrested. The hotline is available in English and French, or any other language with the use of an interpreter. It’s open 24 hours a day, every day. Let the police officer know you want to speak with duty counsel, and they will call the hotline, and a duty counsel will contact you.
(4) For landlord-tenant matters, speak with tenant duty counsel. Most Landlord Tenant Boards (“LTB”) have on-site tenant duty counsel that can advise you about your rights, obligations and the how the tribunal process works. They can also review and help you prepare your evidence and documents, help with mediation, negotiation and representation (in some cases).
Cassandra Beaulac is an articling student and recent graduate of the University of Windsor Law School
Arun S. Maini is a criminal lawyer and former prosecutor with over 20 years of experience.