This forum is not purely dedicated to legal discourse. While I may attempt to 'raise the bar' with some pieces relating to law and being a criminal defense lawyer in Toronto, I also plan to use this blog as a medium to express my often critical thoughts on the daily grind that is life. Throw in some random videos and internet fodder, and the bar is sure to be lowered.


Sunday, 30 October 2011

Legal Aid or Band-Aid? Criminal Law and Ontario's Inadequate Public Funding System. Part 1of 8



Introduction

The current legal aid tariff is wholly inadequate: young lawyers shy away from legal aid work; older lawyers search, often in vain, for ways to reduce their overhead; potential clients run the risk of not finding lawyers prepared to accept certificates; and those who do find counsel frequently feel (though not necessarily correctly) that they are less well treated than clients who can afford to pay. The picture is bleak, and without major changes it will likely get worse. In short, this is a crisis in the making. [1]

The funding of personal legal services can certainly be an expensive proposition in Ontario.  Particularly when seeking the services of a member of the private criminal defense bar, an individual can anticipate the prospect of large hourly or block fees, directly proportional to the experience, expertise and reputation of the lawyer.  Although fees are subject to professional restrictions under the Rules of Professional Conduct,[2] the difficult barriers presented by legal costs can directly affect an accused’s ability to access justice, especially when that person is of little or no income.  Thus, legal services in Ontario can be provided through a publicly funded legal aid program.  In fact, the “primary means of public support” for low income parties in criminal litigation is legal aid.[3] 
Legal aid is fundamental to a fair and decent society and is vitally important to maintaining the integrity of the criminal justice system.[4]  We need to ensure that the legal aid scheme can fulfill two vital roles effectively in order to be a legitimate assistance mechanism to a just and equitable criminal process.  First, it needs to be a part of a sophisticated justice system in which public service is necessarily provided primarily by private practitioners running their own businesses.  Second, as an integral part of a welfare state, it needs to contribute to the fight against the social exclusion of the marginalized and/or disadvantaged.  
Some of society’s most vulnerable groups are routinely over-represented within the criminal justice system, including the uneducated, the mentally ill and the unemployed.[5]  These groups are also traditionally among the most likely to suffer economically, often requiring financial assistance to deal with criminal charges.  Thus, every year, Legal Aid Ontario (LAO) serves approximately one million of Ontario’s most vulnerable citizens and has provided countless people with publicly funded legal advice, support and representation, many of whom would otherwise have been denied access to justice because of financial hardship.[6]  Unfortunately, the same people often end up unrepresented or under-represented as a result of the chronically under-funded legal aid system.  The legal aid system should not exacerbate the plight of already marginalized persons by severely limiting or denying their ability to retain effective legal counsel.
It is my contention that while the current Ontario Legal Aid plan attempts to address the government’s constitutional obligation to facilitate adequate legal representation for the impoverished, its historically stark remuneration scheme serves to not only alienate low income clients by effectively limiting their access to justice, but also acts as a disincentive for private practitioners to regularly participate in the program, thus jeopardizing the integrity and proper functioning of the criminal justice system.
In this paper, I will stress the legal justifications and obligations on the state to maintain an adequate legal aid regime.  The provision of adequate legal representation for citizens of all socio-economic classes respects the Rule of Law and accords with our constitutional democratic structure.  More specifically, sections 7, 10(b), 11(d), and 15 of the Canadian Charter of Rights and Freedoms[7] serve to prescribe the provision of adequate and competent legal representation for economically disadvantaged citizens so as to ensure fairness in judicial proceedings.
Next, I will briefly review the significant historical stages of the legal aid tariff regime in Ontario.  Starting with the era prior to the development of the legal aid program in 1951, whereby criminal lawyers provided legal assistance on a volunteer basis, this review will summarize the most significant, yet altogether inadequate, tariff adjustments finalized by those made in 2007.
            Finally, I will address the insufficiency of the modern day legal aid remuneration scheme.  Notwithstanding the various reports which have warned of the impending legal aid crisis, the government has adopted an ad hoc, band-aid approach to legal aid funding.  As a result, the problems created by chronic under-funding have only worsened and the tariff structure’s woeful inadequacy continues, despite being documented and critiqued by independent taskforces and the judiciary.  Fundamental changes are desperately needed in order to make sure that Ontario’s legal aid system fulfills its statutory mandate to provide high quality services to some of society’s most vulnerable members.[8]  It is with this in mind that I will suggest a more appropriate compensation framework which will advocate the immediate increase of the hourly tariff, thereby addressing access to justice concerns and encouraging lawyers of all experience levels to participate in the legal aid program.  It is time to cease the band-aid approach to compensation reform and progress toward the surgical modifications required in order to facilitate a fair and just legal aid regime.


[1] Legal Aid Ontario, Tariff Review Task Force Report by R. Holden and The Hon. F. Kaufman (Toronto: Legal Aid Ontario, 2000) at 3 [Hereafter, Holden-Kaufman Report]
[2] Law Society of Upper Canada, Rules of Professional Conduct, Rule 2.08
[3] Walker, Janet, et al., The Civil Litigation Process (Toronto:  Emond Montgomery Publications, 2005) at 181
[4] Ontario Legal Aid Review, Report of the Ontario Legal Aid Review:  A Blueprint for Publicly Funded Legal Services, by J. McCamus (Toronto: Ontario Legal Aid Review, 1997) at 60-61 [Hereafter, McCamus Report]
[5] Criminal Lawyers’ Association, Media Release, “Submissions of the Criminal Lawyers’ Association to the Legal Aid Review 2007” (2007) at 5 [Hereafter, CLA Submissions]
[6] Law Society of Upper Canada, News Release, “Law Society voices support for sustainable legal aid” (12 February 2007), online at http://www.lsuc.on.ca/media/feb1207_legal_support.pdf
[7] The Constitution Act, 1982, ss. 7, 10(b), 11(d), and 15

[8] Legal Aid Services Act, 1998, S.O. 1998, c. 26, s 1(a)

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