Ottawa must help provinces fix legal aid

Posted on June 6, 2016 in Equality Delivery System – Opinion/Editorials – The rights of citizenship should not depend on income. It’s Ottawa’s undeniable responsibility to ensure that they don’t.
June 6, 2016.   Editorial

Access to justice, particularly where liberty is at stake, is a fundamental right of citizenship. Yet, across Canada, low-income citizens are denied that right every day.

It’s a reality one Ontario judge sought to highlight last week when he halted a number of drug charges against Toronto resident Tyrell Moodie until the provincial government agrees to pony up for his legal fees. Moodie earned $16,000 last year, which makes him ineligible for legal aid in Ontario. (The threshold is around $12,000.) But Superior Court Justice Ian Nordheimer estimated Moodie’s legal bills would run upwards of $11,000. That’s just “not realistic” given the defendant’s income, the judge wrote in his decision.

“It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,” the judge continued.

He’s right. People who make twice as much as the legal-aid cut-off still fall below the poverty line. Clearly someone living in Toronto, making $16,000 per year, should not be expected to shell out nearly 70 per cent of his annual salary — money he almost surely does not have — for what is, after all, his constitutionally guaranteed right to justice.

Ontario’s legal aid system is an intractable mess, despite laudable recent efforts by the province to improve it. In 2014, the government committed about $96 million over three years to fix the program — the first funding boost since 1996. Coverage has expanded by 6 per cent per year since then. But that has brought us merely to the current, clearly inadequate, threshold.

Ontario rejected over 150,000 applications for full legal aid in 2013-14, almost twice the number accepted. Most who don’t qualify end up pleading guilty rather than mounting an all-but-doomed self-defence.

Even those who do qualify don’t necessarily get access to justice. The dismal fees legal aid pays its attorneys — nearly 50 per cent less than a paralegal or law clerk would earn at a big Bay Street firm — drive experienced lawyers out of the system. And because their measly payments are structured as a block, rather than as an hourly fee, attorneys often move quickly to strike plea deals, even when that may not be in the best interests of their clients.

Legal advocates argue the province could better allocate resources by putting more money toward lawyers and trial budgets and less into the program’s bureaucracy. These suggestions have merit, and the province should seriously consider them. But Ontario alone cannot fix the problem.

Ottawa has a clear obligation to act on this. The legal aid crisis is a national phenomenon. Sad to say, Ontario’s system, abysmal as it is, is widely regarded as the best in the country.

Yes, the provinces are responsible for the administration of justice, but it’s Ottawa that writes the criminal code and therefore shares significant responsibility for the justice system. In fact, part of the problem is of the federal government’s own making.

A decade of evidence-blind tough-on-crime policies created real burdens for the provinces. At the same time, the federal government has drastically decreased funding for legal aid. When the system was introduced in the early 1970s, Ottawa covered half the cost. Now the proportion is around 13 per cent in Ontario. It’s time the government reconsidered both its approach to crime policy and its obligation to the provinces.

Ottawa needs to take a comprehensive look at the disaster that is this country’s legal aid systems and help lead the provinces out of the mire. The rights of citizenship should not depend on income. It’s the federal government’s undeniable responsibility to ensure that they don’t.

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