Ontario's legal aid plan,
established 40 years ago with the promise of
ensuring justice for all, is struggling to serve
even the poor.
It's the richest legal aid program
in the country with an annual budget of $309
million, yet is turning away people in record
Even the chairperson of Legal Aid
Ontario, Janet Leiper, says her agency's qualifying
rules are too restrictive. For instance:
Those who fall in between may have
to sign a contract promising to repay the money and
have liens placed on their assets.
"You end up turning people away on
the notional basis that they should be able to hire
a lawyer, but they can't," says Leiper. "So you have
increased numbers of people who show up in court
Those who go to court without a
lawyer "don't get the kind of custody and access
orders they should be getting, they spend a lot
longer in the system and they have a much more
frustrating experience," says Marc Bode, area
director of the legal aid office in Thunder Bay.
In 2005-06, 32,200 legal aid
applicants were turned away, a 26 per cent increase
over the previous year, while 111,000 were accepted.
One in three people with family law
problems are turned away, in most cases because they
earn too much or their problems are not covered by
Like medicare, also born in the
1960s, the Ontario Legal Aid Plan, as it was
originally called, grew out of a philosophy that no
person should be denied access to an essential
service because they can't pay.
But during the mid-1990s, the
Ontario government capped legal aid spending,
forcing the plan's administrators to slash services.
Legal aid for civil cases was abolished and funding
in family law cases reduced.
Legal aid lawyers continue to be
paid modestly – $73.87 to $92.34 an hour, depending
on their experience. Ontario Attorney General
Michael Bryant recently asked Professor John McCamus
of Osgoode Hall Law School to look at alternatives
to the current fee system and administration of
Those charged criminally cannot be
turned away if a conviction is likely to result in
time behind bars. But for every legal aid dollar
spent on a criminal case, there is one fewer dollar
for other legal problems.
Further straining the system are
recent anti-gang initiatives and the resulting
"mega-trials." This year, Legal Aid Ontario expects
to spend between $24 million and $25 million on big
cases, including those involving "gangs and guns."
That could fund as many as 12,000 family law cases,
which cost on average $2,000.
Gang prosecutions still account for
just 1 per cent of legal aid cases, but 24 per cent
of legal aid spending on criminal cases. Some gang
cases have cost as much as $3.2 million.
But being charged with a criminal
offence is no guarantee of legal aid. Those not
likely to go to jail if convicted – for instance, a
first offender charged with breaking and entering –
do not qualify for legal aid, even though a
conviction can have serious consequences, such as
harming career prospects.
Legal aid is also not available to
anyone charged in a case in which the Crown is
seeking a conditional sentence. And someone
convicted and sentenced to house arrest can't obtain
legal aid for an appeal.
"Many, many people who are young,
poor and struggling fairly hard to improve their
position – a lot of whom are of aboriginal descent –
come into our office," says Bode.
"And, either because they are poor
but not poor enough, or because their charges are
not serious enough, we have to tell them they have
to deal with their criminal matters without the
assistance of a lawyer."
Although duty counsel are on hand in
the courtroom, they're governed by rules restricting
the time they spend with clients – usually 20
They also can't draft court
documents or spend time preparing for a trial.
Duty counsel are only supposed to
help people who qualify for legal aid.
"Legal processes are complex and
most people need help," says Bode. "And they need
fairly intense help."