Suggested changes to Legal Aid do not make it ‘smarter or stronger’

By Paul Russell, LegalMatters Staff • Proposed amendments to the provincial Legal Aid Services Act seem to be driven more by a desire to cut costs than to service the needs of the disadvantaged, the Toronto Lawyers Association says in a letter to Attorney General Doug Downey and the Justice Committee.

Section 1 of the proposed Act identifies its purpose as facilitating ‘the establishment of a flexible and sustainable legal aid system that provides effective and high-quality legal aid services throughout Ontario in a client-focused and accountable manner while ensuring value for money.’ Gone entirely from this purpose-stating section is any reference to ‘access to justice’ or ‘low-income individuals.’ Instead, the focus seems to have turned to guarding the public purse,” the letter reads.

In a discussion with LegalMattersCanada.ca, TLA past-president Margaret Waddell and association secretary Aitan Lerner explained why Legal Aid is such an important part of the province’s justice system.

‘Legal Aid levels the playing field’

“Legal Aid levels the playing field,” says Lerner, principal of Lerner Law. “While some would argue the state doesn’t have enough resources, it certainly has a tremendous amount of resources compared to individual citizens.

“When someone is charged with a criminal offence and they have the weight of the state bearing down on them, we need to provide defendants with a legal aid certificate so they can retain counsel and exercise their Charter right to defend themselves in a meaningful way,” he says. “If it is not being done in a meaningful way, then what’s the point, as it is just smoke and mirrors.” Not only should the Legal Aid clinics be maintained, they need to be better funded, the TLA argues.

The proposed changes to Legal Aid are just one part of Bill 161, titled the Smarter and Stronger Justice Act, comprising 20 schedules proposing changes to various pieces of legislation.

When he introduced the bill last year, Downey said it would simplify the province’s complex and outdated justice system, but Waddell, a partner with Waddell Phillips Professional Corporation, says the suggested changes to Legal Aid are very worrisome.

Independence is at risk

The TLA is particularly concerned the amendments seem to indicate Legal Aid Ontario will no longer be an independent corporation but will instead be subject to the direction of the government through regulation, and individual clinics will lose their autonomy.

“Taking away the self-determination makes no sense, because each one of its clinics services their own unique constituency, with their own issues and problems,” says Waddell. “These legislative changes take control away from the people who have knowledge of what their community’s needs are and instead puts that control at a corporate level or governmental level, which is counter to the way these clinics should work.”

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As a dual Canadian/American citizen, Lerner says he is familiar with both countries’ justice systems and he is adamant about which one he prefers.

“The criminal justice system in Canada is probably one of the best in the world,” he says. “Justice does not just have to be served, but it must be seen to be served, and our Legal Aid system does that much better than the American system, where those without financial means must rely on lawyers who are paid directly by the government.”

As with other parts of the judiciary, he says Legal Aid must remain independent of government control.

“The judicial independence of the courts is valuable, and so is the independence of the Crown, so it should not be any different when it comes to individuals that have to defend themselves from the state. There should be independence there as well,” he says.

While the government claims the proposed changes will make Legal Aid more cost-effective and efficient, the TLA predicts it will have the opposite effect.

Waddell explains that “money spend on Legal Aid has been demonstrably found to reduce social welfare costs, as it has an ameliorative impact across a broad range of areas, such as housing, employment and mental health issues.”

A great investment for the province

Lerner refers to studies that demonstrate that for every dollar spent on Legal Aid this results in $6 in savings across the province’s social welfare system.

“Why would the government cut a program that is saving Ontario residents so much money?” he asks. “In fact, it could easily be argued the province should instead be putting more money into it.”

That sentiment is echoed in the association’s letter to Downey, which reads: “The TLA is left with the strong impression that the government’s concern is not with providing the barest of essential legal services to disadvantaged Ontarians, but rather with limiting its expenditures from Treasury. If this impression is correct … the objective is misplaced, as funding legal aid provides substantial savings and improves the delivery of justice, as well as providing access to marginalized persons.”

Lerner says another advantage of Legal Aid is that it reduces the number of unrepresented defendants in the courts, explaining they slow the system down due to the extra time required in court to deal with unrepresented accused. This increases the backlog in the courts which means that some cases may be stayed because of the delay per the Supreme Court of Canada’s decision in R. v. Jordan.

It is not in the interests of the public or the state to have the judicial system impaired, and defunding legal aid will have exactly that effect, says the TLA.