Legal aid off limits to all but the poorest

System must change to allow fair access for all

Last year, in a speech to the Canadian Bar Association, Chief Justice Beverley McLachlin identified “access to justice” as one of the most pressing issues currently facing the legal profession and the administration of justice.

There are not enough judges, she noted. Lawyers can be expensive. And long delays are the norm. This is the case, she remarked, in the civil context. Litigants are often priced out of the courthouse. Justice, for that reason, can be out of reach for those of modest means.

The same is true in the criminal justice system.

It has been said that the Canadian justice system caters to only two extremes. The wealthy at one end can afford effective legal representation. Corporations can defend themselves against allegations of corruption and fraud.

At the same time, the very poor, when charged with serious offences — such as murder, aggravated assault or drug trafficking — are covered by the provincial legal aid plans.

What about those caught in the middle? The middle class, or even the underemployed, do not usually qualify for legal aid.

In Ontario, Legal Aid Ontario administers the criminal law “certificate program.” It issues vouchers to low-income Ontarians that guarantee legal representation by criminal lawyers who choose to take these cases at the reduced legal aid rate.

Most Canadians would be shocked by the income cutoffs for the certificate program. A single person will not qualify for free legal aid if he or she makes more than $10,800 a year. The absolute cut-off for a four-person household is $24,067.

In addition, to qualify for a legal aid certificate, the matter must be deemed sufficiently serious. In general, regardless of financial eligibility, certificates are issued only when the accused person faces the likelihood of jail if convicted.

It is easy to see how these two criteria can result in many low-income defendants being unable to qualify for state-funded representation.

On the one hand, according to Statistics Canada, a single person living in a major metropolitan area falls under the official low-income line with a pre-tax income of $23,298 — more than double the legal aid eligibility cutoff. A person can therefore be living well below the poverty line yet still be too “well-off” to qualify for legal aid.

As the Ontario auditor general pointed out in a 2011 report, the legal aid cut-off for a single person is so low that “someone working full time at the minimum hourly wage would earn twice as much.”

The “seriousness of the offence” requirement bears closer examination as well. Of course, the prospect of imprisonment is the most serious consequence hanging over the head of a criminal defendant. But it is not the only one.

In our society, any individual convicted of a crime invariably must wear a scarlet letter, regardless of the actual sentence imposed or the seriousness of the offence itself. Criminal background checks make employment difficult to attain for convicted persons, particularly for betterpaying civil service jobs.

As the present government makes pardons (now “record suspensions”) increasingly inaccessible, the stain and stigma of a criminal conviction is becoming progressively more permanent.

And yet, for the purposes of government-funded legal counsel, even for an individual with no criminal record, the likelihood of imprisonment is the trigger.

The administration of justice is brought into disrepute where the financial playing field is tilted dangerously in favour of the state and, by extension, against the defendant — the one player in the system who has everything to lose.

Access to justice for criminal defendants is also a matter of fundamental fairness.

In 2013, it is expected that Legal Aid Ontario will spend roughly $80 million on the criminal certificate program.

Does that sound like a lot? Consider the 2012 findings of the auditor general that Ontario spends $256 million a year on the prosecution of criminal charges.

That figure, of course, does not take into account the vast sums spent on provincial and municipal police forces, whose members also participate in the laying of charges and prosecution of Criminal Code offences throughout Ontario.

In other jurisdictions, governments have recognized the need for parity in funding prosecutors and stateaided criminal defendants. In the mid-1970s, the U.S. Justice Department formulated policy guidelines, guaranteeing that publicly-funded defendants must have access to legal resources “not less than that provided for other components of the justice system with which the defender must interact, such as the courts, prosecution and the police.”

Of course, in Ontario, the legal aid rate paid to criminal defence counsel is far below both the ordinary private rate and the fees rate set by the government for private legal counsel in the civil or administrative context.

Once again, the United States leads in this regard. In the federal appellate system, where lawyers are appointed to represent indigent persons, the governing policies require that their compensation shall be “reasonable” and “at a rate commensurate with that paid for other contracted government legal work or with prevailing rates for similar services performed by retained counsel in the jurisdiction.”

The administration of justice is brought into disrepute where the financial playing field is tilted dangerously in favour of the state and, by extension, against the defendant — the one player in the system who has everything to lose. Perhaps it is time for Canadians to rethink their approach to state-funded counsel and ensure that our courthouses are truly places where justice is done — and seen to be done.