‘Little guy’ harmed by legal aid cuts
Not so long ago, indigent defendants facing the gallows in this province were often compelled to rely on defence lawyers willing to represent them free of charge.
The morally driven lawyers who took on this task knew that shoddy evidence, unfair courtroom tactics or a passive judge could swing the outcome of a case. Without a dedicated and skilled lawyer defending the case, justice could be elusive. Thankfully, the gallows are a thing of the past and legal safeguards have been enshrined to help even the odds of a vastly uneven playing field. Of these, none is more vital than having a legal aid program that ensures that poor Ontarians do not have to defend criminal charges alone and that they have some choice as to what lawyer they hire to assist them.
All of which brings us to the shattering repercussions of Ontario’s recent budget cuts to the legal aid program. Ragged from years of underfunding and misbegotten experimentation, the program has been struck a disastrous blow.
An announced 30 per cent budget cut to Legal Aid Ontario — amounting to a total reduction of $167 million by 2021 — puts into jeopardy the ability of poor defendants to have a lawyer assist them, which in turn will drag down the system, lead to wrongful convictions or see cases tossed for unreasonable delay. How are judges to deal with this impending disaster? Are Ontarians prepared to stand by while the poor, the destitute and the mentally ill are unfairly deprived of their freedom? Legal aid was founded on a simple notion: Those without resources could qualify for a “certificate” allowing them to obtain a private lawyer. Counsel were compensated with a modest, hourly rate for work performed, very much as physicians are paid under OHIP.
Legal aid has never been a soft touch. To qualify for a certificate, defendants must have an annual income under $17,000. Nor has the program been a financial windfall for defence counsel. Lawyers working on legal aid cases make about one-fifth of what they would typically bill a private client. They are responsible for their own overhead, pensions and benefits.
In1990, $123 million — about 71per cent of Legal Aid Ontario’s budget — went into legal aid certificates. In 2018, $124 million was budgeted for certificates; an amount that had come to represent just 25 per cent of LAO’s budget. In other words, notwithstanding inflation and the growing complexity of criminal law, the certificate system was being steadily strangled.
As certificates were being slashed, LAO was bloating with administrative and operating costs. Wrong-headed ventures — hiring senior staff lawyers, experimenting with quasi-public defender offices, and the like — burned up valuable resources. Successive federal governments, meanwhile, exacerbated the growing crisis by reducing or underfunding transfer payments, thereby precipitating unconscionable cuts that have harmed immigration, refugee and family law claimants, as well as the criminal accused.
It is a truism that our justice system is characterized by unequal outcomes. The courtroom is a foreign domain with a language of its own — territory that is notoriously difficult to traverse without an experienced guide. And, as any judge or prosecutor can attest, litigants who conduct their own defence tie the system in knots.
Self-represented litigants are unable to effectively negotiate with the Crown or to address the intricate nuances of forensic evidence, digital data and courtroom procedure. These litigants tend to be overwhelmed, passive or belligerent. They are more likely to self-destruct than to move the process forward. Legal proceedings end up being adjourned or elongated. Victims and witnesses are inconvenienced and frustrated. Judges are faced with the prospect of either helping the self-represented defendant or else appointing counsel — paid for by the government — to provide guidance. In short, the absence of defence counsel is a false economy in every way. Premier Doug Ford has come to power with a promise to speak up for the voiceless “little guy.”
He cannot now leave it to the captain of the sinking ship — LAO’s bureaucracy — to decide where cuts that harm his core constituency will be made. To save legal aid, he needs to listen to those who receive it and to those who provide it.