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Law Society voices support for sustainable legal aid
The following is taken from a press release from the Law Society of Upper Canada:
Toronto, February 5, 2007. The Treasurer of the Law Society of Upper Canada, Gavin MacKenzie, today expressed the Law Society’s continuing concern over the need for a well-funded and sustainable system of legal aid in Ontario.
“We believe that the right of vulnerable citizens to legal assistance is an important component of the administration of justice in a free and democratic society,” the Treasurer said. “Since the Ontario Legal Aid Plan was founded in 1967, the Law Society has recognized that legal aid should be considered a right, not a charitable gift, and that individuals are equal before the law only if they are assured the option of legal representation.”
“More than a million Ontarians benefit from Legal Aid Ontario every year, many of them through our excellent clinic system”, he added. “Legal aid also helps many vulnerable Ontarians with family law, criminal law, workers' compensation, immigration, landlord-tenant and other legal issues.”
“But there are still many thousands of individuals in Ontario who cannot afford legal services and do not qualify for support from the system. The income threshold is far too low – if you earn just over $13,000 a year you are too rich to qualify for legal aid. We are alarmed by the dramatic increase in the number of people who try to represent themselves in court without the benefit of legal representation or advice about their rights. Others simply give up their right to a fair hearing. For all of these people, access to justice is denied.”
The Law Society regards the Attorney General’s appointment of Professor John McCamus to review legal aid funding and the establishment of a working group with Legal Aid Ontario as important steps toward the development of strategies to improve the efficiency and effectiveness of legal aid, including the provision of adequate and stable funding.
BACKGROUNDER ON LEGAL AID IN ONTARIO
As early as the 1920s, lawyers in Ontario recognized the need for a legal aid system in this province. The need became palpable over the next two decades, and in 1951, Ontario became the first province in Canada to pass legislation establishing an organized legal aid programme.
Since that time Ontario’s legal aid programme has undergone several transformations. Initially, the programme was controlled by The Law Society of Upper Canada (the “Law Society”) and financed by the provincial government. Those in need of legal aid services went to their local law association and sought eligibility based on proof of legal and financial need. Only criminal and civil law proceedings were covered at that time. Lawyers provided legal assistance on a volunteer basis and were only paid for disbursements and administrative expenses – not their labour.
The voluntary plan was unable to adequately meet the demand for legal aid services, and in 1963, a Joint Committee of the Ontario government and the Law Society was appointed to develop a new system. The Joint Committee recommended a formal system modelled on the legal aid plans of England and Scotland where private lawyers acted for clients on legal aid certificates and were paid for their services. Based on the Joint Committee’s recommendations, the Ontario government created the “Ontario Legal Aid Plan” in 1967.
It soon became clear that, while low-income individuals needed legal aid certificates in growing numbers, they also needed many legal services that the private bar could not provide. To service those needs, the first “community legal aid clinic” opened in Toronto in 1971. Clinic lawyers focused on poverty law services such as workers’ compensation, social assistance, and landlord-tenant disputes. They also worked on community legal education and important law reform and community development initiatives. Initially funded by charitable grants, the clinics began to receive provincial funding in the mid-1970s.
Both the legal aid certificate programme and the community legal clinic programme grew substantially throughout the 1980s and 1990s. Several factors – including an economic recession – led to a dramatic increase in the need for legal aid certificates by Ontarians in the early 1990s. That same decade, federal contributions to provincial legal aid programmes were capped.
Another review of Ontario’s legal aid system was conducted in 1997. The resulting “McCamus Report” recommended the creation of an independent body to govern the Legal Aid Plan. In response, the Ontario government created Legal Aid Ontario (“LAO”) – an independent, publicly funded, publicly accountable non-profit corporation that continues to administer the province’s legal aid programme today.
LAO is the second largest justice agency in Ontario and one of the largest providers of legal services in North America. Every year, LAO serves one million of Ontario’s most vulnerable citizens. Its clients often have language and cultural issues, literacy and education issues, or mental health issues. Some clients have drug or alcohol dependency, or may have experienced domestic violence or human rights violations. LAO provides services in a number of different ways, including certificates, duty counsel, community legal clinics, public legal education, alternative dispute resolution, and self-help materials.
Individuals seeking legal aid are still subject to a review of both their financial circumstances and the type of legal problem they are facing. In some cases, clients are required to make some financial contribution to the cost of their legal services. To be clear about whom LAO is assisting, LAO indicates that an individual will probably be eligible for legal aid if their net annual income is at or below $13,068.
What Ontario lawyers perceived in the 1920s, what the Joint Committee expressed in the 1960s, and what many people experience first-hand in Ontario courts every day, is that individuals are equal before the law only if they are assured the option of representation by counsel. In a democratic society, everyone should be able to participate fully in society and have their rights protected.
Canada has an adversarial justice system that anticipates two roughly equal parties presenting their cases before a judge in a court of law. What happens if there is an imbalance of power between the two parties? When an Ontarian cannot afford to hire a lawyer, an imbalance of power exists, especially when the state is one of the parties, as in criminal law and child protection cases. Legal aid attempts to correct this imbalance by providing low-income individuals with legal representation. The legal aid system contributes significantly to ensuring the potential for equal protection and benefit of the law for the poor and disadvantaged in our society.
Like its predecessors, LAO continues to grapple with funding pressures while the demand for services continues to rise. Many factors influence the demand for legal aid services. In addition, LAO has never achieved predictable, inflation-protected funding. Numerous cost-saving and other initiatives have been implemented by LAO and by the government – from diversion programs in criminal law, to the expansion of settlement conferences in family law, to wider use of duty counsel – in an effort to reduce legal aid costs. While these initiatives have been valuable in many cases, they have not put LAO on a sound financial footing.
A copy of the press release in Word format is included below.
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