New court building catalyst for improved access to justice | Sam Goldstein
Wednesday, June 05, 2019 @ 11:23 AM | By Sam Goldstein
The playing field between haves and have-nots is the most uneven when it comes to criminal law. The state has more money than Croesus to devote to prosecuting a defendant. Legal Aid Ontario (LAO) was created to make sure low-income people could receive legal representation so that our jails do not become full of people who just couldn’t afford to defend themselves.
The decision to reduce the portion of LAO’s funding that comes from the provincial government by $30 million is of concern to ensuring low-income people can afford to defend themselves against the state.
But successive governments, in times of budgetary constraint, have always seen LAO’s budget as low hanging fruit. The reality is however, that with a $15 billion debt we must get creative in levelling the playing field in other ways.
I suggested the new Ontario Court of Justice building in Toronto provides an opportunity to get creative about how this province delivers legal services to low-income defendants and that LAO should investigate running a public defender office out of the new downtown courthouse.
Not surprisingly that idea has met with controversy since so many criminal lawyers in Ontario make a living off the existing certificate program, they have a stake in maintaining the status quo.
The existing LAO system is based on a private bar. Individual lawyers can choose to be paid by LAO to represent defendants who qualify for legal aid. A private bar is seen to deliver better legal representation at less cost than a public defender system.
It is true the U.S. public defender model has problems. U.S. public defenders’ offices are understaffed and not paid well. But we can learn from their mistakes and improve upon a public defender model up here.
The private bar delivery model is not perfect. There are many problems with it that make it less than the optimal way of delivering legal representation. For example, legal aid lawyers are often just as overworked as public defenders. In order to make basic income, legal aid lawyers tend to adopt a volume practice.
There is not enough time in the day to be equanimous with each file. It matters not to the client that her lawyer is a public defender or member of the private bar if she can’t get him on the phone.
The truth is, in Ontario, we already have a de facto public defender system. In order to save money, LAO has retained a few of the large criminal law firms in Toronto to take on legal aid files almost exclusively.
These law firms essentially operate like public defender offices. They hire junior criminal lawyers at low wages and work them as hard as any junior lawyer in a large corporate firm. Defendants rarely know who is going to appear for them on any given court date let alone on the day of their trial.
It is often argued that a public defender system would contravene a defendant’s right to choose her own lawyer. This argument is spurious and is a misunderstanding of the law. The Charter guarantees legal advice, not a lawyer; and, while a defendant has a right to the lawyer of her choice, if they have one, that right is not absolute.
A public defender system may take many shapes. It could be for summary offences only or include indictable offences. The point is that we must start thinking about other ways to ensure low-income defendants can get legal representation other than asking government for more money when they don’t have it.
Sam Goldstein is a Toronto criminal lawyer. You can e-mail him at email@example.com, follow him @Willweargloves or visit www.samgoldstein.ca.
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