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Some Legal Aid Can Never Be Costed

The recent release of the provincial budget in Ontario has many lawyers livid over the proposed cuts to Legal Aid, which amount to almost 30% of its funding. The cuts relate to broader reductions to the justice sector of approximately 2%, from $5.0 billion in 2018–19 to $4.7 billion in 2021–22.

These cuts may appear to stem from what appears to be higher figures for actual “Other Non-Tax Revenue,” which includes legal aid, from the interim projections for the 2018-2019 year, suggesting some concern that these expenses have been growing unsustainably. But a closer look at these figures suggests there are larger motivations at play.

A letter from the Attorney General indicates that Legal Aid Ontario will be prevented from doing refugee and immigration law from the provincial funds which are provided. The provincial government’s position is that the federal government should pay for these expenses, as they are properly in that government’s jurisdiction. Although “Revenues from All Other Federal Transfers Combined” have decreased since the fall economic statement, it appears as if this is offset by transfers to Legal Aid Ontario, meaning the federal government likely has already increased these payments.

The federal government currently provides $16 million in funding for immigration refugee law for cases before the Federal court and federal tribunals, but the entire expense is approximately $34 million. The Attorney General is calling for the federal government to increase its contributions to $45 million. Although there appears to be a legitimate argument of downloading of these services, Ontario’s position is likely related to broader sentiments towards immigration, and in particular immigration by visible minorities.

Instead, LAO will have utilize its core functions with provincial funding, focusing on bail hearings with duty counsel, and contracting lawyers for criminal, family and other cases. Payment to lawyers for these services are already modest, and it may be possible that freezes or cuts may be passed on to lawyers doing this work. Justification for this in the budget are through promises of modernization and transformation of legal services.

Lawyers often engage in an exercise of overemphasizing the importance of legal aid in access to justice. There are numerous examples, in particular in civil disputes where both sides are funded by legal aid, where public funding of these parties only spurns more conflict and is an inefficient use of the court’s time and resources. A disproportionate focus on legal aid is perhaps understandable, as it is the one solution that allows lawyers in private practice to most directly impact those in need of legal assistance. But this has never been the comprehensive and complete solution.

When I heard former Chief Justice McLachlin speak in Calgary in 2015, she stated,

Statistics support the view that accessing the justice system with the help of a legal professional is increasingly unaffordable to most people. Nearly 12 million Canadians will experience at least one legal problem in a given three-year period, yet few will have the resources to solve them. According to an American study from a few years ago, as much as 70%-90% of legal needs in society go unmet.We all know that unresolved legal problems adversely affect people’s lives and, ultimately, the public purse. Among the hardest hit are the middle class – who earn too much to qualify for legal aid, but frequently not enough to retain a lawyer for a matter of any complexity or length. Additionally, members of poor and vulnerable groups are particularly prone to legal problems, and legal problems tend to lead to problems of other types, such as health issues.
[emphasis added]

However, she also highlighted the role of technology in providing access to justice, and the need for accountability,

The second challenge is that the digital revolution is producing a public that demands delivery of legal services with greater speed and efficiency and at less cost than ever before. The digital world is a fast world. Consumers of legal services, be they corporations or individuals, are not prepared to wait for results. The time-honoured legal phrase “with due deliberation” has no place in the new world in which we live and practice. And that’s not all. The digital world is also a competitive world.  Consumers of legal services are no longer prepared to pay blindly for justice whatever the cost, be they governments funding legal aid for criminal and family cases or individuals and corporations seeking legal advice or the resolution of a dispute.

[emphasis added]

Public confidence that legal aid funding is being used appropriately is an important consideration for any government, especially where emerging technologies are already demonstrating some innovative solutions. If the projected savings of $164 million annually from legal aid are directly invested in technology, we may in fact create a better system in the long-term.

Several initiatives underway are indeed commendable, including the current Digital Hearing Workspace, which is intended to extend to the entire court system. As I told Fatima Syed & Declan Keogh in the National Observer,

Although it’s true that many vulnerable members of society will be significantly affected by these cuts, these same members of society have the most to benefit from a modernization of the system.

But, it won’t matter how modern the justice system is, if people can’t access it.

The one exception to all of this is with serious criminal proceedings, especially where there is the possibility of incarceration. The absence of proper funding for legal aid in this context has potentially disastrous consequences. This was illustrated recently in an unusual decision by the Ontario Superior Court of Justice in R. v. McIlvride-Lister.

The accused is a transgender female who plead guilty to one count of sexual assault on December 18, 2018. Six other accounts, relating to sexual touching, sexual exploitation, assault, threatening to kill or injure animals, and the killing of animals were not plead, but would be considered as aggravating factors on sentencing. A joint submission of three years in jail was about to be offered, when something unusual happened.

Justice Pomerance conducted a plea inquiry before arraignment to determine whether the plea was voluntary, but the accused hired a new lawyer prior to sentencing and brought an application to strike the guilty plea. The reason why she said she make the guilty plea was that she could not afford to pay a lawyer for trial, and the Crown was going to ask for a significantly higher sentence. She testified that she always maintained her innocence on the charges,

[25] Her testimony included the following:

At the time I didn’t have $30,000 that my lawyer wanted to go to trial and I didn’t have money to hire a new lawyer. He didn’t seem confident, and told me that he didn’t know whether I – he didn’t think I would win if we went to trial, and that my best option for getting through this and getting on with my life was to just take the deal that they were offering, that I would be out in as little as six months, and I could move on and put this behind me and everything else.

…under pressure of not having time to really be able to consider all this, what do you do when you have a noose around your neck and you feel like you’re being told if you fight this and you lose you’re looking at five to eight years, your life is over, or you take this deal and …you can be out in as little as six months and move on with your life.

. . . .

I feel stuck in a corner. At the time I did not have options to proceed with another lawyer. How do I go to trial with a lawyer who doesn’t really seem confident that he wants to go to trial at all, or that I’m even going to have a chance at winning my innocence?

. . . .

He told me we would go to trial. I said: “Okay that sounds good”. We came back upstairs and then he came back and said “This is your best option. I really think you should take it”

This type of scenario occurs regularly across the province in courthouses everywhere. What made this scenario different was the accused’s concerns about gender transition supports while incarcerated, and an extended sentence would make this extremely difficult.

A guilty plea is a formal admission of guilt, and Justice Pomerance highlighted the societal interest in finality to ensure stability, integrity and efficiency of the justice system. However, a valid guilty plea must be voluntary, unequivocal, and informed. Although voluntary and informed, the plea here was not necessary unequivocal, and even if it was, it may have created a miscarriage of justice.

The appellate authorities referred to, such as R. v. Hanemaayer, R. v. Kumar, R. v. Shepherd, and R. v. Catchewayall required evidence of actual evidence of innocence. However, Justice Pomerance in this case found that this threshold would be too high in this case, as the accused was not looking for an acquittal, but an opportunity to prove her innocence at trial,

[70] …An accused need not prove innocence at a trial. She should not have to prove innocence to have a trial. Moreover, the issue of guilt or innocence is the very issue to be determined at a trial if the plea is struck. To require a showing of innocence would render the trial superfluous. Worse, it would supplant the trial with a process in which the onus is placed on the accused rather than on the prosecution.

[71] Therefore, the question is not whether the person who offered the plea is actually innocent, or can prove innocence. The question is whether the person who offered the plea believed that she was innocent and pleaded guilty despite that belief.

Despite this finding, Justice Pomerance recognized the need for finality and to avoid having disappointments or regret after the fact, and should not result in pleas being set aside too lightly,

[78] Where a miscarriage of justice is alleged, the court must consider the whole of the evidence, in assessing whether the plea was based on something other than a genuine acknowledgment of guilt. A plea should only be disturbed in the face of credible and cogent evidence. It will not be a simple matter for an accused person to counter admissions voluntarily offered at the time of the plea. Something more than a bald assertion of innocence will likely be required in most cases. The testimony of counsel who acted on the plea will be important, as will the plea proceedings themselves. Pressures that fall short of negating voluntariness may also be relevant at this stage of the inquiry. The determination is, by necessity, case and fact specific. It engages an element of judicial discretion, but sets a high bar for judicial intervention.

Procedurally, Justice Pomerance also found difficulty with the Crown’s offer of resolution, which required forgoing cross-examination of the complainant, which prevented the evidence from being tested in any way,

[88] Absent cross-examination, there could be no meaningful assessment of the actual strength of the Crown’s case, or the likely outcome of a contested trial. I question whether it is ever appropriate for the prosecution to hold the ability to test evidence hostage as part of a plea negotiation.

The inherent power imbalances found within the criminal justice system requires that the same state that would seek to incarcerate a criminal accused also ensure that the same accused is not unduly pressured by financial or other constraints to simply surrender. The best protection against this abuse is competent and effective counsel, who aren’t required to become destitute in their services of the public.

Legal aid cuts may be necessary for political or efficiency purposes, but most be conducted with a commitment to the integrity of the system. If system transformations are to occur, the interim period cannot simply be discounted while a few fall between the cracks until the system is fixed. The stakes for these individuals is simply too high.

Although the vast majority of criminal prosecutions are resolved through the various incentives designed to encourage guilty pleas, the financial cost of maintaining innocence without a recognition of criminal culpability should never be the motivation for doing so. The cost of a wrongful conviction is something that no government can budget for, because it is simply immeasurable.

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