Cutting Legal Aid: Reducing Access to Justice and Increasing Other Social Costs

People who cannot afford lawyers (or in some cases paralegals) are at risk of not having their rights vindicated. Or they may not even try to assert their rights in the first place. A great number of ad hoc arrangements have been created to respond to this failure to provide access to justice, but the most systematic is the legal aid system. (I mentioned some of the other arrangements in a previous Slaw post and there are others.) Legal aid is not perfect — even with increased funding that has allowed it to offer legal aid to more people, it can still offer assistance only to people in the lowest income ranges and it does not offer assistance in all areas of law — but it is a crucial source of assistance for people who cannot afford lawyers. Ontario government intentions to cut back the increases to legal aid is a step back in access to justice and is likely to have practical ramifications for the broader system.

Currently the maximum someone’s income can be and still be eligible for legal aid is $17,731 (or $22,720 for domestic abuse cases), rising to just over $48,000 for a family of five (just over $50,800 for domestic abuse cases). Legal aid provides help in criminal law, mental health and Indigenous issues and community clinics provide service in an extensive range of areas: tenant rights, Ontario Works and Welfare, Ontario Disability Support Program, government pensions, immigration, employment insurance, workplace safety and insurance, Workers’ Compensation, employment rights, criminal injuries compensation and human rights. Legal Aid provides help in different forms (such as a toll-free telephone line) and may be provided differently in different parts of the province (see, for example, assistance with tenant law). Legal aid in Ontario runs family law centres that provide specific and limited services.

The 2019 Ontario budget refers briefly to “[s]treamlining the delivery of legal aid to promote long‐term sustainability to generate savings
of over $164 million annually, starting in 2021–22”, but fails to provide other details. This amounts to about 30% of this year’s legal aid budget of an expected $456 million. In particular, as the Globe and Mail reports, the Ontario government has told Legal Aid that it cannot use provincial funding for immigration and refugee services, part of changes the Ontario government is making to ensure that the federal government takes full responsibility for this area.

There have been various efforts to improve the situation for self-represented litigants in family law, such as Ontario’s Family Law Limited Scope Services Project, designed to promote partial services that provide litigants with help with some aspects of their case. More broadly, there is a greater push for unbundled services in other areas of law, as well, by the Law Society of Ontario, for example. The Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons and Supreme Court of Canada’s decision to endorse them have placed a significant onus on judges to assist self-represented litigants. The National Self-Represented Litigants Project (NSRLP) offers a wide variety of resources to assist self-represented litigants and courts have posted information to help them navigate the court process (see, for example, the Ontario Court of Justice’s “How do I?” webpage.

The point is that regardless of these various ways in which potential litigants who cannot afford a lawyer are able to obtain some form of legal assistance, they remain at a significant disadvantage. Regardless of the ethical issues arising from this lack of access to justice, there are practical ramifications. Not only are these litigants at a disadvantage in court, despite coaching, duty counsel, judges trying to balance their obligation to be impartial with their obligation to assist unrepresented litigants, information posted on court websites about what to expect, and even more, because they cannot respond adequately to the unexpected, they do not know the law, they cannot read the language of law, they may be disadvantaged in other ways. For refugees, lack of legal assistance may mean they are deported and returned to ill treatment or death in their home country. However, the consequences for others may also be dire and difficult to change. Just one example: failure to succeed in an employment dispute may mean loss of housing; that may lead to loss of custody when the stress breaks up a family.

And there is also fallout for other parts of the system. When people experience stress from a failure to address their legal problems, for example, they make greater use of the health care system, thus increasing the cost to health care. Savings in public provision of legal representation is likely to show up in increased costs to other parts of the system. Thus one report prepared for the Canadian Forum for Civil Justice explains, “Over a three-year period the additional cost to the healthcare system as a direct consequence of people experiencing everyday legal problems is an estimated $304,274,643, based on a cost of $58.15 per visit.”

The government has not yet provided details about how the cuts to legal aid will actually affect the delivery of legal aid, except to deny the provision of services to immigrants and refugees. However, resiling from the provision of legal services for those who otherwise will have to navigate a maze of information and guidance, assuming they find it, will not only diminish an already imperfect and unequal system of access to justice, it will also add to the cost of other social services when fewer people are able to obtain help in resolving their legal problems.

Comments

  1. As someone else has pointed out, much of the legal aid slashing may be designed to put the onus back on the federal government for its mishandling of people streaming over the border (you can be sent back to the US if you follow the rules and cross at a crossing, but if you ignore the rules and cross anywhere, you can stay and access the expensive provincial legal system. Is that sensible?). How else can the provincial government get the federal government to accept its federal responsibilities other than discussions (which haven’t worked) or money pressure?

    Further, the approval of Civil Societies by the Law Society is likely seen by the government as a means of delivering legal services to those who need them outside the legal aid and clinic systems, putting the onus on the charities applying for Civil Society status instead of on government funded legal aid and clinics. An enhanced clinic system tapping into the charitable funding was a better option, but it was not adopted.

    Further, the legal profession overall (lots of exceptions) is a well-off profession. The legal profession will have to do its part in providing legal services to those who cannot normally afford them, partly to help the government rein in its colossal debt (which we all pay for), and partly to safeguard independent self-regulation. It does no good for the profession, or any other group in Ontario (teachers, civil servants, health care workers, you name them), always to look to government to pay for everything at the ever-increasing expense of gargantuan debt loads, investment-losing high taxes, and hamstringing of the future.

    Further, the legal profession through the Law Society can work with the government to reduce the one barrier to access to justice that dwarfs all other A2J real or imagined barriers combined, and that is the Ruinous Time and Cost of Litigation by removing some steps, shortening the process, making even better use of offers to settle, and removing 95% of custody battles from the courts. In doing so, litigation services would be rendered affordable, enabling literally millions of new clients to seek the assistance of our barrister bar.

  2. Why is legal aid (for the poor) being cut but legal aid for affluent doctors (in the form of taxpayer funded CMPA lawyers) never cut? In fact, the CMPA is over-funded and sits on a $2 billion war-chest. If the system actually cared about access to justice; then long ago provincial governments would have cut (by half) the yearly cheques they send to the CMPA (used to fund hyper-aggressive, scorched earth tactics) and re-directed those dollars to legal aid for the poor.
    An under-funded legal aid undermines justice. An over-funded CMPA undermines justice. The solution is dropped simple.

  3. Greater use of Plain Language is a crucial part of improving access to justice. Legislation, rules of court, and court forms are written so poorly that they are indecipherable to non-lawyers.

  4. Legal Aid Ontario’s budget could be much more cost-efficiently spent if: (1) it converted legal assistance by lawyers in court, etc., away from the present judicare model, to a staff system, i.e., an employed staff of highly specialized lawyers providing the legal services, instead of lawyers in private practice; and, (2) begin developing Legal Aid Ontario’s clinic system of approximately 70 law offices, to serve lower income people, and then develop it as the beginning of a government-supported program of socialized law.
    Legal Aid Ontario has facilities such as LAO LAW, a centralized legal research unit, that would serve such a large integrated network of law offices that could be highly specialized to work as a highly integrated source of legal services in many areas of law. It could out-perform any law office in private practice.
    That is to say, develop those clinics to be an infrastructure of specialization similar to that by which medical services are provided. There are no “generalists” in that medical services infrastructure. Every part of it is staffed by specialists. That provides a strategy of cutting costs by increasing competence, instead the opposite strategy used in law offices and favored by law societies. All of manufacturing uses that strategy of a high level of specialization provided by a network of highly specialized support services, combined with high levels of production, to create the large economies-of-scale that the affordability of all goods and services for all income levels of society requires.
    But our law societies have only the skills of lawyers. They don’t have that kind of expertise necessary to create and manage such an infrastructure. As a result, they are incapable of developing such innovations. That is because they are still the same 19th institutions as they were when created, intensely devoted to the “bencher concept of management by part-time amateurs.” The career of a bencher is in being a good practising lawyer, not a good law society manager. And so, management by benchers in the 21st century is inevitably incompetent management of the resources of the legal profession. As a result of such lack of evolution in law society management, and the resulting lack of innovation in the delivery of legal services, the “access to justice problem” of unaffordable legal services for middle and lower-income people, that is the majority of society, exists. And so the majority of lawyers is very short of clients. Therefore, law societies should not be relied upon to provide any government-supported legal services.
    Cuts in Legal Aid Ontario’s funding are necessary only because its services are still dependent upon the nature and amateurish quality of management of the legal profession provided by the Law Society of Ontario. And all other law societies in Canada are guilty of the same intentional incompetence.

Leave a Reply

(Your email address will not be published or distributed)