Toronto Star

‘Little guy’ harmed by legal aid cuts

- MICHAEL LACY AND DANIEL BROWN OPINION

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.

 ??  ?? Daniel Brown is a criminal defence lawyer and a vice-president of the Criminal Lawyers’ Associatio­n. Follow him on Twitter: @danielbrow­nlaw
Daniel Brown is a criminal defence lawyer and a vice-president of the Criminal Lawyers’ Associatio­n. Follow him on Twitter: @danielbrow­nlaw
 ??  ?? Michael Lacy is a criminal defence lawyer in Toronto and the president of the Criminal Lawyers’ Associatio­n. Follow him on Twitter: @crimlacy
Michael Lacy is a criminal defence lawyer in Toronto and the president of the Criminal Lawyers’ Associatio­n. Follow him on Twitter: @crimlacy

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