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How Ford makes crime victim compensation easier | Sam Goldstein

Monday, May 06, 2019 @ 11:16 AM | By Sam Goldstein


Sam Goldstein %>
Sam Goldstein
Premier Ford’s government is taking a lot of criticism for changes to the justice sector. The recent Ontario budget announced a 30 per cent reduction in Legal Aid Ontario (LAO) funding and eliminated certificates for refugee hearings altogether. A Toronto Star headline claimed victims of crime are about to be stiffed in compensation by the Ontario budget; and, the CBC proclaimed that the Ontario Progressive Conservatives were immunizing themselves from civil liability with proposed changes to the Proceedings Against Crown Act (PACA).

If these first drafts of history are correct, then I can’t remember an assault on the legal system since, well, when the federal Conservative Party of Canada was elected, and the time before that, when Mike Harris won his first Ontario majority. Sense a pattern.

The attorney general announced victims of crime pain and suffering claims to the Criminal Injuries Compensation Board (CICB) would be capped at $5,000. The CICB, created by the Ontario Progressive Conservative Party in 1971, is meant to be an alternative to civil recourse for victims of crime. It allows for compensation regardless of whether a defendant is found guilty or has assets to compensate a victim for their injuries.

A criticism of the CICB is that it places an unfair onus on victims to prove their injuries and justify their expenses. Not everyone keeps their medical related receipts, Shalini Konanur, the executive director of the South Asian Legal Clinic of Ontario acknowledges in the Star article.

This government has taken that criticism to heart. Victims will now be compensated out of a dedicated fund. No more adjudication on the merits of a claim. Yes, there is a cap on pain and suffering but the maximum single payment amount for one victim has increased from $25,000 to $30,000. The $12 million reduction in the budget is to be compensated from proceeds of crime seized by the police that are to be rerouted to victims through the Civil Remedies Grant Program.

It’s a fair tradeoff Ford is making between making it easier for all victims to be compensated for their injuries with no hassle at the expense of extraordinary claims by individual victims; however, victims still have recourse to the civil courts — as they always had. If the Toronto Star believed in fair reporting its headline would read: Doug Ford making it easier for victims of crime to be compensated.

As for eliminating legal aid for refugee hearings, immigration is a federal matter. The 2018 Ontario Auditor General Report noted British Columbia Legal Aid (BCLA) received 72 per cent of its funding from the federal government. Ontario received 30 per cent. Yet, BCLA ceased funding their immigration refugee program in 2017. If refugee advocates care about this issue, they should be asking Justin Trudeau for the money.

It's true savings incurred by eliminating refugee certificates will not cover the overall reductions in funding. It’s not true, however, that overall reductions in funding ineluctably mean fewer people will receive legal advice. Legal aid is for low-income earners to receive legal advice, it is not for lawyers to earn a guaranteed income. LAO may need to make cuts, but those cuts do not have to be front-line workers.

I see the present as an opportunity for radical reform. The criminal certificate system represents 50.7 per cent of LAO’s $252.7 million budget for certificates issued in all areas of the law. A public defender system should be adopted now that federal criminal justice reforms increased the number of summary offences to be heard in the Ontario Court of Justice, and by 2021, Toronto will open its new provincial courthouse downtown consolidating all criminal justice stakeholders in one spot. What better time for a pilot project?

Changes to PACA are overstated. A new Crown Liability and Proceedings Act (CLPA) merely states what the Supreme Court has said a thousand times: government policy is not justiciable; and that the Crown itself is not liable for torts committed by Crown agencies, Crown corporations, transfer payment recipients or independent contractors. In addition, the CLPA would provide that plaintiffs must obtain leave of the court before bringing a proceeding against the Crown for misfeasance or other tort claims based on bad faith. These changes are in line with the common law.

Sam Goldstein is a Toronto criminal lawyer. You can e-mail him at sam@samgoldstein.ca, follow him @Willweargloves or visit www.samgoldstein.ca.

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