Legal aid is necessary because legal services cost money, and not everyone can afford them. Lives and fundamental rights to security of the person are often on the line when facing legal challenges. Our legal system doesn’t work for the poor and working poor of society. Recent cuts to Legal Aid Ontario (LAO) represent a piece of a rotten whole and provides an opportunity to pose larger questions about access to justice beyond breadcrumbs. In this post, I will reflect on these issues, including the role of legal aid, and the prospects for larger challenges to access to justice.
The cuts
On April 11, the Ford government of Ontario cut Legal Aid Ontario (LAO) by 30%, which amounts to $133 million. As part of the gash, they almost entirely eliminated refugee and immigration coverage, with assistance for filling out Basis of Claim forms still in tact (this is about as minimal as possible). From my understanding, zero legal aid money will go towards refugee hearings, immigration detention reviews and challenges to deportations and other immigration issues. Many will face the peril of navigating the complex maze of Canadian immigration law, squared against legally armed government lawyers, defenceless. Losses will mean self-reps never making their case, getting deported to perilous circumstances, staying locked in immigration detention, being separated from their children, etc.
Cuts to LAO will impact low income people facing a host of legal issues as funding cuts are downloaded by LAO onto community legal clinics. Parkdale Community Legal Services (PCLS), the largest of these clinics has been put on notice. They have been delivering necessary legal services to their community since 1971 and currently assist with legal issues including housing, worker’s rights, immigration, social assistance and violence. In a May 3 statement from their board and staff, they stated:
On April 30th, we received communication that Legal Aid Ontario is unwilling to commit to more than one year of funding to the new lease and is unwilling to support any set up costs at the next site. The alternative option presented was for us to move out of our community.
LAO has also indicated that PCLS’ immediate and ongoing funding is uncertain.
The cuts are aimed at poor and working class people facing numerous legal challenges. In response to the cuts, Dana Fisher, spokesperson of the union representing LAO lawyers told CBC:
You’re looking at immediate impacts to defending people’s rights to liberty, to access to justice, to people being able to fight for custody to their children and access to their children, including women who are fleeing domestic violence.
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From the immigration perspective, these are individuals who are facing extradition and torture and persecution and these are real lives that are going to suffer as a result of these cuts,”
Why Legal Aid?
Our legal aid system largely developed post World War II in the course of the substantial expansion of (uneven) wealth in society. In the UK, the 1949 Legal Aid and Advice Act was created to regularize the support for poor people having to navigate the legal system. In Ontario, the Law Society Amendment Act was established in 1951. It helped establish funds for a small number of criminal and civil cases. In the 1970s, community legal clinics grew and eventually spread across the Canada, to assist in the delivery of some legal services to those in need (see this link for a brief overview from LAO). The only reason, I would argue, that legal aid was created at all was due to a contradiction in the rule of law. The rule of law, one of the axioms of the Canadian legal system, states that no one is above the law and that the law applies equally to all (whether sic king or pauper). The legal system is not supposed to be only for the rich and powerful to abuse the poor. Yet, with a money-based legal system, that is exactly what happens. To stem the bleeding and offer a palliative to the poorer in society, we have legal aid. It is a painkiller and coagulant to a legal system where the poor are not supposed to have the same chance as the rich.
The bigger picture of inaccessible justice
In 2013 the Canadian Bar Association issued a report titled, “Reaching Equal Justice”, which was both an overview of the depth of the problem of inaccessible justice and a call to action by lawyers to do more to stem the gap. The authors noted that there was — and nothing has changed on this front — overwhelming public support for legal aid and measures to make legal services accessible (page 16):
While there is generally low public awareness about legal aid, opinion polls have shown that when asked more detailed questions, people express strong and consistent support for providing adequate publicly funded legal aid. Polls have shown overwhelming support (91-96%), with 65-74% expressing the view that legal aid should receive the same funding priority as other important social services. Canadians believe justice systems must be accessible to all to be, in fact, just – and publicly funded services are required to get to equal justice. The current lack of confidence in our justice system suggests instead a perception that justice is inaccessible and even unfair.
It is no wonder that people think that justice is inaccessible. By and large, it is for most. The entire superstructure of legal services, involving the necessity of ongoing training, membership, liability insurance and overhead makes it extremely challenging to offer low cost legal services. The apparatus simply is not designed to deliver these results, but to favour high costs for wealthier clients and serves to give prosecution a default advantage.
As someone who has struggled to make legal service affordable, as a new lawyer, I can say that the challenge of trying to offer affordable services in private practice can be a balancing act on the edge of a cliff, where the lawyer and the client’s financial survival are both on the edge.
The present context
The cuts to LAO could raise a few issues about the legality of further cuts to legal aid, and has the opportunity to create wedge to bring constitutional challenges to other exclusions from mandated government support for legal services. In a recent article, law professors Sean Rehaag and Sharry Aiken stated:
Currently, legal aid must be provided in many criminal proceedings as a matter of constitutional law. The result is that legal aid resources go largely to criminal law services, at the expense of legal services for low-income people facing eviction, intimate partner violence, workplace discrimination, deportation, being cut off social assistance and other important legal challenges.
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… A Supreme Court of Canada case, New Brunswick v G(J), establishes that legal aid is constitutionally required in certain non-criminal legal proceedings where the rights at stake are very serious, where the proceedings are complex and where the litigant is not capable of self-representing — all factors that are present in many refugee hearings.
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It would be ironic if the Ford cuts lead to litigation that establishes not only a constitutional right to publicly funded counsel for refugees, but that also helps pave the way for constitutionally mandated legal aid for low-income and disproportionately racialized people with other important non-criminal law legal needs.
The G(J) case was a marker for access to justice in Canada. It constitutionalized the right to legal aid in cases where parents risk losing custody of their children to the state. At the heart of the matter was the effect that denying legal representation had on the psychological or physical integrity of a person:
1 The Chief Justice — This case raises for the first time the issue of whether indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents’ custody of their children. It comes before the Court as a result of Legal Aid New Brunswick’s decision not to provide legal aid to the appellant after the Minister of Health and Community Services of New Brunswick sought to extend an order granting the Minister custody of the appellant’s three children for an additional six months. The decision not to provide the appellant with legal aid was made pursuant to a policy in force at the time of her application which stipulated that no legal aid certificates would be issued to respondents in custody applications made by the Minister of Health and Community Services.
2 I have concluded that the Government of New Brunswick was under a constitutional obligation to provide the appellant with state-funded counsel in the particular circumstances of this case. When government action triggers a hearing in which the interests protected by s. 7 of the Canadian Charter of Rights and Freedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair. In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel. Where the government fails to discharge its constitutional obligation, a judge has the power to order the government to provide a parent with state-funded counsel under s. 24(1) of the Charter through whatever means the government wishes, be it through the Attorney General’s budget, the consolidated funds of the province, or the budget of the legal aid system, if one is in place.
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58 This Court has held on a number of occasions that the right to security of the person protects “both the physical and psychological integrity of the individual”: see R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 173 (per Wilson J.); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123, at p. 1177; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 587-88. Although these cases considered the right to security of the person in a criminal law context, I believe that the protection accorded by this right extends beyond the criminal law and can be engaged in child protection proceedings. …
As Rehaag and Aiken pointed out, cuts to funding for legal aid for refugees could be considered a violation of the rights to security of the person, as set out in G(J). Constitutional challenges can raise the level of conversation about the purpose of legal aid and broader issues of access to justice. However, attention must be drawn to the far larger problem, whereby poorer workers, who are ineligible for legal aid, will still be unable to afford legal services for many important cases, including when they face criminal charges, evictions or lawsuits.
In the meantime, lawyers, legal aid workers, staff of community legal clinics who are being impacted by the cuts and are pushing back, such as PCLS and the union representing legal aid lawyers.