October 3, 2014 By: Paul Taylor-Sussex
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The provincial Liberal government’s 2014 Ontario Budget was passed in July, and aims to grant more Ontarians access to legal representation by raising the income eligibility threshold, for the first time since 1996. The budget claims this will ‘allow an additional one million low-income Ontarians to be eligible for legal aid services, more than doubling the number’. Nye Thomas, the director general of policy and strategic research at Legal Aid Ontario (LOA), welcomed the increase, saying, "It addresses a long-standing issue for access to justice in Ontario. It’s going to help thousands of low-income families." LAO has been campaigning for a threshold increase for many years. This post will look at legal aid in Ontario, and across Canada.

Legal aid is an integral part of Canada’s legal system. It gives legal representation to some of the most vulnerable groups in our population, including aboriginal people, immigrants, and people who are unemployed. Without professional advice, these people may not even be able to identify the legal issue at stake, let alone take action to try to resolve the problem. When people are unable to afford legal counsel, they are forced to navigate the justice system unassisted, and often become unrepresented litigants. Without legal experience or background, this ties up the time and resources of the court. It also means that fewer civil cases are settled, and parties may not be able to access the legal remedies they are entitled to. There are economic benefits to increasing access to justice. A frequently cited study commissioned by National Legal Aid in Australia, titled Economic value of legal aid, found that for every dollar spent on legal aid, the justice system could potentially save up to $2.25.

Legal aid is currently governed by the provinces. In Ontario, the Legal Aid Services Act, 1998 was introduced to create Legal Aid Ontario, now one of the largest providers of legal services in North America. One of the most important cases in Canada about the right to legal aid is New Brunswick (Minister of Health and Community Services) v. G. (J.), which was decided in 1999. It concerned a mother who sought legal aid to represent her at a temporary custody hearing. She was denied it because at the time custody applications were not covered under the legal aid guidelines. The court decided that the New Brunswick government was under a constitutional obligation to provide the appellant with state-funded counsel, under section 7 of the Canadian Charter of Rights and Freedoms (‘the right to life, liberty and security of the person’). However, the judgement was careful to make clear that future disputes about access to legal aid would be evaluated on a case-by-case basis, and only ‘in some circumstances’ would the government be ‘required to provide an indigent parent with state-funded counsel’ on constitutional grounds.

More recently, the Supreme Court of Canada decided that court hearing fees imposed by British Columbia in a family law action were unconstitutional. In Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), a litigant was faced with paying $3600 in fees, which she could not afford. The court referred to section 96 of the Constitution Act, 1867, which concerns the jurisdiction of the superior courts, stating that ‘hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts’. The litigant was excused from paying the hearing fee.

The Canadian Bar Association (CBA) has long maintained that there is a legal aid crisis in Canada. A CBA research paper issued in 2010 called Moving Forward on Legal Aid, highlights the uphill battle legal aid has to contend with. The report argues that government support has been dwindling over the last twenty years, unable to keep up with the ‘increasing number of working poor and changing government policies leading to more criminal charges and increasingly complex income support programs’. While the paper does acknowledge that there have been advances in the availability of legal information, the services that are crucially needed – legal representation – are too often not available.

With no federal policy regarding legal aid, there is considerable variation in access to justice across Canada. Ontario, for example, has struggled for a long time to address the problem. However, with support from a sympathetic government, Legal Aid Ontario has recently launched a number of initiatives in an effort to update and reform access to justice. The first is a study looking at expanding the roles of paralegals, so they are able provide people with more detailed legal advice and support. Despite their limited scope, the aim is for the paralegals to alleviate the workload of duty counsel offices. Another initiative is the plan to open six university-operated legal aid clinics, at institutions such as the University of Toronto, the University of Ottawa, and Western University. It is hoped that the university clinics will enhance access to justice for family law cases. This comes on the heels of two programs introduced in August. First, a plan to issue certificates to eligible clients for a family panel lawyer to assist in preparing separation agreements; and second, certificates for legal advice for clients creating an agreement through a mediation process. These moves have been welcomed by family lawyers.

However, not all provinces are faring as well as Ontario. In July, Legal Aid Alberta closed six regional offices and laid off staff in Calgary, Whitecourt and Lethbridge, due to inadequate provincial funding. Defence lawyers across the province said they would withhold services if funding for legal aid wasn’t increased. And last month, Assistant Chief Judge Larry Anderson threatened to stay charges in three criminal assault cases unless legal aid was provided to the defendants. While Alberta Justice intervened and arranged for legal counsel for the three defendants, it highlights the crisis in funding in Alberta, the third lowest spender on legal aid in Canada. Ian Savage, president of the Criminal Defence Lawyers Association in Calgary, said that the province has ‘raised the criteria to an artificial level such that people on (Assured Income for the Severely Handicapped), people with brain injuries, people with ongoing mental health issues, cannot actually get a lawyer.’

Other provinces are also dealing with strained legal aid budgets. In an effort to not only highlight the issue for the public in British Columbia, but also provide some much-needed free legal counsel to those who need it most, Access Pro Bono has organised an Advice-A-Thon in Vancouver, Surrey, Victoria, Kelowna and Kamloops each September. At these events, volunteer lawyers offer free legal advice to clients in an open-air setting. Meanwhile, Nova Scotia Legal Aid recently announced they will expand their services to now include housing and income assistance issues, services that had been cut in the 1990s due to budget constraints. Executive director Karen Hudson said that ‘people that are economically vulnerable have more problems in the areas of social justice, and to give people this upfront help will decrease their interactions with the criminal law and family law systems’.

Funding for legal aid is an issue in many other countries around the world. The United Nations’ Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems is the key international document concerning legal aid, but many countries struggle to reach its ambitious principles. In January this year, for example, a proposal for severe cuts to legal aid funding led to the first ever strike by British lawyers. Senior UK barrister Mukul Chawla said that if the cuts go ahead then ‘the guilty will go unpunished and the innocent will be wrongly convicted.’

The deficiency in legal aid funding in many parts of Canada has been called the ‘silent crisis’, as it affects the most disadvantaged and disenfranchised members of our community. Ontario is fortunate to have had support and funding from the provincial government, and while the system is far from perfect, other provinces have not been so lucky. Supreme Court Chief Justice Beverley McLachlin has been a staunch proponent of legal reform and access to justice. In a speech she made to a University of Toronto conference in 2011, she summarised the problem in Canada as follows, ‘We can draft the best rules in the world and we can render the best decisions, but if people can't have access to our body of law to resolve their own legal difficulties, it is for naught’.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.