B) Other Statutory Provisions
i) Legal Aid Services Act, 1998
In 1998, the Ontario government enacted the Legal Aid Services Act, 1998 in which the province seemingly renewed and strengthened its commitment to legal aid. The Act established LAO as an independent not-for-profit statutory corporation with broad authority in the design and administration of the legal aid system in Ontario. The Act requires LAO to have regard to the fact that the private bar is the foundation for the provision of legal aid services in the areas of criminal law.
LAO’s mandate is to create and administer a cost-effective and efficient system for providing high quality legal aid services to low-income Ontarians. The further express objectives of the corporation are outlined in ss. 4 (b)-(f) of the Act:
(b) to establish policies and priorities for the provision of legal aid services based on its financial resources;
(c) to facilitate co-ordination among the different methods by which legal aid services are provided;
(d) to monitor and supervise legal aid services provided by clinics and other entities funded by the Corporation;
(e) to co-ordinate services with other aspects of the justice system and with community services;
(f) to advise the Attorney General on all aspects of legal aid services in Ontario, including any features of the justice system that affect or may affect the demand for or quality of legal aid services.
Under the Act, the government retains authority to make regulations on a number of substantive matters, including financial eligibility requirements for legal aid and the tariff of fees and disbursements. In combination with the above express objectives, this authority retention places heavy accountability and an express obligation on the provincial government to ensure the adequate provision of publicly funded legal services to those in need.
Provinces are further obliged by law to provide publicly funded legal assistance under two pieces of federal legislation, the Youth Criminal Justice Act and several sections of the Criminal Code.
ii) The Youth Criminal Justice Act
ii) The Youth Criminal Justice Act
Section 25(4), (5) of the Youth Criminal Justice Act establishes an explicit entitlement to publicly funded legal assistance for youths charged with offences under that legislation. The provision which requires that such assistance be made available on a mandatory basis, once requested, reads as follows:
25 (4) When a young person at trial or at a hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth justice court before which the hearing, trial or review is held or the review board before which the review is held
(a) shall, if there is a legal aid program or an assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or
(b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, may, and on the request of the young person shall, direct that the young person be represented by counsel
25 (5) When a direction is made under paragraph (4)(b) in respect of a young person, the Attorney General shall appoint counsel, or cause counsel to be appointed, to represent the young person.
In essence, a young person seeking counsel is to be referred to the provincial legal aid program and, where legal aid is unavailable, counsel shall be provided at provincial public expense and, in the absence of such a request, at the discretion of the trial judge. In Ontario, the typical arrangement is that counsel is paid by the Legal Aid Plan at legal aid rates. The service coverage afforded by the Act is broadly regarded and applies to any stage of the proceedings and is not limited to cases which are serious and complex. While these sections apply to only to youths who may be considered vulnerable and may not have the same resources available to them as their adult counterparts, it is arguable that adults facing financial hardship or other recognized vulnerabilities are somewhat analogous with respect to the need for publicly funded counsel.
iii) The Criminal Code
The Criminal Code provides some obligations on the provinces to ensure adequate public funding in criminal matters. The provisions of the Code dealing with accused persons who suffer from a mental disorder contain two sections which establish a right to counsel. The first provides that the Court shall order representation for an accused where the Court has reasonable grounds to believe that an accused is unfit to stand trial. The second provides that a court or a review board conducting a disposition hearing shall assign counsel to act for any otherwise unrepresented accused who has been found unfit to stand trial or wherever the interests of justice so require.
Moreover, three sections of the Criminal Code confer a discretion on the judiciary to appoint counsel on appeals to a provincial court of appeal, the Supreme Court of Canada and on summary conviction appeals where it is in the interests of justice that the accused have legal assistance and the accused lacks the resources to obtain assistance.