Michael Lacy, president of the Criminal Lawyers’ Association, says income
thresholds for legal aid eligibility "bear no resemblance to the modern
Ferguson / Toronto Star file photo)
“It should be obvious to any outside observer that the income thresholds
being used by Legal Aid Ontario do not bear any reasonable relationship to
what constitutes poverty in this country,” Nordheimer, who has since been
appointed to the Ontario Court of Appeal, wrote at the time.
With the heightened scrutiny on delays in the criminal justice system,
which can lead to cases being tossed for violating an accused person’s right
to be tried within a reasonable time, one area that experts have said
warrants further attention is the chronic underfunding of legal aid.
Many of those who can’t get legal aid are left with no choice but to
represent themselves. Self-represented litigants, who don’t always know how
to navigate the courts, can end up clogging the system, legal experts say.
Part 1: ‘It’s actually shocking how archaic’ Ontario’s criminal courts are
Alarm bells have been ringing for years, and continued to do so in 2017
in two major reports, one from the Senate that studied court delays, and the
other in a House of Commons report on legal aid funding itself.
Yet so far there has been little to no action on the part of the federal
or provincial governments to ensure legal aid is accessible to all those who
truly need it.
“Many accused persons do not qualify for legal aid, and yet cannot afford
a lawyer,” says the massive June 2017 report on court delays from the Senate
committee on legal and constitutional affairs.
“This is a cause of delays identified during the course of our study.
Unrepresented accused persons face the complexities of the justice system on
their own. Judges and Crown prosecutors must take more time to ensure that
the accused person is not only treated fairly, but that he or she
understands the procedures and decisions that must be made.”
The report, titled “Delaying justice is denying justice: An urgent need
to address lengthy court delays in Canada,” was the result of a study of
court delays across the country and testimony from numerous judges, lawyers,
academics, bureaucrats and others.
The man in the case over which Nordheimer was presiding had been denied a
legal aid certificate to pay for a criminal defence lawyer because he was
making about $16,000 a year — more than the income cut-off in 2016 for a
single person, which was close to $12,000.
And yet today, even with the annual six-per-cent increases to the
threshold instituted by the previous Liberal provincial government, the man
may still have been denied funding, as the cut-off is now close to $14,500.
As Nordheimer pointed out in his ruling, Statistics Canada had calculated
the low-income cut-off, before tax, for a single person living in a
metropolitan area in 2014 at $24,328 “or more than twice the figure that
Legal Aid Ontario uses,” he wrote. (The cut-off was $25,338 in 2017.)
Nordheimer ruled that the government pay for the man’s lawyer so that the
trial could get underway. But many others who cannot afford a lawyer are not
always so lucky.
While the bulk of legal aid funding is provided by provincial
governments, which are responsible for the administration of the legal aid
plan, a portion comes from the federal government, which several witnesses
told the Senate committee is far too little.
The committee ended up recommending that federal Justice Minister Jody
Wilson-Raybould undertake a full-scale review of legal aid plans “with a
view to bringing access to legal aid up to acceptable levels” across the
“The committee strongly believes that having an adequately resourced
legal aid system in criminal matters is an essential tool to prevent delays
and to maintain the integrity of our justice system,” the Senate report
Wilson-Raybould told the committee in her official response that her
department would continue to monitor legal aid funding and review data.
Fast forward to a year a later, and the
federal government’s bill to revamp the justice system with a view of
reducing delays has no provisions for legal aid. (The last federal increase
to criminal legal aid funding, $88 million over five years, was in the 2016
Ontario’s new attorney general, Caroline Mulroney, has not said whether
she will further increase provincial funding to the legal aid plan. A
spokesperson told the Star last week that Mulroney is always open to hearing
from lawyers and experts to “investigate ways of ensuring that people are
able to equitably, affordably and expediently access the legal system.”
Self-represented litigants can cause delays for a variety of reasons in
criminal court, said Criminal Lawyers’ Association president Michael Lacy.
These include: an inability to make “appropriate concessions” with the Crown
to limit trial time, the need for the judge and the Crown to take more time
to explain the process to the defendant, and a lack of familiarity with how
to proceed with applications such as how to get third-party records or to
cross-examine a sexual assault complainant on prior sexual history.
“The thresholds for eligibility are not regional dependent and bear no
resemblance to the modern realities. Someone, for example, living in the GTA
and who is barely able to meet their daily demands will not qualify for
Legal Aid because of the Ontario-wide income eligibility cut off,” Lacy told
“When the provincial and federal governments invest in more judges, more
Crowns, more court space and more staff, they have to proportionately invest
in Legal Aid and mandating that it be used for the issuance of criminal
certificates. Doing so would permit Legal Aid to ensure that eligibility
criteria are more realistic and the working poor qualify for certificates.”
Criticism of the underfunding of legal aid is long-standing and not
limited to any one province. The issue was studied in depth by the House of
Commons’ standing committee on justice and human rights, which released its
report just a few months after the Senate’s report on delay.
“The testimony and briefs provided to the committee revealed the need to
increase funding for legal aid to promote access to justice,” says the House
committee report. “Indeed, the evidence heard was consistent on one point:
the demand is greater than what can be supplied with current resources.”
Noting that the federal government contributed nearly $120 million in
2017-18 to the provinces for criminal legal aid services, the committee also
said that its contribution for criminal legal aid had not increased in line
with provincial government increases over a 10-year period between 2005 and
2015: a 22 per cent increase versus a 55 per cent increase in provincial
The committee’s recommendation was blunt: “That the federal government
further increase its funding contribution to the provinces and territories
for the delivery of legal aid services.”
“The committee is convinced that making investments in legal aid will pay
off elsewhere, in decreased court delays and overall costs to the justice
system and in reduced use of other services such as healthcare and social
assistance,” the committee concluded. “As the committee heard repeatedly
from witnesses, action is needed now.”
In her official response to the House committee, Wilson-Raybould simply
reiterated that in the 2016 budget, the federal government included an
increase of $88 million for criminal legal aid over five years, with $30
million annually starting in 2021.
But those extra dollars had already been flagged as a concern months
earlier by the Senate report on delay.
“We fear ... that this will be insufficient to address the demand for
legal aid services,” said the Senate committee.
Ottawa criminal defence lawyer Michael Spratt, a vocal critic of many of
the federal Liberal government’s reforms to the criminal justice system,
describes the legal aid situation as the costs of justice being downloaded
from the federal level to the provincial level and ultimately on the backs
of unrepresented accused persons.
“On other types of legislation, we see detailed costing, financial
accountability, but that never happens with criminal justice legislation, no
one ever asks how much is this going to cost in increased prison population,
in increased court time,” he said of the government’s recent proposed
legislation to reduce delay, which does not take legal aid into account.
“It is politically difficult to say that we're going to spend that money
to help people who are presumed innocent to defend themselves against very
serious criminal charges.”
Jacques Gallant is a Toronto-based reporter
covering legal affairs. Follow him on Twitter: