Everyone must have access to justice
Fifty years ago this month the Province of Ontario ran an ad in daily newspapers. The ad featured a picture of a lawyer. It being 1967, the lawyer in question was a 50ish male with greying temples and a barrister’s robe. The caption asked the question, “If you had a serious legal problem, could you afford his fee?”
The ad then answered its own question, “You can now.”
On March 29, 1967, a legal assistance plan came into effect that marked the beginning of legal aid in Ontario as we know it. According to the ad, its goal was to see that “no resident of the province shall be denied legal rights because of lack of money.”
That has been the central idea behind legal aid for over five decades: In a liberal democratic society we must ensure that not only people who have been charged with the most serious, even heinous, crimes receive the legal representation to which they are entitled. And that representation needs to also apply to those with more ordinary concerns.
Flash-forward to a few weeks ago. In a recent case that has received a lot of media attention, a judge rebuked the legal aid system in Ontario, stating.
“Is it fair that Legal Aid has decided to fund this easily resolvable case, when every day I see people with much more serious and complex problems who have been denied any help by Legal Aid?”
The judge’s statement is borne of the assumption that the case before him was a frivolous matter and it was pursued only because both parties used lawyers funded by legal aid.
I disagree. There is nothing easy or simple about this type of case or indeed any case we choose. Furthermore, the judge’s decision glosses over any domestic violence implications: There is nothing “easily resolvable” when a person fears for her safety.
I also take exception to how the decision in question goes against the spirit of one of the principles behind legal aid in Ontario since the beginning. This is a tenet that’s even articulated in the ad about legal aid from 1967 featuring the 50ish male lawyer. “Neither the court nor the public knows you have received legal assistance. It is a private affair between you and your lawyer.”
There is a simple reason for this that’s based in the reasons for founding a legal aid system in Ontario. Previously, if you were too poor to afford a lawyer, your options were to represent yourself, or a judge could force a private bar lawyer to represent you as a “charity case.”
The advent of legal aid meant a third, better option: funding to allow people who couldn’t afford a lawyer could now do so, not as a charity case but as someone equal in the eyes of the law.
It’s a simple, but revolutionary idea: everyone deserves, and gets, the same access to justice. This is why one Toronto newspaper editorialized in 1967 that the new legal aid plan was “the most advanced social welfare program on the continent since Saskatchewan (implemented) medicare.” The very principle that no one needs to know whether someone has received legal aid is embedded in that: people on legal aid are not second class citizens, especially in the courts.
In my experience, the people Legal Aid Ontario serve are just trying to navigate the complicated and often overwhelming legal system in Ontario — often at a disadvantage to most citizens.
Imagine the “simplest” of court proceedings, like a bail hearing, or obtaining a restraining order, or dealing with a local Children’s Aid Society. Now imagine those proceedings when you’re a person with a low income, or dealing with mental illness, or the threat of domestic violence, or can’t speak English.
That’s why 50 years ago, the province of Ontario undertook a plan to, in the words of a public service ad, “render justice to every (one) under the law.” 50 years later that principle still holds.