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Budget cuts: Access to justice NOT just about lawyers | Jorgen Wong and Vivian Leung

Friday, April 30, 2021 @ 2:18 PM | By Jorgen Wong and Vivian Leung

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Jorgen Wong
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Vivian Leung
In 2019, Doug Ford decreased Legal Aid Ontario’s budget by 30 per cent, effectively lowering its funding by an amount of $60 million to $70 million. In the meantime, the pandemic put additional pressure on Legal Aid Ontario (LAO) as the province experienced a sudden strong demand for legal services. One of LAO’s main responsibilities is to provide funding for private lawyers to represent marginalized individuals in court. As noted by the clinic’s then executive director Jack de Klerk, “the elimination of positions [within legal clinics] will be inevitable.”

As such, clinical work dealing with issues such as evictions, unemployment, immigration and criminal charges has been significantly undermined and many services sought by marginalized and underprivileged groups have been disproportionately affected. Community legal services offer a critical voice and work to collectivize individual struggles against the government and powerful bodies. Legal clinics are the last line of defence for people in crisis and LAO’s budget cuts may be seen as a direct attack on advocacy work, the latter having a direct impact on clients.  

Lawyers currently feel obliged to help. The culture of serving the community has been instilled into both the education and the professional ruling body. And in many ways, lawyers and caseworkers have been stepping up to the plate, but resources are limited. LAO stretched the number of services provided during the pandemic, approving payments for extra work and giving funding to pay for volunteer criminal lawyers. But soon Legal Aid will exhaust its budget, which prevents the underprivileged from accessing the justice system.

In the aftermath of the funding cuts from last year and the changing circumstances caused by the pandemic, the need for support for legal clinics has never been more acute. This then raises the question of whether lawyers should take it upon themselves, individually and as a profession, to resolve access to justice problems and help close the gap between Canadians who are able to afford the legal system and those who can’t.

While the Law Society of Ontario needs to regulate legal services to facilitate access to justice, nowhere in the its Rules of Professional Conduct (the Rules) states that the role of the legal profession is to “deliver access to justice.” As noted by treasurer Malcolm Mercer in another publication, “that is the responsibility of the government and the courts.” The law society and practitioners can only go so far to promote the affordability of legal services.

The profession’s obsession with billable hours and the lack of resources for sole practitioners and young associates make it unrealistic for individual professionals to invest significantly in the engagement of pro bono publico. Moreover, it would be inequitable for the legal profession alone to bear the burden of a collective obligation of society as a whole.

The legal landscape has changed and continues to face the challenges brought on by a global pandemic. Lawyers should not be expected to bear the burden of providing access to justice. Access to justice problems are not just about lawyers and the legal profession. In fact, the problem faced by our legal system is not simply one of supply and demand. Even if every individual were able to afford a lawyer, the courts would still be backlogged, as the system lacks the capacity to process all disputes.

As noted by professor Trevor Farrow of Osgoode Hall Law School, “Having access to justice primarily means having available options to prevent, address problems” faced by people in their daily lives. “This requires more than traditional courts and lawyers.” Legal scholars have argued that access to justice should be looked at from the point of administrators — that is judges, courts and lawyers.

Access to justice should be understood through the lens of “users” and not just “providers.” For most individuals, understanding theories about the “rule of law” or “equal rights” are less of a concern as opposed to settling their legal issues, for example, child support payments and/or eviction orders.

Consequently, the question should not be whether lawyers should bear the burden of providing pro bono work, but rather how more collaboration is needed between the justice system, community groups and the government. Having access to justice primarily means having available resources to address and resolve legal issues faced by individuals, which can only be achieved through systemic change.

Jorgen Wong is an articling student at Newton Wong and Associates. He graduated with a J.D. from Osgoode Hall Law School and a Bcom from the University of Toronto. Vivian Leung is a master’s student at Western University studying educational policy. She works at Newton Wong and Associates, managing the research team. The authors would like to thank Eleanor Hemming, Vincent Chu, Aryan Soral and Chelsea Wong for their contributions to this article.

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