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Access to justice without access to funding: legal aid cuts | Kelly Goldthorpe

Monday, May 06, 2019 @ 8:36 AM | By Kelly Goldthorpe

Kelly Goldthorpe %>
Kelly Goldthorpe
“If they actually looked into it, there is more money being spent on lawyer fees and less cases. The people that actually need the system to help them, they aren’t getting the proper support. We have to hold these people accountable. When there’s more money to the lawyers and less money to the people, I’ve got an issue with it.” — Ontario Premier Doug Ford, April 22, 2019.

Legal Aid Ontario (LAO) is mandated by statute to promote access to justice for low-income individuals. Legal aid is delivered through services such as summary legal advice, duty counsel services, legal aid clinics as well as a certificate program for eligible low-income clients to retain a private lawyer. Ensuring that there is a robust, publicly funded legal aid system to meet the needs of the province’s vulnerable population is a key component of a just society. It is one of the means of providing access to justice.

The Ontario budget announced a 30 per cent reduction in funding to LAO. Attorney General Caroline Mulroney focuses on only two stakeholders, LAO clients who use the services and taxpayers who pay the bills. Premier Doug Ford has taken issue with funding legal aid, implying that more taxpayer money is going to lawyers and less money to the people. Yet the whole point of a legal aid system is to help low-income Ontarians pay for crucial legal services.

Private bar lawyers, duty counsel, clinic lawyers and LAO lawyers play a key role in delivering crucial legal aid services to low-income, disadvantaged and vulnerable clients. According to LAO, there are about 3,600 private practice lawyers (out of about 25,000 practising lawyers in Ontario) who accept legal aid certificates to recover some legal costs. There were also 74 community legal clinics that provide legal services to qualifying low-income residents of Ontario in family, criminal, housing, employment, refugee and immigration and other civil matters.

In an already underfunded system, lawyers who accept cases with legal aid certificates are only compensated for a fraction of the work that they do. The amount of time and resources needed to prepare for a matter often exceeds the amount of time allocated in the certificate.

Legal aid certificates do not cover a lawyer’s hourly billing rate and are not enough to cover fixed costs associated with running a private practice. The work is often unrecognized and underappreciated, requiring hours of research, investigation, drafting, court appearances and client meetings. Yet lawyers are vilified for being expensive or exploitive. The very system that needs lawyers to deliver services is expecting them to do more with less resources. Overall lawyer satisfaction was only 53 per cent positive (2017-2018 Legal Aid Ontario Annual Report).

It is safe to suspect that most lawyers who work within the legal aid system did not go into the profession expecting to earn a huge salary or live a lavish lifestyle. Rather, promoting social justice, fighting for individual rights and helping vulnerable people navigate through complex legal issues is what compelled many to work in this system.

Having legal representation matters. For example, with refugee claims, 57 per cent of cases that were represented by lawyers were successful, compared to 15 per cent of unrepresented claimants (Sean Rehaag, The Role of Counsel in Canada's Refugee Determinations System: An Empirical Assessment, Osgoode Hall Law Journal 49.1).

Navigating a complex legal system is challenging and stressful, but without the assistance of legal counsel, the process can be even more daunting and overwhelming. These are complex processes that involve legal expertise, understanding of leading case law, procedure, timing and sensitivity.

For immigrants and refugees, these challenges may be worsened by language barriers and previous trauma. A negative decision could result in returning a refugee claimant back to a country to face risk of detention, torture or even death.

What will happen when there is less funding available? Measures are already in place in the aftermath of the funding announcement which has resulted in LAO cutting jobs and offering fewer legal services, particularly in the immigration and refugee areas. Without legal aid, 44 per cent of LAO clients would have gone unrepresented. Many more will go unrepresented which can lead to backlogs in the courts and hearings, further exerting pressure on the administration of justice.

People who cannot access legal aid will have to seek alternative ways to pay for legal counsel. They may have to prioritize legal costs over basic needs. This in turn can lead to additional draws on already scarce resources such as social assistance, emergency shelters, housing subsidies and food banks. There may be fewer private practice lawyers who can afford or be willing to accept legal aid certificates, limiting available resources even further.

Society needs to ensure that those who cannot otherwise afford legal advice or representation have a system of legal aid to assist them with their legal issues when the need arises. Premier Ford said, “If anyone needs support on legal aid, feel free to call my office. I will guarantee you that you will have legal aid.” It is unclear how the premier will fulfil this guarantee given the cuts to funding, but this is perhaps one way of trying to get access to justice.

Kelly Goldthorpe is a lawyer at Green and Spiegel LLP

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