Access to Justice: Legal aid critically important part of justice system | Beverley McLachlin
Friday, July 19, 2019 @ 9:46 AM | By Beverley McLachlin
Response to this news was swift, particularly in the legal community. Many people have written about the importance of legal aid, have signed petitions and have protested the cuts. Legal aid services, clinics and lawyers have done their best to find ways to serve their clients while issuing pink slips to staff. I would like to use this short column to lend my support to all those who are continuing to provide legal aid services in Ontario and across the country, and to add my two cents to the case for the value of legal aid.
Legal aid is often used by governments as a political volleyball that can be swatted out of bounds in the name of fiscal expediency. After all, people who need legal aid are not the largest voter base — an old trope. This perspective fails to appreciate the overarching value that a strong legal aid program brings to society — ensuring justice is done and can be seen to be done effectively and efficiently, and enabling people facing urgent legal issues to find meaningful resolution. These are principles that should matter to all voters.
No country has legal aid perfected — every model has its challenges. Although they typically fall short of ideal, Canada’s provinces have generally tried to find a positive balance in terms of providing help within the confines of political budgets and agendas.
Regressive decisions by governments that result in cuts that go far beyond the boundaries of “streamlining” move Canada farther away from the principles of law, the structure and requirements of our justice system and, if that’s not enough, it is shortsighted fiscal policy.
Legal aid essential to exercise of Charter rights
Legal aid is required to ensure that the rights set out in the Charter, including the right to counsel, fair trial and the presumption of innocence, can actually be exercised by those who seek to rely on them. In addition to these key rights, legal aid impacts on the Charter right to a trial within a reasonable time, which the Supreme Court mandated in R. v. Jordan 2016 SCC 27. Courts across Canada are working hard to ensure they meet the Jordan limits; lack of legal representation can make this impossible.
Legal aid essential to effective functioning of justice system
Our court model is based on an adversary system, which requires lawyers for both sides. If one side doesn’t have a lawyer, the system is skewed in one of two ways. One, the accused may not understand how to exercise rights, present a defence or make arguments, potentially resulting in an unfair trial and possible wrongful conviction. Or two, the judge leans over backward to help the unrepresented person and in effect runs his defence for him, which can challenge the appearance of impartiality.
For our court system to work properly, people in court, particularly in trials that impact on their liberty such as criminal and refugee matters, need lawyers.
Legal aid essential to economic efficiency of justice system
Cutting legal aid is shortsighted and may cost provincial governments more than providing legal aid — it doesn’t make sense in economic terms. More court days, the risk of aborted hearings, the risk of wrongful convictions may lead to more appeals and other procedures to remedy things gone wrong. Short-term savings to the budget will be more than offset by added costs down the road due to lack of legal representation.
Cutting legal aid funding does not eliminate the need. Unfortunately, the equation works in the opposite direction. Indeed, immigration and refugee cases have increased in Ontario over the past few years. Vulnerable individuals will continue to have serious legal issues that, without legal aid, will be unsupported, causing a greater financial drain on the system, longer time to less reliable resolutions, and an overall deficit in the application of the principles of justice that we hold dear.
The Right Honourable Beverley McLachlin served as chief justice of Canada from 2000 to mid-December 2017. She now works as an arbitrator and mediator in Canada and internationally and also sits as a justice of Singapore’s International Commercial Court and the Hong Kong Final Court of Appeal. She chairs the Action Committee on Access to Justice in Civil and Family Matters.