Neither the term “access to justice” nor “low-income” appears in the Ontario government’s new bill to revamp the legal aid system.
It’s just one of several key differences between the current act that governs legal aid and the new one proposed in the legislature last week that have some critics concerned the Tories are watering down legal aid, rather than improving access to it.
The new bill grants significantly more power to Legal Aid Ontario — the independent body that manages the system — to determine who can provide legal services, which services and in what areas of the law, and who is eligible to obtain them.
The organization is currently responsible for paying private lawyers to represent individuals who qualify for assistance, such as in criminal or family law cases, and employs lawyers known as duty counsel who work in courthouses and can assist unrepresented people. LAO also provides funding to the province’s 73 community legal clinics, which provide legal services to low-income individuals in areas such as housing and income security.
The province cut $133 million from the organization’s budget this past spring. On Monday, Attorney General Doug Downey confirmed that the province would not go ahead with a previous plan to cut a further $31 million.
The Star has compared the proposed new act with the one in the books now, passed in 1998 during the tenure of Mike Harris’s Progressive Conservative government, and spoke to critics about the impact of notable differences between the two.
Here’s what stands out:
DIFFERENCE: The terms ‘access to justice’ and ‘low-income’
Neither term appears in the proposed act, but both are displayed prominently at the top of the current one, which reads: “The purpose of this act is to promote access to justice throughout Ontario for low-income individuals.”
The existing law goes on to list the ways this can be accomplished, including by providing high-quality legal services, encouraging innovation in providing those services, and recognizing the diverse needs of “low-income individuals and of disadvantaged communities throughout Ontario.”
The purpose of the proposed new act is shorter: “The purpose of this act is to facilitate the establishment of a flexible and sustainable legal aid system that provides effective and high-quality legal aid services throughout Ontario in a client-focused and accountable manner while ensuring value for money.”
The vice-president of the LAO staff lawyers’ union said by removing the terms “access to justice” and “low-income,” the government stripped Legal Aid Ontario of its actual mandate.
“If you’re not saying that we want to ensure that every low-income Ontarian has access to justice, then what is the actual purpose?” asked Dana Fisher. “Is the goal of legal aid just to be cost-effective? Is that actually what the goal of legal aid is? I certainly hope not.”
What is or isn’t set in legislation is crucial, said John Struthers, president of the Criminal Lawyers’ Association, because even though LAO has said it will continue to serve low-income Ontarians, it will no longer actually be required to under the proposed act.
“It’s much like if they repealed the Canada Health Act and said, ‘you know, although we believe people are entitled to health care, we’re not going to make it a duty or legislative necessity anymore,’” he said.
“What they’re doing is repealing the actual legislative basis for legal help for poor people in Ontario.”
The response:
The government says it expects LAO to continue focusing on low-income Ontarians, and that not mentioning the term “low-income Ontarian” in the legislation “merely recognizes that many LAO-funded services may also benefit middle-income Ontarians who can’t afford a lawyer,” said Downey spokesperson Jenessa Crognali.
“We want to be clear: nothing is changing in terms of who we serve and why we do what we do. Our core mandate is still going to be to serve low-income Ontarians,” LAO spokesman Graeme Burk said.
DIFFERENCE: The board of directors
The current act states that LAO’s board of directors will be comprised of a chair, five people selected by the attorney general from a list of candidates recommended by the Law Society (the body that regulates the legal profession) and a further five people selected by the attorney general, for a total of 11 people.
The chair is to be selected from a list of candidates recommended by a committee made up of the attorney general, the head of the Law Society (or their designates) and a third party agreed upon by both.
In the new act, the board can be comprised of “up to 11 persons” appointed by the attorney general. The committee to recommend chairperson candidates has been abolished and instead, the attorney general is to select the chair “in consultation with the Law Society.”
The attorney general is also no longer required to pick five candidates recommended by the law society, and instead can pick three. There are no rules regarding who can be chosen for the remaining positions, should the government decide to have an 11-person board, aside from the fact that no more than five of the board members can be practising lawyers.
The current act lists criteria to be considered when appointing board members, including “the special legal needs of and the provision of legal services to low-income individuals and disadvantaged communities.” It also mandates that the board reflects the “geographic diversity of the province.”
The proposed act lists no criteria for board members.
“Those changes, both individually and cumulatively, suggest the government wants to be able to pull the strings about what happens at Legal Aid and that should be concerning given this government’s track record on access to justice and the Ford government’s apparent love of unqualified patronage appointments,” said Ottawa criminal defence lawyer Michael Spratt, a frequent critic of the government’s handling of legal aid, referring to the Tories’ cronyism scandal earlier this year.
The board changes are even more concerning, Spratt said, because the proposed act also gives LAO more powers to establish rules on things like the financial eligibility criteria to qualify for legal aid and how much lawyers should be paid for specific court matters. (LAO said any major changes would still need government approval.)
“The corporation is being granted expanded powers and the government is expanding their control over the corporation,” Spratt said.
The Ontario Bar Association says it understands that the changes are to allow for more flexibility in the size of the board and not to change the proportionate representation on the board. “We are speaking with the ministry about clarifying the legislation to better reflect this intention,” said OBA president Colin Stevenson.
The response:
Downey spokesperson Crognali said the legislation allows for the board to vary in size and simplifies the process for appointing the chair while maintaining Law Society involvement. She also said it’s the government’s “expectation” that one half of the board at any given time still be Law Society-recommended directors.
Law Society spokesperson Wynna Brown also confirmed that the regulator — which administered legal aid before the creation of Legal Aid Ontario — will maintain half of the directorships on the board.
LAO says it doesn’t believe the board amendments would change anything in practice, pointing out that under both the current and proposed acts, the government is still ultimately responsible for making all the appointments.
DIFFERENCE: “Shall” versus “may”
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The current act says LAO “shall” provide legal aid services in criminal, family, clinic and mental health law. The proposed act says LAO “may” provide legal aid services in those areas of the law, as well as in child protection, human rights, health, employment, education and immigration and refugee law.
Critics say the difference is significant, as “shall” creates a requirement for LAO to provide those services while, they say, “may” leaves it up to LAO to decide.
“Depending on the goodwill of the Ford government to provide adequately funded public services is like depending on the lifeboats on the Titanic. They MAY NOT be there when you need them,” Struthers wrote in an email.
“Changing ‘shall’ to ‘may’ is changing it to ‘may not.’”
Fisher said the change sets LAO up to be an organization with few requirements, aside from having to provide lawyers to individuals when ordered to do so by the court.
“Previously the government said to Legal Aid Ontario, you shall provide legal aid services to low-income Ontarians and provide them access to justice in criminal law, family law, clinic law and mental health law,” Fisher said. “You shall do that. Here is your pot of money, here are the rules that you shall do that. There’s no question mark.
“Now, it says here’s some money, you may provide legal aid services in these areas. If you don’t, it’s not our fault. It kind of strips the government of all responsibility.”
The response:
“We want to be clear and unambiguous: we will continue to provide legal aid services in all the areas of law we presently offer including criminal law, family law and refugee law,” Burk at LAO said. “The current Legal Aid Services Act does not list every service that Legal Aid Ontario provides. The point of this new bill, if passed, is to offer LAO the flexibility to be responsive to client needs, to innovate, to explore new and better ways to deliver services and to address gaps in the justice system.”
Downey spokesperson Crognali said the proposed changes are to “give LAO the flexibility to provide high-quality, client-focused legal aid services in an accountable manner.” She pointed out that the legislation makes clear the “foundational role” of private lawyers in providing criminal, family and child protection services and the foundational role of community legal clinics in providing poverty law services.
“Any suggestion that legal aid wouldn’t be providing these kinds of legal aid services ignores this foundational language,” she said.
DIFFERENCE: Who pays?
A new section added to the proposed act says that when a court has ordered that a person be represented by a lawyer, Legal Aid is to pay for the lawyer, even if the court has ordered the government to pay.
One example of a situation where the court has appointed a lawyer is known as a “Rowbotham” order, in which the court orders the government to pay for legal representation for an unrepresented accused person who has been denied legal aid in a complex criminal case, but who the court has found would not be able to properly represent themselves.
“Despite any order of a court requiring that the cost of providing services under this section to an individual be borne by the Attorney General of Ontario or the Crown in right of Ontario, the cost of providing the services shall be borne by the Corporation,” reads the section in the proposed act.
Critics have slammed that section as a potential “secret cut” by the government, as these court orders can potentially cost millions of dollars a year and would presumably have to come out of Legal Aid’s already downsized budget.
“It’s something that needs to be clarified so there’s no confusion,” said Struthers.
“When they say there’s no further cuts that’s great as long as this doesn’t amount to one.”
The response:
Downey spokesperson Crognali said a funding protocol has been in place between the ministry and LAO since 2007 that says LAO oversees the payments to court-appointed lawyers and the ministry covers the costs.
“The government will continue to cover these costs once the legislation is passed, under a formalized agreement,” she said, adding that the funds would be in addition to the $267.3 million the government already provides LAO.
Correction, Dec. 15, 2019: This article has been amended from a previous version that stated that the Ontario government will cut a further $31 million from the legal aid system. In fact, Attorney General Doug Downey confirmed that the province would not go ahead with the planned $31 million cuts.
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