Government’s out to lunch on legal aid system; Fee hike doesn’t address those low and middle-income people unable to afford counsel
By Faisal Kutty – In announcing a 5 per cent increase in legal aid fees starting Aug. 1, Attorney General David Young said that the “increase was the result of our ongoing review of Ontario’s legal aid system.” If this is the best he could do, then we are truly in trouble because the government has totally missed the point when it comes to the legal aid crisis.
Earlier this year, in a lecture to court administrators, Mr. Justice James MacPherson of the Ontario Court of Appeal did not mince words when he said that many low- and middle-income people do not have access to justice.
“This is wrong,” he said, adding that government funding has dropped by approximately 30 per cent over the past decade. “Governments have failed in the area of legal aid funding.”
This 5 per cent increase, the first in 15 years, is a step in the right direction. But it is insignificant and only attempts to address the funding aspect of a much larger legal aid crisis.
The Ontario legal aid program was first implemented in 1951. The first scheme was nothing more than a referral service where the assigned lawyer worked voluntarily for the eligible client. It soon became evident that the plan was inadequate and made excessive demands on volunteer lawyers. Legislation to establish the Ontario Legal Aid Plan was introduced in 1967. Private lawyers would represent clients on legal aid certificates issued to qualified clients for approved legal matters. The Ontario plan also provided for the then unique concept of duty counsel lawyers to represent the indigent who showed up unrepresented in criminal and family courts, albeit for very preliminary legal advice.
Despite these changes, too many deserving Ontarians were being denied legal assistance, concluded a 1997 study by Osgoode Hall Law School professors Patrick Monahan and Frederick Zemans. The authors found that about 70 per cent of low-income litigants were unrepresented. Anybody in private practice, particularly working with minority and underprivileged communities, can confirm that needy individuals with serious legal problems are turned away from legal aid and forced to represent themselves in complex legal proceedings. In fact, the numbers may be even more discouraging than suggested by the study when we consider that some people may not even bother to apply for legal aid, believing that they will be rejected.
The Ontario government reaffirmed its commitment to the system in 1998 and enacted the Legal Aid Services Act. The act established Legal Aid Ontario, mandated with the lofty goal of providing accessible, high-quality legal-aid services to low-income Ontarians.
People with no income or on social assistance qualify for legal aid funding, but others who are in serious financial need are rejected because they fail to meet the strict eligibility tests. With the growing calls for the legalization of contingency fees, we may see better access for some middle- and low-income individuals (though this would be restricted to the areas of law suitable for contingency fee arrangements). What happens to the growing number of people who fall through the cracks because they are not “poor” enough to qualify for legal aid or their matter does not fall within one of the covered areas or they do not have a matter appropriate for a contingency fee arrangement?
A comprehensive critique of the legal aid system is beyond the scope of this article, but suffice it to say that the issues of eligibility and areas of practice covered by legal aid clearly must be reconsidered.
In fact, the Ontario Bar Association argues that the narrow eligibility requirements deny access to a growing number of people. This is certainly not acceptable if we truly believe in access to justice. Numerous studies have thoroughly investigated this issue. The cost of people not being able to use the legal system to protect their rights or defend their interests is far more draining on society than investing to improve the system. As the Canadian Bar Association points out, these costs ranging from costs of wrongful incarceration to job loss are borne by the concerned individuals as well as society.
The second aspect that needs to be seriously evaluated is the restriction on areas of law covered by legal aid certificates. Legal aid is only available for specific legal problems and procedures. In other words, there are situations where the person qualifies, but their legal issues may not be resolved because of the limitation on the areas, procedures and time covered by legal aid. For instance, in the family law area one cannot generally get a legal aid certificate for the actual divorce procedure.
There are situations particularly in certain ethnic and religious communities where women cannot go on with their lives because they are not formally divorced. The former spouse gives them the run around and so they languish virtually as prisoners. In certain cultures where people will not enter into relationships until they are married, the women are stuck because they cannot remarry until their divorce is finalized. These women, usually penniless and unqualified to do any work because of illiteracy and/or language problems, languish in many ethnic communities without the ability to remarry. Eventually a few are lucky to have their matters resolved pro bono with ethnic and community agencies sometimes raising the few hundred dollars in court costs. The situation will be hard to imagine for most people who don’t understand the stigma and utter powerlessness these women face as a result of being, for the lack of a better terminology, “undivorced divorcees.”
According to an Ontario government report published in 2000, titled A Blueprint for Publicly Funded Legal Services, over the past few years, most civil law matters have been eliminated from legal aid coverage. The report details how certificates for debt collection and defence, personal injury, wrongful dismissal, coroner’s inquests, public inquiries, wills and estates, etc., have virtually become nonexistent.
A number of surveys and studies in the United States have found that low-income people consistently identify consumer, employment, utility, and debt problems as areas of great importance. For example, how many low-income and marginalized workers earning barely enough to survive would have a few hundred dollars to seek legal advice about a dismissal? The need of the hour is a more client-centred approach to legal aid.
Earlier this year, Young called “on large firms to devote 3 per cent of billable hours — about 50 hours a year per lawyer — to pro bono activity.” Essentially, he shifted the focus onto lawyers to help deal with the legal aid crisis. Surely, lawyers must do their part, but placing the burden on one stakeholder alone is no answer. There is clearly a need for the profession, the judiciary, the government as well as the general public, particularly those most affected, to come together to strategize on how best to increase access to justice for all.
Young’s attempt to tinker with the system in a token fashion has done nothing to improve the serious deficiencies in the legal aid system. One can only hope that the government truly means it when it says it will “continue to work with Legal Aid Ontario and lawyers’ groups to explore long-term solutions to issues affecting legal aid.”
Faisal Kutty is a Toronto-based lawyer and freelance writer. He is completing his master of laws in civil litigation at Osgoode Hall Law School of York University and will be teaching in the bar admissions course administered by the Law Society of Upper Canada. He also serves as the general counsel for the Canadian Muslim Civil Liberties Association.
Note: First Published Hamilton Spectator (Ontario, Canada) August 8, 2002 Thursday Final Edition
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