Legal aid rules shut out thousands

Mar 03, 2007 04:30 AM


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 numbers.

Even the chairperson of Legal Aid Ontario, Janet Leiper, says her agency's qualifying rules are too restrictive. For instance:


  • A single person earning $16,600 or more a year after taxes does not qualify.



  • Someone who earns just $13,068 may not qualify if they spend more than $487 a month on rent.



  • 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 without representation."

    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 legal aid.

    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 legal aid.

    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 minutes.

    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."


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