Setting the Stage – Justifications for Legal Aid
Canada has an adversarial justice system that anticipates two roughly equal parties presenting their cases before a judge in a court of law. What happens if there is an imbalance of power between the two parties? When an Ontarian cannot afford to hire a lawyer, an imbalance of power exists, especially when the state is one of the parties, as in the criminal law context. Legal aid attempts to correct this imbalance by providing low-income individuals with legal representation at public expense. Thus, the legal aid funding system contributes significantly to ensuring the potential for equal protection and benefit of the law for the poor and disadvantaged in our society.
Criminal law is procedurally and technically complex, and legal representation at the earliest stages of a criminal proceeding can affect the ultimate disposition of a case. Most people are not acquainted with navigating through the various stages of a criminal proceeding and, when unrepresented, may have difficulty dealing effectively with Crown counsel. They may not understand the consequences that flow from the various decisions which must be made along the way and certainly cannot effectively represent themselves in pre-trial motions, trials and sentencing hearings. The prosecution, on the other hand, is always represented by a lawyer specializing in criminal law who benefits from the expertise and resources of their office, the police and, in some cases, expert witnesses. When accused persons are unrepresented, they may be more apt to plead guilty, even if they have a legitimate defence, just to bring the proceedings to an end, thereby increasing the risk of wrongful convictions.
Wrongful convictions, mistaken decisions (e.g. child apprehensions) and abuse of power by police, prosecutors and other enforcement and administrative agencies are inherent, recognized risks in any system of law enforcement. A justice system unbalanced in favour of the state’s enforcement agencies increases the risk of these injustices. An adequately funded “legal aid bar” is an appropriate and necessary check and balance on the power of the state over impoverished individuals otherwise unable to exercise their constitutional rights to legal self-defence.
The inherent power imbalance is just one of the real consequences of an underfunded legal aid regime. What is more, a smaller and underpaid “legal aid bar” means further elevated risks of
- judicial action, such as staying criminal proceedings against poor persons unable to afford or obtain legal counsel in serious matters;
- a rising number of unrepresented persons in court – generating delays and facing an elevated threat of having their legal rights violated;
- vulnerable people and victims being unable to assert their legal rights and remedies;
- inability to implement quality assurance standards for legal aid services as it becomes harder to find anyone to take cases and as service provider morale drops;
- failure to meet provincial constitutional and legal obligations to ensure legal representation to low-income people in certain proceedings
It is this final consequence that is arguably the most damning with respect to the government’s failure to maintain an adequate legal aid system. This is the focus of the analysis in the next section.
 Legal Aid Ontario, Legal Aid Tariff Reform: Business Case (Toronto: Legal Aid Ontario, 2001) at 8 [Hereafter, Business Case]
 Business Case, supra note 9 at 9
 Ibid. at 2-3