The Canadian government warrants the basic right to professional legal services for citizens who find themselves in certain kinds of legal trouble.
For the purposes of Criminal law, this is especially so if one’s liberty is at stake. The notion of access to justice is a fundamental facet of the Canadian legal system. This is to say that everyone should be entitled to representation before a court of law. By virtue of the access to justice maxim, the need for legal aid is established, i.e. the provision of legal services for low-income families. This paper will describe the services provided by Legal Aid Ontario and address the growing notion that legal aid in Canada is becoming similar to the “public defender” system in the United States.
By virtue of S. 14. (1) of the Legal Aid Services Act (1998) the approved methods of providing legal aid are as follows:
(a) the authorization of lawyers, by means of certificates, to provide legal aid services to individuals or a group of individuals; (a.1) entering into agreements with lawyers, groups of lawyers or law firms under which the lawyer, group or law firm provides legal aid services;(b) the authorization of service-providers, by means of certificates, to provide legal aid services other than legal services to individuals or a group of individuals; (c) the funding of clinics; (d) the establishment and operation of legal aid services staff offices; (e) the funding of student legal aid services societies; (f) the funding of Aboriginal legal services corporations to provide legal aid services to Aboriginal individuals and communities; (g) the provision of duty counsel; (h) public legal education; (i) assistance to individuals representing themselves, including the provision of summary advice, assistance in preparing documents, information packages or self-help kits; (j) the authorization of alternative dispute resolution services. (Ontario.ca; accessed 11 June 2015).
It is evident that the Canadian government together with Legal Aid Ontario provide many different methods of free (or closely thereto) legal help for low-income families. That being so, for a number of reasons the system of legal aid itself is inherently problematic. One particular difficulty is simply that lower income families who rely on legal aid may not get a comparable level of legal expertise as someone who can afford a lawyer privately. This is a two-fold problem; firstly it is logical that the best lawyers will charge the highest fees. If the best lawyers charge the highest fees then there is little incentive for them to take on legal aid certificates or to be generally employed by legal aid (as legal aid certificates only pay up to a certain amount per hour). The Legal Aid Lawyers’ Association (2013) indicates that the minimum salary for a non-management legal aid lawyer is $60,000 while the maximum salary is $107,000. Further, there was only twelve duty counsel or in-house Legal Aid Ontario counsel who broke the $100,000 pay level (i.e. “the sunshine list”), and this was likely due to overtime (Legal Aid Lawyers’ Association, 2013). It is clear to see the lack of financial incentive for lawyers as regards legal aid salaries, especially in contrast to the prospective high salaries of private practice.
It is true that top lawyers often take on pro-bono and legal aid certificate work, but in the end, to acquire a high-end lawyer on a legal certificate would seemingly be, for lack of a better word, lucky. The second part of the problem is this, the government affords legal coverage to low-income families via legal aid, but as the current system demonstrates, those who have money to spend have better access to justice in that they can afford better legal counsel. The government never guarantees equal access to justice, the government simply warrants the notion of access to justice. Some would claim that this is fair and simply a consequence of the capitalist society we live in. Others would argue that the legal system is an elitist entity that very much favours those who possess wealth. To adequately typify this notion, a quote from the then Republican Presidential candidate Charles Evans Hughes is highly relevant, “There is no more serious menace than the discontent which is fostered by a belief that one cannot enforce his legal rights because of his poverty” (NLADA, 2011). The current state of legal aid, even though well intended, will always be flawed by the inequity afforded to those who possess the means to acquire high-end legal services. This is not to say that the lawyers at legal aid offices are not professional, qualified, and otherwise experts at what they do. There are certainly those who would work at legal aid on principle alone. Unfortunately, and this is no over-simplification, it seems logical that if one is an expert in law and there is potential to accumulate vast sums of money based on said expertise, one cannot fault another for choosing the more profitable avenue. The effect of monetary gain on legal aid is a natural consequence of the legal system and society we live in, and one that currently serves as a top hindrance to equal access to justice.
There is a growing belief of the legal aid services provided in Ontario in recent years; the belief is such that the system is headed toward an equivalent of the U.S. system of public defenders. Much like here in Canada, the U.S. government, by virtue of the Sixth Amendment (i.e. the right to counsel), is required to provide legal services for those who cannot afford representation. This was established in the 1963 U.S. Supreme Court case of Gideon v Wainwright. In the U.S. there are multiple ways to receive the equivalent of legal aid, but the most prominent is wrought in the form of the establishment of an Office of the Public Defender. This is to say that the notion of legal aid certificates being taken on by private practice lawyers is by far the exception than it is the rule. As can be derived from abovementioned information, Ontario does not have an equivalent of a Public Defender’s Office, wherein staff lawyers are employed to take care of those who cannot afford private practice representation. As a consequence of the system in the U.S., many believe that lawyers in Public Defender’s Offices are underpaid, and overworked with unreasonable caseloads (NLADA, 2011). Needless to say, these negatives features go to the commonly held view that Public Defender’s Offices are an ineffective and inefficient method to support the growing legal needs of low-income families.
If the equivalent of a Public Defender’s Office were to open in Ontario, it would not only inevitably head down the wearisome route that the U.S. has, but it would also supplant valuable legal work for lawyers who take on legal aid certificate clients. Recall that in 2014, Legal Aid Ontario orchestrated a number of in-house hirings, thus moving closer to resembling a Public Defender’s Office (Kauth, 2014). Essentially, in-house counsel at a Legal Aid Ontario Office is an exact parallel to the makeup of a Public Defender’s Office, i.e. the lawyers as employees of an office, given to, not chosen by, low-income families. Though a spokeswoman for Legal Aid Ontario quickly countered with a statement that legal aid is not moving to a public-defender system and that Legal Aid Ontario believes in a “vibrant private bar” (Kauth, 2014). The concern has been festering though, as reports surface of duty counsel running trials in certain jurisdictions, as opposed to their usual role of first appearance and bail motions. However, Kauth (2014) notes that the duty-counsel manual has always stated that if there is need (i.e., to protect a client’s interests), that it is not bad form for duty counsel to conduct a trial, though it is usually seen as beyond the usual scope of function. In recent years there has also been a decline in the number of legal aid certificates issued to private practice lawyers, though Kauth (2014) argues that this is due to lowered crime rates.
The takeaway point here with respect to the evolution of Legal Aid Ontario is that there are circumstances that exacerbate the inferences made about Legal Aid Ontario going the U.S. route. On the other hand, there are indications that legal aid certificates continue to be the dominant form of legal aid coverage provided. One such example is the Memorandum of Understanding signed in 2010 by the Criminal Lawyers’ Association and the Attorney General. Effectively, on April 1, 2015, lawyers with clients under certificate were given increases to their hourly billable rates (Legal Aid Ontario, 2015). This shows good faith on the part of Legal Aid Ontario as it reflects an understanding of the divergence in legal aid fees and private practice fees. It may be that some jurisdictions are so backlogged that it makes fiscal sense to provide duty counsel with broader legal functions. Overall, the aim should of course be to ensure adequate legal coverage for low-income families. If that means broadening the roles of duty counsel because too many people are attending court unrepresented, then it may be a necessary measure.
Gideon v Wainwright (1963) 372 U.S. 335.
Kauth, G. (2014) New Duty Counsel Not Public Defenders: LAO.
Accessed 11 June, 2015; available: www.lawtimesnews.com.
Legal Aid Lawyers’ Association (2013) Inequities Abound at Legal Aid
Ontario: Legal Aid Ontario Compensation and Staffing. Accessed June 11, 2015; available: http://laolawyers.ca.
Legal Aid Ontario (2015) Lawyer’s Pay Rates to Increase April 1, 2015.
Accessed: June 11, 2015; available: http://www.legalaid.on.ca/en/news/newsarchive/1503-25_tariffrateincrease.asp.
Legal Aid Services Act (1998) S.O. Ch. 26.
National Legal Aid & Defender Association (NLADA) (2011) The Pursuit
of Equal Justice under Law. Accessed June 12, 2015; available: www.nlada.org.